NKH on the application of Adrianne Purcell on behalf of Child Protection Services
[2013] TASGAB 5
•22 March 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
NKH on the application of Adrianne Purcell on behalf of Child Protection Services
NKH (Administration and Guardianship) [2013] TASGAB 5
REASONS FOR DECISION
Philippa Whyte (Chairman)
Sue Hill (Member)
Rowena Holder (Member)
Administration and Guardianship – multiple disabilities – need for a guardian and administrator - transition of a young person with disability from an order pursuant to the Children, Young Persons and Their Families Act 1997 to voluntary adult disability services – possible disengagement with support services – role of guardian as an advocate
Guardianship and Administration Act 1995, s. 6, 20, 21, 51, 54
The proposed represented person, NKH was born on 24 February 1994. She is diagnosed as having an intellectual disability, attention deficit disorder and attachment disorder. From the age two years until her eighteenth birthday she was under the guardianship of the Secretary of the department administering the Children, Young Persons and Their Families Act 1997 pursuant to a care and protection order made under that Act. On 16 January 2013 the Board received an application for appointment of an administrator from her child protection case manager, Adrianne Purcell, who was concerned that because of her disabilities NKH would be unable to manage her financial affairs once the care and protection order lapsed.
The hearing was held on 22 March 2013 and attended by:
· NKH (proposed represented person)
· Adrianne Purcell (child protection case manager and applicant)
· Rose Hennelly (Disability Services)
· Melisa Radford (Disability worker- Baptcare)
· BN (Brooks High School)
· NI (foster carer)
· David Symons (Public Trustee)
The following documents were provided in addition to the written application for appointment of an Administrator:
· Health Care Professional Report dated 22 January 2013 completed by Dr Chris Bailey
· Occupational Therapy Report dated February 2013 prepared by Rose Hennelly
· Psycho Educational Assessment prepared by Bernadette Smith (Psychologist) following an assessment in February 2009
· Psychological Assessment Report dated 19 January 2007 prepared by Heather Mitchem (Psychologist)
· Report prepared by Dee Cooper (Psychologist) following an assessment on 4 February 2004
· Report by Guardianship Board Investigator dated 12 March 2013
· Bank Statement MyState Financial dated 21 February 2013
Administration
Before appointing an administrator, the Board must be satisfied that the proposed represented person has a disability which results in an inability to make reasonable judgments about their estate, and that they are in need of an administrator (section 51 of the Guardianship and Administration Act 1995 (the Act)). If satisfied of each of these matters, the Board can appoint an administrator according to the criteria in section 54 of the Act.
The Board must also balance the principles in section 6 of the Act:
A function or power conferred, or duty imposed, by the 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 Christopher Bailey completed a pro forma Health Care Professional Report dated 22 January 2013 in which he identified that NKH has an intellectual disability, Attention Deficit Disorder (ADD) and Attachment Disorder. He noted that a combination of low cognitive abilities and impulsivity severely affect her ability to plan appropriately and make considered judgments. Specifically in relation to administration he noted that NKH had no real ability to plan understand causal connectors and potential ramifications of decisions; that her disability affected her ability to manage day to day financial requirements to a large degree; and that she was incapable of making major financial decisions.
Evidence from the applicant was that over the previous two years Child Protection Services had provided NKH with a relatively flexible budget and opportunities to demonstrate that she could manage her finances but she had consistently chosen to spend her money on things she wanted rather than things she needed which had resulted in non-payment of essential bills. She noted that NKH lacked planning and did not seem to have any moderation. She expressed the view that NKH was vulnerable and at risk of being advantage of financially. She gave examples of NKH giving money to her friends or spending large amounts of money, up to $20-$30 at one time, on ‘bags of lollies’.
NKH acknowledged that she did “silly stuff” with her money and that it would be good to have an administrator appointed.
Accordingly, taking into account the contents of Dr Bailey’s report, the evidence from the applicant and NKH, the Board was satisfied that she is a person with a disability which renders her incapable of making reasonable judgments about her estate and that she needs an administrator. The Board was satisfied that there are no less restrictive options and, after considering her wishes and best interests, the Board was satisfied that is appropriate to make an order appointing an administrator. The Board determined to appoint the Public Trustee as administrator.
