CTR

[2022] QCAT 368

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

CTR [2022] QCAT 368

PARTIES:

In applications about matters concerning CTR

APPLICATION NO/S:

GAA9012-22
GAA9013-22
GAA10675-22
GAA10677-22
GAA11024-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

26 October 2022

HEARING DATE:

11 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Casey

ORDERS:

1.   Public Guardian is appointed as guardian for CTR for the following personal matters:

(a)   accommodation; and

(b)  provision of services.

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

3.   The Public Trustee of Queensland is appointed as administrator for CTR 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 remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

7. The following enduring Power of Attorney for CTR is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998:

(a)   The Enduring Power of Attorney dated 19 July 2016 appointing EAM as attorney for financial, personal and health matters.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where an enduring power of attorney is revoked - need for the appointment of a guardian and an administrator

Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 5, s 11, s 12, s 14, s 15, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’), s 61, s 118
Powers of Attorney Act 1998 (Qld) (‘POAA’), s 62, 109A, 116
Human Rights Act 2019 (Qld) (‘HRA’), s 13, s 19,
s 24, s 25, s 48

APPEARANCES: 

Applicants:

CRE – son (videoconference)

AIF – friend of the adult (telephone)

Others:

CTR – the adult (videoconference)

CI – daughter (videoconference)

EA – social worker (videoconference with adult)

Dr Jin Tan – medical registrar (videoconference)

Dr Tanisha Hayward – resident medical officer (videoconference)

OP – friend (videoconference)

RS – friend (videoconference)

OV – friend (telephone)

ET – friend (telephone)

REASONS FOR DECISION

1. CTR is an 84-year old male receiving treatment and care in a Brisbane hospital. He identifies as a devout practising Catholic who is actively engaged with his parish.  Prior to his hospital admission on 20 July 2022, CTR was residing in rental accommodation with AIF, a Catholic priest and friend of the adult, in a property belonging to a member of the parish.  CTR had been living in that property for a number of years. He had no formal supports in place.

2. On 25 August 2022, the Tribunal received an application from CRE, son of the adult, seeking to be appointed as guardian and administrator for the adult.   

3. On 4 October 2022, the Tribunal received an application from AIF proposing himself as guardian and administrator for the adult. 

4. On the same day, the Tribunal received a copy of an Enduring Power of Attorney dated 19 July 2016, whereby the adult appointed EAM, his sister, as his attorney for financial and personal/health matters. The Tribunal subsequently initiated an application for an order about an Enduring Power of Attorney and the presiding member abridged time to allow the Tribunal-initiated application to proceed.[1]

   [1]QCATA, ss 61, 118; GAA, s 110.

   The Legislation

5. The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult.

6. The adult is presumed to have capacity in accordance with General Principle 1 of the GAA.[2]

   [2]GAA, Section 11B.

7. The GAA defines capacity as follows:[3]

   Capacity, for a person for a matter, means the person is capable of -

   (a) understanding the nature and effect of decisions about a matter; and

   (b) freely and voluntarily making decisions about the matter; and

   (c) communicating the decisions in some way.

   [3]GAA, Schedule 4 (definition of ‘capacity’).

8. In the determination of capacity for an adult for a matter, the Tribunal must consider the type of decisions to be made and the support available to the adult from the adult’s existing support network.[4]

   [4]GAA, Section 5(c).

9. The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.

10. The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.

11. The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.

12. The Tribunal must have regard to the POAA in its consideration of CTR’s Enduring Power of Attorney dated 19 July 2016. The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the POAA. The Tribunal is to consider the capability of an attorney to carry out their duties in such a way as to protect the adult’s interests and otherwise act in accordance with the POAA.The Tribunal may make an order removing an attorney or revoking a document in accordance with section 116 of the POAA.

    Does CTR have capacity to make personal and financial decisions?

    Evidence

13. The Tribunal received written medical evidence in relation to the adult’s decision-making capacity.  The reports are outlined below.

14. In a draft hospital discharge summary, Ms Rianna Guest, a speech pathologist, writes on 26 August 2022 that the adult continues to present with cognitive-communication difficulties on a background of newly diagnosed dementia. He demonstrates difficulties in verbal expression (including word finding, repetition of information, specificity). Auditory comprehension appears impacted by slowed information processing.  The adult demonstrates concrete thinking, reduced safety awareness in verbal reasoning tasks and reduced accuracy with functional reading comprehension. He was unable to state his own address during communication screening assessment. Reduced insight into cognitive-communication changes is noted.  Recommendations include supervision of the adult in relation to tasks requiring high level cognitive language skills such as managing finances, appointments and medications.

