KAN
[2022] QCAT 168
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
KAN [2022] QCAT 168
PARTIES:
In an application about matters concerning KAN
In applications about matters concerning KAN
APPLICATION NO/S:
GAA15542-20, GAA15543-20, GAA2788-21, GAA3833-21, GAA3834-21, GAA3835-21
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
11 May 2022
HEARING DATE:
9 June 2021
HEARD AT:
Brisbane
DECISION OF:
Member Allen
ORDERS:
IT IS THE DECISION OF THE TRIBUNAL THAT:
GUARDIANSHIP
1. The Public Guardian is appointed as guardian for KAN for the following personal matters:
(a) Accommodation;
(b) With whom KAN has contact and/or visits;
(c) Healthcare;
(d) Provision of services, including in relation to the National Disability Insurance Scheme
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.
ADMINISTRATION
3. Perpetual Trustee Company Limited is appointed as administrator for KAN for all financial matters.
4. The administrator is to provide a financial management plan to the Tribunal within four (4) months.
5. The Tribunal directs the administrator to provide accounts to the Tribunal’s approved examiners on the second anniversary of the initial appointment and every five (5) years thereafter.
6. This appointment of Perpetual Trustee Company Limited remains current until further order of the Tribunal.
NOTICE OF INTEREST IN LAND
7. Before 28 September 2021 the Administrator must:
(a) Record the appointment as administrator on any property registered in the name of KAN with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
(b) Providing confirmation to the Tribunal that this has been completed by providing:
i) a copy of the Title search conducted identifying KAN’s property; and
ii) a copy of the Titles registry “lodgment summary form “ confirming the notice has been lodged for each property held by KAN.
(c) if no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.
8. If the ownership of any property of KAN changes in anyway or KAN 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
(b) Give a notice to the Registrar about the changes to KANs interest in another property.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where court appointed trustee of damages award of a minor – whether court order amenable to appointment of administrator without further court order – where consideration of appropriateness and competence of proposed appointees as guardian having respect to previous to their previous conduct – where no other appropriate appointee available – appointment of Public Guardian – where trustee company acting as trustee under court order ensured adults financial needs met and eligible and appropriate as administrator
Guardianship and Administration Act 2000 (Qld) s 11B, s 12, s 14, s 15 and s 34 and s 35
Re Tracey [2016] QCA 194
APPEARANCES & REPRESENTATION:
Adult:
Did not attend
Applicant/s:
CV, KS, Perpetual Trustee Company Limited, represented by Robert Whiteford of Counsel and KKS represented by Mark Donnelly, solicitor
Proposed Guardian/s:
CV, Perpetual Trustee Company Limited and KKS
Proposed Administrator/s:
CV and Perpetual Trustee Company Limited
Current Guardian/s:
Nil
Current Administrator/s:
Nil
Current Attorney/s:
nil
Public Guardian:
Megan Copley
Public Trustee:
Tara Hanson
Interested Person/s:
Karina Muir; Fred Smith, solicitor, Emma Hurse, Danille Whelon, EL, parent
REASONS FOR DECISION
Introduction
KAN was born in December 2002 and due to negligence on the part of the hospital in the management of his mother, KAN’s labour and his delivery was alleged to have caused him to have profound disabilities. These include cerebral palsy with features of spastic quadriplegia and severe intellectual impairment. A compromise of his medical negligence claim was sanctioned by the Supreme Court of Queensland on 17 April 2008. Perpetual Trustees Queensland Limited now Perpetual Trustee Company Limited was appointed to receive, hold and manage the balance of the compromise sum of $5,000,000 on trust for KAN until any appointment pursuant to the Guardianship and Administration Act 2000 (GA Act) of an administrator for KAN, to receive and manage the balance of the compromise sum and any accretions takes effect. A copy of the Supreme Court order and relevant affidavits were provided to the then Guardianship and Administration Tribunal, the predecessor to this Tribunal, in accordance with Court’s order.
