MD (Guardianship)

[2015] TASGAB 23

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

MD on the application of Nicky Targett (Community Options)

MD (Guardianship) [2015] TASGAB 23

REASONS FOR DECISION

Lindi Wall (Chair)
Juanita Westbury (Member)
Grant Kingston (Member)

Date of hearing: 10 December 2015

Guardianship – ‘in need of a guardian’ – limits to role of the ‘person responsible’

Guardianship and Administration Act 1995 (Tas) s 20

1. This is an application for guardianship for MD who resides at home with her husband. The application was made by her case manager, Ms Nicky Targett, of Community Options who is seeking the appointment of the Public Guardian.

2.The Board had the following documents available for the hearing:

·Application dated 13 October 2015

·Health Care Professional Report  by Dr David Dunbabin dated 9 October 2015

·Report by Nick Mackey, GAB Investigation Officer, dated 20 November

·Aged Care Assessment Team Report dated 20 November 2014

·Property Information Report dated 20 October 2015

·Letter from LD dated 24 November 2015

3. The hearing on 10 December 2015 was attended by LD and MD, the Applicant Nicky Targett, Anne Perks from the Office of the Public Guardian, Carolyn Youle from Advocacy Tasmania representing LD, Nick Mackey GAB Investigation Officer and Sarah Campbell from the Legal Aid Commission of Tasmania representing MD.

Section 20 (1) (a) - Is MD a person with a disability?

4. Dr Dunbabin’s report dated 9 October 2105 confirms that MD has advanced, deteriorating, Alzheimer’s dementia. There was no evidence to contradict that diagnosis and the Board is satisfied that she is a person with a disability.

Section 20(1)(b) - Is MD by reason of that disability unable to make reasonable judgments about her person and circumstances?

5. Dr Dunbabin confirmed in his report that MD has marked impairments in all cognitive domains and cannot make adequate personal care, health and welfare decisions. The was no evidence to the contrary though LD asserted that his wife remained capable of understanding any major issues which may arise in relation to her future care, safety and wellbeing. MD was unable to complete answers to questions at the hearing and presented as a person with severe cognitive deficits. Ms Campbell stated that MD understands that she has dementia and is forgetful.   The Board is satisfied that by reason on her disability she is unable to make reasonable decisions about her person and circumstances.

Section 20(1)(c) - Is MD in need of a guardian?

6. The reason for bringing the application was the observations by the applicant and others involved with LD and MD’s care that LD, though very well meaning and loving towards his wife, has his own health issues, including Parkinson’s disease and a severe anxiety disorder with obsessional and compulsive elements, that make it difficult for him to make reasonable decisions about his wife’s immediate care needs as well as her long term welfare. Ms Targett believed that more formalised support arrangements were necessary beyond what LD was capable of providing: this would include at least assistance with showering and washing, the provision of appropriate aids for the activities of daily living, and respite care when needed.

7.TM, the day care coordinator at the Day Centre advised that when MD attends the Centre she has very poor hygiene to the extent that people will not sit next to her because of her odour. She has been incontinent there on one occasion. She has been offered help to shower whilst at the Centre many times but her husband has always refused. He objects to even a basic level of support for her, even though he is quite frail himself to be helping his wife with showering, washing and remaining safe in the home.

8. The applicant expressed concern that MD is at risk of urinary infections and consequential delirium because of her incontinence, poor hygiene and dirty clothes, which she often slept in.  She stated that the poor hygiene created a lack of dignity and would lead to social isolation. She expressed the concern that LD had no insight into what care was required, saying that if his wife received too much help she would lose the capacity to learn from her mistakes so that she could take care of herself better. LD reiterated this view to the Investigator. Whilst MD welcomed the assistance with showering at the Day Centre on the occasion she was incontinent, LD has otherwise refused the offers to provide showering at the Centre.

9. The applicant supported the wish of LD and MD that they continue to live together at home. However, she also felt that MD was not safe to be at home alone overnight, a situation which had occurred when LD was kept in hospital. She said that a proper Occupational Therapy assessment to provide appropriate aids was necessary to prevent further falls. The daily care arrangements which would enable her to stay safely at home for as long as possible were being unreasonably denied to her by her husband. She said that LD acknowledged that he finds it difficult to accept change and that his decisions may lead to an outcome he is not happy with.

