TKX (Review Guardianship and Administration)
[2017] TASGAB 9
•23 June 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TKX (Review Guardianship and Administration) [2017] TASGAB 9
REASONS FOR DECISION
Sandra Taglieri (Chair)
Hearing 1 June 2017
Review Guardianship and Administration – need for the continuation of a guardian and administrator - disability – suitability of family members rather than independent Guardian and Administrator – continue with current arrangements
Guardianship and Administration Act s. 20, 51, 68
Background
On 1 June 2017, the Board heard Applications for Review of an Administration Order and Guardianship Order made in respect of TKX.
The Application for Review of Administration by the Public Trustee was dated 1 May 2017. The Public Trustee had initially been appointed as Administrator for TKX for a 12 month period, by an Order of the Board dated 3 June 2016.
The Application for Review of Guardianship was made by the Public Guardian and dated 22 May 2017. The Public Guardian had also been appointed for a 12 month period on 3 June 2016, as Guardian for TKX.
On 4 August 2016, TKX’ brother-in-law, HQ applied to the Board for a review of the Administration Order made on 3 June 2016. HQ’s application was heard by the Board on 19 October 2016. During the hearing HQ did not dispute the need for an Administrator, but sought to persuade the Board to appoint him instead of the Public Trustee as Administrator. The Board declined to vary the order and ordered that the Administration Order made on 3 June 2016 continue.
A request for reasons for the decision made on 19 October 2016 was received from HQ and subsequently reasons for decision were provided in writing to all interested parties.
The Applications for Review of Administration and Guardianship which were heard on 1 June 2017 required the Board to determine whether the orders made on 3 June 2016 ought be varied, continued or otherwise allowed to lapse.[1]
[1] Section 68 of Guardianship and Administration Act 1995
Various persons attended and participated in the hearing on 1 June 2017. Each gave information to the Board which was considered in arriving at a decision. In particular, the following persons participated in the hearing:
·Mrs Fiona Whitton, representative of the Public Trustee;
·Ms Liz Love, representative of the Public Guardian, who had been appointed as TKX’ guardian on 3 June 2016;
·TKX and his sister KQ;
·FX, also sister of TKX;
·Ms Michelle Denehey, Case Manager for TKX from Community Options, a mental health service who had been supporting TKX.
The Board also considered and received an email dated 1 June 2017 from Dr Kenyon, the treating Psychiatrist for TKX. Dr Kenyon had provided care and treatment to TKX during a fairly recent period of admission at The Hobart Clinic.
Dr Kenyon’s email of 1 June 2017 explained that he had been unwell, had urgent clinical matters and patients all day so could not participate in the hearing before the Board. Further, it stated that he had dictated a letter which would be sent through but that for the hearing “from a capacity perspective the situation for Scott is unchanged, his cognitive impairment is stable and unlikely to improve, he has marked short term memory impairment evident on standard tests, in the real world he is unable to retain sufficient information to make informed decisions”.
The Board also received and considered a written report from Ms Love from the Public Guardian’s office, reporting about consents and decisions made for TKX pursuant to the Guardianship order made on 3 June 2016.
The usual standard written reporting from the Public Trustee as Administrator was also received and considered.
Evaluation of the evidence
From all information received from parties involved in the hearing, there was consistency in relation to the effect of TKX’ medical condition. In particular, the evidence was that TKX continued to suffer from a permanent psychiatric condition, which was stable and unlikely to improve and this affected his cognitive abilities (particularly memory). In addition, TKX suffered from increased back pain which affected his mental state and led to increased alcohol consumption periodically.
The evidence received from Ms Love and Ms Denehey was that since the Orders for administration and guardianship had been made in 2016, there had been some degree of stabilisation and modest improvement in TKX’ health and wellbeing, but disability persisted.
Mrs Whitton’s evidence was that the financial affairs were in order and the previous situation of unpaid accounts had been rectified. Because of the involvement of the Guardian, the Administrator and Community Options, the acute risk to TKX’ wellbeing that previously existed had diminished, but still existed. Management of finances by the Administrator and the involvement of the Guardian and Community Options had enabled TKX to remain living in his own home, which was his preference.
The Board invited TKX to express his wishes concerning whether there should be continuation of an Administration order. TKX said he respected the views of Dr Kenyon (which were read from his email of 1 June), but suggested that his treating Psychologist, Jo Hunter, may be in a position to provide more thorough and accurate evidence about his capacity to make decisions concerning his financial affairs.
The Board observed that it was required to make a determination on the evidence available and given the information before the Board it appeared reasonable and in his best interests to continue the Administration and Guardianship Orders. TKX did not either agree or strongly object to this proposition.
KQ raised a number of questions concerning process and expressed sentiments of frustration that she received contact from TKX on many occasions about why the Administration Order was in place. These multiple enquiries were consistent with TKX suffering marked memory loss.
KQ directed questions to the Board about why an Administration Order was required. The Board explained that on the evidence that had been received on the original application for the appointment of an Administrator and subsequently on the review both in October 2016 and the present review, the statutory criteria for making an Administration Order was satisfied. An explanation of that criteria was given.
KQ continued to raise questions with the Board about why it had made the past orders. She seemed to ignore or dismiss the compelling evidence about cognitive impairment from the medical experts involved in TKX’ care. KQ questions and concerns were predominantly directed towards the Administration order.
KQ was advised that explanation had previously been given in written reasons following the October 2016 Board hearing. An oral explanation was repeated and it was suggested to KQ that if she had continuing questions or concerns it would be appropriate for her to seek independent legal advice.
KQ and FX both suggested that if the Board continued the Orders, then further orders for 12 months were preferable. Otherwise, FX supported continued appointment of an independent Administrator and Guardian.
All other parties participating in the hearing supported continuation of the existing Administration and Guardianship Orders.
Determination
The preponderance of the evidence was that TKX suffered permanent disability from a psychiatric disorder and that he was unable to make reasonable judgements concerning his finances/financial estate and personal circumstances, such as residence and treatment.
Despite questioning by TKX and KQ about the reason for and need for continuing Orders, each of them did not provide any evidence contradicting the evidence of Dr Kenyon and others at the hearing who gave evidence about continuing marked deficits in cognition, particularly memory.
FX, Ms Love, Ms Denehey and Ms Whitton all advocated for the continuation of the Orders.
The Board remained of the view that the requirements of sections 20 and 51 of the Guardianship and Administration Act 1995 were satisfied. Further, it considered that the Public Trustee and Public Guardian respectively, remained most suitable Administrator and Guardian.
As the evidence demonstrated permanent disability affecting capacity to make reasonable decisions about finances and his person, the Board considered it less disruptive and stressful for TKX, to appoint the Public Trustee and Public Guardian for a period of three years. Despite this, the Board advised all parties that if TKX’ condition improved and/or medical evidence existed which demonstrated capacity to make reasonable judgments and decisions about finances and his personal circumstances, an application could be made within the three years seeking revocation of the Orders.
The Board Orders
That the Public Trustee continue 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 order remains in effect to 31 May 2020.
That The Public Guardian continue as Guardian for the represented person.
That the powers and duties of the guardian are limited to decisions concerning:
(i)where the represented person is to live whether permanently or temporarily; and
(ii)consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, and
(iii)providing consent to any reasonable measures required to convey the represented person to the place of residence as determined by the guardian.
That the order remains in effect to 31 May 2020.
Sandra Taglieri
Chair
Date: 23rd June 2017
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