GC - [2013] QCAT 664 | CaseChat AU

CITATION:

GC [2013] QCAT 664

PARTIES:

APPLICATION NUMBER:

GAA 4735-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

12 August 2013

HEARD AT:

Ipswich

DECISION OF:

Member Windsor

DELIVERED ON:

31 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Trustee of Queensland is appointed as administrator for GC for all financial matters.

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

3. This appointment remains current until further Order of the Tribunal.

CATCHWORDS:

Guardianship and administration matters for adults - Capacity - Modest finances - History of generosity to child

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

GC Adult
TB Daughter
DC Advocate
CK Applicant

REASONS FOR DECISION

This is an application pursuant to the Guardianship and Administration Act 2000 for the appointment of an administrator for GC.
The applicant is CK, a Social worker.
The Adult is GC, aged 84 who lives alone in a single bedroom Department of housing unit. He receives home cleaning assistance and meals on wheels.
GC receives an aged pension.
GC completed year 12 of high school, then an apprenticeship and worked as a fitter and turner/engineer as well as being a small business owner.
GC has two children, TB aged 49 and GN aged 46 who are estranged from each other and who have differing views regarding their father’s well-being.
GC is opposed to this application believing he can manage his own finances.
He attended the hearing and spoke of his desire to continue with his lifelong and current financial practices which appear to involve significant generosity to his son GN.
TB assists GC financially.
The applicant and TB are concerned at possible financial abuse of GC by his son GN.
GN indicated to QCAT on 19 June 2013 that ‘the application painted him in a very bad light and as biased’. He was advised by phone that he could provide feedback.
GN said that neither he nor his father wished to have anything to do with the Tribunal. No feedback was received from GN who did not attend the hearing.
GC was assisted at the hearing by an advocate, DC, from QADA (Queensland Aged and Disability Advocacy Inc.) who provided further written submissions following the hearing.
Numerous medical assessments were referred to the Tribunal.
Dr Fleury in her report dated 5 March 2013 diagnosed Alzheimer’s dementia, Gord, treated prostate cancer, asymptomatic brachycardia.
She reported that GC stated that at times he had difficulty managing his financial affairs but at other times he believed that everything is fine and that he can continue to make his own financial decisions.
She reported that GC is aware of his short term memory deficits and ‘has some insight into the deficits they cause’.
She reported that GC does not have the capacity to manage his own financial affairs and that he is financially vulnerable giving specific examples discussed further in this decision.
Dr Lesleigh Sands, a general practitioner whose assessment dated 15 July 2013 is that GC is at risk of financial exploitation. She concludes that he has no capacity for complex financial decisions and recommends the appointment of the Public trustee of Queensland.
Dr Cecily Brasch, a neuropsychologist, also concludes in her report dated 19 February 2013 that GC has no capacity for complex financial decision making.
Dr Cecily Brasch also undertook a clinical and neuropsychological assessment on 14 February 2013 following a two year history of memory disturbance in GC.
That report refers to a significant episode of confusion where GC was found at the Brisbane airport on 14 November 2012 with no recollection of how he got there.
Uncontradicted information provided to the Tribunal is that GC had driven himself to the airport to meet his son GN. He became lost and was located by airport management.
He was subsequently hospitalised then discharged, then re-hospitalised for three days with heavy localised chest pain, shortness of breath, nausea and dizziness.
Dr Brasch’s report also refers to fluctuating period of confusion and at page 6 states that GC demonstrated a ‘rudimentary knowledge of everyday financial management tasks’. GC indicated that TB held an enduring power of attorney for him, but this is not correct. Dr Brasch also indicated that GC may be vulnerable to manipulation.
Following the hearing on the 12 August 2013, the Tribunal reserved its decision and requested further submissions.
These were received from DC and TB.
TB’s further submissions indicate her concern that expenditure of the bulk of a $1,000 Centrelink loan obtained on 14 May 2013 by her father were expended between 14 May 2013 and 1 June 2013 for expenses for GN .
She further states in her submissions that GC indicated he needed to ‘assist GN to set himself up’ after he moved out of his father’s unit.
DC submissions analyse the medical reports in particular that of Dr Fleury.
DC states that Dr Fleury’s report is set against a background of chaotic financial issues such as significant telephone debt, an incorrect golf fees direct debit, a potential breach of the Department of Housing tenancy agreement, and an unpaid electricity bill, as well as a practice of providing a pin number and account details to his son.
Her submission is that these chaotic financial issues are no longer current. She then submits that the fact that these issues have been resolved refutes the conclusion of Dr Fleury i.e. that GC lacks capacity for complex financial decisions and is financially vulnerable.
In any event she submits that GC’s financial resources are quite modest and that their disposal should be left to his discretion and meet his desire to live in the moment.
The applicant CK is involved with GC in her role as Senior Social worker to the Hand to Home Response team (Older People’s Health West Moreton Hospital and Health).
She contends that whilst GC can participate in a discussion about his finances, he will not recall the conversation.
She states that Dr Sands, Dr Brasch and the Centacare and CACPs package coordinator support the application for the appointment of an independent administrator.
In addition to her application, she provided a letter dated 6 August 2013 in which she details an interview with GC at his home. The discussion centred on GC’s misunderstanding of some bank account withdrawals which he said were ‘not his’.
After explanation it appeared that the withdrawals and expenditure were related to expenses for GN. After CK explained the statements to him, GC then indicated that he no longer needed to go to the bank. She described him as confused and distressed at trying to understand the financial documents.
CK observed that in one instance the withdrawal transactions amounted to 40% of GC’s pension. On leaving the home, GC observed to CK that, ‘I should perhaps be blaming himself (GC) rather than GN for the situation’.
The Tribunal has found the following:
a)    GC, an aged pensioner is 85 and lives in Department of housing single bedroom unit.
b)    He receives meals on wheels and support from Centacare with household cleaning and social support.
c)    He has a diagnosis of Alzheimer’s dementia following an assessment by Dr Fleury, a geriatrician and Dr Brasch, a neuropsychologist. Both agree that he is financially vulnerable.
d)    GC was found by his doctors, to have memory deficits and to be aware of this.
e)    The memory deficits have been observed for two year period.
f)     It is agreed that there is a long family history of GC giving financial support to his son GN.
g)    GC expressed the view that he needs to ‘pull back a bit’ on this practice.
h)    In November 2012 a concerning event occurred. GC drove to the Brisbane airport; it is understood to collect his son GN.
i)     It is documented on airport surveillance that GC drove in and out of the carparks 12 times and that he was “lost” at the airport for 5 hours.
j)     The Brisbane Airport General Manager contacted TB. She collected her father and Federal police resources were used to locate GC’s car. GC was hospitalised with chest pain and dehydration following this event.
k)    After the airport incident, in November 2012, GN moved into his father’s one bedroom unit.
l)     This contravened department of housing tenancy conditions and placed the tenancy in jeopardy.
m)   GN moved out.
n)    A number of GC’s accounts were found to be outstanding including an electricity account and car registration.
o)    An unpaid phone bill of $1,800 was apparently occasioned by a pattern of reverse charge calls from GN prior to his coming to Queensland.
p)    CK described in her letter dated 6 August 2013 distress and confusion in GC as he tried to understand his bank statements and looked to her for assistance.
q)    GC borrowed $1,000 from Centrelink and gave the money away despite his recent issues with unpaid debts.
r)     GN did not attend the hearing or make any submissions.
s)    It is reported by the applicant that GN has been hostile to service providers and is opposed to any measures to independently regulate his father’s financial affairs.
t)     GN did seek legal representation and advocacy for his father to resist this application.

