TI - Application for Guardianship
[2018] TASGAB 9
•4 May 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TI - Application for Guardianship
REASONS FOR DECISION
Lindi Wall (Chair)
Hearing: 4 May 2018
Guardianship application; whether need for an administrator exists; power of Board to make Administration Order on Guardianship application
Guardianship and Administration Act 1995
On 4 May 2018 the Board heard an application by Ms Hania McIver, Social Worker from the Royal Hobart Hospital (RHH), for the appointment of a guardian for TI.
At the hearing were: Ms Natasha Veenstra (social worker, representing the applicant), TI, NQ (mother), KQ (step father), Ms Maddy Russell (Office of the Public Guardian) and Dr Matthew Fasnacht by telephone.
The Board had the following documents for the purposes of the hearing:
a)Application dated 28/4/18
b)Health Care Professional Report (HCPR) by Dr Fasnacht dated 28/3/18
c)Two reports from the OPG under the emergency orders dated 12/4/18 and 2/5/18.
At the time the application was made TI was an inpatient at the Roy Fagan Centre (RFC) which is a locked facility. The Public Guardian had been appointed pursuant to consecutive emergency orders to make decisions concerning accommodation and health care. On 16 March 2018 the Public Guardian consented to TI’s continued stay and treatment at the RHH and on 26 March 2018 her transfer and detention at RFC for the purpose of assessment and treatment there.
Is TI a person with a disability?
There was no dispute that this was the case. TI was assessed on 28 March 2018 by Dr Fasnacht. He reported that TI had suffered an acquired brain injury as a result of lithium toxicity.
Is TI incapable of making reasonable decisions about accommodation by reason of her disability?
The HCPR stated that TI was then not orientated to time and place, and had deficits in impulse control, capacity for new learning and planning and reasoning. At that time she was unaware of where she was or why. TI was thus unable to make reasonable decisions about where she lived. Dr Fasnacht expressed the view at the hearing that it was unlikely that she would ever regain the capacity to make reasonable decisions about her accommodation.
Is TI in need of a guardian?
As at 12 April 2018 the OPG advised that TI was accepting of medical treatment, and on 13 April 2018 she was discharged, in accordance with her wishes, into the care of her mother. By the time of the hearing the circumstances of TI were said by the OPG to have changed significantly and she was settled at her mother’s home. TI was by then accepting of her accommodation and support from her family and agreed that, although she hoped to get well and to return home to Darwin, she needed that support until her health improved.
At the hearing TI said that she did not require a guardian to make decisions about accommodation as she accepted the need for the support of her mother with whom she was close, and had no plans whilst unwell to return to Darwin. The applicant, Dr Fasnacht and all taking part in the hearing, concurred with the view that as TI was now settled, a guardian was not currently required.
Accordingly, on 4 May 2018 the Board ordered that the application for guardianship be dismissed.
Is TI in need of an administrator?
An application for the appointment of an administrator must be in writing in accordance with s.51 of the Guardianship and Administration Act 1995 (the Act) and in the form required by the Guardianship and Administration Regulations 2017. There was no such application before me at the hearing. In the absence of statutory compliance, however, the Board may, of its own motion, make an order for the appointment of an administrator if, after a hearing of an application for guardianship or administration, it is satisfied: that the person is a person with a disability; is unable by reason of that disability to make reasonable judgements in relation to their estate and is in need of an administrator. In determining whether to make an ‘own motion’ order the Board is bound to take into account the matters set out in s 51(2) and (3) of the Act. The Board must consider whether there is a less restrictive option than making an order and it must not make an order unless satisfied that it is in the person’s best interests.
In the course of the hearing Dr Fasnacht raised his concern that TI required the appointment of an administrator because she had no capacity to make reasonable decisions about her two properties in Darwin. The Board proceeded to hear evidence in relation to the need for an administrator.
Dr Fasnacht described TI’s initial severe delirium from the lithium toxicity which had settled but which had left her with deficits in thinking. There had been a dramatic initial change which had plateaued. She was no longer taking lithium but he anticipated permanent deficits in executive function. It would take a few months before this would be known. Although Dr Fasnacht had not reviewed TI since 14 April 2018, it was his view that she was unlikely to regain the capacity to manage her finances. Dr Fasnacht was firmly of the view that an administrator was required.
NQ expressed the view that TI had improved dramatically in the recent weeks and now had a clear understanding of her assets and income. She was financially independent through superannuation and had no debts. NQ was informally supporting TI with her finances but all that was actually required of her was to carry out the functions that required manual dexterity because of the effects of medication on TI’s motor skills. She advised that the question of an administrator had been discussed with the applicant and, given TI’s improvement and the informal assistance of her mother, it had been decided not to make application for administration. This was not contradicted by the applicant.
TI agreed with her mother’s assessment of her capability. She identified the two houses she owned in Darwin, one of which had been her residence. She confirmed that both were currently vacant but caused her little expense as her brother was managing them whilst she was unwell. She volunteered that whilst she could rent out the properties, and had in the past, she preferred to continue with the current arrangement at present whilst she concentrated on her recovery. It was her wish, if possible, to return to Darwin once she had recovered. She described how her memory was improving day by day. She answered questions clearly. She was strongly opposed to the appointment of an administrator. She welcomed the informal practical assistance provided by her mother.
Because there was no application, no one had been proposed for the role of administrator. NQ did not put herself forward. The Public Trustee was not present. There was thus no evidence as to the cost of administration in the event the Public Trustee was appointed. There was nothing to suggest that TI’s estate was at risk, that poor decision making was occurring or that there was any urgent need for an order. Dr Fasnacht was due to review TI on 21 May 2018 when he would be in a position to further assess TI’s capacity and the need for an administration order.
In these circumstances, and particularly in light of her strong opposition to an order, her improving cognition, and close family support, the Board was not satisfied either that it would be in TI’s best interests to make an administration order on the available evidence, or that it would be the least restrictive option available at that point in time. Accordingly, the Board declined to make an order for administration.
On 4 May 2018 the Board ordered:
That the application for guardianship be dismissed.
Lindi Wall
Chair
9 May 2018
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