McEwen v Barker Builders Pty Ltd

[2010] QCAT 49

CITATION: CSY [2010] QCAT 49

PARTIES: CSY

APPLICATION NUMBER:            GAA10431-09 GAA10432-09                   

MATTER TYPE: Guardianship and Administration matters

HEARING DATE:   18 February 2010

HEARD AT:   Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON:   22 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Appointment of guardian and administrator

CATCHWORDS :  Where there is impaired decision making capacity – where informal decision making arrangements are not adequate – where independent appointees preferred

APPEARANCES and REPRESENTATION (if any):

The following active parties attended the hearing: CSY (the adult), YK (the adult’s wife), Nikhia Griffin and Pamela Behrbohn from the Office of the Adult Guardian and David Granzien from the Public Trustee of Queensland.   Other persons attending were the adult’s son, a social worker and friend of the adult’s family and two friends supporting the family.  A Cantonese interpreter attended the hearing to assist CSY and YK. 

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. CSY was working as a chef until he was admitted to the Royal Brisbane and Women’s Hospital in March 2007 following a cerebral haemorrhage. While in hospital he experienced a second cerebrovascular event.  CSY was transferred to the Prince Charles Hospital on 5 June 2007.  While at that hospital CSY experienced a third cerebrovascular event on 9 July 2007.   
2. CSY was discharged from hospital on 14 August 2007 to his home with ongoing support organised via a funded community support package and ongoing rehabilitation outpatient support at the Prince Charles Hospital.  The community support package was cancelled in November 2007 and the rehabilitation day hospital support was finalised at the end of June 2008.  Social work support continued from the Prince Charles Hospital until about November 2008. 
3. CSY was admitted to the Royal Brisbane and Women’s Hospital on 4 August 2009 for treatment of burns to his shoulder area sustained by exposure to hot water in his shower at home.  While in hospital CSY underwent investigation by the neurological team but was discharged on 14 September 2009 against medical advice before the investigations had been completed. 
4. Visits to CSY’s home by occupational therapy and speech therapy staff in October and November 2009 reported care needs in the home environment that were not being met.  A referral was made to the Office of the Adult Guardian in November 2009 for an investigation of concerns about alleged abuse being experienced by CSY in his home environment. 
5. On 16 December 2009 an application was lodged with the Tribunal by the Adult Guardian seeking the appointment of a guardian and administrator for CSY.  An interim order was made on 17 December 2009 appointing the Adult Guardian as CSY’s guardian and The Public Trustee of Queensland as his administrator for a period of three months. 
6. The application for the appointment of a guardian and administrator came on for hearing on 18 February 2010.      

The Issues and the Legislation

7. The issues for the Tribunal are:

Does CSY have capacity to make decisions about personal and financial matters?

Is there a need for a guardian? If so, who should be appointed? And

Is there a need for an administrator? If so, who should be appointed?

8. For adults there is a statutory presumption that they have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”).  Unless there is sufficient evidence to rebut that presumption, it must stand.
9. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
1. understanding the nature and effect of decisions about the matter; and
2. freely and voluntarily making decisions about the matter; and

c.communicating the decisions in some way.

10.If the presumption of capacity has been rebutted, the Act provides the means by which a substituted decision maker can be appointed for an adult with impaired decision making capacity.

11. Section 12 of the Act deals with the question of need for an appointment and provides, where relevant, as follows:

(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…..

12. Section 15 of the Act provides considerations for deciding whether a person is appropriate for appointment as a guardian and administrator, where relevant, as follows:

(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—

(a) the general principles and whether the person is likely to apply them;

(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;

(c) the extent to which the adult’s and person’s interests are likely to conflict;

(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;

(e) if more than 1 person is to be appointed—whether the persons are compatible;

(f) whether the person would be available and accessible to the adult;

(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.

13.Section 14(2) of the Act provides that the Tribunal may appoint the Adult Guardian as guardian only if there is no other appropriate person available for appointment for the matter.

The Evidence

14.The Adult Guardian lodged a considerable amount of documentation with the application for the appointment of a guardian and administrator.  That documentation included reports and clinical notes made by staff at the Prince Charles Hospital and the Royal Brisbane and Women’s Hospital in 2007, 2008 and 2009 relating to CSY.  In addition there was a health professional report by Dr XC dated 21 December 2009, investigation notes by Mark Phillips, senior investigations officer, concerning an Aged Care Assessment Team assessment dated 13 November 2009, letter by Alison Green dated 16 November 2009 and a discharge summary by Sarah Heaton dated 16 September 2009. 

