JSC - [2022] QCAT 358

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JSC [2022] QCAT 358

PARTIES:

In applications about matters concerning JSC

APPLICATION NO/S:

GAA7100-22
GAA7101-22
GAA7920-22
GAA7921-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

18 October 2022

HEARING DATE:

29 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Casey

ORDERS:

1.   Public Guardian is appointed as guardian for JSC for the following personal matters:

(a)   accommodation;

(b) health care;

(c)   provision of services, including in relation to the National Disability Insurance Scheme (NDIS); and

(d) legal matters not relating to JSC’s financial or property matters.

2.   This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years.

3.   The Public Trustee of Queensland is appointed as administrator for JSC 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. The appointment is reviewable and is to be reviewed in three (3) years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – need for the appointment of a guardian and an administrator

Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 5, s 11, s 12, s 14, s 15, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’), s 61, s 118
Powers of Attorney Act 1998 (Qld), s 62
Human Rights Act 2019 (Qld) (‘HRA’), s 13, s 17, s 19,
s 24, s 25, s 48

APPEARANCES:

Applicants:

BN – social worker (videoconference)

KJ – grandparent of the adult (videoconference)

Others:

JSC – the adult (videoconference)

TS – parent of adult, daughter of KJ (telephone)

GK – NDIS support coordinator (videoconference)

CW – service provider (videoconference)

