FPC
[2011] QCAT 695
•23 December 2011
| CITATION: | FPC [2011] QCAT 695 |
| PARTIES: | FPC |
| APPLICATION NUMBER: | GAA8692-11 / GAA8693-11 / GAA8884-11 / GAA8885-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 25 November 2011 and 15 December 2011 |
| HEARD AT: | Cairns |
| DECISION OF: | Graham Quinlivan, Presiding Member Catherine Benson, Member |
| DELIVERED ON: | 23 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Adult Guardian is appointed as guardian for FPC for all personal matters. [2] The guardian is to provide a guardianship plan to the Tribunal within 4 months. [3] This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 1 year. [4] The Public Trustee of Queensland is appointed as administrator for FPC for all financial matters. [5] The administrator is to provide a financial management plan to the Tribunal within 4 months. [6] The Tribunal directs the administrator to provide accounts to the tribunal when requested. [7] This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in 1 year. |
| CATCHWORDS: | Conflict between family members and service providers – eligibility for appointment – suitability for appointment |
APPEARANCES and REPRESENTATION (if any):
Ms FPC (25 November 2011)
Ms FG (mother of FPC)
Jo Gall (25 November 2011)
Dr VJ
Katy Egan
Kylie McNally (25 November 2011)
IM (father of FPC)
Pat Anderson (15 December 2011)
Rebecca Clarke
Rhonda Wills (25 November 2011)
FS
Kirrily Turner (on behalf of The Public Trustee of Queensland)
Robert Davie (on behalf of the Adult Guardian)
REASONS FOR DECISION
On 19 October 2011 Ms FG filed applications in the Tribunal seeking the appointment of herself and Dr VJ as guardians and administrators for FPC. On 2 November Mr FS from the Department of Communities – Child Safety also filed applications seeking the appointment of the Adult Guardian and The Public Trustee of Queensland as Guardian and Administrator respectively for FPC.
On 19 October 2011 Ms FG also filed an interim application seeking that she and Dr VJ be appointed adult guardians for FPC on reaching the age of 18 years on 10 November 2011. On 26 October 2011 Mr FS filed an application seeking a Stay of Decision pending a hearing in relation to FPC.
On 3 November 2011 Member Joachim made interim orders appointing the Adult Guardian and The Public Trustee of Queensland as guardian and administrator respectively for FPC for a period of three months after FPC’s 18th birthday or, if the tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
On 9 November 2011 an Application for leave to appeal or appeal, an Application to stay a decision and an Application for interim order or injunction were lodged with the Tribunal by Ms FG.
On 17 November 2011 Notices of Hearing were sent to all relevant people. The various substantive applications were listed for hearing on 25 November 2011.
On 24 November 2011 a further application was received from Ms FG seeking a closure order in relation to the hearing.
The Adult
FPC is an 18 year old woman who presently resides near Cairns. She has been sharing the accommodation with her younger brother and another child. All three have been supported by ARC Disability Services. Her parents are Mr IM and Ms FG. FPC is one of four siblings, her brothers being FN, FB and FD.
The Parties
At the commencement of the hearing on 25 November 2011 the people in attendance were as follows:
§ Ms FG – Adult’s mother and applicant
§ Mr IM – Adult’s father
§ Ms Rebecca Clarke – Manager, ARC Lifestyle Support
§ Ms Katy Egan – Team Leader, ARC
§ Ms Kirrily Turner – The Public Trustee of Queensland
§ Mr Robert Davie – Adult Guardian
§ Mr FS – Carer, Department of Communities – Child Safety and applicant
§ Dr VJ – Doctor and friend
§ Ms Jo Gall – A/Manager, Department of Communities – Child Safety
§ Ms Rhonda Wills – Team Leader, Department of Communities – Child Safety
§ Ms Kylie McNally – CSSO, Department of Communities – Child Safety
The first issue that the Tribunal had to consider at the hearing was the closure application made by Ms FG under section 107 of the Guardianship and Administration Act 2000 which had been filed by her on 24 November 2011.
