MLU (Guardianship) - [2010] TASGAB 26

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

MLU – An Application for the Appointment of a Guardian by LU

Neutral citation: MLU (Guardianship) [2010] TASGAB 26

REASONS FOR DECISION

Anita Smith (President)
Kim Barker (Member)
Lindi Wall (Member)

Hearing date: 10 December 2010

Guardianship and administration – general principles of the Act - need for a guardian – responsibilities of a guardian conflict between young woman and her parents – whether father suitable for appointment as administrator and guardian in circumstances of conflict

Guardianship and Administration Act 1995 sections 6, 20, 21, 25, 27, 51

Re M & R & The Guardianship and Administration Board (1987) 2 VAR 213
Public Trustee v Blackwood, King and Baxter LCA 52/1998

The proposed represented person, MLU, is a 21 year old woman who is unemployed and until very recently lived with her parents, LU and KBT, and her brother, EU. Her father applied for appointment as her guardian and administrator. The circumstances of the application for appointment of an administrator relate to some incidents where MLU has given cash from her bank account to persons who are most likely taking financial advantage of her. The guardianship application arises from her parent’s concerns about her behavior and concern for her future employment and housing.
The Board heard the applications on 10 December 2010. Present at the hearing were:
LU (father and applicant)
KBT (mother)
EU (brother)
KN (family friend)
NN (family friend)
MI (Polytechnic teacher)
Rebecca Thompson (Advocacy Tasmania, Advocate)
Valerie Hannon (GAB Investigator)
Margaret Colville (Deputy Public Guardian)
Justin Clifford (representative of the Public Trustee)
Unfortunately, MLU did not attend the hearing. She had notice of the hearing and several people present had discussed the application and hearing with her. Before the hearing commenced, attempts to call her mobile telephone and the mobile telephone number for her boyfriend were without success. The Board determined that MLU had adequate notice of the hearing but had declined to attend. Such a reaction appears to be typical of certain avoidant behaviours described by her parents, meaning that adjourning the hearing to a later date would provide no greater likelihood of securing her attendance. MLU had clearly expressed her wishes regarding the application to the GAB Investigator and to her advocate, so the Board determined that it was appropriate to proceed in her absence.

The administration application:

In assessing an application for the appointment of an administrator, the Board must not appoint an administrator unless it is satisfied 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 matters relating to all or any part of her estate, and
(c) is in need of an administrator of her estate.

The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995:
“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.”
Dr Leanne Adcock completed a Health Care Professional Report dated 27 October 2010 in which she identified that MLU has an intellectual disability and that this results in her having no concept of monetary value and very little capacity to make reasonable decisions in relation to her estate. According to Dr Adcock, the proposed represented person’s disability affects her ability to manage day to day financial requirements absolutely. This evidence was uncontested.
Evidence from the applicant, which was supported by MI indicated that MLU had given cash to and purchased items for young men who had requested it, for no other reason than that they had requested it. This had occurred on more than one occasion and it appeared very likely that the young men were taking advantage of her disability for their financial gain. MLU also made a commitment for a $2000 donation to Amnesty International when asked by a woman on the street. This evidence was also uncontested.
The applicant also noted that MLU had over time accumulated $30,000 in savings from her pension. To protect those funds he had recently transferred $27,000 of those funds from her account to an account that he controls after he became concerned about the financial exploitation.
Evidence from the GAB Investigator and from Ms Thompson indicated that MLU acknowledged that she needed assistance with handling her money and that her wishes were that she have support to make financial decisions.
Accordingly, taking into account the contents of Dr Adcock’s report and the evidence from the applicant and others, the Board was satisfied of the matters in section 51 (outlined in paragraph 3 above) and it is appropriate to make an order appointing an administrator.

The guardianship application:

In assessing an application for the appointment of a guardian, the Board must not appoint an administrator unless it is satisfied 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 her person or circumstances, and
(c) is in need of a guardian.

