SI application for the appointment of a guardian by XXXX

[2013] TASGAB 16

GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE

SI application for the appointment of a guardian by XXXX

Neutral citation: SI (Guardianship) [2013] TASGAB 16

REASONS FOR DECISION

Leon Peck (Chair)
Grant Kingston (Member)
Mary Davies (Member)

Date of hearing: 11 July 2013

Substitute decision maker for legal proceedings – whether supported decision making would be sufficient – litigation guardian in Family Court proceedings – relevance of Public Trustee charging fees for administration vs Public Guardian available without cost - relevance of resources of statutory agencies

Guardianship and Administration Act 1995 – s. 6, 54
United Nations Convention on the Rights of Persons with Disabilities Art. 12

Re T (Administration) [2003] TASGAB 1
GAB Policy: Litigation by Administrators and Guardians

1. On 17 June 2013 the Board received an application from XXXX for the appointment of a guardian for SI.  SI is a 42 year old woman who has engaged in Family Law proceedings since 2011.  Her solicitor applied for the appointment of a guardian because he held concerns that SI lacked capacity to give him instructions in the proceedings. 

1. When the Board receives an application for appointment of a substitute decision maker, being either a guardian or an administrator, the Board needs to be satisfied that the person to whom the application relates is a person with a disability, that by reason of the disability the person is incapable of making reasonable judgments and is in need of a substitute decision maker.  Therefore, in this case, the Board needs to examine whether SI is a person with a disability which renders her incapable of making reasonable decisions about her legal proceedings and whether she is in need of a substitute decision maker with respect to those proceedings.  If satisfied of all of those matters the Board then must consider who is the most appropriate person, or which is the most appropriate agency, to appoint as the substitute decision maker.   In considering all of the above, the Board must apply the principles in section 6: promoting the person’s freedom of decision and action as much as possible, promoting her best interests and carrying her wishes into effect if possible. 

1. A hearing was convened on 11 July 2013 to which the following persons attended:

   Sasha Wong – legal practitioner, Legal Aid Commission representing SI

   Ruth Rowlands - Advocacy Tas, representing SI

   EX – legal practitioner, applicant

   Tim Levis – legal practitioner, representing the Public Trustee (by phone)
   Mandy Lew – legal practitioner, representing the Public Trustee (by phone)
   Fiona Sullivan – client account manager, representing the Public Trustee
   Jenny Sullivan – client account manager, representing the Public Trustee

Mr. Wong informed the Board that SI was aware of but had elected not to attend the hearing.  The Public Guardian was given notice of the hearing and participated in some discussions prior to the hearing, but did not attend the hearing. 

Is SI a person with a disability and incapable of making the relevant decisions?

1. The application was accompanied by a report from Dr. Beris Konetschnik.  He indicated that SI has schizoaffective disorder and indicated that she has a chronic serious mental illness and low intellectual function.  His opinion was that SI has limited comprehension of legal proceedings and difficulty contextualizing information.  She has memory problems and has difficulty making decisions.  Dr. Konetschnik submitted an amended report noting SI’s disagreement with these aspects of her report. 

1. Ms. Rowlands stated that SI disagreed with the contents of the report and believed that, with a level of support, she could make reasonable judgments about her legal proceedings.  Mr. Wong confirmed Ms. Rowlands statement but neither submitted alternative medical evidence.  Mr. Wong suggested that with reasonable adjustments to the process of giving advice and taking instructions (such as allowing additional time to explain proceedings), SI could participate independently in legal proceedings.  

2. EX gave evidence based on examples to the Board about SI that, even with significant levels of that kind of support, SI is unable to recall that she has given instructions or changes her instructions shortly after having communicated them, including instructions on fundamental aspects of the proceedings. 

1. Noting SI’s objection to the medical report, the Board was satisfied that SI is a person with a disability and is by reason of that disability incapable of making reasonable judgments in the Family Law proceedings.  The Board announced this decision during the proceedings. 

Is SI in need of a substitute decision maker?

1. The applicant explained to the Board that the need for a substitute decision maker arose from the operation of the Family Court Rules and noted the ability of the Family Court to appoint a litigation guardian for a person who lacked understanding of the consequences of the litigation in which they are involved.  He also explained that the current proceedings relate to issues about the welfare of SI’s child and to the division of property from her relationship.  He noted that the property matter is currently adjourned awaiting trial (or settlement) but that the proceedings with respect to the welfare of SI’s child are close to settlement. 

2. Mr. Wong conceded that section 56 enabled an administrator to undertake litigation on behalf of a represented person.  Mr. Wong cited the United Nations Convention on the Rights of Persons with Disabilities and the obligation under that Convention to prefer supported decision making rather than substitute decision maker where possible.  The Board was satisfied that there is a need for a substitute decision maker to act as ‘litigation guardian’ in the Family Law proceedings and that extensive supports had been attempted already but had not resulted in SI being able to give reliable instructions in the proceedings. 