Guardianship
10. The applicant advised that she had not made an application for guardianship at the time she made the application for administration because she had hoped that NKH would have the maturity, when she transitioned from Child Protection to Disability Services, to engage with her case worker and other support networks to make decisions that were in her best interests. She was concerned that this was not occurring and expressed the view that as a consequence NKH was putting her accommodation, health and welfare in jeopardy.
11. When the Board hears an application for the appointment of an administrator it is also empowered by section 20 of the Act to appoint a guardian if it is satisfied that the person’s disability also renders them unable to make reasonable judgements in respect of all or any matters relating to their person or circumstances and is in need of a guardian. If satisfied of these criteria, the Board must assess the eligibility of any proposed guardians according to criteria in section 21 of the Act.
12. As with the application for administration the Board must also balance the principles in section 6 of the Act. These are set out in paragraph 5 above and require the Board to take into account the persons wishes, their best interests and the least restrictive option.
13. As noted in relation to the application for administration Dr Christopher Bailey identified in his report that NKH has an intellectual disability, Attention Deficit Disorder (ADD) and Attachment Disorder. He noted that a combination of low cognitive abilities and impulsivity severely affect her ability to plan appropriately and make considered judgments. Specifically in relation to guardianship he noted that NKH can only make reasonable decisions about where she should live with guidance and can only understand the nature and effect of medical treatment to a limited degree. He noted generally in relation to both Guardianship and administration: ‘I believe that NKH would experience great difficulties and would quickly founder with the likelihood of mismanagement of her efforts leading to social and financial dysfunction’.
14. Following a psychological assessment in 2009 Bernadette Smith stated in her report that ‘the results highlight the existence of a global development delay in all areas of cognitive functioning’. She concludes that NKH’s difficulties are clearly pervasive’ and ‘affect all areas of functioning’. She refers to the importance of providing ongoing support through school and disability support services.
15. The Board is satisfied based on the information provided by Dr Bailey and Ms Bernadette Smith that NKH has disabilities which impact on her capacity to make reasonable decisions about her person and circumstances. The next question is to what extent and whether or not she needs a guardian.
16. The evidence presented by the applicant was that NKH has been the subject of care and protection order since she was two years old. Since then she has lived with various foster carers and attended a number of different schools. She has no family support and because she has now turned eighteen Child and Family Services are no longer there to support her. She explained that her case management has moved to Disability Services but despite undergoing a transition process NKH was not engaging and has not demonstrated the ability or maturity to make decisions in her best interests.
17. The applicant explained that after turning eighteen NKH had spent three weeks at Karinya Women’s shelter followed by two weeks in foster care. Arrangements had been made for her to move to St Michael’s for a four week period while undergoing a trial period with Able Australia but she had chosen instead to stay with friends – effectively couch surfing. She acknowledged NKH’s right to stay with friends but expressed the view that for her long term benefit she needed her own stable accommodation.
18. Melissa Radford from Baptcare explained that engagement with Baptcare, which is the gateway to obtaining disability accommodation and community services, was voluntary and that NKH had not been turning up to appointments and as such she was not able to progress her accommodation options and she was therefore placing the proposed arrangements with Able in jeopardy.
19. NKH advised that she intended to see housing about her accommodation requirements but had not yet done this. She commented “I am alive and that must be a good thing”. The applicant submitted that this was indicative of NKH’s lack of understanding of the difficulties she faced both in relation to the importance of obtaining stable accommodation as well as the time-lines involved for obtaining accommodation through housing and their requirements regarding ability to maintain the property.
20. The applicant reported that NKH was on medication for treatment of her ADD but that her last medication review had been with Dr Bailey in December 2012 and that she had chosen not to attend any further review and had also refused to take her medication. She indicated that when NKH was taking her medication she was much more settled and less likely ‘to go off at a tangent’. This was confirmed by NI, a former foster carer for NKH, who said it took away “the over and under reactions” and described having received distraught phone calls from NKH when she was not taking her medication.
