TX (Guardianship and Administration)
[2011] TASGAB 5
•19 April 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TX – Application for appointment of a guardian and an administrator order by Health West Rural Health Service
Neutral citation: TX (Guardianship and Administration) [2011] TASGAB 5
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 29 March 2011
Date of request for statement of reasons: 5 April 2011
Date of delivery of reasons: 19 April 2011
Guardianship and administration – incapacity to make reasonable personal and financial judgments – need for an administrator – suitable person for appointment as administrator
Guardianship and Administration Act 1995 sections 20, 51
Health West Rural Health Service applied for the appointment of a guardian and an administrator for TX on 13 September 2010. The Board must be satisfied that TX is a person with a disability, that such disability renders him incapable of making reasonable financial and personal judgments and that he is in need of a guardian and an administrator. TX is a 66 year old man who lives in his own home at North West, Tasmania. He is in receipt of Centrelink entitlements. Health West Rural Health Service provides case management services for him.
The Board commenced a hearing of the application on 15 October 2010 in North West but adjourned to enable TX to obtain alternative medical reports. Those reports were not received, but changes in TX’s circumstances resulted in the Board making an emergency administration order on 17 February 2011 and the re-listing of the application.
A fresh Board heard the application at the Royal Hobart Hospital on 29 March 2011. Present at the hearing were:
TX
Judy Smith – his advocate from Advocacy Tasmania
HS – his case manager and the applicant (by phone)
AN – a friend (by phone)
Dimity Davis – RHH surgical social worker
Leanne Smart – RHH Aged Care nurse
Kerry Millhouse – RHH surgical nurse
Kylie Butcher – Medical Registrar (observing)
Delphin Sands - Medical Registrar (observing)
Dr Don Cantino – RHH Geriatrician
Kate Clayton – Public Guardian representative
Jessica Watson – Public Trustee representative
Is TX a person with a disability? – Sections 20(1)(a) and 51(1)(a)
In the Guardianship and Administration Act 1995 a "disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.
The Board had the following medical reports available at the hearing:
Dr. Jane Tolman – 30 July 2010
Dr. Jane Tolman – 15 November 2009
Dr. Takavada Mapfumo – 2 September 2010
Dr. Donald Cantino – 8 March 2011
These reports are consistent in stating that TX has an acquired brain injury and epilepsy and all except Dr Cantino’s report note that he has borderline intelligence. TX neither accepted nor rejected those diagnoses. According to the reports, the brain injury resulted from a tumour and brain surgery as a child. Dr Cantino noted that his seizures may be contributing to continuing brain damage. The reports noted that TX experiences deficits in a range of daily activities resulting from the brain damage. The Board was satisfied that TX has a disability within the meaning of the Act.
Is TX incapable of making decisions about his estate? – Sections 51(1)(b)
Dr Mapfumo’s report notes that TX can recognise imminent financial problems but has difficulty with planning and solving the problem. He also stated that his capacity to make reasonable decisions about his estate fluctuates on a daily basis, but is averagely poor and deteriorating.
Dr. Cantino considered that TX’s reliance upon an unqualified friend to assist with financial management rather than a professional adviser, such as an accountant or a financial adviser, was evidence of his incapacity. AN is the friend who assists TX to manage his finances. He told the hearing that he commenced assisting TX to make financial decisions when he was having difficulty paying his bills and meeting basic financial requirements. He and TX agreed that he would not manage financially without that assistance. The Public Trustee noted that his estate is in good order but is relatively limited in size. Given the limited size of his estate, the Board did not accept Dr. Cantino’s proposition. However, the Board was satisfied on the evidence that TX is not capable of making reasonable judgments about his estate.
Is TX incapable of making decisions about his person and circumstances? – Sections 20(1)(b)
The applicant noted that TX does not attend well to personal care and hygiene and does not appreciate the risks to himself when he declines care that is offered to him. His personal hygiene is compromised by his incontinence. TX’s poor hygiene prior to hospitalisation has lead to his isolation from involvement in community events that he previously enjoyed. The applicant noted that at the time of discharge from various hospital stays, TX habitually agrees to the delivery of personal care to his home but cancels or by his actions compromises the delivery of that care that soon after he arrives home.