The Applicant mother had brought the application for a closure order seeking to prevent the adult, FPC, from attending the hearing because the Adult Guardian who is the interim guardian for FPC had informed the parents that he intended to arrange for her attendance.
The parties present were informed that the test to be applied was that the closure order would only be made if the Tribunal was satisfied that the adult’s presence at the hearing would cause “serious harm or injustice” to her.
The mother, as applicant submitted that she saw no reason for her daughter to be present; she didn’t want her “paraded” around and “on display”. She also stated that she considered it would be distressing to her daughter to be brought in, in front of “all these people” (there were approximately 10 people involved) and that she would be confused. The father effectively agreed with the mother’s comments.
Dr VJ, a medical practitioner who introduced himself as “the family doctor for 15 years,” and having qualifications in psychiatry, made comments to the effect that: he was “astounded at the lack of empathy” shown by the members; that the Tribunal was referring to this person as an adult but she actually has the mind of a two year old; that he strongly objected to her being involved; that it would cause her serious harm and be a serious injustice to her in having her involved. Dr VJ did not make it clear on what basis he suggested that serious harm and/or injustice would be done to the adult.
Dr VJ also commented that FPC had a history of seizures in recent years, which were “misdiagnosed as epilepsy”, and were, in his opinion a direct result of the stress caused by the involvement of the Department of Child Safety.
The Tribunal also took submissions from the Adult Guardian who pressed strongly that it was a question of “human rights” and that a serious injustice would be caused to FPC if she were not present. He conceded that she would not have the capacity to be actively involved in that she does not communicate verbally apart from very minimally, and that she would not understand the proceedings. However he considered it very important that the Tribunal knew whom they were making decisions about. He further submitted that she would be accompanied by a carer and if she showed any signs of distress she could be taken out of the room without fuss. He also suggested that she could sit next to her mother, if her mother wished, in order to provide additional comfort for her.
The service provider Ms Cathy Egan, Team leader at ARC, informed the Tribunal that the adult was likely to be “confused” when she first walked into the room but “not necessarily distressed”. She suggested FPC would most likely want to sit with her mum. She also stated that if there was any “escalation” in her behaviours due to stress that this would be picked up by the carer very quickly and it would not be difficult to escort her from the room if that happened.
After a short adjournment the Tribunal determined that there was insufficient evidence that FPC would be seriously harmed or a serious injustice caused to her by being present. The hearing then commenced while arrangements were made for FPC to attend.
FPC entered the hearing room with her carer at about 2.25pm, her mother got up and approached her; there was a warm embrace and generally positive interactions between them. The mother directed FPC to a side table. The mother provided treats for FPC to eat and colouring books. FPC was also warmly greeted by her father who then returned to the bar table as the hearing continued. At approximately 2.35pm an incident took place in the hearing room that resulted in FPC being transported to hospital. The proceedings were then adjourned until a date to be fixed.
The proceedings were recommenced and completed on 15 December 2011. The Adult was not present on this occasion.
Those persons who were present on the date of the recommenced hearing were as follows:
§ Ms FG
§ Mr IM
§ Ms Rebecca Clarke – Manager, ARC Lifestyle Support
§ Ms Katy Egan – Team Leader, ARC
§ Ms Kirrily Turner – The Public Trustee of Queensland
§ Mr Robert Davie – Adult Guardian
§ Mr FS – Carer, Department of Communities – Child Safety and applicant
§ Ms Pat Anderson – Manager, Department of Communities – Child Safety
§ Dr VJ – Doctor and friend
Capacity
In any proceedings before it, the Tribunal only has jurisdiction if it finds that the Adult, in this case FPC, lacks capacity for decision-making about her personal and/or financial matters. 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.
It was common ground at the hearing that FPC has autism.
A medical report was received from Dr VJ dated 19 October 2011. In it he describes himself as “the person’s psychiatrist and friend”. He states that he has known the adult for 15 years and that she is not capable of making decisions freely and voluntarily. Further he says that she was born with Autism Spectrum Disorder with some recent episodes of convulsions. In summary he says that the Adult is not able to understand or make any complex decisions but that she is able to make simple personal health care decisions.
