DN
[2010] QCAT 43
•5 February 2010
CITATION: DN [2010] QCAT 43
PARTIES: DN
APPLICATION NUMBER: GAA6160-09
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 5 February 2010
HEARD AT: QCAT - Brisbane
DECISION OF: Graham Quinlivan (Presiding), Professor Lindy Willmott, Ms Sue Holzberger
DELIVERED ON: 5 February 2010
DELIVERED AT: Brisbane
ORDERS MADE: Guardian appointed; application of administration dismissed. EPA overtaken
CATCHWORDS: Family conflict, Applicant seeking leave to withdraw application.
APPEARANCES and REPRESENTATION (if any):
Social Worker Hospital
General Manager, Nursing home
DM, Wife, present for only part of Hearing by telephone;
WS, Daughter, present for only part of Hearing by telephone.
REASONS FOR DECISION
DN was born on 3 March 1935 and is currently 74 years old. He has been diagnosed with dementia and has insulin dependent diabetes. He is also incontinent. DN is currently residing in a Brisbane suburb.
From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Applications made to the Guardianship and Administration Tribunal are taken to be applications made to the Queensland Civil and Administrative Tribunal.
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 Guardianship and Administration Act 2000 Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
PRELIMINARY MATTER
The first matter considered by the Tribunal in relation to the application by TA dated 21 May 2009 was whether to grant leave for TA to withdraw her applications. The circumstances leading up to the request by TA to withdraw her applications are as follows:
On 21 May 2009 TA, a daughter of DN made an application to the Guardianship and Administration Tribunal (GAAT) seeking that she be appointed jointly with her father DN as his Guardian and Administrator. She also sought that any current power of attorney be revoked and cancelled. On 4 September 2009 DN suffered a stroke and was admitted to a Hospital.
During the period, 21 May 2009 until 12 January 2010 there was a series of contacts and correspondence from the applicant to GAAT regarding the progress of the application. On 12 January 2010 a written request was received from the applicant TA seeking to list the matter for hearing with a 2pm hearing time. On 15 January 2010 the Queensland Civil and Administrative Tribunal (QCAT) issued a Notice of Hearing for 5 February 2010 at 1.45pm.
DN had been transferred from the Hospital on 6 January 2010 to a nursing home as a high care resident. On 20 January 2010 DN was discharged from the Nursing Home to return to his home.
On 20 January the applicant again wrote to GAAT requesting an adjournment of the hearing on 5 February 2010. On 4 February 2010, QCAT received correspondence from the applicant dated 1 February 2010 requesting that the hearing date and time be cancelled. The correspondence also noted that “as advised last week and also via letter we all wish to with draw this GAAT application.” On 5 February 2010 QCAT received a further fax from the applicant dated 6 February 2010 confirming that she was withdrawing her application.
At the hearing of the Tribunal on 5 February 2010 the only people to attend at the commencement of the hearing were the Social Worker from the Hospital and the General Manager from the Nursing Home. Both of these parties expressed concerns about the care that DN might be receiving and about his lack of decision-making ability.
The Tribunal also had evidence from the Adult Guardian dated 5 February 2010 to the effect that DN “needs appropriate accommodation where he will be safe and not at risk and all required services will be provided for his comfort and well being”. Further that there are allegations about disruptive family contact which impacts negatively on DN.
There was also correspondence from Blue Care expressing serious concerns about the level of family support for DN and recommending that “community funded services will not be sufficient in meeting the ongoing safety, supervision and care requirements of DN” It was also reported that DN’s GP Dr SI felt that DN would be more appropriately cared for in a residential setting.
On the basis of this information and in the absence of the applicant the Tribunal did not grant leave under s.122 of the Act to the applicant to withdraw her application.
CAPACITY
The first matter to be considered by the Tribunal is whether DN has capacity for decision-making about his personal and financial matters. General Principle 1 of the Act contains a presumption that an adult has capacity for a matter.
The Tribunal is required to determine the capacity of the adult as at the date of the hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (GAAT Act) before it can proceed to hear the applications for guardianship and administration.
The Tribunal must consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for DN.
