BLT - [2013] QCAT 712

CITATION:

BLT [2013] QCAT 712

PARTIES:

BLT

APPLICATION NUMBER:

GAA1754-13; GAA1756-13; GAA1762-13; GAA1763-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

4 April 2013

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

DELIVERED ON:

4 April 2013

DELIVERED AT:

Bundaberg

ORDERS MADE:

GUARDIANSHIP

1. The Adult Guardian is appointed as guardian for BLT for decisions about the following matters;

(a) Accommodation

(b) Health Care

(c) Provision of Services.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years.

ADMINISTRATION

3. The Public Trustee of Queensland is appointed as administrator for BLT for all financial matters.

4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

6. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

CATCHWORDS:

Guardianship and Administration; conflict between parents

APPEARANCES and REPRESENTATION (if any):

CK and BLS (the parents)

REASONS FOR DECISION

The parents of the adult BLT, being CK and BLS, have brought separate applications. Both seek to be appointed as the guardian and the administrator for their son.
The tribunal considered the health professional report of Dr Rashid Aziz dated 7 February 2013. Doctor Aziz provided evidence that BLT has been diagnosed with Kearns-Sayre syndrome[1]. This diagnosis was confirmed by Dr Amanda Love, endocrinologist, by letter dated 27 July 2012 to Dr Aziz. BLT had been recently hospitalised and the hospital discharge summary dated 24 January 2013 also confirmed the diagnosis. Dr Aziz concluded that BLT has no decision-making capacity at all. I had the benefit of interacting with BLT during the hearing and find his ability to communicate is very limited and he is only able to make the most simple of requests and appears to be incapable of making the most simple of decisions. I therefore accept the medical evidence.
[1]The syndrome is life-threatening, debilitating and intellectual impairment results.
The tribunal has jurisdiction to make relevant orders only if it finds the adult lacks capacity for decision-making about his personal/financial matters[2]. The tribunal determines that BLT does not have capacity to make decisions about the matters.
[2]The Guardianship and Administration Act 2000 (the Act) defines capacity as:
“capacity”, for a person for a matter, means the person is capable of-
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
Section 12 of the Act provides that before the tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision making capacity, the tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the tribunal determines that the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.
The tribunal, when considering the appointment of a guardian or an administrator, must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
Issues were raised as the basis for the guardianship application; arising from the adult’s accommodation circumstances, from the adult’s health care circumstances, from the services that the adult needs and from day to day issues.
BLT is not capable of making his financial decisions and whilst both his parents wish to assist in making financial decisions on his behalf, there is conflict between them as potential decision-makers.
The tribunal determines there is a need for a decision in relation to the matters and without the appointments the adult’s needs would not adequately be met. As result, I conclude the need for the appointment of both a guardian and administrator has been established.
Having considered the parents as potential administrators and guardians, I am of the view that the conflict between them would necessitate the appointment of the Adult Guardian as an independent guardian and the Public Trustee of Queensland as an independent administrator.
The tribunal is of the view that an independent guardian would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. In this respect, the Adult Guardian is an independent decision maker and has extensive skills and experience. The Adult Guardian is considered the appropriate appointee as guardian in this case.
The tribunal is of the view that an independent administrator would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs. In this respect, The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.
In her application for guardianship, BLT’s mother CK makes reference to her desire and ability to care for BLT. I have no doubt about her good intentions, but I note that there was an extended period of time where she had little or no contact with her son. I note the degree of conflict, albeit restrained, between CK and BLS when discussing the most appropriate means of caring for their son. Whilst the parties were able to speak civilly and well and disagreed, respectfully, with each other during the hearing, I harbour concerns that under extreme pressure, their relationship may deteriorate to the point where it would be not in BLT’s best interests to have either or both of the parents acting as guardian or administrator.
BLT's father has been, of late, making financial decisions and implementing financial plans. I express concern however that given a level of disagreement between BLT’s parents with respect to the acquisition of relatively expensive items there may be disagreement between the parties in their respective roles as guardian and administrator, if appointed.
In his material, when commenting upon CK’s application, BLS says
the children’s mother never visited or contacted the children for 6 years, approximately 3 years ago the mother moved to (the relevant town[3]) and began visiting BLT. During this time there have been many instances of the mother abusing myself and the staff of BLT’s care home. I mistakenly believed that I was BLT’s legal guardian because of the Family Court order. The last 10 years I have cared for BLT, made all the decisions regarding his needs and care and managed his financial needs and bank accounts. BLT’s mother now states that I am not BLT’s legal guardian and she can now do what she wants with him. The mother is now refusing to return BLT to his care home at (the home address[4]).
[3] The name of the town has been removed for de-identification purposes.
[4] The address has been removed for de-identification purposes.
BLS went on to express his concerns regarding the mother’s potential to abscond with BLT, having previously defied Family Court orders and removed her other children interstate requiring the intervention of Federal Police to apprehend the children.
BLT has been receiving assistance through Mr Paul Dolzan of Community Lifestyle Support. Mr Dolzan appeared at the hearing. Community Lifestyle support provides accommodation and community access support for BLT as a disability support organisation. By written report dated 6 February 2013, Mr Dolzan provided documentary confirmation that BLS has been providing assistance to BLT. I am satisfied that BLS has been working cooperatively and well with the service provider, all in BLT’s best interests. Notwithstanding, I believe it is now in BLT’s best interests to appoint independent decision-makers for the reasons I have outlined.
I make the following Orders:
GUARDIANSHIP
The Adult Guardian is appointed as guardian for BLT for decisions about the following matters;
a)    Accommodation;
b)    Health Care;
c)    Provision of Services.
This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years.
ADMINISTRATION
The Public Trustee of Queensland is appointed as administrator for BLT for all financial matters.
The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.