KT (Review Enduring Powers) - [2009] TASGAB 13

GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart

KT application to review guardianship on the application of THE PUBLIC GUARDIAN and application for administration by THE ROY FAGAN CENTRE

Neutral Citation: KT (Review Enduring Powers) [2009] TASGAB 13

REASONS FOR DECISION

Anita Smith (President)

Review of guardianship and application for administration – capacity to make reasonable judgments – elderly woman seeking discharge from psycho-geriatric facility to insecure premises
Guardianship and Administration Act 1995 ss 20, 51, 67

KT is a 90 year old spinster who, until her recent admission to the psychogeriatric facility, the Roy Fagan Centre, lived alone in her home. She has been the subject of guardianship orders since 9 January 2009 and the subject of an emergency administration order since 20 April 2009. The guardianship order had a fixed expiry date at 26 May 2009, but close to that date the Public Guardian and Public Trustee had not yet resolved the central issue arising at the hearing on 27 February 2009, namely whether or not it was appropriate for KT to return home. [See KT (Guardianship and Administration) [2009] TASGAB 4] The Public Guardian sought a review of the order pursuant to section 67 of the Guardianship and Administration Act 1995 and the Roy Fagan Centre sought the appointment of an administrator.
A history of the guardianship orders is set out in the statement of reasons dated 27 March 2009. For continuity, the Board extended the guardianship order, using powers in section 31 of the Act, for the days between the expiry date and the date of the review hearing on 1 June 2009.
At the conclusion of the hearing on 27 February 2009 it was assumed that the repairs to KT’s home were affordable and possible and that a range of supports may be established to assist KT to return home. However, the reports obtained by the Public Guardian and the Public Trustee in the interim did not verify this situation. KT clearly wishes to return home and believes both administration and guardianship to be unnecessary.
The central questions at issue are whether it is safe for KT to return home and whether there are appropriate supports and facilities in place to assist her if she returns home. If the answer to both these questions were ‘yes’ then there would be no need for a guardian nor, it is arguable, for an administrator.
The hearing
The hearing was conducted at the Roy Fagan Centre and attended by the following persons, noting their role in the proceedings or relationship to KT.
KT – represented person
Ms Moya Cassidy – legal representative for KT
Mr Michael Condon – delegate of the Public Guardian
Mr Justin Clifford – delegate of The Public Trustee
Mr Lee Perry – Investigation and Liaison Officer for the Board
BT – KT’s nephew
ST – KT’s niece
BBT – KT’s friend
Ms Joanne Triffitt – Community Health Nurse, Older Persons Mental Health Service
Mr Tim Urbanc – Clinical Nurse at the Roy Fagan Centre
Dr Danny Cheah – Psychiatry Registrar at the Roy Fagan Centre

Is KT a person with a disability?

KT disputes that she had dementia or any disability. Her legal representative argued that much of the reported behaviour which had been attributed to a disability is, in fact, the result of her environment. Firstly that her concerns for security are reasonable and secondly that her behaviour and attitude are the product of the restrictions placed on her by staff at the Centre.
Dr Cheah had not changed his opinion since the last hearing date. He also indicated that KT’s mobility has decreased since her admission in November 2008. He said that despite antipsychotic treatment administered to her at the Centre, she remains suspicious of staff. No other medical opinion was produced. The Board was satisfied that KT is a person with a disability.

Is KT incapable by reason of a disability of making reasonable judgments?