REASONS FOR DECISION

JSC is a 20 year old female receiving treatment in a Queensland hospital. Prior to her hospital admission, JSC was residing in a supported independent living (SIL) arrangement.
On 1 July 2022, the Tribunal received an application from a social worker within the adult’s inpatient treating team seeking the appointments of the Public Guardian and the Public Trustee of Queensland as guardian and administrator, respectively, for the adult.
On the same day, the social worker submitted an application to the Tribunal seeking interim appointments of the Public Guardian as guardian and the Public Trustee of Queensland as administrator for the adult. The applications for interim appointments of a guardian and administrator were dismissed by the Tribunal in a decision on 7 July 2022.
On 27 July 2022, the Tribunal received an application from KJ, grandparent of the adult, proposing her appointment as guardian and administrator for the adult, together TS, parent of the adult and daughter of KJ.
The presiding member abridged time to allow the application from KJ to proceed.[1][2][3]
[1]QCATA, Section 61.
BN, the current social worker in the adult’s treating team, stood in for the first applicant at the hearing who had since resigned from the role.
The Legislation
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult.
The adult is presumed to have capacity in accordance with General Principle 1 of the GAA.[4]
[4]GAA, Section 11B.
The GAA defines capacity as follows:[5]
Capacity, for a person for a matter, means the person is capable of -
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
[5]GAA, Schedule 4 (definition of ‘capacity’).
In the determination of capacity for an adult for a matter, the Tribunal must consider the type of decisions to be made and the support available to the adult from the adult’s existing support network.[6]
[6]GAA, Section 5(c).
The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.
The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.
Does JSC have capacity to make personal and financial decisions?
Evidence
The Tribunal received written medical evidence in relation to the adult’s decision-making capacity. In a report dated 20 June 2022, Dr Emma Donaldson, inpatient physician, states that the adult has diagnoses of severe intellectual impairment, global developmental delay and attention deficit hyperactivity disorder (ADHD), and that the adult had received paediatric services since birth for the above conditions. The physician writes that the adult has received 1:1 support whilst in hospital due to her challenging and occasionally violent behaviour. She states that the adult cannot engage in discussions when she becomes frustrated and angry. The physician writes that JSC has sustained injuries from throwing and damaging property, and alleges that JSC has injured several hospital and community workers and has required police restraint on occasions. The physician explains that JSC has required a safety restraint in hospital after clinicians have been unable to verbally de-escalate the adult. She provides that although the adult communicates using speech with gestures, she has needed a support worker or her mother to advocate for her. In the physician’s opinion, JSC is able to make simple, not complex, personal and financial decisions as a consequence of her intellectual disability, developmental delay and ADHD related behaviours.
In oral evidence to the Tribunal, the social worker submitted that Dr Donaldson’s assessment of the decision-making capacity of the adult had not changed. She stated that JSC is medically stable and confirmed that the treating team continued to seek the appointments of a guardian and administrator for the adult to facilitate her safe discharge to appropriate accommodation with the necessary support services in place. JSC requires support within her accommodation setting and in order for her to safely access the community.
TS, parent of the adult, submitted that the adult requires 24/7 support and is unable to make decisions on her own. She said the adult did not understand her surroundings and that she was vulnerable to financial influence as she was unable to understand money concepts.
JSC provided minimal input to the hearing in relation to her views, wishes and preferences about decisions pertaining to her personal and financial matters.
In its determination of decision-making capacity, the Tribunal must give consideration to the nature of the decisions that are required for JSC and the support available to her.
In addition to requiring accommodation and service provision, JSC has complex physical health conditions that require decisions. She has current charges in relation to the alleged damage of several cars. Her income (disability support pension) needs to be managed to ensure funds are available for her medical and living expenses.
A protection order (a nationally recognised domestic violence order) dated 27 January 2022 is in place. The application was made by the Queensland Police Service whereby the aggrieved is the adult and the respondent is the adult’s parent, TS. It is ordered by consent without admissions that the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. Examples of domestic violence are provided on pages 2 and 3 of the order. The order states that the respondent was in Court when the order was made and that, unless otherwise ordered, this order continues in force to and including 27 January 2027.
JSC has received informal support from her grandparent, KJ, and her parent, TS, however in the context of the protection order being in place and in the absence of formally appointed decision-makers, JSC has been unable to be discharged from hospital to safe, appropriate and therefore sustainable accommodation with necessary supports.
Conclusion
The Tribunal accepts the oral and written evidence and places much weight on the evidence contained within the report of Dr Donaldson, which is based on longitudinal multidisciplinary assessment and clinical observation of the adult during the current and recent hospital admissions.
Upon consideration of the evidence, and having regard to the nature of decisions required for JSC and the support available to her, the Tribunal determines that due to JSC’s severe intellectual impairment, global developmental delay and ADHD, she is unable to make complex personal and financial decisions. The Tribunal, therefore, is not satisfied that JSC understands the nature and effect of her complex personal and financial decisions. Accordingly, the Tribunal rebuts the presumption of capacity for JSC for these decisions.
Is there a need for the appointment of a guardian for JSC?
Evidence
The evidence in relation to the adult’s personal circumstances follows.
In her submission to the Tribunal the adult’s NDIS support coordinator, GK, stated that TS had been living with, caring for and supporting JSC with all personal decision making until the relationship between TS and the adult broke down and the adult was removed from the accommodation in late 2021. GK stated that she had been engaged with JSC since December 2021 and had been supporting her with coordinating her NDIS plan funding. She told the Tribunal that the National Disability Insurance Agency (NDIA) has declined TS as the adult’s plan nominee due to the protection order being in place.
The social worker submitted that the adult had been removed from TS’s accommodation by police in December 2021 and that the adult had experienced four hospital admissions since that time. She said the adult had been discharged to various accommodations including emergency accommodation and a SIL arrangement, and had been re-admitted to hospital when the placements failed. The current admission began on 14 June 2022. There is a positive behaviour support plan in place whereby the adult requires 1-2 persons to support and assist her due to her challenging behaviour.
The social worker further submitted that the treating team has not consulted with TS in relation to the adult’s personal matters, due to the protection order being in place.
CW, a service provider, submitted that the Public Guardian had provided emergency decision-making in relation to accommodation and provision of services on one occasion since the adult’s removal from TS’s home, but has been unable to make further emergency decisions since. She further stated that Legal Aid Queensland is contemplating arranging a capacity assessment in relation to the adult’s ability to respond to her current charges. She said that GK had requested, via correspondence, more information from TS about the adult’s ability to make decisions about her legal matters. She told the Tribunal that TS had not provided the requested information.
TS submitted that she has been unable to ‘do anything’ for JSC and that she ‘has no rights to do anything’.
Deliberation
The adult has experienced repeated admissions to hospital after unsuccessful placements within the community.
The adult’s treating team has been unable to progress discharge planning so that she can obtain appropriate and sustainable accommodation with vital supports through the NDIS.
JSC has physical health conditions that require management.
JSC is a respondent in current legal matters.
The presence of the protection order for which the Queensland Police Service applied, whereby the adult is the aggrieved and TS is the respondent, is impacting the ability of the treating team, the NDIA and service providers to engage with the adult’s informal supports.
The evidence establishes that the informal decision-making arrangements and the statutory health attorney regime[7] previously utilised by the adult are no longer suitable in the current circumstances.
[7]Powers of Attorney Act 1998 (Qld), Section 62.
Conclusion
Accordingly, pursuant to section 12 of the GAA, the Tribunal is satisfied that there is a need for decisions in relation to accommodation, provision of services including in relation to the NDIS, health care and legal matters not pertaining to JSC’s property and finances. The Tribunal determines that without the appointment of a guardian for these matters, the adult’s needs will not be met, nor her interests protected.