A second report was received from Dr Amarjit Singh dated 12 October 2011. Dr Singh is a General Practitioner who has known FPC for 6 months. He states that FPC has a congenital intellectual disability. She has had epilepsy since 2010 and autism. He says that she responds positively to carers and agrees with Dr VJ that she is not able to understand or make any complex decisions but that she can make simple personal health care decisions.
A third report was provided by Dr Timothy Warnock who is a specialist paediatrician who states that he has known FPC for 16 years. He dates the onset of Autistic Disorder to 1995 but also says that it was diagnosed in 1997 and the onset of Epilepsy occurred in 2010. He says that FPC’s parents have been influential in her life and that this has been positive sometimes and sometimes less so, particularly at times of conflict with the Department of Child Safety and their carers. Dr Warnock advises that FPC is not able to understand or make any complex personal health care or financial decisions but that she is able to make and understand simple personal health care and lifestyle or accommodation decisions.
In oral evidence Mr IM pointed out that Dr VJ was the family doctor and friend. He can be trusted and he has no criminal record. He says that Dr Warnock has been FPC’s doctor recently but Dr VJ has been all the childrens’ doctor in the past.
Ms FG also gave evidence that she was happy to work with Dr VJ and indicated that he had an Asperger’s clinic. She said that she sees Dr VJ being FPC’s health carer in the future if she is appointed as FPC’s guardian.
All parties agreed that FPC does not have the ability to understand or make any complex decisions.
Based on this evidence the Tribunal made the following findings of fact about FPC’s capacity:
§ FPC has Autism;
§ She cannot understand the nature and effect of decisions about a matter;
§ She is not able to make decisions freely and voluntarily;
§ She is not capable of communicating decisions.
As a result the Tribunal determined that FPC does not have capacity to make decisions about her personal and financial matters.
LEGAL REQUIREMENTS FOR APPOINTMENT OF DECISION MAKER
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 such as FPC, 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 she is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to her health, welfare or property and without an appointment her needs will not be adequately met or her interests will not be adequately protected.
Also when considering the appointment of a guardian or an administrator the Tribunal 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.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
It was common ground again between the applicants that FPC requires ongoing decisions in relation to all her complex personal decision-making.
The following issues were raised as being particularly significant at the present time:
FPC’s accommodation circumstances –
§ with whom she has contact;
§ her health care circumstances;
§ day to day issues;
§ legal matters not involving FPC’s finances or property;
§ the adult’s employment circumstances;
§ the adult’s education or training;
§ seeking help or making representations for the adult.
In particular the Tribunal received evidence from the parents that it is their preference to have FPC return home to live with them in the family home, whereas the carers are concerned about “a lot of things happening in the home”.
The major issue raised concerned the parent’s ability to work effectively with the carers involved in FPC’s life and the significant conflict that exists with the current carers ARC Lifestyle Support. There is no doubt that there is a history of and ongoing conflict between the parents and the current carers for FPC.
The Adult Guardian provided a report dated 24 November 2011. In that report, FPC is described as a very vulnerable young woman who is not able to express her wishes or protect herself from harm. She is described as requiring support “in all her activities of daily living and has some very complex behaviours that are exacerbated when she becomes distressed or upset”.
The Adult Guardian indicated that since the appointment commenced on 10 November 2011 significant decisions have needed to be considered in the areas of education, service provision and accommodation, contact and visits, and health care. The Tribunal also notes that FPC’s attendance at the Tribunal hearing also required an intervention by the Adult Guardian.
The Tribunal makes the following findings of fact:
§ FPC has many complex personal decisions that need to be made in her life;
§ There is extreme conflict between FPC’s parents and the support service.
The Tribunal determines that there is a need for a decision in relation to the matter and without an appointment the Adult’s needs will not be adequately met or the Adult’s interests will not be adequately protected
IF SO WHO SHOULD BE APPOINTED AS GUARDIAN?
The Tribunal considered the following proposed appointees as guardian:
§ Ms FG and Dr VJ jointly;
§ Ms FG solely;
§ The Adult Guardian.
