KNY (Administration)
[2019] TASGAB 18
•16 July 2019
CITATION: | KNY (Administration) [2019] TASGAB 18 |
HEARING DATE(S): | 16 July 2019 |
DATE OF ORDERS: | 16 July 2019 |
DATE OF STATEMENT OF REASONS: | 29 July 2019 |
BOARD: | Mr R. Grueber Mr G. Dibley Dr J. Breen |
APPLICATION | Administration |
CATCHWORDS: | Administration – vascular dementia – conflict of interest – whether to appoint Public Trustee or adult child living rent-free in family home |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss6, 11, 51, 52, 54 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
By an Application dated 25 June 2019 Ms Katrina McDowall, a social worker with the Tasmanian Health Service (THS), sought an Order appointing the Public Trustee as Administrator of the estate of KNY.
Hearing
The Application was heard by the Board on 16 July 2019.
The following persons appeared at the hearing:
a. KNY (by telephone);
b. Ms Hui-yu Yao (social worker with THS in substitution for the Applicant);
c. GXY (daughter of KNY);
d. QXY (daughter of KNY);
e. RXY (son of KNY, by telephone);
f. Ms Rebecca Hobbington (allied health assistant, with KNY by telephone);
g. Mr Wern Han Chai (student social worker); and
h. Ms Rosemary Jurs (Public Trustee).
At the hearing the Board had the following documents:
a. Application for Administration dated 25 June 2019;
b. Health Care Professional Report by Dr Rebecca Heath dated 25 June 2019;
c. MyAgedCare assessment summary and support plan;
d. Copy of the Certificate of Title for [the address in Hobart];
e. Email and statement by GXY dated 9 July 2019;
f. Submission by GXY dated 15 July 2019 with attached resume;
g. Letter from Dr Arlene Suttar (GP) dated 11 July 2019; and
h. Letter from Dr Dirk Jacobson (dentist) dated 14 July 2019.
Legislation
Pursuant to s51(1) of the Guardianship and Administration Act 1995 the Board may make an Order appointing an Administrator in respect to KNY’s estate if it is satisfied that:
a) KNY is a person with a disability; and
b) He is unable by reason of that disability to make reasonable judgements in respect of matters relating to all or any part of his estate; and
c) Is in need of an Administrator of his estate.
In determining whether or not an Order should be made ss51(2), (3) and (4) of the Act require that:
a) The Board must consider whether the needs of KNY could be met by other means less restrictive of his freedom of decision and action; and
b) The Board must not make an order unless it is satisfied that the Order would be in the best interests of KNY; and
c) If an Order is made it must be the least restrictive of KNY’s freedom of decision and action as possible in the circumstances.
An Administration Order may be made for a period of up to three years.[1]
[1] Guardianship and Administration Act 1995 (Tas), s52.
Section 54 of the Act sets out who the Board may appoint as an Administrator. The potential Administrators include the Public Trustee and any other person who consents to act as Administrator of KNY’s estate if the Board is satisfied that:
a) That person will act in the best interests of KNY; and
b) That person is not in a position where his or her interests conflict or may conflict with the interests of KNY; and
c) That person is a suitable person to act as the Administrator of the estate of KNY; and
d) That person has sufficient expertise to administer the estate.[2]
In determining whether a person is suitable to act as an Administrator the Board must take into account:
a)The wishes of KNY, so far as they can be ascertained; and
b)The compatibility of the proposed Administrator with KNY.[3]
[2] Ibid, s54(1)(d).
[3] Ibid, 54(2).
The Board must also have regard to the general principles in section 6 of the Act in performing its functions, which adds the requirements that:
a) The best interests of KNY be promoted; and
b) The wishes of KNY are, if possible, carried into effect.[4]
Evidence
[4] Ibid, ss6(b) and (c).
The Board is not bound by the rules of evidence and can inform itself as it sees fit.[5] It may therefore take the contents of the Application as evidence. In the Application Ms McDowall stated that KNY has a disability, being vascular dementia. In addition, KNY’s medical background includes type 2 diabetes, hypertension, recurrent cellulitis and impaired hearing and vision.
[5] Ibid, s11(4).
