MDS (Guardianship and Administration)

[2017] TASGAB 13

GUARDIANSHIP AND ADMINISRATION BOARD
HOBART

MDS (Guardianship and Administration) [2017] TASGAB 13

REASONS FOR DECISION

Rowena Holder (Chair)
Grant Kingston (Member)
Louise Mollross (Member)

Date of hearing: 10 August 2017

Guardianship and Administration – eligibility of potential administrator – suitability of family members rather than independent administrator – lack of financial management skills and understanding of fiduciary duty

Guardianship and Administration Act 1995 s. 6, 20, 51, 54

1. On 10^th August 2017 the Guardianship and Administration Board (the Board) heard an application for administration and guardianship for MDS (‘the proposed represented person’).  The Application was filed by Ms Louella Tria, Social worker at the Royal Hobart Hospital.

2. The following persons attended the hearing:

   ·     Ms Louella Tria, Applicant

   ·     UU, daughter

   ·     BS, son

   ·     Ms Nicky Targett from the Office of the Public Guardian (OPG)

3. The Board had the following documents before it:

   ·     Application for Guardianship & Administration dated 30^th June 2017

   ·     Health Care Professional Report dated 28^th June 2017

   ·     Social work Report from David Gould dated 19^th June 2017

   ·     Mystate Bank statement

   ·     LIST property search report

   ·     Reports from the OPG dated 12^th July 2017 and 04 August 2017.

4. As a result of the hearing the Board was satisfied that the proposed represented person is a person with a disability and is unable because of his disability to make reasonable judgements in respect of his financial estate and his person and circumstances and is in need of an administrator and guardian.  The full details of the Order appear at the end of this Statement of Reasons.

5. The Applicant has requested a Statement of Reasons in relation to the Board’s decision.  The Applicant has indicated her interest is primarily in respect of the administration order and the appointment of the Public Trustee as administrator.  This is the Reasons.

Requirements of the Guardianship & Administration Act 1995

1. When the Board assesses an application for the appointment of a guardian and 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:

   (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/or an administrator.

2. 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 the proposed represented person a person with a disability?

1. In respect of the proposed represented person Dr Alison Cleary, geriatrician, provided a Health Care Professional Report to the Board dated the 28^th June 2017.  Dr Cleary reported that the represented person has a diagnosis of alcohol and vascular dementia.

2. Dr Cleary’s evidence was unchallenged at the hearing and no other medical evidence was provided to the Board.  The Board is satisfied that the proposed represented person is a person with a disability within the meaning of the Act.

Is the proposed represented person incapable by reason of his disability of making reasonable judgements in respect of all or any matters relating to his         person or circumstances and/or matters relating to all or any part of his estate?

10.  In the same report noted above, Dr Cleary indicated that the proposed represented person has severe impairments in all areas of cognition and struggles to understand any new information and how it may apply to his current circumstances. Dr Cleary reports that he is an alcoholic with premorbid challenging and aggressive personality.  ‘His dementia is now severe with very limited ability to orient to his current circumstances and understand the need for medical care.” Dr Cleary reports that the proposed represented person is incapable of making financial decisions or decision concerning his accommodation or healthcare.

11.  Dr Cleary’s evidence was unchallenged at the hearing.  The Applicant indicated that the proposed represented person continues to show lack of insight and awareness of his situation and is impulsive. He continues to be verbally aggressive and physically threatening.  The Board was satisfied that the proposed represented person is incapable of making reasonable judgements about his person and circumstances and his financial situation. 

Is the proposed represented person in need of a guardian and an administrator?

12.  The Board received evidence that the proposed represented person was admitted as a patient to the Royal Hobart Hospital on the 9^th June 2017 due to a fall which resulted in a fractured pubic rami.  Given his highly volatile behaviours in the acute care setting he was transferred to the Roy Fagan Centre (RFC) on the 19^th June 2017 for rehabilitation and ongoing discharge planning.

13.  The Applicant reported that the proposed represented person has voiced his wish to return home and tries to locate exit doors at the RFC.  At the hearing, it was indicated that the proposed represented person was not ready for discharge given his challenging behaviours.  The Applicant indicated that the proposed represented person’s challenging behaviours would not be able to be managed in an aged care setting and consequently an aged care assessment had not occurred. The treating medical team did not consider the proposed represented person was safe to return home.  He is a high falls risk and his care needs are very high. The Applicant indicated that once the proposed represented person’s behaviours became more settled he could be ACAT assessed for aged care.  The Applicant indicated that the proposed represented person is opposed to residential aged care.

14.  The Board determined that the proposed represented person is in need of a guardian to make accommodation decisions and to have the power to convey him to accommodation given his resistance to entering aged care and his wish to return home, and to make healthcare decisions.  It was deemed the appointment of a guardian was in the best interests of the proposed represented person and that there was no less restrictive course to take.

15.  There was no dispute at the hearing that the proposed represented person is currently unable to manage his finances. Evidence was heard that the proposed represented person holds an interest in a property at New Norfolk pursuant to a Long Term Purchase Agreement with the Director of Housing.  The proposed represented person is said to have only a few thousand dollars to pay out the Long Term Purchase Agreement then the property can be formally transferred into his name.  The Board was advised that his daughter had been informally monitoring the payment of household bills and his eldest son has had his pension transferred into his account to meet payment of his expenses. The Board also notes that if the proposed represented person moves into aged care there will be a need for an administrator to sign the aged care financial agreement and comply with the reporting requirements to Centrelink

16.  The Board therefore determined that there is a need for the appointment of an administrator. There is no less restrictive alternative available that would address the proposed represented person’s needs

Eligibility of potential guardian

17.  The applicant nominated the proposed represented person’s eldest son, MDS as guardian.  This was not opposed by anyone at hearing.  The Board carefully considered the evidence and the criteria set out in Section 21 of the Act and was satisfied that MDS would act in the best interests of the represented person and is a suitable person to appoint as guardian.

