JS
[2013] QCAT 706
•12 November 2013
| CITATION: | JS [2013] QCAT 706 |
| PARTIES: | JS |
| APPLICATION NUMBER: | GAA6743-13 GAA8638-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 12 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Bayne |
| DELIVERED ON: | 12 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | DECLARATION ABOUT CAPACITY 1. JS does not have capacity for personal and financial matters. GUARDIANSHIP 2. The applications for the appointment of a guardian for JS are dismissed. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for JS for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 7. That before 12 February 2014 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) Give a copy of this order to the Registrar of Titles and i. (b) Give a notice to the Registrar about the changes or the adult’s interest in another property |
| CATCHWORDS: | Guardianship and Administration - conflict between partner and family members - need for Guardianship and Administration Act 2000 ss 5, 12, 14, 15, 129, Schedule 4 |
APPEARANCES and REPRESENTATION (if any):
RELEVANT PARTIES
JSThe adult
TBDaughter (by telephone)
JMDaughter (by telephone)
MPFriend and de Facto
AAFriend (by telephone)
ZF Friend
WAiCarers Queensland, for MP
SRCarers Queensland, for MP
AAQueensland Aged and Disability Advocacy, for JS
PLRepresenting the Adult Guardian
IMRepresenting The Public Trustee of Queensland
REASONS FOR DECISION
JS migrated to Australia from Sweden about 50 years ago. He is now aged 92 and lives, as he has done for many years, in his own home in Queensland.
JS has a long term[1] friend/partner, MP. MP currently stays with JS at his house several days a week and resides with her extended family for the rest of the week.
[1] 18 years, according to JS and MP.
JS has two daughters, TB and JM who live in Sweden. TB and JM visited Queensland for five weeks in August 2013; the visit was highly emotionally charged and highly contentious because of the substantive breakdown in their relationship with MP.
On 7 August 2013, the Tribunal received applications from TB and JM seeking the appointments of themselves as guardians and administrators for their father.
On the same day, on an application, the Tribunal appointed TB and JM as guardians and administrators for JS under an interim order[2]. On 20 August 2103 however, the interim order was changed due to the imminent departure from Australia of TB and JM. The Adult Guardian and the Public Trustee of Queensland were appointed instead.
[2] See s129 of the Guardian and Administration Act 2000.
On 24 September 2013 the Tribunal received applications from MP seeking a declaration of capacity for JS, the appointment of the Adult Guardian as guardian and the PTQ as administrator.
These five matters were heard in Brisbane on 12 November 2013.
Capacity
Under the provisions of the Guardian and Administration Act 2000, the Tribunal must be satisfied that the adult lacks capacity for the matter before it can consider any need for an appointment and the appropriateness of any proposed appointee[3].
[3] Sections 12, 14 and 15 of the Act apply.
JS is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand.
Capacity for a person for a matter[4] means the person is capable of
a) understanding the nature and effect of decisions about the matter;
b) freely and voluntarily making decisions about the matter; and
c) communicating the decisions in some way.
[4] Schedule 4 of the Act.
I relied on the written and oral evidence from various stakeholders which can be summarised as follows.
In a report dated 5 August 2013, Dr M, treating general practitioner of ‘at least 12’ years, makes a diagnosis of mild dementia and informs that JS has experienced a gradual loss of understanding over the past two to three years. Dr M comments that JS has a ‘problem understanding complex medical issue(s)’ and ‘may have impairment in understanding complex (lifestyle and accommodation) issues’; he also states that JS is unable to make his own simple or complex decisions. Dr M informs (twice) that JS may be influenced by ‘being in a dependent situation’.
In a report dated 5 November 2103, Dr K, consultation geriatrician, states that JS has a cognitive impairment of unknown aetiology. Dr K is however of the opinion that JS can make his own lifestyle and financial decisions but, due to his vision and hearing difficulties and a non-electronic money management system, he may well be vulnerable to exploitation.
An ACAT[5] assessment on 17 October 2013 identified memory loss as the main disease/disorder. Reference was made to regular short term memory difficulties and occasional long term memory difficulties, confusion and disorientation. The assessor recorded that JS was asking where his money was and why other people were paying his bills.
[5]See >
MP recognises that JS has ‘slight dementia’ and considers that JS ‘seldom recall(s) the latest situation’. Despite these, MP is convinced that JS is still very capable and, with informal support, can make his own decisions.
TB and JM consider that JS has significant dementia, is constantly changing his mind and at times seems not to recognise them. They are convinced that JS is being exploited.
ZF thinks that JS has ‘worsened considerably this year’ and now has a very poor memory and no ability to make decisions.
Discussion
It is clear, and the evidence from independent parties[6] supports, that JS is very independent, strong willed and has fervent views and beliefs. On occasions, he becomes angry or frustrated. He refuses to use his hearing aids, lower denture and a shower stool, takes some of his medications intermittently and is highly resistant to completing MMSEs[7].
[6]For example, the ACAT assessor, Dr D (MP’s GP, who sometimes treats JS and Dr M
[7]Mini Mental State Examination - a commonly used test of memory. It can be used to help diagnose dementia and to help assess its progression and severity.
The evidence also supports that JS does change his views and his mind, and this is often related to the people he is with at the time. Of concern are the allegations of financial misappropriation; it is unclear at present as to the extent (if any) of this.
Conclusion
The evidence supports that JS been experiencing a slow decline in his cognitive functioning over the past few years. He has been diagnosed with (at least) mild dementia, short term memory deficiencies, some cognitive impairments and a range of complex physical conditions, including hearing and vision difficulties. He is vulnerable.
I am satisfied that, on balance, the presumption of capacity as set out in the Act in regard to JS’s ability to make decisions for personal and financial matters is rebutted.
