SHD – Application for the appointment of an administrator by CDD

[2015] TASGAB 14

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

SHD – Application for the appointment of an administrator by CDD

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 4 September 2015

Guardianship and administration – proposed represented person denying that his dependence on alcohol poses risks to his ability to live independently.

Guardianship and Administration Act 1995 – s. 6, 20, 21, 51 and 54

1. SHD, the proposed represented person, is a 70 year old man[1] who is resident at an Aged Care Facility known as XXXX.   He was the subject of an emergency administration order made on 17 July 2015, which was renewed on 14 August 2015.  His daughter CDD, the applicant, made an application for appointment of a guardian and an administrator for him on 21 July 2015.  The circumstances of the application were that the proposed represented person’s residence in the facility is jeopardised because his consumption of alcohol outside of the facility has led to certain incidents which cause concern about risks to himself and other residents of that facility. 

The tests for appointment of a guardian and an administrator:

[1] The applicant noted his birthdate as 1945 but medical reports refer to it as 1943

1. When the Board assesses an application for the appointment of a guardian and an administrator, it needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act), that the proposed represented person:

   a)   is a person with a disability, and

   b)   is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, or in respect of matters relating to all or any part of his estate

   c)   is in need of a guardian and an administrator.

2. The Board must also observe the principles set out in section 6 of the Act, which state: “A function or power conferred, or duty imposed, by this Act is to be performed so that (a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and (c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”

The hearing of the Application:

1. After an investigation by the Board’s investigator, the application was heard on 4 September 2015 in Hobart.  The following persons attended the hearing:

   SHD (by telephone from XXXX)
   CDD – applicant
   UR – represented person’s sister
   Liz Love – GAB Investigator

   David Symonds – Representative of the Public Trustee

Is SHD a person with a disability? Sections 20(1)(a) and 51(1)(a):

1. The Board was in receipt of two reports. The first from Dr. Katharina Nagel of the Older Persons Mental Health Service noted that the represented person has “clear executive dysfunction, a sign of frontal lobe impairment.”  She attributed this to “decades of alcohol abuse and also encephalitis in 2000 [which] have caused damage to his brain, in particular to the areas responsible for judgment, planning and reasoning.”

2. The second report by Dr. Boniface Ochayi also noted that the represented person has an acquired brain injury from encephalitis, dementia and alcohol abuse.  

3. The represented person agreed that he had encephalitis and that it damaged his brain stem.  He noted that the opinions came from doctors and he was only a patient, but he disagreed with the diagnosis of dementia and disagreed that the conditions had any impact on his mental functioning.  No other persons at the hearing disputed the medical reports.

4. The Board is satisfied on the basis of the medical reports that the proposed represented person is a person with a disability. 

Is SHD unable to make reasonable decisions in relation to his person and circumstances and his estate? Sections 20(1)(b) and 51(1)(b):

1. Dr. Nagel reported that the proposed represented person:

   “… is very concrete in his thinking and lacks insight into the immediate and long-term effects and consequences of his alcohol consumption. He is also unable to understand and weigh potential risks to others.  He minimises problems that have occurred recently and in the past and he is unable to provide a reasonable alternative for accommodation and has unrealistic expectations of the future and his abilities to look after himself. … I believe SHD lacks capacity to make decisions about his finances, in particular he is unable to make a reasonable decision [about] how much alcohol to buy and that it would be in his best interests to reduce consumption.”

2. Dr. Ochayi noted that the proposed represented person lacks insight into his actions and is unable to understand the implication of his decisions and the potential risks to others, noting that he minimises problems.  Dr. Ochayi reports that the proposed represented person has very poor judgment in relation to management of day to day financial requirements and no capacity to make more major decisions.  Further Dr. Ochayi reported that the proposed represented person appreciates that he is living in aged care but he has no insight into the implications of living outside the residential care environment. 

3. The proposed represented person responded that he has had difficulties with alcohol in the past.  This arose because of some unfortunate life events, such as contracting encephalitis, the loss of his job and his divorce.  He also noted that he has always been a member of sports clubs and the consumption of alcohol is an important part of socialising as a member.  He stated that he has been sober for some months and that he will not consume to excess in the future.  He did not countenance any suggestion of a loss of capacity due to his brain injury or dementia.

