XDD (Guardianship and Administration)

[2018] TASGAB 2

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

XDD – Application for appointment of a guardian and administrator

XDD (Guardianship and Administration) [2018] TASGAB 2

REASONS FOR DECISION

Michael Stoddart (Chair)
Lindi Wall (Member)
Grant Kingston (Member)

Hearing Date: 10 January 2018

Need for orders of administration and guardianship – a 73 year old man, estranged form wife – diagnosed dementia and needing nursing home care/resisting - appointment administrator and guardian

Guardianship and Administration Act 1995 s20, s51

What the Board decided

1. The Board ordered, on 10 January 2017 that a short-term appointment of a guardian for six months, needed to settle the arrangements of care and support, be made.  A longer-term appointment of an administrator, needed to help XDD manage his financial affairs to meet his obligation to support his family, to meet future costs and to repay the debt of past care at the aged care facility should this be pursued, be made.  The Board is satisfied these orders are the least restrictive possible in these circumstances.

Background

1. In 2017, XDD came to the attention of the Older Persons Mental Health Service (OPMHS) in Hobart.

2. XDD is a 73-year old man living in a suburb in Hobart with his wife, WD and their three year old son.  Their known income is a Centrelink pension.  Their home belongs to WD’s family.  Relatives of WD often live with them.  XDD has adult children from a previous relationship, whom he is now estranged from.

3. On four occasions in the latter part of 2017 and early 2018 XDD was sent by ambulance to Accident and Emergency at the Royal Hobart Hospital by his wife who advised she could not cope with him at home.  XDD was diagnosed as suffering chronic obstructive pulmonary disease, atrial fibrillation, stomach ulcers and had several accidental injuries.  The OPMHS records show he was in chronic pain.

4. In October 2017, Dr Martin Morrissey, an old age psychiatrist working with OPMHS, saw and diagnosed XDD.  Dr Morrissey reported to the Board on 12 December 2017 that he found XDD to have vascular dementia, with increasing cognitive decline.  He noted in his report that his home was “chaotic”, that XDD’s care was not acceptable and that his mental state had depreciated to a serious level in the past 18 months.  He was concerned at the level of XDD’s agitation and that his wife was unable to understand her husband’s condition and needs.  He noted that XDD was too disabled to manage his own affairs.  He recommended that XDD needed home care.  He noted his concern that XDD could be exploited because of his health related vulnerability.

5. In November 2017 Ms Rachel Smith, a registered nurse working with OPMHS, was appointed as Case Manager for XDD after Dr Morrissey’s diagnosis.

6. On one occasion in November 2017 when XDD was in the Royal Hobart Hospital his wife requested that he have respite care.  This was arranged by Ms Smith and XDD was transferred to an aged care facility.  WD spoke of being unable to care for him at home any more, said he was “a leach” and that his behaviour was “erratic”.  Ms Smith said that at home, in hospital and in the aged care facility, XDD behaved in an excessively abusive manner, to those helping him.

The Hearing

1. The following persons attended the hearing:

• Ms Rachael Smith, Case Manager and Registered Nurse with OPMHS and applicant

• Ms Sarah Campbell, Solicitor at the Legal Aid Commission

• LB, for the Director of Nursing at the aged care facility, a nurse known to XDD

• Ms Mandy Russell, from the Office of the Public Guardian

• Mr Mathew Gardner, from the Office of the Public Trustee

• Dr Martin Morrissey was not present at the hearing as his diagnosis of escalating dementia was not challenged

1. The Board had the following documents before it:

• Application for Guardianship by Ms Smith, OPMHS

• Healthcare Professional Report, Dr Martin Morrissey, 13 December 2017

• My Support Plan from ‘MYAGEDCARE’ Hobart

• Power of Attorney (XXXX) dated 7 August 1981

• Guardianship and Administration Board Information Report, 10 January 2017

10.  The Board heard from Ms Smith that XDD’s living conditions at his home were unacceptable and that WD did not understand how to manage her husband and his illness.

11.  WD was concerned that she would lose access to his pension if he was in care.  XDD appeared to be less agitated and gained weight while in respite care at the aged care facility.  His wife visited him twice while he was in care (from 24 November to 12 December 2017) but these visits were not successful as the couple were both quarrelsome.  XDD had complained to Ms Smith that he had not seen his pension money for seven years and that he feared going home because of his wife’s temper.

12.  XDD, of his own volition decided to leave the respite care and go home.  After his return from the aged care facility, WD again had her husband admitted to the Accident and Emergency Department of the Royal Hobart Hospital, claiming again she could not manage him and that XDD’s mental health had declined over the last twelve months.

