LJS - [2023] QCAT 113

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LJS [2023] QCAT 113

PARTIES:

In applications about matters concerning LJS

APPLICATION NO/S:

GAA5909-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

29 March 2023

HEARING DATE:

27 July 2021

HEARD AT:

Toowoomba

DECISION OF:

Member Allen

ORDERS:

GUARDIANSHIP

1.   The appointment of NMV as guardian for LJS for the following personal matters is continued:

(a)   Accommodation;

(b) Health care; and

(c)   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 twelve (12) months.

DIRECTIONS

3.   NMV as the appointed guardian for LJS is directed to do all things necessary to facilitate LJS’s wish to return to X for a holiday within the term of this appointment.

LIMITATION ORDERS

4. The Tribunal orders that pursuant to s106 of the Guardianship and Administration Act 2000 relevant information may be obtained from LJS in the absence of anyone else

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where guardian previously appointed by Tribunal and subject to review – whether adult has impaired capacity to make personal decisions – what if any personal decisions are required to be made and who should be appointed – whether adult should have opportunity to give evidence in the absence of other parties to obtain relevant information the Tribunal would not otherwise receive.

Guardianship and Administration Act 2000 (Qld), s 31, s 12, s 14, s 15, s 103, s 104, s 105, s 106

Human Rights Act 2019 (Qld), s 13

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Adult:

LJS with an ADA advocate

Applicant:

Periodic review

Proposed Guardian/s:

NMV

Proposed Administrator/s:

Nil

Current Guardian/s:

NMV

Current Administrator/s:

Nil

Current Attorney/s:

Nil

Public Guardian:

Nil

Family:

