S-N (No 2)(Guardianship)
[2008] TASGAB 13
•18 September 2008
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
T.O.S-N an application to review the guardianship order and an application for advice and direction
Neutral Citation: S-N (No 2)(Guardianship) [2008] TASGAB 13
REASONS FOR DECISION
Anita Smith (President)
Kim Barker (Member)
Elizabeth Dalgleish (Member)
Date of hearing: 29 August 2008
Guardianship – review of limited guardianship appointment – capacity – represented person with difficulties in securing accommodation due to alcohol abuse – represented person at risk due to plans for overseas travel
Guardianship and Administration Act 1995 – ss.21 and 67
The Board appointed the Public Guardian as guardian for T.O.S-N on 13 May 2008 to make decisions about her accommodation and the level of support that she requires in accommodation. [See S-N (No. 1) (Guardianship) [2008] TASGAB 8.] T.O.S-N applied for that order to be revoked because she does not believe that she has a disability and believes that she can live independently. After reviewing the medical evidence and the reports from the Public Guardian, the Board remained satisfied that T.O.S-N has a disability, is impaired in her decision-making abilities and is unable to live independently. Therefore the Board did not revoke the order.
The Public Guardian reported that she had some concerns during the period of guardianship that T.O.S-N may make fresh attempts to live overseas which would be contrary to her best interests. In addition to the review application, the Guardian sought advice and direction regarding her powers to prevent overseas travel. After hearing the evidence, the Board extended the guardian’s powers to prevent overseas travel.
In an application to review a guardianship order, it is necessary for the Board to review the elements set out in section 20 of the Guardianship and Administration Act 1995. The Board assesses, therefore, whether T.O.S-N is a person with a disability, whether that disability impairs her capacity to make reasonable judgments about her accommodation and need for support services, and the appropriateness of the appointment of the Public Guardian as her guardian.
The Board reviewed these issues in a hearing on 29 August 2008 which was attended by:
T.O.S-N,
U.S-N, her daughter and administrator (by phone),
Lyn Millis, her advocate,
Margaret Colville, the Deputy Public Guardian,
Sarah Booth a Social Worker from Royal Hobart Hospital,
TS from Accommodation Faciltiy
Does T.O.S-N have a disability and is she incapable of making reasonable decisions?
In particular, the Board needs to examine whether T.O.S-N has a disability that impairs her capacity to make reasonable judgments about her accommodation and support services.
When the Board made the order in May 2008, there was evidence from a number of medical practitioners to the effect that she has dementia. The Board also relied upon the following evidence from January 2007 from Dr Toby Croft, a neuropsychologist:
“Recent neuropsychological testing and the experience of allied health staff with RHH suggests that T.O.S-N is competent to handle her everyday finances but needs supervision and independent assistance for large decisions that have long–term implications given a current pattern of confabulation, poor verbal learning and unrealistic social and vocational judgment.”
And:
“I would expect T.O.S-N to struggle with: Social vocation and financial judgment of her own abilities appears poor, with consistent unrealistic (or confabulated) overestimation of skills and possibilities. Thus accurate estimations of herself suggest poor current insight and a high probability of making poor judgments to do with long term lifestyle decisions including financial and vocational initiatives. I think there is a high likelihood of failing socially, financially and occupationally without supervision and guidance.”
Dr Croft recently reviewed T.O.S-N and provided an updated report to the Board on 20 August 2008. In that report he indicated that there had been no significant changes in T.O.S-N’s abilities since his prior report. He indicated that after testing, he found T.O.S-N has an ongoing problem relating to judgment. He stated:
“T.O.S-N continues to appear over-confident about many, many aspects of her life including job prospects, prospects of social integration/acceptance and similar. She appears not to have a realistic view of how she is actually received and perceived by others and her recent history of failing to settle in any accommodation or social situation for very long before failing.”
T.O.S-N rejects any notion that she has a disability or that she experiences any impairment in decision making ability. T.O.S-N continues to assert that she can live independently, even when presented with the evidence of other persons to the contrary.
On the basis of Dr Croft’s report and the evidence presented at the hearing, the Board was satisfied that T.O.S-N continues to be a person with a disability. We were also satisfied that T.O.S-N is unable to make reasonable judgments by reason of her disability. The primary impediments in her ability to make reasonable judgments are her inflated view of her current range of abilities and her poor memory skills.
Is T.O.S-N in Need of a Guardian?
U.S-N gave evidence of a chaotic pattern of accommodation changes between states and countries prior to the appointment of a guardian for T.O.S-N. T.O.S-N indicated a range of accommodation options that she might still pursue, such as living with her mother in Queensland. However the Board accepted U.S-N’s evidence that due to past problems, these were not viable options.
Sarah Booth also gave evidence of the difficulties that had preceded T.O.S-N obtaining accommodation at a supported accommodation facility. She indicated that there were no other options available to T.O.S-N due in part to the fact that residential facilities that had provided accommodation to T.O.S-N in the past found her behaviour unacceptable and therefore will not offer accommodation to her in the future.
The Public Guardian reported that following the appointment of the guardian, T.O.S-N left the psychiatric ward of the hospital for the ‘Transitional Care Unit’. On 10 July 2008, she accepted a room at a Residential Aged Care Facility. Since moving to Residential Aged Care Facility, T.O.S-N had frequently discussed travelling interstate or overseas to pursue employment opportunities, purchased a large amount of alcohol and consumed a dangerous quantity of it before it was confiscated. T.O.S-N variously denied these issues or denied the seriousness of them.
Dr Croft indicated in the report of 20 August 2008:
“T.O.S-N appears to remain highly at risk of further alcohol abuse, social problems, accommodation instability and financial loss if allowed free-rein in decision making for herself.”
The Public Guardian’s report also noted concerns by Dr Martin Morrissey, an Old Age Psychiatrist about T.O.S-N’s access to money and alcohol, noting she would be especially at risk in traffic.
Based on all of the evidence presented in reports and at the hearing, the Board was satisfied that T.O.S-N is still in need of a guardian. T.O.S-N’s objection is to the fact of there being a guardian. The identity of the guardian was not an issue of particular concern for her. The Board received no alternative nominations for guardian. Therefore the Board dismissed the application to review the order.
What advice and direction, if any, should the Board give the guardian about restricting T.O.S-N’s overseas travel?
The guardian sought the advice and direction of the Board with respect to her ability to restrict attempts by T.O.S-N to travel overseas. The Board heard evidence about the serious risks that might face T.O.S-N if she was to travel overseas with such serious memory problems. It is clear that if T.O.S-N was able to secure a flight overseas, she could easily become disoriented and distressed. It is also evident that she could fall prey to exploitation and abuse because of her memory problems.
Further, if the guardian has decision making authority with respect to accommodation, it flows that she needs some ability to control extensive travel to be able to effect those accommodation decisions.
Therefore the Board thought it appropriate that the guardian be allowed an extension of decision-making for the purposes of limiting the use or issuing of a passport.
THE BOARD ORDERS that the application for review of guardianship is dismissed
And after hearing an Application for Advice and Direction from the Public Guardian
THE BOARD ORDERS
That Public Guardian continue as the represented person’s guardian.
2. That the powers and duties of the guardian are limited to decisions concerning:
both temporary and permanent accommodation for the represented person and
the level of support required by the represented person in such accommodation, and
the issuing or use of a passport, and overseas travel.
That a review of the order be held on or about 11 November 2009.
That this order remains in effect until the 12 May 2011.
Anita Smith Kim Barker Elizabeth Dalgleish
PRESIDENT MEMBER MEMBER
Statement of reasons delivered 18 September 2008
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