15. In a report dated 29 September 2022 Ms Erica McLennan, an occupational therapist, states that the adult was admitted to hospital on 4 July 2022.  He had been transported to hospital by the Queensland Ambulance Service due to a fall after which he experienced a prolonged lie (approximately 22 hours) before receiving assistance. Emergency department admission notes document that the adult reported that he was found at the back of a building at a friend’s home and that he had recalled slipping on dewy ground in the morning and was unable to get up so stayed on the ground outside overnight. Collateral notes from Queensland Ambulance Service state that the adult was found by a tradesperson.  The occupational therapist writes that the Addenbrooke’s Cognitive Examination (ACE)-III was administered on 16 September 2022 wherein the adult attained a score of 56 out of 92. Subtest scores were: attention 15/18; memory 11/26; fluency 6/14; language 15/25 (non-standardised administration due to right upper limb tremor); visuospatial 8/8 ((non-standardised administration due to right upper limb tremor). Due to the non-standardised administration, a total score could not be calculated.  The recommendations of the occupational therapist, based on the adult’s reporting, collateral history and direct occupational therapy assessment and observation, are that the adult receive monitoring and support for self-care tasks, meal preparation, shopping, community access and management of finances.  CTR is not medically cleared to drive.

16. In the report received by the Tribunal on 4 October 2022 Dr Amy Roper, a clinical psychologist and clinical neuropsychologist from the hospital, writes that the adult had recently discharged against medical advice from the COVID-19 Hospital in the Home service and that during the current admission he had been diagnosed with dementia of mixed aetiology (Alzheimer’s disease and vascular).  Dr Roper interviewed the adult and administered a battery of standardised assessments on 21, 23, 26 and 28 September 2022. Neuropsychological assessment indicates areas of preserved cognition (performance in the average range or above), including immediate auditory attention, working memory, visuospatial skills and visual memory.  The adult demonstrated difficulties (performance in the low to exceptionally low range) on tasks including processing speed, naming, verbal memory (abstract and contextual), recognition, and executive functioning (verbal fluency, initiation and cognitive flexibility).  

17. Neuropsychological findings include that the adult has significant cognitive impairments which will impact his ability to plan and organise his instrumental activities of daily living or outings, safely prepare simple meals independently, problem-solve any unexpected situations and to find and access appropriate supports when needed.  He is not insightful regarding these impairments and the need for assistance.  The adult grossly underestimates and appears to lack the insight to understand or fully appreciate the difficulties and challenges he would likely to encounter, given his current level of cognitive function, should he be discharged in accordance with his preference, to the home of OP.  For example, he reported he would return to managing his own instrumental activities of daily living independently despite safety concerns reiterated to him by the treating team.  He did not display insight regarding the need for compensatory strategies to manage his memory concerns.  He displayed difficulty contemplating possible alternative accommodation options. 

18. In relation to financial matters, Dr Roper writes that the adult demonstrates limited understanding of his current financial situation, including limited knowledge regarding his regular bills and expenses, and nil knowledge of his current income amount.  He is subsequently at risk of financial exploitation, particularly in light of the demonstrated impairments in memory and executive functioning which are likely impacting on his ability to reason and plan complex tasks. His rigid thinking with regards to seeking financial advice (reporting that he would likely only accept advice from members of his church rather than a professional) may indicate an increased level of vulnerability.  Dr Roper provides the opinion that the adult does not have the capacity to appoint and Enduring Power of Attorney, nor make decisions in relation to his accommodation, support needs and financial matters.

19. In a report dated 31August 2022, Dr Jin Tan, a medical registrar from the adult’s treating team, states that CTR was diagnosed during the current hospital admission with dementia of mixed aetiology and that the adult has a cognitive impairment as a consequence of the dementia.  He states the adult has been unable to recall that he has been diagnosed with dementia, despite multiple explanations during his inpatient stay.  The registrar writes that the adult has a poor understanding of his current financial state and no recall of his allowances from his pension.  In the registrar’s opinion, the adult is unable to understand the criteria necessary to make or revoke an Enduring Power of Attorney and is able to make simple, not complex, personal and financial decisions.

