SNC (Emergency Guardian and Administration)
[2015] TASGAB 22
•7 December 2015
GUARDIANSHIP AND ADMINSTRATION BOARD
HOBART
SNC – Application for an emergency guardianship and administration order by Tasmanian Health Organisation – South
SNC (Emergency Guardian and Administration) [2015] TASGAB 22
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 7 December 2015
On 20 November 2015, the Guardianship and Administration Board made an emergency administration order for SNC on the application of the Tasmanian Health Organisation – South (Roy Fagan Centre). On the making of that order and while it is in force, SNC is a represented person within the meaning ascribed by section 3 of the Act. Tasmanian Health Organisation – South (Roy Fagan Centre) is a health care provider for SNC and is therefore, in the opinion of the Board, a person with a proper interest in this matter.
On 1 December 2015, the same organisation applied for the emergency appointment of an administrator for the represented person. Section 65 of the Guardianship and Administration Act 1995 states:
“65. Emergency orders
(1) Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a) the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(c) …
(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
(5) An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.
(6) …”
In these circumstances, the Board proceeds pursuant to section 65(1) because SNC is a represented person. However, for consistency it will apply the test in section 65(2) to the circumstances to assess the administration application, that is the Board will assess whether:
·There are urgent circumstances pertaining to the represented person’s estate?
·There may be grounds for making an administration order make an order appointing The Public Trustee as administrator of her estate?
The application presented the following urgent scenario:
· Prior to admission to the Roy Fagan Centre (a psycho-geriatric treatment facility in Hobart) the represented person lived in a property she rented from a distant cousin.
· A letter arrived for the represented person from the owner of that property on 7 December 2015 requiring her to vacate the premises by 17 December 2015.
· The represented person had recently had a falling out with another cousin who hitherto had assisted her with her finances and now refuses to do so. The represented person has a third cousin who is prepared to assist but is unwilling to take on any legal or financial role. There is no other person in a position to assist her.
· The represented person suspects her family will steal her possessions or use her telephone account to call overseas numbers and make her responsible for a large account.
· A person/agency is required urgently to secure the represented person’s belongings and to negotiate termination of outstanding utilities and the termination of her lease.
The applicant relied upon a report prepared by Dr. K. Ratnagobal of the Roy Fagan Centre on 26 November 2015 to support the application. That report was prepared in support of the earlier emergency guardianship application, but is relevant and current. Dr. Ratngobal diagnosed the represented person with dementia which has been evident for one year. This condition sometimes affects her orientation to person, place and time. It causes her deficits in expressive and receptive communication and her susceptibility to influence. He stated that she cannot make any reasonable decisions due to her current mental state. He determined that she cannot appreciate the nature and extent of her property and cannot manage any part of her estate.
Given the circumstances of the very short notice of eviction, the Board considered it appropriate to exercise its powers under section 65 without notice and without a hearing. In the Board’s view, the application presented sufficient information and no further investigation was required. From that information the Board was aware that a woman with a severe level of disability was being evicted from her home at a time when she was detained in secure care due to an emergency guardianship order. She did not display trust in any person and no person was prepared to assist with these pressing legal issues. It was clear that the applicant and the Board owe a duty to her to ensure that her estate is protected because she is unable to do so for herself both because of her disability and also her confinement to the Roy Fagan Centre.
The application is granted. The Board applied standard reporting and follow-up directions in the order.
A description in plain English is annexed to this decision for the assistance of the represented person (Annexure 1).
Conclusion:
The Board being satisfied that there are reasons for urgency and grounds for making an administration order in respect of SNC (hereinafter called the ‘represented person’)
THE BOARD ORDERS
That The Public Trustee be appointed administrator of the represented person.
That this order remains in effect for 28 days from this date.
FURTHER THE BOARD DIRECTS:
That on or before the expiry of 25 days duration of this order The Public Trustee shall report to the Board upon the following matters:
a)Any decisions or transactions made on behalf of the represented person pursuant to this order,
b)Whether any matters have come to the attention of The Public Trustee that might indicate whether or not there is need for a continuing administration order, and if so
The Public Trustee is hereby directed to take all reasonable steps to ensure that an application for administration and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.
Anita Smith
PRESIDENT
ANNEXURE 1
Plain English outline of decision for SNC
This is an explanation of why the Public Trustee was appointed as your administrator on 7 December 2015.
The staff at the Roy Fagan Centre asked the Guardianship and Administration Board to make a decision about you very quickly.
Under Tasmanian law, that Board can make an order for you very quickly if it thinks that you need an administrator urgently. If it is very urgent, the Board can make that order without telling you about it and without meeting with you and other people to discuss it.
An administration emergency order will only last 28 days, but it can be made for another 28 days after that if it is still needed. You cannot be under an emergency administration order for more than 56 days in total. If an order is needed for longer than 56 days, you will be invited to a hearing to discuss the need for an order.
The Board read letters and information from the Roy Fagan Centre to decide if you needed an emergency administration order.
Those letters and information said that:
- You had received a letter from OK on 7 December telling you that you had to leave his house in Hobart within 10 days. This means you may be being forced to leave your home.
- Until a short time ago, your cousin M had helped you with your money and other things, but you are not getting along so well now and M does not want to help you anymore.
- Another cousin, T, is prepared to help you but she does not want to get involved with money or legal issues.
- You have said things that make the Roy Fagan Centre staff think that you do not trust your family not to steal from you.
- If you are being forced to leave your home, someone needs to collect your things, pay your bills and make sure that your money is protected. Someone might also need to talk to OK for you to make sure your rights are protected (for instance, he may owe you a rental bond).
Dr. Ratnagobal, who has met you at the Roy Fagan Centre, has given the Board a medical report about you. In that report he says that you have dementia. Because of your dementia, he says that you are unable to make the kinds of decisions that are needed now that you may be forced to leave your home.
The Board agreed with the Roy Fagan Centre that this was a very urgent situation and you need an emergency administrator to help you because of your dementia and because you cannot leave the Roy Fagan Centre at the moment. That order gives the Public Trustee the power to manage your money and your lease.
The Public Trustee’s job is now to protect your money, to make sure your bills are paid and to deal with your things at the property in Hobart. This order will last for 28 days. The Public Trustee must report to the Board after 25 days to tell us if another order is needed and to tell us what they have done since they were appointed as your emergency administrator.
Anita Smith
PRESIDENT
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