Dr Cantino reported that TX had expressed a desire to discharge from hospital on this occasion at a time when it was unsafe to do so. Of interest, the current admission from hospital is for the purpose of treating burns to his body occasioned when he was attempting to shower himself at home. Even in hospital, he has been at risk of falls because of poor mobility but continued against advice to get out of bed unaided to the extent that a bed check alarm was temporarily installed to enable staff to monitor his movements. These examples demonstrate a lack of insight into his physical difficulties and his need for care.
The applicant reported that, in addition to compromising nursing and hygiene care in his home, TX is inconsistent in taking essential epilepsy medication. TX stated at the hearing that he takes medication exactly to medical directions, but then also admitted that sometimes he may delay taking medication by up to two days without incident. He stated his belief that he could miss two to four days of medication and the accumulation of drugs in his system would protect him. Dr Cantino noted that the drugs do not have cumulative effect and missing medication for even one day puts him at immediate risk of seizures and therefore further brain damage.
Dr Cantino reported that TX is verbose but cannot stay on a subject, his thinking is concrete and his attention span is short. The frontal lobe damage has resulted in deficits in executive functions, such as a lack of impulse control, susceptibility to influence, a lack of planning and reasoning skills and the capacity for new learning.
Dr Cantino stressed that TX’s sexual and aggressive behaviour with community nurses who attend his home to provide care has threatened the continuation of this protective services. TX rejected those assertions. Nurses at the Royal Hobart Hospital did not report any inappropriate behaviour other than early in his admission where the administration of a drug called ketamine lead to him making inappropriate remarks.
TX gave long explanations for each of the risks and how he intends to manage them upon discharge. However his performance at the hearing confirmed the reports of concrete thinking and also appeared to have a quality of confabulation on occasions. Noting the contents of the medical reports and the evidence given at hearing, the Board was satisfied that TX is incapable of making reasonable decisions about his person and circumstances to the extent of not appreciating the risks to himself in rejecting personal hygiene and health care.
Is TX in need of an administrator? – Section 51(1)(c)
TX has a modest estate with around $2000 in cash and a minimal holding in shares. He acknowledged at the hearing that he would not cope with his financial obligations without the assistance of AN because of his uncontrolled expenditure. The applicant and Dr Cantino expressed concern that AN’s support role lacked lawful authority and the checks and balances that come with such authority. The evidence suggested that AN’s assistance has been beneficial to TX. In addition to the management of day to day finances, it is also likely that TX may inherit money from his recently deceased step-father’s estate and because of his incapacity he would need assistance to make decisions about the use or investment of those funds.
The Board was satisfied that TX is in need of an administrator.
Is TX in need of a guardian? – Section 20(1)(c)
TX’s refusal of personal and health care services has jeopardised his future ability to live independently and participate in the community. If he cannot receive care in his home, he will not be safe to return there. His sporadic refusals of personal and health services are contrary to his best interests. A guardian can countermand any refusals of service. TX stated his belief that he would be capable of discharge very soon, but the medical evidence suggested he may require a further two weeks hospitalisation. A guardian is needed to assess whether he is safe for discharge or not and upon discharge whether his home is safe for him to return to and the level of service required to make it sufficiently safe. The Board is satisfied that TX is in need of a guardian.
Who shall be appointed guardian and administrator?
The applicant nominated the Public Guardian as TX’s guardian and the Public Trustee as his administrator. AN indicated during the hearing that he wanted to be considered as TX’s administrator. This also reflects TX’s wishes. Because AN’s nomination had not been the subject of an investigation by officers of the Board, the Board made an interim administration order appointing the Public Trustee so that AN has an opportunity to speak with Investigators and provide a Police Check to support his nomination. The Board will assess his nomination ‘on the papers’ after the conclusion of the hearing and make a final order at that point.
The Board considered that the Public Guardian is suitable for appointment as a guardian for TX.
CONCLUSION:
AFTER hearing an application by Health West Rural Health Service in respect of TX (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 his person and circumstances; and
is in need of a limited guardian;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning;
where the represented person is to live either permanently or temporarily,
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
arranging access to care and support services for the represented person.
AFTER hearing an application by Health West Rural Health Service for an administration order in respect of TX.
And the Board being satisfied that there are grounds for making an interim administration order pursuant to S73A of the Guardianship and Administration Act 1995 in respect of TX.
THE BOARD ORDERS
That the application for administration be adjourned sine die.
That pursuant to section 73A The Public Trustee is appointed as administrator of TX for the period of the adjournment and any subsequent adjournment or until the application is dismissed.
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 28 March 2014.
Anita Smith
PRESIDENT
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