MNN (Review Guardianship and Administration)
[2017] TASGAB 1
•6th January 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
MNN (Review Guardianship and Administration) [2017] TASGAB 1
REASONS FOR DECISION
Rodney Lester (Chairman)
Date of hearing: 6th January 2017
Guardianship – Administration – acquired brain injury – fluctuating capacity – need for an administrator and guardian – least restrictive option
Guardianship and Administration Act 1995 s. 3, 20, 51
The hearing was in respect of MNN, a 59-year-old woman living in Launceston. At the time of the application the represented person had been residing at the Roy Fagan Centre in Hobart.
The hearing on January 6th 2017 was attended by MNN, (the represented person), Sarah Campbell, (Legal Aid solicitor representing MNN), Allan Lobwein, (Older Persons Mental Health Services case manager), Michelle Igoe, (community dementia nurse), Kylie Hillier, (Office of the Public Guardian), and Emma Curbishley, (the Public Trustee). Mitch Cairns and Kate Hughes from Legal Aid observed the proceedings.
The represented person was placed on an emergency guardianship order on October 21st, 2014. This emergency order was renewed on November 11th, 2014 and then a guardianship order limited to accommodation issues was made on January 14th 2015 – this order was for 12 months. A request from the guardian for advice and direction resulted in a hearing on November 11th 2015 and the order was varied to include medication and health care. A review of this order occurred on January 8th 2016, and the order was continued for a further 12 months, although it was again confined to accommodation issues. The represented person sought a review of this order, and a hearing commenced on April 6th 2016 in Hobart.
The represented person was placed on an emergency administration order on November 6th, 2014. This order was extended on December 4th, 2014 and then the Public Trustee was appointed as the represented person’s administrator for a period of 3 years on January 14th, 2015. The represented person sought a review of this order which was part heard with the review of the guardianship order on April 6th 2016 in Hobart. The hearing of both review applications was adjourned on April 6th 2016 and recommenced in Launceston on January 6th 2017.
The Hobart hearing in April 2016 was heard by Mr Colin McKenzie. When requesting the relisting of the hearing on November 18th 2016 Sarah Campbell asked that the hearing be moved to Launceston due to the represented person having moved, and also requested that, if possible, the matter continue to be heard by Mr McKenzie. Whilst the Board accepted that ideally Mr McKenzie would have continued the hearing this was not practical due to the timeframes involved with the expiration of the guardianship order on January 8th 2017. The Board that concluded the hearing had available substantial notes made by Mr McKenzie at the April 2016 hearing, as well as notes from the Board from both the 2015 hearings and the first review hearing of the guardianship order in January 2016.
The basis of the review application was that a report by clinical psychologist Dr David Tuck, dated 2nd February 2016, indicated that the represented person did not have a disability, or alternatively if she did have a disability that it did not result in sufficient incapacity to render her unable to make reasonable decisions. This conclusion was disputed by Dr Martin Morrissey, who was treating the represented person at the time of the application. Mr McKenzie’s notes from the initial hearing state:
The hearing was adjourned on the application of the represented person through her counsel Ms Campbell to a date to be fixed by The Registrar. The other parties consented.
The purpose of the adjournment was to;1. Allow a period of about 2 months for the represented person to move to XXXX and see how she managed, to see if, practically speaking, she has sufficient capacity to cope without a guardian or administrator.
2. To allow for Dr Morrissey, Sarah Campbell and Dr Tuck to confer regarding the issue of whether the testing done by Dr Tuck is evidence of capacity, or at least evidence discounting the claim that the represented person needs a guardian and administrator due to disability and incapacity.
It was further argued by the represented person at the reconvened hearing in Launceston that if the Board did not accept that there was no disability or incapacity, then a need no longer existed for either a guardian or administrator.
At some stage in June 2016 the represented person had moved from the Roy Fagan Centre in Hobart into a unit in Riverside, where she lived on her own. She was receiving significant support from community health services, and with these supports seemed to be managing reasonably well in her new accommodation. She had had a two-week admission to the Launceston General Hospital in early December, but the issues that had necessitated this admission appeared to have been resolved and at the time of the January hearing she was back at Riverside.