LMA

REASONS FOR DECISION

HISTORY

LJS is 51 years old and spent much of his life in Cairns. He was supported by his parents, and they were foundation members of a disability support service RLO. His mother passed away in 2006 and father, LJ then became his sole informal decision maker for personal and financial decision. LJ became frail from about 2014 and LJS’s sister, LMA became more involved in his life. A tribunal application was made by LMA in 2015 and the Public Guardian was appointed guardian with LMA as administrator. This arrangement was not successful and the Public Trustee later replaced LMA as administrator. It is fair to say that LMA’s relationship with RLO was poor and this negatively impacted on LJS. In late 2016 LMA moved LJ to Toowoomba to be closer to family support which left LJS in Cairns without family but with the support network of RLO and his friends.
LJS visited LJ in Toowoomba several times though there were issues with LMA not disclosing LJ’s location to the service providers or Public Guardian. LMA made an application in 2017 for to appointed Administrator and for her and a cousin, NMV to be appointed Administrator having regard to the new circumstances of her and LJ now being in Toowoomba and JLS being without family in Cairns. when LJ passed away LJS again came to Toowoomba. The Tribunal left the Public Trustee as Administrator and appointed NMV as Guardian. The Tribunal consider that the interests of LMA and LJS may conflict. These appointments were for a year and at this stage LJS was still residing in Cairns.
LJ passed away in June 2018 and at that time LJS came to Toowoomba and resided with LMA and NMV’s mother in a house owned by NMV. Arrangements were put in place to transition LJS’s service support to Toowoomba and he was being considered for a SIL arrangements with shared support. Although it was LMA who precipitated the move to Toowoomba during the course of NMV’s first year of appointment as Guardian she appeared to have changed her mind and wanted LJS to return to Cairns. It is noted at that time that he had a long term tenancy in Cairns and all of his possessions were still there.
The appointment of NMV as Guardian was reviewed in November 2018 and she was continued in the role for another two years. NMV was directed to engage ADA as a disability advocate to ascertain LJS’s views and preferences about where he wants to live and who he wants to visit or have contact with a requirement to file notification in the Tribunal and send a copy to LMA of any decision made about where LJS is to live within 5 days of making such a decision.
In January 2019 a representative of RLO made application to the Tribunal for review of guardianship on the basis that NMV was ignoring the views and wishes of LJS as ascertained by ADA as confirmed by the ADA representative. There was also information from LMA that LJS had had a deterioration in his health with a hospital admission after a fall in the shower and sores on his arms which were said to be stress related. LMA also was said to have advised that her relationship with NMV had broken down.
NMV advised that Tribunal in compliance with the directions that ADA had been engaged and that they reported LJS wished to continue to live independently in his own home as he was doing in Cairns and he likes both Cairns and Toowoomba, however his first preference was Cairns where he can return to established friends and support services. NMV noted that LJS’s NDIS plan goals included that he moved to Toowoomba as that was where his active family was and that he wished to acquire skills to live independently. NMV stated that this reflected the report form ADA. NMV provided information to support that LJS had ultimately made the decision to stay in Toowoomba in particular when he was able to live independently from LMA. NMV later dealt with further issues raised by LMA including the health and stress issues and made it clear that the fall had been fully investigated in hospital and that there was previous scarring from scratches and they too had been investigated.
For the purpose of the review in 2019 ADA was appointed to represent LJS’s views. They submitted to the Tribunal that LJS was now content to remain in Toowoomba and that he wished for an independent guardian. Ultimately the Tribunal continued the appointment of NMV as Guardian for LJS for 2 years.
LEGISLATION
The current hearing is a periodic review of the appointment of Guardian for LJS. Reviews are conducted in accordance with s31 of the Guardianship and Administration Act 2000 (Qld) ('GAA Act’). This makes it clear that the Tribunal must revoke its order making the appointment unless it is satisfied it would make am appointment if a new application were to be made. That then requires the Tribunal to be satisfied of the matters set out in s12 of the GAA Act:
(a)Whether LJS has impaired capacity for personal matters; and
(b)There is a need for decisions in relation to the matter or LJS is likely to do something in relation to personal matters that involves or is likely to unreasonable risk to his health or welfare; and
(c)Without appointment LJS’s needs will not be adequately met or interests will not be adequately protected.
In considering whether a Guardian should be appointed the Tribunal also needs to have regard to the requirements of s 13 of the Human Rights Act 2019 (Qld) to ensure that LJS’s rights are limited only if there is no less restrictive way of achieving of dealing with his decision-making requirements.
If the Tribunal is satisfied there are appropriate grounds for an appointment to continue it may in accordance with s31(3) of the GAA Act continue its order, change its order by changing its terms; removing an appointee or making a new appointment. Before an appointee can be removed the Tribunal only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment. The appropriateness considerations are set out in s14 of the GAA Act. While the Public Guardian is available for appointment in accordance with s14(2) of the GAA Act they may only be appointed if there is no other appropriate person available for appointment.
The Tribunal may make an adult evidence order in accordance with s106 of the GAA Act where relevantly it is necessary to ensure that the Tribunal received information that it would not otherwise receive.
CAPACITY
The original Health Professional Report filed in the Tribunal in 2015 states that LJS has a severe intellectual impairment from birth which may have been the result of hypoxia during labour. That he can bathe and dress himself and his personal health care seems adequate. Regarding lifestyle and accommodation it was stated that he would not be capable of finding and assessing alternative accommodation. He noted to have communication impairments and that his speech is difficult to understand and repetitive though he understands simple concepts expressed verbally.
LJS was formally assessed by a psychologist using the Stanford-Binet Intelligence Scale which was based on 10 sub-tests and one half of which had nonverbal content that required minimal or no verbal response. Which was said to be valuable in assessing people with speech difficulties and learning/cognitive disabilities. On testing there was no significant difference between LJS’s verbal and non-verbal IQ. Overall his FSIQ was assessed as 40 which indicated significant limitation in basic skills necessary to copy with the requirements of everyday life. Ordinary life is likely to be extremely difficult unless a support system exists to provide assistance. Individuals with cognitive skills in this region were likely to have limited abilities to learn, to reason, to plan, to understand, and to discriminate. That it truncates the capacity to think about intended actions, to consider their possible consequences, and to exercise restraint. They are likely to have grave difficulties with language and communication problems with memory, attention, intellectual rigidity, moral development or moral understanding. They will be susceptible to suggestion and readily acquiesce to other people. They will have poor impulse control, difficulty with long-term thinking, and difficulty handling stressful and emotional situations. They may be unable to predict the consequences of their actions or to resist a strong emotional response.