15.Information was provided to the Tribunal by CSY’s family after the interim order was made on 17 December 2009 including a completed feed back form and written submissions provided on the day of the hearing.  A social worker and friend of the family provided information about her knowledge of CSY’s circumstances and of the support provided to him by his wife and son.  

16.Written reports were provided by the Adult Guardian and The Public Trustee of Queensland as to their actions since being appointed by the interim order of the Tribunal on 17 December 2009.    

17.In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to provide evidence to the Tribunal and to express their views about the applications.  A Cantonese interpreter was used by YK when giving her evidence and the interpreter translated all the proceedings for CSY. 

DOES CSY LACK CAPACITY FOR THE MATTER?

18.CSY’s general medical practitioner is Dr XC.  In a report dated 12 November 2009, Dr XC reported that he had known CSY for over one year and he had last seen CSY on 12 October 2009.  Dr XC was of the opinion that CSY had an acquired brain injury and dysphasia caused by a stroke and that his brain injury impairs CSY’s cognitive ability.  Dr XC considered the cognitive impairment to be stable and of a moderate level of impairment.  Dr XC was of the opinion that CSY’s wife made decisions about health care, accommodation choices, choice of services and day to day personal matters for CSY.  Dr XC was not sure if CSY could conduct his financial affairs.  

19.Dr XC stated the opinion that CSY could not make decisions freely and voluntarily and that CSY was influenced by his wife.  Dr XC expressed the opinion that CSY could make simple decisions but not any complex decisions. 

20.Despite there being extensive hospital records provided to the Tribunal, those records did not contain up to date assessments of CSY’s cognitive functioning. The records did contain a report dated 16 September 2009 by Sarah Heaton, speech pathologist at the Royal Brisbane and Women’s Hospital in which it was stated that CSY had expressive and receptive aphasia. 

21. Ms Heaton reported that CSY was largely unintelligible in Cantonese according to his wife and had no verbal output in English while in hospital.  She reported that CSY had no serial speech, occasional automatic speech in Cantonese, unable to repeat words and was able to follow one stage commands in Cantonese and English. His yes/no response was unreliable in English and Cantonese, he communicated direct needs largely through pointing and gesture and he was unresponsive to a basic communication board in Cantonese and English with pictures. 

22.CSY’s wife, YK, told the Tribunal that she considered that her husband had the capacity to make his own decisions.  YK did not provide evidence of the basis for that opinion apart from stating that her husband could nod his head and write messages to indicate his decisions. When asked to explain how CSY contributed to the decision to move out of his home at Kedron to rented accommodation at Aspley, YK stated that she had told her husband about the move and he nodded his head and had understood what she had said.    

23.During the hearing CSY was given a pen and some paper by his wife and according to the interpreter CSY wrote the Chinese character for “word”.  He took a long time to create the character and then appeared to lose interest in the activity.   

24.CSY had very limited mobility and attended the hearing in a wheel chair.  He had an occasional productive cough and his wife wiped his mouth after coughing.  He did not vocalise at all during the hearing but appeared to listen to the translation of the proceedings by the interpreter and at times registered sadness about the evidence that was being adduced and at other times smiled broadly.  The Tribunal did not attempt to ask CSY any questions.

CONCLUSION

25.CSY experienced a series of strokes in 2007 which resulted in a significant physical limitation of mobility and an acquired brain injury. The effects of the acquired brain injury are a moderate level of cognitive impairment and expressive and receptive aphasia.  CSY is largely unintelligible in Cantonese and has no apparent verbal output in English.

26.The Tribunal finds that CSY communicates his direct needs largely through pointing and gestures with occasional limited and essentially unreliable written expression.  The Tribunal is satisfied that the opinions expressed by Dr XC, who was CSY’s general medical practitioner for more than one year, are sound and based on his clinical assessment of CSY. 

27. The Tribunal finds that due to his cognitive impairment CSY lacks the ability to contribute effectively to decision making.  According to the evidence provided to the Tribunal, CSY can manage at best to nod his head in agreement to decisions already made by his wife about his personal and lifestyle matters. 

