SC (Guardianship and Administration)

CITATION:	SC (Guardianship and Administration) [2020] TASGAB 43
HEARING DATE(S):	4 September 2020
DATE OF ORDERS:	4 September 2020
DATE OF STATEMENT OF REASONS:	22 September 2020
BOARD:	Mr S. Roberts, (Chairing Member) Mrs K. Hambly, (Member) Ms M. Pedersen, (Member)
APPLICATION	Application for Guardianship and Administration
CATCHWORDS:	Administration; guardianship; conflict of interest; support coordinator employed by accommodation provider
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, 51
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

The proposed represented person is SC (‘the PRP’). She is aged 51 years and lives in accommodation provided by [the supported accommodation facility). Other support services are also provided by [the supported accommodation facility].
Ms Kylie Hillier of the Office of the Public Guardian made an Application for Guardianship and Administration dated 19 August 2020 (‘the Application’).
The Guardianship and Administration Board (‘the Board’) found that the PRP is in need of both a guardian and an administrator and made orders as set out at the end of this Statement of Reasons.

Hearing

The Board heard the Application on 4 September 2020. Due to COVID-19 restrictions, the hearing was held by way of a telephone conference. Those who attended by telephone were:
a.SC - the PRP;
b.Ms Kylie Hillier – Office of the Public Guardian (the Applicant);
c.Ms Jessica Watson – Public Trustee’s Office;
d.SN – the PRP’s cousin;
e.Mr SD – State Manager, Disability Services, [the supported accommodation facility]
f.Ms QS – Disability Program Business Manager, [the supported accommodation facility];
g.Ms DF – Support Coordinator, [the supported accommodation facility] and
h.Ms Felicia Chan – Advocacy Tasmania.
The Board had before it the following documents:
a.The Application dated 19 August 2020;
b.A Health Care Professional Report by Dr Leung dated 20 August 2020 (‘the HCPR’);
c.Documentation provided by the Applicant in support of the Application; and
d.A submission opposing the Application from the PRP’s cousin dated 30 August 2020.

Legislation

When the Board assesses an Application for the appointment of a guardian and an administrator it needs to be satisfied, in accordance with sections 20 and 51 of the Guardianship and Administration Act 1995 (‘the Act’), that the proposed represented person:
a.has a disability;
b.is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances, or in respect of matters relating to all or any part of her estate; and
c.is in need of a guardian and/or an administrator.
The Board must also balance the principles in section 6 of the Act, which include that:
a.the means which is the least restrictive of the PRP's freedom of decision and action as is possible in the circumstances is adopted;
b.the best interests of the PRP are promoted; and
c.the wishes of the PRP are, if possible, carried into effect.

Is the PRP a person with a disability?

The HCPR states that the PRP has an intellectual disability of unknown diagnosis and also suffers from schizophrenia. Both are moderate and static and have been evident for more than 20 years.

Is the PRP incapable of making reasonable judgements?

Dr Leung indicated that the PRP’s disabilities affect her capacity to make reasonable decisions about personal, legal and financial matters. Those opinions were not challenged by any of the participants at the hearing, nor was any other medical evidence provided to the Board.

