BM

[2010] QCAT 115

CITATION: BM [2010] QCAT 115

PARTIES: BM

APPLICATION NUMBER:            GAA2241-10 GAA2242-10            

MATTER TYPE: Guardianship and administration matters

HEARING DATE:   31 March 2010

HEARD AT:   Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON:   31 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Appointment of guardian and administrator

CATCHWORDS :  Adult with impaired capacity – attorney now deceased – need for guardian and administrator

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. BM (the adult) had appointed her brother BS to be her attorney for financial, personal and health matters on 4 July 2003.  In more recent times, she relied on her attorney to make many decisions for her but when her attorney died in February 2010, she was left without anyone to make decisions for her.
2. Suzanne Norambuena, director of nursing, applied to the Queensland Civil and Administrative Tribunal for the appointment of a guardian and administrator for BM who was residing at a nursing home on a respite basis. 

THE ISSUES AND THE LEGISLATION

3. The issues for the Tribunal are: does BM have capacity to make decisions about personal and financial matters; is there a need for a guardian; if so, who should be appointed; is there a need for an administrator; if so, who should be appointed. 
4. For adults there is a statutory presumption that they have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”).  Unless there is sufficient evidence to rebut that presumption, it must stand.
5. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
1. understanding the nature and effect of decisions about the matter; and
2. freely and voluntarily making decisions about the matter; and
3. communicating the decisions in some way.
6. If the presumption of capacity has been rebutted, the Act provides the means by which a substituted decision maker can be appointed for an adult with impaired decision making capacity.
7. Section 12 of the Act deals with the question of need for an appointment and provides, where relevant, as follows:

(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—

(a) the adult has impaired capacity for the matter; and

(b) there is a need for a decision in relation to the matter or 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

(c) without an appointment—

(i) the adult’s needs will not be adequately met; or

(ii) the adult’s interests will not be adequately protected…..

8. Section 14(2) of the Act provides that the Tribunal may appoint the Adult Guardian as guardian only if there is no other appropriate person available for appointment for the matter.

DOES BM LACK CAPACITY FOR THE MATTER?

9. Dr Ramsey Jabbour provided a health professional report dated 22 March 2010 in which he stated that he had known BM since 18 January 2010.  He reported a diagnosis of early dementia.  He stated that a Mini Mental State Examination had been conducted on 6 February 2010 resulting in a score of 22 out of 30.  Dr Jabbour stated that the result was indicative of mild cognitive impairment. 
10. Dr Jabbour reported that BM lacked insight into her care needs.  He expressed the opinion that BM was incapable of managing her financial affairs, could not make any complex decisions and she could not make most simple decisions. 
11. An assessment carried out by the Aged Care Assessment Team in July 2009 reported that BM had frequent memory problems, confusion and periods of disorientation. 

CONCLUSION

12. The Tribunal was satisfied that BM had been diagnosed with dementia. She had scored 22 out of 30 in a Mini Mental State Examination.  She had a mild cognitive impairment.  She has poor short term memory and she exhibits frequent periods of confusion and disorientation. 
13. These factual findings lead the Tribunal to be satisfied that BM would not be capable of understanding the nature and effect of decisions about her personal and financial affairs.  She could not seek out, retain, manipulate and analyse information on which to base decisions about her personal matters and her finances. 
14. The Tribunal finds that the presumption of capacity has been rebutted and that BM has impaired decision making capacity about personal and financial matters. 

IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?

15. BM was residing under a respite placement in a nursing home.  According to the applicant, BM requires permanent accommodation in a suitable care facility.  The Aged Care Assessment had recommended in home care and respite care.  However that assessment had been carried out at a time when BM had the support of her brother.  He had died subsequent to the July 2009 assessment.   
16. The medical evidence from March 2010 indicated that BM’s functioning had deteriorated since July 2009 and her care needs were greater than assessed in July 2009.  BM had no family or close friends who were known to be willing to make personal decisions on her behalf on an informal basis. 

CONCLUSION

17. The Tribunal finds that BM’s care needs since the death of her brother can only be met in residential aged care.  BM was in respite care at the time of the lodgement of the application with the Tribunal. Decisions have to be made about her placement into permanent residential care, about service delivery appropriate to her needs and about her health care associated with her declining cognition. 
18. The Tribunal is satisfied that without the appointment of a guardian BM’s needs will not be adequately met.  A guardian is required to make decisions about her accommodation, service provision and health care during the period that BM is placed into and then settled into appropriate aged care accommodation.  

IF SO WHO SHOULD BE APPOINTED?

19. BM has no known relatives or friends who would be willing to make decisions on her behalf.  In that case the Tribunal is satisfied that the Adult Guardian should be appointed as guardian for BM as there is no other appropriate person available for appointment.  The Tribunal is confident that the Adult Guardian will apply the general principles and will make decisions for BM in a way consistent with her proper care and protection.  
20. However, once BM is placed and settled into aged care accommodation with appropriate service provision, no further personal decisions, apart from health care decisions, are anticipated to be required.  The Adult Guardian can act as statutory health attorney for BM without formal appointment by this Tribunal in health care decisions. 
21. The Tribunal considers that once BM is settled into her permanent accommodation, there is no longer any perceived need for a guardian.   For this reason, the appointment of the Adult Guardian for BM will be for a period of one year only.  After 31 March 2011 the appointment will expire and will not be reviewable.

IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

22. BM’s finances had been managed by her brother until his death.  The applicant did not know the extent of BM’s finances.  In the event that BM is placed into permanent residential care she will need to have her assets assessed to set her aged care fees and documentation will need to be signed committing BM to the payment of those care fees.  Without signed financial documentation, BM will have great difficulty entering into suitable permanent care.
23. It was unknown if BM has any entitlement to a benefit from her late brother’s estate.  The applicant was aware that the executor of the estate had attempted to make some financial decisions for BM but details of the actions being taken by the executor were not provided to the Tribunal. 

CONCLUSION

24. The Tribunal was satisfied that decisions had to be made to secure BM’s income and assets and to ensure that her expenses were paid.  It was unclear whether BM had any entitlement from her late brother’s estate and it was unclear whether the actions of the executor of that estate were being carried out for the benefit of BM.    
25. The appointment of an administrator would be essential to commence the steps necessary to assess the care fees for any permanent accommodation for BM and to enter into agreements to pay the fees as a prerequisite of placement into care.   

IF SO WHO SHOULD BE APPOINTED?

26.The application proposes the appointment of The Public Trustee of Queensland as the administrator for BM.  In the absence of any family or friends known to be willing to take on that role, the only option for appointment as administrator is The Public Trustee of Queensland. 

27.The Tribunal is confident that The Public Trustee of Queensland will apply the general principles and will make financial decisions for BM in a way consistent with her proper care and protection.  The appointment will be for an indefinite period and will remain until further order of the Tribunal. 

28.The administrator is to provide a financial management plan to the Tribunal within four months and must provide accounts when requested.  It is unclear whether BM is the registered proprietor of any real property in Queensland. To avoid any risk to any real property held by BM, it is ordered that notification of this appointment must be provided to the Titles Office so notice can be lodged over any real property owned by BM.