NSG (Guardianship and Administration)
[2010] TASGAB 1
•23 February 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
NSG application for Guardianship and Administration on the application of SU, Aged Care Facility
Neutral Citation: NSG (Guardianship and Administration) [2010] TASGAB1
REASONS FOR DECISION
Sue Hill (Chair)
Leon Peck (Member)
Marguerite Lester (Member)
Guardianship and administration – application arising from concerns about neglect by carer in both health care and financial matters – hearing following emergency administration and guardianship orders
Guardianship and Administration Act 1995 (Tas), ss 19, 20, 50
The Board heard an application for guardianship pursuant to section 19 of the Guardianship and Administration Act 1995 (“the Act”) and for administration pursuant to section 50 of the Act regarding the proposed represented person, NSG. Present at the hearing at Henty House, Launceston on 15th January 2010 were TG, WD (NSG’s daughters), GN, SU, Kate Clayton (Office of the Public Guardian, per telephone) and Christine Stacey (Public Trustee).
Background
The proposed represented person, NSG, is an 85 year old woman with two daughters, TG and WD. Before the Board’s involvement, NSG and TG lived together in a unit in Northern Tasmania.
NSG had been the subject of an emergency guardianship order made on the 3rd November 2009, which was renewed on the 1st December 2009 and 6th January 2010. An emergency administration order made on the 12th November 2009 and was renewed on the 12th December 2009. Following the first emergency guardianship order, NSG became resident at an Aged Care Facility by the authority of the Public Guardian and was there as at the date of the hearing.
Evidence of Disability
Under section 20 of the Act (guardianship) and section 50 (administration), the Board must be satisfied that NSG is a person with a disability and incapable by reason of that disability of making reasonable judgments. The Board was supplied with a Health Care Professional report completed by Dr Stuart Guest as well as documents from GN and SU, both of whom are involved professionally in NSG’ care and lodged the applications under consideration. It is clear from the fairly extensive material supplied to the Board that NSG has been diagnosed with dementia, with some cognitive impairment, Type 2 diabetes, hypertension, depression and anxiety.
Dr. Guest was of the opinion that NSG’ disability led to her being unable or incapable of making decisions as to her lifestyle and her financial affairs. Once again, her professional carers supported this conclusion.
The Board members were satisfied that disability and incapacity such as might indicate the need for both guardianship and administration were established.
TG challenged the existence of any evidence of disability and incapacity. She referred to the opinion of a Dr. Mike Haybittel, but there was no reference to any such person on file. She also applied for an adjournment to obtain further medical reports. This adjournment was refused because she had not taken advantage of the ample opportunity to seek copies of relevant reports prior to the hearing during the period of emergency orders. Further the Board considered the subject matter of the application sufficiently serious as to require that the application be determined as soon as possible.
Evidence of Need for a Guardian
GN from the Older Persons Mental Health Service outlined the reasons why the initial emergency application had been made. She said that NSG had been living in a small unit with her daughter TG. The unit was sparsely furnished with two beds and one chair and that NSG appeared to spend most of her time in bed and did not leave the unit. Whilst the consequent social isolation was a cause for concern, the service was gravely concerned about her health as TG had denied the services access to NSG and had not been administering her medication correctly. NSG had lost weight and the service was concerned with her deteriorating health and general well-being. They had offered respite care, but TG refused to co-operate and was refusing them access. There were other concerns associated with hygiene, nutrition and monitoring of blood sugar, but the service had been unable to address these as TG had denied them access to her mother and refused to discuss the issues. GN added that WD had bought other furniture, which TG had sold and had helped out with shopping, but that she had ceased to be involved as she found that she could not deal with her sister any longer.
Kate Clayton, from the Office of the Public Guardian, said that she had taken two decisions under the emergency order. First, to have NSG placed in an Aged Care Facility and the second one concerning medication. She said that TG was extremely difficult to deal with and was constantly telephoning her and the Guardianship Board office. She said that TG expressed a desire to return her mother overseas but that at present NSG needed to have her health settled and stabilized, although she would not rule out such a move being sanctioned in the future if circumstances permitted. Ms. Clayton said that her dealings with staff at the Aged Care Facility indicated that NSG was very happy there, but could often become upset and agitated when TG had visited. Apparently, TG brings unnecessary food to the Aged Care Facility, gets her mother to change out of day clothes into her nightclothes, criticizes the home and is generally disruptive and upsetting. Ms. Clayton has expressed the view that TG would remove her mother from the home, were the order not in place, thereby putting her health at risk, and in addition, she feels that the order may be necessary to manage the issues arising from visits by TG.
