NKE (Review Enduring Powers and Administration)
[2018] TASGAB 4
•21 February 2021
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NKE (Review Enduring Powers and Administration) [2018] TASGAB 4
Reasons for Decision
Board: Michael Stoddart (Chair)
Kate Brown
Carolyn Wallace
Hearing Date: 22nd February 2018
Review of enduring guardianship – revocation of such following years of done inactivity – least alternative not available in circumstances – appointment guardian and administrator
Guardianship and Administration Act 1995 s34, s51
Background
NKE, the subject of both applications, is a seventy eight years old, single woman who has lived alone at her home in Hobart. NKE is presently in respite care at ‘The Gardens’ an aged care facility in Claremont. She and her late husband migrated to Australia in the 1960’s. They had two sons. NKE is estranged from her sons, and both live abroad. She has no relatives in Australia.
In 2012, NKE appointed a friend, TJ to be her enduring guardian. This appointment is valid. In an accompanying letter NKE set out how she wanted to be cared for in old age and how critical decisions around her impending death were to be governed by the Guardian. The donor specifically asked she be treated at home and never in a hospital and that she should never permit surgery. General clauses in the appointment placed general personal and property roles on the guardian if NKE became incapable.
It was Geriatrician Dr Jane Tolman’ opinion that NKE’s health began to deteriorate shortly after that appointment in 2012. An ACAT (Myagedcare) assessment recommended Level 4 care at home but NKE refused this and took no assistance other than the aged pension. Later that year and despite resistance, NKE was admitted to the Royal Hobart Hospital, for serious injuries sustained in falls and spent from September to December of 2012 in either the Royal Hobart Hospital or St Johns Hospital until taken, on the advice of Dr Jane Tolman, to The Gardens for respite care. In the past few years, Dr Tolman said NKE had become more susceptible to injury.
TJ told the Board that she was aware that NKE’s behaviour had become unsettled in recent years, that she did not pay debts and was seen to be acting irrationally around her home. NKE had called police a number of times about imagined intrusions and fires in her home. She was clearly at risk of harm and exploitation. TJ spoke of this and recorded her concerns in documentary form in February 2018.
NKE has considerable savings and investments, a funeral account and owns her own home. If placed in permanent residential aged care an arrangement to handle her property is necessary. It must also be noted that at present both her hospital and respite care expenses are not paid and the Board was told her respite care would end shortly. Problems then arose as to future care.
In December 2017, Dr Jane Tolman diagnosed NKE as suffering from progressive vascular dementia and other disabilities. Dr Smith, NKE’s General Practitioner for sixteen years, likewise diagnosed dementia.
Hospital and respite carers recorded NKE as being resistant to respite care and taking medication and has attempted to abscond from the home. She has accumulated considerable unpaid debts for her home and respite care.
Concerned about the pending problem of home based care for NKE once the respite arrangement finished, Dr Tolman and Ms Belinda Fitzpatrick, Manager of ‘The Gardens’, sought a review of the enduring guardianship instrument and made an application for administration.
The Board heard and determined the application on 22nd February 2018. The Board had the following documentary evidence available:
Application 6/1/18 from Dr Jane Tolman
Application for Review of the Enduring Guardian
Health Care Professional Report 3/1/18 Dr Jane Tolman
Report Dr Jane Tolman dated 7/2/18
Enduring Guardian Instrument dated 2/1/2012
Copy of letter from NKE to TJ dated 2012.
And Emergency Order for NKE
The following people attended the hearing on 22nd February 2018:
Ms Rosemary Jürs of the Public Trustee of Tasmania
Ms G Mohel of the Public Trustee of Tasmania
Ms Nicky Targett of the Office of the Public Guardian
TJ the Enduring Guardian and
Ms Belinda Fitzpatrick, the manager of “The Gardens” Claremont
The Represented Person NKE took no part in the Board’s Hearing as nursing staff were concerned about her ability to comprehend the process. They felt she would become very distressed because of that.
The extent of NKE’s disability
Dr Tolman, the applicant for this Review and her treating Geriatrician, submitted three comprehensive reports of NKE health. She diagnosed NKE as having progressive dementia which likely started after 2012. Dr Tolman reported NKE as suffering persistent delusions, some extreme paranoia connected to the dementia, fluctuating language difficulties and further cognitive disability resulting from subdural haematoma, the result of fall injuries. Dr Tolman said NKE was experiencing psychotic symptoms.