Unfortunately, apparently due to the represented person moving from Hobart to Riverside, the conference between Dr Morrissey, Sarah Campbell and Dr Tuck had not taken place, so the Board had no further medical evidence on disability or capacity.
Disability – sections 3(1), 20(1)(a), 51(1)(a) of the Guardianship and Administration Act 1995 (‘the Act’)
10. The 2015 orders were based on a health care professionals report from Dr Jonathon Paech who remains the represented person’s treating psychiatrist. He diagnosed acquired brain injury, at least partly resulting from alcohol abuse, cerebrovascular disease and global deficits.
11. At the review of the guardianship order in January 2016 Dr Martin Morrissey stated that there had been no real change in MNN’s disability, although he described it as dementia.
12. Dr Tuck’s assessment related specifically to capacity and he does not give any definitive opinion on disability although does note that ‘…MNN has been diagnosed with vascular dementia, diabetes and associated peripheral neuropathy and Charcot foot.’
13. Given the evidence before the Board, and the lack of any new health care professional opinions that specifically contradicted the views of Dr Paech and Dr Morrissey, or indicated any change since those views were formed, the only reasonable view the Board felt it could reach was that MNN continued to have a disability.
Incapacity – sections 20(1)(b) and 51(1)(b) of the Act
14. At the 2015 hearing Dr Paech indicated that MNN’s disability affected most components of her thought processes. The review of the guardianship order in January 2016 had Dr Morrissey’s view that there had been no real change in MNN’s capacity.
15. This review application was principally based on Dr Tuck’s assessment of capacity. In his report, Dr Tuck states ‘With reference to a specific opinion on MNN’s decision-making capacity, it would be difficult to identify a degree of “disability to make reasonable judgements” based on current cognitive functioning alone to the magnitude that would imply that MNN is incapable of making decisions. That notwithstanding, MNN’s historical self-neglect, her behavioural responses to being overwhelmed, the complexity of the management of her physical illness, and the likely trajectory of her cognitive functioning all present limitations to the strength of inference that can be drawn from the results of the current evaluation.’ Dr Tuck further states I can appreciate that such an equivocal clinical opinion is not desirable in matters such as this – however it would be inappropriate to form such an opinion without the aforementioned qualifications and considerations.’
16. In an email to the Board on March 8th, 2016 Dr Morrissey was unequivocal in his view about the interpretations that the review application had placed on Dr Tuck’s assessment – he stated ‘In short I continue to hold the view that MNN has a disability and that by reason of that disability she can’t make informed decisions about health care, accommodation and finances.’
17. It was suggested at the hearing, both by Michelle Igoe and Allan Lobwein, that MNN’s capacity to make reasonable decisions was at its best when she was physically well, and most compromised when she was unwell. However, apart from MNN and Ms Campbell, no one put forward the view that MNN did not lack capacity as a result of her disability. It is however accepted that MNN’s capacity fluctuated, and when she is physically well there is a significant difference in capacity to when she is unwell.
18. It is unfortunate that the conference proposed at the first hearing of this issue between Dr Tuck, Dr Morrissey and Ms Campbell did not proceed. Without some agreement between the health care professionals on the issue of capacity the Board did not feel competent to go against the unequivocal view of Dr Morrissey, and therefore was satisfied that MNN continued to lack capacity as a result of her disability.
Need, Guardianship– section 20(1)(c) of the Act
19. At the time of the hearing MNN was residing in a rental unit in Launceston. The possibility of moving to XXXX, as discussed at the April 2016 hearing had been explored, but that had not proceeded due mainly to cost issues. Apart from the two weeks in hospital in December the Launceston unit had been working reasonably well since MNN had left the Roy Fagan Centre in June 2016.
