WM (Administration)
[2010] TASGAB 24
•4 November 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
WM application for administration by the Royal Hobart Hospital
Neutral citation: WM (Administration) [2010] TASGAB 24
REASONS FOR DECISION
Elizabeth Dalgleish (Chair)
Administration – whether proposed represented person is a person with a disability – incapacity to manage her estate – least restrictive alternative
Guardianship and Administration Act 1995 – section 6, 51
This is an application by Jane Miller, a Social Worker at the Royal Hobart Hospital (RHH) to appoint an administrator for WM, the proposed represented person. To appoint an administrator the Board must be satisfied of the factors in section 51(1) of the Guardianship and Administration Act 1995 which are that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made:
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate–
The proposed represented person is a 61 year old woman who has recently moved to a Nursing Home because she was no longer able to manage in her home with the Care Plans provided for her. An administration order is sought to assist with the payment of nursing home fees and the management of other accounts and expenses.
Prior to this hearing the proposed represented person has been assisted with her finances by her daughter DM and friend MI. This support enabled the proposed represented person to manage her finances adequately. However, this support is not able to continue due to the considerable pressure that this has placed upon DM's daughter, DM. MI is also not in a position to continue in this role.
A key question in this application related to conflicting medical reports regarding whether the proposed represented person had a disability. Dr Davis’ report indicated that the proposed represented person had a disability and was incapable of managing her estate, but Dr Cox reported with a contrary view.
The hearing took place in Hobart on 28 September 2010. Those present at the hearing included:
· WM – the proposed represented person,
· Megan Bernier - Social Work Department at the RHH on behalf of Jane Miller, the applicant,
· DM, - the proposed represented person’s daughter,
· Methchild Neumann - Advocacy Tasmania
· Valerie Hannon - Investigator, Guardianship and Administration Board, and
· Justin Clifford - The Public Trustee.
In the early stages of the hearing, the proposed represented person encountered medical difficulties, which led to a seizure. An offer from the chair was made to those at the hearing to reschedule the hearing, however the advice from the proposed represented person and those that were with her at the hearing, was that she was sufficiently recovered to enable the hearing to continue and that she wanted to “get it over and done with”. At the conclusion of the hearing the proposed represented person suffered a more major seizure and lost consciousness. An ambulance was called and it was later reported that she made a good recovery and was well the following day.
Section 51(1)(a) – Evidence of a Disability
A Health Care Professional Report (HCPR) provided by Caroline Davis, a Clinical Neuro Psychologist, who had examined the proposed represented person on 1 July 2010, states that the proposed represented person has a disability due to an Acquired Brain Injury resulting from a Middle Cerebral Artery Aneurysm. She indicates that the proposed represented person’s disability is deteriorating and fluctuating and that there is unlikely to be an improvement in cognition and more likely to see deterioration. In the HCPR Caroline Davis states that the proposed represented person lacks insight into the risks she is at without appropriate levels of care. This relates directly to her ability to acknowledge the need for financial contributions to her care.
Evidence at the hearing provided by the proposed represented person, also included her inability to see numbers and that she needed assistance to pay bills. The proposed represented person referred to a medical opinion that she had received from someone at “the Repat” who had said that this impairment was due to the changes in her brain and that this was part of her brain that had been damaged.
In relation to Dr Cox’s statements, the evidence from the hearing and from Caroline Davies outweighed the opinion that he has provided. The Board was satisfied that the proposed represented person is a person with a disability.
Section 51(1)(b) – Evidence of Incapacity
In the past the proposed represented person had paid her bills successfully using options such as BPAY and telephone banking. The proposed represented person provided evidence that her ability to manage money and bills had been very good. Her evidence was that currently, she is unable to meet and pay her bills because of her physical restrictions.
The proposed represented person indicated to the chair that she had been very good at managing her finances, particularly when her husband had needed treatment and she had borrowed money to pay for this treatment. The proposed represented person provided evidence of how she would like to pay her bills but this evidence was undermined by the fact that she could not identify problems in what she was proposing such as BPAY without being able to see the numbers etc.
The proposed represented person was strongly of the opinion that she did not want an administrator appointed and that she could manage her money herself. These wishes were taken into account in the decision making process.
