HFG
[2013] QCAT 327
•3 July 2013
| CITATION: | HFG [2013] QCAT 327 |
| PARTIES: | HFG |
| APPLICATION NUMBER: | GAA3080-13 GAA3081-13 GAA4274-13 GAA4275-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 18 June 2013 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Philippa Beckinsale, Member |
| DELIVERED ON: | 3 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Guardianship: (a) health care; (b) provision of services; (c) whether HFG works and, if so, the kind and place of work and employer; (d) what education or training HFG undertakes. 2. This appointment remains current until Administration: |
| CATCHWORDS: | GUARDIANSHIP - whether appropriate appointment – where conflict between parents. Guardianship and Administration Act 2000 ss 13, 14, 15. |
APPEARANCES and REPRESENTATION (if any):
The adult’s mother DL attended and was represented by Ms Katherine Lord, solicitor from Grant and Simpson. The adult’s father VG and brother EG attended.
REASONS FOR DECISION
HG is a young man who will be eighteen years old in August 2013. He has an intellectual disability as a result of having Down syndrome. He is the youngest of five children born to his parents DL and VG. H’s parents separated when he was five years old. He lived with his mother and siblings and spent weekend and holiday time with his father until February 2011 when Mr G insisted, against Ms L’s wishes, that H, then aged fifteen, live week about between the parents’ households. It was a year before the dispute over the arrangements for H was heard by the Federal Magistrate’s Court and the Court ordered that the week about living arrangement continue. The Court also ordered that the parents have shared parental responsibility for decisions relating to H other than decisions relating to health, education and vocational training, for which Ms L was ordered to have sole responsibility.
Ms L and Mr G have each applied to the Tribunal to be appointed in advance sole guardian and sole administrator for H upon his attaining eighteen years of age.[1]
CAPACITY
[1] Guardianship and Administration Act 2000 s 13.
The first matter to be considered is whether H is likely to have impaired capacity[2] to make personal and financial decisions when he turns eighteen[3].
[2] Ibid, Schedule 4.
[3] Ibid, s 13(1)(a).
A report has been provided by H’s GP Dr George Belonogoff that H has Down syndrome resulting in an intellectual disability which is congenital and stable. In the doctor’s view H is able to make only simple personal health care decisions.
Ms L and Mr G agree that H needs and will continue to need decisions to be made for him throughout his adulthood.
I find that H has an intellectual impairment which will continue to exist when he turns eighteen and that he will be neither able to understand the nature and effect of decisions nor to make decisions freely and voluntarily about personal or financial matters and that he will lack capacity for those matters.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR FOR FINANCIAL MATTERS
Currently H’s finances have been informally managed with his mother his Centrelink nominee and accessing the Disability Pension and his father receiving a Carer’s Payment. It was acknowledged by the parents that these are payments which ideally should be shared in the situation where H is spending equal time between the parents’ households. There had been some attempt by the parents to split the Carer’s Payment and it may be that it was Centrelink’s error this has not occurred. Ms L related how she had attempted to give Mr G the ability to access H’s funds by giving Mr G a keycard. Mr G sent the card back, rejecting Ms L’s attempt to be practical on the basis sending the card and access numbers with H’s belongings was a serious error by Ms L putting the account at risk. Mr G continued to be outraged by Ms L’s action at the hearing.
The fact that Ms L felt she had to deliver the keycard to Mr G in this manner and what I consider is Mr G’s overreaction, is just one illustration of the conflict between H’s parents.
The applicants have filed in the Tribunal some of the material that was before the Federal Magistrates Court which evidences the extreme conflict between them and their ongoing inability to communicate.
Ms L was reportedly diagnosed by her psychologist as suffering Post Traumatic Stress Syndrome as the result of what she described as her treatment by Mr G during their marriage.[4]The psychologist who prepared a Family Report for the Court gave evidence that Ms L found it “impossible to communicate on an equal basis with Mr G, because he would become so insistent and intimidating towards her that she would feel helpless and powerless and would not be able to present her own opinion and argue her case”.[5]
[4] Paragraphs 13 and 14 of Family Law Assessment dated 24 January 2012.
