UXT (Review Guardianship)

CITATION:	UXT (Review Guardianship) [2019] TASGAB 2
HEARING DATE(S):	15 January 2019
DATE OF ORDERS:	15 January 2019
DATE OF STATEMENT OF REASONS:	9 February 2019
BOARD:	Sandra Taglieri
APPLICATION	Review of Guardianship
CATCHWORDS:	Attendence of parties – additional guardianship powers – NDIS – support services and independent living
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20, 51, 73A
CASES CITED:

Statement of Reasons

Background

On 8 December 2017, the Board, constituted by a panel of three members, heard an application for appointment of a Guardian in respect of UXT. At the time of the hearing, UXT was in-patient at the Roy Fagan Centre in Lenah Valley, Tasmania. This facility is a specialised hospital for treatment of older persons with psychiatric illness or cognitive impairment.
On the basis of the evidence presented to the Board at the hearing on 8 December 2017, the Board was satisfied of the statutory requirements for making a Guardianship Order and, accordingly, a limited Guardianship Order was made pursuant to the Guardianship and Administration Act1995 (the Act).
The terms of the order made by the Board on 8 December 2017 invested in the Public Guardian, as the appointed guardian, powers limited to:
(1) decisions concerning where the represented person is to live whether permanently or temporarily; and
(2) providing consent to any reasonable measures required to convey the represented person to, and cause him to remain at the place of residence as determined by the guardian; and
(3) decisions concerning 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
(4) the power to restrict telephone communications from any person that the Guardian believe would have an adverse effect on the represented person as may be necessary in his best interests; and
(5) the use of a passport and decisions concerning overseas travel.
The Order made by the Board on 8 December 2017 was expressed to be one remaining in effect until 7 December 2020.
When the Board made the limited Guardianship Order in respect of UXT it also made an Administration Order appointing the Public Trustee pursuant to the Act.
On or about 7 December 2018, the Public Guardian made an application to the Board for review of the Guardianship Order that had been previously made and as described above.
The application was accompanied by the following documents that were considered by the Board, together with the contents of the application, when it convened for a hearing in respect of the Application for Review on 15 January 2019:
·     Heath Care Practitioner Report of Dr Alison Cleary, geriatrician, dated 9 November 2017;
·     Report of Dr Cleary dated 6 December 2018;
·     Discharge Summary from the Statewide Mental Health Division of the Department of Health & Community Services, recording the circumstances and history relating to the discharge of UXT from the psychiatric division of the Roy Fagan Centre, and discharge to the Geriatrics Ward of Roy Fagan Centre on 2 October 2018;
·     Report of Ms Nicky Targett, Guardian from the Office of the Public Guardian dated 7 December 2018; and
·     Annual Report and accounts from the Public Trustee dated 5 December 2018 with respect to the Administration Order that had been made in 2017.
The Application for Review of the Guardianship Order was listed for hearing at the Roy Fagan Centre on 15 January 2019. UXT had been given notice of the hearing, as had Dr Cleary, Dr Granar and Ms Whitton of the Public Trustee’s Office.
At the commencement of the hearing, I formally noted the documentation that had been filed with the application and received them as evidence. I inquired as to the absence of UXT and also his brother and sister-in-law who had been indicated to be interested parties.
Ms Targett, who was present at the hearing, indicated that she was likely to be the only person attending. To her knowledge, Dr Cleary and the social worker from the Roy Fagan Centre were on leave. I specifically inquired about UXT’s brother and was advised that, to Ms Targett’s knowledge, he would not be attending.
Information received from administrative staff at the Board disclosed the following:
Ms Louella Tria, a Social Worker at Roy Fagan Centre has advised UXT will not be attending the hearing due to anxiety and risk of aggression.
I formed the view that it was appropriate to continue with the hearing notwithstanding the absence of the represented person, given the contents of the medical reports before me, particularly the report from Dr Cleary. Her expert opinions confirmed the statement by Ms Tria that UXT was likely to become aggressive. Furthermore, I formed the view that he was unlikely to have any appreciation of the subject matter of the application and/or the variation of powers being sought by the Public Guardian.
I formed this view on the basis of Dr Cleary’s report of 6 December 2018, which stated:
UXT has moderate stage vascular dementia, with significant impairment of frontal and executive skills. UXT is grossly insightless as to his impairment and his increasing need for community care. UXT has not engaged well with formal testing due to agitation. There has been an expected gradual deterioration in his observed cognitive and functional skills. UXT continues to indicate a wish to leave hospital and live independently, but cannot detail his care needs or any services he may require.
I was also satisfied that it was appropriate to proceed with the hearing as the application by the Public Guardian sought additional powers to facilitate a less restrictive option, in particular, powers to facilitate and enable the transfer and discharge of UXT from the in-patient facility at Roy Fagan Centre, to live in the community but with significant supports[1].
[1] Annual Report of Ms Nicky Targett 7 December 2018.
The Application for Review was made pursuant to s57 of the Act and sought the continuation of a Guardianship Order but two additional powers:
a) An additional power to enable her to make decisions and give consents in respect of accessing the National Disability Insurance Scheme (NDIS). UXT, by virtue of the terms of the legislation contained in the NDIS Act 2013 became eligible for participation in the Scheme as at January 2019; and
b) To make decisions and give consent in respect of any support services UXT would benefit from that were unavailable either before he became a participant in the NDIS or, alternatively, that were not funded under the NDIS.
The issue for my determination was whether the granting of additional powers to the Guardian was in the best interests of UXT. I also considered that in order to continue the order and grant the additional powers, it was necessary to be satisfied that UXT:
a)    Continued to suffer from a disability;
b)    By reason of that disability, continued to be unable to make reasonable judgments in respect of his personal circumstances; and
c)    Continued to need a guardian, and whether there was a less restrictive option available.
During the hearing, Ms Targett spoke to the contents of her Annual Report to the Board dated 7 December 2018 and confirmed that the time was approaching where UXT would need to be discharged from the Roy Fagan Centre. She explained that between the Public Guardian’s Office and the Public Trustee, it had been determined that because UXT had always expressed a wish to continue living independently in the community, the likely way to facilitate this involved the purchase of a unit for UXT (as he had sufficient funds in his estate to do so) and to provide regular formal supports such as shopping, meal preparation, appointment management and crisis management. Ms Targett also indicated that due to UXT’s eligibility for NDIS funding, it was in his best interests to ensure that he became a participant of the Scheme, so that supervision, care and formal supports could be provided (to a degree or fully) without having to deplete his personal estate.
The report of Dr Cleary dated 6 December 2018 identified that considerable planning work had already been undertaken in relation to facilitating a less restrictive option in relation to UXT’s accommodation. In particular, Dr Cleary states in her report:
UXT has engaged in functional skills assessment and access visits to two units with occupational therapist, Alison Graham. A report has been provided to his guardian in November 2018 to inform discharge planning. UXT is aware that a unit is being purchased but cannot recall a detailed plan for his community care. UXT has engaged well in attending two days support services which will continue in the community long term. UXT’s behaviours have settled considerably with this information and he is looking forward to his transition into the community which is planned for January 2019.