28.The Tribunal is satisfied that CSY does not have the ability to formulate his own decisions based on information provided at his request or to communicate decisions if they differ from those already made by his wife.  The Tribunal is satisfied on the evidence that CSY cannot make decisions, other than simple decisions about his basic needs, of his own free will.     

29.As a result of these findings, the Tribunal concludes that CSY has impaired capacity for decision making about his personal and financial matters. 

IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?

30.An investigation by the Adult Guardian in November 2009 resulted in a collection of evidence from various allied health care professionals who had had dealings with CSY.  According to the report of the Adult Guardian, on 12 November 2009 Tony Shields from the Aged Care Assessment Team visited CSY in his home.  CSY was alone when the visit commenced at 3.15 pm and CSY’s wife and son did not until arrive home until after 5 pm.   It was stated in the report that the family confirmed that CSY had been alone from 8 am that morning. 

31.The report of that visit stated that the house reeked of urine and that CSY was doubly incontinent.  The carpet was badly stained.  CSY had access to a bottle of water but he had difficulty putting the bottle directly to his mouth.  There was no evidence that CSY had eaten during the day.  The burn on his shoulder had three open areas and there was no evidence of lotions being recently applied to the burn. 

32.Tony Shields reported that he had discussed CSY’s diet with YK.  She had stated that rice was better food for CSY than the diet recommended by the hospital staff and she arranged his discharge from hospital as he should be cared for by his family.  Mr Shields reported that he discussed CSY having respite care with YK but she was not interested due to the cost of respite care although the family was interested in using respite care over the school holidays.  YK was not prepared to agree to CSY going into residential care on financial grounds.

33.According to Tony Shields, CSY had not seen his doctor for months, CSY had run out of his blood pressure medication, CSY did not appear to have been showered on the day of Mr Shield’s visit, CSY is left alone between 8 am to 5 pm, CSY is left rice to eat during the day, CSY has no stimulation when at home by himself and due to his high care needs, CSY would likely to be assessed as requiring high level residential care and respite.   

34.The evidence of Tony Shields was corroborated by a physiotherapist from Community Health who had visited CSY at home on 12 November 2009. 

35.Evidence in the notes of other allied health staff stated that on two occasions they had been unable to enter CSY’s home as he was alone and unable to open the door.  They had waited until CSY’s family came home after 5pm to gain access to him. 

36.According to the notes on CSY’s file at the Prince Charles Hospital, the funded community support package which had been arranged in 2007 after his discharge from hospital had been cancelled in November 2007 due to his wife declining services offered to CSY.  The notes reveal concerns expressed by the social worker throughout 2008 about the care needs of CSY that were not being adequately met by his family.  The notes reveal that the family moved accommodation without informing the hospital of their forwarding address resulting in a request being made to the police to make a welfare check on CSY. 

37.In oral evidence to the Tribunal, the investigation officer from the Office of the Adult Guardian stated that the accommodation in which CSY had been living in 2009 was a two storey townhouse which presented difficulties for CSY to access the living areas upstairs.  Investigations with neighbours had revealed that they were unaware that CSY lived in the townhouse, that screaming between YK and her son was heard every night and morning, and that YK had been evicted from the townhouse for various breaches of the lease.

38.The guardian appointed under the interim order of the Tribunal stated that the family had been difficult to contact.  Offers had been made by the guardian to arrange services for CSY such as Blue Care or respite care but these offers had not been responded to.  When the guardian went to CSY’s home at a time arranged with the family, YK would not come down from the upstairs storey to speak to the guardian.             

39.The Tribunal asked YK to explain why she had not taken the opportunity to speak to the guardian on that occasion.  YK responded that she was packing up to move accommodation, she went to the toilet and then took a shower.  She conceded that she had been at fault in not speaking to the guardian.  YK told the Tribunal that she would not refuse assistance for CSY and that she had good support from some friends from church.  She considered that these friends would help her find assistance for her husband. 

