ZGS (Guardianship and Administration)
[2020] TASGAB 53
•8 October 2020
CITATION: | ZGS (Guardianship and Administration) [2020] TASGAB 53 |
HEARING DATE(S): | 8 October 2020 |
DATE OF ORDERS: | 8 October 2020 |
DATE OF STATEMENT OF REASONS: | 4 November 2020 |
BOARD: | Ms L Mollross, Member Ms M Duvnjak, Member Mr G Dibley, Member |
APPLICATION: | Guardianship and Administration |
CATCHWORDS: | who to appoint as guardian and administrator – potential for conflict – independent appointment |
LEGISLATION CITED: | Guardianship and Administration Act 1995, ss6, 20, 51 |
PUBLICATION RESTRICTION: | This decision has been anonymised for the purpose of publication. |
Statement of Reasons
Background
The Applicant made an Application for Guardianship and Administration in respect of Mrs ZGS dated 15 September 2020 (‘the Application’).
Hearing
The Board heard the Application on 8 October 2020.
Due to COVID-19 restrictions, the hearing was held by way of telephone.
In attendance at the hearing were:
a.Ms Megan Benier, substitute Applicant;
b.Mrs ZGS, the proposed represented person;
c.Ms Maddy Russell, Office of the Public Guardian;
d.Ms Rosemary Jurs, Public Trustee;
e.Ms TS, daughter of Mrs ZGS;
f.Mrs XS, daughter of Mrs ZGS;
g.Mr VS, son of Mrs ZGS;
h.Mrs NS, daughter-in-law of Mrs ZGS;
i.Mr LX, son of Mrs ZGS – attended for part of the hearing;
j.Ms Natasha Veenstra, Peacock Ward, Royal Hobart Hospital; and
k.Mr Brad Saunders, Advocacy Tasmania;
The Board had before it the following documents:
a.Application for Guardianship and Administration dated 15 September 2020;
b.Health Care Professional Report of Dr Kumar dated 7 September 2020;
c.Medical report from Ms Barbara Moerd dated 16 September 2020;
d.National Australia Bank Report dated 24 September 2020;
e.LIST Property Report dated 18 September 2020 for property situated at [the location in Tasmania];
f.Submission dated 29 September 2020 from Mrs NS and Mr VS.
Legislation
When the Board determines an Application for Guardianship Order it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). Those requirements are that the proposed represented person:
a.is a person with a disability; and
b.is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating his person or circumstances; and
c.is in need of a guardian.
When the Board determines an Application for Administration Order it needs to be satisfied of the matters in section 51 of the Act. Those requirements are that the represented person:
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 Board must also balance the principles in section 6 of the Act, which are:
a.the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and
b.the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
c.the wishes of a person with a disability or in respect of whom an application is made under this Act, are if possible, carried to effect.
A Guardianship Order may be made for a period of up to 3 years and an Administration Order may be made for a period of up to 3 years.
Who may be appointed as an Administrator:
Section 54 of the Act sets out who the Board may appoint as an administrator. The potential administrators include the Public Trustee and any other person who consents to act as administrator of Mrs ZGS’ estate provided that, in accordance with section 54(1)(d) the Board is satisfied that:
a.The person will act in the best interests of Mrs ZGS; and
b.The person is not in a position where his or her interest conflict or may conflict with the interest of Mrs ZGS; and
c.That person is a suitable person to act as the administrator of the estate of Mrs ZGS; and
d.That person has sufficient expertise to administer the estate.
In determining whether a person is suitable to act as an administrator the Board, pursuant to section 54(2) of the Act, must take into account:
a.The wishes of Mrs ZGS so far as they can be ascertained;
b.The compatibility of the proposed administrator with Mrs ZGS.
Who may be appointed as a Guardian:
Pursuant to section 21(1) of the Act, the Board may appoint the Public Guardian or any other person who so consents to act as guardian if the Board is satisfied that:
a.The person will act in the best interests of Mrs ZGS; and
b.The person is not in a position where his or her interests conflict or may conflict with the interest of Mrs ZGS; and
c.That person is a suitable person to act as the guardian of Mrs ZGS.
Pursuant to section 21(2) of the Act, in determining whether a person is suitable to act as guardian the Board must take into account:
a.The wishes of Mrs ZGS so far as they can be ascertained; and
b.The desirability of preserving existing family relationships; and
c.The compatibility of the proposed guardian with Mrs ZGS and with the administrator (if any) of Mrs ZGS’ estate; and
d.Whether the person proposed as guardian will be available and accessible to Mrs ZGS so as to fulfil the requirements of guardianship of Mrs ZGS.