Is there a need for the appointment of an administrator for JSC?
Evidence

JSC receives the disability support pension into a bank account in her name. She has approximately $2000 in savings. She has no identified liabilities. TS manages the adult’s finances informally, allocating $200 per week in living expenses. Pending a decision of a guardian, a contract with an accommodation provider will need authorisation. JSC will be required to pay rent and provide a bond in relation to her new accommodation. Funds will also be needed for medical and general living expenses.
Deliberation
It is essential that decisions in relation to the adult’s finances are informed by consultation and collaboration between the adult’s financial decision-maker and individuals supporting the adult with her accommodation, service provision, health care and legal matters, so that funds can be allocated accordingly.
The NDIA and the adult’s treating team and service providers are not engaging with TS as the adult’s informal financial decision-maker in the context of the protection order wherein TS is the respondent and JSC is the aggrieved.
Conclusion
The evidence establishes that the informal financial decision-making arrangements being utilised by the adult are no longer suitable in the current circumstances.
Pursuant to section 12 of the GAA, there is a need for the appointment of an administrator for the adult for all financial matters, as her needs will not be met nor her interests protected without the appointment of an administrator.
Who are the most appropriate appointees as guardian and administrator for JSC?
The options for appointment as guardian for the adult are the Public Guardian or KJ and TS. The options for appointment as administrator for the adult are the Public Trustee of Queensland or KJ and TS.
The social worker confirmed that the treating team continued to seek the appointments of the Public Guardian and Public Trustee of Queensland for the adult. This view was supported by GK (the adult’s NDIS support coordinator) and CW (service provider).
TS was consistent in her submissions that she had been precluded from making personal decisions for the adult by health professionals and service providers.
In her oral evidence to the Tribunal, KJ submitted that the treating team has not consulted with TS and herself, stating that she and her daughter TS had ‘been locked out of this whole process’. She said ‘we did not know where she was’ and that ‘we have had to make calls to get us back in the loop’. KJ told the Tribunal that she and TS speak to each other on a regular basis about the adult’s wellbeing and that, should they be appointed as the adult’s guardians and administrators, she and TS would consult in the interests of the adult. She said that she wanted to be involved in the adult’s life and ensure that JSC has the best opportunities to make her life comfortable.
KJ further submitted that she would seek to be solely appointed as guardian and administrator for the adult should the Tribunal not be persuaded by their submissions in relation to TS’s appropriateness for appointment.
Deliberation
The Tribunal accepts that TS has been the adult’s decision maker for personal matters until the adult’s removal from their shared accommodation by the Queensland Police Service in late 2021. The Tribunal acknowledges that, since the intervention, TS has continued to manage the adult’s finances informally.
The Tribunal places much weight on the evidence in relation to the current protection order, which stemmed from an application by the Queensland Police Service wherein the adult is the aggrieved and TS is the respondent, which is to remain in place for a number of years. The circumstances surrounding the application from the Queensland Police Service include their removal of the adult from the home of TS in late 2021.
The Tribunal considered the appropriateness and competence of TS to perform functions and exercise powers stemming from a formal appointment under the GAA. In the context of JSC being the aggrieved person in the protection order, should TS attempt to exercise such personal and financial decision making for JSC, the adult would be at risk of receiving domestic violence as defined in the protection order, which includes financial control without the person’s consent.
Accordingly, the Tribunal is not satisfied that TS would be able to make decisions in accordance with the General Principles.[8] Accordingly, the Tribunal determines that TS is not appropriate for appointment as guardian and administrator for the adult.[9]
[8]GAA, Section 11B.
[9]GAA, Section 15.
The Tribunal then considered the appropriateness of KJ for appointment as the adult’s sole guardian and administrator. The Tribunal accepts that KJ seeks to be involved in the adult’s life and seeks to make personal and financial decisions on the adult’s behalf and for her benefit. Additionally, the Tribunal is cognisant of the close relationship and regular communication between KJ and TS. In these circumstances, and in consideration of the presence of a protection order, the Tribunal is not satisfied that KJ would not have a conflict of interest between her responsibilities to the adult as a decision maker and her relationship with TS who is subject to the terms of the protection order.
Accordingly, the Tribunal is not satisfied that KJ is appropriate for appointment as guardian and administrator for the adult.[10]
[10]GAA, Section 15.
Conclusion
The Tribunal is of the view that the Public Guardian and the Public Trustee of Queensland, as independent, skilful and experienced decision makers, would be able to consult with all stakeholders and make decisions that best meet the adult’s needs, in accordance with the General Principles.[11] The Public Guardian and the Public Trustee of Queensland are considered appropriate appointees, having regard to the provisions of section 15 of the GAA.
[11]GAA, Section 11B.
Accordingly, the Tribunal appoints the Public Guardian as guardian for JSC to make decisions about accommodation, provision of services including NDIS, healthcare and legal matters not pertaining to her property and finances. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years.
The Tribunal appoints the Public Trustee of Queensland as administrator for JSC for all financial matters. This appointment is reviewable and is to be reviewed in three (3) years.
Application of the Human Rights Act 2019 (Qld) (‘HRA’)