40. The social worker told the Tribunal that she had discussed the report of the Adult Guardian with YK who had not understood the enormity of the situation she was facing.  The social worker originally formed the view that informal support was adequate for decision making for CSY but after hearing the evidence at the hearing, she was now of the opinion that a formal appointment was needed.   
41. YK and her son do not support the appointment of a guardian as they contended that they were already providing adequate care and support for CSY.  In written submissions, the family disputed the evidence given to the Tribunal about CSY’s care in November 2009.  It was stated that YK was not working and had been with CSY from 8 am to 2 pm and then left home to pick up her son from school.  It was contended that CSY had been left alone to test his independence.
42. The family’s submissions stated that YK had discharged her husband from hospital as he was receiving poor treatment and there had been a lack of communication with the doctor.  It was further stated that CSY did not have medication from his doctor as this was a waste of time and money.  There was a denial that the son had stated that they did not have thickeners because they were too expensive but because the hospital had said there was no need for thickeners.  

CONCLUSION

43.CSY has many complex needs due to the effects of the strokes he suffered in 2007 and due to his aphasia.  His mobility is very limited and he has a moderate level of cognitive impairment.  He was assessed in 2007 when discharged from hospital as needing a range of services provided within the community and a funded care package was arranged to meet his needs.  That package was cancelled in November 2007 as a result of YK declining services that had been arranged for him. 

44.During 2008 social work support from the Prince Charles Hospital was endeavouring to provide regular day respite and activities and services to improve CSY’s mobility and quality of life but this support was not fully utilised and the family moved away from this support without leaving a forwarding address. Recommendations by allied health professionals as to CSY’s diet in 2007 and 2009 and medical advice to continue with medication designed to reduce the likelihood of further strokes was rejected by YK who appeared to put her convenience and cost factors above safety and care issues relating to her husband.  YK discharged her husband from hospital in September 2009 against medical advice before neurological investigations had been completed. 

45.The Tribunal formed an impression of YK that she lacked the ability to make reliable and consistent decisions that put the safety and care of her husband above the immediate interests of her son and herself.  Her assertions that she had not declined, and would not decline assistance for her husband conflicted with the evidence given by allied health professionals.  The Tribunal found YK’s assertions were not credible where the assertions were contradicted by evidence in the notes of the hospital throughout 2008 and in 2009. 

46.The Tribunal is satisfied that up until the time when the Adult Guardian lodged an application to this Tribunal, CSY was left at home by himself without adequate food or drink on regular occasions.  His medical needs were not being properly attended to and opportunities for meaningful access to the community were very limited.  Services that could have improved his mobility and quality of life had been cancelled and other services were not followed up at the relevant time.  

47.The Tribunal does not accept the evidence of YK that she will arrange whatever services are necessary with the help of her friends from church.  She had not arranged any such services by the date of the hearing on 18 February 2010 despite having been aware of the application made by the Adult Guardian for almost two months.  She had acted with a complete lack of interest and courtesy on the occasion when the guardian had attended at her home to discuss the provision of services for her husband.     

48. The Tribunal finds that informal support arrangements for decision making for CSY are not adequate, there are decisions that need to be made about CSY’s accommodation, service provision and health care, and without a formal appointment of a guardian CSY’s needs will not be adequately met and his interests will not be adequately protected. 

IF SO WHO SHOULD BE APPOINTED?

49.The Adult Guardian has sought appointment as CSY’s guardian.  At the hearing YK told the Tribunal that she would be prepared to be considered for the role of guardian if an appointment were to be made.  She submitted that she knew her husband well as a result of being married to him since 1994.

CONCLUSION

50.According to section 15 of the Act, the Tribunal must take into account the appropriateness considerations set out in that section when deciding whether a person is appropriate for appointment as a guardian. The first consideration is whether the person proposed for appointment is likely to apply the general principles set out in the Act in schedule 1. Section 11 of the Act states that any person who exercises a power under the Act for a matter in relation to an adult with impaired capacity must apply the general principles.

51.The Tribunal has examined the actions and decisions of YK since CSY was discharged from hospital in 2007 up until the date of the hearing of the application lodged by the Adult Guardian to ascertain whether she is likely to apply the general principles.  YK brought about the cancellation of a funded community services package, she had not continued with arrangements that had provided CSY with regular respite day services, she had not ensured that CSY’s medication was up to date, she had not taken steps to provide in-home nursing support and she moved CSY to accommodation that did not account for his limited mobility.  

52.Such actions and decisions were contrary to many of the general principles as she did not encourage CSY participating in community life, she did not ensure that CSY had the opportunity to participate in decision making about services, accommodation or health care and the rationale for many of her decisions were cost related and not related to CSY’s needs. 