Dr Smith, NKE’s general practitioner, agreed with Dr Tolman’s diagnosis in December 2017 of progressive dementia as did Dr Don McLeod who has been treating her at The Gardens.
All practitioners involved with NKE were in clear agreement that she was so unwell she could not live independently and needed help for her own care and an administrator who could deal with her finances.
Respite situation
Ms Fitzpatrick spoke of NKE’s life at The Gardens and she too thought financial assistance and proper guardianship were essential. She said that NKE was difficult to deal with, resistant to taking medication and resistant to being at The Gardens. Ms Fitzpatrick spoke of staff having to find NKE when she hid in the gardens or absconded from the facility. In calmer states she was more receptive to time and place.
Ms Fitzpatrick recounted how NKE had, on several of these occasions when spoken to about her future and a likely need for guardianship and administration, strongly resisted the idea that any guardianship being vested in TJ. This assertion was also reported by Dr Tolman who said that at the hospital as a patient she was vehemently opposed to TJ being her guardian and was adamant TJ was not to have access to her affairs. Both Dr Tolman and Dr Smith had over the past two months attempted contact with TJ but this was not being successful as they got little encouragement from NKE to do this and TJ was not always available in recent months to assist NKE.
Current Guardian
TJ explained how she came to be appointed as enduring guardian and that she had never acted in the role of guardian since her appointment in 2012. She too gave a history observing NKE’s declining health, both physically and mentally, in the past few years. She spoke of how her friend had shown growing anger to friends. She was aware that NKE needed help to manage her life and that she could no longer live independently. TJ was not aware of NKE’s rejection of her role as guardian and appeared shocked to learn this. She had not seen NKE for some months as she herself had been unwell.
Impact of these disabilities on NKE
The Board determined that the represented person suffered a disability and that this made her incapable of managing her own affairs, particularly as to healthcare and accommodation, and also her financial affairs.
The Board was satisfied NKE needed the assistance of a guardian and an administrator.
Review of the appointment of Enduring Guardian
Dr Tolman’s reports, and the evidence given by Ms Fitzpatrick, satisfied the Board that there was a need for immediate guardianship and administration in this matter. NKE needed a guardian to consent to her medical treatment in care and to determine where and when she could be assisted to accept full time residential care as specified by the practitioners. She needed an administrator to settle debts, deal with an empty home and organize future management of her investments.
TJ said she was willing to remain as guardian if the Board agreed to that. TJ did concede that she was concerned that as NKE was so firmly against her help, an independent guardianship may be more appropriate.
She was in agreement that the appointment of enduring guardian be revoked.
Revocation and Appointment
The Board was satisfied it had, in these circumstances, the authority granted by Section 34(1)(b)(i) and (ii) of the Guardianship and Administration Act, to revoke the appointment of the Enduring Guardianship which had been to date ineffective and not applied. The Board was of the opinion that the evidence provided was sufficient to satisfy the provisions of Sections 20 (1) (a)(b) and (c) and 51(1)(a), (b) and (c) of the Act, to appoint instead a new guardian and an administrator for NKE.
When this was raised by the Board, Ms Targett of the Office of the Public Guardian submitted that having regard to the provisions of Section 6 (a) of the Act, it would be appropriate for TJ to be appointed as guardian as this would be the least restrictive for the represented person, having a friend in that role. This argument was persuasive. However, it was the opinion of the Board that the provisions of sub-sections (b) and (c) of that section, caution that appointments of guardianship be carried out in the best interest of the represented person and have regard to their express wishes not to involve, in this case, TJ in her affairs. These considerations were more persuasive in the circumstances where objective decisions would be required.
Conclusion
Administration
After hearing an application for an administration order in respect of NKE (hereinafter called the ‘represented person’).
The Board was satisfied that the represented person:
- is a person with a disability;
- 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 be appointed as administrator of the estate of the represented person.
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 order remains in effect until 21 February 2021.
Review of an Enduring Guardian
After hearing an application to review an Enduring Guardian Instrument dated 2 January 2012 (15402) made by NKE (hereafter “the represented person”) appointing TJ as her guardian
THE BOARD determined the enduring guardian XXXXX is revoked.
AND FURTHER 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 person and circumstances; and
- is in need of a limited guardian.
THE BOARD ORDERS
1. That the Public Guardian be appointed as the guardian of the represented person.
That the powers and duties of the guardian are limited to decisions concerning;
(i) where the represented person is to live either permanently or temporarily; and
(ii) consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment
3. That the order remains in effect to 21 February 2021.
Mike Stoddart
Chair
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