ZK (Guardianship and Administration)
[2009] TASGAB 10
•24 April 2009
Guardianship and Administration Board
LauncestonZK, on the application of COMMUNITY DEMENTIA TEAM
Neutral Citation: ZK (Guardianship and Administration) [2009] TASGAB 10
REASONS FOR DECISION
Kate Brown (Chair)
Rod Lester (Board member)
Patricia King (Board member)Date of hearing: 24th April 2009
Guardianship and administration – allegations of physical neglect and abuse of elderly person – lack of evidence regarding financial matters
Guardianship and Administration Act 1995sections 19, 20 and 501.This is an application under section s.19 and s.50 of the Guardianship and Administration Act 1995 for the appointment of a guardian and administrator.
2.The proposed represented person is 79 years of age and suffering from moderate to severe dementia according to the Health Care Professional Report provided by Dr Jehan Phillips. He lives in Northern Tasmania, with his wife, AK, and his son, CK. He has two adult daughters who live independently. At the time of the hearing ZK was an inpatient at the Launceston General Hospital recovering from a fall in which he sustained a broken hip.
3.An application was received by the Board on the 10th March 2009 and was heard in Launceston on the 24th of April 2009. It was made by Fiona Methorst in her capacity as a registered nurse with the Community Dementia Team. She had been dealing with ZK for about two years.
4.At the hearing Board had before it the application from Ms Methorst, which attached Community Dementia Team Progress Notes from the 4th of November 2008 to the 14th of February 2009. It also had a Health Care Professional Report prepared by Dr Jehan Phillips and completed on the 18th of February 2009; a Property Information Sheet in respect of his property in Northern Tasmania; copies of Progress Notes from the Aged Care Assessment Team; and a report from the Board’s Manager of Investigations and Liaison.
5.It was not disputed that ZK suffered from dementia, and was incapable by reason of that dementia of making reasonable judgements in respect of many, if not all, matters relating to his person or circumstances. It was disputed that there was any need for a guardian to be appointed.
6.Accordingly the hearing focussed on s.20(2) to s.20(5) of the Act, that is: whether any less restrictive alternative to guardianship and administration orders would meet ZK’s needs; whether an order would be in the best interests of ZK; and if an order was the only alternative, how to make the least restrictive order possible.
7.The application had been precipitated by concerns held by members of the Community Dementia Team (CDT) and by ZK’s GP, Dr Phillips. The Health Care Professional Report refers to “neglect at home”, “unexplained bruises”, “poor hygiene”, “wound infections” and instances of ZK being left in the sun too long as being the reasons the application was being brought.
8.In the Progress Notes from the CDT of the 27th of November indicate that Dr Phillips was concerned about how ZK’s family were managing his care at home. Dr Phillips had reported to the CDT that on one occasion when he visited, he found ZK locked in the toilet.
9.The CDT notes and the evidence during the hearing also revealed concerning dynamics in the family which suggest that AK has been under considerable pressure for some time, not just arising from the care of ZK, but also from various difficulties experienced by her children which causes them to be more reliant upon her than their ages would otherwise indicate. CK is in receipt of a disability pension and lives with his parents. One daughter UK lives locally and has health issues which are often distressing for AK, and a second daughter interstate seems to have difficulties. The CDT notes suggest that AK frequently assists both her daughters financially.
10.As to ZK’s care at home, the notes indicate that ZK needs full assistance to shower and attend to his personal hygiene. He is doubly incontinent. Apparently ZK dislikes water and can be very difficult to manage in the shower. Neither CK nor AK are able to shower him, so ZK remains unwashed save for the two visits a week the CDT make for that purpose. The CDT have suggested some alterations that AK could have made to their bathroom which would assist the CDT in managing ZK in the shower and make that safer for ZK, but those suggestions have not been acted upon.