Evidence
The Application discloses the following information:
a.Mrs ZGS has a disability, being mixed Alzheimer’s and vascular dementia;
b.At the time of the hearing, Mrs ZGS was an in-patient at the Royal Hobart Hospital (the RHH);
c.Mrs ZGS normally lives in her home with her daughter, Ms TS and Ms TS’ son UX;
d.Mrs ZGS is assessed as needing a high level of care, including support to walk with a wheeled walker and assistance to manage urinary incontinence;
e.The care Mrs ZGS receives at her home is wholly dependent on Ms TS remaining well and demonstrating sound judgment about her mother’s frailty and needs;
f.Mrs ZGS has reported that Ms TS’ son has displayed behavioural volatility while living in her home, which the Applicant believes is incompatible with Mrs ZGS’ care and safety requirements;
g.The Applicant believes that Mrs ZGS is vulnerable to coercion because of her frail physical state and dependence upon others.
During the course of the hearing, the Board was further advised by the substitute Applicant that:
a.In September 2016, Mrs ZGS had been scammed of $3,500 by a member of the public;
b.Mrs ZGS had disclosed to nursing staff during her hospital admissions that since her daughter, Ms TS, and grandson had moved in with her, approximately 12 months prior to her admission her money had decreased and she wanted them to leave her home;
c.The substitute Applicant advised the Board that upon admission to the RHH, Ms TS was reported to have requested that Mrs ZGS transfer $400 to her debit card in relation to laundry costs while in hospital. Mrs ZGS was unable to do this and sought assistance from hospital staff;
d.The substitute Applicant reports that Mrs ZGS has consistently reported financial, physical and emotional abuse including damage and destruction to her home and property by family members who reside with her. As she is physically frail and cognitively impaired, she has no ability to protect herself in her home environment and that abusive behaviour towards her has been recorded over numerous hospital admissions and specifically during the last two hospital admissions in 2020;
e.The substitute Applicant also remains concerned about the pressure and distress caused to Mrs ZGS from time to time when visited by family members while an in-patient at the RHH.
Health Care Professional Report
The Health Care Professional Report (‘HCPR’) by Dr Kumar accompanied the Application. Dr Kumar states that Mrs ZGS has a disability being mixed Alzheimer’s and vascular dementia which was diagnosed in August of 2020 although the condition has been evident for 2 years and is moderate with slow progression. Dr Kumar states that Mrs ZGS shows impaired judgment, insight and executive function with poor short-term memory recall which impacts her ability to manage financial decision making. His opinion is that she is vulnerable and susceptible to elder financial abuse which has been highlighted by concerns from community social worker reports. He identified that to her myriad of cognitive deficits there has been evidence of impaired problem solving and judgment and that his, in combination with her susceptibility to coercion, leaves her vulnerable because of her frail physical state and dependence on others. Dr Kumar further states that Mrs ZGS’ cognitively impaired judgment and insight leaves her vulnerable to family members’ attempts to interfere with healthcare decisions that might adversely affect her. He noted that Mrs ZGS has shown poor insight into her care requirements and adversely decided to cease care provisions in the community leading to inappropriate discontinuation of medical treatment, citing Mrs ZGS’ decision to decline Anglicare support in her home as illustrating impaired insight and judgment into her deficits, leading to periods of becoming unhygienic.
Dr Kumar advises that Mrs ZGS completed a Montreal Cognitive Assessment on 12 March 2020 and scored 13/30 and 1/5 on a mini cognitive test. Her previous Montreal Cognitive Assessment on 14 January 2019 scored 21/30 showing deterioration over 14 months. Mrs ZGS completed an assessment with an old age psychiatrist, Mr Martin Morrissey and Dr Ian Navin a Psychiatry Registrar on 19 August 2020 and on 13 August 2020 which showed she had a lack of capacity for financial decision making and lifestyle decision making and that she would benefit from appointing an independent public guardian.
Dr Kumar reported that because of Mrs ZGS’ impaired judgment, insight and executive function with poor short-term memory recall that this impacts on her ability to manage financial decision making. He also reported she is vulnerable and susceptible to elder financial abuse.
In relation to matters relating to personal decision making, Dr Kumar states that her cognition and impaired judgment and insight leaves her vulnerable and that she has shown poor insight into her care requirements and has acted adverse to her interests.
