LW
[2024] QCAT 78
•13 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
LW [2024] QCAT 78
PARTIES:
In applications about matters concerning LW
APPLICATION NO/S:
GAA469-23; GAA471-23
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
13 February 2024
HEARING DATE:
15 January 2024
HEARD AT:
Brisbane
DECISION OF:
Member Casey
DECISIONS:
1. The guardianship order made by the Tribunal on 2 November 2021 is changed by removing MP as guardian and appointing the Public Guardian as guardian for LW for the following personal matters:
(a) accommodation; and
(b) provision of services including in relation to the National Disability Insurance Scheme (NDIS).
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 LW 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. The appointment is reviewable and is to be reviewed in two (2) years.
7. The following Enduring Power of Attorney for LW is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act2000 (Qld) can no longer be acted upon to the extent that these appointments have been made:
(a) The Enduring Power of Attorney dated 20 May 2021 appointing MP for financial matters.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where any enduring power of attorney is overtaken – where need for the appointment of a guardian and administrator
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 35
Guardianship and Administration Act 2000 (Qld), Schedule 4, s 7, s 11, s 12, s 14, s 15, s 22(2), s 31, s 82
Powers of Attorney Act 1998 (Qld), s 62, s 86, s 109,
s 116
Human Rights Act 2019 (Qld), s 13, s 19, s 24, s 25, s 48APPEARANCES:
Applicant:
DP, parent
Others:
LW, the adult
MP, parent
BA, maternal uncle
REASONS FOR DECISION
LW (‘the adult’) is 20 years of age. At the time of the hearing, she was residing in the home of MP.
On 20 May 2021, the adult made an Enduring Power of Attorney appointing her parent, MP, for personal (including health) and financial matters. The power for financial matters was to begin immediately. The attorney signed her acceptance on the same day.
In a Tribunal decision of 2 November 2021, the Tribunal appointed MP as guardian for the adult for the matters of accommodation, provision of services including in relation to the National Disability Insurance Scheme (‘NDIS’) and with whom the adult was to have contact and/or visits. The appointment was to remain in place until further order of the Tribunal. The appointment was reviewable and was to be reviewed in five (5) years. The Enduring Power of Attorney dated 20 May 2021 appointing MP as attorney for personal and health matters was revoked pursuant to section 116(d) of the Powers of Attorney Act 1998 (Qld) (‘POA’) and section 82(2) of the Guardianship and Administration Act 2000 (Qld) (‘GAA’).
By 1 December 2022 DP, parent of the adult, lodged applications seeking the appointment of an administrator and a review of the appointment of the guardian for LW. According to his correspondence and applications, DP sought his sole appointment as administrator for LW and a joint appointment together with MP as guardian for LW.
DP did not provide the Tribunal with a health professional report pertaining to the adult to support his applications.
On 17 January 2023 a delegate of the principal registrar of the Tribunal wrote to DP, advising him that his applications were rejected on the basis that the health professional report had not been provided and therefore the application did not comply with section 35 of the Queensland Civil and Administrative Act 2009 (Qld).
In a decision of the Tribunal of 12 May 2023, following an emailed submission from DP dated 22 March 2023, DP’s applications were accepted in circumstances wherein DP did not supply a health professional report to support his applications.
The Legislation
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult.
LW is presumed to have capacity.[1]
[1]GAA, s 7(a).
The GAA defines capacity as follows:[2]
Capacity for a person for a matter, means the person is capable of -
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
[2]Ibid, Schedule 4 (definition of ‘capacity’).
The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.
The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.
When conducting a review of an appointment of a guardian or administrator, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.[3] The Tribunal may make an order removing an appointee only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.[4]
[3]Ibid, s 31(2).
[4]Ibid, s 31(4).
The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the POA. If there is an attorney, it is necessary to consider whether the attorney is carrying out their duties in such a way as to protect the adult’s interests and is otherwise acting in accordance with the POA.
Does the adult have capacity to make personal and financial decisions?
The evidence
Written evidence before the Tribunal includes a report dated 24 May 2021 by Dr Katherine Olsson, a clinical neuropsychologist, stating that the adult was found to have global developmental delays at 10 months of age. LW underwent a left hemispherectomy in January 2009 which resulted in her sustaining an acquired brain injury. LW was formally diagnosed with a moderate intellectual disability in April 2010, however prior to the formal diagnosis, there was significant evidence of moderate global developmental delay. LW also has a right hemiplegic cerebral palsy and polymicrogyria. Dr Olsson stated that LW is unable to understand the criteria necessary to make an EPA and unable to make decisions in relation to her health care and complex lifestyle/accommodation matters. Dr Olsson provided the opinion that LW is unable to make complex financial decisions and requires support to make simple financial decisions.
