HNJ

[2017] QCAT 143

CITATION:

HNJ  [2017] QCAT 143

PARTIES:

HNJ

APPLICATION NUMBER:

GAA3826-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

13 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The Public Guardian is appointed for HNJ for the following personal matters only:

a.    Accommodation decisions;

b.    With whom HNJ has contact and/or visits;

c.    Health care of HNJ;

d.    Provision of services for HNJ;

e.    Legal matters not relating to HNJ’s financial or property matters

2.    The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.

3.    This guardianship appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is sooner.

4.    The Public Trustee of Queensland is appointed as administrator for HNJ for all financial matters.

5.    The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.

6.    This administration appointment remains current for three months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APOINTMENT – where adult had been diagnosed with an intellectual impairment – where allegations that the adult had been physically abused – where adult is vulnerable to financial abuse – where interim appointment of decision-makers sought – whether the adult was at an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) s 12, s 129.

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. HNJ, who is 25 years of age, has been removed from his family’s care and placed in emergency respite at the Endeavour Foundation.  Information filed in the Tribunal alleged that HNJ has been subjected to physical abuse.  The Tribunal was provided with photographic evidence in support of the allegations of physical abuse.

2. An application was filed in QCAT by Katie Cantlay, the acting Support and Operations Manager at the Endeavour Foundation, in which she sought the appointment of a guardian and an administrator for HNJ. Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made, and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process.

3. Jenelle Mammone, the Support and Operations Manager at the Endeavour Foundation, applied for an interim appointment of a guardian and administrator for HNJ for personal and financial decisions. Appointments of decision-makers can be made prior to a determination being made on the substantive applications if the Tribunal is satisfied that the requirements of s 129 of the GAA are established. That section provides that where there is an immediate risk of harm to the welfare or financial resources of the adult, an appointment can be made for up to three months before a hearing of the applications are heard and determined.

4. Ms Cantlay stated that HNJ’s family has a long history of conflict and violence.  This history is known to the local police, who applied for and were granted a protection order for HNJ against his sister, HJ.  Ms Cantlay explained that the police and local service providers have had reports of physical, verbal, and emotional abuse committed by members of HNJ’s family against him, as well as financial abuse where HNJ’s family use his money for their own personal expenses.  Ms Cantlay stated that, because of this reported abuse and isolation, HNJ has not developed the skills to make his own decisions about personal, health matters and financial matters. 

5. Ms Mammone supported these statements in her application.  She stated that HNJ has impaired decision-making capacity because of cerebral palsy, and epilepsy.  She stated that HNJ is easily influenced because he has been physically and emotionally abused which is why HNJ required guidance even when making simple decisions.  Furthermore, she stated that HNJ does not understand value of money and budgeting.  She stated that HNJ’s parents had always controlled his bank accounts.  When HNJ was removed from his parents’ care, his bank accounts were changed into his name to give him control.  She submits that an administrator is required to administer HNJ’s financial accounts and begin paying rent to the Endeavour Foundation. 

6. Evidence was provided to the Tribunal by Dr Alan Chater, a general practitioner who has known HNJ since birth.  He stated that HNJ was born with several medical conditions including Tetralogy of Fallot, a cleft palate, epilepsy, and cerebral palsy.  HNJ had later been diagnosed in August 2014 with a Wenckebach block.  In November 2014, HNJ had a pacemaker inserted.  He stated that in his opinion HNJ suffers from some intellectual impairment so he is only capable of limited insight into making decisions.  He stated that HNJ will require assistance with personal health care, and lifestyle and accommodation decisions. 

7. For the purposes of the interim order application, I accepted the expert evidence of Dr Chater.  I concluded from the evidence from Dr Chater that HNJ demonstrates impaired cognitive functioning that adversely impacts on his ability to understand the nature and consequences of decisions about financial and everyday personal matters.  For the purposes of the interim order application, I conclude that HNJ has impaired decision-making capacity for personal, health, and financial matters.

8. Evidence was also provided to the Tribunal by Robyn Rooke, a domestic and family violence counsellor.  She stated that she had seen HNJ on five occasions from September 2016 to March 2017.  She explained that these sessions had been in response to disclosures by HNJ regarding physical, emotional, and psychological abuse perpetrated by his parents and siblings.  She stated that HNJ has a Domestic Violence Order in place against his younger sister, HJ.

9. These statements by Ms Rooke were supported by Dr Chater.  He stated in his medical report that HNJ has limited family support.  He stated that HNJ’s mother is erratic in her engagement with HNJ because she can be caring at times but she can also be callous or manipulative. 

10. Ms Rooke explained that HNJ wanted to live independently but hoped to continue a relationship with his family.  Ms Rooke had assessed that HNJ had established a support network within his community and that HNJ can sustain independent living with the appropriate level of support.  Ms Rooke stated that because of HNJ’s disabilities, he is easily influenced, manipulated, and exploited.  She explained that HNJ had accumulated a significant amount of personal savings that needed to be protected. 

11. I accepted the evidence that HNJ had complained that he has been the subject of physical, psychological and emotional abuse.  I was satisfied that HNJ was at an immediate risk of harm because of allegations that his family would attempt to remove HNJ from his safe accommodation.

12. I was satisfied that decisions were required to be made to ensure that HNJ was safe and adequately cared for and that his health needs were met pending the determination of the substantive applications.  On the evidence, there was a real risk that HNJ’s family could not adequately meet the decision-making needs of HNJ during that period.  A guardian was required to make appropriate decisions about where HNJ should be living, what services he requires to remain safe, to ensure that his well-being was catered for, and to make appropriate and timely health care decisions for him. 

13. The Public Guardian was appointed on an interim basis for three months to make personal decisions for HNJ about accommodation decisions, with whom HNJ has contact and/or visits, health care, and the provision of services. 

14. The applicants alleged that financial abuse was occurring.  In particular, it was alleged that the funds of HNJ were being used inappropriately by his family.  Although HNJ’s income is now being paid into a bank account in his own name, financial decisions need to be immediately made to ensure that his accommodation and health and care needs are paid for and are continued while the substantive applications are pending.  I was satisfied that HNJ was at an immediate risk of harm should those decisions be delayed or not be able to be made at all.    

15. I was satisfied that an administrator was needed to be able to arrange access to funds belonging to HNJ to pay for rental accommodation at the Endeavour Foundation and to pay for support care and service delivery to ensure HNJ’s well-being.   

16. The Public Trustee of Queensland was appointed on an interim basis for three months to make all financial decisions for HNJ.