IT

[2010] QCAT 258

CITATION: IT [2010] QCAT 258

PARTIES: IT

APPLICATION NUMBER:            G19719  

MATTER TYPE: Guardianship and administration matters

HEARING DATE:   15 April 2010

HEARD AT:   Maroochydore

DECISION OF: Louise Mc Donald
Paul Mc Grath

DELIVERED ON:   15 April 2010

DELIVERED AT:   Maroochydore

ORDERS MADE:  

GUARDIANSHIP

1. That the appointment of the Adult Guardian as guardian for IT for decisions about the following matters in continued:

   accommodation and health care.

2. That unless the Tribunal orders otherwise, this appointment remains current for five (5) years.

ADMINISTRATION

1. That the appointment of TS and RL as administrators for IT for all financial matters is revoked.

2. That the Public Trustee of Queensland is appointed as administrator for IT for all financial matters.

3. That the administrator is to provide a financial management plan to the Tribunal within four (4) months.

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

5. This appointment remains current until further order of the Tribunal.

CATCHWORDS :  Removal of an administrator; family conflict.

APPEARANCES and REPRESENTATION (if any):

Present at the hearing was:
TS, RL, RG, TJ, TW, RE. Katherine Johnson appeared on behalf of the Adult Guardian by telelink.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. The application for a requested review of the appointment of a guardian and administrator was lodged with the Tribunal by the Adult Guardian on the 12 March 2010, seeking review of the appointment of administrators for IT under the order of 17 February 2010.
2. On 17 February 2010 TS and RL were appointed as administrators for IT for five years. The Adult Guardian was appointed as guardian for accommodation and health care matters. The Tribunal on this date also revoked the Enduring Power of Attorney dated 5 August 20008 appointing RD as attorney for financial, personal and health matters.
3. The application received from the Office of Adult Guardian raised concerns that the administrators were making accommodation and health decisions independently of the appointed guardian, having removed the adult from the Caloundra Nursing home on the 11 March 2010.  An interim order also was sought on 12 March 2010. This was denied because the adult was not at immediate risk, but an urgent hearing was listed.

1. Material was submitted to the Tribunal from interested parties which indicated that other members of IT’s family held concerns for the nature of decisions made by the administrators since the appointment, raising specific concerns about the depletion of the adult’s funds by what was considered unnecessary expenses; and removal from the nursing home. Expenses of concern to some family members included an electric scooter and hearing aid. IT’s property was unoccupied and receiving no income and the administrators had been supplying IT with alcohol.  Several concerns were raised about the administrators failure to keep the family informed of their decisions, including the removal from her nursing home placement

   The Issues and the Legislation

   5. Section 31 of the Guardianship and Administration Act 2000 specifies the review requirements:

   (1) The Tribunal may conduct a review of an appointment of a
   guardian or administrator (an appointee) for an adult in the
   way it considers appropriate.
   (2) At the end of the review, the Tribunal must revoke its order
   making the appointment unless it is satisfied it would make an
   appointment if a new application for an appointment were to
   be made.
   (3) If the Tribunal is satisfied there are appropriate grounds for an
   appointment to continue, it may either—
   (a) continue its order making the appointment; or
   (b) change its order making the appointment, including, for
   example, by—
   (i) changing the terms of the appointment; or
   (ii) removing an appointee; or
   (iii) making a new appointment.
   (4) However, the Tribunal may make an order removing an
   appointee only if the Tribunal considers—
   (a) the appointee is no longer competent; or
   (b) another person is more appropriate for appointment.
   (5) An appointee is no longer competent if, for example—
   (a) a relevant interest of the adult has not been, or is not
   being, adequately protected; or
   (b) the appointee has neglected the appointee’s duties or
   abused the appointee’s powers, whether generally or in
   relation to a specific power; or
   (c) the appointee is an administrator appointed for a matter
   involving an interest in land and the appointee fails to
   advise the registrar of titles of the appointment as
   required under section 21(1); or
   (d) the appointee has otherwise contravened this Act.
   (6) The Tribunal may include in its order changing or revoking the
   appointment of an administrator a provision as to who must
   pay the fee payable to the registrar of titles for advice of the
   change or revocation.

   6. Capacity is defined in Schedule 4 of the Act:

   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.

2. The Tribunal considered the following issues under these provisions:

   Does IT have capacity for the matter?

   Is there a continuing need for a Guardian?

   Is there a continuing need for an Administrator? Have the current appointees acted competently, or is someone else more suitable?