Again the principles in section 6 apply to this part of the application.
Dr Adcock’s report was relied upon by the applicant as evidence that MLU is a person with a disability and lacks capacity to make reasonable judgments in respect of her person and circumstances. The applicant also supplied a lengthy written submission with many examples of her behaviours which he believed demonstrated a lack of capacity, as well as some historical medical reports which provide evidence of MLU having a low IQ.
Dr Adcock’s report indicated that MLU experiences deficits in communication, orientation to person place and time, impulse control, capacity for new learning, susceptibility to influence, and planning and reasoning skills. In respect of particular areas of personal decision making, Dr Adcock indicated that MLU would have (i) “significant difficulty in making a reasoned decision” regarding where she should live temporarily or permanently, (ii) could “almost certainly not” understand the nature and effect of medical treatment, and (iii) “needs continual guidance” with regard to relationships, visits by friends or relatives and employment. It is noted that Dr Adcock mentions that she has also known the proposed represented person’s mother as a patient for many years and expressed support for the application.
MI expressed a view that the proposed represented person’s capacity was not as limited as reported by Dr Adcock. Similarly, reports by her advocate and the GAB Investigator indicated quite a comprehensive level of communication and understanding of these proceedings.
The applicant had a high level of difficulty when presenting information to the Board distinguishing between the perceived incapacity to make reasonable judgments and the need for a guardian. It was clear from his evidence that he regarded MLU as being “in need of a guardian” simply because of her disability and the alleged vulnerabilities and returned to these issues on many occasions rather than demonstrating a practical need for a guardian.
One of the major themes coming through the extensive written materials provided by the applicant was that people in the community (such as medical practitioners, employment agencies and teachers) overestimate the proposed represented person’s capacity to make her own decisions, have empowered her towards independent decision making and that this has lead to or could lead to irreparable harm. However, although the proposed represented person’s behaviours had certainly showed some level of personal risk (as opposed to financial risk which is dealt with in the appointment of an administrator), none of those risks had yet eventuated apart from the fact that she had left home and was not responding to her parents’ telephone messages.
The Board accepted that MLU experiences some limits to her capacity to make reasonable decisions, but does not accept that these limitations prevent her from enjoying most of the rights and entitlements of young adults.

Is MLU in need of a guardian?

