GS
[2012] QCAT 538
•12 October 2012
| CITATION: | GS [2012] QCAT 538 |
| PARTIES: | GS |
| APPLICATION NUMBER: | GAA3552-12 / GAA3553-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 16 August 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 12 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. GM is appointed as guardian for GS for decisions about accommodation, health care and provision of services. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years. 2. The Adult Guardian is appointed as guardian for GS for decisions about contact and/or visits. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years. 3. The application for appointment of an administrator is dismissed. |
| CATCHWORDS: | IMPAIRED CAPACITY – GUARDIANSHIP and ADMINISTRATION – Applications for appointment by mother of 24-year-old young woman with spastic cerebral palsy and intellectual impairment – Where significant family law conflict between mother and father exists – Administrator appointed by New South Wales Supreme Court to manage personal injuries award – Decision that mother is not a “paid carer” SG, Re [2002] QGAAT 4 |
APPEARANCES and REPRESENTATION (if any):
| Dean Evans, Evans & Company Family Lawyers, for GS’s mother, GM G R Dickson, Counsel, instructed by Paul Gleeson, for GS’s father, GR |
REASONS FOR DECISION
GS, now aged 24 years, was born at the Royal Hospital for Women in New South Wales. She was admitted to the newborn care centre due to birth asphyxia, and at age 2 was diagnosed with cerebral palsy in the form of spastic quadriplegia. Additionally, GS has been diagnosed with global developmental delay, with a mild intellectual component. She has some musculoskeletal deformities secondary to her spastic cerebral palsy, and requires 24-hour care.
Recently, a lawsuit with the New South Wales hospital and obstetrician who handled GS’s birth led to a settlement of several million dollars, which is being administered by The Trust Company (Australia) Ltd (‘The Trust Company’) for GS in accordance with orders made by the Supreme Court of New South Wales.
GS resides with her mother, GM (the Applicant), and her two siblings, who are 25 and 19 years of age. GS’s parents have separated. Her father, GR, is currently residing with other family members. GS’s parents are involved in vitriolic and litigious family law proceedings relating to property matters in the Federal Magistrates Court. Sadly, these circumstances may impact on GS’s care and well-being.
GS’s mother GM has been the primary care provider, on a full-time basis, throughout GS's life, providing constant attention to her needs. Her father GR has contributed financially, working full-time and providing his attention in a supporting role.
GM claims that for some time, GR had been violent and aggressive towards her, and further that he has issues with alcohol. At some point following their separation, GR brought an application for an “ouster order” pursuant to the Domestic and Family Violence Protection Act in the Southport Magistrates Court, alleging that GM had been violent toward him and seeking that he be given sole use and occupation in relation to the house. That application was subsequently withdrawn.
GM asserts that GR’s allegations against her are false, and for this reason, she set up a camera in the home that they continued to share following separation, to protect herself against further allegations. Ultimately, the recording device captured GR acting in an allegedly violent manner towards GS, without any provocation. This episode was investigated by the Queensland Police Service, and has led to assault charges being brought against GR. There is also a related Application for domestic and family violence protection orders progressing through the Southport Magistrates Court that was commenced by GM on GS’s behalf in relation to GR’s allegedly violent conduct. On 1 February 2012, Federal Magistrate Baumann granted GM exclusive use and possession of the family home.
Many of the issues between GM and GR are unresolved, and it is apparent on any view that this is a high conflict situation. GR and GM have competing ideas in relation to GS’s personal and financial affairs. Further, as GS lives with GM, and GR wishes to have contact with GS, this poses many practical and emotional difficulties for all involved.
It is GM’s assertion that her role as GS’s primary carer should continue, and that the administrator use the funds obtained for GS’s care following the settlement award to achieve this end. GM has sworn in her affidavit material that at the point in time GR was ordered to leave the former matrimonial home, he also ceased to comply with orders concerning spousal maintenance. GM is now in a position where, as a consequence of her separation from GR, and as a consequence of his withdrawal of financial support, she may have to re-enter the workforce after many years at home.