Eligibility of potential administrator

18.  The applicant nominated the proposed represented person’s daughter, UU as administrator. This was supported by MDS and Ms Nicky Target from the OPG.

19.  When hearing an application for administration, the appointment of one of the three statutory agencies lies as a default option for the Board, meaning that the Board does not need to assess the eligibility of the three statutory agencies named in section 54(1)(a), (b), or (c), nor seek their consent to appointment. The Board can appoint a person other than the three statutory agencies if that person meets the criteria in section 54(1) (d)  and 54(2) of the Act. These criteria are:

·     That the person consents to act as administrator (s.54(1)(d)),

·     The Board is satisfied that the person will act in the best interests of the proposed represented person (s.54(1)(d)(i)),

·     The Board is satisfied that the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person (s.54(1)(d)(ii))

·     The Board is satisfied that the person is a suitable person (as defined in section 54(2)) to act as the administrator of the estate of the proposed represented person (s. 54 (1)(d)(iii)), and

·     The Board is satisfied that the person has sufficient expertise to administer the estate (s.54 (1) (d) (iv)).

20.  After consideration of the evidence, the Board:

a)     Was not satisfied that the applicant would act in the best interests of the proposed represented person.

b)    Was not satisfied that the applicant had sufficient expertise to administer the estate.

21.  UU was adamant in the first part of the hearing that she would not sell her father’s property until her father is deceased.  “I wouldn’t sell it. None of us would put it on the market while he is alive.” When asked if she proposed to rent the property she indicated “no” because her eldest brother lived there and had been living there for the last 3.5 years. When asked if her brother was paying rent, she answered “no”.  She indicated her brother was contributing to power and telephone since the proposed represented person has been in hospital.  UU didn’t display an awareness that these arrangements may not be appropriate moving forward and that renting out the property or the payment of the loan monies to allow the transfer of the property to the proposed represented person’s name and then subsequent sale of the house would all need to be considered.

22.  When discussing the probability of the proposed represented person entering aged care UU indicated that she was aware “his pension would go to aged care for his care and his prescriptions” and family would meet any other expenses. When asked how any accommodation bond may be paid, UU indicated “well we will pay it”.  The applicant then indicated this could be a substantial sum.  At this point UU appeared to understand that the sale of her father’s property may be required.

23.  From her actions to date with informally assisting with the management of the proposed represented person’s finances and her responses to questioning at the hearing, the Board gleaned an impression that UU has a passive approach to the administrative aspects of her father’s affairs and was content for the status quo to remain which included her brother continuing to reside in the property in Hobart without paying rent.  Only when the Board raised some concerns about the need to act in the proposed represented person’s best interest did UU display some awareness that decisions concerning her father’s property may be required.  UU didn’t reflect an understanding of the fiduciary responsibilities of a prudent and competent administrator.

24.  The Board wasn’t satisfied that UU demonstrated she had the necessary administrative and financial management skills required to act as administrator.  The administrator will have some complex decisions to make including whether to rent or sell the proposed represented person’s home and if he transfers to aged care which was discussed as a likely outcome at some point, deciding on the best arrangements for payment of the residential aged care fees and bond. With regard to her expertise to manage the estate, UU said she had not worked for the last few years as she was the carer for her father and prior to that she worked in a “butcher’s shop, at and at “XXXX.”   When asked what steps she would take to sell the house she relied “get real estate in, clean it up and clear it out”. When asked how she would determine a suitable price for the property, she indicated she would accept what the real estate said and then indicated the value of the property was $180,000 and so she would put the property on the market for $185,000 - $190,000.  UU was unable to identify that a valuation of the property may be appropriate.  When asked what steps she would take if she had a signed purchase agreement on the property, she was unable to identify getting legal assistance, without leading from the Board. When asked what she would do with settlement funds she was unable to identify that getting some financial advice may be a prudent step.

25.  The Board has often noted that the Act provides a statutory predisposition to the appointment of the Public Trustee. In this case such an appointment will have all of the advantages referred to by Kirby P in Holt v Protective Commissioner (1993) 31 NSWLR 227 and in particular:

a)the manifest independence of the statutory office,

b)the advantages of a dispassionate and neutral approach where there is a potential for family conflict and divided views about the best interests of the proposed represented person;

c)the expertise of the staff of the Public Trustee, their experience in managing estates, and the know how accumulated by them.

26.  For the reasons set out above, the Board determined it was in the best interests of the proposed represented person to appoint the Public Trustee as administrator of his estate.

Conclusion

After hearing an application for a guardianship order in respect of MDS (hereinafter called the ‘represented person’)

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; and
• is in need of a limited guardian;

THE BOARD ORDERS:

1. That BS be 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 whether permanently or temporarily and

   (ii)consent to any health care that is in the best interests of the represented person and to refuse or withdraw or consent to any such treatment.

   (iii) Providing consent to any reasonable measures required to convey the represented person to the place of residence as determined by the guardian.

3. That the order remains in effect to the 9^th August 2020.

After hearing an application for an administration order in respect of BS (hereinafter called the ‘represented person’)

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 estate; and
• is in need of an administrator

THE BOARD ORDERS

1. That the Public Trustee be appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 9 August 2018.

Rowena Holder                   Louise Mollross                 Grant Kingston

PRESIDENT                    MEMBER    MEMBER

Dated: 21^st August 2017