The first issue in relation to determining whether it is appropriate to appoint Ms FG and Dr VJ as joint guardians for the Adult is whether Dr VJ is eligible for appointment. The relevant provisions of section 14(1)(a) of the Guardianship and Administration Act 2000 state:
S.14.1 The tribunal may appoint a person as guardian or administrator for a matter only if—
(a) for appointment as a guardian, the person is—
(i)a person who is at least 18 years and not a paid carer, or health provider, for the adult; or
(ii)the adult guardian.
Section 14.2 provides that:
Despite subsection (1)(a)(ii), the tribunal may appoint the adult guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
On several occasions during oral evidence Dr VJ described himself as “the adult’s Doctor” and “the family Doctor”. On another occasion in his health professional report dated 19 October 2011 he has referred to being “the adult’s psychiatrist”. It is noted in written declarations dated 26 October 2011 and 3 November 2011 he has stated he is not FPC’s health provider.
When raised with him that he was not eligible to be FPC’s guardian pursuant to s 14(1)(a) of the Act, his response was to the effect that “that is easy to get around – I will simply find a suitable health provider for her”. He then expressed a view the effect of which was that the legislation was wrong as it did not take into account autistic people as no-one properly understood them. He then commented to the effect that the Tribunal should not be restricted by “just words”. He then repeated that he would simply find her an alternative “suitable” health provider.
The Tribunal also has other concerns about the appropriateness of Dr VJ as a guardian for the Adult. These are:
§ Dr VJ made statements during the hearing that he had been FPC’s “psychiatrist until she was abducted” and that he has treated FPC and her siblings because there is a lack of other suitable medical practitioners/experts in Far North Queensland to do so.
§ His response to the Tribunal’s concerns did not indicate a clear acceptance of his disqualification for the role but rather a suggested way to get around what he clearly considered to be a mere technicality, going so far as to urge the Tribunal to ignore the legislative requirements.
§ In final submissions, FPC’s father said that “Dr VJ can just find another doctor to treat her”. At this point Dr VJ interjected to say “suitable practitioner”. Mr IM then commented several times that he was angry with the Department for taking FPC away from her “lifelong Dr” and that “there is no reason why FPC should not be seeing her lifelong Dr” (clearly referring to Dr VJ). The mother agreed with that view.
§ The mother gave oral evidence on 25 September 2011, and confirmed her evidence on 15 December 2011, that should she be made FPC’s guardian she would immediately re-engage Dr VJ as FPC’s treating doctor.
§ The Tribunal can have little confidence that Dr VJ would not continue to treat FPC and that any alternative medical practitioner he chose would only be one who would be prepared to agree with his recommendations such that Dr VJ would in effect, continue to be FPC’s treating doctor.
§ The parents expressed time and again throughout the hearing their absolute respect and dependence upon Dr VJ’s medical expertise and are very likely to continue to seek his assistance. Dr VJ himself was adamant that there were no other “suitable” medical practitioners who could treat FPC.
§ In that case it is most likely Dr VJ would remain, in one form or another a treating medical practitioner for FPC, despite his almost flippant response that he would simply nominate another practitioner. The Tribunal is particularly concerned that this raises the potential for a conflict of interest particularly given the accepted evidence that FPC suffers a wide range of medical issues. An example of a potential conflict is the use of birth control by FPC which Dr VJ argued strongly against and expressed his opinion that the use of same has likely caused or contributed to FPC suffering seizures.
Taking these matters into account the Tribunal finds that Dr VJ is not eligible to be appointed as the Adult’s guardian and further is not an appropriate person for appointment.
The next issue to be determined is whether it is appropriate to appoint Ms FG solely as guardian for FPC. The evidence regarding Ms FG’s role in her daughter’s life was wide ranging. FPC’s attendance at the hearing allowed the Tribunal the opportunity to see the strong bond that exists between FPC and both her parents.
Ms FG indicated during the hearing that should Dr VJ not be considered suitable, she would accept the role as guardian alone. This view was re-iterated by the father.
The Tribunal has identified the following issues regarding the mother’s suitability.
