MH
[2015] QCAT 548
•23 September 2015
| CITATION: | MH [2015] QCAT 548 |
| PARTIES: | MH (Adult) |
| APPLICATION NUMBER: | G30409 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 September 2015 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member Traves |
| DELIVERED ON: | 23 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | GUARDIANSHIP 1. CH is appointed guardian for MH for the following personal matters only: (a) Accommodation; (b) Health care; and (c) Provision of services. 2. The Public Guardian is appointed guardian for MH for the following personal matter only: (a) With whom and when MH has contact and/or visits. 3. The appointments remain current until further order of the Tribunal. The appointments are reviewable and are to be reviewed in one (1) year. ADMINISTRATION 1. CH is appointed administrator for MH for all financial matters. 2. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter: (i) Copies of the adult’s bank statements/passbooks/term deposits for the past year. (ii) Copy of the latest accommodation account or statement for rental property or other accommodation for the period (iii) Copy of receipts for any individual items purchased in excess of $500 (iv) For any shares, investments or superannuation, a copy of all dividend notices or statements received during the year; (v) A signed and witnessed Declaration as to continuing appropriateness for appointment. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – adult is the biological son and stepson of proposed appointees – conflict between proposed appointees – suitability of proposed appointees in view of the needs of the adult. Guardianship and Administration Act 2000 ss 12, 15, 16, sch 4 |
REASONS FOR DECISION
This matter concerns the appointment of a guardian and administrator for the adult, MH. MH is a 22-year-old young man who has Down’s Syndrome. He also has been diagnosed with Hypothyrodism, Congenital Heart Disease, Psoriasis and Folliculitis.[1] He has lived for most of his life with his father, JH and his stepmother CH. JH and CH separated in May 2015. There is significant conflict at the present time between them.
[1] Medical Report of Dr K dated 22 June 2015.
On 24 June 2015, CH made an application to the Tribunal to be appointed MH’s administrator and guardian.
The Tribunal made an interim order appointing CH guardian for MH for accommodation decisions, contact visit decisions, health care decisions and for decisions relating to the provision of services for three (3) months on 24 June 2015. CH was also appointed administrator for MH for all financial matters.
On 10 July 2015 MH’s father, JH, applied to be MH’s administrator and guardian.
Section 12 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) provides:
(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.
(2) The appointment may be on terms considered appropriate by the tribunal.
The issues for the Tribunal are:
(a) Whether the adult has capacity to make decisions about personal and financial matters?
(b) If not, whether there is a need to appoint a substitute decision-maker for personal and/or financial decisions?
(c) If there is a need, who would be the most appropriate person to appoint in respect of that need?
Capacity
Before the Tribunal can appoint a guardian or administrator for an adult, the Tribunal must be satisfied the adult has impaired capacity for the matter.[2]
[2] GAA Act s 12(1)(a).
Schedule 4 to the GAA Act defines capacity for a person for a matter to mean the person is capable of—
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
If any of these elements are missing, a person has impaired capacity.
Dr K states in her Medical Report that MH has Down’s Syndrome and that he is not capable of making decisions freely and voluntarily.[3] Dr K is of the opinion that MH lacks the ability to understand and to make decisions about personal and financial matters.[4] Dr K also notes in her report that, in terms of his ability to communicate his wishes to others, MH is not understood by other people.[5]
[3] Report of Dr K dated 22 June 2015.
[4] Ibid at 9.
[5] Ibid at 8.
Dr K’s evidence is the only medical evidence relevant to capacity submitted to the Tribunal. I have considered the evidence concerning MH’s lack of capacity and accept this evidence.
Accordingly, the Tribunal finds that the presumption of capacity in respect of MH has been rebutted for decision making relating to personal and financial matters.
Need for an appointment
As a consequence of JH and CH separating, there is a need for a decision to be made in respect of accommodation for MH. He currently resides with CH as a result of the terms of the Interim Order made on 24 June 2015. The accommodation CH and MH share is temporary and a decision will have to be made in the near future as to where MH lives. Again, as a consequence of his parents’ separation, decisions will need to be made as to with whom and when MH has contact or visits. When MH is settled as far as his accommodation arrangements are concerned, decisions will need to be made in relation to accessing appropriate disability services on his behalf. Finally, both parents acknowledged in the course of the hearing that MH needs health care decisions to be made on his behalf relating in particular to his thyroid and skin conditions. The Tribunal accepts the written and oral evidence provided by JH and CH, that there is a need for decisions to be made in relation to matters concerning MH’s personal and financial matters. Most obviously, the concerns before the Tribunal relate to the need to make a decision as to where MH is to reside.
Accordingly, the Tribunal finds there is a need for decisions to be made concerning MH in relation to accommodation, health care, the provision of services, with whom MH has contact and visits and with respect to financial matters.
Suitability of Appointee
The difficult issue in this matter is as to whom is the most appropriate person to act as MH’s guardian and administrator, given the nature and extent of his impairment and the type of decisions that need to be made.
The Tribunal may appoint the Public Guardian for a matter only if there is no other appropriate person available for appointment.[6] Here, both JH and CH are available for appointment as guardian and administrator for MH. It is not possible at this stage, given the level of conflict between them, to make a joint appointment.
[6] GAA Act s 14(2).
In deciding whether a person is appropriate for appointment as guardian or administrator the Tribunal must consider certain matters.[7]
[7] Ibid s 15.
