KXT (Guardianship and Administration)

CITATION:	KXT (Guardianship and Administration) [2019] TASGAB 17
HEARING DATE(S):	12 July 2019
DATE OF ORDERS:	12 July 2019
DATE OF STATEMENT OF REASONS:	5 August 2019
BOARD:	Ms L. Wall Mr C. Lee Ms M. A. Ryan
APPLICATION	Guardianship and Administration
CATCHWORDS:	Guardianship – Administration – disability – incapacity -need for appointment of Administrator and limited Guardian – uncontradicted medical evidence disputed by proposed represented person
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss6, 20, 51
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 12 July 2019, the Guardianship and Administration Board (‘the Board’) heard an Application for Guardianship and Administration for KXT. At the date of hearing she was residing at the Roy Fagan Centre (‘RFC’) for assessment and treatment pursuant to a Mental Health Treatment Order.

Board’s Decision

The Board found as a result of the hearing that KXT is a person with a disability; that she is unable, by reason of that disability, to make reasonable judgments in respect of her estate or of her person and circumstances, and was thus in need of an Administrator and a limited Guardian. Full terms of the Orders made are set out at the conclusion of this Statement of Reasons.

Hearing

In attendance at the hearing were:
a.    KXT;
b.    Mr David Cocker (her solicitor);
c.    the Applicant, Mr David Magor-Hampel (social worker, Tasmanian Health Service);
d.    LXD (friend of KXT);
e.    Ms Rosemary Jurs (the Public Trustee, (‘PT’) emergency Administrator);
f.     Mr Samuel Shinnick (Office of the Public Guardian);
g.    Dr Su-ling Tang (Registrar, RFC);
h.    Ms Kira Geard (RFC); and
i.   Mr Pheonix Chang (Mandarin interpreter).
Dr Anita Rao, head of the treating team at the Department of Psychiatric Medicine (‘DPM’), was contacted by phone during the hearing.
The Board had before it the following documents:
a.Emergency Administration Order dated 24 May 2019;
b.Application for Guardianship and Administration dated 6 June 2019;
c.Health Care Professional Report (‘HCPR’) by Dr Christopher Yuen dated 22 May 2019;
d.Mental Health Treatment Order dated 13 May 2019;
e.Three submissions from LXD (one dated 23 April 2019, two undated); and
f.A report from the emergency Administrator, Ms Rosemary Jurs dated 18 June 2019.

Legislation

When the Board assesses an application for the appointment of a Guardian and/or an Administrator it needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995(the Act), that the proposed represented person:
i.is in need of a Guardian and/or an Administrator.
The Board must also balance the principles in section 6 of the Act, which include:
a.adopting the least restriction of the proposed represented person’s freedom of decision and action as is possible in the circumstances; and
b.promoting the best interests of the proposed represented person; and
c.that, if possible, the wishes of the proposed represented person are carried into effect.