[5] Paragraphs 13 and 14 of Family law Assessment dated 24 January 2012.
In the proceedings before this Tribunal Ms L as recently as May this year submitted as a reason for requesting legal representation that she did not believe that she would otherwise “be able to effectively communicate or participate in these proceedings with...Mr G”.[6]
[6] Part F Application for leave to be represented dated 14 May 13.
In support of his application to the Tribunal Mr G has filed a number of documents presumably because he considers these present Ms L in a poor light. I consider such documents illustrate Mr G’s vitriol towards Ms L and the conflict that continues between them following the hearing of the family law proceedings.
Once H attains adulthood it would be difficult for the management of his finances to continue informally given the requirements of Centrelink, banks and other institutions with which he will need to deal. That would be the situation even with cooperation existing between his parents. Given the lack of cooperation I am satisfied of the need for a formal appointment.
WHO IS THE MOST APPROPRIATE APPOINTMENT AS ADMINISTRATOR
Both applicants presented comprehensive Financial Management Plans which evidenced an understanding of H’s needs. The professional and personal experience of both parents equipped either to make financial decisions on H’s behalf. I believe either parent would be an appropriate administrator in the absence of the other parent. Ms L and Mr G at the hearing agreed that a joint appointment was not appropriate. Ms L contended at the hearing that she should be appointed sole administrator. Mr G at the hearing submitted, notwithstanding his original application, that he supported the appointment of the Public Trustee.
H lives between his parents’ households and part of his income will need to be paid to support his accommodation and needs within both parents’ homes. Should Ms L be appointed administrator she would need to decide on a budget which would have to apply in both households. That would include how much is allocated for spending with either parent for holidays, whether H contributes to the costs of transport in his parents’ cars and what amount of board he would pay in each household. These are matters where H’s financial interests are in conflict with the financial interests of his parents, and if one of them had the role of administrator, the financial interests of the administrator would be in conflict with those of H.[7] Of course a parent will often be administrator for his or her child who lacks capacity and with transparency and commonsense applied to the conflicting financial transactions this can work.
[7] Guardianship and Administration Act 2000 s 15(1)(c).
These parents do not like or trust each other. Even with Ms L’s best attempts to be transparent in all financial transactions concerning H I think the conflict between her and Mr G will be ongoing as he presents as having ongoing criticisms of Ms L no matter how minor the issue, his reaction to the keycard being sent to him being an example.
Another consideration is that I intend to appoint Ms L guardian for some personal decisions for H. The personal decisions she makes will understandably be scrutinized by Mr G. I think if she also had to make the financial decision to pay for the personal decision, the potential for further and extreme conflict arises.
Conflict between these parents, of its self, does not mean that either parent is inappropriate to be appointed administrator for H. However my view is that the Public Trustee is the most appropriate appointment as administrator for H at this time.
I make the following findings regarding appropriateness.
(a)The Public Trustee can make independent and objective decisions regarding how H is to be financially supported in both parents’ households avoiding conflict transactions.
(b)The Public Trustee will be able to decide funding for personal decisions made by Ms L reducing the incidence of conflict between the parents.
(c)The Public Trustee will be able to account to both parents as well as to the Tribunal for H’s income and expenses and avoid escalation of conflict between the parents.
(d)The conflict between H’s parents is extreme and likely not only to adversely impact on H’s well being but on a parent’s ability to make financial decisions on his behalf.
I find that when H turns eighteen financial decisions will need to be made[8] and that without the appointment of an administrator his needs would not be adequately met[9]. I find the most appropriate administrator for me to appoint is the Public Trustee being in the best position to apply the general principles given the high degree of conflict between H’s parents[10].
[8] Ibid s 13(1)(b)(i).
[9] Ibid s 13(1)(c)(i).
[10] Ibid s 15.
I consider the need for the appointment of an administrator will continue once H turns nineteen but I also consider that a review of the appointment may be appropriate with the possibility that his parents may be able to take over the role if they have resolved some of the issues between them and I will not extend the period of the appointment beyond that date[11].