The applicant and his wife have been very caring parents who went to great expense to see that their daughter with a disability had the very best education available to her. They have studied the provenance and effects of her disability closely and clearly been actively engaged with a range of professionals throughout her childhood in an attempt to give her the best life possible. They have high aspirations for her future employment and for a safe and clean environment for her. However, as a slightly late bloomer, she has started to display the rebellion of adolescence and appears to have rejected aspects of her upbringing and their guidance and counsel, much to their great disappointment.
In an extensive written application, the applicant noted that MLU is embracing the concept of adulthood in ways that her parents do not necessarily approve. Her parents wished to stress the aspects of her disability that limit her, as a reason why she is unready for adulthood. They were concerned that her she is unduly obsessed with her relationship with a young man with an intellectual disability. They were also concerned that she asked certain service providers not to disclose information to her parents and that she was attending medical practitioners without their involvement. These expressions of independence and age appropriate sexuality have caused them great angst. The applicant believed that his appointment as a guardian would re-assert his level of control and involvement in her life, affording him the opportunity to direct her into appropriate training, employment and accommodation.
At the time of making the application, the applicant was concerned that the proposed represented person:
·Was encouraged by TAFE to think of herself as an adult with free choice
·Was unable to accept the level of responsibility necessary to exercise her freedom of choice
·Was determined to make her own decisions, be an adult and not be seen as a person with a disability
·Requested Blueline Employment agency not to discuss her personal matters with her parents
·Consulted Dr Turnier-Shea in the absence of her parents
·Was referred to a psychologist for cognitive behaviour therapy by Dr Turnier-Shea without consultation with her parents
·Had a brief crush on a young man with a disability called E
·Started a relationship with a young man with an intellectual disability called EM and had some interpersonal difficulties with his ex-girlfriend, G
·Failed to adhere to work experience activities
·Was using public transport or taxis inappropriately
Before the application was heard, matters had developed and the following concerns were added to the applicant’s worries:
·MLU was spending time in her boyfriend’s house where she was exposed to passive smoke
·The main activity that MLU and her boyfriend engaged in was wandering about the city
·MLU had informed her parents of a wish to spend an evening with her boyfriend in a hotel, eventually choosing the Pickled Frog Hotel which they did not believe to be a suitable hotel
·MLU spent time away from home with friends while these friends were encouraging her to return home
·MLU caught a bus at 11pm from Glenorchy to the City in the company of her boyfriend
·When angry, MLU ran off from home without her bag and phone for a period of 2-3 hours
·MLU uses her mobile phone too frequently
·MLU was not attending to hygiene appropriately and not wearing clothes appropriate to the weather
There is little doubt that the applicant views these issues very seriously. However the Board did not believe that the behaviours had caused any significant harm or that they were beyond the activities of many young adults in Hobart.
A factor that set MLU apart from other young persons her age was the level of protection and monitoring that her parents had engaged in, a level which they believed was justified on account of her disability. For instance: the applicant had recorded and charted the proposed represented person’s telephone usage. Her parents noted ‘finding’ Dr Turnier-Shea’s referral letter in the proposed represented person’s handbag. In evidence the applicant also noted checking her bank transactions online to track her activities and whereabouts.
One of the applicant’s main concerns was that he wished to ensure that all persons dealing with MLU knew of her limitations imposed by her disability. If professional persons had not had the benefit of his briefing in this regard, he held serious doubts about their ability to make professional judgments about her. An advantage of being appointed as a guardian, for the applicant, would be that he would have control again over the exchange of information about his daughter. This would include the ability to override her requests to service providers not to share the proposed represented person’s personal information with her parents.
When pressed at the hearing, the applicant was unable to state how as guardian he could prevent any of the proposed represented person’s risky behaviours happening again. He appeared to believe that merely being able to assert that he was the guardian and administrator would be sufficient for her to conform to his desires that she settle down to seeking employment and again living at home. He made repeated reference to a ‘structured 12 month plan’ whereby if appointed guardian he could turn his daughter’s life around. The 12 month plan would be effected through ‘a controlled environment’, ‘vigilance’ and ‘structure’ which would see MLU restricted from wandering the city and having contact with her current peer group. However, he was unable to detail the 12 month plan other than that he would seek employment and appropriate housing for the proposed represented person. He was also unable to state whether it is the proposed represented person’s wish to have employment.
The Board assessed the proposed represented person’s need for a guardian against some of the typical activities of a guardian as set out in section 25(2) of the Act.
(a)   Decisions about where she shall live temporarily or permanently:
MLU had made independent efforts to find supported accommodation. At the time of the hearing it was believed that she was living at Hobart with her boyfriend. The applicants agreed that while this is not ideal accommodation, it is not unsafe. It is clear that the relationship between MLU and her parents had degenerated to a point where she may not wish to live with them. The Board was concerned that if her boyfriend’s interest in her was purely financial, the appointment of an administrator may jeopardise her accommodation at Hobart and she may need decisions made urgently to find appropriate accommodation.
(b)   Decisions about with whom MLU shall live
There was no evidence that MLU needs to be removed from the premises at Hobart. Although she is exposed to passive smoke, this is not a reason to remove a person with a disability from a place that she has chosen to live temporarily. Further, it was alleged that EM (who lives at Hobart) had brought MLU into contact with those persons who had financially exploited her. However KBT stated that while she did not like EM, she would not prevent her daughter having a relationship with him. The Board is not satisfied that there is a need for a guardian to make these decisions.
(c)   Decisions about employment:
Although the proposed represented person’s parents had raised her with hopes that she might by this stage in her life be engaged in activities more worthwhile than hanging around the city with young men, the choices that she has made are not unusual for her age group. There is a difference between the case-management role of finding employment options for a person and a guardian making decisions that they will be permitted to work, the nature and type of work and for whom they will work. Regardless of what decisions a guardian might make about the perfect employment for the proposed represented person, if she is unmotivated to work, she will not adhere to employment and her employment options will be limited. Her present apathy about work may be related to her relationship with EM, or it may be related to her depression, but having a guardian make decisions about employment is not going to mean that she will have employment or adhere to it. The Board is not satisfied that there is a need for a guardian to make these decisions, although she may benefit from having a case manager to assist her with finding options for employment and training.
(d)   Decisions to restrict or prohibit visits by particular persons:
The applicant believed that guardianship powers to restrict the proposed represented person’s access to certain persons were necessary. However the Board was of the view, as noted in the submissions made by Ms Thompson in the hearing, that the persons having an adverse impact upon MLU were motivated by financial gain. With the appointment of an administrator, it is unlikely that they will continue with their attentions and therefore such powers were not required.
(e)   Decisions about health care:
MLU has been diagnosed with depression and prescribed anti-depressant medication and has been referred to a psychologist. There was no indication that she is suicidal. There was some concern that since leaving home she had not been taking that medication but the doctor’s advice was simply to resume taking the medication when she returned.   MLU is not in need of any other medication or treatment and therefore there is no need for a guardian to consent to health care on her behalf.
While the applicant wants appointment as a guardian to be able to reassert control over her life, MLU has demonstrated that she will embrace notions of adulthood and reject controls that will limit her choices of friends and activities. In doing so, the evidence before the Board was that she has not come to significant harm. None of the many risks that her parents noted have eventuated. There is insufficient evidence for the Board to determine that a guardian is needed to exercise the high level of control that the applicant sought. There is also insufficient evidence that the exercise of that control would create the desired outcomes as opposed to have the opposite effect of driving her further away from the aspirations that her parents had for her and the strong support that they have provided and no doubt will continue to provide for her.
In assessing this application it is important to distinguish the applicant’s desire for appointment from the best interests, least restrictive alternative and wishes of the proposed represented person. A decision of the Administrative Appeals Tribunal (Vic) in Re M & R & The Guardianship and Administration Board (1987) 2 VAR 213 (which was approved by Underwood J. in Public Trustee v Blackwood, King and Baxter LCA 52/1998) noted at 219 that:
"In my view, it is the evident intent of the legislature that guardianship (particularly in its plenary form) should be the last resort to be utilised where no other viable, and less restrictive, protective means is available to meet the needs of the person. This involves considering whether the person to be represented is likely to benefit from guardianship as distinct from the person seeking to be appointed. Even where guardianship is considered necessary in the best interests of the person, it is the intention of the legislature that the least restrictive form available be applied."