KNY normally lives in his own home with his two adult daughters, QXY and GXY. He was admitted to the Royal Hobart Hospital on 21 May 2019 with lower leg cellulitis and delirium. The Application states that during KNY’s admission to hospital his ability to return to his pre-morbid mobility has been hampered. He displays poor motor planning and he fluctuates in his need for assistance from one to three staff for transfers and mobility. He experiences incontinence. He requires set up assistance for meals. His mobility and care needs are not expected to improve to a point that is functionally significant. The treating team have recommended that KNY’s needs are best met in permanent accommodation in a residential aged care facility. The Application asserts that KNY is unable to manage his finances, does not have an enduring power of attorney and has not authorised a nominee to access funds in his bank account. It is asserted that he will require an Administrator to be able to sign residential care agreements on his behalf, liaise with Centrelink, arrange payment of residential aged care facility fees and manage his assets, income and outgoings. The Application states that KNY’s ability to engage in conversation fluctuates. At the time that the Application was made, Ms McDowall had not been able to engage KNY in conversation in order to obtain his views in respect to the Application.
The Application notes that KNY is in receipt of an aged pension from Centrelink of approximately $926.00 per fortnight. He has a bank account with the Commonwealth Bank and is the sole registered proprietor of a residential property at [the address in Hobart].
A Health Care Professional Report by Dr Rebecca Heath accompanied the Application. Dr Heath says that KNY has a disability, being vascular dementia diagnosed in 2015 with changes shown on medical imaging. The condition is deteriorating. She notes that KNY’s delirium and cellulitis have resolved since admission to the hospital, but that he continues to experience cognitive impairment which has progressed and is significant. KNY has severe executive dysfunction, memory impairment and impairment in problem solving ability (the report on its face under the heading Circumstances on page 2 appears to say that KNY has problem solving ability, however read as a whole in context it is apparent that this is a typographical error and that Dr Heath considers that KNY has impaired problem solving ability, as she indicates later on the same page of the report). She states that KNY’s care needs are beyond what can be safely managed in the home and are progressively increasing as his condition deteriorates. She says that he requires 24 hour supervision and prompting on simple daily tasks. He lacks capacity and insight to make decisions around his long term accommodation requirements and personal finances. By reason of his disability he has deficits in respect to orientation to person, place or time, expressive communication, receptive communication, impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills. KNY lacks the capacity to appreciate the nature and extent of his property or make reasonable decisions in respect to it. His ability to manage both day to day finances and major financial decisions is affected by lack of capacity. Dr Heath observes that multiple specialists, including four consultant geriatricians and an endocrinologist, have reached a consensus that KNY requires residential aged care, as has KNY’s long term GP. She says that there have been multiple family meetings in respect to this.
A MyAgedCare assessment summary by Mr Lesley Morgan of the Southern Aged Care Assessment Team with the Department of Health and Human Services on 1 July 2019 notes that KNY is blind in his right eye with poor vision in his left eye and wears bilateral hearing aids. He is observed to sleep for most of the day in his chair. He can be resistive to care at times and can become confused. She recommends permanent residential care and high level residential respite.
KNY’s daughters GXY and QXY live with him and take care of him in his home. GXY is a university educated public servant and QXY is a trained teacher currently undertaking full time post graduate study. For the past 10 years GXY has assisted KNY in managing his finances and arranging for any maintenance and repairs to the residence. GXY and QXY cared for KNY in his home and visit him daily while an inpatient.
Much of the information provided at the hearing went to matters more relevant to an Application for Guardianship, such as accommodation and the provision of services (but which also indicated the need for Administration, for example, as establishing a need to contract for and pay for residential care). Ms Yao told the Board that an Application for Guardianship had been lodged on 15 July 2019. That application seeks to appoint the Public Guardian as Guardian. This was because there is differing opinion as between the treating team and KNY’s daughters in respect to his need to enter residential care. KNY’s discharge planning is waiting on the outcome of the Guardianship hearing. At the hearing GXY expressed support for respite care and acknowledged that, while she and her sister’s preference would be for their father to return home and that they maintained that hope, KNY is not presently able to be cared for at home. Their wish for their father to return home reflects the closeness of the relationship between GXY and QXY and their father, their desire to care for him and their belief as to their father’s wish to remain at home. In the past the daughters have wanted to maintain their father’s independence and have declined the provision of services recommended by their father’s treating professionals, such as OT assessment, because they considered that they were not needed.
GXY wrote to the Board prior to the hearing asking to be considered for appointment as Administrator of her father’s estate. She maintained that position at the hearing. GXY is a senior web developer at [the government department]. She has undertaken a course of study in dementia at the University of Tasmania, as has QXY. Together with QXY, GXY has taken care of KNY for the past 10 years and has assisted KNY in financial matters, including payment of expenses and management of his bank account.
Ms Yao told the Board that the original applicant, Ms McDowall had nominated the Public Trustee as Administrator because GXY and QXY were originally reluctant for KNY to move into supported care. She confirmed that GXY and QXY have a close relationship with KNY.