This causes a conundrum where GS is concerned. If GM needs to obtain work, then she will no longer be available to provide care during her working hours to GS. The settlement that GS received is capable of funding a carer to look after GS. In GM’s view (as well as the administrator’s), the easy solution is to simply pay GM an amount that reflects her contributions to GS’s care.
This is an arrangement that GR expresses concern about, now that GM has applied to the Tribunal seeking to be appointed as GS’s guardian for decisions about various personal matters, and also to be appointed to manage GS’s day-to-day finances. This issue will be discussed further below. Firstly, it is necessary to consider the issue of GS’s capacity, and secondly, whether there is a need to make such appointments.
GS lacks capacity for decision making
For a guardianship or administration order to be made, three areas must be addressed; capacity, the need for an appointment, and if established, who an appointment should be to.
GS’s capacity is not contested. The Supreme Court of New South Wales, in its orders dated 29 March 2012, made a declaration of incapacity. It was noted by the authors of several medico-legal reports relied upon in the NSW Supreme Court proceedings that GS has a great deal of difficulty in communication and co-ordination, as well as a diagnosed mild intellectual disability.[1]
[1] Affidavit of GM, sworn to 3 April 2012, Exhibit “A”.
The Tribunal finds that GS requires significant assistance with personal and financial decisions, and lacks capacity as defined by the Guardianship and Administration Act 2000.
There is not a need for GM to have a limited appointment as GS’s administrator
This Tribunal does not have authority to change or revoke the order of the New South Wales Supreme Court appointing The Trust Company (Australia) Limited to manage GS’s estate.
Section 3 of the Act defines “management” as including administration of an estate. The question as to whether this would permit appointment of a joint administrator for day-to-day financial decisions is one of interpretation – GR raises arguments that appointing GM in a limited capacity is beyond the Tribunal’s jurisdiction as it would amount to a change of the arrangements put in place by the New South Wales Supreme Court.
It is perhaps more useful to begin by considering whether there is need for GM to act as an administrator in a limited capacity. In his submissions, GR takes issue with the “need” for the appointment of GM to manage GS’s day-to-day financial matters, and questions whether there is any practical requirement for such an appointment.
In her submissions, GM makes reference to significant minor financial tasks she undertakes for GS, which she says would be made far easier if she was expressly designated as fulfilling a localised and minor administrative role.
The Trust Company has, in correspondence with the Tribunal dated 13 August 2012, expressed its support for GM’s application for both guardianship and limited administration of GS’s financial affairs (to the extent that it does not impinge upon orders made by the NSW Supreme Court). It is noted that GM may be called upon to account for any outgoings incurred on GS’s behalf by the Trust Company.
I would consider such an arrangement between GM and the Trust Company to provide for sufficient oversight. I also accept that considering the confined role that GM would have in relation to financial decisions if appointed, that no conflict would occur in her receiving payments for the voluntary care she provides for GS as a payer/payee, as this would be handled by The Trust Company.
However, I am not convinced that there is a significant purpose or need for GM’s appointment. It is the obligation of the Trust Company to put in place practical arrangements for the management of GS’s affairs. This might, for example, include setting up a bank account in GS’s name, but allowing GM access to same either as a signatory, or by way of a debit card, with any expenses to be reconciled after a particular period of time.
Should this prove difficult for practical reasons that GM and the Trust Company could articulate with particularity, it would be open to GM to make another application to the Tribunal. At such juncture, the Tribunal could revisit the issue of need, and if then satisfied a need exists, consider whether the Tribunal’s jurisdiction would extend to the appointment of GM as a joint administrator in a limited capacity. At this point in time, without more detail, I am unable to find that a genuine need exists, decline to make the appointment on this basis, and dismiss GM’s application relating to administration.
