MKQ (Guardianship) (Administration)

[2009] TASGAB 21

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

MKQ – Application for Guardianship and Administration by CM and DE

Neutral citation: MKQ (Guardianship) (Administration) [2009] TASGAB 21

REASONS FOR DECISION

Anita Smith (President)
Toni Law (Member)
William Downie (Member)

16 October 2009

Guardianship and Administration – need for a guardian – conflict between the represented person’s mother and husband unlikely to work against her best interests – guardian not appointed for ‘peace of mind’ of a third party
Guardianship and Administration Act 1995 s 6, 20, 51

1. MKQ (hereafter referred to as the ‘proposed represented person’) is a 48 year old married woman and mother of 3 children, 2 of whom are adults.  The proposed represented person has had a series of strokes, the most recent of which has resulted in a significant effect upon her ability to live in unsupported accommodation and to make reasonable decisions about her welfare and estate.

2. Two applications were made with respect to the proposed represented person.  The first was made by her son, DE, for appointment as her administrator.  The second was made by her mother, CM, for appointment as her guardian.  Because the applications were submitted together and dealt with the same factual scenarios, the Board heard both applications together.

3. In assessing these applications pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 the Board needs to assess whether proposed represented person is a person with a disability, whether that disability renders her incapable of making reasonable decisions about her estate and her person and circumstances and whether she is in need of an administrator and a guardian.  If the Board is satisfied of these matters, it assesses the suitability of nominees for the appointment as administrator and guardian.

4. The Board must also assess applications according to the principles in section 6 of the Act, being:

   A function or power conferred, or duty imposed, by this Act is to be performed so that –

   (a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and

   (b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

   (c) 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.

5. The Board convened a hearing on 16 October 2009 to which the following persons were given notice (with their relationship to the proposed represented person noted):

   MKQ
   NQ - husband
   CM – mother and proposed guardian
   DE – son and proposed administrator
   LE - daughter

   All persons who received notice, except LE, attended the hearing. 

The application for administration:

1. The Board considered the application for the appointment of an administrator first.  This application was uncontentious.  A medical report completed by Dr Alistair MacDonald and Dr Reddy Vemula indicated that following a intracerebral bleed, the proposed represented person has significant effect upon her ability to make day-to-day or major financial decisions.   The need for an administrator was demonstrated in a number of ways.  Firstly, her Disability Support Pension had been suspended as a result of a failure to comply with Centrelink reporting requirements.  The applicant, DE, was concerned that money was not available for daily necessities.  The proposed represented person appears to have a simple estate consisting of her Centrelink income and a jointly owned block of land.

2. The applicant for appointment as an administrator, appeared to have his mother’s welfare as his primary concern.  He is a qualified electrician and has had full employment since leaving school.  He supplied police record that disclosed no issues of concern to the Board.  DE had the support of the proposed represented person, her husband, her mother and other family.  The Board was satisfied that DE met the criteria in section 54 of the Act.

The application for guardianship:

1. The application for appointment of a guardian was more contentious than the application for appointment of an administrator.  Documentary evidence before the Board consisted of:

   ·A medical report completed by Dr Alistair MacDonald and Dr Reddy Vemula on 13 August 2009

   ·The application dated 28 August 2009

   ·A report by social worker Ben Snare from the Launceston General Hospital sent 21 September 2009

   ·Report by Anne Perks, GAB Manager of Investigation and Liaison dated 1 October 2009

   ·Email by CM dated 5 October 2009

   ·Police record check for CM (tabled at the hearing)

2. At the commencement of the hearing, NQ indicated that he also wished to be considered for appointment as a guardian.

3. The applicant, CM, described matters that were also described in Ben Snare’s report as an indication of why a guardian was required for proposed represented person.  The greatest concern was that the proposed represented person’s husband appeared to be unreliable and even uncontactable in times of the proposed represented person’s health crises.  Between strokes, the proposed represented person had returned to live with her husband in rugged conditions at [a remote place] which had caused concern for her family.  It appears that her family members do not have a sufficiently sound relationship with NQ as to be able to discuss such matters with him. 

4. In the absence of obtaining assistance or consent from NQ, the proposed represented person’s mother had become involved in consenting to medical treatment, providing personal care in frequent visits from Sydney, arranging accommodation and making representations at high levels of government to ensure that the proposed represented person had suitable accommodation plans.  The application for guardianship was motivated by a need for there to be a clear source of authority for such decisions and to ensure that plans made might not be upset by NQ belatedly asserting authority as the proposed represented person’s husband. 

5. NQ explained that he had health problems of his own, but that he remained committed to his wife’s care.  It was clear that the relationship between him and his mother-in-law is fractious.  He agreed that there had been a significant period of time where he was unavailable during the proposed represented person’s hospitalisation. 

6. There is no doubt that the proposed represented person’s mother had stepped in to assist her daughter in difficult circumstances and at great personal effort and expense.  She has located suitable accommodation for the proposed represented person but also, quite incredibly, gained a commitment from Government for the proposed represented person to be housed in facilities that are currently under construction as purpose-built accommodation for young people with head injuries.  All of this she has achieved without a guardianship order.  The Board believes that future accommodation and health care decisions, like the decisions made in the recent past, can be achieved without a guardianship order.  CM stated that she wanted appointment as a guardian so that she could have ‘peace of mind.’

7. NQ commented that he would not consent to his wife moving to premises that he had not yet seen, these comments possibly related more to the conflict with his mother-in-law than an actual intention to upset well-laid plans for the proposed represented person’s best interests. 

8. In any event, should a conflict arise at the time of the proposed represented person’s proposed transfer from the Nursing Home to the new premises at Hobart, any person concerned about this could apply for an emergency guardianship order pursuant to section 65 of the Act to ensure that her best interests are protected.

The Represented Person’s Wishes:

1. Shortly before the hearing concluded, the Board held a separate interview with the proposed represented person to ascertain her wishes.  When asked who should make decisions about issues such as where she lives, the proposed represented person stated that she wants to make the decision for herself.  Her decision was to live “at the closest possible place to my children.” She also expressed a wish to live with her husband again.  She said that the Nursing Home was good and agreed that she would like her mother appointed as guardian. However, when asked: “If you had to choose one person to make decisions for you, who do you think it would be?” She answered: “NQ”.

2. From these and other questions asked of the proposed represented person, the Board gathered that she is generally compliant with any proposals put to her and would like to ‘keep the peace’ between the other persons in her life.  The Board determined however that she remains committed to her marriage to NQ. 

Application of the Section 6 Principles:

1. In these circumstances, where responsible decisions have been taken regarding the welfare of the proposed represented person without the need for appointment of a guardian, the alternative that is least restrictive of her freedom of decision and action is for there to be no guardian appointed.  Her best interests have been catered for in the time since her last stroke and the plans in place at present appear to have the capacity to further her best interests.  Her wishes are to remain the decision maker and to retain close relationships with her children, mother and husband. 

2. The Board has some sympathy for CM’s desire for ‘peace of mind’ however the principles in section 6 and the tests in section 20 do not apply to persons other than the proposed represented person.

3. In these circumstances, and taking into account the section 6 principles, the Board did not believe that the proposed represented person has a need for a guardian and therefore makes the following orders:

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 her estate; and

• is in need of an administrator

THE BOARD ORDERS

1. That DE 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 15 October 2012.

AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed.

DATED this 16th day of October 2009.

Anita Smith
PRESIDENT

Statement of reasons request received: 21 October 2009
Delivered: 3 November 2009