The Evidence

1. In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views.  These views, where specifically relied upon by the Tribunal, are discussed below. 

2. TS and RL gave the Tribunal a verbal account of their actions under the appointment and presented documentation to evidence their statements.

DOES IT LACK CAPACITY FOR THE MATTER?

10Medical reports of 15 February 2010, from Dr Vanessa Harrington, Geriatrician reviewed at the previous hearing of 12 February indicated that IT had a moderate cognitive impairment likely to be Alzheimer’s disease or a vascular dementia, with no ability to make simple of complex decisions for finances and health care, and an ability to make on simple lifestyle decisions.

11All parties at the hearing of 15 April concurred that IT’s condition had deteriorated since that time.

12The Tribunal concluded that the presumption of capacity for personal and financial matters was rebutted.

IS THERE A CONTINUING NEED FOR THE APPOINTMENT OF A GUARDIAN?

13The Adult Guardian reported to the Tribunal that IT was removed by the administrators and placed in Regis Lakeside Nursing Home at Sippy Downs, without consultation with the Adult Guardian who was appointed as decision maker for accommodation and health matters under the Order of 12 February 2010. Katherine Johnson, delegate of the Adult Guardian, noted that concerns about IT’s medical condition at Caloundra Nursing Home were not raised with them until after the move had occurred. She gave evidence that there was a consensus that IT should not be further disrupted in her placement, and was reasonably settled at Regis Lakeside. It was her view that IT accommodation was now stable.

14Ms Johnson gave further evidence of conflictual liaisons between the administrators and the guardians prior to the removal action.

15There had been allegations made in the documentation received from family members that IT was being inebriated and asked to sign documentation. In light of the finding of incapacity and the administration appointment, no further concerns about contacts were identified.

CONCLUSION

16Despite the stability of IT’s accommodation, the unilateral decisions that have been made within the family and the extent of the family conflict suggest that a guardian may still be needed and the Adult Guardian is the most appropriate appointee for decisions regarding accommodation and health care.

17The Tribunal did not extend the appointment to contact as given the finding of incapacity the suggestions that IT is being approached to sign documentation inappropriately signed is no longer relevant. 

IS THERE A CONTINUING NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

18IT continues to have income and expenses which need to be managed.

19TS AN RL gave evidence that the real property is presently on the market and has received an offer to purchase which needs a response. Subsequent to any sale, funds will need to be directed to the nursing home bond and any surplus invested and managed.

20The nursing home bond is yet to be paid from the proceeds of this sale, and any surplus will need to be invested and managed.

21There is therefore an ongoing need for an administrator.

IS SOMEONE ELSE MORE APPROPRIATE?

22TS and RL gave evidence of actions taken under the appointment.

23They had placed IT’s former residence on the market, and secured a written offer to purchase.

24They paid $22,500 to Regis Lakeside Nursing Home as a deposit to secure her accommodation with the facility, and $7,800 for hearing aids, $330 for a valuation of the property. These withdrawals had depleted IT’s funds. They presented a record of their transactions made on the adult’s behalf.

25In the Tribunal’s view each of these payments were appropriate and raised no issue with the administrator’s competence.

26The administrators gave evidence that they had removed IT from Caloundra nursing home due to concerns about the quality of care that she received. They indicated that they had secured a placement at Regis Lakeside which was deemed a more appropriate facility and acted swiftly without the guardian’s involvement for fear of losing the placement. They indicated that had made early liaisons with the Adult Guardian and were unable to have a clear decision made on the issue, and therefore acted independently, and beyond their powers. They submitted that they were acting in the adult’s best interest.

27The Tribunal formed the view that although the administrators acted inappropriately and beyond their powers as administrators, they were indeed concerned for the adult’s well being. Nevertheless, their failure to consult with the appointed decision maker and family members concerned the Tribunal.

28The Tribunal noted that the documentation received and verbal evidence provided by all parties at the hearing suggested that there was extensive conflict between many members of the family and the administrators. It would appear that this conflict has exacerbated during the period of the appointment of the current administrators and evidenced distrust.

29It would appear that the breakdown in communication has led to further distrust between the family and the administrators.

30The Tribunal noted that there was discontent amongst the family as to who held the adult’s jewellery, and this appears to be an outstanding issue of concern to family members.

31Family members present supported the appointment of the independent statutory authority.

32Therefore, the Tribunal formed the view that the Public Trustee of Queensland was a more appropriate appointee having regard to all of the circumstances.