MBL (Guardianship)
[2015] TASGAB 2
•5 February 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
MBL - Application for Guardianship by the Older Persons Mental Health Service
MBL (Guardianship) [2015] TASGAB 2
REASONS FOR DECISION
Leon Peck (Chair)
Date of hearing 5 February 2015
In an application dated the 8th October 2014, Mrs Dawn Busuttil, Case Manager, Older Persons Mental Health Unit, North West (Department of Health and Human Services) applied for the appointment of a guardian for MBL.
On the 28th November 2014 UI made application for the review of an Enduring Power of Attorney in the name of MBL. Ms UI sought a revocation and/or appointment of a new attorney or administrator. Because the applications arose from related circumstances, the two applications were heard together on 5 February 2015.
Background:
Mrs MBL is a 77 year old woman who moved to Tasmania from New South Wales in 2004 with her husband of 55 years, SL. They have no children.
MBL has been case managed in the community by the Older Persons Mental Health Service (OPMHS) since July 2014. It was reported that she has frequently declined services.
On the 29th September 2014 MBL was found wandering at the Spirit of Tasmania terminal in East Devonport. It was reported that she was delusional and confused. The police intervened and upon contacting her husband were advised that he could no longer look after her. MBL was then taken to the North West Regional Hospital and subsequently admitted to Spencer Clinic.
Dr Ahmed Taher, Medical Officer, Spencer Clinic, North West Regional Hospital lodged a request for an emergency guardianship order on 2nd October 2014.
On the 2nd October, 2014, pursuant to Section 65(2) of the Guardianship and Administration Act (“the Act”), the Board decided as follows:
“The Board being satisfied that there are reasons for urgency and grounds for making a guardianship order in respect of MBL (hereinafter called the ‘represented person’)
THE BOARD ORDERS
1. That the Public Guardian be appointed as guardian of the represented person.
2. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.
3. That this order remains in effect for 28 days from this date.”
While an inpatient at Spencer Clinic, MBL required one to one nursing as she constantly wandered and was disoriented to time, place and person. Pursuant to the emergency order, the Public Guardian decided that the Roy Fagan Centre would be a more appropriate facility to provide the care required. She was transferred accordingly pending placement to an acute residential facility.
The Board on the 30th October, renewed the emergency guardianship order for a further 28 days.
The application for guardianship was adjourned from 11 December 2014 and an interim guardianship order was made which continued until the date of this hearing.
Is MBL a person with a disability? (Section 20(1) (a) of the Act)
Dr Ahmed Taher, Spencer Clinic, North West Regional Hospital stated in his application for an Emergency Guardianship Order dated 2nd October, 2014. MBL is “ … suffering from severe Alzheimer’s Dementia”
Dr Ahmed Taher in a Health Care Professional Report dated the 8th October 2014 described the nature of the disability as “Alzheimer’s and Vascular Dementia”. He considered that MBL’s condition would worsen and that she would need to be admitted to a secure dementia unit.
An ACAT assessment undertaken on the 9th October 2014 stated:
“MBL has had several episodes of acute confusion and delusional states over the past few months most recently ending with an admission to Spencer Clinic at NW on 29th September 2014 after being brought in by police”.
“MBL has significant cognitive impairment but was still driving immediately prior to hospital admission …”
The Board concluded that MBL is a woman with a disability.
Is MBL incapable of making reasonable judgments about her person and circumstances? (Section 20(1) (b) of the Act)
Dr Ahmed Taher in his application for an emergency guardianship order states:
“MBL lacks any capacity to make decisions regarding her wellbeing, treatment. She is confused, disoriented, agitated …”
In the Health Care Professional Report completed by Dr Ahmed Taher on 8th October 2014 he states:
“MBL has completely lost her capacity to make any decisions for herself due to her worsening dementia”
MBL is “ … a risk to herself in terms of wandering”
In her application for a guardianship order dated 8th October 2014, EC, Case Manager, Older Persons Mental Health Service, NW states:
“(MBL) remains in a confused state”
“(MBL) remains disoriented to time, place and person”
“(MBL) wants to leave the place where staying or lives”
The ACAT assessment undertaken on the 9th October 2014 stated:
“MBL requires prompts and supervision with hygiene and dressing …”
“MBL suffers from stress urinary incontinence”
“MBL needs assistance with all executive tasks and many instrumental ADLs (activities of daily living)”
“MBL is now regularly disoriented to time place and person”.
