TWS (Guardianship and Administration)

[2010] TASGAB 14

GUARDIANSHIP AND ADMINISTRATION BOARD
ULVERSTONE

TWC on the application of Adult Community Mental Health, Department of Health & Human Services

Neutral citation: TWS (Guardianship and Administration) [2010] TASGAB 14

GAB No XXXX of 2010

REASONS FOR DECISION

Leon Peck (Chair)
Mary Davies (Board Member)
Abigail Bindoff (Board Member)

Decision:  23^rd day of July 2010

Guardianship – elderly woman with mental illness living independently without adequate support – family support exhausted
Guardianship and Administration Act 1995 s 20

1. On 30^th June 2010, the Board received an application for the appointment of an administrator and guardian for TWC. The applicant was Adult Community Health North West, Department of Health & Human Services, case manager for TWC. Such application was made pursuant to sections 20 & 51 of the Guardianship and Administration Act 1995 ('the Act”)

1. TWC was 71 years of age at the time of the application and the hearing.  TWC resided alone in a Housing Tasmania unit in Devonport.  She is in receipt of Centrelink benefits.

1. In accordance with the usual procedures of the Board the hearing was conducted by the Chair as an informal discussion, all parties being present at the same time and able to contribute to that discussion where their evidence was relevant to a particular question.

The hearing:

1. The Board heard the application on the 23^rd July 2010 and had available to it:

   • the application
   • the Report to the Board dated 8^th July 2010 from Valerie Hannon, Education and Investigation Support Officer, Guardianship and Administration Board
   • the Aged Care and Assessment Team Report dated 23^rd December 2009
   • the Health Care Professional Report dated 29^th June 2010 from Dr W. Wahaib, Consultant Psychiatrist

1. The following persons attended the hearing:

   TWC – proposed represented person
     Mrs Val Chapman – Clinical Nurse Consultant, Mental Health Services representing                 the applicant
     NC – the daughter of TWC
     Mr Jim Paterson – Advocacy Tasmania, TWC' advocate
     Mr Graham Stagg – representative of the Public Trustee
     Ms Kate Clayton – representative of the Public Guardian (via telephone link)

Evidence of Disability and Incapacity (sections 20(1)(a) & (b))

1. The request for a Statement of Reasons for Decision was received from Lisa Warner, Public Guardian.  The Board has confined this statement of reasons to its decision to appoint a guardian.

1. Dr W. Wahaib, Consultant Psychiatrist supplied a completed pro forma Health Care Professional Report dated 29^th June 2010.  He stated that TWC has a deteriorating psychiatric disability and described that disability as chronic schizophrenia with cognitive impairment.  He stated that her medical condition has resulted in:

“lack of insight”
   “her being at risk of deterioration in her lifestyle and physical well being”

Dr Wahaib stated in response to the question on TWC' capacity to make reasonable decisions in relation to lifestyle matters:

“she cannot make reasonable decisions about moving to a nursing home and she is at high risk in living alone”

1. The Aged Care Assessment Team Report completed by Sandra Fry and dated 22^nd December 2009 stated that TWC needed help or supervision in relation to:

   ·self care

   ·moving around places at home or away from home

   ·health care tasks

   ·activities involved in social and community participation

   ·domestic assistance

   ·meals

   ·home maintenance

   The Report also identified that TWC required:

   “a lot of assistance with showering and dressing during recent respite stay”

The Report revealed that TWC no longer had the capacity to manage her own medication, it now being managed by Community Nursing from a locked container.

The Report also disclosed diagnosed diseases/disorders in addition to her schizo-affective disorder as:

• heart disease
• diabetes mellitus Type 2 (NIDDM),
• suspected TIA
• COPD

The ACAT Report also concluded that high level residential aged care to be the most appropriate for the client's long term care needs.

