TNC (Guardianship and Administration)

[2016] TASGAB 1

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

TNC  - Application for Appointment of a Guardian and an Administrator by Dr Amy Imms

TNC (Guardianship and Administration) [2016] TASGAB 1

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 5 February 2016

Administration – disability – incapacity – in need of an administrator due to vulnerability to financial exploitation

Guardianship and Administration Act 1995 – sections 51

Background information:

1. The proposed represented person, TNC, is a 71 year old woman who has lived alone in Hobart, having no relatives in Tasmania. 

2. Her general practitioner, Dr Amy Imms applied on 18 August 2015 for the appointment of a guardian and an administrator because she was unable to undertake financial transactions and was placing herself at risk due to memory problems.  Dr Imms was also concerned that she was in need of additional support for personal care. 

Hearing Process:

1. The proposed represented person has been the subject of an emergency (28 day) guardianship order on 19April 2013 and 17 May 2013.   No further application was made at that point.

2. Dr. Imms’ application was listed for hearing on 14 October 2015.  The following persons attended:

   TNC - proposed represented person
   Dr. Alison Cleary
   Helen Young – Case Manager
   Sean O’Moore
   Rihanna Lesley and Felicity Weeding - Presbyterian Care
   Kiri Van Duiven – Public Trustee
   Anne Perks – Public Guardian
   Liz Love – GAB Investigator

3. The Board granted an adjournment on that date to enable the proposed represented person time to seek legal advice.  Before granting the adjournment, the Board took evidence from Dr. Alison Cleary MBBS (Hons) FRACP Geriatrician with respect to the proposed represented person’s disability and incapacity.  Based on Dr. Cleary’s evidence, the Board also granted an interim administration order and an interim guardianship order limited to decisions about the provision of services for the proposed represented person. 

4. The proposed represented person did not retain legal services, so the matter was relisted on 5 February 2016.  The following persons attended:

   Derek Harnwell – Disability Advocate for TNC
   Felicity Weeding - Presbyterian Care
   Glenda – Public Trustee
   Anne Perks – Public Guardian
   Liz Love – GAB Investigator

   Through her advocate, the proposed represented person emailed: 

   “I, TNC, will not be attending the GAB Hearing on the 5/2/16 as I found the previous hearing to be unsettling.  I didn’t understand why it was relevant to my life and I still don’t now.  It is nobody’s business what I do with my money and my decisions I make about my life.”

Is TNC a person with a disability? Section 20(1)(a) and 51(1)(a)

1. Dr. Alison Cleary gave evidence that the proposed represented person has multiple sclerosis diagnosed in 1988.  Her opinion is that the proposed represented person has multiple cognitive deficits as a result of her secondary progressive multiple sclerosis.  Serious impacts result from her extremely poor short term memory and gross lack of insight (into her cognitive deficits).  She stated that:

   “… TNC has significantly impaired capacity to make accommodation, health care and financial decisions …”

2. The Board was satisfied that the proposed represented person is a person with a disability. 

Is TNC incapable of making reasonable judgments about her person and circumstances and her estate? Section 20(1)(b) and 51(1)(b)

1. Dr. Cleary’s evidence was that the proposed represented person has increasing cognitive impairment and is unable to make decisions about complex issues.  Her memory problems make her unable to decide practical issues regarding her personal support needs and her finances.

2. Dr. Cleary’s evidence was consistent with the report of the Aged Care Assessment Team and with the evidence of witnesses who have been providing her with direct support. 

3. The Board was satisfied that the proposed represented person is incapable of making reasonable judgements about her person and circumstances and her financial situation. 

Is TNC in need of a guardian and an administrator?  Section 20(1)(c) and 51(1)(c)

1. Treating professionals and care services have expressed concern about the proposed represented person’s ongoing personal and financial vulnerability.  She was relying on a system of sticky notes in her home, but was so overwhelmed by the masses of sticky notes that many were out of date and most were of no use in prompting her to complete essential tasks of daily living.  There have been concerns since 2013 about her management of her medications.  She has become increasingly house-bound and on occasions refuses to eat (reducing her weight to 55kg), wash clothes, to allow services to offer help in her home or to shop. 

2. The proposed represented person was vulnerable to financial abuse because she was handing her written PIN number to sales assistants.  The report from the Public Trustee regarding their interactions during the period of the interim order noted the proposed represented person’s confusion about whether certain accounts had been paid.  The report states:

   “TNC forgets how she pays her accounts, whom she holds accounts with and what she spends her money on. 

   TNC had door knockers sign her up to support Susan Neill-Fraser, this cause requests donation to support Mrs Neill-Fraser’s legal costs, TNC can’t remember signing up and is unable to remember if she donated any funds.  She has requested that Public Trustee remover her from the group and does not wish to participate.”

3. The applicant and the proposed represented person’s care team were of the view that the proposed represented person requires a guardian to decide whether she can remain living at home and, if so, what additional support may be required to keep her safe, to address consent to medical and dental treatment.  This may require admission to the Roy Fagan Centre which is a secure facility. 

4. Derek Harnwell on behalf of the proposed represented person emailed as follows:

   “I am not in debt I pay all bills by direct debit set up through my bank or to the biller directly.  I am also not at risk of financial harm. I spend my money when I need to and visit the bank independently to withdraw any money I require when necessary.  I don’t carry excess cash with me. 

   There are no current decisions to be made about my accommodation or health.  I live independently and use some support to enable me to continue doing so.  There is no need for this to change.” 

   The proposed represented person’s view is that she is not in need of a guardian or an administrator and that the whole situation causes her distress. 

5. With respect, the Board notes that the proposed represented person’s statements of her competence are at odds with the factual evidence of independent third parties and they also confirm the statements by Dr. Cleary to the effect that she lacks insight into her own functional deficits.   The Board is satisfied that the proposed represented person is in need of an administrator and a guardian.  The guardianship order can be limited to her accommodation issues and to her health care.   The administration order is not suitable to be limited. 

Eligibility for appointment of a guardian and administrator

1. The only nominees for appointment were the Public Guardian and the Public Trustee.  The proposed represented person does not have any family in Australia and no close friends were nominated for the role. 

2. The Board is satisfied that the Public Guardian and the Public Trustee are the most appropriate appointees for these roles. 

Conclusion:

Guardianship:

After hearing an application for a guardianship order in respect of TNC (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 judgements in respect of her person and circumstances; and

•is in need of a limited guardian;

THE BOARD ORDERS

1. That the Public Guardian be appointed as the represented person’s guardian.

2. 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.

3. That the order remains in effect to 4 February 2019.

Administration

After hearing an application for an administration order in respect of TNC (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 judgements in respect of her estate; and

•is in need of an administrator

THE BOARD ORDERS

1. That The Public Trustee be appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 4 February 2019.

ANITA SMITH
PRESIDENT

Date of delivery of the statement of reasons: 2 March 2016