EVALUATION OF THE EVIDENCE

It was quite apparent that UXT continued to suffer a disability and by virtue of that disability, is unable to make reasonable judgements independently or without support in respect of his personal circumstances.
I am satisfied that he continues to need a guardian. It is also clear that UXT’s condition had improved somewhat with the extensive and continuous treatment and management while he was at the Roy Fagan Centre, but equally, his treating team considered him well enough to be discharged into the community, but only if extensive supports could be provided to him.
Accordingly, I am satisfied that because it was UXT’s desire to live in the community rather than in an in-patient facility, and there was evidence to suggest that with the provision of adequate supports, he may successfully be able to live in the community in his own unit, it was not only appropriate, but necessary, to include additional powers for the purposes of the Guardianship Order, as the orders made in 2017 simply did not contemplate a situation where UXT may live in his own unit when discharged from the Roy Fagan Centre.

DETERMINATION

In conclusion, being satisfied that it was in the best interests of UXT to have the opportunity of residing in his own unit in the community as this was his preference, I was persuaded that two additional powers ought to be given to the Guardian; being powers relating to making decisions concerning the NDIS and support services.
The Guardianship Order was therefore formally varied pursuant to s68 of the Act and an order made in the following terms:
(i)    decisions concerning where the represented person is to live whether permanently or temporarily; and
(ii)   providing consent to any reasonable measures required to convey the represented person to, and cause him to remain at the place of residence as determined by the guardian; and
(iii) decisions concerning 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
(iv) the power to restrict telephone communications from any person that the Guardian believe would have an adverse effect on the represented person as may be necessary in his best interests;
(v)   the use of a passport and decisions concerning overseas travel;
(vi) advocating and/or making any decisions on the Represented Person’s behalf in respect of any national Disability Insurance Scheme (NDIS) plan development, plan implementation and / or plan review or appeal; and
(vii) providing consent to the provision of support services to the Represented Person.

[2019] TASGAB 2

15 January 2019