MJWE (Emergency Guardian)
[2015] TASGAB 21
•4 December 2015
GUARDIANSHIP AND ADMINSTRATION BOARD
HOBART
MJWE – Application for an emergency guardianship
MJWE (Emergency Guardian) [2015] TASGAB 21
REASONS FOR DECISION
Sandra Taglieri (Board Member)
Date of decision: 4 December 2015
Emergency Guardianship, deteriorating medical conditions and disability, dispute regarding care and support
Guardianship and Administration Act 1995 s.5, 6, 20, 65
Introduction
MJWE is aged 91 years and has been residing alone at her home situated at Hobart in Tasmania.
On 25 November 2015, an application pursuant to the Guardianship and Administration Act 1995 (“the Act”) was made to the Board for the appointment of a Guardian for MJWE. The application was made by a residential care facility, who had been providing residential based care to MJWE for a considerable time.
On 2 December 2015, the residential care facility also applied for an emergency order for the appointment of a guardian (“the emergency application”) and on the 4th December 2015, I determined that application.
The orders made on 4 December 2015 are set out at the end of these Reasons for Decision.
Materials received by the Board
At the time of considering and determining the emergency application, I had before me:
a.The Emergency application dated 2 December 2015;
b.A submission by the solicitor of LC (MJWE’s son), by letter dated 2 December 2015;
c.A Health Care Practitioner Report of Dr Webber dated 24 November 2015.
d.Application for Guardianship dated 25 November 2015.
Statutory provisions relating to Emergency Orders
Part 8 of the Act provides the Board with power to make “any order or give any direction considered appropriate in the circumstances” where it considers it appropriate because of reason of urgency[1].
[1] Section 65(1) of the Act
Further, the Board has express power to make a guardianship order appointing the Public Guardian if by reason of urgency it considers that appropriate in regard to a person who is not yet a represented person.[2]
[2] Section 65(2) of the Act
The power vested in the Board by Part 8 is discretionary and very wide. In my view it is also guided by the overall objects and principles of the Act which are in sections 5 and 6.
Because the emergency order sought was in regard to Guardianship, it was also necessary in my view to consider the provisions in section 20 of the Act. That is, whether they may be satisfied at a final merit hearing. For example, if there were no information at all suggesting that the proposed represented person suffered disability or had inability to make reasonable judgments about personal circumstances, then it would be improper to make an emergency guardianship order.
Consideration and findings
Having considered the materials referred to in paragraph 5, it was apparent that they tended to demonstrate that:
a.MJWE was suffering from Alzheimer’s type dementia, generalised osteoarthritis and general frailty. All conditions had been diagnosed by a medical practitioner (Dr Webber) and were said to cause disability, including deficits in, orientation to person, place or time, receptive communication, impulse control, capacity to learn and plan and reason.
b.MJWE’S health and disability was in decline and that in turn meant there was an increasing need for care and support, which seemed to be accepted by LC.
c.There was some degree of disagreement between the residential care facility and LC about the nature and extent of care and support which MJWE reasonably required to meet her needs.
The disagreement referred to in paragraph 10c had existed for several weeks and possibly several months. It was referred to in LC’s solicitor’s letter and also the content of the Emergency application. It raised a real potential to impact on the delivery of adequate care and support for MJWE.
The materials before the Board did not readily persuade me that there were reasons of urgency warranting the making of an emergency order. That being so, I chose to utilise the powers in section 65(4). I telephoned a representative of the applicant to “test” the content of the emergency application and inform myself about whether there was some reason of urgency.
The information received by phone from the applicant’s representative, MS persuaded me that regardless of whether the perspective of LC or the residential care facility was correct, the information from both parties tended to demonstrate that there was real potential for MJWE’S health and wellbeing to be put at risk, due to possibility that:
a.care and support levels were inadequate given her deteriorating conditions; and
b.delivery of existing care and support was less than ideal due to the interactions between LC and staff from the residential care facility.
I was informed by MS that over the Christmas/New Year period due to closure of a day care centre MJWE regularly attended, there would be even less opportunity to look out for her welfare and that there were otherwise only 2 daily visits to her by care staff.
MS also outlined much of what was in the Emergency about the apparent agreement that more care and support was needed, but that no or little progress had been made for several weeks at least to address the increased needs.
I was mindful that MJWE apparently had strongly expressed the view to remain in her home, but that is to be balanced with the medical evidence of Dr Webber that she lacks insight and judgement about the effects of her disability and her proper needs.
From the materials I had before me, it was also clear that LC had been wishing, if possible to respect his mother’s wishes about remaining to live in her home. While that is commendable, the over-riding consideration may ultimately be what is required for MJWE’s safety and wellbeing.
The materials raised real concern that the disagreement between LC and the residential care facility was likely to continue in the short to medium term and regardless of whose position was more accurate or reliable, MJWE was being exposed to risks to her health and wellbeing.
I was satisfied that such risks were potentially even greater, due to the reduced supervision/support that would happen due to Christmas holiday closures and that this meant there was urgency to the matter.
I was satisfied that until the substantive application for appointment of a guardian was determined following a merits hearing, the circumstances relating to MJWE were such that an emergency guardianship order should be made, but on a limited basis.
The limitations concerned where MJWE would temporarily live, and the temporary care and support needs until the substantive application for guardianship was heard. I considered it appropriate to specify that the guardian had power to restrict visits to MJWE by persons, if it became apparent that was required in her best interest. This was considered appropriate due to the level of conflict between LC and the residential care facility staff, which both parties acknowledged existed.
Further, due to the conflict acknowledged between the parties, it was necessary and appropriate to appoint an independent person as the Emergency Guardian, as such the Public Guardian was appointed pending the determination of the substantive application.
THE BOARD ORDERS
That The Public Guardian be appointed guardian of the represented person.
That the powers and duties of the guardian are limited to:
i) decisions concerning where the represented person is to live temporarily and
ii) providing consent to any reasonable measures required to convey the represented person to the place of temporary residence as determined by the guardian
iii) providing consent to support services for the represented person’s best interests
iv) to restrict visits to the represented person to such extent as may be necessary in her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.
That this order remains in effect for 28 days from 4th day of December 2015.
Sandra Taglieri
BOARD MEMBER
0
0
1