KO (Review Administration)

[2017] TASGAB 23

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

KO – Application for Administration

KO (Review Administration) [2017] TASGAB 23

REASONS FOR DECISION
for the appointment of a guardian

Rodney Lester (Chair)
Sue Aylett (Member)
Elizabeth Clippingdale (Member)

Hearing Date – 1 December 2017

Guardianship – need – least restrictive option

Guardianship and Administration Act 1995 s.3, 15, 20, 51

1. The hearing was in respect of KO, an 88 year old woman, who at the time of the hearing was in the Launceston General Hospital, (LGH), awaiting placement in an aged care facility. KO had moved to Tasmania from New Zealand 16 years ago with her second husband, who died approximately 5 years ago. She had three children with her first husband, but only had contact with one of them who resided in Queensland. The application for Administration was made by Eleanor Biffin from the Social Work Department at the LGH. The applicant proposed that the Public Trustee be appointed Administrator.

2. At the commencement of the hearing the processes that the Board would follow were outlined, and the criteria that needed to be established for appointment of an Administrator were explained. The information and reports available to the Board were also detailed.

3. The hearing was held at the Magistrates Court in Launceston on Friday, December 1^st, 2017. It was attended by the applicant Eleanor Biffin, Victoria Houghton-Newman, also from the LGH, and Emma Curbishley from the Public Trustee.

Disability – sections 3(1), 20(1)(a) and 51(1)(a)

1. The Board had a Health Care Professionals Report from Dr Hafsa Masood of the LGH. Dr Masood had diagnosed dementia, which had been first diagnosed in February 2017. There was no suggestion from those at the hearing that this diagnosis was incorrect and it was evident that the severity of the disability would likely increase over time.

Incapacity – sections 20(1)(b) and 51(1)(b)

1. Dr Masood stated in the Health Care Professionals Report when questioned about KO’s capacity, ‘Due to progressive cognitive decline KO is unable to make decisions that might be in her best interests …’ He further states ‘KO at present would not be able to reliably remember her assets and would not be capable of making safe financial decisions.’ With regard to her accommodation Dr Masood states ‘KO is disorientated to time, place and person. She would not be able to make a decision about her preferred residence.’

2. There was no evidence introduced that challenged the proposition that KO lacked capacity in a wide range of areas, and that this incapacity was a direct result of her disability.

3. The Board was of the view that the only reasonable conclusion was that KO had a disability, and as a result of this disability lacked the capacity to make reasonable decisions in relation to matters concerning her estate, her accommodation, her health care and her general circumstances.

Need – sections 20(1)(c) and 51(1)(c)

1. KO’s circumstances were such that there were several areas that required actions to preserve and manage her estate. As the subject of this Reasons for Decision is guardianship it is not intended to expand on these.

2. Whilst the application before the Board was for administration only, section 20(1) of the Guardianship and Administration Act 1995, (the Act), states ‘If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order … appointing an administrator is made … the Board may make an order appointing a full or limited guardian in respect of that person …’. Thus, being satisfied that KO has a disability, and resulting incapacity, if there were to be demonstrated a need for a guardian then clearly the Board has the ability to make such an appointment.

3. The Board was informed at the hearing that KO had a placement at the aged care facility in Launceston, but that the facility was not prepared to allow KO to take the placement until she had a guardianship order to authorise that accommodation option. This was somewhat unusual in that it is reasonably common practice for aged care facilities to require guardianship orders where residents are held in secure care facilities, but rare where residents are not in secure care.

4. Notwithstanding that the information before the Board was that without a guardianship order the facility was not prepared to accept KO. She clearly needed the placement, and as such the Board took the view that the requirement of the facility for an order to authorise it represented a need as required by the Act. Furthermore, the facility’s requirement meant that there was no other less restrictive option that could satisfy section 20(2) of the Act. It was however clear that with no other issues other than accommodation having been raised by the facility any guardianship order could be limited to accommodation issues.

Appropriateness of appointee - sections 21 and 15

1. KO had some contact with one of her children but was effectively estranged from the others. The one son she did have contact with was not prepared to be involved with any decisions regarding her finances or ongoing care. This left the Board with no obvious alternative other than to appoint the Public Guardian.

The Board’s Decision:

The Board was satisfied that the represented person

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect their person and circumstances; and

• is in need of a limited guardian.

THE BOARD ORDERS

1. That the Public Guardian be appointed as the represented person’s guardian.

2. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily.

3. That the order remains in effect to 30 November 2020.

RODNEY LESTER – CHAIR
SUE AYLETT – MEMBER
ELIZABETH  CLIPPINGDALE - MEMBER