3. The Board’s published policy on Litigation by Administrators and Guardians was discussed at the hearing and it was noted that, in rough terms, generally where the basis of the litigation is financial, the appointment of an administrator is preferred, but where the litigation relates to ‘matters of the heart,’ the appointment of a guardian is more appropriate.

Which agency is to be appointed as substitute decision maker?

1. A significant issue under discussion between the parties before the hearing and during the hearing was whether the Public Trustee or the Public Guardian is the appropriate agency to appoint to the position of substitute decision maker.  The Public Trustee can only act as an administrator.  The Public Guardian can act as either a guardian or an administrator. 

1. The applicant did not express any particular preference regarding the appointment of either agency but he did note the outcome of the Board’s decision in Re T (Administration) [2003] TASGAB 1 and indicated that a similar outcome would be acceptable to him.

2. Mr. Levis indicated that with respect to Family Law proceedings, the Public Trustee is not best suited for making decisions about matters that have a strong personal element.  While he acknowledged that many administrators’ decisions have a personal aspect, he considered that the matters that a substituted decision maker would have to decide on behalf of SI would be better suited to the Public Guardian.  He also noted the evidence from Ms. Rowlands, Mr. Wong and EX suggested that assisting SI would be extremely time consuming, time for which the Public Trustee would charge fees. 

3. Mr. Levis also noted that SI has approximately $26,000.00 in savings but has $11,000.00 outstanding in legal fees.  EX roughly estimated that if not settled there would be a 1 to 2 day trial or $10,000.00 in additional costs.  EX believed that it is feasible that SI may recover a further $35,000.00 from the property settlement.  The applicant gave an undertaking that in the event that SI’s property settlement claim and her assets are less than her legal costs that he would not be looking to the Public Trustee for any burden on costs.  Mr. Levis noted that this undertaking did not cover the Public Trustee’s costs and therefore there is a possibility that if appointed as administrator, the Public Trustee would not agree to appointment as litigation guardian in the Family Court proceedings – leading to a possibility that the appointment would be futile.  Even if the appointment is not futile, the Public Trustee’s costs will have a significant impact on SI’s financial wellbeing. 

1. Mr. Wong submitted that the issue of additional costs associated with the appointment of the Public Trustee as administrator was a significant factor for consideration by the Board.  Ms. Rowlands noted that SI is very concerned about incurring legal costs and that she lives in straightened circumstances already, meaning that further or unnecessary costs will reduce her quality of life. 

2. An email from the Public Guardian to the Board on 10 July 2013 stated:

   “I agree that the GAB can make the decision to appoint us as administrator if needed but would make the submission that our office is greatly under-resourced (3.5 FTE as compared to many dozen people at TPT) and we certainly do not have any financial systems or specialist expertise (unlike the Public Trustee) to be able to make financial decisions on behalf of clients, and therefore consider that the Public Trustee is eminently more suitable, has sufficient expertise, and is better able to take on the role of making decisions as administrator.”

The Public Guardian then noted that there was no-one from her office available to attend the hearing.  This email did not seek an adjournment of the matter to enable her office to attend.   The failure of the Public Guardian to attend is a pity, as it seems the Public Guardian made her response based on the circumstances of her office and not based on SI’s circumstances.  The Board has no facility under section 54(1) to consider the resources of the potential appointees, so that submission was misguided. 

1. The Board was particularly concerned at the prospect that appointment of the Public Trustee will add another significant layer of costs to already costly legal proceedings.  Because the appointment of the Public Guardian as administrator is not subject to costs, the Board considers that appointment of the Public Guardian under a limited order represents her best interests.

Nature of the Appointment:

1. At the conclusion of the hearing the Board announced that it would appoint the Public Guardian as guardian with powers limited to giving instructions to a legal practitioner in respect of Family Law proceedings.  The Public Guardian made representations to the Board following receipt of the order, seeking amendment to appointment as an administrator similarly limited.   The Board made an amendment to the order in those terms. 

Conclusion:
After hearing an application by XXXX for a guardianship order in respect of SI (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 judgments in respect of her estate; and

•is in need of a limited administrator;

THE BOARD ORDERS

1.That the Public Guardian be appointed as the represented person’s administrator.

2.That the powers and duties of the administrator are limited to giving instructions to a legal practitioner in respect of Family Law proceedings.

3.That the order remains in effect to 10 July 2014 or until the administrator advises the Board that the court proceedings are complete, whichever is sooner.

Leon Peck
CHAIRMAN