Does the Adult lack capacity for a matter?

The Guardianship and Administration Act 2000 (the Act) defines capacity as:
Capacity for a matter means the person is capable of
a)    Understanding the nature and effect of decisions about a matter and
b)    Feely and voluntarily making decisions about the matter and
c)     Communicating the decisions in some way
The Tribunal considered the following evidence about capacity:
a)    GC’s medical diagnoses include Alzheimer’s dementia, Gord, treated prostate cancer, asymptomatic brachycardia.
b)    The Tribunal accepts the opinion of Dr Fleury that GC does not have the Capacity to manage his own financial affairs and that he is financially vulnerable.
c)    Additional medical reports support Dr Fleury’s opinion and they are accepted.
d)    Dr Sands, a general practitioner whose assessment dated 15 July 2013 is that GC is at risk of financial exploitation. He concludes that he has no capacity for complex financial decisions. Dr Sands stated to CK that he believed GC may be subject to financial abuse.
e)    Dr Brasch, a neuropsychologist, also concludes in her report dated 19 February 2013 that GC has no capacity for complex financial decision making.
f)     Dr Brasch’s clinical and neuropsychological assessment on 14 February 2013 refers to a two year history of memory disturbance in GC.
g)    GC communicated well at the hearing. He was clear in his view that he did not require any assistance and that his informal arrangements were working satisfactorily and the past debt problems were behind him.
h)    He displayed a superficial understanding of his financial affairs and minimised any areas which he thought would look unfavourable for him such as borrowing money to make gifts to GN or giving his pin to another.
i)     Dr Fleury reported that GC was unclear as to how much money he had.
j)     The views of TB were accepted by the Tribunal. TB stated that she believed her father was vulnerable and needed assistance.
k)    DC contends that current arrangements are in place to forestall any future problems and in any event GC’s means are modest.
l)     She also contends that the least intrusive action for the Tribunal is to make no order but allow GC to continue with his desire to live in the moment and to continue to spend his small surplus as he sees fit.
The Tribunal finds that the evidence established that the adult cannot understand the nature and effect of decisions about the matter.