20. In his oral evidence to the Tribunal, Dr Tan submitted that although CTR experienced some improvement in his physical health during the current admission (including increased mobility and continence), the multi-disciplinary team, including the adult’s consultant geriatrician, Dr Salih Salih, concurs with the evidence in the reports of the clinical neuropsychologist and occupational therapist.  He said that due to his cognitive impairment, the adult requires 24/7 supervision, as opposed to nursing care.  He confirmed that the clinical assessment of the adult’s decision-making capacity has not changed since his report of 31 August 2022, in that the adult remains unable to make complex personal and financial decisions.  He confirmed that the treating team is in support of the application for a guardian and administrator for the adult in order to facilitate safe discharge from hospital with appropriate supports.

21. CTR provided oral and written submissions to the Tribunal in which he consistently refuted his diagnosis of dementia.  He said ‘you’ve got my health issues all twisted’. He said his regular use of sleeping tablets early in his hospital admission caused him to ‘not come over all that intelligent’ and that ‘this had a very major effect of getting these people to claim deficits in the thinking’.  He said ‘the whole thing is a farce – out of control – uncalled for – unbacked’.  He said he can make his own decisions and that his ‘case should be left alone – with my intentions – my motor car – except to give me permission to go back down to where I have been for 16-20 years’.  He said he has accumulated assets and has very good support. In his written submission to the Tribunal dated 2 October 2022, CTR said that, at his request, AIF applied to be his guardian and administrator.  He stated that AIF supports his position that he ‘retains decision-making capacity for all matters’ and that AIF submitted his applications in case the Tribunal were to determine that formal appointments are necessary.

22. Many of adult’s fellow parishioners provided written submissions to the Tribunal in support of the adult’s view that he retains capacity for personal and financial decision making.

23. In its determination of decision-making capacity, the Tribunal must give consideration to the nature of the decisions that are required for CTR and the support available to him[5].  The adult is medically fit for discharge.  The treating team is recommending 24/7 supervision.  The treating team has assessed the adult as being unable to make the necessary complex personal and financial decisions associated with their recommendation. The adult is supported by his friends / parishioners in his wish to return to live in proximity to his parish chapel, with and amongst his parish community whose members seek to support him.  This is in contrast to the views of the adult’s children who assert such arrangements will not meet the adult’s needs given the circumstances of his admission to hospital. The adult’s safe discharge from hospital to appropriate accommodation has been unable to be effected in the absence of formally appointed decision makers.  The adult has financial matters whereby ongoing decisions are required in relation to his assets, income and expenditure.

    [5]GAA, Section 5C.

    Deliberation

24. The Tribunal places much weight on the evidence contained within the reports of the neuropsychologist, speech pathologist and occupational therapist, along with the evidence of Dr Tan, the latter of which was informed by the opinion of Dr Salih, the adult’s geriatrician. The information is based on longitudinal multidisciplinary assessment, including medical assessment, and clinical observation of the adult during the current hospital admission. The adult has a support network consisting of his children and his fellow parishioners.  In the context of disagreement between members of the adult’s existing support network in relation to an appropriate discharge destination with necessary supervisory support, the treating team has been unable to progress discharge planning and achieve an outcome.

    Conclusion

25. Upon consideration of the evidence, and having regard to the nature of decisions required for CTR and the support available to him, the Tribunal determines that due to CTR’s cognitive deficits, he is unable to make complex personal and financial decisions. The Tribunal, therefore, is not satisfied that CTR understands the nature and effect of his complex personal and financial decisions. Accordingly, the Tribunal rebuts the presumption of capacity for CTR for these decisions.

    Will the decision-making regime under the Enduring Power of Attorney meet the adult’s needs and protect his interests?

26. The Enduring Power of Attorney dated 19 July 2016 appointing EAM, the adult’s sister, as his attorney for personal, health and financial matters was enlivened by the Tribunal’s rebuttal of CTR’s capacity for personal and financial decision making,

27. The Tribunal was tasked with determining the appropriateness of the adult’s attorney. There must be an adequate and effective decision-making regime in place for the adult, as otherwise his needs will not be met and his interests will not be protected.