All family members present at the hearing agreed that an administrator and guardian were required. Dr Kumar’s evidence was not challenged and is accepted by the Board.
Report from Ms Barbara Moerd
Ms Barbara Moerd, Director of Allied Health Services for the Department of Health and Human Services at the RHH completed a report on 16 September 2020. Ms Moerd advised that Mrs ZGS was admitted to the RHH for the second time in 2020 by an Emergency Department admission in each case. Mrs ZGS had sustained 10 falls in 12 months as of 24 February 2020 and since that time had sustained two further falls one resulting in her current admission to the RHH on 25 August 2020 with two fractured bones in her back. Ms Moerd advises that Mrs ZGS had reported that she is living in a familial context of verbal, physical and financial abuse. Mrs ZGS has consistently disclosed this abuse to the RHH staff since 2020. Ms Moerd advises that prior to Mrs ZGS’ current admission to the RHH she was diagnosed by Dr Martin Morrissey with mixed Alzheimer’s and vascular dementia which is supported by Dr Kumar following an additional assessment during her current admission to the RHH.
Evidence from family members
Ms TS denies any abuse to her mother by her or her son, Mr UX advising that she only came last year from Melbourne to care for her mother. She stated that she helps her mother with payment of bills and housework and denies cancelling Anglicare services for her mother. Ms TS advises that she can manage the care of her mother notwithstanding her own health issues which include suffering from kidney disease and undergoing medical tests in relation to her heart. Ms TS advised the Board that her son, Mr UX suffers from OCD and takes medication.
Ms TS reported that she and her son were not paying rent or board to Mrs ZGS, but she helped with the power bill and the phone bill. She advised that her son contributes what he can to his own food costs.
Ms TS advised that she had previous experience as an administrator in that she was appointed as an administrator for her son in Victoria. She, however, advised that during her time as her son’s administrator, $15,000 was stolen from his funds and an alternative administrator was appointed.
Mrs XS, who is Mrs ZGS’s daughter residing in Western Australia, ultimately supported the appointment of an independent guardian and administrator notwithstanding that during the course of the hearing she indicated that she would like to be her mother’s guardian. Mrs XS advised there was significant conflict between herself and Ms TS. Ms TS confirmed this conflict and stated there was also conflict between Mrs XS and Mr VS, who is Mrs ZGS’s son.
Ms TS could not identify how she would manage the conflict when both care and financial decisions needed to be made. Mrs XS could also not identify how she would manage that conflict if she was appointed as guardian.
Mr VS acknowledged the need for an appointment of a guardian and administrator. He provided a letter of support for the appointment of Ms TS as guardian and administrator but agreed during the course of the hearing that it would be better for an independent guardian and administrator to be appointed particularly given the concerns raised in the Application and the reports of the substitute Applicant.
Ms Maddy Russell, on behalf of the Office of the Public Guardian, raised concerns as to how that family conflict could cause difficulties and possibly exacerbate the existing conflict, given the decisions which will need to be made for Mrs ZGS. Ms Russell believed there was a need for an independent person to be appointed to make guardianship decisions and supported the appointment of a guardian with powers referred to in the Application ultimately made by the Board.
Ms Rosemary Jurs, from the Public Trustee, supported the appointment of an independent administrator given the family conflict.
No impartial person was identified that could act independently of their personal needs and remain sufficiently objective to consider what is in the best interests of Mrs ZGS.
Wishes of Mrs ZGS
Through her advocate, Mr Brad Saunders, Mrs ZGS advised she would prefer not to have a guardian and that she wanted to go home and live with Ms TS and that Ms TS was a competent carer for her. She advised the Board that she did not wish to go to Western Australia to live. Mr Saunders also reported that Mrs ZGS would prefer to have control over her finances but accepted that an administrator may be required. Through her advocate, Mrs ZGS also accepted that a guardian may be necessary and that it may need to be the Public Guardian. Further, Mr Saunders advised that he had spoken with Mrs ZGS in relation to her wishes over the days leading up to the hearing and that she had no recollection of any of the abuse identified in the Application that was claimed to have been previously reported by her.
The Board’s determination
The Board is satisfied that Mrs ZGS is a person with a disability. This was not disputed at hearing. The medical evidence provided through the HCPR of Dr Kumar was accepted by the Board. That evidence was that Mrs ZGS suffers from mixed Alzheimer’s and vascular dementia which was diagnosed in August 2020 which is not reversible and that Mrs ZGS’s condition will deteriorate.