An undated neuropsychology report written by Toby Rheinberger, psychologist, and Dr Katherine Olsson, senior clinical neuropsychologist, states that the adult underwent a battery of standardized assessments on 20 April 2021, 27 April 2021 and 4 May 2021. Results indicated that the adult meets the DSM-V criteria for a moderate intellectual disability and that LW has significant difficulties across all assessed areas of her cognitive functioning. The areas of difficulty included verbal and non-verbal thinking skills, processing speed, working memory, attention, executive functioning, foundational academic skills and independence skills. The clinicians observed that LW’s assessed strengths were her friendly and sociable demeanour that made interacting with her a pleasure. She demonstrated resilience through her willingness to persevere at tasks that she reported as challenging. The clinicians recommend that LW receive support and supervision to safely access services, make complex lifestyle decisions and maintain her safety in the community. They also provide that LW does not possess the cognitive capacity required to adequately manage her own finances and therefore requires ‘financial guardianship’.
DP concurred with the medical evidence, stating that LW was had not been aware of circumstances in which money was taken from her account.
MP told the Tribunal that LW has progressed since the report was done. She said that LW is now 20 years of age and has ‘blossomed’. She said LW is independent and determined when making personal decisions. MP submitted that LW needs help accessing the banking application on her phone when making purchases. MP stated that she and DP had been managing the adult’s finances.
LW told the Tribunal she did not need a guardian for accommodation matters as she can make her own decisions in that regard. LW stated that she was living with MP on a full-time basis, as a consequence of her own decision making. She later told the Tribunal that her parents made the accommodation decision. LW stated that she makes healthy food choices when she goes out with her support workers. She said that MP makes decisions about the support she receives through the NDIS and that she will require ongoing support with NDIS decisions. LW said she would be ‘happy’ to manage her finances independently.
Deliberation
The Tribunal considered the clinical and oral evidence.
The clinical evidence establishes that LW has been diagnosed with a moderate intellectual disability. Standardised assessment results have revealed that LW has significant areas of difficulty across a number of domains. The assessment results have informed clinical opinion that LW is able to make simple, not complex, decisions pertaining to her lifestyle/accommodation and financial matters (requiring supervision with simple financial decisions) and that LW is unable to make all health care decisions.
Accordingly, the Tribunal rebuts the presumption of capacity for LW for the above personal and financial matters as she does not understand the nature and effect of such matters.
Is there a need for the appointment of a guardian for LW?
Evidence
LW is a participant within the NDIS. The undisputed evidence from the adult, MP, and DP was that the guardian made all complex decisions pertaining to services provided to the adult in the period under review. The parties agreed that there was an ongoing need for a guardian for LW for the provision of services, including in relation to the NDIS.
The adult and her parents submitted that there were no imminent health care decisions required for the adult. They agreed that MP and DP have supported the adult to make decisions about her health care matters in the past and were seeking to continue with this arrangement should health care decisions be required.
In the period under review the guardian did not make any decisions in relation to with whom LW had contact and/or visits. The undisputed evidence was that the adult did not respond to any communications made by persons with whom she did not seek to engage, and therefore there was no need for such decisions in the current circumstances.
At the time of the hearing, LW was accommodated within the home of MP. In evidence to the Tribunal, MP submitted that, in the period under review, she did not make any accommodation decisions as a guardian for LW, stating that she and DP supported LW in her numerous decisions to change her accommodation between each of her parent’s homes. DP submitted that the varying accommodation arrangements were based on LW’s emotions at the time, rather than actual decisions, stating that, based on the current living arrangements ‘everything is anti-Dad at the moment’. The parties told the Tribunal that LW was residing in the home of MP at the commencement of MP’s appointment. In the period from September 2022 to June 2023, LW lived with DP and spent every second weekend with MP. In a different arrangement within the review period, LW was accommodated in each of her parents’ homes in a 50/50 arrangement. At the hearing, LW stated that she sought to remain in the home of MP.
Deliberation
Pursuant to section 12 of the GAA, the evidence establishes that there is no need for the appointment of a guardian for LW for matters pertaining to those with whom she has contact and/or visits. The evidence further establishes that MP and DP are exercising power as Statutory Health Attorneys[5] for LW. The Tribunal is of the view, given the undisputed evidence, that the Statutory Health Attorney regime will continue to be appropriate should any health care decisions be required for LW.
[5]POA, s 62.
