SKD (Guardianship and Administration)
[2020] TASGAB 64
•4 December 2020
CITATION: | SKD (Guardianship and Administration) [2020] TASGAB 64 |
HEARING DATE(S): | 4 December 2020 |
DATE OF ORDERS: | 4 December 2020 |
DATE OF STATEMENT OF REASONS: | 18 December 2020 |
BOARD: | Mr R Grueber, Member Ms W Hudson, Member Mr G Dibley, Member |
APPLICATION | Application for Guardianship and Administration |
CATCHWORDS: | Administration – guardianship – least restrictive – alcohol related dementia – Korsakoff’s syndrome |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 6, 20, 51, 54 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Application
By an Application filed 15 October 2020 Ms Hania McIver applied for Guardianship and Administration Orders in respect to SKD. The Application proposed the appointment of the Public Guardian as SKD’s guardian and the Public Trustee as administrator of SKD’s estate.
Hearing
The Application came on for hearing by the Board on 4 December 2020.
The following people appeared at the hearing:
·SKD (the proposed represented person)
·Ms Hania McIver (the Applicant)
·Ms Nicky Targett (Office of the Public Guardian)
·Ms Michelle Spicer (Public Trustee)
·Dr Ian Navin (psychiatry registrar, Older Persons Mental Health Service)
·Dr Jack Kingsley (resident medical officer, Roy Fagan Centre)
·Mr Ben Harris (Legal Aid Commission of Tasmania– counsel for SKD)
·Mr Brad Saunders (Advocacy Tasmania for SKD)
The Board had before it the following documents:
a)Application for Guardianship & Administration
b)Health Care Professional Report by Dr Navin, clinical psychologist, dated 15 October 2020
c)My Aged Care Assessment Summary and recommendations dated 1 August 2019
d)Bank notice of account details 21 October 2020
e)LIST Property Information Report for XXXX
f)Email from TD to Board 27 October 2020
g)Emergency Guardianship Order made 7 October 2020
h)Order adjourning application for administration made 5 November 2020
i)Interim order on adjourning application for guardianship made 5 November 2020
j)Report by the Office of the Public Guardian to the Board dated 28 October 2020 in respect to the emergency order
Legislation - Guardianship
Under section 20 of the Guardianship and Administration Act 1995 (the Act) the Board may make an order appointing a full or limited guardian in respect of SKD if it is satisfied that:
a)he is a person with a disability; and
b)he is unable by reason of that disability to make reasonable judgements in respect of all or any matters relating to his personal circumstances; and
c)he is need of a guardian.
In determining whether or not an order should be made, section 20 requires:
a)that the Board consider whether the needs of SKD could be met by other means less restrictive of his freedom of decision and action; and
b)that the Board be satisfied that an order would be in SKD’s best interests; and
c)that the Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of SKD, and if a limited order is made the order must be the least restrictive to SKD’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principals in section 6 which add that:
a) that the best interests of SKD be promoted; and
b) that the wishes of SKD are, if possible, carried into effect.
Section 21 sets out who the Board may appoint as a guardian. It was apparent from the evidence provided to the Board that the only potential appointee was the Public Guardian.
Legislation - Administration
Pursuant to section 51(1) of the Act the Board may make an order appointing an administrator in respect to SKD’s estate if it is satisfied that:
a)SKD is a person with a disability; and
b)he is unable by reason of that disability to make reasonable judgements in respect of matters relating to all or any part of his estate; and
c)he is in need of an administrator of his estate.
In determining whether or not an order should be made section 51 requires:
a)that Board consider whether the needs or SKD could be met by other means less restrictive of his freedom of decision and action; and
b)that the Board must not make an order unless it is satisfied that the order would be in the best interests of SKD; and
c)that if an order is made it must be the least restrictive of SKD’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principals in s6 as noted above.
Section 54 sets out who the Board may appoint as an administrator of SKD’s estate. It was apparent from the evidence provided to the Board that the only potential appointee was the Public Trustee.
Evidence
SKD is a XX year old retired accountant who normally lives alone in a unit owned by him in Hobart. At the time of the hearing he was an inpatient at the Roy Fagan Centre, a specialised hospital for older persons with psychiatric illness or cognitive impairment.