There is a need for GS to have a guardian
All parties present at the hearing agreed that there is a need for the appointment of a guardian for GS.
As a consequence of her parent’s separation and the financial consequences of this for her mother in particular, the informal arrangements that were in place for management of GS’s personal decisions are in a state of flux. It is possible that GS will need to move in the near future, and that paid carers and services will need to be engaged to meet GS’s needs. GS’s healthcare needs are complex. GR expresses a desire to continue to see GS, and this poses difficulties given his relationship with GM and the circumstances surrounding the charges of assault he faces in the Magistrates Court in relation to GS.
Although an informal system of family-based decision making worked in the past, with breakdown in GR and GM’s relationship; it is no longer a suitable arrangement. The Tribunal finds that there is a need for the appointment of a guardian for GS, for decisions about accommodation, health care, provision of services, and with whom GS has contact and/or visits.
Who is the most appropriate guardian for GS?
The question of who should be appointed as GS’s guardian is one which raises argument from both GM and GR. GR proposes that the Adult Guardian be appointed, and GM submits that she should be appointed, having been GS’s carer since birth. Ultimately, this Tribunal must determine what is in GS’s best interests.
As regards contact decisions, GM and GR agree that, in view of their dysfunctional relationship, the Adult Guardian should be appointed. This is sensible, and the Tribunal will appoint the Adult Guardian to make decisions about contact for two years, to be reviewed following that period.
With regard to other areas of decision-making, GR says that an arrangement whereby GM receives some form of financial reimbursement for caring for GS, due to her inability to otherwise generate income, makes her a “paid carer” and therefore disqualified from appointment as GS’s guardian (or administrator). “Paid carers” are not eligible for appointment pursuant to section 14 of the Act.
“Paid carer” is defined in Schedule 4 of the Act as being “for an adult, someone who—“[2]
(a)Performs services for the adult’s care; and
(b)Receives remuneration from any source for those services, other than—
(i) A carer benefit or benefit payment received from the Commonwealth or a State from providing home care for the adult,
(ii) Remuneration attributable to the principle that damages may be awarded by a Court for voluntary services performed for the adult’s care.
[2] Guardianship and Administration Act 2000, schedule 4.
A similar set of circumstances was present in Re SG [2002] QGAAT 4. In Re SG, the adult’s parents were appointed jointly and severally as guardians, and the Public Trustee of Queensland was responsible for the management of substantial funds obtained through the courts as compensation for the adult’s injury. In its decision appointing the Public Trustee as administrator, the Supreme Court also ordered that “[the adult] pay the sum of $412,774 to his parents for sums expended on behalf of and for past gratuitous care and for interest on those sums for [the adult].”
The principle that voluntary past care required compensation was first espoused in Griffiths v Kerkemeyer [1977] HCA 45, and is now generally included as a head of damage in injury compensation proceedings. The issue arising in SG’s case, however, was that the adult’s parents wished (as is the case with GM here) the Public Trustee to make some form of payment to them for their ongoing care and support of the adult. The Tribunal was required to consider whether doing so would disqualify them from acting as guardians under section 26(1)(a) of the Guardianship and Administration Act 2000, for the reason that they would then be “paid carers.”
The Tribunal noted in SG that the definition of “paid carer” contained in Schedule 4(b)(ii) of the Act makes specific reference to Griffiths v Kerkemeyer, wherein it was established that a component for future care may be factored into a damages award, even if that care is provided gratuitously by family or friends. There would not need to be a contract for services existing, either when the award was calculated, nor subsequently.[3] The Tribunal was satisfied that having been allocated an amount as compensation for past voluntary services did not preclude future voluntary care from attracting compensation of the kind described in Griffiths v Kerkemeyer.
[3] Re SG [2002] QGAAT 4, page 7.
