MD
[2017] QCAT 246
•27 June 2017
CITATION: | MD [2017] QCAT 246 |
PARTIES: | MD |
APPLICATION NUMBER: | GAA2113-17; GAA4990-17; GAA4991-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 16 June 2017 |
HEARD AT: | Southport |
DECISION OF: | Member McDonald |
DELIVERED ON: | 27 June 2017 |
DELIVERED AT: | Southport |
ORDERS MADE: | 1. The Public Guardian is appointed as guardian for MD for decisions about the following matters: a. With whom the adult has contact, and or visits; b. Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. It is reviewable and shall be reviewed in one year. 3. The application for the appointment of an administrator for MD is dismissed. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where there is an informal decision maker – where there is a family law dispute and high level of conflict – where there are contact decisions to be made – where there is an application for a protection order – where the informal decision maker manages the adult’s finances Guardianship and Administration Act 2000 (Qld), s 6, s 11, s 12, schedule 1, schedule 4 |
APPEARANCES: | MD, JG, KG, RM, TL, IG, SW LG, AB (Office of the Public Guardian) |
REASONS FOR DECISION
MD is a 31-year-old man with Down Syndrome living with his mother and her partner in their rental property. JG, MD’s mother, has been making informal decisions for MD throughout his life into his adulthood. MD’s former step father, KG, brought an application for the appointment an administrator claiming that JG was not managing his financial decisions appropriately as informal decision maker. The Public Guardian conducted an investigation, provided the Tribunal with its report, and participated in the hearing of these applications.
In response to the application filed by KG, JG sought to be formally appointed as guardian and administrator for MD. However, JG’s stated position was that she did not consider a formal appointment was necessary. JG stated that she considered that the application was vexatious and filed in the context of a high conflict marital separation and ongoing family law dispute between KG and JG. She expressed the view that KG was filing the application with vindictive motives.
For the Tribunal to make an appointment of a guardian or administrator, it must be satisfied that all the requirements of section 12 of the Guardianship and Administration Act 2000 (Qld) (the Act) are met. The Tribunal must apply the relevant provisions of the Act including the General Principles outlined at Schedule 1.
For the Tribunal to have jurisdiction, it must be satisfied that MD has impaired capacity for the matter. Medical evidence was submitted to the Tribunal accompanying JG’s application. Dr RG, MD’s General Practitioner of one year, provided a report dated 4 April 2017. Her report indicates that MD has Down Syndrome and an accompanying intellectual disability. She indicated that she considered that he is not able to make decisions freely and voluntarily. She noted that he was not able to make good choices about his lifestyle and thought he could not make simple decisions in this domain. She considered he was not able to manage his finances but could use his bank card. She noted he could not plan for the future. She considered he was unable to make simple financial decisions. She also stated that he had a severe communication impairment, and used gestures and sounds that only his mother was able to interpret.
Consultant psychiatrist Dr J in a consultation note to Dr RG assessed that MD has no understanding of financial information given that he is unable to retain information to make a valid decision. He stated that he was also unable to communicate that decision through talking or sign language. He noted that he was operating a basic bank account without mismanaging his funds, but that this was not sufficient for independent living. He noted that MD was unable to budget, make simple calculations or distribute money.
All parties at the hearing agreed that these reports accurately represented MD’s decision making ability.
The definition of capacity outlined at Schedule 4 of the Act requires that capacity for the matter requires a person to understand the nature and effect of decisions, freely and voluntarily make the decision, and communicate the decision in some way. The medical evidence indicates that he does not meet all three elements of the test for capacity. Consequently, for MD, presumption of capacity is rebutted by this evidence.
Guardianship Application
The Tribunal must also be satisfied that there is a need for decision in relation to personal matters and without an appointment MD’s needs will not be adequately met, or interests adequately protected.[1]
[1]Guardianship and Administration Act 2000 (Qld), s 12.
The allegation referred for investigation by the Public Guardian about personal decisions was that JG had been inappropriately supplying the adult with alcohol which he could not have due to a condition of gout. The Public Guardian made no finding in relation to this allegation.
KG indicated in his written statement to the Tribunal that he didn’t oppose JG being appointed as guardian for MD but his concerns related to his contact with MD and her representation for MD in the protection order application which would restrict his contact with MD. He indicated that he was concerned that he would never see MD again. He did not pursue the concerns about alcohol access. JG indicated that MD has one or two beers when he socialises at the RSL which was a standard part of his social life which he enjoyed, and did not have any impact upon his health. Mr RM, MD’s biological father, expressed no concern with this decision. The Tribunal also saw no concerns with her decision making on this issue, and notes it has not been pursued in KG’s application.
At hearing KG stated that he had been denied contact with MD since the marital separation. He stated that he had been in MD’s life since the 1990s and indicated that their relationship is significant for MD, where he lived with him for over 20 years. He indicated that since the marital separation, he considered that there had been occasions where his contact with MD was blocked. He considered that his contact with MD was being unreasonably restricted by JG. He informed the Tribunal that there is a current domestic violence Protection Order Application pending in the Magistrates Court. He informed the Tribunal that JG has acted on MD’s behalf in those proceedings to obtain a temporary protection order, and intends to continue to do so in the hearing of the matter. He stated that the most recent proceedings adjourned the hearing of the application until after the QCAT Tribunal hearing.
