MX - Application by Mental Health Services for appointment of an emergency administrator
[2013] TASGAB 12
•12 June 2013, 17 June 2013 and 15 July 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
MX - Application by Mental Health Services for appointment of an emergency administrator
MX (Emergency Administration) [2013] TASGAB 12
REASONS FOR DECISION
Anita Smith (President)
Date of decisions: 12 June 2013, 17 June 2013 and 15 July 2013
Emergency orders – administration – concern by elderly man that his wife was seeking to control his estate against his wishes – circumstances of urgency and grounds for making an administration order
Guardianship and Administration Act 1995 s. 65
MX is an 89 year old married man and father. He first came to the attention of the Board on 12 June 2013 when a social worker from the Royal Hobart Hospital (RHH) applied for the appointment of an emergency guardian pursuant to section 65 of the Guardianship and Administration Act 1995.
Section 65 of the Act states (in part):
“65(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a) the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; …
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
(5) An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.”
In accordance with the process and principles set out in the Board’s published policy Detention of people with dementia in secure facilities in State care in Tasmania the RHH had applied for the appointment of a guardian to regularise a decision to transfer MX to the Jasmine Unit of the Roy Fagan Centre, a secure aged care facility operated by the Department of Health and Human Services.
That application was accompanied by a report by Dr. Omar Izzetin, a Registrar in the Older Person’s Unit at the RHH. He noted that MX required such a transfer for:
“ongoing clinical management of Alzheimer’s dementia on a background of aggression, paranoia and family stresses. The patient is agreeable to further clinical care, and does not want to go home, currently. His wife is caring for their dying son/stepson, QX, at home. There has been significant family conflict, over the last 3 months, concurrent with escalating aggression, paranoia and some physical threats. MX was brought to the hospital by Police. There is the expectation that the patient may discharge home, if the stresses and behaviours of concern are manageable”
The application by the RHH social worker repeated similar themes and noted in response to the question “How does the person’s disability affect his or her ability to make reasonable judgments?”
“Confusion, paranoia, aggression, physical threats to wife on a background of family trauma (step-son is currently being cared for at home in terminal palliative care). … Dr. Alison Cleary, Geriatrician has noted that MX has: “Impaired cognition and capacity to determine alternative care and accommodation. Needs a period of assessment and social work support to facilitate accommodation plan with wife.”
The Board made the emergency guardianship order on the day the application was received. The order was limited to decisions concerning where the represented person is to live temporarily or permanently.
Five days later on the 17 June 2013, the Board received a further application from Old Age Psychiatrist, Dr. Martin Morrissey seeking the emergency appointment of an administrator. His application noted that MX has a cognitive impairment presumed secondary to cerebrovascular disease and made the following statement about his capacity to make reasonable judgments:
“I do not believe that MX is currently able to ascertain the nature of making an EPOA [enduring power of attorney] and because of his cognitive impairment and possible paranoid ideation, he cannot make informed decisions.
Dr. Morrissey’s application also states:
“During his hospitalization MX has repeatedly expressed the view that he does not want his wife to manage his financial affairs for fear she will spend his money thus leaving nothing to be passed to his children from his first marriage. Today QN was very eager to take MX to the bank and to a solicitor to sort out his finances. He is of the mistaken belief that his bank wants to hold EPOA. He is concerned that QN will “end up in control” of his finances. I believe that MX is very vulnerable to coercion by QN to make financial decisions he does not want to. He currently has a poor understanding of the EPOA process.
…
“QN appears very eager to take MX to a solicitor to sign documents in relation to finances/EPOA. There are widely conflicting views between MX, his own children, QN and her daughter regarding allegations of financial risk. Until these matters can be clarified, I believe MX is at risk of financial harm.”Dr. Morrissey also noted that MX was “very happy” with the proposed order. The Board’s investigator telephoned Dr. Morrissey to discuss the application. She ascertained that the value of MX’s estate was at least $100,000.00 which meant there were significant assets at risk if the fears of ‘control’ were realised. He also indicated that the appointment with a solicitor was that day. On the basis of the above information, the Board made an emergency administration order for 28 days on the day the application was received. The nature of section 65 of the Act is that only the Public Trustee can be appointed under an emergency order, accordingly they assumed management of his estate at that point.
On 4 July 2013, presumably in anticipation that an application for a continuing order would be made, the Board received a full Health Care Professional Report from Dr. Morrissey. In that report he repeated opinions set out in the emergency application but noted more detail with respect to deficits in MX’s ability to make decisions about his estate. He noted that MX’s dementia (possibly vascular dementia) had been evident for 1 year and that his prognosis was “likely further decline with some fluctuations (delirium)”.
On 8 July 2013, the Board received a report from the Public Guardian with respect to the period of emergency guardianship. That report repeated the involvement of QN in seeking access to MX’s bank accounts and attempting to “take him to the lawyers”. The Public Guardian noted that MX had “improved dramatically at [the Roy Fagan Centre], although he retains a degree of vulnerability and impairment according to Dr. Morrissey”. She proceeded to make some assertions about Dr. Morrissey’s opinion about MX’s mental capacity which are at odds with the report the Board received directly from Dr. Morrissey four days before. She detailed some negotiations that she had conducted to resolve some of the family tensions noted in the application. She noted that, after transfer back to RHH following a fall, MX was discharged home on 1 July 2013. Because he had been discharged and was no longer in a secure facility, the Public Guardian did not seek extension of the emergency order as the question about where he should live temporarily or permanently no longer attracted the concerns set out in the original application.
On 9 July 2013, the Board received an email from Edward Kempa, Client Account Manager at the Public Trustee, who noted some discussions between himself, SX, BX (MX’s sons) and Lee Perry (Compliance Officer at the Board) about whether or not a person should make an application for a long term administration order, or whether MX’s finances could be managed on an informal basis by his family. He reported that BX “… said that in order to allow things to settle he requested that the Emergency Order be extended beyond the final date for another 28 days. This would enable the family to get a better assessment as to how things are going and hence decide whether or not to seek a full order.”
On 11 July 2013, the Board received a report from the Public Trustee that detailed deliberations within MX’s family about who would control his finances. The Public Trustee sought an extension of the emergency administration order for another 28 days to “allow things to settle and to review the matter and see if it is was (sic) necessary to make application for a full order.” And “to allow things to settle and to see how MX responds following his bout of hospitalisation.”
Taking into account that above series of reports, applications and discussions, the Board considered it proper to make an order, by reason of urgency (being the ongoing risk of being influenced against his will by his wife to make financial decisions contrary to his best interests and his wishes) and that there may be ongoing grounds for making an administration order. Accordingly, before the administration order expired on 15 July 2013, the emergency administration order was extended for a further 28 days.
Anita Smith
PRESIDENT
Reasons delivered: 17 July 2013
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