TW– Application for Guardianship
[2018] TASGAB 6
•12 April 2021
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TW– Application for Guardianship
REASONS FOR DECISION
Before: Virginia Jones (Chair)
Stuart Roberts
Muriel Rollins
Guardianship; accommodation; conflict in views of family members; eligibility for appointment as guardian
Guardianship and Administration Act 1995
On Friday 13th April 2018 the Guardianship and Administration Board (‘the Board’) heard an application for guardianship for TW. The application was filed by GH, the eldest of three daughters of TW.
The following persons attended the hearing:
· GH, the applicant (daughter);
· KD, husband of the applicant;
· KU, daughter of TW;
· EU, daughter of TW;
· UM, friend of TW;
· Sharon Wright, representative from Masonic Care Tasmania; and
· Di Sheppard, Office of the Public Guardian.
The Board had the following documents before it:
· Application for Guardianship dated 1 March 2018;
· Health Care Profession Report dated 1 March 2018;
· Aged Care Assessment Program Notes and Records from 2013;
· Enduring Power of Attorney of TW dated 23 August 2013 (registered);
· Submission to the Board of KU undated;
· Submission to the Board of EU dated 5 April 2018;
· Submission to the Board of the Applicant;
· Supplementary Statement of the Applicant;
· Enduring Guardian dated 22 February 2016 (unregistered);
· Response by the Applicant to the Submission to the Board of EU.
As a result of the hearing the Board was satisfied TW is a person with a disability and is unable because of her disability to make reasonable judgments in respect of her personal circumstances and is in need of a guardian. The full details of the order appear at the end of this statement of reasons.
EU has requested a statement of the reasons in relation to the Board’s decision.
Requirements of the Guardianship and Administration Act 1995
When the Board assesses an application for the appointment of a guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the proposed represented person, (TW):
(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian.
The Board must also balance the principles in section 6 of the Act, which are:
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Is TW a person with a disability?
In respect of TW Dr Jenny Davidson provided a Health Care Profession Report to the Board dated 1 March 2018. Dr Davidson reported TW has a diagnosis of Parkinson’s Disease with associated dementia. The condition has been evident for over 4 years, and is deteriorating.
Dr Davidson’s evidence was unchallenged at the hearing. It was supported by notes in the Aged Care Assessment Program Notes and Records. The Board is satisfied TW is a person with a disability within the meaning of the Act.
Is TW incapable by reason of the disability of making reasonable judgments?
10. In the report of Dr Davidson note above, it was indicated TW has impairments in orientation to person, place and time, expressive communication, capacity for new learning and planning and reasoning skills.
11. Dr Davidson also reported TW is able to give her wishes about where she wants to live but noted TW is unable to follow long complicated discussions and is susceptible to influence.
12. TW’s susceptibility to influence is important evidence, and is relevant to discussion that follows in these reasons.
13. The Board was satisfied TW is incapable of making reasonable judgments about her person and circumstances.
Is TW in need of a guardian?
14. TW is a resident at an aged care facility owned by Masonic Care Tasmania, (MCT). She has lived there since 2013. When TW moved to MCT she moved with her husband, however he passed away in September 2017.
15. TW has three daughters. The applicant’s daughter resides in Dungog, NSW, EU lives in Melbourne, Victoria, and KU lives in Hobart, Tasmania.
16. The applicant daughter is appointed attorney of TW pursuant to an Enduring Power of Attorney registered in September 2013. Since September 2017 the applicant has put financial arrangements into place for TW’s three daughters to visit her as often as possible.
17. The Board received evidence that around the end of February, beginning of March 2018, (the time of TW’s 90th birthday), DU wanted to move TW to a nursing home in Melbourne, close to where she lived.
18. This was not the first time this had been raised. At the hearing, DU gave evidence that in October 2017 she rang the applicant and asked her if they could discuss moving TW to Melbourne. The idea of moving TW does not seem to have been mentioned again until late February/early March 2018.