The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. JSC’s rights to privacy,[12] freedom of movement,[13] property[14] and protection from being subjected to medical treatment without her full, free and informed consent[15] may be engaged and limited by decision of the Tribunal to appoint a guardian and administrator for the adult. On balance, the decision of the Tribunal provides for the adult to have opportunity to be safely discharged from hospital by having access to appropriate accommodation, service provision and health care. The decision enables the adult’s finances to be managed, including the authorisation of tenancy agreements, and to have her legal matters attended to. Taking into account the above findings in relation to the criteria set out in the GAA, the Tribunal is satisfied that the decision of the Tribunal is the least restrictive option given the adult’s vulnerability and that the benefits of the decision of the Tribunal outweighs any limitations imposed on the adult’s human rights and that Accordingly, the Tribunal determines that the limits imposed by the decision of the Tribunal are reasonable and demonstrably justified in accordance with section 13 of the HRA.
[12]HRA, Section 25.
[13]HRA, Section 19.
[14]HRA, Section 24.
[15]HRA, Section 17(c).

[2]QCATA, Section 118.

[3]GAA, Section 110.

CITATION:	JSC [2022] QCAT 358
PARTIES:	In applications about matters concerning JSC
APPLICATION NO/S:	GAA7100-22 GAA7101-22 GAA7920-22 GAA7921-22
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	18 October 2022
HEARING DATE:	29 July 2022
HEARD AT:	Brisbane
DECISION OF:	Member Casey
ORDERS:	1. Public Guardian is appointed as guardian for JSC for the following personal matters: (a) accommodation; (b) health care; (c) provision of services, including in relation to the National Disability Insurance Scheme (NDIS); and (d) legal matters not relating to JSC’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years. 3. The Public Trustee of Queensland is appointed as administrator for JSC 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. The appointment is reviewable and is to be reviewed in three (3) years.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – need for the appointment of a guardian and an administrator Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 5, s 11, s 12, s 14, s 15, Schedule 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’), s 61, s 118 Powers of Attorney Act 1998 (Qld), s 62 Human Rights Act 2019 (Qld) (‘HRA’), s 13, s 17, s 19, s 24, s 25, s 48
APPEARANCES:
Applicants:	BN – social worker (videoconference) KJ – grandparent of the adult (videoconference)
Others:	JSC – the adult (videoconference) TS – parent of adult, daughter of KJ (telephone) GK – NDIS support coordinator (videoconference) CW – service provider (videoconference)