The father made submissions on behalf of the mother, as Applicant, to the effect that in the past, they had adequately provided for FPC and were able to continue doing so. Ms FG pointed out, after prompting from the father, that they owned their own home and had lived there for some 18 years. Accordingly in their submission this demonstrated their stability.
The parents submitted various family photos taken while on a family trip which again was used in support of their claims.
The father also submitted that FPC would benefit from further special schooling which was only available in Canberra and which would not happen if the Adult Guardian was appointed as the Adult Guardian was not supportive of such a proposal. In his report the Adult Guardian indicates that the decision regarding FPC’s education is still under consideration and no final decision has been made. The parents proposed that the mother would move to live in Canberra with FPC and one of her brothers to allow FPC to complete a year of schooling there and the father would remain living in Cairns with the two other siblings.
The parents were very critical of the care provided to FPC by the Department of Child Safety to date, and important decisions made by them without proper consultation with the parents, and submitted that since their appointment the Adult Guardian had not been forthcoming with information in a timely manner.
In response to evidence from Mr FS from the Department of Child Safety to the effect that there was a long history of substantiated child protection issues stemming from about 2006, the parents strongly denied that this was the case. Dr VJ stated that he has the “greatest admiration” for the parents considering they raised and cared for four siblings all with autism. The Tribunal did not receive detailed evidence about these issues and is therefore not in a position to make any particular findings about the truthfulness or otherwise of the allegations. However it is clear there have been previous court proceedings, and findings made by the Children’s Court, that FPC, along with her siblings were children in need of care, as a result of the allegations raised by the Department.
Ms FG also raised issues of alleged neglect of FPC in the care of the Department and again no findings are able to be made about those allegations.
Evidence was given by the Department of Child Safety and by ARC that the parents have refused to engage positively with service providers and with the Department in the past to address concerns and to allow re-unification of FPC with her parents and her siblings.
Mr FS, as the applicant from the Department of Child Safety, submitted that FPC had shown “big improvements since being in care,” that she had “high complex needs for her daily care and protective needs” and that her parents “had not shown insight into the child protection concerns spending more effort challenging and disagreeing” with authorities and service providers and “not engaging and providing opportunities for improvement”. Mr FS was concerned that the parents “had a willingness but not the capacity” to care for FPC and that they did not have “proper knowledge to handle her medical issues”. He outlined that both parents had used physical force to cope with FPC in the past and that FPC was in “danger” if she returned home under the care of her parents as “there is no-one to make proper decisions” for her. In the circumstances he submitted it was in FPC’s best interests to appoint an “independent” guardian.
The parents strongly denied any excessive use of physical force or discipline and suggested their children were taken from them from school one day because “FN” (an older sibling) “was playing up when he went to work experience”. They were otherwise unable to articulate why their children had been taken into care and subsequent orders made in relation there-to. They gave evidence that their children were happy in their care and together they were “like peas in a pod”. This was in contrast to Mr FS who stated he had seen FPC show fear and anxiety on some contact visits, with her mother using physical force to make her take a walk, and reacting with distress to the general chaotic behaviour of her siblings which was often loud and interfering.
Without making specific findings, the Tribunal has concerns that the parents refuse to acknowledge any of the child protection concerns raised or any of the behavioural or emotional issues identified for FPC while in her parent’s care. While there is no doubt that both parents dearly love their daughter and want what is best for her there is some evidence to suggest that they have not always coped with the behavioural challenges of four special needs children and are as such unlikely to cope with the ongoing special needs of FPC as an adult without ongoing professional support.
It is noted the parents submitted a statement apparently signed by a care provider about events that happened between FPC and a care provider in a recent contact visit with her parents. This statement was presented as support for the mother’s claims that FPC was happy and content at that visit in contrast to Mr FS’s claims that she showed fear and distress when “forced” to go for a walk. It is noted that the contents of the statement refer to a short period of time when the carer arrived at the house and greeted FPC. It does not address the specific incident raised by Mr FS and as such has been of limited assistance to the Tribunal. Mr FS’s evidence was certainly not suggestive that FPC displayed fear on every occasion she attended at her parents’ home, or for the entirety of any visit. The evidence given by ARC supported the suggestion that FPC loves her parents and enjoys their company, which was clearly seen by the Tribunal upon FPC’s entrance to the hearing room on 25 November 2011. Mr FS’s complaint goes to specified incidences that he says occurred during contact visits.