    Evidence

28. OP, the adult’s friend and former accommodation provider, provided a copy of the Enduring Power of Attorney dated 19 July 2016 to the Tribunal in which the attorney’s acceptance had not been signed. He submitted that the adult has retained the original document which also was not signed by EAM.

29. CRE, the adult’s son, advised the Tribunal’s registry that EAM is 90 years of age and has been diagnosed with dementia.  He provided the Tribunal with contact details for EAM’s son who, in turn, verbally confirmed to the Tribunal’s registry that EAM has dementia. EAM’s son further advised the Tribunal’s registry that EAM had been sent Enduring Power of Attorney documents to be signed and that she is not of sound mind to be signing anything.  He said that EAM does not want anything to do with it.

30. There is no evidence before the Tribunal that EAM has ever acted as the adult’s Enduring Power of Attorney.

    Deliberation

31. Based on the above evidence, EAM is unable and unwilling to discharge effective decision making for the adult in a way that would be consistent with the legislative requirements including the General Principles[6] and the Health Care Principles.[7]

    [6]GAA, Section 11B.

    [7]GAA, Section 11C.

    Conclusion

32. For these reasons the Enduring Power of Attorney for CTR dated 19 July 2016 appointing EAM for financial, personal and health matters is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998.

    Is there a need for the appointment of a guardian for CTR?

    Evidence

33. The evidence in relation to the adult’s personal circumstances follows.  

34. Dr Tan submitted that there are no imminent complex health care decisions required for the adult. The adult is medically stable and ready for discharge from hospital. 

35. The recommendation of the treating team is that the adult be discharged to an accommodation where he can receive 24/7 supervision for his own safety due to his cognitive and functional deficits. 

36. CTR was consistent in his submissions, voicing that his primary objective was to live close to the Catholic chapel and resume the parish activities in which he was engaged prior to his hospitalisation, including practicing his religion and attending the traditional Mass regularly. He has consistently stated he does not wish to enter a residential aged care facility. He said there is ‘an Australian law that gives people the right to live where they want to live and do the work in the church of their choosing’.

1. The adult’s previous accommodation is no longer an available option.  The property was owned by a parishioner and friend of the adult, who passed away in June 2022.  The parishioner’s son and friend of the adult, OP, inherited the property which he has since decided to sell.  In the alternative, the adult is seeking to reside with OP in another property belonging to OP which is also in close proximity to the Catholic chapel.  CTR said he had been interviewed via telephone by an Aged Care Assessment Team and has been subsequently approved for a Transition Care Package.  The adult’s proposed plan was supported by OP and AIF.  OP submitted he had experience in providing informal support and in securing and managing home care packages as his late mother had utilised a level 4 package when she resided with him prior to her passing.  Members of the adult’s parish provided written submissions to the Tribunal in support of the adult’s wishes, stating that this arrangement would be best for the adult physically, mentally, emotionally and spiritually.

2. The treating team’s social worker submitted that a level 4 package, at a maximum of 1 hour per day, 7 days per week, would be insufficient to provide the adult with the recommended level of supervision for his own safety.  Dr Tan added that any additional support and supervision would need to be privately funded.

3. CRE, the adult’s son, submitted that his preferred option was for the adult to receive residential aged care, given the circumstances preceding the adult’s admission to hospital.

   Deliberation

4. There is no current need for a decision in relation to complex health care matters for the adult.  The Statutory Health Attorney regime[8] is appropriate should such a decision be required.

   [8]POAA, Section 62.

5. The evidence establishes that in the absence of a formally appointed decision maker for accommodation and service provision matters for the adult, the treating team has been unable to safely discharge the adult from hospital into an appropriate accommodation setting with necessary supports.

   Conclusion

6. Accordingly, pursuant to section 12 of the GAA, the Tribunal is satisfied that there is a need for decisions in relation to accommodation and provision of services for CTR. The Tribunal determines that without the appointment of a guardian for these matters, the adult’s needs will not be met, nor his interests protected.

   Who is the most appropriate appointee as guardian for CTR?

   Evidence

7. The options for appointment as guardian are the Public Guardian, the adult’s son (CRE) or the adult’s friend and parish priest (AIF).

