NMU (Guardianship and Administration)
[2017] TASGAB 8
•15 May 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NMU (Guardianship and Administration) [2017] TASGAB 8
REASONS FOR DECISION
Michael Stoddart (Chair)
Louise Mollross (Member)
Ged Dibley (Member)
Hearing: 27 April 2017
Guardianship – Administration - disability – need for a guardian – need for an administrator - unable to make reasonable judgment of arranging and managing his own accommodation, medication and finances
Guardianship and Administration Act 1995 s.20, 51
On 27 April 2017 the Guardianship and Administration Board Tasmania (the Board), after hearing applications under Section 20 and 51 of the Guardianship and Administration Act 1995 (the Act), made both Guardianship and Administration Orders in respect of NMU (the represented person).
NMU’s legal representative (Ms Sarah Campbell) has requested a Statement of Reasons in relation to these orders.
Section 20 of the Guardianship and Administration Act (1995) provides that a Board, after a hearing, if satisfied that the person for whom an application for an order appointing a guardian has been made
is a person with a disability
is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances
is in need of a guardian, it may make a Guardianship Order for that person.
Section 51 of the Act is cast in similar terms but dealing more with the financial dealing, and property and the making of an Administrative Order for that purpose.
In both sections the Act specifies that:
The Board may make an order subject to such conditions or restrictions the Board considers necessary.
In doing so, the Board has to consider whether the needs could be met by means less restrictive of a person’s freedom and action, and must not make an order under this provision if it is not in the best interests of that person.
‘Disability’ is defined in the Act as being “any restriction or lack (resulting from any absence, loss or abnormality of mental, physiological, anatomical structure or function of ability to perform any activity in a normal manner.”
At the Board hearing on 27 April, Ms Campbell on NMU’s behalf, challenged the applications but did not deny or dispute that the client had a disability. The resistance rests on the question of whether or not that disability was such as to adversely affect reasonable judgment of arranging and managing his own accommodation, medication, diet for his diabetes and finances, prevailed. Ms Campbell said that NMU believed he was acting in a normal and competent manner in respect of his health, finances, property and estate and that the disability did not affect his judgements or executive functions.
Documents available to the Board hearing of the 27 April 2017 were:
Orders on notes of decisions 13th January to 14 April 2017
Application for Guardianship: Ms H. McIvor Social Worker
Application for Administration: Ms H. McIvor Social Worker
Letter covering the Application dated 17th January 2017
Health Care Professional Report 1st Feb 2017: Dr M Morrissey Psychiatrist (Special interest elderly care)
Correspondence and Referral: Dr Nicklason Geriatric physician 13th January 2017
ACAT Report 2014
Letter: IH Accountant
Reports from the Office of the Public Guardian
10.Reports from the Office of the Public Trustee
11.Email from Office of the Public Guardian: Ms N Targett
12.ASIC search documents
13.Bank documents
14.Property Certificates
15.Emails: NU
16.Reports: Dr Grant Blake Clinical Psychologist
In attendance at the hearing were:
Ms Hania McIvor: Applicant
NMU
BIA: Advocate
Ms Sarah Campbell: Legal Practitioner from the Legal Aid Commission
Ms N. Targett: Office of Public Guardian
Ms F. Whitton: Office of Public Trustee
NU: wife of NMU
DWU: daughter of NMU
DKU: daughter of NMU
Dr Martin Morrissey: Psychiatrist
NMU is seventy-five years of age and was admitted to the Royal Hobart Hospital by an Elder Care Team in January 2017 with reports of impulsive and uninhibited behaviour. This was not the first instance of this type of behaviour and medical authorities were aware of NMU’s disabilities. Family members spoke of their father’s short and long term difficult conduct and his need for full care which was provided by their mother since 2012. Complaints of verbal abuse and threats of physical abuse, were raised. NMU had previous admissions to the Royal Hobart Hospital for behavioural problems.
NU spoke to the Board about the circumstances of caring for her husband over the past four years. She labelled these as “horrid,” with her husband being difficult with her, getting infections as a result of poor care, having continuing incontinence, her never knowing what he was doing, his abusive behaviour and the worsening financial situation he had left to her.
10. Verbal abuse and threats continued when NMU went into voluntary then involuntary care at the Roy Fagan Centre in 2017.
11. An ACAT assessment was made in 2014. In this record it considered NMU required help in all matters of self-care, movement, meals and maintenance. There was a history of
a cardiac stroke in 2007 and possibly repeated in 2012
vascular Parkinsons disease
cognitive change
diabetic Mellictus Type 2
ischaemic heart disease
hypertension
12. From this time, NU cared for her husband’s medical and physical needs and in financial matters. NMU agreed to this situation. The letter of the family accountant, IH, confirms that NU was the person he acted for in financial arrangements over recent years.