Dr Ian Navin, a psychiatry registrar with the Older Persons Mental Health Service, provided a Health Care Professional Report dated 15 October 2020 and also gave evidence at the hearing. Dr Navin provided dual diagnoses of alcohol related dementia, being Korsakoff Syndrome which is an amnestic disorder, and substance abuse disorder (severe) arising in connection with alcohol abuse. Both conditions have been evident for at least six years. The Report notes that those conditions give rise to deficits for SKD in respect to orientation to person, place or time, expressive communication, receptive communication, planning and reasoning skills and impulse controls.
The applicant, Ms McIver, a social worker with the Tasmanian Health Service, told the Board that SKD had been admitted to hospital three times since 7 August 2020. Dr Navin said that when SKD was discharged to his home on 18 August 2020, after the first admission, he had concerns about SKD’s cognitive impairments. On 17 August 2020 SKD had scored 64 out of 100 on the Addenbrooke’s Cognitive Assessment test. Dr Navin’s report noted that at that time SKD had large deficits in recall and fluency, with relative preservation of language and attention. Previous cognitive assessments had demonstrated similar impairments. On mental state examination SKD would present a superficial and inaccurate account of his circumstances, recent events and life history, demonstrating confabulation and amnesia. He exhibited a profound lack of insight and inability to appreciate and plan.
Dr Navin told the Board that as a consequence of his concerns an application was made for an emergency guardianship order, which was made on 7 October 2020. SKD had returned to hospital by that time, exhibiting confusion and disorientation and was transferred to the Roy Fagan Centre. The report of the Public Guardian to the Board in respect to the emergency order notes that the Guardian had made a decision on 8 October for SKD to remain at the Roy Fagan Centre for further assessment and treatment. On the same date consent to treatment was provided. The Public Guardian’s report says that at that time SKD believed that he was attending a conference in Spain.
Dr Navin described SKD as intelligent and articulate with a prestigious career as an accountant and author. In terms of cognitive reserve SKD’s verbal function is very high and that domain of function traditionally improved during inpatient admission. SKD’s Addenbrooke’s score has increased to 76/100. Dr Navin’s greatest concerns surrounded persisting deficits in memory and an absence of improvement in SKD’s ability to encode and retrieve memories. This has had stark consequences for SKD’s ability to plan and manage his affairs, even in the very supported environment of the Roy Fagan Centre. Dr Navin said that the Addenbrooke’s cut-off score for dementia is 87/100 and that SKD had been below that level for some years. His cognition fluctuated with sobriety and environment, however SKD was insightless as to his reduced cognition or its risks. There had been no significant changes in SKD’s condition since Dr Navin prepared the Health Care Professional Report, although there had been some improvements in domains of cognition other than memory. SKD told the Board through his counsel that he believed that by ceasing drinking he had recovered. Dr Navin, however, considered that SKD’s disability affected his capacity to make reasonable decisions and he did not expect to see any significant change in the future. If SKD resumed drinking alcohol it would result in a further decline in cognition. Dr Navin noted that SKD rejected support services as he could not, because of his lack of insight into the effects of his condition, see any need for them. In respect to healthcare decisions SKD presented in a very plausible manner but had superficial understanding and did not appreciate the need for medical treatment or recall advice given to him. When assessed for the report SKD was unable to recall the reason for his hospital admission, his GP or the importance of medications in preventing further serious decline. He was unable to describe a history of medical illness and did not appreciate the continued risk of further cognitive decline with ongoing alcohol misuse. Dr Navin gave the example of recommending to SKD that he take vitamins to counter the effect of his alcohol use. As demonstrated to the Board at the hearing, SKD was unable to recall that advice, and so was unable to act on it.
Ms McIver told the Board that SKD’s several admissions since August 2020 had all resulted from functional decline on a background of alcohol abuse and alcohol related dementia. SKD was admitted to the Roy Fagan Centre most recently on 6 October 2020 after transferring from the Royal Hobart Hospital. His admission to the hospital came about because he was experiencing significant difficulty managing at home and had presented to his GP in a confused and distressed state, prompting his doctor to call an ambulance. SKD was experiencing grossly impaired memory, agitation, disorientation to person, place and time as well as significant confusion, including a delusional belief that he had children at home. His home was in such a squalid state such that it required industrial cleaning. As well as health hazards detailed in the Application, a pile of newspapers was stacked next to a heater and constituted a fire hazard.
