TGM (Guardianship and Administration)
[2012] TASGAB 1
•8 February 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Neutral citation: TGM (Guardianship and Administration) [2012] TASGAB 1
TGM – Application for the appointment of a guardian and administrator by TMM and PD – The Aged Care Facility
REASONS FOR DECISION
Anita Smith (President)
Lindi Wall (Member)
Catherine Gavan (Member)
Date of hearing: 8 February 2012
Guardianship – Requirements for appointing a guardian and administrator – Suitability of family members as appointees in guardianship and administration – Disqualification as undischarged bankrupt - Wishes of proposed represented person – Late change in wishes, value of.
Guardianship and Administration Act 1995 s. 20,21, 51, 54
FHT (Administration) [2007] TASGAB 7
Holt v Protective Commissioner (1993) 31 NSWLR 227
Singh (by her next friend Singh) v Calvary Hospital ACT Inc and Anor [No 2] [2009] ACTSC 57
TGM (the proposed represented person) is a 71 year old recently widowed woman with two adult children, TMM (an applicant) and UM. At the time of the hearing TGM was living at an Aged Care Facility (also an applicant). Both applicants sought the appointment of an administrator and guardian pursuant to the Guardianship and Administration Act 1995 (the Act). Before appointing an administrator or a guardian, the Board needs to be satisfied that the proposed represented person is a person with a disability, that the disability renders her incapable of making reasonable personal or financial judgments and that she is in need of an administrator or guardian. If satisfied of those matters, the Board then assesses the suitability of any proposed guardian or administrator according to the statutory criteria in sections 21 and 54 of the Act.
The applications:
On 1 December 2011, a representative of The Aged Care Facility applied to the Board for an emergency order. The Board granted a 28 day emergency administration order appointing the Public Trustee to ensure that she would have access to safe and appropriate accommodation, to be secured by the signing of a Residential Aged Care Agreement with The Aged Care Facility on behalf of the proposed represented person. That order was then renewed for a further 28 days on 23 December 2011.
In an application signed 12 December 2011, The Aged Care Facility applied for the appointment of the Public Trustee as administrator and the Public Guardian as guardian. In support of the application, The Aged Care Facility attached a report from the John Street Medical Centre.
In an application signed 19 December 2011, TMM applied for appointment as guardian and administrator. Her application was supported by a completed Health Care Professional Report from Dr. Ian Almond dated 23 December 2011, an ACAT assessment and approval and some historical medical records.
The emergency applications and the regular applications all related to the period when TGM was adjusting to the loss of her husband.
Because the two applications concerned the one person and related to the same set of circumstances, the Board heard the two applications simultaneously. The hearing was attended by:
TGM
TMM (daughter and applicant)
UM (son)
DM (daughter in law)
KM (grandson)
ZX(friend)
OX (friend’s husband)
BN (The Aged Care Facility)
CS (The Aged Care Facility)
BI (The Aged Care Facility)
Michael Condon (Office of the Public Guardian)
James Nielsen (Public Trustee)
Is TGM a person with a disability? (Sections 20(1)(a) and 51(1)(a))
Dr. Almond’s report noted that TGM has a psychiatric disability called depressive/anxiety disorder which he described as “ongoing but frankly psychotic Feb 2010”. He noted that she has had this disability for up to 5 years and her condition is fluctuating but that the prognosis is unlikely to change. The report from the John Street Medical Centre did not specifically address the issue of whether TGM has a disability. The ACAT report noted that TGM’s primary health condition is depression and/or mood affective disorder. These diagnoses were not challenged at the hearing.
The Board was satisfied, on the basis of the reports before it, that TGM is a person with a disability.
Is TGM incapable of making reasonable decisions? (Sections 20(1)(b) and 51(1)(b))
Dr. Almond’s report indicated that TGM experiences deficits in her impulse control, capacity for new learning and planning and reasoning skills by reason of her disability. He noted:
“TGM has a poor outlook on life’s vicissitudes and her poor health. Is very introspective and critical of others. She says she would like to be at home and is oblivious to the practicalities, difficulties and dangers that would present.”
His report noted a strong reliance upon her daughter TMM with regard to all financial matters. With regard to her capacity to make decisions about where she should live temporarily or permanently, he also noted that “Her negative view of life would tend to make such decisions difficult (and unreasonable)”.
TGM told the hearing that she could make her own decisions, but the evidence from the staff of The Aged Care Facility and her family members suggested that her depression makes decision making very difficult and that as a result she is highly reliant upon other people.
Based on the written reports and the evidence of parties at the hearing, the Board was satisfied that TGM lacks capacity to make reasonable decisions about where she lives temporarily or permanently and about her finances.
Is TGM in need of a guardian? (Section 20(1)(c))
Neither The Aged Care Facility nor TMM set out in their written applications why TGM was in need of a guardian. The investigation report suggested that a guardian may be needed because TGM sometimes refuses medical treatment for her depression, however this was not sustained at the hearing. The Board noted evidence from the witnesses that TGM rents a Housing Department premises, owns another premises (which TMM currently lives in) but is resident at The Aged Care Facility. In addition, TMM and UM spoke about possible plans for TGM to move from The Aged Care Facility to XXXX or some other premises. Witnesses from The Aged Care Facility gave evidence that TGM experienced a great deal of distress upon moving to The Aged Care Facility and had only just settled in. They held deep concerns that a further move would repeat that distress and cause her mental state to regress.