KT and her legal representative put strong arguments that she had the capacity to make reasonable judgments and, centrally, that her desire to return home was a reasonable one. KT was well versed on the problem at hand and the insufficiency of funds to attend to the recommended repairs for her home. Both she and her representative stated that reported risks in her home were overstated and that if it had been safe for her to live there for 90 years, it remained safe. Countering this assessment of the risk were three reports which are discussed below.
The Public Guardian had obtained a report from Occupational Therapist, Trevor Young who noted a poor state of repair, restrictive ingress to the premises, holes in the ceiling and resultant soiling and dampness, poor heating systems leading to dampness in the home and loose and potentially dangerous wall cladding. He recommended better heating and the removal of clutter and stated:
“ … I could not recommend that the client return to live at home without major restorative works being carried out, particularly in the back section which incorporated the kitchen, bathroom and toilet. Should that be feasible, I would recommend the removal of the bath and the installation of a level access shower with flexible shower hose and grab rails: the widening of the doorway to the toilet or incorporation of the toilet into the bathroom area.”
The Public Guardian also obtained a report from Lindsay Rolle, Building and Design. That report stated:
“We feel that the original structure is in good condition but requires some immediate maintenance to maintain its condition. It is a matter of opinion as to what is crucial at this stage as we feel that without the maintenance (such as external painting) that the building will be in need of more structural repairs sooner rather than later.”
The report noted that the verandah, which had the kitchen and bathroom built into it, is unsound and needs replacement and electrical work requires an upgrade to meet the regulated standard. The report estimated the cost of repairs at $110,600.00 but noted that $39,500.00 of that work might not be needed immediately.
The building report is more equivocal than the occupational therapist’s report about the level of risk that is posed by the building. The building report appears to be directed at an asset protection level rather than a basic subsistence living level and the items listed in the reports did not marry together well to enable the Board to assess the cost of making the property safe as opposed to maintaining the asset. However it is clear that the cost of making the property safe will be significant. It is also clear from the report by the Public Trustee dated 1 May 2009 that the cost exceeds KT’s ability to fund those repairs.
The building and occupational therapist’s reports were discussed with KT in a meeting convened by the Public Guardian and her representative had been provided with copies as they became available. The Board was informed at the hearing that BT would be obtaining further reports and that it was likely that the costs could be reduced. However no report was available at the hearing.
There was also evidence at the hearing that if KT did return home, it may only be for a short duration before she required hospitalisation again. This evidence was given in line with an argument that the cost may not be a wise use of KT’s money. This part of the argument was not given a great deal of weight by the Board as it was clear that KT’s desire to return home was very great and she would probably view it as a worthwhile investment if it meant she could return home for whatever period possible.
The Board had sympathy for the argument that as an elderly lady she ought to be allowed to return to her home and, if that return caused her death, this would still be consistent with her firmly held wishes. This argument may also be described as “dying with your rights on”.
Ultimately the Board was satisfied of evidence given by Dr Cheah that KT lacks an appreciation of the risks that moving home would pose for her. In the hearing, she consistently downplayed any effects of physical or cognitive disabilities save for an admission that she has arthritis. Being an intelligent woman, she is articulate and feisty. However, her lack of appreciation that the efforts of the medical and nursing staff at the Roy Fagan Centre and the Public Guardian and the Public Trustee are directed towards protecting her and her unwillingness to admit any impairment represented a lack of insight into her capabilities that ultimately meant that she would be unsafe returning to her home, especially if it remains unmodified. It was also consistent with the description of her as having persecutory delusion.
There are two difficulties with the “dying with your rights on” argument in this case. The first is that structural defects in the home might not result in a sudden fatal accident, but have the possibility of contributing to the onset of a painful and unpleasant disease (i.e. from the effects of cold and damp, her difficulties in ablutions etc.) or a disabling but not fatal accident. Neither prospect is consistent with KT’s apparent concept of a successful return home. The second difficulty is that if one chooses “dying with your rights on” it implies an informed decision. Given KT’s denial of the risks that were obvious to the occupational therapist and her lack of insight into any level of impairment, the Board was unable to find that she has made this choice in an informed way or with the capacity to make reasonable decisions.
In short, KT’s decision to return home is not a reasonable one from a financial or personal perspective. The circumstances of that decision have changed since the last guardianship hearing both because of the decrease in her mobility and the evidence of the costs of repairs to her home as against her capacity to pay for such repairs.
A further issue is that evidence at the hearing suggested that KT does not need to live at the Roy Fagan Centre in the long term. There may be other Aged Care facilities with suitable rooms available and more attractive to KT. However, KT has not considered alternative accommodation options. This failure to consider alternatives is consistent with the Board’s view about KT’s lack of insight and her oppositional stance to the care that is being provided to her.

Is there a need for a guardian and an administrator?

The Board was in no doubt that, if KT were not the subject of a guardianship order, she will immediately discharge herself from the Roy Fagan Centre and return home without any repairs to the home. Because that is not a safe option for her, the Board was satisfied that a guardian is required to make decisions about where she will live temporarily or permanently. Given that KT is receiving antipsychotic treatment but denies any disability, the Board also considered that there is a need for a person to consent to health care on her behalf.
Evidence at the hearing suggested that there are decisions and transactions required with regard to KT’s current entitlements from Centrelink benefits and the accommodation rate deducted from benefits for residence at the Roy Fagan Centre. Accordingly there are financial decisions required in her estate. KT’s legal representative argued that KT had identified these issues and that this was evidence of her capacity to make reasonable financial judgments. The evidence relating to KT’s capacity to make financial decisions related to the fundamental issue of paying for house repairs and weighing up options for accommodation. That decision looms in KT’s immediate future while decisions are made about accepting rooms in Aged Care facilities. As KT is adamant that she can return home, it is unlikely that she will undertake the necessary transactions that will facilitate her securing nursing home placements.
There were no nominations for alternative guardians or administrators and, accordingly, the Board appointed the Public Guardian as guardian and the Public Trustee as administrator.

After hearing an application by the Roy Fagan Centre in respect of KT of Southern Tasmania (hereinafter called the ‘represented person’) 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 of her estate and her person and circumstances; and
is in need of a guardian and an administrator;
THE BOARD ORDERS

That The Public Trustee be appointed as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect to 31^st May 2012.
That the Public Guardian be appointed as the represented person’s guardian
That the powers and duties of the guardian guardian are limited to:

where the represented person is to live, whether permanently or temporarily; and
decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.

That the guardianship order remains in effect to 31 May 2011.

Anita Smith

PRESIDENT

Request for statement of reasons received 11 June 2009 - Reasons for decision delivered 24 June 2009