In December 2020 a Child Safety Officer filed an application in the Tribunal for the appointment of a guardian and administrator for KAN. This was on the basis of significant concerns raised with the Department of Child Safety, Youth Justice and Multicultural Affairs regarding EL, his mother and KKS, his step-father’s ability to arrange and ensure KAN receives the best care possible, to ensure he reaches his full potential. That KAN reaches 18 in December 2020 and requires the appointment of a guardian to ensure his daily care needs are met adequately and without misappropriation. In particular that there were very few active practitioners currently involved in KAN’s therapy and treatment. And despite having access to a Trust Fund and NDIS, the only practitioner involved with KAN are a speech pathologist and a support worker from CPL. He does not engage regularly/consistently with a psychologist, physiotherapist or Occupational Therapy, despite ongoing reports identifying the importance of treatments. KAN was said to have received between $800 and $1,100 per week since 2008 with the intention it fund KAN’s daily care needs. There weas also an NDIS plan in place which should cater for and provide funds for such noting the information from Rehability regarding the lack of engagement by a Physiotherapist and OT, it was unclear what the funding had been utilised for. There was also information from Perpetual, obtained by subpoena, indicating there were numerous, ongoing relationship breakdowns between KNL and case managers and practitioners alike, as well as other workers in the house such as cleaners. It was stated that KAN has significant needs and requires 24/7 care to reach his full potential and live a fulfilling life. The Public Guardian was nominated as guardian
The application noted the appointment of Perpetual by the Supreme Court of Queensland to hold the balance of the $5,000,000 on trust. It was noted that approximately $330,000 remains in the trust and there were concerns that the monies had been utilised inappropriately by EL and KKS. The Public Trustee of Queensland was nominated as administrator.
Perpetual sent correspondence to the applicant, Child Safety, confirming that they had been advised of the application and noting the Supreme Court order and stating that as a result of a voluntary transfer determination made by the Australian Securities and Investment Commission made on 15 January 2013 the estate assets and liabilities of Perpetual Trustees Queensland Limited were transferred to Perpetual Trustee Company Limited. That in accordance with the decision of Re Tracy[1] neither, QCAT nor any administrator appointed pursuant to the GA Act, has the capacity to terminate the court trust. The correspondence indicates that a further order of the Supreme Court would be required to terminate the trust and that a general application was being made to the Supreme Court in relation to all matters where it had been appointed trustee of a compromise sum of an infant beneficiary. It was noted that the original sum of money the “compromise sum” no longer exists. That it has been used to fund KAN over the last 12 years. That each year the surplus of income has been reinvested. That the great majority of funds have been placed in a superannuation environment and the majority of those funds have been used to purchase a pension. Perpetual stated that it was prepared to continue to act as trustee of the “compromise fund” until any court application to the Supreme Court is determined. The applicant, KS from child safety advised the Tribunal that Perpetual had informed her that KAN has $6,800,000 in the trusts and she raised concerns as to how the parents will use the money and whether it will be used in the adult’s best interest.
[1][2016] QCA 194.
Perpetual also provided details from a Family Court order in respect of KAN made on 10 March 2014. This ordered that KAN live with EL and that they have the sole use and occupation of a particular house. That KAN was to spend time with his maternal grandmother with a carer present. That the mother and maternal grandmother was to facilitate the use of a communication book. That the mother in conjunction with the case manager continue engagement with KAN’s paediatrician to establish KAN’s therapeutic needs.
While Perpetual had originally taken the view that their appointment as Trustee would require an order of the Supreme Court of Queensland to terminate the trust. Mr Whiteford acknowledged at the hearing that the wording on the particular order in this case was amenable to an administrator appointed by the Tribunal being able to take over the management of KAN’s assets. As the Supreme Court order was made subject to a future appointment of an administrator. The effect of which would be that the trust would automatically vest upon the appointment of a plenary administrator for KAN and the administrator would simply need to call on Perpetual to transfer KAN’s assets to his own name so that the administrator upon presentation of a certified copy of the Tribunal order would be able to exercise their duties as administrator for KAN. I note that the bulk of KAN’s assets are currently in the superannuation environment and therefore would already be in his name as a member of the superannuation fund.