Conclusion

The Tribunal determines that the adult does not have capacity to make decisions about the matter.
Section 12 of the Act provides that before the Tribunal can appoint an administrator to make financial decisions for the adult with impaired decision making capacity, the Tribunal must be satisfied that there is a “need” established.
Need is established if the Tribunal determines that the adult is likely to do something which involves unreasonable risk to the adult’s health, welfare or property and that without appointment the adults needs will not be met or the adults’ interests will not be adequately protected.

Is there a need for the appointment of an administrator?

The Tribunal does not accept the first submission of DC in her analysis that the discharge of the current or recently past debts somehow removes the vulnerability of GC to continuing financial abuse.
A pattern of financial manipulation against the interests of GC seems evident to the Tribunal in particular large expenditures (40% of his pension) on gifts to his son.
In particular it appears that obtaining a Centrelink loan to meet the expenses of another is inconsistent with logical prudent financial management.
Further the Tribunal does not agree that simply because GC’s financial position is modest that it does not warrant protection.
The Tribunal rejects the submission that “need” is not demonstrated because the amount left after bills are deducted is minimal. It is still worthy of protection from exploitation, particularly when the adult is clearly vulnerable.
The final submission is in regard to the desire of GC to preserve the “special relationship” which GC has had with his son for the whole of his life.
The financial decisions of GC may be seen as an indulgent parent and are commonplace. Set against his declining cognitive function, however, it is clear that there is a need for a decision maker who is independent or he is at risk of exploitation.
GC acknowledges himself that past practices cannot continue in his current circumstances.
The Tribunal does not accept the submissions of DC, except to the extent that many of the problem areas have been addressed and that GC has some limited insight as to why these situations were problematic.
However the Tribunal finds that because of his lifetime of habit, GC is unable to resist or weigh the outcomes of providing financial assistance to GN or others as opposed to his protecting his own interests.
The Tribunal determines that there is a need for a decision in relation to the matter and that without an appointment the adult needs will not be adequately met or the adult’s interests will not be adequately protected.
The Tribunal is satisfied that financial abuse is occurring and that the GC is vulnerable due to his lack of insight into the consequences of his financial decisions as a direct outcome of his diagnosis of dementia.
The Tribunal determines that the need for the appointment of an administrator has been established.

Who should be appointed as administrator?

The Tribunal considered the following possible appointees:
TB or Public Trustee of Queensland have been considered.
TB has demonstrated a supportive attitude to her father but does not put herself forward. She has met some of his bills and it appears has tried to work with GN to share the repayment of outstanding debts.
She was the person who sorted out the problems associated with her father being lost at the airport.
TB has attended medical appointments with her father and liaised with service providers. The Tribunal has observed that her attitude to the conflict is measured and is focussed on the best interests and least intrusive measures for her father.
It appears that in not seeking to be appointed she is making a considered choice in the interests of her father given his strong views about his son and their relationship.
The relationship between father and son is strong, enduring and interdependent. The general principles require appointees to maintain supportive relationships.
Unfortunately the Tribunal was not given the benefit of directly hearing from GN as to his position on the issues discussed here, so it is difficult to assess his actual attitude to his father’s declining health as a factor in managing his finances.
A conflict exists between family members referred to in the information supplied to the Tribunal. Though we do not have GN’s actual point of view in the absence of his attendance, or reason for non-attendance, the Tribunal can only rely on his reported actions.
GN is reportedly opposed to the application and to service providers.
He moved into his father’s one bedroom flat with little consideration as to impact on the tenancy.
He accepted financial and other support from his father when it was clear that his father was unwell; following his hospitalisation after the airport incident.
GN’s conduct towards his father indicates a lack of insight into the deficits his father now has and what this means. At times; his conduct seems to show that he places his own interests ahead of his fathers.
It is essential that an administrator can carry out their duties for the benefit of the adult. For this reason the Tribunal does not consider that GN would be an appropriate appointee.
As a result of their differing approaches to their father’s age and cognitive state and how this should be managed, it is clear that it would be difficult for GN and TB to work together in the decision-making process.
For this reason an independent appointment is required. This is supported by all parties apart from GC, and his advocate and presumably GN who has not sought to participate.
In these circumstances, the Tribunal is of the view that an independent administrator would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs.
In this respect the Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee is considered the most appropriate appointee as administrator.