8. The adult was consistent in his submissions for AIF to be appointed, should the Tribunal determine that there was a need for a guardian. In his written submission, the adult said his relationship with his son was ‘now reasonably ok’, however CRE ‘does not share my values, my religious beliefs nor is he a part of my daily life. He is not a practising Catholic’. He said he would like to bring CRE and CI, daughter of the adult, ‘back to the Traditional Catholic faith’.

9. CRE provided written and oral submissions to the Tribunal in relation to his appropriateness for appointment as guardian for the adult.  CRE said there was evidence of a lack of care in the adult’s previous accommodation, being left overnight and found the next morning by strangers who called the Queensland Ambulance Service. He expressed concern there was ‘nobody there’. CRE expressed his preference for the adult to receive care in a residential aged care facility, with the ability to leave every day to attend mass.  He said he did not want to make personal decisions against his father’s wishes however he sought to make an accommodation decision that provided safety to the adult based on medical opinion, which he valued.  He said his motivation to be appointed was in relation to a duty of care.  CRE said that he was supported in his application by CI.

10. CRE queried the motivation of the adult’s friends in relation to their shared view of the adult living in the newly identified accommodation option of OP’s home, and questioned whether the adult was safe to return to the community where he had access to his vehicle in the context of not being cleared to drive. 

11. In relation to CRE’s willingness to consult with the adult and members of the adult’s existing support network, he said he did ‘not have a problem’ with AIF or OP.  He said he was aware that the adult instructed OP to contact him should anything happen to him, and that the adult’s situation was brought to his attention by OP.  CRE said he had ‘not had a problem’ with the friends of the adult until recently, when he had been insulted by their accusations in the context of items, cash, credit cards and documents going missing.

12. Against this, is the evidence of AIF.  In his submissions to the Tribunal, AIF stated that he initially lived next door to the adult, when he arrived from Perth to commence his work as the parish priest in 2007. He said he then moved into the adult’s address some years ago.  He said that he and the adult have been closely associated for fifteen years and that he knows how the adult thinks. He stated that he and the adult work well together and have confidence and trust in each other. He submitted that, in the past, they ‘made mission runs together to various places to bring the sacraments to distant faithful’.  In his oral submissions, AIF described the adult as his ‘side kick’ of many years, and that the adult is generally available.

13. In his oral submissions, AIF provided information about the circumstances that led to the adult’s current hospitalisation.  He said he had lived upstairs and the adult had lived downstairs. He stated that he had gone to the chapel to pray early in the morning and that he was unaware that the adult had fallen.  He said that a construction worker, upon his arrival at the building site behind the property, heard the adult calling out.

14. In his application, he confirmed that he supports the adult’s ‘decision to retain decision making capacity in all matters’.  He wrote that ‘if it is determined that he is incapable of making any or all decisions, then he has asked me to be appointed to make all those decisions’.  He further stated that the adult ‘has instructed me that he wants to live where he can get to Mass daily.  He is more concerned about his spiritual life than about temporal matters’.  He submitted that ‘I am not competent in medical matters but I can say that before the tribunal of God he would be judged competent. There he will be rewarded for his good works and punished for his evil works’. AIF’s oral submissions to the Tribunal, echoed his written submissions in that, in his opinion, the adult is able to make his own decisions. At the hearing he confirmed that he had neither spoken with, nor attempted to speak with, the adult’s doctors. He provided the opinion that the adult needs supervision, as opposed to nursing care, and that OP can provide supervision. 

15. AIF submitted that he he is willing to cooperate and work with the adult’s family, and that he has had limited contact with them.  He said he called CRE a few days prior to the hearing.  He said he didn’t want to be antagonistic and in opposition to the adult’s family.

16. In his application to the Tribunal, AIF identified several friends of the adult who were in support of his application. Many of the adult’s friends, who appeared to be associated with his parish, provided written submissions to the Tribunal in support of AIF’s proposed appointment, should an appointment be determined necessary by the Tribunal. 

    Deliberation

17. The Tribunal observes that CRE accepts the treating team’s diagnosis of the adult and the clinical recommendations for his safe discharge from hospital. He expressed concern that the adult is not accepting of the diagnosis and that, without appropriate supervision, his safety is likely to be compromised. For this reason, he was seeking to discharge the adult to a residential aged care facility where the adult could be granted leave to attend mass on a daily basis. CRE does not support the adult’s preference to be discharged to the home of OP. He questioned the level of supervision that could be afforded the adult in this context, given the circumstances that led to the adult’s current hospitalisation which included a prolonged lie outside of the home overnight. His concern extended to the adult accessing and driving his vehicle when he has been assessed as medically unfit to drive. 