Given the frequent changes to the adult’s accommodation as a consequence of her expressed and variable preferences, the Tribunal is satisfied that a guardian is required to make decisions about accommodation matters to provide LW with a period of stability. The Tribunal is also satisfied that there is a need for decisions in relation to LW’s service provision (including in relation to the NDIS) as LW requires significant support within her accommodation and in order to safely access the community. The nature and scope of necessary support services will be impacted by LW’s accommodation setting.
Is the current appointee still competent or is someone else more appropriate for appointment?
Evidence
At the hearing, DP confirmed that he sought a joint appointment with MP, but MP was consistent in her submissions that she sought to continue her appointment as sole guardian for the adult.
In his submissions DP told the Tribunal that MP had reneged on her agreement with him in 2021 to seek joint appointments as guardians for LW. He said that he had not been afforded the opportunity to have input into service provision decisions made by MP in the period under review.
DP said that his application for the review of the appointment of the guardian was made at a time when LW was residing with him and was not seeking to return to live with MP, nor have any contact with her. He said that in those circumstances he did not have authority to converse with the adult’s respite provider as he was not the appointed guardian. DP contended that, at the time of his application, communication with MP was ‘difficult’ due to MP’s ‘mental health issues’ and her ‘up days and down days’.
In his applications to the Tribunal, DP signed two contradictory statutory declarations in relation having a criminal history. He willingly disclosed his criminal history at the hearing.
In her submissions to the Tribunal MP confirmed that the decisions she made as an appointed guardian for LW only related to service provision matters. She stated that she had consistently advised DP of her decisions after she had made them and always provided DP with copies of the adult’s NDIS plan. She said, ‘I thought the information I was giving him was enough’. MP added that since LW had returned to live with her on a permanent basis, DP had been ‘bullying’ her and LW and, at times, had been threatening and verbally abusive towards her. MP submitted, that should her appointment as guardian for LW continue, she would work with DP to provide LW with services.
Deliberation
By her own admission, MP had not consistently consulted with DP in relation to decisions pertaining to the adult’s service provision. The evidence establishes that, in the period under review, the adult has moved between the homes of her parents in various shared care arrangements, in the absence of a decision of the guardian. As a consequence, the adult has experienced a period of instability.
It is a concern to the Tribunal that MP alleged DP had engaged in bullying behaviour towards the adult and verbally abusive behaviour towards herself. The Tribunal observes that, despite her allegations, MP indicated a willingness to consult with DP to inform her decision making should her appointment as guardian be continued.
Of further concern is the history and continued circumstances of conflict and poor communication processes between MP and DP, which has not assisted the adult in maintaining stable accommodation.
The Tribunal, therefore, is not satisfied that either MP or DP would be able to effectively consult with each other and consider each other’s viewpoint in order to discharge appropriate decision making for LW.
The Tribunal determines that an independent guardian would be best placed to consult with all parties and make decisions in accordance with the legislative provisions, including the general principles.[6]
[6]GAA, s 11B.
The Public Guardian, as an independent guardian, is considered more appropriate for appointment than MP, having regard to the provisions of section 31 of the GAA.
Accordingly, the Tribunal appoints the Public Guardian as guardian for LW for the matters of accommodation and provision of services (including in relation to the NDIS). The appointment is to remain current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.
Is the current decision-making regime adequately meeting the adult’s needs and protecting her interests, or is there a need for the appointment of an administrator?
Evidence
LW receives a Centrelink pension as a consequence of her disability, of which she saves approximately $100 per fortnight. She has two bank accounts totalling approximately $12,000 along with shares valued at approximately $10,028. Her expenditure includes her personal/living costs and $100 per week for board and lodging when residing at MP’s home. MP submitted that she pays for the adult’s medical expenses. DP provided that he pays for the adult’s phone. There are no reported liabilities.
In her evidence to the Tribunal, MP submitted that she had interpreted the Tribunal’s decision of 2 November 2021 as revoking the Enduring Power of Attorney dated 20 May 2021 in its entirety and therefore was unaware that she had retained authority to act as the adult’s financial attorney. Consequently, MP submitted that she and DP had informally supported the adult with financial decision making since 2 November 2021.
At the hearing, when advised of her retained authority to act as financial attorney for the adult, MP sought to resume exercising power. In contrast to MP, and to his application, DP submitted that he sought a joint appointment with MP as administrator for the adult.
DP did not provide a financial management plan to the Tribunal to support his application for appointment as administrator because, in his view, the plan was ‘unwarranted and ‘unneeded’ as LW ‘is pretty good with her money’.