4. Again, none of the other witnesses to the hearing disagreed with the contents of the medical reports.  The Board accepts the medical reports and notes that the proposed represented person’s disagreement with those reports is consistent with the lack of insight into his loss of capacity.   The Board is satisfied that by reason of his disabilities the proposed represented person is unable to make reasonable decisions about his estate and about his person and circumstances. 

Is SHD in need of an administrator? Section 51(1)(c):

1. The applicant stated:

   “SHD is unable to make reasonable and insightful decisions about his finances. He has put himself in a position where his place at XXXX is in jeopardy.  SHD is looking at being evicted because of his inability to control his negative behaviour which is supported through his finances.”

   She also noted that until recently she had held an enduring power of attorney for him, which he had revoked.  When she was attorney, she states she was effective ‘to some extent’ in maintaining his wellbeing.  She noted that trying to reason with him was not effective in preventing his negative behaviours.  Essentially her argument is that the proposed represented person is in need of an administrator because direct access to his money leads to excess alcohol consumption and poor behaviour, which is jeopardising his residential support from XXXX.  He receives a combined aged pension and superannuation which managed through Bull Financial Group in Bundaberg. 

2. The proposed represented person admitted that there have been incidents at XXXX, but believed that these will not recur as he has learned his lesson.   He objected strongly to the idea that anyone, especially his daughter, should control his access to funds.  He disagreed with any need for an enduring power of attorney or an administrator. 

3. Given that the proposed represented person is not aware of the risks to himself and denies any ongoing addiction to alcohol the Board does not consider that his submissions about future sobriety and reformed behaviour negate the need for an administrator.  As this issue was being discussed at the hearing, the proposed represented person resorted to protestations that he could not be forced to have an administrator, that he would move interstate to avoid the appointment and a general denial of the authority of the Board. 

4. The Board is satisfied that less restrictive means (such as the enduring power of attorney, the use of persuasion and encouragement) have not resulted in the proposed represented person showing reduced consumption of alcohol or improved behaviour and that his accommodation and support is directly threatened as a result.  The Board is satisfied that he is in need of an administrator for three years. 

Is SHD in need of a guardian? Section 20(1)(c):

1. The circumstances in relation to the proposed represented person’s need for an administrator are relevant to his need for a guardian.  The applicant states that the proposed represented person is unable to find accommodation, cannot cook or clean or set up contracts with relevant amenities.  He would be unable to manage a well-balanced lifestyle without the support of a residential care facility.  He has experienced falls when intoxicated and this presents a significant future risk to him. 

2. The proposed represented person has stated that he will only live at XXXX until his mother dies, at which point he will move to Queensland and live in a unit.  He denies any need for residential support and considers that he can live independently. 

3. Because of his lack of insight into his care needs and the risks of living independently the Board is satisfied that the proposed represented person is in need of a guardian limited to making decisions about where he lives temporarily or permanently for three years.   The Board does not consider that the needs of the proposed represented person could be met by other means less restrictive of his freedom of decision and action.  The Board is also satisfied that the appointment of a limited guardian is in his best interests as it will ensure that decisions about his accommodation are made with a balanced understanding of his wishes, his care needs and the risks he faces.    

Who is eligible to be appointed as guardian and administrator for SHD?

1. In considering the tests in section 54(1)(d) of the Act as clarified in section 54(2)(a), the Board takes into account the proposed represented person’s wishes that if someone has to manage his finances (which he disputed) he would prefer it to be a family member rather than the Public Trustee. The Board considered that with her past experience as his enduring power of attorney and her continued willingness to be an administrator despite some animosity from her father, that the applicant was suitable and appropriately qualified to be his administrator.

2. In relation to the question of his accommodation, the Board took into account the statutory criteria of the desirability of preserving existing family relationships and noted that the appointment of a family member to determine where the proposed represented person might live (given his desire to live independently and the barriers to doing so) could be especially destructive of family relationships.  Accordingly, the Board considered that the appointment of an independent agency, being the Public Guardian, is most appropriate in these circumstances. 

Conclusion:

After hearing an application for an administration order in respect of SHD (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 his estate; and

• is in need of an administrator

THE BOARD ORDERS

1. That CDD 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 3 September 2018.

After hearing an application for a guardianship order in respect of SHD (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 her person and circumstances; and

• is in need of a 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 decisions concerning where the represented person is to live whether permanently or temporarily.

3. That the order remains in effect to 3 September 2018.

Anita Smith
PRESIDENT