KCC - [2016] QCAT 172

CITATION:

KCC [2016] QCAT 172

PARTIES:	KCC
APPLICATION NUMBER:	GAA11365- 15, GAA11266-15

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	19 February 2016

HEARD AT:

Southport

DECISION OF:

Member McDonald

DELIVERED ON:

29 February 2016

DELIVERED AT:

Southport

ORDERS MADE:

1. The Public Guardian is appointed as guardian for KCC for decisions about the following personal matters:

(a) Accommodation;

(b) Health care;

(c) Provision of services.

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

3. The Public Trustee of Queensland is appointed as administrator for KCC 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. This appointment is reviewable and is to be reviewed in two (2) years.

7. That before 19 May 2016 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

(b) give a notice to the Registrar about the changes or the adult’s interest in another property.

CATCHWORDS:

Application for appointment of Guardian and application for appointment of Administrator,

Guardianship and Administration Act 2000 (Qld) ss 12, 15, Schedule 1.

APPEARANCES:

KCC, FL, EG

REASONS FOR DECISION

KCC experienced a major stroke in October 2015. He has been in hospital since that time and attended the Tribunal hearing by teleconference. The hospital social worker brought the application for appointment of a guardian and administrator.
In determining whether an appointment should be made, the Tribunal must be satisfied under section 12 of the Guardianship and Administration Act 2000 (Qld) that
(a)     the adult has impaired capacity for the matter; and
(b)     there is a need for a decision in relation to the matter or
the adult is likely to do something in relation to the
matter that involves, or is likely to involve, unreasonable
        risk to the adult’s health, welfare or property; and
(c)     without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
The Tribunal had before it a report dated 12 November 2015 from Dr K, medical doctor at the Gold Coast Hospital. The Report noted that KCC is not able to appreciate the severity of deficits arising from his major stroke, although able to make decisions around critical care. Dr K considered that KCC was unable to make decisions around discharge, but could make simple lifestyle decisions. Dr K has indicated that KCC was unable to make a management for his financial affairs, and was not able to make simple decision of this nature.
KCC was asked about his plans to meet his support needs upon discharge from hospital. He had been living alone in his own property prior to his stroke. He indicated initially that although he wanted to return home he had discussions with the allied health staff and he appeared to accept that he needed a higher level of support. KCC indicated that he was considering residential care as accommodation upon discharge. Throughout the hearing KCC equivocated in that position, suggesting that he would like to return to his home, and he indicated a plan around this. FL told the Tribunal that she had observed KCC equivocate in relation to how he would meet his support needs on discharge, at times understanding that independent living is not viable, and at others not. She said that KCC had been assessed as lacking insight into areas where he will have diffiulties functioning. She referred to the Occupational Therapists report of AK of 22 January 2016. This report assessed KCC as having poor safety awareness, difficulties with problem solving and problems carrying information over. It assessed him as needing prompting to minimise risks, and he was noted as having diffiulties with attention and initiation. It was assessed that he had very little insight into his financial position, and noted that his reasoning was not sound. AK assessed that he had a lack of understanding of his needs.
An Occupational Therapy report of WOB dated 15 November 2015 indicated a significant cognitive deficit in areas of executive function attention, recall and orientation.
The Tribunal finds that the medical and occupational therapy reports indicate that KCC does not appreciate the complexity and consequences of decisions around his support and accommodation needs, and management of his financial affairs. On this basis, the Tribunal finds that KCC has impaired capacity for personal and financial decisions.
FL noted that KCC articulated well, but did not consistently appreciate the areas of function that he will have difficulties and the levels of his support needs around this. KCC considered that his difficulties arising since the stroke were primarily as a result of physical limitations in his mobility. KCC indicated that he has been a very active and fit person and the impact on his mobility since the stroke has been a major change for him to accept. The Tribunal accepts that while KCC has some insight into his needs as demonstrated at hearing, this has been shown to be variable. He has been assessed by occupational therapists who consider he does not appreciate his support and accommodation needs upon discharge. KCC will be discharged from the hospital in the near future and decisions of this nature need around his accommodation to meet his support needs. The Tribunal considers there is a need for accommodation decisions and without an appointment his needs will not be met. A guardian is appointed for this decision. In the circumstances where there is no alternative proposed, the Public Guardian is the appropriate appointee.
KCC was questioned extensively during the hearing in relation to his financial position and his plans. He provided comprehensive and clear synopsis of his position, although this was markedly different to the picture of his financial position demonstrated by the Public Trustee. He explained to the Tribunal that he owned three properties. KCC identified these as the property on which he resided that was presently vacant while he was in hospital, a rental unit in Surfers Paradise and a unit in France rented by friends and managed by himself. He recognised decisions need to be made about his properties should he need to fund a placement and had enlisted a real estate agent to sell. He had disputed the value of the property with the appraisals provided and had declined an offer which he considered was not representative of its true market value. He had no concrete plans around sale of his properties but recognised that his changed situation may require decisions to be made around the properties.
He indicated that he owned all of his properties unencumbered. He stated that he personally managed the French rental property as his friends were living there. He considered that he was receiving between $200 and $300 per week in rental for the Surfers Paradise property and 300 Euro for the French unit. The Public Trustee who had been appointed under an interim appointment had learned that there is in fact a mortgage of approximately $133,000 over the Surfers Paradise unit. This had repayment so for $748 each fortnight. KCC indicated he was not aware of this and remained adamant that the property was not encumbered.
The Public Trustee informed the Tribunal that no income is being received on any of these properties. They advised that KCC’s income source is presently a mere $7 per fortnight from a part Centrelink pension. Centrelink is withholding of $54.92 of his part pension to recover a $71,000 debt he owes. KCC indicated that he did not receive a pension and was not aware of this debt. It is also unclear to the Public Trustee how the properties are held at this stage.
It is apparent that there are decisions and actions which need to be made in relation to KCC’s income and his ability to service his day to day needs and ongoing debts. The Tribunal finds that without an appointment of an administrator KCC’s interests will not be adequately protected.
KCC objected to the appointment of the Public Trustee in favour of a Perpetual Private Trustee. He indicated that he had a longstanding professional relationship with Perpetual who had dealt with his affairs over many years in relation to his income from a Family trust. While the Tribunal notes his objection, it also recognises that KCC’s financial position is not strong to sustain payment of a private administrator’s fees. The Public Trustee has public service obligations around their fees which will be more suitable to KCC’s financial position. Accordingly the Public Trustee is considered the most appropriate administrator in the circumstances. Should KCC’s financial position dramatically alter, consideration may be given to the appointment of Perpetual Trustees an alternative administrator into the future.