NLM (Guardianship and Administration)
[2012] TASGAB 20
•19 July 2012
GUARDIANSHIP & ADMINISTRATION BOARD
BURNIE
NLM on the application of GM for an Administration Order and a Guardianship Order
Neutral citation: NLM (Guardianship and Administration) [2012] TASGAB 20
REASONS FOR DECISION
Leon Peck (Chair)
Date of Hearing: 19th July 2012
Guardianship and administration – disability and incapacity – need for an administrator to accept inheritance on person’s behalf – person unable to care for self but rejecting health care and accommodation options – need for a guardian to make decisions in her best interests – eligibility of person’s brother to act when their parents’ estate had not been finalised
Guardianship and Administration Act, 1995 s. 3, 20,
Background:
NLM is a 64 year old woman, currently residing in XXXX Aged Care Facility.
Following the death of her mother, in September 2011, NLM continued to live alone in the family home. On January 29th 2012, NLM was admitted to Spencer Clinic suffering from paranoia, confusion and physical neglect. Upon discharge on 18th March 2012, NLM returned to the family home to live independently. She was assisted by Meals on Wheels, Home Care and was assigned a Case Manager from the Older Persons Mental Health Unit. NLM was prescribed Fluphenazine Decanoate, 50 mg fortnightly.
3.NLM soon developed Parkinsonian side effects from the Fluphenazine which did not respond to the side-effect drugs or dosage reduction.
NLM's ability to care for herself subsequently declined to a situation where she was found by her carers lying in urine sodden sheets. Following diagnosis that NLM was grossly ataxic and Parkinsonian she was admitted to the medical unit at the North West Regional Hospital. Following further diagnosis, it was found that NLM had also suffered a cerebellar infarct.
After four weeks in the acute facility a formal assessment was undertaken by Dr Malcolm Liddell, Consultant Psychiatrist with the Older Persons Mental Health Service – North West. Dr Liddell found that NLM was unable to walk or transfer herself from her bed to a commode and concluded that she would be unable to manage at home. As a result NLM was placed at XXXX.
GM, her brother, subsequently lodged an application for appointment as an administrator and guardian in documentation dated the 24th May 2012. The hearing was conducted at the Burnie Municipal Chambers on the 19th July, 2012 at 10.45am.
In attendance were:
NLM- Proposed Represented Person
GM- Applicant
BM- NLM’s Sister-in-law
Mr Jim Paterson - Advocacy Tasmania (representing NLM)
Mr Sasha Wong - Solicitor (representing NLM)
NC- Friend of NLM
TN - Nurse, XXXX
Ms Subha Perumal - Case Manager, Older Persons Mental Health Unit – North West
Dr Malcolm Liddell - Consultant Psychiatrist, Older Persons Mental Health Unit – North West
Ms Kylie Hillier - Office of Public Guardian
Ms Helen Johnstone - Office of Public Trustee
When introducing the hearing, the Board explained that it had to be established that the proposed represented person suffered a disability that makes her incapable of making reasonable judgements and decisions in relation to the management of her estate (Administration) and to any matters relating to her person or circumstances (Guardianship). In addition the Board has to be convinced that there was the need for both an administration order and a guardianship order and finally had to be convinced of the appropriateness and suitability of the proposed administrator and guardian.
Is NLM a person with a disability?
A health care professional report from Dr David Russell, North West Regional Hospital dated the 8th June 2012, stated NLM suffered from schizophrenia, a disability he considered had been evident for in excess of ten years with a prognosis that, “she will continue to decline functionally”.
Dr Malcolm Liddell, in a report dated 4th July 2012, stated that during NLM's six week admission to Spencer Clinic, during early 2012, she had been diagnosed as suffering from schizophrenia which was consistent with previous diagnoses. Following the adverse reaction to medication and the suffering of a stroke, NLM had been admitted to the North West Regional Hospital and subsequently transferred to XXXX.
As discussed below, Dr Liddell also considered that she has significant cognitive impairment and dementia. It was also reported an ACAT assessment had been undertaken granting NLM High Care permanent approval.
The Board concluded that the proposed represented person had a disability, as interpreted in Part 1, Section 3 (1) of the Guardianship and Administration Act, 1995.
Does NLM lack capacity to make reasonable judgments?
Dr Malcolm Liddell, in his report dated 4th July 2012, stated;
“ he had reviewed NLM on the medical ward (February 2012) and formed the opinion that she did not have the capacity to make decisions regarding her welfare because she had almost no insight into her condition and need for care”.
Dr Liddell also stated;
“ … at the time of review she was unable to walk or transfer herself from her bed to a commode, yet thought that she would be able to manage at home”.
However, Dr Liddell, following further examination on 3rd July 2012 stated;
“... her mobility has improved greatly and she is now able to walk and the hyper salivation and swallowing difficulties are slowly resolving. Her gait and movements are still very Parkinsonian, but I anticipate further improvements in time”.
However in conclusion Dr Liddell stated:
“.... NLM lacks the capacity to make decisions regarding her need for future care and also lacks the capacity to manage her financial affairs. The bases of these assertions are basically two fold; first, lack of insight; second the presence of significant cognitive impairment in the context of dementia”.
Observations of the staff at XXXX were also reported. They included the need to provide NLM with continual prompts to accomplish the basic activities of daily living, and she has no inclination to interact with other residents and the failure to initiate activities.
Dr David Russell in the Health Care Professional Report dated 8th June 2012, stated of NLM:
“Patient does not have capacity to make safe and informed medical decisions regarding medical treatment or accommodation”.
“Due to her functional decline and inability to self-care she is at significant risk to herself”.
“Lacks insight into impact of disabilities on life”.