1. Mrs Val Chapman in addressing the application stated that whilst TWC lived independently in a unit the “limited support” TWC received was insufficient to ensure that her safety and health care needs were appropriately met.  Mrs Chapman stated that those involved in the care of TWC had reported concerns for her safety.  Written comments provided by the staff involved in her care included:

“has had falls, has flooded her lounge, locked herself out of her unit, needs signs in the kitchen to remind her to turn her stove off, loses things, is forgetful, She needs to be placed in residential care in a nursing home but TWC is resisting this idea at present.
She is not allowing access of some services, there are hygiene and personal care issues, there is no support available at night when TWC is most vulnerable, She needs more care and support than she is able to receive at home, She is becoming more suspicious, confused and paranoid contacting the police and emergency services without any real need”. 

11.NC advised the Board that she had been assisting her mother for approximately 8 years with the management of her money and had assumed the role of person responsible for her mother's medical and health care decisions.  NC advised the Board of the proposed represented person’s non-compliance with medication and the subsequent intervention of community nursing. She advised that the medical history of TWC was not confined to her psychiatric illness but also included diabetes and heart disease and the importance of the appropriate management of these conditions.

NC described herself as “fed-up” trying to help her mother and “getting nowhere.”  She described the relationship as becoming “strained” and therefore no longer wanted to retain or continue with the responsibility she had assumed in health care, lifestyle and financial issues.

NC described the relationship with her mother as fluctuating between “very loving and aggressive”.  She also believed that her mothers' condition was deteriorating rapidly, becoming more confused and that she was increasingly prone to wandering.  NC agreed that her mother's accommodation needs were not being adequately met and a decision was needed in respect of her accommodation.  NC also reinforced the safety concerns expressed by the applicant.

1. TWC became quite agitated at the hearing.  She refuted the aforementioned evidence claiming she was capable of managing her own finances and looking after herself.

2. Mr Paterson reinforced the claims of TWC stating that she wished to manage her own finances and that she felt strongly about her ability to make decisions about where she should live.

Need for a guardian (section 20 (1) (c))

a.          At the date of the hearing TWC lived in Devonport.  She had Community Nursing support to manage medications and assistance from Anglicare for 7 hours per fortnight. 

b.         The Board, on the weight of evidence available, considered the current accommodation arrangements as inappropriate.  However TWC felt strongly to the contrary stating she was capable of deciding where she should live and was considering returning to New Zealand.  

c.          For some eight years NC had been assisting her mother with her finances and making the rational appropriate and reasonable health and well being decisions on behalf of TWC. The Board heard of non-compliance with medication and the subsequent intervention of community nursing, the medical history of TWC that was not confined to her psychiatric illness but included diabetes and heart disease and NC' decision to step-away from providing the support associated with the role of person responsible.  This left no one to make the appropriate, rational and reasonable health and well being decisions on behalf of the proposed represented person. TWC divorced from her husband some 25 years ago and her other two children both live overseas and have limited contact with their mother.

The decision:

1. The Board accepted the Health Care Professional Report, the Aged Care Assessment Team report and the application.  The Board also accepted the oral evidence provided at the hearing by Mrs Val Chapman and NC which was consistent with the aforementioned documentation.  The Board concluded that the proposed represented person was a person with a disability who was unable by reason of that disability to make reasonable judgements in respect of her person and circumstances and was in need of a guardian. 

1. The Board addressed the issue of limitations to the order.  The Board concluded that the need for independent objectivity in relation to appropriate accommodation was a priority.  In relation to health and well being issues the Board considered there to be a need  given the presence of multiple health related issues, dynamic in nature, that required on going care and support and therefore appointing a guardian to make decisions relevant to those issues was appropriate.  NC had previously supported her mother with medication decisions, decisions about the provision of services and accommodation issues.  Now that NC had withdrawn that level of support, TWC was left without any assistance to make personal decisions and was clearly leaning towards decisions that could threaten her personal safety and wellbeing.  Therefore the Board believed a limited guardianship order would be insufficient.

Conclusion:

After hearing an application by Adult Community Mental Health Services in respect of TWC (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 her person and circumstances; and

• is in need of an administrator and a guardian;

THE BOARD ORDERS

1. That The Public Trustee be appointed as the represented person’s administrator.

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

4. That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.

5. That the order remains in effect to 22 July 2013.

Leon Peck
Chairman