18. In contrast to CRE, there is no evidence before the Tribunal that AIF has demonstrated an understanding or a willingness to understand the adult’s diagnosis, nor his cognitive and functional abilities.It is of concern to the Tribunal that, by his own admission, AIF has neither interacted nor sought interaction with the adult’s treating team.  Whilst AIF submitted to the Tribunal that the adult requires supervision, which was consistent with the recommendations of the treating team, he also submitted that, should he be appointed as the adult’s guardian, he would make the decision for the adult to be accommodated in the home of OP where OP would provide supervision. There was no evidence before the Tribunal of AIF’s consideration or understanding of the nature and scope of supervision required by the adult both within his accommodation and in order to safely access the community, as he had not consulted with the adult’s treating team.

19. In the determination of the appropriateness of a proposed guardian, the Tribunal must consider the General Principles[9] and whether a person is likely to apply them[10].  The evidence before the Tribunal is that there are oppositional viewpoints in relation to the accommodation and support required by the adult in order to be safely discharged from hospital.  The adult’s son and daughter, united in their views, have differing viewpoints from that of the adult and his wider support network of friends from his parish.  The evidence establishes that the adult’s circle of support is factional.  Both CRE and AIF provided individual evidence to the Tribunal that, in the event of their proposed respective appointments as guardian for the adult, their decisions had already been made.  In this context, the Tribunal is not satisfied that either CRE or AIF would be able to effectively consult with relevant stakeholders and consider their viewpoints in order to discharge appropriate decision making in accordance with the General Principles.[11] 

    [9]GAA, Section 11B.

    [10]GAA, Section 15.

    [11]GAA, Section 11B.

20. The evidence establishes that an independent guardian would be able to consult with all stakeholders and make decisions that best meet the adult’s needs, in accordance with the General Principles.[12] The Tribunal determines that the Public Guardian, as an independent, skilful and experienced decision maker, is more appropriate for appointment as guardian than CRE or AIF, having regard to the provisions of section 15 of the GAA.

    [12]GAA, Section 11B.

    Conclusion

21. Accordingly, the Tribunal appoints the Public Guardian as guardian for CTR to make decisions about accommodation and service provision matters. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

    Is there a need for the appointment of an administrator for CTR?

    Evidence

22. CTR is in receipt of an age pension. He has access to credit in relation to a Visa card. Current expenditure is minimal as his board/lodging payments previously paid to OP, his friend and former accommodation provider after the passing of OP’s mother, were discontinued during the adult’s current hospital admission. According to the social worker, CTR is not being charged long-stay hospital fees. 

23. The adult’s assets include a vehicle, valued at approximately $25,000, a trailer and cash. He received a cheque for $95,241.44 in or around April 2021 from the estate of his late brother. In evidence to the Tribunal, CTR and OP submitted that the adult has cash assets totalling $140,000 held in two accounts: one owned by a trust, and the other a foundation, both established by the adult. CTR submitted that he is the only person with access to the accounts.  The adult’s pension is paid into one of the two accounts. Further details of these accounts, the trust and the foundation have not been established.

24. In addition to the above factors, and pending a decision by the guardian, an accommodation agreement (e.g. lease, residential aged care facility agreement) would require authorisation by a formally appointed financial decision-maker.

    Deliberation

25. The evidence establishes that the adult has complex financial matters.  He has assets, income and expenditure that require identification and management.  An agreement with an accommodation provider will require authorisation.

    Conclusion

26. Pursuant to section 12 of the GAA, there is a need for the appointment of an administrator for the adult for all financial matters, as there are multiple decisions required and, without the appointment of an administrator, his needs will not be met nor his interests protected.

    Who is the most appropriate appointee as administrator for CTR?

    Evidence

27. The options for appointment as administrator for the adult are the Public Trustee of Queensland, CRE or AIF.

28. AIF’s application was supported by the adult. The adult provided oral and written submissions to the Tribunal that his relationship with CRE was ‘now reasonably OK’.  He said that his son did not share his values or religious beliefs and is not part of his daily life. He said that his son was not a practising Catholic and that he would like to bring his son and daughter ‘back to the Traditional Catholic faith’.