“Easily manipulated and at risk”.
Ms Subha Perumal, Case Manager, Older Peoples Mental Health Unit, provided a brief clinical history of the proposed represented person disclosing psychiatric issues since NLM was 22 years of age. Ms Perumal considered that there had been an improvement in NLM's abilities since discharge from the North West Regional Hospital but concluded that she lacked insight into her condition, lacked the capacity to live independently and the ability to manage her financial affairs.
GM stated that NLM had not been coping with independent living. He indicated that the proposed represented person would only have “proper” meals when delivered by Meals on Wheels. He advised that NLM's personal hygiene and the cleanliness of the house was very poor. GM also advised that his sister was getting increasingly anxious about managing her finances and paying bills, the result of his subsequent support and assistance and a reason for the lodgement of the application. GM also cited examples of his sister carrying large amounts of cash in public.
NC provided the Board with a somewhat different scenario advising that she considered NLM to be capable of managing her own finances and capable with appropriate support of independent living.
Mr Wong and Mr Paterson, in representing and advocating NLM, clearly expressed the desires of their client. They stated that NLM was unhappy with her accommodation and wished to leave XXXX and return to independent living. They provided evidence that this was an achievable option with the appropriate support. Evidence was provided by them that indicated that NLM was capable of managing her bills and day to day finances.
The evidence in relation to NLM’s decision-making capacity was conflicting. The Board accepted the evidence that the proposed represented person suffered a psychiatric illness for most of her adult life but that she had previously coped with the support of her mother. However with the death of her mother, in September 2011, and her subsequent cerebellar infarct, NLM's ability to cope had been seriously impaired. The Board accepted the evidence that NLM's capacity to make reasonable judgements in relation to her estate and wellbeing had improved since admission to XXXX. The Board also concluded that there was the possibility that NLM's condition and associated abilities may further improve. However, at the time of the hearing the Board believed the proposed represented person lacked the ability to make reasonable judgements in relation to her estate, wellbeing and welfare.
The Board concluded that NLM, as the result of the disability lacked the capacity to make reasonable judgements in matters relating to her estate as per Part 7, Section 51 (1) of the Guardianship and Administration Act, 1995.
The Board also concluded NLM lacked the capacity to make reasonable judgements in respect of matters relating to her person or circumstances as per Part 4, Section 21 (1) of the Guardianship and Administration Act, 1995.
Is NLM in need of an administrator?
Evidence presented to the Board included;
·NLM was vulnerable and subject to the influence of others
·the estate of NLM's deceased mother was still to be settled
·NLM would be a significant beneficiary of the estate
·the proposed represented person's bank accounts had more than $127,000 deposited
·NLM was known to have carried large amounts of cash for no apparent reason
·the ownership of a motor vehicle (of limited worth) and personal possessions to the value of approximately $5,000
·NLM was the recipient of a Centrelink pension
·the payment of Nursing Home fees
·an entitlement of GM, if claimed, for reimbursement of accounts paid on behalf of his sister
The Board concluded that these factors were sufficient to justify a need for an administrator and that it would be in NLM's best interests to establish a full administration order.
Is NLM in need of a guardian?
NLM’s inability, at the time of the hearing, to live independently and appropriately care for herself was accepted by the Board. However, NLM was clearly dissatisfied with her accommodation at XXXX. The Board considered this concern warranted assessment.
NLM also has a history of non-compliance in the taking of prescribed medication. Within this report the Board has made reference to the recent adverse reaction to medication and the stroke which has resulted in a need for appropriate case management and care.
The Board therefore concluded that NLM is in need of a guardian, and it was in NLM's best interests for there to be a guardianship order. However the least restrictive option was to limit the order to decisions about her accommodation and health care.
Who should be appointed as guardian and administrator?
The applicant, GM, proposed that he be appointed the administrator and the guardian for NLM.
The Board considered GM to be a credible individual and a person of integrity. It had no doubt that he would act in the best interests of his sister. However the Board considered there to be other factors that warranted consideration;
·There was conflicting evidence on whether NLM did or did not want her brother to make decisions on her behalf.
·The Board was conscious and gave credence to the impact that a close relative making decisions on behalf of a represented person can have on the dynamics and relationship with that person. GM considered the relationship with his sister to be important and acknowledged at the hearing that an independent appointment may therefore have merit.
·The Board also considered the difficulties that may be experienced with an administrator and guardian living interstate. The ability to monitor regularly and be immediately available has benefits which GM, during the hearing, acknowledged to be a factor that warranted consideration.
·With the estate still to be finalised, following the death of their mother, the Board considered total transparency in relation to the actions, activities and subsequent entitlements of the siblings warranted independence.
·Significant discussion was held during the hearing about the role that the applicant would have as person responsible. However on balance with a “person responsible” being unable to determine accommodation issues and the dynamics of NLM's current health care requirements an independent appointment, at this time, was considered appropriate.
The Board therefore concluded that the appointment of the independent offices of Public Guardian and Public Trustee as appropriate.
The Board limited the orders to 12 months, for the following reasons;
·Evidence was that NLM's capacity may continue to improve.
·That the matters of the estate and the potential sale of the house may well be addressed during that period providing a different set of needs for consideration at the end of the 12 months
·NLM’s accommodation will have been addressed, and hopefully her healthcare will have stabilised, leaving the option for a person responsible a less restrictive alternative to be adopted.
CONCLUSION:
After hearing an application by GM for the appointment of a guardian and an administrator in respect of NLM (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 a guardian and an administrator;
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 and 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.
That the order remains in effect to 18 July 2013.
Leon Peck
Chairman
Reasons Delivered: 20th August 2012
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