It was clear to the Tribunal throughout the hearing that although the mother is the applicant, the father was her advocate and often spoke over the top of her, prompted her or answered for her when she was directly addressed. It is highly likely that an order appointing the mother as guardian will, in effect, mean that the mother and father jointly will take on the role. It is also apparent to the Tribunal that the father, in fact, will assert his opinions to override those of the mother’s wherever they disagree about any issue.
There is a concern that moving FPC to Canberra for further schooling may not be in her best interests. While the Adult Guardian agreed the school identified by the parents appeared to provide some positive specialised schooling there were other competing issues, such as the need to move FPC and re-establish with accommodation and service providers. FPC needs to be living in the area before she can apply to the school and there is no guarantee of acceptance although indications are that she is likely to be accepted. There is no clear evidence of the benefit to FPC if she was able to access that further education. The Tribunal is satisfied that the Adult Guardian is exploring this issue and will, if appointed, make a balanced decision in FPC’s best interests. The parents are very focussed on adopting this course and the father gave evidence that they had the financial means to do so but there was no evidence they had turned their mind to the other issues raised by the Adult Guardian that would necessarily follow such a move.
There is a clear and obvious high degree of conflict and lack of trust as between the parents on the one hand and on the other, members of the Department of Child Safety, the service provider ARC, and Mr FS in particular. In this regard Mr FS was adamant this conflict had begun only since the day prior to this hearing on 25 November 2011 while the parents suggested it was a long standing issue.
At the re-commencement of the hearing on 15 December 2011 Dr VJ asked to bring a document to the attention of the Tribunal. He claimed to have received a copy of an email “from an unknown person” which was apparently sent to Mr FS. Dr VJ stated that the content of the email was to the effect that “Mr FS has been concealing the truth”. Dr VJ went on to state that it was clear the email came from “someone in this court room” following the last hearing and clearly referred to evidence given by Mr FS on the last occasion. Mr FS indicted he had not seen the email before but acknowledged it was addressed to him and he may well have received and discarded it. He explained it made reference to the meaning of his name in Arabic and was clearly offensive and racist.
The email was received into evidence, there being no objection by Mr FS to that course. The contents of the email were of no value to the Tribunal in relation to the facts in this matter and FPC’s father made strong comments at the time it was raised that “it has nothing to do with FPC and is not relevant”. The Tribunal agrees with that statement. However, the document having been tendered, the Tribunal has made a clear and positive finding that there was nothing in Mr FS’s evidence throughout the hearing to suggest other than that he was genuine and truthful at all times.
The Tribunal noted that as FPC is aged 18 she is no longer under the care of the Department of Child Safety. While the Department’s involvement in this matter has been helpful from an historical perspective, any concerns, whether valid or not, with their involvement, will no longer be relevant.
The Adult Guardian gave evidence to the effect that since his involvement, he has been in regular contact with FPC’s father and that all relevant issues have been discussed. The father complained that it took four days to get clear information from the Adult Guardian about FPC’s health status following her seizure on 25 November 2011. It is also noted that FPC’s parents were themselves involved at the hospital on the day of FPC’s admission and the evidence suggests she was given the “all clear” on that day.
The Public Trustee raised an issue regarding FPC’s Centrelink payments. It appears that while she was under the care of the Department of Child Safety when she turned 16, no application was made for her to receive a disability pension and that she may well be entitled to a lump sum back payment to that date. The parents accuse the Department of being unprofessional in not pursuing this but the Department quite properly point out that the parents remained as FPC’s guardians during that period such that it was an issue that could only have been pursued by them. It is concerning to the Tribunal that a dispute about who’s responsibility it was has led to FPC being without such financial support bearing in mind that she was in the care of the Department of Child Safety throughout that period.