53.The Tribunal finds that YK had not followed the general principles when acting as an informal decision maker for CSY and nothing said at the hearing gives the Tribunal comfort that YK would follow the general principles in the immediate future if she were to be appointed as a formal decision maker for CSY.

54.The Tribunal is satisfied that the Adult Guardian should be appointed as guardian for CSY as there is no other appropriate person available for appointment at this stage.  The Tribunal is confident that the Adult Guardian will apply the general principles and will make decisions for CSY in a way consistent with his proper care and protection.  

IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

55.CSY is unable to work due to the effects of the strokes and aphasia.  He had been in receipt of a disability support pension from Centrelink until that pension was suspended on 30 January 2010.  Centrelink had requested information as to the combined income of CSY and YK in order to calculate the correct amount of pension to pay to CSY but the required information was not provided by YK. 

56.At the hearing YK told the Tribunal that she had not been educated in English and she did not know how to fill in the form sent by Centrelink.  However the son denied that the family had received a letter from Centrelink containing a request for information.  The Public Trustee told the Tribunal that Centrelink had requested information about the combined income at the end of September 2009 and YK had refused to provide information to The Public Trustee which would have enabled The Public Trustee to satisfy Centrelink’s enquiries and retain payment of the pension to CSY.

57.The Public Trustee told the Tribunal that Centrelink had not been notified that the family home at Kedron had been rented out and there was a concern that an overpayment of pension may have been made resulting in a possible debt to be recovered from CSY. 

58.The Tribunal was told that YK had withdrawn $45,000 from two bank accounts in the sole name of CSY on 20 January 2010 at a time when The Public Trustee had been appointed as the administrator of CSY under the interim order of this Tribunal.  On 27 January 2010 YK had complained that she had no money to pay for rent, food, school uniforms and books and arrangements were made for $3,600 to be paid to her.  Around this time YK withdrew $29,000 from a joint bank account at the National Australia Bank but The Public Trustee was able to intervene and only one half of the account proceeds were paid to YK. 

59.YK confirmed these events and gave an explanation that she had not acted dishonestly but had acted to provide funds for her son to study at university in the future and to provide for the family in case of a “rainy day”.   She told the Tribunal that it was humiliating to have to queue up at the bank to ask permission to withdraw small amounts of money.  YK told the Tribunal that she would return the money when things were put back as they had been before the appointment of The Public Trustee as administrator for CSY.    

CONCLUSION

60.CSY is currently without income due to the suspension of his disability support pension.  He may have been overpaid the pension from the time that his property at Kedron was rented out.  Steps must be taken to restore his pension and to establish whether there is a debt owed to Centrelink.  His cash funds have decreased by $45,000 from bank accounts in his sole name and a joint account with his wife has been halved. 

61.His financial position has been adversely affected by the actions and inaction of his wife.  She has placed herself into a situation where she has preferred her own interests over the interests of CSY. She has removed significant funds from his bank accounts and she has placed him in jeopardy with Centrelink. The Tribunal considers that in the circumstances it is untenable to leave financial decision making about CSY’s affairs in the hands of his wife or to continue with the management of those affairs on an informal basis.     

62.It is imperative that an administrator is appointed as there are decisions to be made about CSY’s financial affairs and without the appointment of an administrator his needs will not be adequately met and his interests will not be adequately protected. 

IF SO WHO SHOULD BE APPOINTED?

63.The application proposes the appointment of The Public Trustee of Queensland as the administrator for CSY.  In view of the finding made by the Tribunal that it is untenable to leave decision making power in the hands of YK, the only option for appointment is The Public Trustee.

64.The Tribunal is confident that The Public Trustee of Queensland will apply the general principles and will make financial decisions for CSY in a way consistent with his proper care and protection

CONCLUSION

65.The Public Trustee is appointed as the administrator of CSY for all financial matters.  The Tribunal recommends that The Public Trustee takes steps to recover from YK the funds she withdrew from the bank accounts in the sole name of CSY.  The Tribunal directs that a report in writing is provided to the Tribunal by 30 June 2010 about progress in the recovery process if the recommendation is adopted by the administrator. 

66. The administrator is to provide a financial management plan to the Tribunal within four months and must provide accounts when requested.  Notification of this appointment must be provided to the Titles Office so notice can be lodged over the real property owned by CSY. The appointment of The Public Trustee as administrator of CSY will continue for a period of five years.