KP
[2015] QCAT 419
•21 October 2015
| CITATION: | KP [2015] QCAT 419 |
| PARTIES: | KP |
| APPLICATION NUMBER: | GAA7968-15; GAA 7969-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 16 October 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 21 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for the appointment of an administrator by the Public Guardian is dismissed. 2. The Public Guardian is appointed as guardian for KP for decisions about the following personal matters: (i) provision of services 3. This appointment remains current until further order of the Tribunal. It is reviewable and will be reviewed in 1 year. |
| CATCHWORDS: | Guardianship and administration matters for adults Guardianship and Administration Act 2000 ( Qld) s 12, Schedule 1 |
| APPEARANCES: | KP, KC, Christian Loveday, Gina Do, MH, Ana Strange |
REASONS FOR DECISION
The Public Guardian brought and application for the appointment of a Guardian and Administrator for KP arising from a number of reported concerns that suggested KP’s informal decision maker had not been acting in KP best interest.
Specifically those concerns were identified as
a) That Ms KC, as informal decision maker, was not managing KP’s funds appropriately.
b) That Ms KC, as informal decision maker, had failed to ensure that KP‘s home environment was safe
c) That KC as informal decision maker, had failed to ensure that KP received adequate services in the home.
Following investigation, the Public Guardian, acting on their powers under section 12 of the Public Guardian Act 2014, found each of these allegations were substantiated. Their application to the Tribunal arose in these circumstances. They also made an application for interim appointments upon both applications, pending hearing of the matter. These were granted on 14 August 2015.
PK and Ms KC strongly object to the participation of the Public Guardian and Public Trustee in their life. They deny any need for a Guardian or Administrator. Both indicated at the hearing that they did not consider that they had been fairly treated through the investigation. They gave a clear indication that they had felt overwhelmingly invaded and denied due process during the investigation and interim imposition of a guardian and administrator.
In determining an application for the appointment of an Administrator or Guardian the Tribunal is required to be satisfied under section 12 of the Guardianship and Administration Act 2000 (Qld) of the following:
12 Appointment
(1) The Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the Tribunal is satisfied--
(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.
Capacity
A health professional report from Dr M, KP’s General Practitioner for over 15 years, dated 28 May 2015 noted that “investigations were underway as to whether a specific condition impaired the adult’s cognitive ability. He noted that he believed that there was “a personality disorder that impaired her insight”. He was asked about her understanding of the nature and effect of decisions in the areas health care, accommodation, services and finances. Mr M considered that she understood health care decisions but “did not appreciate the consequences and constantly rationalises her choices”. He was unable to comment on accommodation decisions. He felt she made choices about services but was inconsistent. He noted she had recently been dishevelled and not bathing. Regarding her finances he considered she manages poorly not having money for services. Dr M commented that he considered she could make simple financial decisions in all these areas but not complex. He did consider that she had the capacity to execute an enduring power of attorney.
The Tribunal received copies of her patient history which indicated a she is currently medicated for a mood disorder, amongst a range of other prescriptions for physical conditions.
Correspondence between the General Practitioner and her Pain specialist, Dr Rotherham dated 17 June 2015 indicated that her “chaotic social situation” was of concern, and Dr Rotherham, described her as virtually housebound unkempt and smelling pungently.
Asked about her view of the concerns about her living situation and the extent she was being looked after, she indicated that there had been some occasions when she had felt down and did not feel like having a shower before she attended her appointment. She considered she may have presented as “messy” on a couple of occasions, has now “shaved her hair off”. She said her daughter helps her in the shower most days. She says there is still some days where she does not feel like showering, but these are few, and she generally tries to have a shower with her daughter’s assistance.
While the Tribunal notes that any medical condition in relation to her cognitive capacity mains undiagnosed. However, the Tribunal is satisfied that KP has demonstrated that she does not appreciate the consequences of not maintaining sanitary hygiene conditions for herself and her home environment and that this has been noted by her longstanding general practitioner. Capacity is defined in the Act at Schedule 4, to mean that the person is capable of understanding the nature and effect of decisions about the matter, and can freely and voluntarily make decisions and can communicate these decisions in some way.
The medical evidence suggests that she does not appreciate the consequences of decisions around health personal health care, noting a “chaotic environment” and poor self care decisions. Her decision making ability for complex decisions around personal care is impaired.
Dr M refers an ability manage her finances but to making poor choices regarding her finances. He considers she is unable to make complex financial decisions. The Tribunal accepts that she is not capable of complex financial decisions but though she makes poor choices there is insufficient evidence to conclude her decision making for simple financial decision is impaired.
Guardianship
The Public Guardian placed evidence before the Tribunal that they considered that KP needed a Guardian in decisions around health and the provision of services. They presented the results of their investigation which indicated that on 5 June 2015 KP had been found living in squalorous conditions without adequate nutritional food in the fridge, and there was no evidence of bathing necessities. “the kitchen and living room area contained masses of rubbish which included takeaway packages hundred of empty soft drink cans, rotting food, bottles of alcohol, dirty clothes and wrappers all over. The round dining table in the living room had items on it including an extensive pile of opened sachets of cat food. The mass of rubbish on the floor in the kitchen area was over knee height and was obstructing cupboards dishwasher, oven and fridge…. It was noted that the litter Tracy was extremely dirty and unkempt.”