The Board took the views of the staff at The Aged Care Facility very seriously in that they were suggesting that a move from that premises to another may cause deterioration in TGM’s health. The letter from the John Street Medical Practice also noted that she had stabilized at The Aged Care Facility and strongly supported her staying there. The Board drew from this that a decision about where TGM lives is more complex than a consideration of geographical factors or the mere statement of TGM’s wishes. The Board also drew the conclusion that TGM’s inability to cope with change as a result of her depression is more entrenched and has more negative effect than for a person with dementia where they are typically disoriented but quickly adapt to a new environment due to a loss of short term memory. TGM’s short term memory is not particularly impaired and this enhances the prospect that yet another move will have reverberatory effect for a significant time.
The Board was satisfied that TGM needs a guardian to make decisions about where she shall live and such a guardian ought to seek medical opinion and consult with TGM, her mental health case manager, her current carers and her family before coming to a decision about whether or not she should move from The Aged Care Facility. The appointment of a guardian can be significantly limited in time and powers.
Who is best suited for appointment as a guardian? (Section 21)
TMM, UM and the Public Guardian were all fielded as possible appointees as guardian. The role of the guardian would be limited to decisions about where she shall live temporarily or permanently.
The Board did not consider TMM to be suitable as a potential guardian as she was single-minded in considering that TGM should move to XXXX and did not countenance the concerns of the staff of The Aged Care Facility. Therefore the Board was not satisfied that she would assess the options for TGM’s future accommodation as thoroughly as the Board considered such a move required.
The Board did not consider UM to be a suitable guardian as he has had limited contact with his mother in recent years, even during the period of his father’s death and funeral. He stated that some years ago, he and his family made a conscious choice to step away from family matters because of the impact of TGM’s mental illness on family dynamics. Additionally, TGM did not readily express approval for the option of appointing UM as her guardian.
Noting that usually such an appointment is considered an appointment of last resort, the Board considered the Public Guardian to be the most suitable guardian because that office will be able to make a professional assessment of any medical evidence regarding the impact of another change of accommodation for TGM. The Board incorporated some specific requirements for that assessment in the appointment.
Is TGM in need of an administrator? (Section 51(1)(c))
As noted above in discussion regarding her need for a guardian, TGM apparently owns a property, holds a lease over a Housing Tasmania property and pays fees for Aged Care. These multiple holdings require some rationalization with a view to conserving TGM’s assets and income. Additionally, TMM noted that she is the executor of the late Mr. M’s estate which will all pass to TGM.
Staff from The Aged Care Facility noted difficulties in having TGM or her daughter complete the necessary paperwork to support her admission on respite to the facility to the extent that it became necessary to apply for emergency orders to complete these. All reports noted that TGM had been dependent upon her daughter to transact business on her behalf. The Aged Care Facility staff did not express confidence in TMM’s competence in this regard and believed a formal appointment of an independent agency was required.
The Board was satisfied that TGM is in need of an administrator for day to day financial management as well as making a decision about the premises in which TGM currently has an interest.
Who is best suited for appointment as administrator? (Section 54)
As with the appointment of a guardian, both TMM and UM nominated themselves as potential appointees as administrator. Additionally the Board is entitled to appoint the Public Trustee without assessment of its suitability under section 54(1)(d) of the Act. In the body of the hearing, TGM expressed her preference that TMM be appointed to manage her affairs.
Despite TGM’s wishes, the Board considered that TMM was ineligible for appointment as an administrator because (i) she has a conflict of interests as a tenant in her mother’s property (and therefore in the position of being landlord and tenant, setting her own rental etc.), and (ii) as an undischarged bankrupt, she is unsuitable for reasons set out in a previous decision of the Board, FHT (Administration) [2007] TASGAB 7.
Also in the body of the hearing, TGM stated that she would prefer the appointment of TMM over UM as she was not comfortable with the idea of his appointment. These wishes together with the estrangement in their relationship discussed above were taken into account by the Board and the Board resolved not to appoint UM.
After a short break to consider our decision, the Board returned to the hearing room to be told by parties that TGM had had a change of heart and had determined that UM would be better than the Public Trustee and she would support his appointment. The Board withdrew again and reconsidered the matter but ultimately was not satisfied that (a) this was a genuine expression of her wishes or (b) that such a last minute expression overcame the distance in their relationship and the reasons for that distance.
Noting the relevant considerations expressed in Holt v Protective Commissioner (1993) 31 NSWLR 227 and Singh (by her next friend Singh) v Calvary Hospital ACT Inc and Anor [No 2] [2009] ACTSC 57, the Board decided that it is appropriate in this case not to appoint either of the individuals nominated as administrators and to appoint administrator of last resort, the Public Trustee, as administrator.
Conclusion:
After hearing an application by The Aged Care Facility One Care and TMM in respect of TGM (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 her person and circumstances; and
•is in need of an administrator and a guardian;
THE BOARD ORDERS
That The Public Trustee be appointed as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect until 7 February 2015.
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.
In exercising those powers and duties, the guardian is advised, pursuant to section 31 of the Act:
(i)To assess existing options available to the represented person for alternative accommodation
(ii)To seek a medical opinion and a report from the represented person’s Mental Health Services case manager and consult with the represented person, her family and the staff of The Aged Care Facility in relation to the impact that a change of accommodation from The Aged Care Facility may have upon her health and wellbeing
That guardianship order remains in effect to 7 August 2012.
Anita Smith Lindi Wall Catherine Gavan
PRESIDENT MEMBER MEMBER
Reasons delivered 27 March 2012.
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