LBI (Guardianship and Administration)
[2011] TASGAB 19
•1 July 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
LBI – Application for appointment of a guardian and administrator
Neutral citation: LBI (Guardianship and Administration) [2011] TASGAB 19
REASONS FOR DECISION
Leon Peck (Chair)
Mary Davies (Member)
Abigail Bindoff (Member)
Date of hearing: 1 July 2011
Guardianship and Administration – disability and incapacity – need for a guardian and administrator – role of the Public Guardian
Guardianship and Administration Act 1995 sections 15, 20, 51
On 20 May 2011, the Board received an application from XXXX for the appointment of a guardian and an administrator for LBI (LBI). LBI is a 25 year old woman who lives in Tasmania.
The applications were heard on 1 July 2011. The following persons attended the hearing:
LBI
GG (mother)
MT (XXXX)
UE (XXXX)
Graeme Stagg (Public Trustee)
Michael Condon (Public Guardian)The following documents were available to the Board at the hearing:
·Health Care Professional Report completed by Dr. Emil Djakic dated 29 April 2011 (HCPR)
·Application for guardianship dated 1 March 2011
·Application for administration dated 1 March 2011
·GAB Investigation report dated 26 March 2007
·Report by Jenny Downward, Psychologist dated approx May 1999
·Report by Elysia Cunningham, Intern Psychologist dated 1 February 2010
·GAB Investigation report dated 17 June 2011
·Various invoices from XXXX dated between April 2010 and May 2011
Pursuant to section 20(1) of the Guardianship and Administration Act 1995 (the Act), in hearing an application for the appointment of a guardian for LBI, the Board must be satisfied that LBI:
(a) is a person with a disability,
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances, and
(c) is in need of a guardian.
Pursuant to section 51(1) of the Act, in hearing an application for the appointment of an administrator for LBI, the Board must be satisfied that LBI:
(a) is a person with a disability,
(b) is unable by reason of the disability to make reasonable judgements in espect of matters relating to all or any part her estate, and
(c) is in need of an administrator of her estate.
Disability and incapacity:
The HCPR confirmed that LBI has an intellectual disability and an anger and mood disorder. The effect of this disability is that she experiences deficits in relation to her orientation to person, place or time, her expressive and receptive communication, her capacity for new learning, susceptibility to influence and planning and reasoning skills. Dr Djakic’s report confirmed that she is incapable of making reasonable decisions in respect of her person and circumstances and her estate.
At the hearing, witnesses confirmed that LBI is a person with a disability and is not making reasonable decisions about her health and lifestyle needs or her estate. The examples of her incapacity discussed in the hearing were not disputed by LBI or LBI mother. Concerns about LBI ability to attend to her personal hygiene, medication needs and rent and other bills were discussed and LBI mother could provide no explanation of why the rent had not been paid nor what happens to LBI medication or food.
Taking into account all of the written and verbal evidence, the Board was satisfied that LBI is a person with a disability and by reason of that disability she is incapable of making reasonable judgments about her person and circumstances and her estate.
The need for a guardian:
The Board heard evidence that LBI medication is not always available or consistently administered. It was alleged that the medication often ‘disappears’ even if the scripts are filled. Given the nature of the medication the Board agreed with the applicant’s considered opinion that regular dosage at the prescribed level was essential for LBI wellbeing. The use of ‘depo’ injections was suggested as a more suitable medication regime. The Board considered that assessment and decisions of this nature justified the appointment of a guardian.
Evidence also suggested that the history of LBI medical care was lacking or at best disjointed. The Board was therefore of the opinion that an independent clinical assessment, preferably by a psychiatrist, should be undertaken to determine an appropriate treatment regime to optimize the quality of care provided. The Board considered that this would not only address medication issues but also the nature and extent of support services required by LBI.
The Board also heard disturbing evidence in relation to LBI accommodation arrangements. LBI lives with her sister who also suffers from an intellectual disability. Hygiene is substandard, with the residence being shared with numerous dogs whose untrained toilet habits further exacerbate the situation. Visitors also use the residence for their own pleasures with alcohol and substance abuse prevalent. LBI, because of her disability is gullible and easily influenced resulting in her being taken advantage of both physically and materially. In addition, evidence suggested that LBI diet was unsatisfactory with the cupboards often being bare. Service providers also advised the Board of the frustrations involved in trying to provide adequate services to meet LBI needs.
The Board was therefore of the opinion that more suitable accommodation needed to be assessed; a role of a guardian.
The Board considered the requirements of section 20(5) of the Act and determined that the need for a guardian was limited in scope to decisions about LBI’s accommodation and her health care needs and an order could also be so limited. LBI mother had been assuming a care role but the Board was of the opinion that this was totally inadequate in meeting the health and wellbeing requirements of LBI. In the absence of a less restrictive option and what the Board considered to be the best interests of LBI the Board deemed it appropriate to appoint the Public Guardian to administer the limited guardianship order consistent with the provisions of Part 3 of the Guardianship and Administration Act 1995 namely:
“15 (1) The Public Guardian has the following functions:
(a) to foster the provision of services and facilities for persons with a disability;
(b) to support the establishment of organizations which support any such persons;
(c) to encourage the development of programmes that support any such persons (including advocacy programmes, educational programmes and programmes to encourage persons to act as guardians and administrators);
(d) to promote, speak for and protect the rights and interests of any such persons;
(e) to deal, on behalf of any such persons, with persons or bodies providing services;
(f) to represent any such persons before the Board;
(g) to investigate, report and make recommendations to the Minister on any matter relating to the operation of this Act;
(h) to act as a guardian or administrator when so appointed by the Board;”
Need for an administrator
The Board heard evidence that LBI mother currently manages LBI money and yet the rent at the date of the hearing was in arrears in the amount of $2,780.00 and no rental payments have been made on LBI behalf since April 2011. Further, the Board heard evidence that LBI does not have adequate food or clothing and that some support workers are purchasing food for LBI themselves.
The Board was satisfied for the above reasons that an appointment of an administrator was in LBI best interests and that appointing the Public Trustee was the most appropriate option.
The guardian and administrator
The applicant nominated the appointment of the statutory agencies, the Public Guardian and the Public Trustee, as guardian and administrator respectively. There was no other nomination before the Board. As both statutory agencies are deemed appropriate as appointees of last resort by the legislation, the Board was not required to assess their suitability for appointment.
Conclusion
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 an administrator and a guardian;
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 until 30 June 2014.
That the Public Guardian be appointed as the represented person’s guardian.
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
(ii)Consent to any health care that is in the best interests of the person and to refuse or withdraw consent to any such health care, including but not limited to:
a. Investigating the represented person’s health care needs
b. Arranging for a psychiatric assessment regarding the represented person’s need for medication and the means of administration of that medication
That this guardianship order remain in effect until 30 June 2014 or until the guardian reports to the Board as follows:.
(i)that the represented person has moved to new appropriate accommodation,
(ii)that the order should lapse.
LEON PECK MARY DAVIES ABIGAIL BINDOFF
CHAIR MEMBER MEMBER
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