20. Initially there had been some issues with MNN consistently taking medication but support services seemed confident that these issues had now been resolved, and MNN now seemed to be functioning well in her accommodation. There was some discussion about trying to find a unit closer to the city, however everyone seemed on Board with this, and there was no suggestion that facilitating this move would be an issue if and when a suitable alternative to the current accommodation was found.
21. There did not appear to be any current guardianship issues, so with no need for an appointment evident the decision was to allow the current order to lapse.
Need, Administration– section 51(1)(c) of the Act
22. Whilst for the majority of the time MNN has been under an administration order the general management of her funds and the timely paying of accounts has been a concern, of specific concern has been the possible financial exploitation of MNN by her daughter, MN. It should be noted that MN denies that this has ever been the case, and MNN also says that it is not an issue.
23. When the Public Trustee was first appointed under an emergency order in late 2014 there were concerns that there had been some unauthorised withdrawals from MNN’s bank account by MN whilst MNN was in hospital. In a report to the Board dated December 23rd, 2016 the Public Trustee discussed this issue – ‘The Public Trustee investigated the withdrawals and was of the view that unauthorised withdrawals were made from MNN’s account by MN.’
24. The same report discussed a period in 2015 when MNN had moved to Melbourne to live with MN. At one stage MNN was admitted to hospital for a period of about ten days and the report says ‘During that time MN continued to receive funds for rent, food and electricity and she also had possession of MNN’s bank card and was also accessing those funds. We understand that MNN did not authorise MN to do this and we are confident that MN did not give those funds to MNN nor were they used for MNN’s benefit.’
25. Recently MN had moved from Melbourne to near Launceston and it appeared probable that she would have more consistent contact with MNN. There were concerns expressed at the hearing that this contact would increase the possibility of financial exploitation. Whilst MNN and Ms Campbell indicated that this would not be the case, with no firm evidence available to disprove the Public Trustee’s conclusions, the Board formed the view that there existed a real possibility that without some protection MNN was at risk of financial exploitation.
26. MNN’s estate consisted of a lump sum of approximately $8,235 held by the Public Trustee and the regular income from her pension. She was expecting to receive another $3,500 from her late mother’s estate in the near future. It appeared that the income from her pension was generally sufficient to cover all her living expenses.
27. Since she had moved to Launceston the Public Trustee had been working with Ms Campbell to try and give MNN more autonomy with the management of her funds. The strategies that had been put in place had made good progress over the 6-month period and MNN was now successfully managing the majority of her pension and paying a good proportion of her day to day expenses.
28. MNN expressed a strong desire to utilise as much of her capital funds as necessary to provide a headstone and grave for her late mother. She said she felt she had an obligation to her mother to do this and her other family members seemed unprepared to contribute, so she was happy to bear all the cost herself. Whilst this was likely to use a significant proportion of MNN’s capital sum the Board accepted that this was MNN’s wish and a reasonable thing for her to fund.
29. The Board formed the view that there still existed a need for an administrator to protect MNN from the possibility of financial exploitation. It did however feel that MNN’s management of her pension and day to day finances had progressed to the stage where it was appropriate to try a less restrictive option for the management of these funds. It also noted that the expenditure on her mother’s grave and headstone would have not been possible under the existing order, so felt it necessary to vary the terms of the existing order.
30. The variations to the order allow the administrator to fund MNN’s mother’s grave and headstone, and also give MNN complete control over her pension and day to day expenditure. There was no variation to the expiry date of the order.
The Board’s Decision
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 their estate, and
is in need of an administrator;
THE BOARD ORDERS
That the Public Trustee continue as the represented person’s administrator.
Subject to Clause 3 below the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
The represented person is to be responsible for that part of her estate consisting of her pension entitlement including any matters relating to the review, management or expenditure of such pension.
The Administrator is authorised to spend as much of the represented person’s estate as necessary on provision of headstone and grave for the represented persons mother’s gravesite.
That the order remains in effect to 5th January 2018.
The Guardianship order is to lapse.
RODNEY LESTER
MEMBER
Date of Decision
6th January 2017
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