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.”
A Health Professional Report was provided to the Tribunal from Dr SS dated 13 October 2009. Dr SS is the Resident Medical Officer on the team who were treating DN in the Stroke Unit at the Hospital. Dr SS stated that she had known DN for 2 days and that he had suffered a stroke on 4 September 2009. He also has long-term insulin dependent diabetes and hypertension.
Dr SS further stated that DN has no capacity to make complex or simple decisions in relation to personal or financial matters. The cause of his impaired decision-making is dementia.
A further Health Professional Report dated 12 January 2010, was provided by the General Manager from the Nursing Home who is a registered nurse. She states that DN does not have the ability to understand and act on information. He seems to understand when personal care is offered but does not have the ability to plan activities. The General Manager confirms that DN does not understand and cannot make complex financial and personal decisions and does not have the ability to make simple decisions except for simple personal health care matters.
The Social Worker provided oral evidence that DN left the Hospital on 5 January 2010 and that there are concerns over whether he is being looked after now that he is home.
The General Manager confirmed in oral evidence that DN has no capacity to understand or make decisions. While in the care of the Nursing Home all activities such as toileting, eating and washing were staff initiated.
The Tribunal decided that the evidence established that DN cannot understand the nature and effect of decisions about his personal and financial matters. The Tribunal therefore made a finding of fact that DN lacks capacity to make decisions about his personal and financial matters and needs assistance for all those decisions.
CONCLUSION
The Tribunal determines that DN does not have capacity to make decisions about his personal and financial matters.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
The evidence as set out in the application by TA received on 21 May 2009 states that there was conflict between the decision-makers for DN. She further states that DN made an Enduring Power of Attorney when he did not have capacity to do so. She believed abuse was occurring and said that “they” had sold his boat and that her sisters and mum were trying to put him in a nursing home and sell his house.
TA submitted that DN currently needed to have personal decisions made for him about where he should live, his health care, the provision of services, whether he should apply for a licence or permit and legal matters not relating to his financial or property matters. In particular TA expressed great concern about the possibility of DN being put into a nursing home.
At the hearing oral evidence was initially received from the General Manager who said she had been contacted by Community Health nurses seeking her advice about cultural issues regarding DN’s care since he had returned home. The Dementia Management Advisory Service was having difficulty managing DN at home and that HACC regarded the situation as extremely challenging. This evidence was supported by the written evidence dated 4 February 2010 from the Nurse Manager of Blue Care.
At this point in the hearing the Tribunal decided to seek more information from the applicant and other family members by telephone. DM the wife of DN joined the hearing and messages were left for the applicant and WS another daughter of DN and his current attorney under the Enduring Power of Attorney. DM was asked if she was willing to speak to the Tribunal and she agreed.
DM told the Tribunal that DN was living at home and that she was looking after him by doing his cooking cleaning and washing. She was not administering his medication because that was “not her job”. She said that nurses come twice a day from another hospital and that we pay them. She informed the Tribunal that DN was not very good, not 100%.
DM said that she is always watching DN because the house has lots of steps and sometimes she needs to help him to get around. She said she is trying her best and has given up her own job to help with DN. She said that she changes his bed every day, the nurses shower DN and that there is a chair in the toilet.
DM also explained that WS was in charge and that she attends the house every 2-3 days and that TA comes in the evening after work about once a week but she is very busy. MM and DH, ND’s other two daughters only visit occasionally.
At this point in the hearing WS attended by telephone. She explained that her father had wanted to return home. She had received advice from Blue Care and the following arrangements were put in place:
·Mobility – a walker and metal stick were acquired to assist DN;
·Routine –DN spends most of his time in his bedroom or on the verandah and he is able to manage this;
·Stairs –The house has a number of stairs but if they become too much for DN then he can be re-located to a granny flat on the property.
·The family doctor visits DN at the home and has been impressed with DN’s mobility since returning home;
·2 frames, a seat and incontinent pads have been acquired;
·Blue Care is doing the nursing and showering for DN and is looking into other services.
WS was asked about obtaining a report from and occupational therapist and she said she would discuss this with Blue Care.
