QBSM (Guardianship and Administration) - [2017] TASGAB 7

Guardianship and Administration Board
Hobart

QBSM (Guardianship and Administration) [2017] TASGAB 7

REASONS FOR DECISION

Michael Stoddart (Chair)
Grant Kingston
Juanita Westbury

Hearing 13 April 2017

Guardianship – Administration – vascular dementia – alcohol abuse – deterioration – high respite care - unable to make reasonable decisions about personal life and or manage daily financial needs
Guardianship and Administration Act 1995 s.20, 51

On 13^th April 2017, The Guardianship and Administration Board (the Board) conducted a hearing of an application by the Royal Hobart Hospital Social Worker Louella Tria, that QBSM (the represented person) aged 72, be made the subject of orders for Guardianship and Administration, pursuant to Sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act).
The Board by majority made a Guardianship Order that the Public Guardian be appointed guardian for QBSM, and that the powers and duties of the Guardian are limited to:
i)Decisions concerning where and when QBSM lives permanently or temporarily.
ii)Decisions concerning consent to any health care and treatment that is in the best interests of QBSM and refusal or withdrawal of consent to any such health care and treatment.
iii)The order of Guardianship remains in effect for six months from the date the order is made.
The Board also made the Administrative order that
i)The Public Trustee be the Administrator of the estate of QBSM.
ii)The full powers and duties of the Administrator be those conferred by Div 4 Part 7 of the Act.
iii)The Administration order have effect until 12^th April 2020.
On 13 April 2017 QBSM, a friend TX, and the Nurse Unit Manager of the Aged Care Facility (where QBSM was placed under an Emergency Order under the Act), participated via conference ‘phone. HC appeared as advocate for QBSM Ms Angela Proposch from the Office of the Public Guardian and Mr Phillip Heaton appeared on behalf of The Public Trustee and the applicant, Ms Tria, appeared in person.
Documentary Evidence before the Board included:
i)Application for Guardianship and Administration from Ms L Tria 3^rd March 2017
ii)Health Care Professional Report from Dr Alex Lees (Geriatrician) 16^th February 2017
iii)Emergency Guardianship Orders dated 17^th February 2017 and 17^th March 2017
iv)Emergency Administration Orders 9^th March 2017 and 5^th April 2017
v)Public Guardian Emergency Order Report 17^th March 2021 and 5^th April 2017.
vi)ACAT Assessment Support Plan 12^th October 2016
vii)Bank and property details of the Laurent estate.
Section 20 of the Act provides that the Board, after hearing an application for a Guardianship Order, may appoint a guardian for the represented person if satisfied that
i)The represented person has a disability
ii)That disability renders the person unable to make reasonable judgements in respect of matters to do with their person and circumstances
iii)Is in need of a guardian
The Act empowers the Board in such circumstances to make a full or limited Order when satisfied there is no less effective means to achieve the welfare of the represented person.
Section 51 of the Act empowers the Board if satisfied of a represented person having a disability that effects the person’s capacity to make reasonable judgements in respect of matters relating to their estate. The less restrictive means test also applies in this situation.
Dr Lees submitted a Health Care Professional Report as she had treated QBSM in the Royal Hobart Hospital after he was admitted for serious infections and physical injury on the 8^th February 2017. He was later admitted to the Aged Care Facility in XXXX for care.
Dr Lees diagnosed QBSM as having deteriorating vascular dementia which impacted seriously on his health and life. She attributed much of the dementia being caused by constant alcohol abuse.
The full diagnosis was of functional decline, infection of an earlier below-knee amputation, Type 2 diabetes, peripheral neuropathy, osteo-arthritis and alcohol abuse.
QBSM during his stay at the Royal Hobart Hospital had been assessed by a clinical psychologist. As a result he was reported as being well below an expected cognitive level with reduced orientation to time. He had poor planning ability, poor attention control, a reduced memory and poor self care. Dr Lees report mirrored these findings.
There were ongoing concerns of his behaviour by his local doctor, a community nurse and family. These concerns were about his ability or willingness to manage self-care, to organise a visit to a medical facility when injured in a fall, faecal incontinence and non-compliance with medication and dietary requirements.
QBSM is in care at the Aged Care Facility, but is refusing to remain there in respite care or as a permanent patient. QBSM has wished for firstly, home residence with public care, which later altered for independent living away from his home. He was reported as being a difficult patient who did not accept the need for help, or existence of a disability.
QBSM and his wife are separated. FM remains in their XXXX home (after suffering a severe stroke) with the assistance of a personal private carer. The couple had financial disagreements and disorder from QBSM’s abuse of alcohol. FM refuses to accept her husband at their home and was not prepared or able to care for him. Their relationship had been volatile. QBSM had a problem with alcohol.
QBSM had previously been assessed in October 2016 by an Aged Care Assessment Team as being in need of high respite care in residential aged care facility. If at home, he required a very high level of care at 3-4. The applicant reported that QBSM refused assistance in all aspects of personal care, an inability to manage or unawareness of, his faecal incontinence and poor management of wound care and mobility.
QBSM’s friend, TX, argued that QBSM was not severely demented, but agreed that QBSM needed support in aspects of his care. He said QBSM could have community assistance. The Nurse Manager of the Aged Care Facility did not disagree with the diagnosis of dementia but only recorded she had not seen a decline in his cognitive state while in respite care at that centre.
Dr Lees had however found that QBSM’s mental capabilities were declining due to dementia to the extent that QBSM was unable to make reasonable decisions about his personal life and real property, or manage either daily financial needs or significant decisions.
The report of the Public Guardian favoured the matters regarding QBSM’s cognitive functioning and need of residential care, and the lack of any suitable alternative care. A guardianship Order was recommended.
The report of the Public Trustee also recommended an Administrative Order. It revealed assets of a freehold home and some savings shared with his wife. It also revealed however, that QBSM (who managed the marital finances) had various credit card debts of over $9000 which well exceeded his pension income and savings. The report asserts that QBSM lacked insight into and competency to manage, his present financial situation and was in need of an Administrator. It alerted concerns over dealings with jointly owned family property.
QBSM addressed these concerns by phone and by advocate. He asserted he had no difficulty with finances. He asserted he could maintain adequate self-care. He stated his desire was for independence from his wife and home. He did not accept he had any problem with alcohol or declining cognitive functioning and abilities. QBSM’s responses were somewhat disorganized.
The Board was satisfied QBSM who, because of his disability of vascular dementia, is incapable of making reasonable decisions about his person and circumstances, and that he has an immediate need for a Guardian to assess his future accommodation his need for medication and care to promote and protect his health and wellbeing. The Public Guardian was appointed for this purpose.
After hearing an application by Louella Tria for a guardianship order in respect of QBSM (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 their person and circumstances; and
· is in need of a limited guardian.
THE BOARD ORDERS
1.That The Public Guardian be appointed as the represented person’s guardian.
2.That the powers and duties of the guardian are limited to
(i)decisions concerning where the represented person is to live either permanently or temporarily; and
(ii)that the powers and duties of the guardian are limited to decisions concerning consent to any health care and treatment that is in the best interests of the represented person and to refuse or withdraw consent to any such health care and treatment.
3.That the order remains in effect to 12 October 2017.
AND
THE BOARD ORDERS
1.That the Public Trustee be appointed as administrator of the estate of the represented person.
2.That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
3.That the order remains in effect until 12 April 2020.

Michael A Stoddart

Chair