[11] Ibid s 13(5).
The following orders are made in relation to administration:
(a) The Public Trustee of Queensland is appointed as administrator for HFG born August 1995 upon HFG turning eighteen years for all financial matters.
(b) This appointment remains current until August 2014.
(c) The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
(d) The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN FOR PERSONAL MATTERS
Whilst both parties say they do not now propose a change to H’s current living arrangements, he finishes school at the end of this year and there will be a need for decisions regarding his further education and training and possible employment as well as the provision of services. Decisions regarding H’s health are also likely to be ongoing with the medical conditions often occurring with Down syndrome and H’s diagnosis of hidradenitis suppurativa which requires ongoing treatment. Ms L and Mr G agreed that with the Court Orders coming to an end when H turns eighteen and the degree of conflict between them that a formal appointment of a guardian is needed. I agree.
I find that there is a reasonable likelihood that upon H turning eighteen there will be a need to make personal decisions about his health care, provision of services, whether H works and, if so, the kind of work and place of work and the employer and what education or training H undertakes[12] and that without an appointment his needs would not be adequately met or his interests not adequately protected[13].
WHO IS THE MOST APPROPRIATE APPOINTMENT AS GUARDIAN
The Tribunal would often consider that the joint appointment of parents as guardians for an adult lacking capacity to make his or her own personal decisions would be the most appropriate arrangement. Ms L and Mr G agreed that arrangement would not work in this case.
The Federal Court Orders provide Ms L have sole parental responsibility for decisions relating to health, education and vocational training although requiring her to give fourteen days notice to Mr G of any decision she intends to make. The Orders also contain provisions common in family law providing for H’s school and medical practitioner to give information to both parents and for the parents to inform each other regarding health issues as well as contact details.
[12] Ibid s 13(1)(b).
[13] Ibid s 13(1)(c).
Ms L contended at the hearing that she has successfully been able to make decisions for H in these areas, despite the conflict with Mr G and she should be appointed sole guardian for all personal decisions for H upon his turning eighteen. She submitted that she would be willing to authorise any health, education or training, or service organisation to give information directly to Mr G which would facilitate his being fully informed and reduce the need for her to communicate with him.
In his application Mr G sought that he be appointed sole guardian for personal decisions for H but at the hearing supported the appointment of the adult guardian.
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[14].
[14] Ibid s 14(2).
Despite the conflict between the parents I am not satisfied that Ms L would not be an appropriate decision maker for H in the areas concerning his health, education and training, employment and services. Mr G was prepared to consider Ms L having that role as long as he could be assured of being properly informed and having his views taken into account. If Ms L is appointed guardian for H in these matters she will in applying the general principles be required to keep Mr G informed and consider his views. I will not order that she do so but note her willingness to give authorities to the providers of H’s health, education and other services to communicate directly with and give information to Mr G.
I will limit Ms L’s appointment as guardian to these matters. There may be a future decision required regarding H’s accommodation but I am not satisfied that decision currently needs to be made nor that Ms L would be an appropriate decision maker in that matter given the conflict the parents had over that matter. If the parents in the future propose a change to H’s accommodation and cannot agree the adult guardian might then be the only appropriate decision maker but an appointment is not required at this time.
I note that the need for decisions about the provision of services often follows particular accommodation arrangements but I am satisfied in this matter that H attaining eighteen and completing his school education may mean that decisions about services will be needed.
While I consider the need for the appointment of a guardian in these matters will continue after H turns nineteen I consider there will be a need to review the appointment[15] of a guardian given the changes which will follow H’s completing school as well as his turning eighteen. It will also be appropriate to review how Ms L has been appropriately making decisions in these areas given the conflict with Mr G and her difficulty communicating with him.
[15] Ibid s 13(5).
The following orders are made in relation to guardianship:
(a) DDL is appointed as guardian for HFG born in August 1995 upon HFG turning eighteen years, for decisions about the following personal matters: health care; provision of services; whether HFG works and , if so, the kind and place of work and the employer; and what education or training HFG undertakes.
(b) This appointment remains current until August 2014.
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