13. NMU was the subject of an Emergency Order made on the application of a social worker Ms McIvor based at the Royal Hobart Hospital, by the Board on 13th January and renewed on the 10th February 2017. The Applications for Guardianship and Administration were supported by the Health Care Professional Report of Dr Martin Morrissey. The Emergency Guardianship Order appointed the Public Guardian with powers limited to decisions as to where NMU was to live; to restrict NMU’s visits to family and friends should this be necessary, and a power to call upon the assistance of the Police to transport NMU to a place of residence and to keep him there using only necessary force if required.
14. NMU showed resentment at being in care. He particularly disliked being at the Roy Fagan Centre. He vigorously denied he had dementia. Nursing and medical staff noted that NMU had benefitted from being in care.
15. NMU was admitted to the secure ward of the Roy Fagan Centre on the application of Dr Frank Nicklason in January 2017. NMU had earlier been admitted to the RHH in 2015 when Dr Nicklason recorded the following diagnosis, that NMU had ‘a history of increased physical care needs, met with denial by NMU as to needs, with behavioural symptoms associated with dementia, including domestic violence and dis-inhibited and impulsive behaviour.’
16. Dr Nicklason was of a similar opinion in January this year when NMU was admitted to the Roy Fagan Centre.
17. Dr Matthew Fashnact, an old age psychiatrist at the Roy Fagan Centre, noted earlier this year that NMU would need continuing nursing-home care after he left the Roy Fagan Centre.
18. Ms Campbell, in her submissions, referred to and placed weight on the advice of Dr Rebecca Graham of the Roy Fagan Centre, given to Ms Targett of the Office of the Public Guardian, that NMU was capable of consenting to certain medication.
19. Dr Martin Morrissey, did not accept Ms Campbell’s view and reported that the patient had ability to agree to simple matters but not more complex medical decisions. He said the patient could not agree to a diabetic diet and did not understand the implications of not doing so.
20. Ms Campbell, in support of NMU’s disability being less significant, relied on a very detailed report prepared by Dr Grant Blake, a registered clinical psychologist, who had recently examined NMU in one three-hour session. He had been tasked to review the medical diagnoses referred to in the hearing. Of significance, he was not given access to all the material referred to.
21. Dr Blake agreed with the diagnosis of vascular dementia and diabetes. He was satisfied NMU has a “disability”. He did not find the dementia to be severe enough to make NMU incapable of making reasonable decisions for his welfare, health and executive function concerning his estate.
22. In his opinion NMU had only a borderline to low cognitive functioning. He did however, note that NMU had some learning disabilities (he could not correctly spell his wife’s name) and short term memory loss.
23. In the context of this discussion with Dr Blake, NMU denied having the illness of vascular dementia, depression, elevated moods and anxiety reported by ACAT and diagnosed by Dr Nicklason in 2015 and 2017. In background to the report, NMU accused his wife and daughters of driving the dementia to get control of his estate. He made claims about hidden cash reserves. He accused his wife of stealing valuable antiques. He denied he was incontinent. He asserted he had always run the family finances but never the day to day matters. He claimed he had argued with a business partner over a mortgage with Dr Topping, and that that had had some consequence in value. At one stage NMU claimed Dr Topping had said he would cover the loss to his investment, but that his partner Topping wanted NMU to accept the purchase offer. There was significant inconsistency around these statements. He denied the estate was overburdened. The Board had evidence from his wife that since 2007, she, NU was the decision maker in finances.
24. Dr Blake suggested NMU’s difficulty with finances over the past years may have been advanced by gender issues, which resulted in his wife and not he dealing with small financial issues.
25. When addressing the admission by NMU of having a secret cache of money, his unilateral attempt to sell the family home and his view of the monetary value of some antique items, Dr Blake suggested that these were examples of NMU’s sense of gender superiority and might address some underlying allegations of family discord, rather than caused by dementia.
26. NMU told the Board he could stay at his home, live with a daughter in England or buy another place to live independently. He asserted he would not accept residential care. He asserted his wife would care for him. NMU told the Board he could escape “all this” as he had access to a small plane. These assertions lacked credibility and insight into his situation, given his medical history and financial situation, neither of which he was willing to accept.