Guardianship
I considered JS’s personal and health matters in the context of the current need for the appointment of a guardian.
Relevant to the jurisdiction[8] of this Tribunal, two major issues have emerged as contentious.
[8] Matters regarding JS’s will/s are not.
Firstly, TB and JM are convinced that JS is subject to elder abuse by MP and are determined to stop her involvement in his house and his life. They consider there is an urgent need for a guardian (and an administrator).
It is clear that MP has been actively involved with JS’s support and care for many years and is recognised as next of kin[9] by various health professionals and treating hospitals. She helps, particularly with cooking, shopping and medical and dental appointments.
[9]And statutory health attorney if necessary – see >
The ACAT assessor advises that JS is very independent at home, he walks independently, transfers independently and relies on a single stick and supervision when out. He has set routines, does a check of the house, up and down stairs in all weather, listens to the radio and watches the news and documentaries on TV.
The ACAT assessor found that JS and MP do the washing and bed (linen) changing, both do the shopping using bus/taxi/another friend. MP mostly does the cooking, JS prepares light meals or calls for Meals on Wheels. Community services provide cleaning services to JS at home. He is eligible for further services.
The PTQ, as interim administrator, informs that the critical repairs to the home have been carried out and that a building inspection is required to identify further repairs and maintenance.
JS has a permanent indwelling urinary catheter (IDC); he empties the catheter bag on an ongoing basis, Blue Care changes the bag every week and the catheter every six weeks. JS’s health seems to be well monitored; regular GP checkups are ongoing and JS uses the hospital system when necessary.
Secondly, TB and JM are convinced that JS should return to live in Sweden. They claim that JS has been talking about this for some years, and has often ‘expressively stated’ so over the past six months. The prime purpose of their visit to Australia in August 2103 was to return JS to Sweden, ‘bring him home where he belongs’. When however they arrived in Australia, they found JS to be extremely ambivalent about this; he eventually refused.
MP informs that JS has been planning to return for several years, but keeps postponing. She writes: ‘According to JS, he will make his own decisions when he is ready to go back to Sweden. He is used to the climate here and his lifestyle since he migrated to Australia’.
On a visit to JS in September 2013, the Adult Guardian delegate considered that JS had made it clear that he did not wish to return to Sweden but would like to keep the option open. When the guardian told him there was a possibility he couldn't return to Sweden if he didn't leave now, he accepted this.
The guardian, who is an experienced principal guardian, further informed that she believed that at the time JS was ‘in control of the conversation’, and was not influenced by MP.
Discussion
I note that prior to the August 2013 visit, TB and JM had very limited involvement with JS. TB has seen him five times over the years and maintains intermittent telephone contact. JM has not had any contact with her father for many years.
With regard to the first concern, I find no evidence to support that JS is subject to elder abuse[10] by MP, or anyone else. There is also no evidence before me that JS is subject to undue influence[11].
[10] In terms of his personal and health matters.
[11] See for example HE [2013] QCAT 488.
There is no evidence that the care and support provided by MP are inappropriate. The evidence supports that JS’s involvement with MP is by his wish and is in his interest.
With regards to the second concern, I am satisfied that that JS does not wish to return to Sweden at present. In addition, I note that JS has had every opportunity to return at any time during the past several decades; he has had the financial resources to do so, but has chosen not to leave Queensland.
The Adult Guardian believes that at this stage JS is managing in the community. Dr M seemingly has no concerns.
I accept that most people are influenced by family members or other persons, particularly in a supportive relationship. I recognise that it is not unusual for older people to rely on family members or friends for support with their daily needs and care.
JS leads a simple lifestyle. The management of his personal and health matters, despite the complexity of the latter, is relatively straight forward. I am satisfied that the ‘informal familial arrangements[12]’ that JS and MP have long used are appropriate at present and clearly JS’s choice.
[12] JS, through his QADA supporter, 11 November 2013.
I also accept that JS is probably relying on MP for support for decision-making about personal and health matters. Given his age and frailty, and in particular the provisions of s 5(e) of the Act, I consider that this is not inappropriate.
I note that various (independent) service providers, including Blue Care and the community cleaning service, are attending JS at home on a regular and ongoing basis. They are in a position to inform various stakeholders, including the PTQ, should JS’s personal circumstances and care needs change.
Conclusion
I find that JS has no outstanding personal needs which warrant the formal appointment of a guardian. I therefore will dismiss the applications.
Administration
JS’s assets at present total about $469,000. These consist of his real estate property in Queensland, about $5,000 in a PTQ cash account, about $200 in a CBA account and about $69,000 in a Swedish bank account.
He has a debt for overpayment of his entitlements to CentreLink of approximately $15,300.
JS receives income by way of CentreLink and Swedish pensions. His expenses include food, household costs, transport, chemist, activities, personal and other expenses; CentreLink is also deducting debt repayments at source. A deficit cash flow of approximately $4,000 per annum is indicated.
In addition, the PTQ advises that difficulties are being encountered in regards to the transfer of the funds in the Swedish account to Australia[13].
[13] Due to the refuse of the Swedish Bank to recognise the authority of the PTQ.
Discussion
Given the magnitude of JS’s estate, its inherent complications and JS’s financial vulnerabilities, I am satisfied that there is a need for the formal appointment of an administrator. An administrator will also be able to investigate any past misappropriation of JS’s funds.
Conclusion
Initially, as proposed in the applications, the options for appointment as administrator/s were either TB & JM or the PTQ. On 23 October 2103 however TB and JM advised by email that they wished the PTQ to remain as JS’s administrator. This was confirmed in the hearing today.
The PTQ is recognised as a skilled and experienced organisation, capable of exercising the care, diligence and skill needed to manage JS’s financial matters into the future.
Orders are made accordingly.
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