The Board determined that the least restrictive alternative that will meet the proposed represented person’s best interests is to appoint a guardian with powers limited to decisions about where she should live temporarily or permanently.

The applicant’s suitability for appointment as a guardian or administrator

The applicant believed that being appointed as her guardian would give him the right to question his daughter about where she was going and what she was doing. He was concerned that since she has been embracing the concept of adulthood, MLU no longer accepted that he had any authority over her decision making. Being appointed a guardian would mean to him that he would again have authority over his adult daughter.
The applicant asserted that an independent guardian would not be suitable because the Public Guardian could not be as vigilant as he in the role of a guardian. He stated that if MLU realised that the structure was being implemented in her best interests, it would be possible for the guardian to be less intrusive. The key to that realisation was the validation that would be implied by the Board’s order.
There was a mismatch between the reasons why the applicant sought appointment as a guardian and the role of a guardian. Section 27 of the Act requires that a guardian:
“27. Exercise of authority by guardian
(1) A guardian must act at all times in the best interests of the person under guardianship.
(2) Without limiting subsection (1), a guardian acts in the best interests of a person under guardianship if the guardian acts as far as possible –
(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and
(b) as an advocate for that person; and
(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and
(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person; and
(e) in such a way as to protect that person from neglect, abuse or exploitation.”
While the applicant was conversant with the authority of a guardian as described in section 27(2)(e), he was not able to distinguish between his wishes for his daughter and her own. Therefore the Board was not satisfied that he could perform the functions required by section 27(2)(a). His desire to impose ‘structure,’ ‘vigilance’ and ‘control’ upon MLU as a means to achieve her best interests are not consistent with the other responsibilities of a guardian in section 27(b), (c) and (d).
The requirements in section 21 for eligibility as a guardian include:
“(2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.”
The Board notes that MLU did not object to her family assisting her with managing her money. However, in her actions MLU had demonstrated that she did not like the level of monitoring and control that had been exercised by her parents. It was therefore very unlikely that she would wish for their appointment to positions where they would have greater facility to monitor and control her. The Board interpreted her wishes accordingly. Additionally, the Board interpreted that appointment of her father as a guardian or administrator would, on the balance of probabilities, irreparably damage an already fragile but important family relationship.
In considering all of the evidence of all of the parties and the written materials provided to the Board, the conclusion of the Board was that both administrator and the guardian needed to be independent of the family unit. Appointment of an independent guardian and administrator will provide MLU with the protection that she requires but at the same time foster her desire to exercise independence from the controls of her parents as is appropriate for a person her age.

The Board’s Decision:

After hearing an application by LU of Hobart in respect of MLU of Hobart (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 her estate, and her person and circumstances; and
is in need of an administrator and a guardian;

THE BOARD ORDERS

That The Public Trustee be appointed as the represented person’s administrator.
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 administration order remains in effect to 9 December 2013.
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 where the represented person is to live either permanently or temporarily.
That the guardianship order remains in effect to 9 June 2011.

Anita Smith Kim Barker Lindi Wall
PRESIDENT MEMBER MEMBER

Reasons for decision requested: 14 December 2010

Reasons for decision delivered: 24 December 2010