27. The report by Dr Blake was not supported by Dr Martin Morrissey who maintained that the patient had no insight into his illness, and lacked the ability for independent living and control of what there was of the family property. He noted that Dr Blake did not draw on NMU’s medical history for his opinion. Dr Morrissey remarked that NMU had shown improved behaviour at the Roy Fagan Centre because of the close supervision, medication and diet that he had been subject to in the past months. He said time experienced in actual treatment must raise a better diagnosis. He did not favour further testing.
28. It is significant to note Dr Blake cautioned those involved about giving too much weight to his findings, as he had not had a full briefing to refer to.
29. Ms Targett from the Office of the Public Guardian provided detailed account of the difficulties faced by NMU given his physical condition, his separation from his wife and family and the current state of finances. Much of the report is covered by accounts given to the Board by other professionals. Assistance with accommodation and coping with NMU’s denial of his disability were matters suggesting a Guardianship Order be made.
30. The report of the Public Trustee in response to Emergency Orders, advised that NMU had arranged a sale of the family home unilaterally. The sale did not then proceed as the Public Trustee became aware of a first and second mortgages, a caveat on the property for architect fees and debts that NMU had not revealed. Most particularly, NMU had raised debts far in excess of the agreed to $1 million dollar sale price of the family home. Reports referred to in the hearing described NMU having poor financial ability.
31. It was also revealed that NMU was, or had been, a member of the body which held the mortgage of this property. His own company, in which he and his wife were the sole shareholders partners, had been wound up. NMU receives a mixed income of approximately $870-00 a fortnight. This is the only known source of income.
32. Reports referred to NMU owning antiques and paintings valued at over $1 million dollars. NU advised that she had had some of these items valued. The value was not, however, substantial, but all were kept in storage and nothing was sold.
33. NMU asserted he had bought a half-share in a boat. At the hearing it was said this boat became the property of another company in which NMU said he had a half-share. The Trustee had no report on that. The Office of the Public Trustee reported NMU had talked of buying another property. This was a concern, given the Public Trustee’s evaluation of the family finances.
34. The Board noted that the actual state of the NMU’s finances was unknown, the evidence confusing and required further investigation.
35. Ms Campbell for NMU asked the Board to place emphasis on Dr Blake’s opinion of gender issues rather than dementia driving some of NMU’s actions; to accept that NMU could consent to medication and could return to live with his family. Dr Rebecca Graham’s comment was relied upon for this purpose She stressed NMU’s improved mobility. She advised of his successful career in antiques. She noted how NMU could recall written instructions and could have an alternative home available to him at Southern Cross Homes.
36. The Board was in a position to weigh the opinion of Dr Blake and the submissions of Ms Campbell with those of senior specialist medical practitioners. Dr Blake’s views were gathered over one three hour interview, while those of the other medical practitioners were gathered over months or years. The views of the medical specialists confirm that NMU has dementia. The Board noted Dr Blake’s comments that care should be taken with his opinion as his is not a medical report and that he lacked medical records and other background detail. The Board also had heard NMU’s own assertions during the hearing.
37. The Board had been advised that earlier NU had been prepared to take on the continued care for her husband but that was no longer possible.
38. NMU was assessed by Dr Morrissey over the three months he was in care at the Roy Fagan Centre. Dr Morrissey maintains serious concern regarding NMU’s continual denial of illness and lack of insight into the results of this. Dr Morrissey suggests that permanent residential care is needed.
39. The Board was satisfied there was significant evidence to confirm that NMU has a disability which impacts seriously on his ability to make reasonable judgements regarding the management of himself and circumstances. The disability adversely affects his ability to make reasonable judgements about his estate and affairs.
40. The Board considered there were no less restrictive means of ensuring the safety of NMU’s personal circumstances and that there was a likelihood NMU might attempt to avoid Orders.
41. 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 26 April 2020.
AND
THE BOARD ORDERS
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 shall live either temporarily or permanently;
providing consent to any reasonable measures required to convey the represented person to the place of residence as determined by the guardian; and
Pursuant to section 28 of the Act, if the guardian has reasonable grounds to believe that the represented person is likely to suffer damage to his physical, emotional or mental health or wellbeing unless immediate action is taken, the guardian and the Commissioner of Police (or his delegate) and/or the Secretary of the Department of Health and Human Services (or his delegate) may take the following measures or actions to ensure that the represented person complies with any decision of the guardian in the exercise of the powers and duties conferred by the order:
(a) facilitate transport of the represented person to the place of residence determined by the guardian;
(b) keep the represented person at the place of residence determined by the guardian from time to time;
(c) return the represented person to that place of residence should he leave it; and
(d) to use such reasonable force as is necessary to effect the guardian’s purpose.
That the order remains in effect until 26 April 2020.
Michael A Stoddart
Chair
15 May 2017
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