29. In his application, AIF identified eleven friends of the adult as supportive of his proposed appointment. Several friends of the adult, who appeared to be associated with the adult’s parish, provided written submissions to the Tribunal in support of AIF’s application, should the Tribunal determine that an administrator is necessary.

30. CRE submitted in his financial management plan that, should he succeed in his application for appointment as administrator for the adult, he would sell the adult’s car and establish direct debits for necessary expenditure.  He said he would consider the adult’s investments on their merits following advice from a financial adviser and accountant, with consideration given to the adult’s wishes and medical reports. He indicated a willingness to consult with the adult, AIF and OP. CRE was supported in his application by the adult’s daughter.

31. Against this, is the evidence of AIF.  In his financial management plan, AIF outlined his proposed strategy as administrator.  He described his intention to open a bank account for the purpose of utilising the adult’s pension to pay for his expenditure.

32. AIF provided submissions to the Tribunal that he did not want to be antagonistic towards the adult’s family and that he was willing to work with them. He said he had called CRE in the context of the impending Tribunal hearing. 

    Deliberation

33. CRE demonstrated a willingness to identify, protect and manage the adult’s finances should he be successful in his administration application.  His submissions reflected an understanding of the adult’s diagnosis and financial capabilities as assessed by the adult’s treating team.

34. In contrast, in his evidence to the Tribunal in relation to his proposed financial decision making, AIF did not demonstrate consideration or knowledge of the adult’s complex finances, nor did he demonstrate a knowledge or understanding of the adult’s treating team’s assessment that the adult is unable to make complex financial decisions.  There is no evidence before the Tribunal that AIF understood that the administrator’s responsibilities would extend beyond management of the adult’s pension to cover his expenditure. 

35. In the determination of the appropriateness of a proposed administrator, the Tribunal must consider the General Principles[13] and whether a person is likely to apply them[14].  While both CRE and AIF indicated a willingness to consult with each other should they be appointed, the Tribunal was not persuaded by their submissions.  The evidence before the Tribunal is that CRE and AIF seek different accommodation settings for the adult post-discharge.  These views echo the oppositional viewpoints whereby the shared view of the adult’s son and daughter is in direct contrast to the views of the adult, AIF and the adult’s friends.  In this context, the Tribunal is not satisfied that either CRE or AIF would be able to effectively consult with relevant stakeholders, including the guardian and members of the adult’s support network, and consider their viewpoints in order to discharge appropriate decision making in accordance with the General Principles[15].  The Tribunal is not satisfied that either CRE or AIF would effect the decisions of the guardian, should the guardian make decisions for the adult with which they disagreed.

    [13]GAA, Section 11B.

    [14]GAA, Section 15.

    [15]GAA, Section 11B.

36. The evidence establishes that an independent administrator would be able to consult with all stakeholders, including the guardian, and make financial decisions that best meet the adult’s needs, in accordance with the General Principles.[16] The Tribunal determines that the Public Trustee of Queensland, as an independent, skilful and experienced decision maker, is more appropriate for appointment as administrator for the adult than CRE or AIF, having regard to the provisions of section 15 of the GAA.

    [16]GAA, Section 11B.

    Conclusion

37. Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for CTR for all financial matters. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

    Application of the Human Rights Act 2019 (Qld)

38. The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. CTR’s rights to privacy,[17] freedom of movement[18] and property[19] may be engaged and limited by decision of the Tribunal to appoint a guardian and administrator for the adult. On balance, the decision of the Tribunal provides for the adult to have opportunity to be safely discharged from hospital, have access to appropriate accommodation and service provision, and have his income and assets utilised in his best interests. Taking into account the above findings in relation to the criteria set out in the GAA, the Tribunal is satisfied that the decision of the Tribunal is the least restrictive option given the adult’s vulnerability, and that the benefits of the decision of the Tribunal outweigh any limitations imposed on the adult’s human rights. Accordingly, the Tribunal determines that the limits imposed by the decision of the Tribunal are reasonable and demonstrably justified in accordance with section 13 of the HRA.

    [17]HRA, Section 25.

    [18]HRA, Section 19.

    [19]HRA, Section 24.