21. The applicant also advised that as part of NKH’s transition from Child Protection Services to Disability Services arrangements had been made for her to attend Newstead College to provide her with an opportunity for learning experience and to help develop her life skills and promote her ability for independent living. She had been enrolled in subjects such as cooking and budgeting but she had slowly withdrawn on the basis that ‘I don’t have to’ and ‘you can’t make me’. NKH confirmed that she was no longer attending Newstead but was planning to make an application to the Polytechnic but had yet to get the forms.
22. Following an Activities of Daily Living assessment the conclusion reached by occupational therapist Rose Hennelly in her report dated February 2013 was that “NKH needs a stable, supportive environment to help manage the cognitive limitations she has with doing everyday tasks at home and in the community” and that she needed “ongoing support and guidance with all her daily living skills and education”. She noted that “NKH is capable of becoming more independent in a supportive calm environment where she can learn and mature”. She estimated that NKH would require approximately 4 hours of support on school days and approximately 6 hours of support on weekends and holidays.
23. She made a number of recommendations as to the areas of support needed by NKH to assist in her activities of daily living including :
- Suitable accommodation providing a caring calming environment, structured routine and clear boundaries of acceptable behaviour and expectations.
- Encouragement and support education at Newstead College.
- Encourage and support practical and fun activities to enhance NKH’s skills and interests
- Support and assist further acquisition of life skills necessary for independence and a healthy lifestyle.
24. It was apparent to the Board from the evidence presented by the applicant and other service providers, and from NKH’s responses, that she had no appreciation of the importance of obtaining stable and appropriate accommodation or the difficulties she would be likely to face in light of her disabilities and identified needs. It was also apparent to the Board that NKH had no understanding as to risks and benefits of taking her medication or not. The Board was therefore satisfied that NKH needs a guardian to make decisions for her in relation to her accommodation and health care.
25. The Board was concerned that NKH had chosen not to engage with the various services available to support her to pursue the recommendations made by Ms Hennelly. Upon attaining the age of 18 there is no compulsion for her to do this and it was clear from NKH’s responses that she wishes to assert her independence in this regard. However although the Board accepts that she was able to express her wishes it was not satisfied that she understood the implications of these decisions.
26. The Board considered therefore that there are decisions to be made as to whether NKH should pursue, or be encouraged to pursue, some form of education or vocation or access any other services available to assist her in developing skills to support her towards living independently. This will be largely dependent upon on the decisions made by her guardian in relation to her accommodation. It is not a matter for the Board to determine whether or not she should access learning opportunities but rather whether there are decisions to be made in relation to this which she does not have the ability to make.
27. The Board considered that NKH would benefit at the very least from guidance in relation to making decisions about these aspects of her life. In the absence of any family or other supports the Board believed that this would be best achieved by her engaging with her case manager and the appointment of an independent advocate. The evidence before the Board was that she was not currently engaging with support workers of her own free will. The Board considered therefore that she would be unlikely to appoint or understand the benefits of appointing an advocate and as such the Board determined that this was a matter that should be pursued by a guardian on her behalf.
28. The Board notes that a person is appointed as a guardian it is incumbent on them to act in the best interests of the person. Section 28 of the Act provides that 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
29. As to principles set out section 6 of the Act, it is clear from the decisions she has made so far in relation to her accommodation, medication and access to services that NKH would prefer to be making her own decisions. 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 her accommodation and health care; the facilitation and promotion of access to educational and vocational opportunities; and the securing of an advocate and engagement with her case manager.
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 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 whether permanently or temporarily.
decisions concerning 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.
facilitating and promoting access to education, vocational and other services.
securing the ongoing engagement of an independent advocate and case manager for the represented person to encourage her participation in the life of the community and the matters referred to in clause (iii) above.
That the guardian is to report to the Board as to progress made within 6 months.
That the order remains in effect to 21 March 2016.
Philippa Whyte Sue Hill Rowena Holder
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