LX (Guardianship and Administration)
[2015] TASGAB 18
•30 October 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Application for Guardianship and Administration
LX (Guardianship and Administration) [2015] TASGAB 18
REASONS FOR DECISION
Wendy Hudson (Chair)
Date of hearing: 30 October 2015
Guardianship – capacity to make reasonable judgements about accommodation and support – need for a guardian to determine accommodation and to convey the represented person to the place of residence
Administration – capacity to make reasonable judgements about finances
Guardianship and Administration Act 1995 – s. 6, 20, 51
On 17 September 2015 the Board received an emergency application for the appointment of a guardian and an administrator for LX, following her admission to the Launceston General Hospital. The appointment of the Public Guardian was made for a period of 28 days, on 17 September 2015, and then extended for a further 28 days on 15 October 2015. The administration application was dismissed however a further emergency application for the appointment of an administrator was received by the Board on 5 October 2015. The Public Trustee was appointed as LX’s administrator on 5 October 2015.
A full application for the appointment of a guardian and an administrator for LX was heard by the Board on 30 October 2015. Ms Sarah Booth, Royal Hobart Hospital, representatives from The Public Trustee and the Public Guardian, and Mr Nick Mackey (investigator for the Board) attended the hearing in person. LX and Mr Colin Brett, Roy Fagan Centre, attended by phone.
The Board had the following documents available to it prior to the hearing:
· The emergency and full applications, as noted above
· Report the Public Guardian in relation to the emergency orders
· A health care professional report from Dr Kishor Sivasankaran, dated 28 October 2015 and from Dr Rosemary Schneider dated 15 September 2015.
When assessing an application for the appointment of a guardian and an administrator, the Board needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act); that LX:
a)is a person with a disability, and
b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, or in respect of matters relating to all or any part of his estate
c)is in need of a guardian and an administrator.
The Board must also balance the principles in section 6 of the Act, which include the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests of and the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Is LX a person with a disability?
The health care professional report from Dr Kishor Sivasankaran states that LX has chronic paranoid psychosis and dementia. Dr Rosemary Schneider’s health care professional report in support of the original emergency application states that LX has dementia.
LX denied having a disability, stating that she only has a problem with her feet. However, the Board took into account Dr Sivasankaran’s opinion, that LX has no insight into her condition. Consequently, the Board was satisfied that the LX is a person with a disability within the meaning of the Act.
Is LX, because of that disability, unable to make reasonable judgements about any matters relating to her person or circumstances or in respect of matters relating to all or any part of her estate?
In the same report, Dr Sivasankaran advised that LX’s disability impacts on her orientation to person, place or time; impulse control; capacity for new learning; susceptibility to influence and her planning and reasoning skills. He stated that ‘LX is unable to process or understand her circumstances...’
LX stated ‘I am quite capable of running my own affairs and have done so for a number of years’. However, the more recent history highlights that LX’s ability to manage her own affairs had substantially diminished at the time when she was transferred from the Launceston General Hospital to the Roy Fagan Centre with ongoing paranoid psychosis, episodes of confusion, uncontrolled diabetes and an inability to manage her activities of daily living or life style. The Board was satisfied that as a result of her disability, LX is unable to make reasonable judgements about any matters relating to her person or circumstances or in respect of matters relating to all or any part of her estate.
Does LX need a guardian or an administrator?
LX currently resides at the secure facilities at the Roy Fagan Centre. As discussed in the Board’s publication, Detention of people with dementia in secure facilities in State care in Tasmania 31 July 2012, it is important that such circumstances be monitored and supervised. Accordingly, the Roy Fagan Centre has adopted a policy of regularising the practice of housing residents in secure premises by applying for the appointment of a guardian to ensure that the resident’s rights are protected and monitored. LX is therefore ‘in need of a guardian’; to ensure that her detention in a secure facility promotes her personal safety and is applied in the least restrictive manner as is possible.
The Board was satisfied that LX is in need of a guardian. Firstly, to give consent to LX’s accommodation at the Roy Fagan Centre and then to make decisions regarding ongoing accommodation on her behalf. Secondly, to consent to any reasonable measures required to convey LX to a place of residence as determined by the guardian.
In relation to the need for an administrator, the Board noted that Dr Sivasankaran was of the opinion that LX is currently unable to manage her day to day finances or to make major financial decisions. The Public Trustee advised that LX had purchased a property in Launceston and then placed it on the market a few months later; she had made allegations that furniture had been stolen however it was identified that the furniture was in the UK awaiting instructions, and payment, for it to be transported to Tasmania; and she had stopped receiving the pension, which The Public Trustee had taken steps to have reinstated.
Taking all of the above into account, the Board was satisfied that LX is in need of an administrator.
LX’s wishes, her best interests and the least restrictive alternative:
The Board does not consider that the needs of LX, or her best interests, could be met by other means less restrictive of her freedom of decision and action. The Board was satisfied that the guardianship order can be limited to certain areas of needs and that the limited order is the least restrictive alternative in the circumstances. The Board noted that LX was of the view that she was capable of managing her financial affairs however, the recent history highlights that currently LX is in need of an administrator to manage her estate.
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 his person and circumstances;
is in need of a limited guardian; and
is in need of an administrator
THE BOARD ORDERS
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 where the represented person is to live whether permanently or temporarily.
That the order remains in effect to 16 December 2018.
That The Public Trustee be appointed as administrator of the estate of the represented person.
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 order remains in effect to 16 December 2018.
Wendy Hudson
CHAIRMAN
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