The need for the provision of future care was clearly anticipated by the Court in providing the award for the adult in SG, and the award should be apportioned as required. As such, the Tribunal found that the parents were not “paid carers” as defined in the Act, and that the Public Trustee should make payments for the voluntary care they provided for their son. Following on from this, the Tribunal found that there was no need for any service agreement to be entered into between the parents and the Public Trustee.
GR submits that the Griffiths v Kerkemeyer portion of GS’s settlement has been quantified at $800,000, and as such, forms part of the matrimonial pool available for distribution. Further, GR submits that any amount paid out in future for GS’s care (with the amount suggested being $700 per week) would make GM a “paid carer” under the Act. I disagree, and think that GR’s argument is based upon an incomplete understanding of the Tribunal’s decision in SG, where it was essentially decided that damages for past voluntary care did not preclude similar compensation being awarded from a settlement for future voluntary care.
This position was cited positively in Re BJA [2006] QGAAT 41, where the parents and appointed guardians were also in receipt of amounts for Griffiths v Kerkemeyer type services. I am satisfied that such compensation would not make GM a “paid carer” under the Act. Neither would she be required to enter a service agreement, or be prevented from becoming a guardian or administrator.
Having decided that there is no legal impediment to GM being appointed as a guardian, I must now consider whether GM, or the Adult Guardian, is more appropriate for the role.
GM is the most appropriate guardian for GS
It is generally accepted by the parties that GM has been GS’s primary carer since birth. GS resides with GM, and GM wishes for this arrangement to continue into the future. There is significant evidence before the Tribunal from organisations such as the Blue Care nurses and Gold Coast Recreation and Sports, that GS would experience significant challenges in her life if she was to reside in care. I cannot see any logical reason to not allow GM to continue performing the important and pivotal role that she has held for her daughter, and instead handing the role over to the Adult Guardian. Where a parent is ready, willing and able to be part of their own adult child’s decision-making processes, it is unthinkable that this Tribunal would remove them from a role they have performed well, on the sole basis that they find themselves party to a vitriolic family dispute. GM has loved and tended to GS’s personal, financial and emotional needs, making the sort of sacrifices in her own life that are necessary to care for a child like GS in the process. GM is, in my view, the most appropriate person to perform this role for GS.
In performing this role, GM will be required to consult with persons of importance in GS’s life, including her father, GR. Even if GM and GR are unable to have productive discussions face-to-face, there is no reason that information and views cannot be exchanged by email, or in writing. The Adult Guardian is in place to facilitate contact, and I note that GR does not raise any particular instances where GM has excluded him from involvement in decisions (as opposed to contact) about GS.
GR cites the decision in Re CRS [2006] QGAAT 57 as support for the proposition that family law conflict itself is a sufficient basis to require the appointment of an independent guardian. There is no evidence before the Tribunal suggesting that GM has been unable to communicate with GR. Rather, the evidence paints a contrary picture and points to GR himself as the genesis of significant conflict. The evidence suggests that GM has made concerted efforts to arrange orderly communication, and that GR and his various legal representatives have been unresponsive.[4]
[4] Affidavit of GM, sworn to 3 April 2012, paragraphs 47-57.
Further, in CRS, the two conflicting parties had differing ideas as to accommodation and the level of service provision required by the adult –such that the matter could not be resolved without objective third party involvement.
In this situation, the service provision level required by GS is not disputed. I find that it would be contrary to GS’s best interests to appoint the Adult Guardian in circumstances where GM is available to do perform the role of guardian. This is particularly so as the parties have sensibly consented to the appointment of the Adult Guardian for contact decisions, thereby removing an obvious point of difficulty that would otherwise have the potential to affect GS’s ability to maintain relationships with both of her parents.
GM is appointed as GS’s guardian for a period of two years for decisions about accommodation, health care, and provision of services.
Orders
GM is appointed as guardian for GS for decisions about accommodation, health care and provision of services. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.
The Adult Guardian is appointed as guardian for GS for decisions about contact and/or visits. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.
The application for appointment of an administrator is dismissed.
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