In addition to the oral evidence provided by the social worker and the General Manager at the hearing the Tribunal also considered all of the written evidence on the file. In particular the nurse manager from Blue Care advised that DN had been the subject of an urgent referral to ACAT for an EACH/D package as a means to sustain DN at home. There is in excess of a six month waiting period for this level of service with Blue Care.
Despite a level of unresolved conflict, the applicant, TA, and the adult’s wife, DM and his daughter WS all appear to agree that DN wants to live at home. However the major service providers the General manager of the Nursing Home and the Nurse manager of Blue Care express grave reservations and concerns about the ongoing care and welfare of DN while he remains at home.
The position of the carers is supported by the Adult Guardian who states that DN needs appropriate accommodation where he will be safe and not at risk and all required services will be provided for his comfort and well-being. Further there are allegations about disruptive family contact which impacts negatively on DN.
Based on the information set out above, the Tribunal determines that there is a need for decisions to be made in relation to DN personal matters. Without an appointment the needs of DN will not be adequately met or his interests will not be adequately protected
WHO SHOULD BE APPOINTED AS GUARDIAN?
DN is in need of decisions to be made about his accommodation and the services he receives. On 4 April 2007 DN executed an Enduring Power of Attorney appointing his daughter Ws as his Attorney for financial and personal/health matters.
On 15 January 2010 Ws advised the nursing home that DN would be collected on January 2010 and returned home on the basis that “((after) several discussions with Family members, medical staff and aged care it has been agreed that his wish be fulfilled, and he is returned home.” On the same day the General Manager confirmed those arrangements and pointed out the ongoing concerns that she had for DN’s care. On 4 February 2010 the nurse manager of Blue Care in correspondence outlined a range of ongoing concerns about the arrangements put in place for the care and welfare of DN and concluded that “community funded services will not be sufficient in meeting the ongoing safety, supervision and care requirements of DN.”
The Tribunal also considered a large amount of correspondence from the applicant, TA, including telephone contacts with the Tribunal expressing her desire to be responsible for her father’s personal and financial matters.
WS advised the Tribunal that she had not used the Enduring Power of Attorney for her father until November 2009.
On the basis of the evidence provided, the Tribunal was not satisfied that WS had acted in a way that was consistent with DN’s proper care and protection, or in a way that is appropriate to DN’s characteristics and needs as required by General Principles 7(5) and 10 respectively by deciding to remove him from the Nursing home on 20 January 2010 and had not taken appropriate steps to ensure proper services were being provided to DN for his ongoing care and welfare. The Tribunal was also aware of the apparent ongoing conflict between family members regarding the ongoing care of DN.
The Tribunal being satisfied that there is a need for appointment of a guardian for DN appoints the Adult Guardian to make decisions for the provision of services for DN in relation to his accommodation.
CONCLUSION
The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of DN. The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as guardian in this case.
APPOINTMENT
That The Adult Guardian is appointed as Guardian for DN for decisions about the following personal matters:
a.Accommodation;
b.Provision of services.
Unless the Tribunal orders otherwise, this appointment remains current for 12 months.
That the following Enduring Power of Attorney for DN is overtaken by the making of this appointment in relation to accommodation and the provision of services and in accordance with s.22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made:
a.The Enduring Power of Attorney dated 4 April 2007 appointing WS as attorney for Financial, personal and health matters.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
The evidence in the file is that DN receives a pension and has an interest in a property in a Brisbane suburb. WS advised the Tribunal at the hearing that she is currently managing her father’s financial matters. She gave evidence that the bank is very difficult to deal with in relation to her father’s accounts and she must provide evidence of all payments before any money is released. However she is managing to do so at the present time.
Based on the information set out above, the Tribunal determines that there is an ongoing need for decisions about DN financial matters to be made but these decisions are being made by WS under the enduring power of attorney made by DN on 4 April 2007. The Tribunal is satisfied that financial decisions were being made on behalf of DN in an appropriate way.
CONCLUSION
The Tribunal is satisfied that there is no current need for the appointment of an administrator for DN.
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