Legislation concerning appointments of Guardians and Administrators
When considering applications for the appointment of guardians and administrators the Tribunal does so in accordance with s12 of the GA Act and must be satisfied that:
(a)KAN has impaired capacity for the matter;
(b)There is a need for a decision in relation to the matter or the KAN is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to KAN’s health, welfare or property; and
(c)Without an appointment-
(i) KAN’s needs will not be adequately met; or
(ii) KAN’s interests will not be adequately protected.
If the Tribunal is satisfied there is a need for appointment then it must consider the eligibility requirements in s14 of the GA Act and the appropriateness considerations in s15 of the GA Act to determine who should be appointed to the roles.
Capacity
As mentioned above KAN sustained injuries as a result of birth trauma. KAN has a diagnosis of Cerebral Palsy as a result of which he requires full assistance with all aspects of his personal care, domestic and leisure tasks. Kan exhibits as a result of cerebral palsy an intellectual disability and reduced cognitive abilities, reduced functional mobility, limited non-verbal communication. On a WHODAS disability assessment by an occupational therapist for NDIS purposes KAN overall score showed moderate functional impact from disability with severe-extreme impact on understanding and communication. He was said to have significant difficulty with cognition and communication. The Tribunal’s definition of capacity specifically includes understanding the nature and effect of decisions and communicating them in some way. I am satisfied that as a result of the effects of cerebral palsy KAN has impaired capacity for both personal and financial matters.
Guardianship
Currently KAN resides with his mother EL in a house purchased with funds from his damages award, and KKS spends regular time there with some service provision. Personal decisions are currently being made for KAN informally by EL and KKS. As mentioned above Child Safety had concerns with the decision making of EL and KKS and made an application to the Tribunal. As mentioned above the initial application was made by an officer of the Child Safety agency due to concerns that KAN’s personal needs were not being met by the current informal decision makers EL And KKS. The material provided by Child Safety showed that there had been 9 child protection notifications in respect of KAN one of which in 2017 resulted in EL and KKS being subjected to a Protective Supervision order, and there was ongoing intervention by Child Safety as result.
There were also separate reports to Child Safety in regard to KKS’s second wife in 2020 and it was identified that KKS was residing with KAN and EL. Child Safety found that KAN has not been given the opportunities since approximately 2012 to receive regular therapeutic services to meet his needs and necessary care to reach his potential and milestones. It was stated that initially EL and her mother resided in the home with KAN and according to information received from professionals they worked together to meet KAN’s needs. This changed when KKS came into EL’s life and LR moved out of the house and support and therapy services frequently raised concerns that the family were very secretive, would not let services into the house and that KKS demonstrated controlling and coercive behaviour over EL. There was information from a hospital visit in 2016 when KAN was noted to have bruising above his eye and concerns by the hospital that KAN appeared “moderately malnourished”. In a 2020 assessment was said to be a little underweight and there were no other physical concerns. EL and KKS were said to have been vague and not provide a lot of detail about KAN’s feeding regime. There were other reports form a social worker, dietitian and physiotherapist from 2016 reporting concerns. In 2018 a clinical nurse consultant completed a report noting that KKS said did not provide support but insisted on attending meetings, EL swapping and changing services regularly and the disruption this had to KAN, EL failed to follow in regard to the NDIS process. EL’s inability to participate in a case conference to promote KAN’s continuity and coordination of rehabilitation and care, EL cancelled cleaning services in the home that were required to address hygiene concerns in the home. In 2019 it was reported by CPL, service provider that EL and KKS continue to be very restrictive in letting services into the home that is impacting KAN’s quality of life. Occupational Therapy services had tried to increase their sessions with KAN but KKS denied the request stating KAN was too tired. The personal hygienist had requested an increase in sessions for KAN to improve his toileting this too was denied by KKS.
