QFI (Guardianship)
[2016] TASGAB 4
•8 July 2016
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
QFI (Guardianship) [2016] TASGAB 4
REASONS FOR DECISION
Sandra Taglieri (Chairperson)
Grant Kingston (Member)
Dr Matthew Fasnacht (Member)
Hearing 8 July 2016
Guardianship – suitability for appointment – family conflict over care arrangements – conflict with the aged care provider – independence of the Public Guardian
Guardianship and Administration Act 1995 – sections 20, 21
Introduction
The Board conducted a hearing in relation to an application for appointment of a Guardian for QFI (D.O.B. XXXX). At the time of the hearing, QFI was aged 94 and was a permanent resident at XXXX (“the Home”). She suffered from advanced Dementia.
The application for appointment of a Guardian was made by KC in her capacity as the Facility Manager of the Home and sought the appointment of the Public Guardian. It was accompanied by a number of additional documents including:
i.Two additional typed pages addressing questions in the Application form;
ii.Health Care Professional Report Practitioner of Dr D McLeod dated 6 May 2016
iii.Report of Dr Dunbabin, Consultant Physician and specialist in Health for the Elderly dated 25 May 2012
iv.ACAT assessment report prepared in 2012
QFI attended the hearing, as did QS, the Director of Residential Business Services at the Home.
Interested parties, parties heard and submissions
Various persons were identified as interested parties and received notice of the hearing. ML, daughter of QFI, attended the hearing accompanied by her son, DL, EWX, QH, TC. All these persons sought to persuade the Board that ML or alternatively DL ought to be appointed as QFI’s Guardian. Both ML and DL opposed the appointment of the Public Guardian. In addition to making oral submissions at the hearing, ML and DL presented written materials in support of their positions, being:
a.A medical certificate from Dr Paul Thompson dated 16 June 2016, which stated ML’s mental and physical health was stable;
b.Lengthy email of 27 June 2016 sent 11.25 pm to the Board’s Investigator;
c.Emails to the Board’s Investigator dated 27 June 2016 and sent at 11.27 pm, 11.29 pm, 11.32 pm, 11.34 pm, and 11.35 pm forwarding communication to QS, the Director of Residential Business Services at the Home. The communication made allegations about lack of care and treatment of her QFI at the Home, had accompanying photos and also referenced a letter the Home had sent to ML dated 27 June 2016;
d.Submission dated July 3rd 2016, signed by ML;
e.Letter of 24 June 2016 from TE;
f.Letter date stamped 4 July 2016 from Ralph E Belbin APM, NM;
g.Submission dated 6 June 2016 signed by DL;
h.Letter dated 6 June 2016 from EIX, longstanding friend of QFI;
Letter dated 6 June 2016 from QH, ML’s former partner.
j.Copy letter to Susan Ley, Federal Minister for Health and Human Services, dated 9 June 2016 from ML;
k.Lengthy notes/submissions relating to alleged lack of care in relation to QFI’s eye health over 9 months and referencing treatment initiated by ML;
l.Miscellaneous copy documents relating to claimed lack of care and actions undertaken by ML in relation to the same, and actions taken by ML in regard to care of QFI.
At the time of the hearing ML was concerned that she had not yet lodged a Form 2 Application seeking alternate appointment as Guardian. She was reassured that the Board understood she sought appointment of herself or alternatively her son and that this would be considered.
QFI’s daughters, KI and HD did not attend the hearing, but made written submissions dated 27 June 2016 and 24 June 2016 respectively supporting appointment of the Public Guardian. QFI’s niece, UJ, also supported the appointment of the Public Guardian and provided submissions to that effect by email dated 27 June 2016. UJ had been informally fulfilling the role of “Person Responsible” following a prior application for appointment of a Guardian in 2012. No formal orders were made by the Board at this time, instead the application appears to have been adjourned sine die after an agreement within the family. ML claimed that UJ had ceased acting as Person responsible, but regardless of that it was clear that such informal arrangement had not been functional or satisfactory.
QFI’s son, TT provided a letter of 6 June 2016 in which he supported the appointment of ML as the Guardian.
Kim Barker, Public Guardian attended the hearing also.