19. The application was filed by the applicant because in March 2018 she attended MCT, and staff commented to her about TW being moved to Melbourne. The applicant believes this is not what TW wants.
20. Evidence was received at the hearing from each of TW’s daughters. It was clear that there were tensions in the relationships between (1) the applicant and DU, and (2) KU and DU.
21. DU gave evidence that she had spoken to TW about her wishes, and TW said all she wanted was to see her daughter. She suggested TW was happy to go to Melbourne. DU said staff at MCT and Dr Davidson supported such a move, and she thought “that was wonderful.”
22. DU expressed concern about the care of TW (the food, sitting in front of the television and lack of social interaction), and a lack of activities on offer for her at MCT. DU felt TW would be happier in Melbourne.
23. The applicant said she did not believe the TW would want to move to Melbourne. She was well liked and settled at MCT. The Applicant indicated TW has a small circle of friends who visit her, and she has a well-appointed room with a garden view.
24. KU, the third of the TWs daughters said she had spoken to TW on a couple of occasions when she was at her most lucid. In October 2017 TW told her she did not want to go to Melbourne. Earlier this year TW told KU she has close relationships with the staff, and expressed a firm preference to stay at MCT.
25. In essence, the applicant and KU wanted TW to stay at MCT. DU wanted to move TW to Melbourne.
26. Ms Sharon Wright, from MCT, gave evidence. Her evidence was important because it was independent of each of the three daughters.
27. Ms Wright acknowledged the TW’s wishes about where she wants to live fluctuate, and her wishes are influenced by whoever she is with. This is consistent with what Dr Davidson notes about her being susceptible to influence.
28. However, Ms Wright said TW has expressed to her that she definitely wants to stay at MCT. Ms Wright said TW knows the staff, and their names, she engages in various activities at MCT and eats well. She is well settled.
29. Given the suggestion of a move from her current accommodation the Board determined there is a need for the appointment of a guardian, limited to the question of where TW is to live.
Eligibility of potential guardian
30. The applicant nominated herself in the application as the TW’s guardian.
31. During the hearing DU put herself forward as a potential guardian but towards the end of the hearing suggested the appointment should be of an independent guardian. There was some merit in that however given the limited decision that needed to be made by the guardian, and the evidence of Ms Wright of the TW’s wishes, the Board did not consider that necessary.
32. The Board may appoint a person as guardian if the Board is satisfied they meet the criteria set out in 21(1)(a) – (c) inclusive.
33. That is, the person:
(a) will act in the best interests of the proposed represented person; and
(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and
(c) is a suitable person to act as guardian of the proposed represented person.
34. Section 21(2) (a) – (d) inclusive set out the matters the Board must take into account in determining whether a person is suitable to act as a guardian of a represented person.
They are:
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.
35. The applicant power of attorney for TW. She administers TW’s finances. She is aware that decisions need to be made in the best interests of TW, and demonstrated that she undertakes the role responsibly, seeking professional advice when she needs to.
36. Consideration is given to an enduring guardian instrument of appointment which TW executed, but did not register in 2016. In that instrument TW sought to appoint the applicant as her guardian. Weight is attributed to this, as it is evidence of TW’s wish as to who ought to be her guardian.
37. During the hearing the applicant said that she had consulted her sisters about their mother. Whilst their relationships had not always been cordial, the applicant had involved, or tried to involve, her sisters in their mother’s affairs. This is demonstrated by her putting arrangements into place as attorney, for DU and KU to be able to travel to see TW.
38. The applicant said the only reason she wanted guardianship was to keep TW at MCT. Based on the evidence of Ms Wright about this, this is in accordance with TW’s wishes.
Conclusion
39. After hearing an application for a guardianship order in respect of TW :
The Board was satisfied that TW
· is a person with a disability, and
· is unable by reason of the disability to make reasonable judgements in respect of their person and circumstances; and
· is in need of a guardian.
THE BOARD ORDERS
That GH be appointed as TW’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where TW is to live either permanently or temporarily.
That the order remains in effect to 12 April 2021.
Virginia Jones
CHAIR
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