The Board concluded that MBL is unable by reason of the disability to make reasonable judgements in respect of matters relating to her person or circumstances.
Is MBL in need of a guardian? (Section 20(1) (c) of the Act)
Appropriate and relevant accommodation was of concern to Dr Ahmed Taher. In his application for an Emergency Guardianship Order he states:
“Emergency guardianship is the only tool to hold Lesley in hospital until suitable accommodation is found”
The Guardianship and Administration Board in the decision of 2nd October 2014 to grant a Limited Emergency Guardianship Order identified as the need :
“to ensure accommodation is safe, appropriate and lawful”
Dr Ahmed Taher in the Health Care Professional Report dated 8th October 2014 states:
MBL is “no longer able to go home due to extreme risk of wandering”
“MBL cannot be managed at home any more. Family meeting held with husband who is under stress to look after her safely. Husband has got his own mental health issue”
In her application for a Guardianship Order dated 8th October 2014, EC, Case Manager, Older Persons Mental Health Service, NW states:
“She (MBL) currently lives with her husband who is also well known to Older Persons Mental Health Service and lacks capacity to fully care for her. In the community we found that due to her severe Alzheimer’s Dementia, MBL lacked the capacity to make good decisions regarding daily functioning, wellbeing and safety. This is a significant risk to them both”
MBL has been “managed in the community since July 14th, 2014. Offers of home help and domestic support continuously declined”.
In the ACAT report dated 9th October, 2014, the following statements were of particular interest to the Board:
“SL and MBL have been separated on several occasions over the past 3-4 years when SL was admitted to Roy Fagan Centre in Hobart and several other times when MBL just moved out according to SL. This is a complex marital dynamic constantly impacted by either MBL or SL’s mental health”.
“… following a family meeting (it was) decided that MBL’s niece, UI, who was visiting from Sydney was the person appropriate to sign an application and consent for ACAT process”
The “client’s husband, SL, has his own mental health issues and unable to make decisions on MBL’s behalf”
“Niece, UI needed to empty the fridge of several dozens of out of date eggs and mouldy cheese … Also out of date foodstuffs and vegetables (well passed their use-by date)”
The Office of Public Guardian report dated 24th November 2014 states:
“It was decided that MBL needs secure, permanent residential care”
“Agreed to her transfer to the Roy Fagan Centre for assessment and to have a behavioural management plan developed before her placement to a secure dementia unit. MBL husband would prefer that she went home and he could look after her. The treating team and MBL’s family concur that this would not be in her best interest”
The Hearing:
The hearing was conducted at the Magistrates Courts in Burnie on the 5th February 2015. In attendance were:
MBL PRP (via phone)
SL, husband
EC, Applicant
UI, niece (via phone)
Teresa Earley, cousin (via phone)
Colin Brett, RN, Roy Fagan Centre (via phone)
Kylie Hillier, Office of Public Guardian
Fiona Sullivan, Public Trustee’s Office
The Chair detailed the circumstances leading to the hearing including the decision to adjourn the hearing on 11th December, 2014 to enable SL and his legal counsel to secure and consider documentation, including the Health Care Professional and ACAT Reports, and provide evidence contrary, if appropriate, to that currently before the Board.
Persons at the hearing were advised that no additional documentation had been provided by SL or his counsel other than correspondence dated 8th January 2015 to the President of the Guardianship and Administration Board which included:
· a request for independent ACAT assessment.