All the documentary materials and the oral statements during the hearing made by ML, DL, EWX, QH, TC, QFI, QS and Kim Barker were considered by the Board.
Issue for determination
10. It was established at the commencement of the hearing, that there was no dispute about QFI suffering from advanced Dementia, which caused disability rendering her unable to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances. Further, there was consensus that she was in need of a guardian[1].
[1] Requirements of section 20 of the Guardianship and Administration Act 1995
11. The only issue for determination by the Board was whether the Public Guardian or ML or alternatively DL should be appointed as Guardian.
Consideration of Evidence and information before the Board
12. The information received by the Board in written materials and orally at the hearing demonstrated very clearly that from at least 2012, there had been disagreement amongst QFI’s family members about what decisions should be made for her about her residential living and personal circumstances, including medical treatment. Further a division had emerged within the family about who should make such decisions. Although these issues appeared to settle for a time following the earlier application for Guardianship in 2012, circumstances had again arisen to cause dispute within the family. In addition further conflict had emerged between the Home (its staff and management) and ML concerning standards of care and treatment for QFI.
13. All the documents received and statements at hearing demonstrated a serious family rift about whether QFI should remain in the Home or move into a Residential Care Facility in Snug.
14. The Home maintained it had adopted accepted standards and practices of care and relied on the advice of Dr McLeod, QFI’s GP for several years. It claims that ML has interfered with care and created difficulties which cannot be resolved, leading to it imposing restrictions on her attendance at the home to visit and spend time with her mother.
15. The evidence established and the Board accepted that ML had been and was a devoted daughter who committed significant time and effort into wanting to ensure that her mother was well cared for and enjoyed her remaining years at an acceptable standard. ML has had very strong opinions about the standard of care provided to her mother at the Home and has endeavoured to address these with the Home, but remains dissatisfied and there is apparent dysfunction in the relationship between her and the personnel at the Home. ML’s emails[2] and her statements during the hearing acknowledge the existence of the ongoing conflict, dysfunction and stress it causes for her and the Home.
[2] For example trail of emails to the Board’s Investigator dated 27 June 2016
16. During the hearing, the Board stated that it did not have power to determine if the care was inadequate or where QFI should live. The latter issue is ultimately for the Guardian to decide once appointed.
17. Given QFI’s conditions, it was not possible to personally assess her wishes about who ought to be her Guardian. However, there was some tentative evidence in a report to the Board dated 2012, in which Dr Dunbabin stated:
“She told me she didn’t have any worries or significant pain at the moment and felt that “the Home” was a good place to live. She (sic) told me that the food was good and the people were good to her and she had no strong preference for going anywhere else.”
Determination
18. The Board is not vested with powers to impose sanctions or enforce controls in relation to how QFI is cared for in the Home. Its powers are confined on an application for Guardianship to either appointing a Guardian if warranted or otherwise dismissing the application. It was not open to dismiss the application as all interested parties agreed that QFI required a Guardian and there was ample evidence satisfying the requirements for appointment contained in section 20 of the Guardianship and Administration Act 1995 (“the Act”). In such circumstances, the Board assessed whether it is in QFI’s best interests to appoint ML, DL or an independent statutory Guardian.
19. The Board considered the provisions of section 21 of the Act which addresses persons who are suitable for appointment as a Guardian. It reached the view that the history of conflict between ML and the rest of the family concerning QFI’s care arrangements warranted appointment of an independent Guardian. It was not satisfied that appointing DL would avoid the risk of ongoing conflict within the family and with the Home.
20. An independent Guardian will exercise its powers under the Act, impartially and uninfluenced by any particular personal or family interest and point of view. It will exercise the powers in the best interests of QFI and further will encourage continuing relationships and orderly visits between all family members and QFI. The independent Guardian will also be able to dispassionately assess the concerns and complaints raised by ML about the care provided at the Home and take reasonable steps if required.
21. For the above reasons the Board concluded that the Public Guardian ought to be appointed as Guardian of QFI for a 3 year period.
Conclusion
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 person and circumstances; and
is in need of a guardian;
THE BOARD ORDERS
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 1995.
5. That the order remains in effect to 7 July 2019.
DATED this 8th day of July 2016.
Sandra Taglieri
Chairperson
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