The Adult Guardian, in brief submissions raised a concern that there were a number of current and likely on-going decisions to be made for FPC’s care and welfare. These decisions will involve the utilisation of various services and service providers. To date the service providers allege that the parents have been confrontational and argumentative rather than co-operative while the parents accuse the service providers of shutting them out of decision making or ignoring the issues they identify. FPC’s best interests require an independent person to make those decisions. To not have an independent person making such decisions may well lead to FPC’s needs not being met. The Tribunal accepts there is considerable merit in such submissions.
The Tribunal hopes that this family might move forward with the assistance of an independent guardian involved, and unfortunately, it is the opinion of the Tribunal that at present there is little confidence that FPC’s best interests will be served by the current level of hostility and lack of trust as between the interested parties.
While the level of the parent’s defensiveness is understandable it does appear to the Tribunal that this is likely to influence the decisions made for FPC by her parents should they (or the mother) be appointed as her guardians at this time.
For those reasons the Tribunal is of the opinion that the least restrictive solution is that the Adult Guardian is appointed as guardian for FPC.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
The Tribunal has already noted the issues regarding the failure by those previously involved in FPC’s care to ensure that her financial affairs were in order. These matters are currently being attended to by The Public Trustee of Queensland.
FPC’s father acknowledged that he has some understanding of the role of The Public Trustee because that organization is already involved with one of his sons. He said that if Ms FG and Dr VJ were appointed jointly or Ms FG was appointed solely then they would follow a similar approach similar to The Public Trustee. He further acknowledged that his primary concern was the appointment of a guardian for FPC and that the appointment of an administrator was a secondary consideration.
The Public Trustee of Queensland provided a report on their activities since their role came into effect on 10 November 2011. They have prepared a budget for FPC, which shows a potential surplus of approximately $4,000.00.
It is estimated that FPC is entitled to a fortnightly pension of around $498.00 that may be supplemented by a mobility allowance and rental assistance depending on her ongoing circumstances.
The Public Trustee has also identified that she may be entitled to a back payment from the date when she turned 16 being 10 November 2009. According to The Public Trustee the back payment has been approved for at least $7,408.00 but it is expected that this amount will increase. There is also likelihood that there may be a small repayment due to ARC Lifestyle Support.
While the Adult Guardian did not make direct submissions that The Public Trustee should be appointed, he did submit that the history of this matter illustrates the difficulty that service providers have had working with the family in the past. In his view if the Tribunal were minded to appoint an independent decision maker for personal matters then in order to implement any of the initiatives necessary to secure FPC’s welfare, it would be more appropriate to appoint an independent decision maker for her financial matters as well to avoid further problems. If a family member were appointed to both roles then this would not be an issue.
The following issues were raised as the basis for the administration application:
§FPC has some immediate complex financial matters to be resolved and she will have ongoing income and assets to manage;
§There is conflict between current service providers and family members;
§She is vulnerable to financial abuse or exploitation;
§Recent evidence demonstrates that her financial affairs have not been properly managed.
The Tribunal determines that there is a need for a decision in relation to the matter 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 determines that the need for the appointment of an administrator has been established.
IF SO WHO SHOULD BE APPOINTED AS ADMINISTRATOR?
The Tribunal considered the following proposed appointees as administrator:
§ Ms FG and Dr VJ jointly;
§ Ms FG solely;
§ The Public Trustee of Queensland.
In relation to Dr VJ, the provisions of section 14(1)(a) of the Guardianship and Administration Act 2000 mean that he is not eligible for appointment as FPC’s administrator.
While Ms FG is eligible the Tribunal continues to be concerned about her ability to effectively take on the role in a way which will ensure FPC’s best interests. In particular the Tribunal is not satisfied that Ms FG would be able to adequately apply the general principles that are set out in the legislation.
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 FPC’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.
Therefore the orders that the Tribunal makes are as follows
The Adult Guardian is appointed as guardian for FPC for all personal matters.
The guardian is to provide a guardianship plan to the Tribunal within 4 months.
This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 1 year.
The Public Trustee of Queensland is appointed as administrator for FPC for all financial matters.
The administrator is to provide a financial management plan to the Tribunal within 4 months.
The Tribunal directs the administrator to provide accounts to the tribunal when requested.
This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in 1 year.
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