The undisputed evidence was that LW accessed her bank accounts through an application on her phone and that LW required support to do so. MP told the Tribunal that, for example, when purchasing a plane ticket, MP would need to ‘go into the app and do the transfer for her’ and that the transfer was ‘done with her’. MP said that she and DP have imposed a limit on LW’s spending for her own safety, as LW does not understand the dollar value and, in the past, had purchased an expensive item when in the community with her support worker. The arrangement was that, should LW seek to purchase an item in excess of $100 when accessing the community with her support worker, the support worker was to contact either MP or DP to seek permission.
MP told the Tribunal that LW knows her own password and code to access her accounts. MP said that she had not been able to access the adult’s banking application since DP changed the password and code.
DP told the Tribunal that he had complete access to the adult’s bank accounts and that he manages the accounts online. He said he ‘blocked’ MP by accompanying the adult to the bank and changing access codes in order to stop outgoings from LW’s account which the adult did not know about. He alleged that MP had borrowed money from LW, unbeknown to LW. (MP initially disputed DP’s submission, then later stated that the money had been repaid).
In further evidence, DP stated he pays for the adult’s phone and associated internet access. He told the Tribunal that he thought it was reasonable when he said to the adult that ‘I will cut your phone off’ at a time when the adult was seeking to disregard his views in relation to her spending.
In her submissions to the Tribunal, LW said she had been ‘happy’ when MP helped her in circumstances by ‘blocking’ her account when her debit card was hacked. She added that she was ‘sort of happy’ with DP having access to her bank accounts.
Determination
LW has assets, income and expenditure that require management. There must be an adequate and effective decision-making regime in place for the adult, as otherwise her needs will not be met, nor her interests protected.
The Tribunal accepts the evidence of MP that she ceased acting as the adult’s Enduring Power of Attorney for financial matters, when she had the authority to exercise power, due to her interpretation of the Tribunal’s decision dated 2 November 2021.
The Tribunal accepts that MP and DP have attempted, to some extent, to work together to support the adult informally with her decision making by requiring their authorisation for spending over predetermined limits. In this way, the adult has had access to budgeted living expenses, whilst her savings have increased.
Notwithstanding the above, it is a concern to the Tribunal that there has been disagreement and conflict between DP and MP whilst they have attempted to support the adult with her financial decisions. The evidence establishes that DP denied MP access to LW’s bank accounts as a consequence of MP utilising money from the adult’s accounts, which she has since repaid. As a consequence, DP retains full control over the adult’s bank accounts.
Given DP’s unilateral actions in relation to control of the adult’s bank accounts, the Tribunal is not convinced he would effectively consult with MP should he succeed in his application to be jointly appointed with MP as administrator for the adult. In any event, MP was not seeking to act jointly with DP as LW’s administrator.
The evidence further establishes that DP pays for LW’s phone. By his own admission, DP has threatened the adult with denying her access to her phone in order to prevent her from accessing her finances for day-to-day transactions during outings with her support workers. DP’s self-described behaviour is contrary to that which is mandated for administrators appointed under the GAA.
The Tribunal is therefore not satisfied that DP would be able to apply the legislative provisions, including the general principles,[7] should he be appointed as administrator for the adult.
[7]Ibid, s 11B.
The Tribunal gave consideration to MP remaining as financial attorney for the adult. By her own admission, MP failed to keep property separate[8] when she borrowed money from the adult’s account. The Tribunal accepts MP’s submissions that she had since repaid the money. The unfortunate circumstances also led to DP’s actions of denying MP independent access to the adult’s accounts, further contributing to conflict and negative communication processes between the adult’s parents in their interactions in relation to the adult’s financial matters.
[8]POA, s 86.
Given the above evidence and ongoing poor communication processes between MP and DP, the Tribunal is not convinced that there would be adequate consultation to ensure LW’s interests were not prejudiced should MP resume exercising her power as financial attorney. The Tribunal is therefore not satisfied that MP would be able to apply the general principles[9] as is required under the POA.
[9]Ibid, s 6C.
The Tribunal is of the view that the Public Trustee of Queensland, as an independent, skilful and experienced administrator, would be able to liaise with all parties and make financial decisions that best meet the adult’s needs, in accordance with the general principles.[10] The Public Trustee of Queensland is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA. Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for LW for all financial matters. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.
[10]GAA, s 11B.
The Enduring Power of Attorney for LW dated 20 November 2021 appointing MP as attorney for financial matters is overtaken by the making of this appointment and, in accordance with s 22(2) of the GAA, it can no longer be acted upon to the extent that this appointment has been made.
The Tribunal gave consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. LW’s rights to property,[11] freedom of movement[12] and privacy[13] are engaged and limited by the guardianship and administration appointments. Taking into account the findings above in relation to the criteria set out in the GAA and the POA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA.
[11]HRA, s 24.
[12]Ibid, s 19.
[13]Ibid, s 25.
0
0
3