MAP

CITATION:	MAP [2017] QCAT 378
PARTIES:	MAP (Adult)
APPLICATION NUMBER:	GAA9696-17
MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	A/Senior Member Guthrie
DELIVERED ON:	5 September 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. MEM and MT are suspended as guardians for MAP for the following person matters under s 155 of the *Guardianship and Administration Act 2000: (a) accommodation decisions;* (b) health care of MAP; (c) provision of services for MAP. 2. The Public Guardian is appointed as guardian for MAP for the following personal matters during the period of suspension: (a) accommodation decisions; (b) health care of MAP; and (c) provision of services for MAP. 3. The Tribunal directs the Public Guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing. 4. This guardianship appointment of the Public Guardian remains current for (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
CATCHWORDS:	GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where adult had previously appointed attorneys – where Tribunal overtook the Enduring Power of Attorney and appointed adult’s son and daughter-in-law jointly and severally as guardians – where concerns raised by medical staff about the adult’s wounds and the guardians’ management of them – where application made by social worker to suspend the guardianship appointment and appoint the Public Guardian – where interim appointment sought – whether the adult was at an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 155, Schedule 1
APPEARANCES:

This matter was 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

MAP is 83 years old. On 11 July 2017, this Tribunal (differently constituted) decided to appoint MAP’s son, MEM, and daughter-in-law, MT, jointly and severally as guardians for MAP for the following personal matters:
a)    Accommodation;
b)    Health care; and
c)    Provision of services.
The appointment was to remain current until further order of the Tribunal, and was to be reviewable in one year. The Tribunal also decided to overtake an Enduring Power of Attorney for MAP which appointed MEM as her attorney for financial, personal, and health matters on 17 May 2000.
MEM and MT reside with MAP.
On 4 August 2017, the Tribunal received an application from the social worker at a North Queensland hospital. The application seeks, amongst other things, that the Public Guardian be appointed as guardian for MAP for personal matters. The social worker also filed an application for an interim order. The basis of the interim order was to prevent the current guardians, MEM and MT, from discharging MAP. A review of the appointment of the guardians was commenced.
On 5 September 2017, I decided to suspend MEM and MT as guardians for MAP under s 155 of the Guardianship and Administration Act 2000 (Qld) (the GAA). These are my reasons for that decision.
Section 155 of the GAA provides:
155 Suspension of guardianship order or administration order
(1)The tribunal may, by order, suspend the operation of all or some of the power of a guardian or administrator (an appointee) for an adult if the tribunal suspects, on reasonable grounds, that the appointed person is not competent.
(2)An appointee is not competent if, for example—
(a)a relevant interest of the adult has not been, or is not being, adequately protected; or
(b)the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
(c)the appointee has otherwise contravened this Act.
(3)The tribunal may make an order under subsection (1) in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act.
(4)The suspension may not be for more than 3 months.
(5)During the suspension of the operation of power of a guardian, the public guardian is taken to be the guardian for the adult for the exercise of the suspended power.
(6)During the suspension of the operation of power of an administrator, the public trustee is taken to be the administrator for the adult for the exercise of the suspended power.
At the time the Tribunal made the decision on 11 July 2017, MAP was an inpatient at a North Queensland hospital. She had been admitted to a hospital on 14 February 2017 and discharged for wound management, then readmitted to the hospital on 21 March 2017.
Concerns were raised by the medical staff about the depth of the wounds and the amount of time the wounds had been present. Concerns were also expressed about the level of wound care that had been provided by MEM and MT with whom MAP was living. Following the decision of the Tribunal to appoint MEM and MT as MAP’s guardians, a home visit was completed on 13 July 2017 between the ward physiotherapist, MEM, and MT.
The report prepared by the physiotherapist following that home visit states that while MEM and MT have demonstrated a willingness to undertake all means necessary to improve the safety of the home environment, and had sought and responded to recommendations from hospital staff, critical details such as the required transfer methods and long-term care requirements had to be constantly reminded to MEM, who repeatedly referred to care plans and suggestions that contradicted instructions provided by therapy staff.
The report states that while MEM and MT are adamant they can find extra assistance via extended family and private carers, they are unable to rationalise and provide plausible evidence as to how this can be achieved and it seems unlikely that the integrity of MAP’s wounds can be maintained outside of the care facility with 24/7 access to nursing staff and appropriate facilities.
A letter from the social worker to MEM and MT dated 25 August 2017 sets out the relevant concerns of the hospital regarding the guardians’ ability to care for MAP.