During a 2020 investigation it was noted that information received demonstrates the past concerns continue to be raised and Kan’s services have not been able to deliver familiar, and consistent services that allow KAN to have stability with his therapies and allow him to progress based on information that services are placed in silos and are not allowed to talk with each other about KAN’s care from Rehability Australia. Which they said was not the best method of care and results in gaps that could ultimately leave KAN at risk and leaves major questions about his well-being and safety. CPL provided information in regard to transport being unavailable to take KAN to activities, that it was difficult to communicate with EL and communication was with KKS who was not KAN’s legal guardian. After making requests to EL to supply correct feeding equipment for KAN for his peg feed CPL had to buy their own equipment so Kan could receive his nutrients at his vacation care. McCarthur Community started that when attempts to coordinate services for KAN to address his personal care such as toileting and dressing himself daily with KKS he said he had his own worker. That another service McCarthur Nursing was terminated by KKS and EL for arriving at the home unannounced and requesting entry. That forensic cleaners stated they would not return to the home due to the overwhelming dirt, mess and the home being unkempt with faeces and urine. That while EL expressed enthusiasm at meetings but at the conclusion KKS would say “we are not going to worry about services for now”.
Child Safety noted that EL had a cognitive disability that impacted her ability to care and protect KAN. There were also reports from KAN’s teachers in 2017 reported that he was sent to school in clothes that were too small and at one point they had changed a nappy one day and when they had to change his nappy again the next day he was in the same nappy. That KAN’s peg (feeding point on his abdomen) was often weepy and uncleaned. And that EL sent recycled pegs that were not appropriate. That KAN’s school bag and lunch were not cleaned and they had to sanitise them. That KAN often comes to school with poor hygiene, that they often have to spray him and to wash his clothes as well.
The Child Safety investigation report form 2020 assessed that KAN is at a high risk of future harm or allegations of future harm. That KAN had experienced significant cumulative harm due to experiencing neglect in the care of his mother EL and his step father KKS. I note that one of the bases for this was the incorrect finding that KAN’s damages award had been reduced to $300,000 when in fact it was $6,800,000. Others were that he had not been provided with the opportunities, by way of therapy so he can reach his expected milestones and have the experience of reaching his full potential. As a result he continues to be limited in his walking ability that impacts him being wheel chair bound more often than not. He remains non-verbal and he cannot communicate any likes or dislikes. He is demonstrating behaviours of biting himself and arriving at weekend vacation care heightened and with scratches down his arm. He is not supported in his home to use any communication devices that has led him not being able to share his wishes and dislikes. Support services advise that they have witnessed KAN pushing EL which is said to demonstrate that he is frustrated that he cannot get his wishes heard. That he loves to use a smartphone and he can utilise it, questioning why he has not been provided ongoing support for a communication program. No physiotherapy equipment has been sighted in the home since engaging with the family in 2016. This equipment is said to be required to strengthen KAN’s muscles and promote his fine and gross motor development. Given the ongoing absence of this equipment, it is reasonable to assume his physical needs are not being met and this has impacted his quality of life. KKS and EL have continuously shown reluctance and not allowed services into their home, they kept a case manager away from the home for three years and not allowed them to engage with KAN in the home. The case manager was reluctant to engage with Child Safety due to her concerns KKS and EL will terminate her service and leave KAN more vulnerable at having his needs met. The instruction by EL and KKS to services not to share information and to the school not to speak to child safety was said on the balance of probability that they do have something to hide and support services have informed that the lack of authority to share information with each other has not been in the best interests of KAN and that it has left KAN’s well being and safety vulnerable and at risk. The lack of continuity of support staff and therapists has meant that their sessions are not productive. That after completing four investigations and assessments with the family, it is apparent that EL does not have the intellect capacity to recognise that her behaviour is impacting on KAN’s ability to meet his milestones. KKS dictates what EL can and cannot do, and he has emotionally abused or “gaslighted” her into believing that his motives are genuinely in her and KAN’s best interests. EL does not have the ability to meet KAN’s daily needs such as dressing him in clothing that is 6 sizes too small, providing inappropriate food in unhygienic lunch boxes and not providing essential items for peg feeding to support feeding.
It was assessed by Child safety in 2020 that KAN is at an unacceptable risk of suffering harm and he does not have a parent willing and able to care for him. Child Safety was very concerned that if KKS or EL were appointed guardian for KAN when he turned 18 he will receive any further support or therapy sessions and this will impact his ability to have a fulfilling life in the future. There were major concerns raised about KKS and his motives in relation to KAN and EL and the impact of them on KAN’s care. There were also concerns that if EL and KKS were decision makers Kan’s trust fund and his NDIS funding would not be used on therapeutic services.