GXY told the Board that she and her sister wanted to have their father back at home and had been seeking rehabilitation for that purpose. In the past he had successfully returned home, and improved, after a period of hospitalisation. They now accept that KNY is not well enough to return home but remain hopeful that he may be able to do so at some stage in the future. Both daughters live in the home owned by KNY. They do not pay rent but share household bills. KNY receives an aged pension. There is no mortgage on the residence. He has about $1,000.00 in a Commonwealth Bank account. He has no significant assets other than the home and contents and a motor vehicle jointly purchased with GXY some years ago. KNY has no unusual outgoings and normal day to day expenses. QXY supports GXY’s application to be appointed as Administrator. RXY is content with that.
The Board was not able to determine KNY’s wishes. Ms Hobbington advised the Board that KNY was drifting in and out of sleep during the hearing. When directly addressed by the Board KNY was not able to respond. The Board was not provided with evidence of any expression of opinion by KNY in respect whether an Administrator should be appointed, and if so, who should be appointed. Attempting to infer his wishes in respect to those matters, on the evidence before the Board, would be mere speculation.
Decision
The Board is satisfied that KNY is a person with a disability. There was no disagreement in respect to this at the hearing. The only medical evidence provided was the Health Care Professional Report by Dr Rebecca Heath. The Board accepts Dr Heath’s opinion that KNY suffers from vascular dementia which is not reversible and that his condition will deteriorate. The Board accepts Dr Heath’s opinion that by reason of the vascular dementia KNY experiences the deficits referred to in Dr Heath’s report and set out above.
The Board is satisfied that by reason of KNY’s disability he is unable to make reasonable judgements in respect of his finances and estate. Dr Heath’s report describes KNY’s ability to make reasonable decisions as being severely compromised. Her report states that KNY lacks capacity to appreciate the nature and extent of his property or to make reasonable decisions regarding this. His ability to manage day to day finances or major financial decisions is affected by his lack of capacity. Dr Heath’s evidence was not challenged and is accepted by the Board.
The Board is also satisfied that KNY is in need of an Administrator. By reason of his inability to make reasonable judgements KNY is unable to properly manage his finances. He has not appointed an enduring power of attorney. It is apparent that KNY will need to move to accommodation in a residential aged care facility and to that end will need to enter into formal agreements and incur and pay fees, matters beyond his current capacity. KNY’s pension income will need to be managed on his behalf in his best interests. When KNY moves to a residential aged care facility there will be a need for decisions to be made in respect to what, if anything, is done with his real property, and to carry out any such decision.
There is no less restrictive option than appointing an Administrator. KNY lacks capacity to appoint an attorney or authorise an agent to act on his behalf in respect to management of his finances, estate and contractual relations that will arise in connection with his need for aged care accommodation.
The Board carefully considered whether to appoint GXY or the Public Trustee as Administrator. The factors in favour of GXY being appointed include her level of education and responsible employment and her experience in assisting her father with his finances, all of which indicate that she would have the ability to act as his Administrator. She clearly has a close relationship with her father and is compatible with him. There is no reason to believe that GXY would not have KNY’s best interests at heart, although her reluctance for her father to move into an aged care facility in the face of very substantial expert opinion suggests that her depth of feeling may affect her ability to be fully objective in determining what is in his best interests. Also in favour of appointing her is the fact that KNY would incur fees for the Public Trustee to manage his estate. In favour of appointment of the Public Trustee is the clear potential for conflict between the interests of GXY and KNY. KNY’s major asset is the residence. GXY enjoys rent free accommodation in her father’s home and has an interest in maintaining that situation. She is also apparently close to her sister and would have an interest in her sister also maintaining that situation, or at least a natural desire to assist her sister in this regard. There is clearly potential for conflict between those interests and the best interests of KNY in respect to the management of the residence when he moves into aged care. The Administrator of KNY’s estate will necessarily need to consider whether KNY’s best interests lie with maintaining the current arrangement or with utilising the property to generate income for his benefit or potentially to sell it to fund alternative accommodation. It is not apparent to the Board that these steps would be taken or that GXY would give priority to her interests over those of her father, however such decisions need to be made objectively and impartially in KNY’s best interests. GXY’s assertion that because she would act in her father’s interests there would be no conflict misses the point. The conflict exists, or will exist and must be taken into account. In the Board’s view it outweighs the factors in favour of appointing GXY such that the Board considers it appropriate to appoint the Public Trustee.
Accordingly the Board ordered on 16 July 2019 in respect of KNY as the Represented Person:
i.That the Public Trustee (Tas) is appointed as Administrator of the estate of the Represented Person.
ii.That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
iii.That the Order remain in effect until the 15th day of July 2022.
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