As noted above, Dr Roger Cox provided a letter with regard to the proposed represented person’s capacity to make financial judgments. In that letter he states:
"I consider that WM is capable of making decisions concerning her financial affairs ... medical treatment and her living conditions. Unfortunately she is forced to live in a nursing home because of her physical disability and the inability of carers from <XXX> to care for her in her home".
Other evidence indicated that the proposed represented person has a lack of awareness about prioritising her bills and budgeting adequately. As noted above, the proposed represented person has also showed insufficient awareness and understanding regarding the effects that the physical disability has on paying bills without assistance and the risks associated with this.
Evidence from two other witnesses supported the contention that the proposed represented person lacks capacity to manage her estate. Firstly, the applicant stated that the proposed represented person is very generous and could be open to providing assistance to others even if she is not in a position to provide funds to others.
Secondly, DM provided evidence in the hearing that her mother needs assistance with the payment of bills due to her disability. The evidence provided by DM was difficult for her to give and was clearly distressing for her mother to hear. DM stated she has “burnt herself out” as a result of providing this support in paying bills etc to her mother.
During the hearing proposed represented person provided evidence that she had entered into an expensive Telstra phone contract which still left her with further costs in addition to the plan. By contrast, DM stated that her mother had just finished paying off one plan and that she had not needed to sign up for another plan. The proposed represented person had applied for this phone account with the assistance of a friend. The phone plan was beyond what the proposed represented person could reasonably afford. For instance, in January 2010 MI had paid a phone account for the proposed represented person, which amounted to in excess of $900. This account may have been prior to the current phone plan being taken on.
The proposed represented person has a GE account for in excess of $3000. Cigarettes cost her approximately $100 per fortnight. Further costs also included pharmacy and other sundries. In discussions regarding spending during the hearing, the proposed represented person could not clearly state how she could meet all her financial commitments and still pay the nursing home fees.
This sort of spending beyond her means has put a lot of pressure on DM in her attempts to assist her mother with her finances. DM herself is suffering from a mental health condition and would rather have this part of their relationship resolved.
Based on the medical evidence from Caroline Davis and the evidence from the hearing including the statements from the proposed represented person regarding her ability to manage her finances, the Board was satisfied that the proposed represented person is unable by reason of the disability to make reasonable judgements in respect of matters relating to her estate. The proposed represented person needs assistance to do this not only because of her physical restrictions but also because of her cognitive impairment.
Section 51(1)(c) – Evidence of need for an administrator
Both the applicant and the DM provided evidence in the hearing about the proposed represented person’s inability to manage her finances adequately. An expensive phone plan had been entered into by the proposed represented person which together with her cigarettes and other expenses needed careful budgeting or negotiation to provide a good outcome for the proposed represented person.
The proposed represented person had been refusing to voluntarily pay for her Nursing Home fees.
How did the need relate to the person’s wishes, their best interests and their freedom of decision and action (section 6 principles)? As there was clearly a need for an administrator to be appointed, it would have been less restrictive to appoint an appropriate friend or family member. This however was not a possibility in the circumstances. This order was clearly in contradiction to the proposed represented person’s wishes as she is fiercely independent lady and has in the past been very good with the payment of bills with assistance. However, due to the decline in her capacity, there was no other least restrictive option that could have been put in place, which would have provided her with the assistance that she requires. Discussion during the hearing with the Public Trustee included trying to facilitate the retention of a mobile phone for the proposed represented person whilst still meeting her other expenses.
There was concern by the proposed represented person about the fees of The Public Trustee, however during the hearing it was ascertained that Strathhaven would accept payment of fees by Centrepay thus considerably reducing some of the administrator’s costs.
Appropriateness of appointee
The Public Trustee was nominated as the most suitable administrator as there was no one else suitable and available to take on the role. Centrepay options were explored in an effort to keep the Public Trustee costs to a minimum.
THE ORDER:
That the Public Trustee be appointed as administrator of the estate of the represented person.
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 until 27 September 2013.
ELIZABETH DALGLEISH
Date of Decision
Dated 4 November 2010
0
0
0