Evidence

The HCPR by Dr Yuen provided a diagnosis of late onset schizophrenia which had been evident for at least six months. The prognosis was for deterioration of the condition because at that time KXT was refusing oral psychotropic medications. Dr Yuen was of the opinion that, due to her mental condition, KXT was unable to weigh information to make reasonable decisions about her medical treatments, accommodation options or finances. The illness affected her planning and reasoning skills and caused a susceptibility to influence.
Dr Yuen gave a history that KXT was exhibiting persecutory delusions about her property being stolen. She believed, incorrectly, that she still owned a property which she sold to her friend LXD. She believed that she had not received payment for the sale of the house. LXD allowed her to live and store her belongings at the home temporarily but she had become preoccupied with her belief that LXD had stolen her papers and income as well as shares belonging to her late husband, who had always managed their finances. LXD believed her inability to appreciate her financial situation was a result of her mental illness and a lack of understanding of financial matters.
Dr Yuen said that KXT failed to appreciate that she was currently homeless and that she could no longer return to live at LXD’s property. She was unable to demonstrate any ability to plan for her discharge destination upon leaving the DPM.
KXT was described by Dr Yuen as having impaired insight about her mental illness, believing that she was well and not in need of medications. She minimised her need for supports and was suspicious of people providing support.
Dr Rao was contacted by phone at the suggestion of Dr Tang. Dr Rao gave the background information from DPM that KXT had presented only two months previously with disorganised behaviour and quite extensive persecutory delusions which lead to the working diagnosis of late onset schizophrenia. She demonstrated grandiose delusions about various matters including substantial share ownership, an intention to run her deceased husband’s business, a belief that her phone was being tapped by the government, that people were stealing from her and that she still owned her home. These delusions, the facts of which could not be substantiated, had not changed with treatment under the Mental Health Order but should improve now that treatment, albeit currently on a very low commencing dosage, had begun. Whilst KXT’s mixing of language was becoming less of an issue, her thinking patterns were still disordered and the marked preoccupation with persecutory beliefs persisted. When asked about her financial records she told Dr Rao ‘the bank knows, ask the bank.’
KXT was unable to complete neuropsychological testing because of her thought disorder, and she had refused a brain MRI. A prognosis was thus difficult. However Dr Rao stated that there was collateral history from her step-son and friends of a cognitive deterioration over the previous five years which suggested a dementia.
Dr Tang gave oral evidence about her assessment of KXT since she had transferred to RFC the week before. The MOCCA (Mandarin converted version) cognitive assessment result of 12/30 demonstrated considerable impairment. Assessment of her by Dr Tang the day prior to the hearing showed considerable thought disorder and a continued preoccupation with persecutory ideas about her finances. The five year history of cognitive impairment, together with assessment and test results suggested to Dr Tang that the psychosis may indicate the progression of a dementing process. Whilst KXT had shown some response to treatment during the week she had been at RFC, the assessment showed continued impairment which appeared psychotic in origin. Dr Tang confirmed that, as KXT had very little English, the assessment at the RFC was performed with the benefit of an interpreter and was cross culturally robust. As a result of the assessment, Dr Tang formed the opinion that KXT was, as a result of her psychosis, unable to make reasonable decisions about her treatment or where she would live after discharge or about her estate. She was unable to give clear answers about the extent of her assets, becoming instead, focussed on LXD accessing her money, guided by a ‘gang of unknown people’. When asked by Dr Tang about how she would manage her money she told her that she would get social workers to go to the bank. She mentioned that she could access a figure of between a half and two million. She said she would get friends to advise her. Dr Tang stated, however, that collateral information showed that KXT’s behaviour and suspiciousness had alienated all her close friends leaving her isolated. An example of this behaviour and disordered thinking was her belief that LXD had her hospitalised because this would affect her vote in a forthcoming election.
At the hearing KXT, speaking through the interpreter, strongly denied that she was suffering from a mental illness. She denied any impairment in decision making. She said she could manage the purchase of a house and her finances herself.
KXT appeared to be intermittently engaged with the hearing process. She was focussed on the fact that she was held in hospital against her will and that the medication had affected her thinking. She repeated her beliefs about being defrauded of her assets. She said that these allegations were true, not delusions. She expressed a fear that LXD had taken her shares worth $100,000 and that her computer showed that he has accessed her records. She said that LXD and others have attempted to defraud her. She was unable to explain her financial circumstances, saying that her records were at John Cochrane’s house and an investigation was required. When asked who would help her with this, and without any apparent awareness of inconsistency, she said that she would ‘welcome John’s help’ to explain her finances.
Although KXT was represented by legal counsel, and the question of disability and consequential incapacity were contested by her, no medical evidence was presented which would challenge the opinions of Dr Yuen, Dr Rao and Dr Tang.
The Board was satisfied on the basis of the evidence of Doctors Yuen, Rao and Tang that KXT has a disability, namely late onset schizophrenia characterised by delusional and paranoid thinking. There was significant medical evidence that this mental condition impairs her thinking to the extent that she is unable to make reasonable decisions about her estate, or her personal circumstances.
The emergency Administrator had been appointed on Application by Mr Magor-Hampel who was concerned that KXT’s late onset schizophrenia left her vulnerable to exploitation, and because her living situation was no longer tenable because she suspected her host of financial exploitation and other misdeeds. The PT provided a report dated 18 June 2019. This stated that that KXT was entitled to both an Australian and a Dutch age pension which had not until then been applied for. At time of writing the report, the PT had been unable to ascertain the extent of KXT’s purportedly large bank balance, which was now protected - or other assets - and had not yet been able to prove or disprove KXT’s allegations of fraud. The PT was continuing investigations to protect KXT’s assets and was taking steps to secure her pension entitlements. In light of the medical evidence, and the fact that the initial concerns in the Application remain, the PT believed that an Administration Order was necessary to secure KXT’s financial interests and her future accommodation.
Dr Yuen was of the opinion that without an Administrator and a Guardian, KXT would be at risk of homelessness and severe financial mismanagement.
LXD provided detailed written submissions strongly denying any wrongdoing on his part against KXT and outlining the help he had provided to her since her husband died after she sold her home to him in 2017. He described her erratic behaviour veering from a model house guest to accusing him of theft. She then began to accuse him of not paying for the house she sold him as she could not find the money. He said that her solicitors advised that 70% of the proceeds of sale had gone to discharge a mortgage, about which LXD believed KXT had no knowledge.
LXD had allowed KXT to stay with him temporarily to assist her, but she refused to move out. He helped her with her finances, as she became convinced that her step-son had stolen her shares and stolen from her bank account. He was able to satisfy himself, but not her, that this was not the case. LXD said that he continued to assist her with accommodation until OPMHS became involved and removed her from his home, because he believed her behaviours stemmed from mental illness and were not her fault. He believed he was the only friend she still had as her ‘accusations seem to have been at the root of all the lost friendships she suffered’. LXD urged the Board to appoint the PT as Administrator as he was convinced from personal observation that KXT could not manage her own affairs. A concern of particular urgency was that she had signed a contract for the purchase of land, was unable to obtain a loan from her bank and had likely not been able to recover her deposit.
LXD clarified that whilst she was welcome to visit, KXT would not be welcome to live at his home upon discharge from RFC. He had tried unsuccessfully to assist her in organising alternative accommodation, including the suggestion she purchase a small house, which failed, and a proposal she move to Abbeyfield House, which she rejected. If LXD’s evidence was correct about the extent of her assets and her demonstrated inability to arrange alternative accommodation for herself, her evidence that she would be able to buy a house or arrange her own accommodation was unrealistic and she would indeed be homeless upon discharge.
The Board was satisfied that there was a need for an independent Administrator to investigate, secure and manage KXT’s estate, and further that there was a need to appoint a limited Guardian to make decisions about where she was to live after discharge from RFC and any support services required to facilitate this.

Decision

The Board ordered in respect of KXT as the Represented Person that:
(1) The Public Guardian (Tas) is appointed as the Represented Person’s Guardian.
(2) That the powers and duties of the Guardian are limited to decisions concerning:
(i) where the Represented Person is to live either permanently or temporarily; and
(ii) providing consent to the provision of support services to the Represented Person.
(3) That the Public Trustee (Tas) is appointed as Administrator of the estate of the Represented Person.
(4) That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
(5) That both Orders remain in effect until the 11th day of January 2020.

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[2019] TASGAB 17

12 July 2019