The Tribunal has MAP’s hospital progress notes of 27 July 2017 from MAP’s admission. The progress notes record contact between the hospital social worker and an Ozcare worker which state that Ozcare had been asked to provide services to MAP at her home. The Ozcare worker expressed to the social worker her concern that the information reported by the guardians about MAP’s needs do not reflect MAP’s actual needs. The progress notes also reflect that the guardians reported to the Ozcare worker that MAP could mobilise independently and did not report her wounds or incontinence issues. The progress notes also reflect that the Ozcare worker noted that it was consistently repeated to her that the family members had full control of the MAP’s finances and that their house would be completed in around six months.
Another person has described unusual action taken by MEM in the form of placing Styrofoam on the walls so neighbours could not hear conversations and that there had been action taken to alienate MAP from other family members. The Tribunal makes no formal findings about whether that has in fact occurred. However, I note Principle 8 in Schedule 1 of the GAA which guardians should apply, “the importance of maintaining an adult’s existing supportive relationships must be taken into account” in making decision that concern the adult.
Under s 155 of the GAA, the Tribunal may, by order, suspend the operation of all or some of the power of a guardian for an adult if the Tribunal suspects on reasonable grounds that the appointed person is not competent. Based on their reported interactions with the physiotherapist after the hearing on 11 July 2017 and the collateral information obtained from third parties, the Tribunal suspects that the appointed guardians are not competent.
Section 155(2) provides that an appointee is not competent if, for example, a relevant interest of the adult has not been or is not being adequately protected.
In the past, MAP’s health has not, in my view, been adequately monitored by her in-home carers, MEM and MT. Despite the hearing in the Tribunal, MEM and MT have, according to the progress notes of the hospital and the physiotherapist’s report, displayed a lack insight of the level of care MAP will likely require upon her discharge. They have not, as yet, put in place any options for her return to home care that would provide the level of care that is recommended by her treating team. MEM and MT have informed the Tribunal that the hospital is not communicating with them and that they remain open to the option of finding alternative accommodation in an aged care facility but wish to explore all options to ensure that MAP’s desire to return to the home she shares with MEM and MT can be fulfilled if that is at all possible. It seems from this evidence that there is effectively an impasse between the appointed guardians and MAP’s treating team regarding MAP’s discharge from hospital.
I acknowledge MEM and MT’s desire to concede to the adult’s wishes to return home. Principle 7[1] refers to an adult’s right to participate to the greatest extent practicable in decisions affecting their life and the importance of preserving to the greatest extent practicable an adult’s right to make his or her own decisions must be taken into account. However, Principle 7(5) states:
However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult’s proper care and protection.
[1]GAA Act, Schedule 1.
In this case, I consider that there is sufficient prima facie evidence for me to conclude that the appointed guardians are not making decisions in a way consistent with the adult’s proper care and attention. This Tribunal has previously found that MAP has impaired capacity for personal matters. The Tribunal found that there was a need for decisions to be made. The substitute decision-makers were appointed because MAP cannot make them for herself. The particular powers given to the guardians were to make decision about accommodation, health and provision of services.
I have concerns that MEM and MT do not fully comprehend the required level of care to be provided to MAP upon her discharge from the hospital to ensure that her wounds heal and do not recur and have a tendency to underplay the care needs of MAP despite the hearing on 11 July 2017. MAP has been hospitalised for a very long period of time which reflects the how unwell she is and has been. I am also concerned that the breakdown in the relationship between the MEM and MT and the care team at the hospital is impacting MAP. I consider that any decision to accommodate her outside of hospital must be made taking into account and weighing the objective information whilst also taking into account her views and wishes. MAP’s safety is paramount.
I decided to exercise the discretion in s 155 to suspend the operation of the powers of the guardians. By operation of s 155(5) of the GAA, during the suspension of the operation of the powers of the guardians, the public guardian is taken to be the guardian for the adult for the exercise of the suspended power. That means that the public guardian is taken to be the guardian for MAP for decisions about accommodation, health care and provision of services. Section 155(4) provides that the suspension cannot be for more than three months.
In making this decision, I do not draw any final conclusions about the appropriateness of the guardians to be appointed going forward. That is a matter for the Tribunal member to determine at hearing based on all relevant information then before it. The Tribunal considers that the Tribunal will be assisted by a report from the Public Guardian at the time of that hearing. The Tribunal has also appointed Aged and Disability Advocacy Australia to represent the adult’s views and wishes so that her views and wishes can be articulated to the Tribunal by an independent advocate.

[2017] QCAT 378

5 September 2017