LJW - [2014] QCAT 670

CITATION:

LJW [2014] QCAT 670

PARTIES:	LJW
APPLICATION NUMBER:	GAA 4982-14; GAA 8070-14

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:		4 September 2014 – oral hearing, 28 November 2014, on the papers hearing

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

DELIVERED ON:

11 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appointment of the Public Guardian for decisions about the following personal matters

(a) accommodation,
(b) health care, and
(c) provision of services
is continued.

2. This order remains current until further order of the Tribunal. It is reviewable and is to be reviewed in 1 year.

3. The application for directions is dismissed.

CATCHWORDS:

Review of the Appointment of a Guardian

APPEARANCES: LJW, PK, Public Guardian represented by Jeannine Stevenson, The Public Trustee of Queensland represented by Kate Do and Stephen Pederson, Office of the Official Solicitor and Clinton Miles.

This matter was heard at oral hearing, and subsequently heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The Adult Guardian (now Public Guardian) was appointed as guardian for LJW until further order on 25 August 2011. This order was to be reviewed in three years time. The Tribunal reviewed this matter at oral hearing by videoconference on the 4 September 2014, however there was significant technical difficulties which resulted in the parties not being able to fully hear each other. The technical difficulties were unable to be resolved during that proceeding. Both the Public Guardian and the Public Trustee had filed a report and submissions respectively. As the proceeding was unable to be conducted at that point, the adult and the applicant PK, were asked to file their written response to these written statements and further information they sought to put forward by 12 September 2014, and the Public Guardian and the Public Trustee were permitted to file any submissions in reply by 19 September 2014. PK sought an extension of time to provide these submissions. Unfortunately, this application was not provided to the Member with conduct in this matter until 3 October 2014. An extension was then provided until 18 October 2014. Unfortunately, these orders did not reach the parties and a further order issued requiring submission of material by 11 November 2014, with the other parties to provide submissions in reply by 18 November 2014. No further submissions were received from any party and the decision was made on the papers on the material provided as at 4 September 2014. Notices of hearing went out on 25 November 2014 and the Member abridged time pursuant to section 118 of the Guardianship and Administration Act 2000 (Qld), to allow the application to proceed on 28 November 2014.
The Tribunal conducts a review of the appointment of a guardian under section 31 of the Guardianship and Administration Act 2000 (Qld).
The Tribunal is required to be satisfied that it would be able to make an appointment, and therefore must consider whether the adult lacks capacity for the matter, and whether there is a continuing need for a decision, and without an appointment the adults needs will not be met or interests adequately protected.
In 2011, the Tribunal had concluded based on a report of the Adult’s General Practitioner Dr King dated 22 July 2011, that LJW did not have capacity. That report indicated that LJW had limited capability to understand the nature and consequences of accommodation and lifestyle decisions. Correspondence of 22 May 2014, from Dr King noted that LJW’s condition remained in “Status Quo” in that he continued to suffer from mental retardation, intellectual disability, amnesia, disorientation among other issues. The Tribunal is satisfied that the presumption of capacity for personal matters is rebutted.
The Public Guardian’s report of 15 July 2014 indicated that LJW is currently living with his carer in a property he once owned outright, but due to dealings of AR, now owes significant debt upon. He now owns only a part interest in his home. The Public Guardian reported that based on advice received from the Public Trustee, LJW is unable to afford to live in this house and they have been advised by LJW’s administrator that the property must be sold.
The report notes that there is likely to be accommodation decisions as a result of this. The Public Trustee further considered that in light of LJW’s intellectual disability and need for support relating to his accommodation, service provision and health decisions will be likely to be needed to be made at this time. He has been approved for low level residential care.
The Public Trust confirmed that a sale of the property will be necessary. They noted that AR does not contribute to the mortgage and the mortgage had fallen into arrears, with the mortgagee intending to exercise its power of sale to recover funds outstanding.
The Public Trustee advised that vacant land purchased jointly by LJW and AR was sold to pay the funds but the proceeds have not been released due to cross securitisation of the properties.
The Public Trustee advised that there has been agreement between them as LJW’s administrator and AR to list the house in which LJW resides for sale.
The Public Trustee has involved the Official Solicitor in the context of the mortgagee action and the negotiations with AR around his interests in and sale of the property. The Official Solicitor also has outstanding fees which can only be met through sale of the property. They have been extensively involved in negotiations around LJW’s interests in the two properties.
The Public Trustee advised that there is no alternative but to sell the property.
PK informed the Tribunal at the hearing that she could start to pay rent to LJW, which she considered would assist him to make the full repayments on the property. The Tribunal notes that PK has been living for several years without contributing to the costs of accommodation. Given that these mortgage arrears have arisen over time the Tribunal notes the delay in that offer coming forward.
PK has sought a direction from the Tribunal that the house does not need to be sold. The Tribunal notes the Public Trustee’s evidence in relation to the mortgagee’s concerns due to the extent of outstanding debt. It is apparent, that the bank is going to take action to recover its debt if the administrator does not. The most appropriate action in the circumstances is for the administrator to have control over a sale process rather than a bank to ensure the adult’s interests are protected. Therefore, PK’s request that the Tribunal direct the Public Trustee not to sell the house does not have regard to the precarious financial position and risks associated with further delay in settling the debt to the bank. Therefore, PK’s application for directions is dismissed.
The Tribunal notes that there is continuing need for decisions about accommodation services and health, and without an appointment, LJW’s interests will not be adequately protected.