The Public Guardian liaised with the local council and Centacare who had undertaken previous clean ups noting the description of their living situation as “dire.” In these discussions that it was considered that it was a lack of communication and engagement with services to maintain their living environment that posed problems. The Tribunal received evidence that on two previous occasions in the past 5 years the premises have been at a comparable level and have necessitated extensive clean up.
The photographs submitted to the Tribunal confirm that extreme squalor existed. Discussions with Ms KC in the hearing indicated that she has a growing awareness of the risk this squalor poses to her mother’s physical safety by wall of fall risk. She told the Tribunal that following the clean up she has attempted to try to keep areas clean, and has made pathways for free access in her mother’s areas. She said the home environment was not safe during the difficult period that her mother was hospitalised, but she now keeps it clean, making distinct piles to discard and trying to sell a number of items. She said that her mother has dentures, and that toothbrushes were put away because they had frequently become lost in the clutter. She now ensures that medication is kept in the same drawer in the bedroom where her mother accesses it.
The Investigation Report of the Public Guardian indicates that KC’s consent for this clean up was inconsistent. Ms KC cancelled the first scheduled clean up due to a medical appointment, rescheduling for 25 June 2015 which whereupon the cleanup was undertaken with consent.
The Public Guardian and the service provider involved indicate that there have consistently been difficulties engaging KP around her needs for domestic assistance.
KC indicated that she was willing to accept fortnightly visits from a domestic assistance service provider to support her mother’s needs. She told the Tribunal that she was committed to keeping the space safe for her mother and had made passageways for her safe ambulation.
MH stated that the premises had been attended on 29 September 2015 where she considered while there had been cleared areas, there remained piles of rubbish which presented a health hazard due to the risk of vermin. She said space had been made in the lounge and appropriate pathways now existed. However, she described the premises as “still in the extreme end of environmental clutter. “ She said that there remained a risk of trips and falls posed by loose items and pet faeces in the bathroom remained a hygiene concern. She indicated ongoing maintenance and a further major clean up in addition to ongoing proactive maintenance would be necessary for the premises to be “care ready”, which she explained to mean free or health risk.
The Tribunal considers that while Ms KC has indicated a willingness to engage with regular domestic assistance, she is noted to have been variable in her consent for this in the past, withdrawing consents at the last moment when services have been made available. KC indicated that she has always lived with her mother and is now 26 years of age. The Tribunal notes that the hoarding behaviours have been longstanding and cumulative and that given this lengthy history the Tribunal considers that KC appears to present with difficulties with insight into the level of risk these living circumstances have presented to her mother and herself. She certainly undertakes to accept regular services but the Tribunal is not satisfied that this is so based on an insight into her mothers needs as a desire to be free of the Public Guardian.
The Public Guardian also indicated that referrals have been made for further assessment but that there has been no attendance at medical appointment. Ms KC denies this suggestion.
Based on this evidence, the Tribunal is satisfied that KP is likely to continue to live in living conditions that involves unreasonable risk to her health and welfare and without an appointment her needs will not be adequately met or interests adequately protected. The Tribunal considers that there is a need for a substitute decision maker for health and service decisions and that the informal decision maker is not making ongoing appropriate decisions in that regard.
Administration
The Public Guardian’s report indicated that their concerns about KC’s management of her mother’s finances were confirmed based on their review of her accounts from the period of 11 August 2014 to 30 June 2015. The Public Guardian noted it was unable to verify that all the funds in the adult’s account were spent for her sole benefit. It showed payments for Foxtel, Optus bill, regular Paypal payments and takeaway purchases. Cash advances were made irregularly.
KP strongly rejected the proposal that her daughter was misusing her funds. She indicated that as they live together, they have a common fund which they utilise in meeting their shared costs. She indicated this has been a longstanding system for them, where KC will pay for things for her and vice versa. They confirmed that KC has lived with her mother for her entire life.
Ms KC presented the same picture to the Tribunal and confirmed that she is not using funds for her own benefit, but the two are collaborating in their costs and when one falls short the other supplements costs from their pension. She indicated that her accounts will show costs for her mother, although there was no evidence before the Tribunal of this.
KP and her daughter presented a collaborative system of use of funds. The system appears to be endorsed by KP, and with her full knowledge and appreciation of the circumstances. It appears that a large amount of funds are used in takeaway foods and this may be the reason for inadequate food in the fridge. While this may not be a healthy or viable decision financially, the Tribunal must respect the values of these two women and apply the General Principles. Specifically, the Tribunal considers that General Principle 9 requires the Tribunal consider the adults set of values. In circumstances before the Tribunal the adult has endorse a value which was a collaborative system of finances with her daughter where they support each other with costs. It would appear that funds are applied for the benefit of both KP and KC under this system. The Tribunal was satisfied that KC is not acting counter to the interest of her mother.
The financial decisions made by the informal decision maker are not complex but relate to the management of the day to day income and expenses. The evidence indicates that she has attended to all bill paying appropriately, and that there are no outstanding debts. The Tribunal does not find there is a need for an appointment or that the adult is likely to do anything that is an unreasonable risk to her health welfare or safety. Accordingly the application for the appointment of an Administrator must fail.
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