Older Person’s Mental Health Services had for some time attempted to assist SKD to live independently in his home. He would terminate services in the belief that he could look after himself. He continued to deny the need for assistance notwithstanding the apparent health and safety hazards in his home. SKD does not have any family living locally. SKD’s ex-wife TD, delivered mail to SKD while he was an inpatient, including outstanding bills. SKD denied needing any assistance with financial matters. However, Ms McIver found that he had an outstanding bill with Telstra that had been referred for debt collection interstate and also outstanding accounts with Aurora, XXXX Council, Foxtel, Royal Hobart Hospital and a provider of meals. SKD required a high level of support to deal with these accounts over a number of hours but could not recall the assistance provided to him. Ms McIver assisted SKD to recover $400.00 that had been held securely at the Royal Hobart Hospital during his admission. She described SKD as being very confused about this and believing that money had been taken by Tasmania Police. When accompanied by Roy Fagan staff to the supermarket he was unable to use the check-out or his bankcard without assistance. In respect to day-to-day financial requirements Dr Navin’s report notes that SKD was unable to give an account of his income and expenditure and had accrued debts with unaddressed utility bills, and that he did not recall the previous instances of administration.
SKD had previously been subject to Administration and Guardianship Orders. Ms Spicer from the Public Trustee informed the Board that the Administration Order was made on 21 March 2019. It was revoked on 19 March 2020 on the basis of a report by SKD’s GP who considered at that time that, although SKD’s level of health was fluctuating, he would be able to manage his financial affairs with support. Ms Targett from the Office of the Public Guardian advised that a Guardianship Order was revoked on 30 August 2019 on the basis that at that time there was no ongoing need. Ms McIver indicated that TD has in the past provided assistance and support to SKD and has sought help for him. TD is unable, by reason of her own circumstances, to continue providing assistance to SKD. Ms McIver said that TD, who did not attend the hearing supports the need for administration and guardianship. In an email to the Board TD expressed concerns about SKD’s ability to function independently. SKD had no other familial or friendship supports available to assist him.
Ms McIver told the Board that SKD has needs in respect to decisions surrounding his accommodation following discharge from hospital. She said that attempts had been made to support SKD in his home and that it might be necessary that a decision be made for him to live in more supported accommodation. There was also a need in respect to provision of services given what she described as SKD’s ad-hoc engagement with services and his denial of need for support. She also identified a need for decisions in respect to healthcare for the same reasons.
SKD opposed the appointment of either a guardian or administrator. He presented to the Board with the articulate and intelligent manner that Dr Navin had described. However, he also demonstrated a superficial understanding and insight into the effects of his illness and his needs for assistance arising from it. Within the span of a minute or so SKD told the Board that he had ceased alcohol at the beginning of the year, had ceased four months ago and had ceased on 1 August 2020. He said that as a consequence his mind was clearer and he was able to manage his affairs. He subsequently told the Board that the reason he had been admitted to hospital on 23 September 2020 was a consequence of alcohol use. SKD told the Board that all his finances were totally controlled by “one or other of the administrative organisations” and that he had not seen any cheques from an overseas pension. He said that the only debts that he had outstanding were a Telstra bill that he had now paid and an amount owing for his meals. At the time referred to by SKD there was no substitute decision maker appointed in respect to his financial affairs and his evidence was contrary to the persuasive descriptions by Ms McIver of assisting SKD to locate cheques, access his funds and deal with some accounts, and the inability to deal with the Telstra account which had been referred for legal proceedings. Contradicting his earlier evidence that he had not had any involvement in his financial circumstances since becoming an inpatient, SKD described Ms McIver as very helpful in assisting him with financial matters. SKD had no understanding or recollection of the squalid state of his house as referred to by Ms McIver and Dr Navin. Apart from assistance with gardening SKD considered that he did not require any particular assistance to continue living in his home. He gave a confused description of his intentions in respect to future accommodation and referred to having paid two $5,000.00 deposits for options on properties that he now considered were lost. SKD’s evidence to the Board, while given in an articulate manner, demonstrated the poor memory and lack of insight into his needs for assistance described by Dr Navin and Ms McIver.