10. KF, LD’s rehabilitation nurse, who saw both of the couple during appointments, stated to the Investigator that she had referred MD to their doctor for assessment because of their unkempt and dirty appearance. She, too, noted LD’s failure to appreciate his wife’s lack of capacity and refusal to accept that she was not capable of new learning about her health and hygiene. Whilst he cared deeply for his wife, he himself was frail and has an anxiety that paralyses him so that he cannot provide the necessary help.

11. NN has seen the couple twice in her role as occupational therapist. Whilst she has not visited the home, she observed their lack of personal hygiene and dirty clothes. She was also worried that MD has suffered an increasing number of falls.

12. The Aged Care Assessment Team Report outlined many of the concerns expressed at this hearing more than a year ago. MD’s dementia has deteriorated from ‘moderate/severe’ to ‘advanced’ in that time. It will continue to deteriorate. Even in 2014 she was already dependent for all activities of daily living. She was no longer able to manage personal care or hygiene, she was unable to cook or self-medicate. She was then suffering increasing urinary incontinence and was not wearing pads. It was noted that her clothes were soiled, they were not being changed regularly and that she tended to sleep in the same clothing. She needed assistance on a regular basis with personal hygiene; changing her clothes, washing hair and bathing appropriately. She was approved for high care or respite care.

13. MD herself conveyed through her solicitor, who had spoken to her privately, that she had been married for forty years, that her husband is loyal, loving and caring and she loves him very much. However she said that she needed more help at home than her husband could provide, including with showering and washing. She said that she knew that her husband would find this difficult as they keep to themselves and he is nervous about people coming to the house. She herself would be accepting of help.

14. LD’s response to these concerns indicated a lack of insight into the issues raised and clear resentment that a guardianship application had been made. He disputed the facts upon which the application was based as well as the need for a guardian. In his letter to the Board he described the application as ‘an unwarranted attack on our privacy, independence and autonomy in being able to control our lives.’ In particular:

·     He denied any need for respite care but did not dispute that when he was in hospital overnight, he sent his wife home by taxi, requesting the driver to turn the power off to ensure her safety.

·     He was scathing about the allegations about poor hygiene. On the other hand, he acknowledged that he had not paid sufficient attention to it in the past but asserted that now the issue had been brought to his attention he was committed to ensuring that this was attended to. He had clearly not appreciated the hygiene issue, even though it had been identified by the ACAT team over a year before and had not been dealt with.

·     He minimised the risk posed by the recent increase in falls. He said he wished that he regretted mentioning the latest fall caused when she fell over her slippers by the bed when getting up in the night.

·Whilst he acknowledged that her balance was deteriorating, he said that a commode by the bed to reduce the risk of falls was an unnecessary encumbrance as she managed ‘the old fashioned way’ by using a container. He had reduced the risk of falls in the night by removing items by the bedside.

·He stated that his wife did not yet need a Webster pack to assist with her numerous medications despite the recommendation in the ACAT report.

·He still had the belief that MD’s balance and capacity could be improved through training and physiotherapy rather than through increased assistance.

·He stated that support services were not necessary and would receive no cooperation from him and that he would use all legal means to oppose it. He wanted the status quo to remain.

·He did not answer the question as to whether he would agree to more help if his wife requested it except to say that he was ‘solely concerned with strangers coming to the house’.

15. It was clear to the Board that LD, though devoted to his wife, was unable to make reasonable decisions for her about any of the issues raised in the application for a number of reasons: his refusal to accept that her disability is totally incapacitating in respect of self-care - and deteriorating; his failure to identify and adequately respond to the risk factors applicable to his wife; his own frailty in circumstances where the kind of assistance required for daily care is increasingly physical in nature and his psychological traits which render him unable to contemplate any outside intervention, even if his wife wants and needs this help. It was evident that he is not capable of making reasonable decisions about her person and circumstances in her best interests either as the person responsible or, consequently, as her guardian.

Finding:

16. The Board was satisfied that MD is a person who by reason of a disability is incapable of making reasonable decisions about her person and circumstances. She is in need of a guardian to assess the need for and to put in place such care and support services, including respite care, as are required to promote her health and wellbeing, so that she may safely reside at home with her husband for as long as possible in accordance with her wishes. The Board considered the appointment of the Public Guardian for that limited purpose was appropriate.

THE BOARD ORDERS

1.That the Public Guardian be appointed as the represented person’s guardian

2.That the powers and duties of the guardian be limited to assessing the need for and arranging such care and support services, including respite care, as is required to promote her health, safety and hygiene.

3. That this order remains in effect until 26 June 2016.

Lindi Wall   Juanita Westbury   Grant Kingston

CHAIRMEMBER  MEMBER

14 December 2015