13.  A Power of Attorney made by XDD in 1981 was not relevant, as it was not an enduring power.

14.  The Board heard evidence from WD by telephone as she said her husband was too unwell to attend and so she was at home caring for him.  WD stressed a number of times that she could care for him at home and that she opposed guardianship.

15.  When the Board asked to speak with XDD, WD stated that was not going to be helpful as he was ‘totally deaf’.  However, XDD did speak to the Board and denied any need for care.  He too stated that he opposed the application for guardianship as his wife could care for him.  His comment to the Board was brief.  WD interrupted her husband’s comments frequently.

Is XDD a person with a disability?

16. Pursuant to section 20 (1)(a) and 51(1)(a) of the Guardianship and Administration Act 1995 (the Act), the Board took into account the report of Dr Martin Morrissey and evidence from the applicant.

17.  Dr Morrissey’s diagnosis of 13 December 2017 of dementia satisfied the Board that XDD, by reason of this illness, is unable to make reasonable judgements in respect of all or any matters regarding his person and circumstances of his estate.  The applicant, Ms Smith, who was XDD’s Case Manager, concurred.

18.  Tests conducted by MYAGEDCARE support this finding.  XDD’s ability, measured on the Montreal scale, was below average.  Ms Campbell, acting for XDD, did not contest these findings and noted that the issue was one of meeting XDD’s needs.

Is XDD incapable by reason of his disability of making reasonable judgements in respect of matters relating to his person?

19. Pursuant to section 20 (1)(b) and section 50(1)(b) of the Act, Dr Morrissey specifically addressed this question in his Health Care Professional Report to the Board. He found XDD was unable to manage day to day finances and unable to make reasonable decisions about where he should live.

20.  Evidence given of the PRP’s wife’s control of finances, together with comments made at the aged care facility (about not having pension) and assessment by ACAT/My Aged Care support the finding of incapacity.

21.  The evidence provided by Ms Smith, the history of four largely unnecessary admissions to Royal Hobart Hospital over a short period of time, the evidence of the improvement in XDD’s previously abusive behaviour to care staff, the benefit of proper care to his physical condition when in the aged care facility and concessions made by his wife about his declining medical state, underpinned by Dr Morrissey’s diagnosis, satisfied the Board that XDD was unable to make reasonable decisions about his finances or his person.

22.  In the Board’s opinion XDD’s dementia impacted on his ability to recognise the extent of his disabilities and to reason what was needed to treat and accommodate them.

Is XDD in need of a guardian?

23. Pursuant to section 20 (1)(c) of the Act, the Board was persuaded by all the evidence available to it, that a limited guardian was required to make decisions about XDD’s accommodation and support services. The Board was satisfied WD could not understand nor accept and respond appropriately, to her husband’s needs.

24.  While in The Gardens, XDD expressed a wish that a daughter from a previous marriage should be appointed as his guardian.  However, the Board deemed this unsuitable given the lack of connection and contact with all his adult children.  In any event that daughter, when spoken to by Board staff, declined to do so.  This daughter recommended her father have public guardianship and a trustee.  In these circumstances, it was the Board’s opinion that the Public Guardian be appointed to deal with XDD’s accommodation and support.

Is XDD in need of an administrator?

25.  Pursuant to section 51 (1)(c) of the Act, the Board was satisfied that XDD has a need to have access to his pension but claims he is prevented from doing this by his wife.  There is need for costs associated with his future care to be met and further needs for contributing to his family’s care and repayment of debts incurred, to be organised.

26.  The Board was of the opinion that although there is no known estate and that XDD is reliant on a Centrelink pension, his current circumstances, the history of agitation between him and his wife and the lack of access to his funds, that WD is not an appropriate person to take on this role.  The assistance of an administrator at arm’s length is required. 

Conclusion

Guardianship

After hearing an application for a guardianship order in respect of XDD 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 their person and circumstances; and

• is in need of a limited guardian.

THE BOARD ORDERS

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

2. That the powers and duties of the guardian are limited to decisions concerning;

   i.where the represented person is to live either permanently or temporarily; and

   ii.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.

3. That the order remains in effect to 9 January 2019.

Administration

After hearing an application for an administration order in respect of XDD the Board was satisfied that the represented person:

• is a person with a disability;

• is unable by reason of the disability to make reasonable judgements in respect of their estate; and

• is in need of an administrator.

THE BOARD ORDERS

1. That the Public Trustee be appointed as administrator of the estate of the represented person.

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 order remains in effect until 9 January 2021.

Michael A Stoddart
Chair

12 February 2018