The evidence

Ms Hillier stated that concerns had been raised by members of another person’s family that the PRP had been physically harmed in the home where she was living. She had suggested to those people that their concerns should be raised with other agencies.
Ms Hillier stated that it is generally regarded as best practice not to have all of a person’s National Disability Insurance Scheme (‘NDIS’) supports provided by the same provider. In relation to this matter she stated that [the supported accommodation facility] was providing the PRP’s accommodation, all of her support services and was the employer of her NDIS support coordinator. [the supported accommodation facility] also appeared to be managing the PRP’s money.
Ms Hillier stated that these concerns had been expressed to her by a family who knew the PRP and by a former staff member of [the supported accommodation facility]
She said that initially the PRP had expressed to her that she was scared living where she was, but more recently she had been saying that she wishes to move to the new accommodation being built by [the supported accommodation facility].
Ms Hillier expressed concern that the PRP had not had any independent advocacy support.
In the Application, Ms Hillier had submitted that the Public Guardian should be appointed for NDIS decisions, so that an independent support coordinator could follow up concerns without having a conflict of interest caused by working for [the supported accommodation facility].
Mr SD’s evidence was that the safety issues referred to by Ms Hillier had been raised with the NDIS Commission, Workplace Health & Safety and the Department of Human Services and all had concluded that there was no case to answer.
In relation to the PRP’s finances, Mr SD stated that [the supported accommodation facility] does not manage all of the PRP’s funds. They manage her pension to pay for her accommodation, power, spending money, etc. through a budget agreed between the support coordinator and the PRP’s family members. He reiterated that [the supported accommodation facility] do not have access to all of her funds.
Mr SD stated that there had been discussions with the PRP and family members about the PRP moving into other accommodation that is currently being built by [the supported accommodation facility], and an informal agreement has been reached that she will move into that new accommodation with another party when the building becomes available in November. He said that the PRP is happy to stay where she is until then.
The question of a conflict of interest was raised with Mr SD and it was his view that a conflict of interest did not exist. He stated that steps had been taken to ensure that the support coordinator was at arm’s-length because she had moved off-site to a building in the community. He stated that the support coordinator had been working with the PRP and her family in the decision-making process.
Mr SD was asked about material in the papers before the Board that suggested that some of the PRP’s money had been used to purchase a trailer jointly with another resident, and that the trailer had been used by [the supported accommodation facility] employee and then sold to that employee when he left [the supported accommodation facility]. Mr SD confirmed that a trailer had been purchased about four years ago using funds from the PRP and another resident, and when it was sold to the employee, funds had been returned to the PRP and that other resident. He stated he could not comment further because it was before his time with [the supported accommodation facility] but that it is not a currently agreed process and it is not something that [the supported accommodation facility] condones.
As financial matters had been raised, Mr SD was asked to comment upon the Application to appoint the Public Trustee as the PRP’s administrator. He said that he did not believe that there was a need for such an appointment because [the supported accommodation facility] have a budget that is approved by the PRP and relevant stakeholders (including the PRP’s family).
Ms Watson enquired about the reference in the papers to an inheritance by the PRP and asked who manages that. It then became clear that not all participants had received the submission by the PRP’s cousin, SN, so with her permission it was read into the record. In relation to the PRP’s finances, that submission states in part as follows:
[The PRP] does not have any ownership of property and the statement regarding this is totally incorrect.
[Her] inheritance, which is not large, but kept in trust by the family for any necessary future care and is managed by her family including myself and has no relevance to this application and I feel this is an invasion of privacy for it to be noted on the application.
The submission concludes:
In summary, I feel that [the PRP] is able to make decisions for herself, with support co-ordinators, carers and family counsel. Therefore I wish to appeal against this application and represent [the PRP] and her family who are in agreement that this application should not proceed.
SN was asked about the management of the PRP’s finances and she informed the Board that, in addition to the pension which had already been spoken about by Mr SD, the PRP had a ‘small inheritance’ from her grandfather that was managed and accessed by herself and the PRP’s sister (N). She stated that those funds were specifically set aside for the PRP’s future care in a Term Deposit and that she and N are the signatories to that account. When she was asked about the balance of that Term Deposit, she told the Board that it was approximately $30,000. She said it had been approximately $10,000 when it was left by the PRP’s grandfather about 25 years ago. Initially, it had been invested by an accountant and managed in a trust by the PRP’s father and two uncles, but it is now managed by herself and N in the Term Deposit in the PRP’s name.
The PRP’s cousin also stated that there was ‘another small amount of money’ in a different Term Deposit account but she did not know how much was in that account and N is the only signatory to it.
It was the evidence of SN that the original funds in both Term Deposit accounts came from the PRP’s share of a sum of money left by the PRP’s grandfather to all his grandchildren (including herself and N).
SN stated that the family home that N now owns was left to her by her mother and ‘no part of it was left to [the PRP]’. She explained that N had always lived in the family home prior to her parents passing away.
When Ms Watson enquired whether any consideration had been given to a possible claim against the estate under the Testators Family Maintenance Act 1912, SN replied that N had cared for her parents in the family home and the PRP had been in care at St Michaels and was ‘already set up there’. Later in the hearing, the PRP informed the Board that her father passed away in 2000, and her mother passed away in 2009.
SN was asked whether she had been consulted in relation to the purchase of the trailer as referred to above. She said that she had been informed ‘after the deal had been done and the money returned to [the PRP] and the other party.’ When she was asked how she felt about that, she said: ‘I don’t think it was wise or good practice. I feel it was just a one-off incident that now has been resolved.’ She said that she had been taking a more active role in relation to the PRP’s welfare and interests since that happened, and she is ‘party to a lot of decisions made about [the PRP’s] money at the home.’
SN stated that the PRP makes her own decisions about how she spends her allowance from her pension (which she thought was $50 per week).
When she was asked what circumstances might trigger a withdrawal from the PRP’s inherited funds, SN gave examples of a possible need for nursing care if she was no longer independent, and possible furniture requirements for the PRP in her new accommodation.
The PRP’s advocate (Ms Chan) said that the PRP does not want a guardian or an administrator appointed. She has been with [the supported accommodation facility] for 20 years and is happy with their support and services. She said that [the supported accommodation facility] manage her budget and the PRP ‘has to sign off on it as well.’
Ms QS indicated that she wanted the PRP to speak for herself, and stated that the PRP had been disturbed and distressed by a meeting with Ms Hillier.
The Board then heard from the PRP, who was present on the same telephone connection as Mr SD, Ms QS and Ms DF. She stated that she did not want a guardian or an administrator appointed and said that she is happy at [the supported accommodation facility], where she has been for 20 years. She said that she wants [the supported accommodation facility] and her cousin SN to manage her affairs.
Ms DF told the Board that the PRP had received day support services from an external support service prior to COVID-19 restrictions. When that external support service closed temporarily, [the supported accommodation facility] provided day services for her. After the external support service re-opened, the PRP had chosen to stay with the day services offered by [the supported accommodation facility] which she enjoyed much more. She was also offered the option of looking at other external services, but it was her choice to remain with the day services provided by [the supported accommodation facility].
Ms DF confirmed that she is working from different premises. She stated that, although she is ‘employed’ by [the supported accommodation facility] she ‘works’ for the PRP. She added that her being employed by [the supported accommodation facility] ‘doesn’t impact my ability to raise concerns and advocate for [the PRP]’.
Ms DF said that she had put in the referral for Advocacy Tasmania to have Ms Chan as her advocate prior to the making of the Application to the Board (and Ms Chan informed the Board that the referral had been made on 18 August 2020).
When she was asked the direct question: ‘who is your boss?’ Ms DF confirmed that it was Mr SD.
In closing, Ms Hillier submitted that a guardian is needed for decision making regarding accommodation and NDIS.