Guardianship
Dr Navin’s evidence establishes that SKD is a person with a disability, being Korsakoff’s Syndrome, an alcohol-related dementia, and substance use disorder (severe) secondary to alcohol use. Dr Navin’s report describes both conditions as severe, and, respectively, as of rapid progression and deteriorating. His evidence was not contradicted by any other expert opinion. Mr Saunders, on behalf of SKD, submitted that further medical assessment should be undertaken based on SKD’s belief that his condition had improved. The Board was satisfied that the written and oral evidence of Dr Navin was sufficient and that further assessment was not required in order for the Board to make findings and exercise its discretion.
Dr Navin’s report notes that SKD’s disability affects his capacity to make reasonable judgments about where to live, medical treatment and health care, access to support services and in respect to NDIS services. SKD asserts his ability to live independently in his unit however he has a history of a clear pattern of inability to maintain his home to a safe and hygienic standard, particularly in respect to biological and fire hazards. In respect to medical treatment and health care SKD is insightless into his health risks and needs and his ability to manage his health is impaired by his memory deficits. SKD has declined offers of community support and is unable to appreciate the rationale or benefit of support services. Support from Community Mental Health Services was unable to prevent SKD’s readmission to hospital. Dr Navin’s report notes that SKD’s disability affects his capacity to engage in decision making surrounding the NDIS but without any detail as to those limitations, except by implication having regard to the report’s comments on ability to make decisions in respect to support services. Given that SKD has passed the cut-off age for NDIS support there was no need to interrogate that issue.
The Board accepts Ms McIver’s evidence that there is a need for a guardian to be appointed in respect to decisions concerning where SKD is to live, access to services, and healthcare decisions. It is apparent that the making of a Guardianship Order will be in SKD’s best interests as it will facilitate his discharge from hospital to appropriate accommodation, facilitate his healthcare, and ensure access to and acceptance of services. Given SKD’s reluctance to accept assistance and the absence of less formal supports it is apparent that there is no less restrictive alternative to the making of an order, limited to these matters.
Once SKD has been discharged from inpatient care and is settled in suitable accommodation with appropriate services it may be that the need for an order ceases, or that a less restrictive means of meeting SKD’s needs becomes apparent. An order for a period of 12 months will be least restrictive of SKD’s freedom of decision and action as possible in the circumstances.
Administration
The comments made above in respect to SKD’s disability and his consequent inability to make reasonable judgments also apply to matters regarding his estate.
Dr Navin’s report states that SKD is unable by reason of his disability to make reasonable decisions in respect to day-to-day financial requirements, complex financial and legal decisions and legal matters. SKD’s history demonstrated a pattern of neglected bills with adverse consequences. In respect to complex financial and legal decisions Dr Navin says that SKD does not appreciate his cognitive deficits and his significant amnesia would make the comprehension and retention of information relating to complex financial and legal decisions impossible. In respect to legal matters generally Dr Navin observes that, in addition to the impairments identified above, Korsakoff’s syndrome causes deficits in the processing of contextual information. Dr Navin’s conclusions are supported by the evidence outlined above and are accepted by the Board.
The need for administration extends to all aspects of SKD’s estate and, notwithstanding SKD’s wishes to manage his own finances, the Board is satisfied that a plenary order is in his best interests and is the option least restrictive to his freedom of decision and action as possible in the circumstances.
It appears that SKD’s disability will not improve and may well deteriorate. It is appropriate to make the order for a period of three years.[1]
Who should be appointed?
[1] Which by operation of s24 of the Guardianship and Administration Act is effectively the longest period for which an order may initially be made.
The applicant proposes appointment of the Public Guardian and the Public Trustee. There were no other potential appointees identified at the hearing and the Board is satisfied that it is appropriate to appoint the Public Guardian and the Public Trustee.
The Board Orders in respect to the application for guardianship:
1. The Public Guardian is appointed as the limited guardian of SKD with the power to:-
i) Decide where SKD is to live permanently or temporarily.
ii) To determine which services SKD should access and provide consent to such as required.
iii) To make health care decisions for SKD.
2. The Order remains in effect until 3 December 2021
And in respect to the application for administration:
1.The Public Trustee is appointed as administrator of the estate of SKD.
2.The Order remains in effect until 3 December 2023.
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