I note that the Public Guardian was appointed as guardian for KAN under an interim order of the Tribunal prior to the matter being heard. The tribunal may make an interim order[2] where it is satisfied that there is immediate risk of harm to an adult such as KAN. The Public Guardian in their report to the Tribunal prior to the hearing stated that a decision was made to submit a change in circumstances form to request a review of KAN’s NDIS plan as his current funding was inadequate. A decision was made to increase service provision in KAN’s home in the morning and evening each day for personal care. This decision was made due to concerns being raised that whilst under the care of EL and KKS , KAN was being given out of date and curdled PEG feeds, was not keeping a suitable routine and his hygiene was not being attended to, for example presenting in the same clothes as he had been wearing the previous day. EL And KKS advised the Public Guardians representative that if they weren’t decision makers for KAN they would withdraw and move out of the house. Though KKS’s lawyer later said that the intention was not to withdraw care. A safety plan was worked out with the service to take account of a withdrawal of care. The Public Guardian attended an NDIS plan review meeting to advocate for KAN for additional funding among other things. The delegate guardian for KAN visited his home and noted that the interactions with EL and KKS where they showed KAN’s assistive technology devices and therapy aids and discussed his care and supports did not feel natural and they were unsure about how representative it was of a usual life in the home.
[2]GA Act s129
The Public Guardian delegates opinion was that there would be decisions required in regard to the following areas:
(a)Service provisions – KAN was due to receive his first NDIS plan as an adult, which would require a number of service provision decisions to ensure that the plan is appropriately implemented, and funding utilised to its full potential. It was noted that the quotes for service provision sourced by EL and KKS were not well suited to KAN’s need such as a day program 6 days a week and respite in short term accommodation.
(b)Accommodation – while KAN resides in his own home it is not likely there will decisions about where he lives. Having regard to EL and KKS expressing threats to relinquish care there could be a need for decisions about who KAN shares his house with. Following this it was noted in a later report that KKS and KANs brother were considering moving back into the family home.
(c)Contact – if there a change in KANs living arrangements, there would be a need for contact decisions to be made.
(d)Health care – the Public Guardian is aware that KAN has ongoing health care needs in relation to his PEG feeding regime. The Public Guardians view was that KAN would benefit from oversight and planning in relation to his health care.
The Public Guardian was advised by a representative of the service provider that things had dramatically improved for KAN since the Public Guardian was appointed under the interim order. The family were said to be engaging a lot more with service providers and a lot more willing to accept in home services. EL advised that she wants to continue caring for KAN and would like to see more allied health therapists engaged for him. In the final report provided by the Public Guardian representatives of both the service provider and supports co-ordinator. There had been concerns raised by support workers about the level of care provided by EL and KKS and that this raised concerns about their ability to make appropriate decisions for KAN.
KKS also applied to be guardian and filed an extensive affidavit in support of his application. He noted that he had been married to EL and there was a child of that marriage KR. EL and him were later divorced and remarried due to a customary requirements. The later marriage ending in separation, he considered himself KAN’s step-father and provided a list of the ways he was involved in KAN’s life including day to day care, assisting with appointments, driving EL and KAN to appointments, cleaning the yard and house, house maintenance, assisting with allied health services. He provided material the allegations of KS in her material with supporting documents from various service providers. He also called into question the timeliness of the Public Guardians decisions.
CV is a registered nurse and is KANs maternal aunt she was KAN’s litigation guardian in respect of his personal injuries claim and was involved in assisting EL in obtaining appropriate treatment and therapies for KAN prior to the damages award. She considered that left her well placed to KAN’s guardian. She made application for appointment as KAN’s guardian due to her concerns that KAN’s care needs had been well managed since she had ceased providing care management due to KKS obstructing her in that capacity. She stated in her application that despite all of the resources available to KAN she was aware that these resources have been ceased completely or obstructed in their provision to KAN to the point that she had been informed that he is not meeting expected developmental milestones.