The Board accepts Dr Kumar’s opinion that by reason of the mixed Alzheimer’s and vascular dementia, Mrs ZGS experiences the deficits referred to in Dr Kumar’s report and set out above. The Board also accepted Dr Kumar’s evidence that as a result of her disability Mrs ZGS was unable to make reasonable decisions in relation to her estate or in relation to her person and circumstances.
The Board is satisfied by reason of Mrs ZGS’ disability she is unable to make reasonable judgments in respect of her finances and her estate. She is also unable to make reasonable judgments in respect of matters relating to her person and her circumstances.
The Board also accepted the evidence of the Applicant (including the substitute Applicant) and Dr Kumar that there was the need for the appointment of an administrator and for a guardian with limited powers. This was not challenged by anyone present at the hearing.
Mrs ZGS is the joint registered proprietor, together with her late husband, of her property at [the address in Tasmania] where she presently resides with Ms TS and her son. She has significant savings and is in receipt of a Centrelink pension. Her assets and Centrelink pension need to be managed. Should Mrs ZGS need to move into a residential aged care facility, there will need to be decisions made with respect to her real estate interests and a financial agreement entered into with the residential aged care facility. There will also need to be decisions made with respect to her care, accommodation, support services available to her and her general health care needs.
In respect of the appointment of a guardian the least restrictive option has been considered and applied. With respect to the question of administration there is no less restrictive option other than appointing an administrator. Mrs ZGS lacks capacity to appoint an attorney or authorise an agent to act on her behalf with respect to the management of her finances, estate and contractual relations that may arise.
The Board carefully considered whether to appoint Ms TS or the Public Trustee as administrator. There is significant family conflict and the potential for further family conflict in that Ms TS and her son Mr UX are accommodated in Mrs ZGS’s home, without the payment of rent or board. There is the potential for conflict between Ms TS’ interests (and those of her son Mr UX) and the best interests of Mrs ZGS in respect of the management of the residence, given Ms TS and her son are accommodated at that residence. In the Board’s view, it is in Mrs ZGS’s best interests that an independent body be appointed to manage her financial affairs.
In relation to the appointment of a guardian, both Mrs XS and Ms TS wished to be considered for this role. Ongoing family conflict between Mrs ZGS’s children, and in particular between Mrs XS and Ms TS, and Mrs XS and Mr VS was acknowledged by all family members who appeared at the hearing. Neither Ms TS nor Mrs XS were able to identify a clear plan as to how that conflict could be managed in terms of any decision making with respect to decisions relating to their mother. Further, Mrs XS resides in Western Australia and, in a practical sense, would not be present in Tasmania to make ongoing decisions as and when they arose.
The Board notes the concerns raised by independent persons with respect to aspects of the care provided to Mrs ZGS by Ms TS. The Board also notes Ms TS has her own health problems which may weigh against her ability to provide the care and support required and make appropriate decisions in relation to her mother’s care. Further, the potential for conflict between the interests of Ms TS and her son and the best interests of Mrs ZGS with respect to accommodation decisions is apparent. A guardian will necessarily need to consider whether Mrs ZGS’s best interests lie with being discharged to her home at Old Beach or potentially requiring a move to residential aged care. It would be in Ms TS and her son’s best interests that Mrs ZGS not move into residential care because that may then require the sale of the Old Beach property which provides rent free accommodation for Ms TS and her son.
The Board determines that for the reasons identified, an appointment of Mrs XS or Ms TS as guardian or administrator is not appropriate and that the evidence establishes that independent appointments are appropriate. The Board considers that the Public Trustee should be appointed as Administrator and the Public Guardian should be appointed as Guardian.
Orders
Accordingly, the Board orders on 8 October 2020 in respect to Mrs ZGS:
1. That the Public Trustee (Tas) is appointed as Administrator of the estate of ZGS.
2. This Order remains in effect until 7 October 2023.
3. The Public Guardian (Tas) is appointed as limited Guardian of ZGS with the power to:
i. Decide where ZGS is to live whether permanently or temporarily.
ii. Determine what services ZGS should access and provide consent to such as required.
iii. Make health care decisions for ZGS.
iv. Restrict visits to ZGS to such extent as may be necessary in her best interests and to prohibit visits by any person if the Guardian reasonably believes they would have an adverse effect on ZGS.
4. This Order remains in effect until 7 October 2023.
*****
0
0
1