The PRP’s wishes

As stated above, the PRP stated that she did not want a guardian or an administrator appointed.

Decision

The Board was satisfied that the PRP is in need of a guardian and an administrator.
When advising those present at the hearing of the Board’s decision, the Chairing Member pointed out that the Board was not suggesting that anything improper had been done by [the supported accommodation facility] but noted the distinction between a perception or possibility of a conflict of interest and an actual conflict of interest. In this regard, the Board could understand why the NDIS Commission might be of the view that it is not best practice to have a support coordinator employed by the organisation providing significant services to the person concerned. The Board also noted that having a support coordinator working in a different building did not remove the perception of a conflict of interest.
In relation to financial matters, the Board made no criticism of the actions of the PRP’s family members, but observed that there appeared to be no clarity in relation to the current balances of the money that the PRP had inherited from her grandfather and the Board was not aware of the terms of her late mother’s will. The Board also noted that SN had not known about the ‘trailer incident’ until after the event.
The Board decided that the Public Trustee should be appointed as the PRP’s administrator for three years.
In relation to guardianship, the Board observed that the PRP had been physically harmed and, while the PRP is currently expressing a wish to move to different [the supported accommodation facility] accommodation that is still being built, that had not always been her wish.
The Board decided that the Public Guardian should be appointed as the PRP’s guardian for a period of three years in relation to accommodation and NDIS matters.
Accordingly, the Board Ordered as follows:
Guardianship

1. The Public Guardian (Tas) is appointed as limited Guardian of SC with the power to:
i.Decide where SC is to live whether permanently or temporarily.
ii.Advocate on SC’s behalf and make any decisions required in respect of any NDIS plan development, plan implementation and/or plan review.

2. This Order remains in effect until 3 September 2023

Administration
1. The Public Trustee (Tas) is appointed as Administrator of the estate of SC.
2. This Order remains in effect until 3 September 2023.

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[2020] TASGAB 43

4 September 2020