EL filed an affidavit in support of KKS being appointed as guardian and opposing the appointment of CV as guardian. EL stated that when CV was acting as guardian for KAN earlier in his life she made all of the decisions for him and did not include her in his life. In 2013 CV had assisted EL’s mother to make an application against EL in the Federal Court for a parenting order but EL had been supported by the Independent Children’s lawyer. This resulted in CV being removed as the case manager for KAN with perpetual and they had never spoken to her since. EL says that she has reconciled with her mother and she has regular contact with KAN. EL believed that if CV were appointed she would try to move KAN to Melbourne and get appointment as case manager again with Perpetual. EL said she had a good relationship with KKS and that he is better able to understand her. She denied that she was vulnerable to him and that he tried to exert influence over her. She stated that she did not get along with the applicant KS. She stated that if KKS was not appointed as guardian she would prefer the Public Guardian.
RL, KAN’s grandmother in support of the care being provided to KAN by EL and KKS.
All of the matters mentioned above were canvassed at the hearing. A guardian is required to exercise power for an adult honestly and with resumable diligence to protect the adults’ interests[3] and must apply the general principles.[4] Under the general principles all adults have the same human rights and fundamental freedoms., including respect for inherent dignity and worth and equality of opportunity. An adult must be empowered to exercise their fundamental rights and human freedoms. A person in performing a function must do so in a way that promotes and safeguards the adult’s rights, interests and opportunities. In determining who to appoint as guardian the Tribunal must ensure that he proposed appointees are eligible under s14 of the GA and appropriate under s15 of the GA Act. While there is no reason to consider that either of CV or KKS are not eligible for appointment. The requirements in regard to appropriate raise issue about their appropriateness and competence to perform the role. While KKS has professional attributes and has previously been involved in KAN’s life there is clear conflict between her and EL who is KAN’s primary informal carer and with whom CV would need to liaise about all decisions. There is also the issue of who being able to deal with KKS with whom she has a strained relationship. There is another concern that whoever is guardian for KAN will need to eb able to make decisions which are well documented and subject to compliance by the others in KAN’s life in particular EL and KKS. For these reasons I choose not to appoint CV as KAN’s guardian. KKS has history of being directly involved in KAN’s life and supporting EL in providing care to him while they were married and following that. There has also been a history of Department of Child safety involvement including intense monitoring by the Department. There were a large number of concerns raised by service providers and other professionals in regard to the care being provided to KAN, the state of his home and the way he was presented at school. I also note that the Public Guardian confirmed the unmet service provision needs of KAN following their appointment. I note that KKS has raised issue with the mate3rial provided by the applicant KS and has provided material of his own. The preponderance of the material and the fact of Child Safety monitoring being in place leads me to conclude that KKS is not competent or appropriate to act as guardian for KAN.
[3]GA Act s35.
[4]GA Act s34 and s11B.
The Public Guardian is available for appointment if there is no other appropriate person available for appointment in accordance with s14(2) of the GA Act. The other proposed appointees are not appropriate for appointment. I appoint the Public Guardian for Kan for the matters listed in para 17 above for two years.
Administration
Perpetual Trustee Company Limited is the trustee of the damages award sanctioned by the Supreme Court in 2008. Perpetual currently holds as follows:
(a)Managed investments $465,016
(b)Direct Cash $61,591
(c)House $650,000
(d)Select Superannuation $849,263
(e)Account based pension $7,036,515
Total assets $9,062,386
KAN clearly has asset and income which require management. The funds in superannuation are invested in his own name and until an administrator is appointed there is no authority for anyone to make decisions in regard to those funds now that he is 18 years old. There is therefore a need for an administrator.
Perpetual has since the damages award of 2008 ensured that all of KAN’s financial needs are met and their appointment as administrator was supported by all parties at the hearing.
I appoint Perpetual Trustee Company Limited as administrator for KAN for all financial matters. With a direction in regard to a financial management plan in particular to show an appropriate budget for KAN and accounts. The appointment of Perpetual is to remain current until further order of the Tribunal.
Human Rights Act
Having regard to the profound nature of KAN’s disabilities and the need for independent decision makers to ensure his rights and freedoms were protected there is no less restrictive way of dealing with this matter and the Human Rights Act 2019 was not otherwise canvassed at the hearing of this matter.
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