11.On the CDT visit on the 13th of February 2009, ZK had a deep laceration above his right eye. Paramedics attended and advised ZK should be seen by a doctor. It was noted that ZK had faeces on his hands and legs and the risk of infection of that wound was very high. AK said that ZK had sustained the laceration the day before when she had been at the supermarket, and she did not know how it happened. AK doesn’t drive and requires CK to drive her to the supermarket. Her evidence was that she makes very few trips away from home as it means that ZK is left alone. It subsequently became clear that AK had put pepper on the wound to stop it bleeding and this had caused it to become infected. This was something her mother had taught her to do.
12.At the hearing the Board was advised that ZK had been in the Launceston General Hospital (LGH) for just over three weeks having broken his hip. AK said that had occurred when she was preparing his meal and he was sitting a few metres away. He had tried to get up and fallen. She speculated that he had fallen after tripping on his trousers, which often fall down because he undoes the string she uses to tie them up. She and CK did not initially realise how badly ZK had hurt himself, and he slept that night on the couch, having had some panadol. The next morning they called an ambulance as he still seemed to be in pain.
13.It was AK’s evidence at hearing that ZK does not take any medication regularly. She and CK consider that alternative remedies are usually enough for his day-to-day needs.
14.The Board decided that there was a very real need for a guardian to be appointed for ZK, and that it was not possible to limit the scope of any order. The physical evidence was that in the weeks prior to the hearing ZK had suffered a serious laceration requiring attendance at the LGH Department of Emergency Medicine, and that he had also broken his hip and remained in hospital for that. The Board was concerned about AK and her son’s slow response to both these injuries. The Board was also concerned about the reluctance of AK to use conventional medicine. There was evidence of less serious injuries and a reluctance to accept advice from the doctor and the CDT about these issues, and the risks associated with leaving ZK sitting in the sun at the height of summer.
15.In addition to these urgent issues, there was an ongoing difficulty in maintaining appropriate hygiene standards at home in light of ZK’s faecal incontinence and the inability of either AK or her son to manage showering ZK. It would be difficult for any family to manage in such a situation and AK is not a young woman. AK herself stated that she did not believe CK would be able to attend to the care of ZK without her, due to his own medical problems.
16.The Board preferred the evidence of the CDT where it conflicted with that of AK and her son, as their reluctance to accept their advice as to the care of ZK was concerning, and there seemed to be an “us versus them” attitude held by the family which was seen by the Board as not being in ZK’s best interests.
17.The Board considered that a guardian would be able to ascertain ZK’s needs in terms of accommodation, for support in activities of daily living, and medical treatment. The question of whether ZK was best cared for at home by his wife is of immediate concern, and needs to be resolved prior to ZK’s discharge from hospital. A guardian would be able to consent to further care being given to ZK in the home, if it was decided it was appropriate that he continue to live there. The Board’s concerns as to whether ZK was receiving appropriate medication would also be addressed by the appointment of an independent guardian.
18.While the Board accepted that AK believed she was acting in her husband’s best interests, it considered that she was under considerable pressure attending to the needs of her children, as well as the very high needs of ZK at this time. Indeed, it would appear that AK’s own needs are going unmet while she tries to attend to those of her family. Further, the family have shown an ongoing reluctance to accept expert advice and assistance to care for ZK, and it appears that his care has been compromised by the family’s need to maintain their independence. In the circumstances the Board considered that the best interests of ZK could only be met by the appointment of a disinterested guardian.
19.In relation to ZK’s financial history, the evidence was that ZK had been retired since he was 46 when he had suffered an accident at work. ZK and AK owned the property in which ZK and AK and CK lived outright. They had made mutual wills apparently, but no copy of ZK’s will was available at hearing. AK said that they had always been very careful not to incur debt and had only ever spent “what they had”. ZK receives the age pension plus a further $111 per fortnight from the Retirement Benefits Fund. AK said that CK pays Board of $125.00 per week. There was evidence from the applicant that on occasion there was no soap available to wash ZK, even after its purchase had been specifically requested. AK said that she had always managed the finances for the family. Suggestions made by the CDT as to alterations, which could be made to the bathroom to assist them in caring for ZK, have not been followed through. There was no other evidence relevant to administration issues. The Board found that there was no immediate need to appoint an administrator for ZK.
Kate Brown Rod Lester Pat King
CHAIR MEMBER MEMBER
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