These include:
(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.
JH has been a dedicated and loving father to MH since MH’s biological mother left when MH was 6 months old. JH clearly is devoted to MH and there are many character references and letters from close family and friends which indicate that JH and his son have a “special bond”.
CH has had a significant role in MH’s life. CH states that she has “been his mother for almost 22 years”.[8] JH states he and CH have been in a relationship on and off for the last 12 years.[9] The Tribunal finds that for most of MH’s life, CH has looked after MH and, in JH’s words, “played a sizeable role” in his life.[10] CH had the day-to-day care of MH for that time[11] and in her words, was the person who “tucked him into bed every night”. Both parents clearly love MH and both naturally want to be as involved as much as possible in his life.
[8] Financial Management Plan – CH dated 22 July 2015 at 11.
[9] Submissions by JH dated 9 September 2015 at [8].
[10] Ibid at [14].
[11] Ibid at [16].
The issue for the Tribunal, however, is who is in a better position to assist MH to make decisions in his best interests in the areas of identified need and taking into account the considerations in s 15 of GAA Act.
Guardianship
MH has special needs due to the nature and extent of his impairment. These include his daily personal care and health care. As JH was the primary breadwinner for the majority of their time together, CH has been primarily responsible and the informal decision maker for MH in these respects for many years.
CH submitted that for the few months that she was not residing with JH and MH following their most recent separation that MH lost weight and that his skin conditions were not adequately treated. It is also noted that JH, to his credit, admitted during the course of the hearing that MH missed CH for that time. This suggests that CH and MH are close and that MH feels supported, in a physical and emotional sense, by her. CH also stated during the hearing that she is often the only person who can understand him. These factors support the view that CH would be in a position to take into account MH’s views and to exercise any decision making power in a way that is appropriate to MH’s characteristics and needs.[12]
[12] GAA Act sch 1 – General principles ss 7, 10.
MH’s emotional needs are high. This is relevant as to where it would be in his best interests to live which, practically, lies at the heart of the issue as to whom would be the most appropriate person to make accommodation decisions on his behalf.
The evidence before the Tribunal was that MH is sensitive to tension and disharmony and requires comforting and reassuring on occasions. The Tribunal finds that CH, who has been the primary carer for many years, is the person better able to provide him with the steadiness of time and care necessary for the satisfaction of his emotional security. The Tribunal notes in that respect JH’s sincere and heartfelt offer to give up his employment in order to care full time for MH. The Tribunal does not doubt the genuineness of this offer but for JH to cease his employment has potential to further complicate and destabilise an already difficult situation.
There is a need for MH to be able to access disability services that are age appropriate and offer him some intellectual challenge. Both parents were genuinely motivated to assist MH in this regard but CH, as the person who has been the primary carer of MH for at least the last ten years of his life, is more appropriate to assist him to make decisions about which services would be most appropriate for his needs.
MH is also used to CH attending health care appointments with him, regulating his medications and applying any necessary treatments or creams for his skin conditions. The evidence is that CH has always performed these responsibilities for MH’s health care with attentiveness and diligence. For these reasons, the Tribunal finds that CH would be the most appropriate person to make health care decisions on his behalf.
Accordingly, the Tribunal finds that in view of these considerations and having regard to the written material provided and to the evidence presented by both applicants at the hearing, that CH is the most appropriate person to be appointed Guardian for MH regarding personal matters relating to accommodation, health care and the provision of services.
In relation to decisions with respect to with whom MH has contact and/or visits, the Tribunal notes that there is significant conflict at present between CH and JH to the point where CH has been granted an apprehended violence order against JH. CH also states that when they were separated that JH made contact with MH impossible.[13] The Tribunal finds, in view of this conflict, that neither party would be an appropriate person to assist MH to make decisions in his best interests regarding visits or contact with family members, in particular with the other parent.
[13] Application for administration/guardianship dated 17 June 2015 at 3.
Accordingly, the Tribunal finds that the most appropriate person to appoint as Guardian with respect to decisions regarding contact and visits is the Public Guardian. The Tribunal therefore appoints the Public Guardian as Guardian for MH in relation to decisions regarding contact and visits.
Administration
MH receives approximately $860 a fortnight by way of a Disability Pension. The Medical Report provided by Dr K states that MH lacks capacity in respect of all financial decisions.[14]
[14] Report of Dr K dated 22 June 2015 at 9.
This is the only medical evidence supplied to the Tribunal. Both parents agree that MH has no understanding of finance matters. The Tribunal accepts this evidence and finds that MH lacks capacity in relation to financial decisions.
CH states in her Financial Management Plan that MH needs assistance managing his income and paying for accommodation, food, medical appointments, medications, clothes and recreational outings travel expenses and utility bills.[15]
[15] Financial Management Plan for proposed administrators – CH 22 July 2015.
The Tribunal accepts this evidence and finds there is a need for an administrator to be appointed.
CH satisfies the statutory requirements to be an administrator.[16]
[16] GAA Act s16.
As many of the financial decisions to be made will be of a day-to-day nature or involve expenses incurred in taking MH to medical appointments, it is more appropriate, particularly if JH moves to New South Wales, for CH to be appointed administrator.[17]
[17] Ibid s 15.
The Tribunal accordingly appoints CH administrator for MH for all financial matters.
All appointments are until further order and are reviewable one year from the date of appointment.
0
0
0