Miss LG, the daughter of both KG and JG, informed the Tribunal that it was her view that JG’s act to restrict KG’s contact with MD was an act of retaliation. She said it was her opinion that JG sought to restrict KG’s contact with MD (who is living with her) because her two daughters chose to live with KG following the marital separation and have no contact with her.
Mr SW identified himself as MD’s friend, who has regularly socialised with MD until recent contact restrictions with KG also obstructed his contact with MD. He said they have been unable to go to the movies or other social outings or to contact him by telephone. He expressed concern that MD’s usual social networks had been limited by these decisions.
JG advised that MD no longer has a phone because KG was using it to track his whereabouts. She indicated that she considered it was in his best interests and for his own protection to remove the use of his phone in these circumstances.
JG was asked whether she was able to be independent on the issue of the application for a Protection Order and decisions about contact. She informed the Tribunal that in her opinion she was acting in collaboration with MD’s biological father and sister in relation to decisions made on this and other issues. She did not think there was any basis for concern about her decisions, and informed the Tribunal that she sought to act in MD’s best interests.
JG’s Application for a Protection Order on behalf of MD indicated that she held concerns that KG had stalked MD by attending on his home and workplace, and “forcibly removed” him from each of these without permission. She indicated at the hearing, that she considered that MD did not want to have contact with KG.
Mr RM informed the Tribunal that he had no concerns with any personal decisions that JG had made about his son, and had full faith in her ongoing decisions being in MD’s best interest.
The Tribunal notes that there is a genuine dispute around the contact MD has with KG who has had a significant relationship with him prior to the marital separation. A Temporary Protection Order has been granted upon JG’s application on MD’s behalf and is proceeding to hearing in July. The hearing of the Protection Order application has been adjourned subject to the Tribunal’s decision on this issue.
The Tribunal notes that there is significant conflict in the context of a marital separation and ongoing family law dispute between KG and JG. The Tribunal finds that given the high level of conflict arising from these matters, that there is a conflict of interest in JG acting on behalf of MD in the legal matters around the Protection Order, and it is more appropriate for an independent third party to make decisions about this and the source of that dispute, contact issues.
In the circumstances of an ongoing dispute about MD’s contact with KG, the Tribunal finds a need for a decision about contact and legal matters not relating to financial decisions, and without an appointment, MD’s interest will not be adequately protected. The informal decision maker has a conflict of interest in this matter, being currently engaged in a family law dispute with KG, and with a current personal conflict with him. It is therefore more appropriate that the Public Guardian is appointed as guardian in respect of these specific issues. In relation to the balance of personal decision making matters, the Tribunal has no concerns with the decisions of the informal decision maker.
Administration Application
For the Tribunal to make an appointment it must be satisfied that there is a need for decisions to be made about financial matters and without an appointment MD’s needs will not be met or interests adequately protected.[2]
[2]Guardianship and Administration Act 2000 (Qld), s 12.
Allegations were brought to the Public Guardian that MD’s informal financial decision maker was using the adult’s funds for her own benefit. The Public Guardian was charged with responsibility for investigating this allegation.
The Public Guardian made no findings. Their investigation revealed that MD does not have his own bank account, and his fortnightly disability support pension is received into JG’s bank account. His wages are credited into his beneficiary account. The surplus Disability Support Pension is credited to his beneficiary account under JG’s name. JG transfers funds into beneficiary accounts allocated for MD’s savings. She has saved over $1600 for him in a term deposit. KG expressed concerns that this was insufficient savings given his regular surplus in living costs.
The Public Guardian identified that the bulk of the purchases shown on the bank statements are spent on takeaway shops, cinemas, gamers stores, liquor stores, grocery stores and RSLs.
The Public Guardian’s report made no findings about whether decisions were in breach of the informal decision maker’s obligations under section 11 of the Act to apply General Principle 10: to make decisions which are appropriate to the adult’s circumstances. At hearing, JG was questioned about her accounts, and the surplus funds. She indicated that MD spends his funds as he likes. He pays a third contribution to the rental shared between the three adults, and makes contributions for his food. She said that MD had no accumulated savings because he spent those funds himself. MD has access to his account and spends his funds on whatever he likes.
Mr RM, the adult’s father indicated that he was aware of the financial arrangements and had no concerns about financial decisions made with his son’s funds. He noted MD was always well looked after, well clothed and fed, and living in appropriate accommodation for which he paid his share.
The Public Guardian indicated that based on the further discussions at hearing they had no concerns about the financial decisions made by the informal decision maker. The Tribunal found no basis to find otherwise. The Tribunal considers that financial decisions are being made by the informal decision maker that are appropriate to the adult’s circumstances. The Tribunal find that the adult’s needs are being met and interests protected, and that there is therefore no need for the appointment of a formal administrator. The Tribunal must consider the least restrictive alternative in the exercise of its functions, and therefore dismisses the application for the appointment of an administrator for MD on this basis.
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