LJS’s adaptive behaviour skills were also assessed by the psychologist with input from MNV. The psychologist was satisfied that the observations on the report from MNV would lead to a valid interpretation LJS’s General Adaptive Composite (GAC) was 52 which put him in the extremely low range of adult’s his age. This score was reflected across the conceptual, social and practical domains. This indicates that he is likely to experience significant challenges communicating with other, applying learnt skills, managing and accomplishing tasks. He was also said to be likely to experience challenges engaging in interpersonal interactions, acting with social responsibility, and using leisure time. LJS was additionally said to face significant challenges addressing personal and health needs, taking care of home and functioning in community.
The psychologist noted LJS’s difficulties in verbal communication with quite use of expressive language being able to use single word response to many questions. That he couldn’t verbalise where he lived or who he lived with nor what he enjoys doing. In order to achieve the best possible outcome for LJS it was stated that he would benefit from a highly supportive professional and familial support network and that he will require high levels of support in all areas of daily activity.
In a supplementary report the psychologist stated that LJS met the DSM criteria for Intellectual Disability (Intellectual Development Disorder) severe. This was said to mean that the attainment of conceptual skills was limited. That the individual has limited understanding of written language or relevantly of concepts involving time. That caretakers provide extensive supports for problem solving throughout life. Spoken language is quite limited in terms vocabulary and grammar. Speech may be single words or phrases that may be supplemented through augmentative means. Speech and communication are focussed on the here and now within everyday events. Relationships with family members and familiar others are a source of pleasure and help. The individual cannot make responsible decisions regarding well-being of self or others.
While LJS clearly lacks capacity as a result of his intellectual disability. He is able to express his views and wishes about such things as his living arrangement and where he wishes to live. The report from ADA shows this and the work that MNV did to confirm the accommodation decision for him to move to Toowoomba confirms that any decision maker needs to ensure in accordance with the general principles that LJS is fully involved in the decision-making process.
I am satisfied having regard to LJS’s diagnosis of severe intellectual disability that he does not have the capacity to make personal decisions.
NEED FOR DECISIONS
LJS has now permanently moved to Toowoomba and the ADA representative confirmed that he was accepting at that in her report for the last hearing. He resides in a housing department property with a co-tenant. He has expressed a desire to visit Cairns which will require a temporary accommodation decision. LMA also raised the issue of LJS desire to visit Cairns. Any change to LJS’s accommodation arrangement will require decisions about accommodation. MNV advised in her guardians that while the house LJS occupies there is a shared bathroom which has caused some issues. I also note that LJS has commenced some volunteer work at St Vinnies which has been arranged informally and that can continue to be done in that way.
LJS is a participant in the NDIS and there are always ongoing service provision decisions in regard to his NDIS plan and general service provision which are required.
LJS has some health care issues which require management such as cholesterol and sugar management. While the statutory health attorney regime could be relied on this would allow a family member such as LMA to assert that she was LJS’s statutory health attorney. MNV is a cousin and therefore has a more distant pathway to assert that she should be his decisionmaker.
I am satisfied that there continues to be a need for decisions in regard to accommodation health care and the provision of services including in regard to the national disability insurance scheme.
Having regard to the conflict that exists between LMA and MNV in regard to decision making for LJS it is appropriate that there be a formal decision maker appointed for him to ensure that there is clear authority.
WHO SHOULD BE APPOINTED AS GUARDIAN
MNV has been guardian of LJS for some years. She has ensured that he has appropriate accommodation and service provision. She is a medical practitioner and has dealt appropriately with health care issues which have risen and had health issues such as LJS’s fall properly investigated. LMA submitted that NMV should not continue in the role as she contends that NMV does not allow to contribute LJS to decisions in particular a possible visit to Cairns and that she prevents him from engaging in social activities. LMA indicated that MNV was using her influence to manipulate LJS in regard to decisions.
LJS was given an opportunity by the Tribunal to provide his views in private so that he would feel comfortable expressing his own views and a limitation order was made in that regard. This was at the suggestion the ADA representative. I was satisfied that an adult evidence order should be made to ensure that the Tribunal received relevant information form LJS. In particular the psychology report noted that susceptible to suggestion and readily acquiesce to other people. He confirmed that he wished to visit Cairns that was clearly very important to him. The Tribunal appreciates that the service provision LJS received in Cairns was from a family run service provider and he would have formed friendships with the other clients as well as others he may have met in the community. LJS was given the opportunity to provide his views on who should be his guardian, but he declined to do so.
Having regard to the history of decisions made by NMV on behalf of LJS in particular the decision to locate to Toowoomba I am satisfied that NMV did so having regard to LJS’s views and wishes and as originally expressed to the ADA and ultimately when appropriate accommodation was sourced in Toowoomba LJS was able to accept the decision. NMV demonstrated that she was able to undertake the role of guardian in accordance with the general principles and the other requirements of the GAA Act.
The Public Guardian should not be appointed where there is another appropriate person who can act in the role having regard to s14(2) of the GAA Act. I will therefore continue NMV in the role of Guardian for a period of twelve months for the matters mentioned above.

DIRECTIONS

LJS has a clearly expressed desire to return to Cairns to visit his friends and former support providers representative. This was raised by LMA and confirmed by LJS at the hearing. NMV is directed to do all things necessary to facilitate LJS’s return to Cairns for a holiday within the term of this appointment.