· a request for an assessment by an independent panel of doctors.
· a request that toxicology reports be given to MBL and discussed with medical staff.
· criticism of the Board and UI’s involvement with MBL.
· reasons why MBL should be allowed to return to her home.
Kylie Hillier from the Office of the Public Guardian, the appointee following the adjournment of the previous hearing, advised that the overwhelming clinical evidence was that MBL requires secure care in a residential facility. She reported that arrangements had been made for MBL to be placed at an aged care facility in Burnie as soon as a bed was available. Ms Hillyer stated that she had discussed this option with MBL who expressed no objections.
Mr Colin Brett, the Roy Fagan Centre, advised that MBL continues to wander and is confused. He reported that she needed support in the daily living functions and stated that a secure residential facility would be the only safe accommodation for MBL. He considered SL would not be able to provide the 24 hour care required and considered that with a return to her home: “MBL would come to harm”.
UF and UI agreed that MBL requires a secure environment and a return to her home in the care of her husband would not be in MBL’s best interests.
Mr SL was again critical of the hearing process and many of those involved. He stated that there is: “absolutely no reason why MBL can’t live in my home”.
When asked if he had any evidence that he would like to table to support his claim he referred to correspondence dated 24th July, 2014 from Dr Rita Kronsorfer, Consultant Psychiatrist, Older Persons Mental Health Service. The original document was tabled. Contrary to the assertions of SL’s, the correspondence made no reference to the family home being a suitable environment for the care of MBL. Mr SL, in an emotional state, then chose to depart the hearing.
UF advised the hearing that she had detected a deterioration in MBL’s mental state “over the last few years”. She stated that the relationship between MBL and her husband had experienced difficulty during this period with MBL, on occasions, moving to New South Wales to stay with her.
UI advised that she had made application to be appointed as guardian for MBL however had withdrawn that application after having been threatened by SL and told “to keep your nose out of the business”. UF stated that she was “aware of erratic and rude behaviour” and was “quite concerned if having to deal with SL”. Mr Colin Brett also referred to the erratic behaviour displayed by SL and questioned his ability to make reasonable decisions that would be in the best interests of his wife.
The Board was unable to ascertain MBL’s wishes from anything she said at the hearing.
The Board called for submissions/recommendations on the nature of an order should one be made. All remaining in the hearing recommended a guardianship order limited to accommodation and health care. Because of the difficulties currently faced by SL and his relationship with members of the family and health care providers, it was considered that reliance upon SL under the ‘person responsible’ provisions in section 4 and Part 6 of the Act would not meet MBL’s best interests
From the information obtained from aforementioned reports, the submissions and information from those at the hearing and the failure of SL or his counsel to provide any concrete evidence or information to the contrary the Board concluded that MBL is in need of a guardian.
Eligibility of nominated guardians (Section 21(1) and (2) of the Act)
The applicant proposed the ongoing appointment of the Public Guardian as guardian for MBL. SL submitted that he should be appointed as guardian. Numerous references have been made in this statement that question the suitability of SL to undertake the role of guardian for his wife. This is reinforced in the report dated 22nd October 2014 from the Office of the Public Guardian which states:
“The treating team do not believe thatMBL’s husband would make a suitable Guardian as he has been trying to make his own arrangements despite the treating team repeatedly talking to him about what MBL needs. The treating team have concerns about SL’s own mental health”.
Other members of the family who may have been willing to assume the role were now unwilling because of the attitude of SL. The Board considered that appointment of SL as her guardian would not be in MBL’s best interests, but the appointment of the Public Guardian would be.
Application to review an enduring power of attorney:
Background:
A search of the register of Powers of Attorney revealed that MBL had executed five Powers of Attorney since 30th January 2006. MBL had appointed various donors but usually included her husband, SL. However, in 2008, and again in 2011, MBL appointed her younger cousin, UF as attorney.