SU, from the Aged Care Facility said that NSG had settled in very well. Her medication and blood sugar monitoring was now regular and she had been seen by Dr. Guest on a regular basis. She had commented on several occasions that her life had been saved by her moving into an Aged Care Facility. She was now mobile, getting up and dressed every day and had been on some excursions. She was eating regularly and well and in general, there had been a marked improvement in her physical well-being and her general outlook. She was concerned however at the effect on NSG of TG’s visits, after which she became distressed and also of TG’s very regular telephone calls to her mother. SU said that these matters would need careful monitoring and management and that it may be necessary to report to and seek advice from the Public Guardian.
TG was asked at this point for her views but apart from generally criticizing the Aged Care Facility as “highly substandard” said only that she wanted to return her mother back overseas.
WD told the Board that she had been involved with her mother’s care by providing transport and buying clothes and groceries. However, shortly prior to her mother going to the Aged Care Facility , she had given up as she was concerned about her mother but could not make any progress in discussing her care with TG, who she described as being not well. She had bought quite a lot of things for her mother, including furniture, but all had disappeared and she felt that TG had disposed of them. She said that at that point she was worn out.
WD said that she just wants the best for her mother and had seen a huge benefit since she has been in the Aged Care Facility. She says that her relationship with her mother is thriving and feels that her mother has a second chance at life, having gone from being confined to bed to being up and about.
TG constantly and loudly interjected throughout the evidence from WD and other witnesses. Because her behaviour was significantly disruptive of the hearing process, she was asked to leave the room after the discussion of guardianship issues, which she did. Consequently, she was not in attendance for the discussion of administration issues.
Need for an Administrator
After the emergency administration order was made, The Public Trustee expressed some concern over two sums of $1500 and $5000 being withdrawn from NSG’s account in September and October 2009.They noted a balance of about $14000 and reported that TG was attempting to access the account. The Public Trustee has put a stop on the account and has arranged to pay bills, such as pharmacy, as well as paying the initial respite account, ongoing nursing home fees and organizing for the signing of the residential agreement. The Public Trustee proposes managing NSG’s pension and bank account so that the monies are applied solely for her benefit and to ensure that she is provide with her needs and wants whilst resident in the Aged Care Facility.
Deliberation of the Board
The members first considered the issue of guardianship. Clearly, NSG has a disability –the medical evidence from Dr. Guest and supporting documentation from professional workers cites dementia, depression, anxiety and type 2 diabetes as the complaints from which she suffers. There is evidence that her illness causes short-term memory loss, confusion and mood swings and Dr. Guest advised that her condition as a whole meant that she could not make decisions in respect of her lifestyle.
The Board heard that whilst she was resident in her unit with her daughter TG, her condition was deteriorating and causing grave concern to the Older Persons Mental Health Team, who were denied access to her. It also heard of her being basically confined to bed and of TG’s neglectful attitude to blood monitoring, medication and nutrition.
In contrast, the reports of NSG’ health and well-being whilst she is in the Aged Care Facility are quite heartening and it is pleasing that her daughter WD is now able to have a relationship with her. This is tempered only by the reports of TG’s visits and telephone calls causing her distress and anxiety and her apparent attempts to “sabotage” her mother’s care by, for example, instructing her to change into nightclothes and go back to bed and also not to eat the food at the Aged Care Facility.
It is clear that the guardianship order should stay in place. The Board accepts that if it were not on foot, TG would likely remove her mother from the nursing home and that NSG would then be at risk of lapsing into ill health again. The Board also accepts the need for some form of monitoring and possible supervision of visiting if the current situation continues or even escalates.
However, the Board did note the advice of Kate Clayton that if NSG’s health issues resolved sufficiently and if it were thought feasible, that she would not rule out allowing TG to relocate her mother at some future date.
As to administration, the Board found that this was clearly advisable. From all the reports it was clear that NSG had become totally dependent on TG for day-to-day living and it is doubtful that her needs were being met. The Public Trustee implies that TG was treating her mother’s monies as her own but the unit was spartanly furnished with very few, if any, creature comforts. WD had been buying groceries and other items and had bought furniture for the unit which TG had apparently disposed of. WD also reported buying personal items for her mother, which she had not seen again and assumed that TG had appropriated them and disposed of them.
The Public Trustee will ensure that NSG’s monies are used for her benefit only. They will liaise with the Aged Care Facility and attend to her needs and wants and there should be no recurrence of the withdrawal of large lump sums as occurred in late 2009.
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 be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 19955. That the order remains in effect to 14 January 2013.
Dated this 23rd day of February 2010
…………………………….
Susan Hill
CHAIR
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