The most recent Power of Attorney document had been executed on the 24th September 2014 and subsequently registered on the 28th November 2014, appointing her husband and FKH as her attorneys.
In her application UI made reference to MBL’s erratic decisions in relation to everyday expenditure, his lack of willingness to listen and communicate with any financial decisions being autocratic, unreasonable and irrational. The Board accepted this evidence.
At a hearing of the Guardianship and Administration Board on the 4th December 2014, it was determined that the proposed represented person had changed their Enduring Power of Attorney arrangements while mentally unwell. On that date, the Board decided to suspend, as per the Powers of Attorney Act 2000 s33(4), the Enduring Power of Attorney (PA 91555) and make an emergency administration order appointing the Public Trustee as the administrator of the estate of the represented person for a period of 28 days. That order was repeated for a further 28 days on the 24th December 2014.
Application for appointment of an administrator:
Is MBL a person with a disability? (Section 51(1) (a) of the Act)
As disclosed above, Dr Ahmed Taher in his Health Care Professional Report dated 8th October 2014 stated that MBL has from Alzheimer’s and Vascular Dementia. The Board accepts this report as evidence that MBL has a disability.
Is MBL incapable of making reasonable judgments about her person and circumstances? (Section 51(1) (b) of the Act)
In relation to her capacity to manage her finances and matters of estate Dr Taher disclosed:
“a lack of planning and reasoning skills”
In the ACAT report of the 9th October 2014 the assessment in relation to capacity to handle money was:
“... completely unable to handle money”
In email correspondence from the Clinical Nurse Consultant at the Roy Fagan Centre dated 14th January 2015 to the Guardian states:
“On assessment MBL shows an advanced dementia. She is confused as to where she is, she wonders almost continuously intruding into other patients rooms … MBL has expressive aphasia, meaning she is unable to communicate to any meaningful extent.”
The Board accepted these reports as evidence that MBL lacks capacity to make reasonable judgements about her estate.
Is Mrs. Kiss in need of an administrator of her estate? (section 51(1)(c) of the Act)
MBL has a sizable estate as the joint title owner of:
the family home, valued at $580,000
a mobile home (estimated value $180,000)
two motor vehicles (estimated value $60,000)
numerous bank accounts
household contents and personal effects
MBL is the recipient of a Centrelink Age Pension. With pending residential care fees and associated contractual arrangements, support will be required. The Board was satisfied that she is in need of an administrator.
Eligibility of nominated administrators (Section 54 of the Act)
For similar reasons as operated in the appointment of a guardian, the Board considered that an independent appointment would promote the best interests of MBL. Accordingly, the Public Trustee was appointed.
Conclusion – Guardianship:
The Board was satisfied that the represented person (MBL)
is a person with a disability
is unable by reason of the disability to make reasonable judgements in respect of her person and circumstances; and
is in need of a limited guardian
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:
(i)where the represented person is to live whether permanently or temporarily and
(ii)consent to any health care that is in the best interest of the represented person and to refuse or withdraw consent to any such treatment
That the order remains in effect to 4th February 2018.
Conclusion – Administration:
After hearing an application in respect of MBL (hereinafter called the ‘represented person’) in relation to an Enduring Power of Attorney (xxxxxxx) dated 27 October 2011, (hereinafter ‘the power’) made by MBL of Ulverstone (hereinafter ‘the donor’) appointing UF as her attorney the Board was satisfied that the donor did not comply with s 33(2)(d) &(e)(i) of the Act in that the donor did not have the mental capacity to make it.
THE BOARD DECLARES that pursuant to s33(2)(e)(i) of the Act the power is invalid.
AND further the Board was satisfied that the donor
•is a person with a disability, and
•is unable by reason of the disability to make reasonable judgements in respect of her estate, and
•is in need of an administrator;
THE BOARD ORDERS
That the Public Trustee be appointed as administrator of the estate of the donor.
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 until 4 February 2018.
LEON PECK
Chair
Statement of reasons delivered 16 March 2015
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