MH
[2015] QCAT 432
•23 September 2015
| CITATION: | MH [2015] QCAT 432 |
| PARTIES: | MH (Adult) |
| APPLICATION NUMBER: | GAA5965-15; GAA5966-15; GAA6678-15; GAA6679-15 |
| 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 (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 step son of proposed appointees – conflict between proposed appointees – suitability of proposed appointees in view of the needs of the adult. Guardianship and Administration Act 2000 (Qld) s12, s15, s16, Schedule 4. | ||
REASONS FOR DECISION
This matter concerns the appointment of a guardian and administrator for the adult, MH. M 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 step mother CH. J 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 M 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. Ms H was also appointed administrator for M for all financial matters.
On 10 July 2015 M’s father, JH, applied to be M’s administrator and guardian.
Section 12 of the Guardianship and Administration Act 2000 (Qld) 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]GAAT 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 M has Down’s Syndrome and that he is not capable of making decisions freely and voluntarily.[3] Dr K is of the opinion that M 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, he 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 M’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 J and C separating, there is a need for a decision to be made in respect of accommodation for M. He currently resides with C as a result of the terms of the Interim Order made on 24 June 2015. The accommodation C and M share is temporary and a decision will have to be made in the near future as to where M lives. Again, as a consequence of his parents’ separation, decisions will need to be made as to with whom and when M has contact or visits. When M 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 M 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 M’s personal and financial matters. Most obviously the concerns before the Tribunal relate to the need to make a decision as to where M is to reside.
Accordingly, the Tribunal finds there is a need for decisions to be made concerning M in relation to accommodation, health care, the provision of services, with whom M 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 M’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 M. 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]GAA Act 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 M since M’s biological mother left when M was 6 months old. J clearly is devoted to M and there are many character references and letters from close family and friends which indicate that J and his son have a “special bond”.
C has had a significant role in M’s life. C states that she has “been his mother for almost 22 years”.[8] J states he and C have been in a relationship on and off for the last 12 years.[9] The Tribunal finds that for most of M’s life, C has looked after M and, in J’s words, “played a sizeable role” in his life.[10] C had the day-to-day care of M for that time[11] and in her words, was the person who “tucked him into bed every night”. Both parents clearly love M 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]Submissions by JH dated 9 September 2015 at [14].
[11]Ibid at [16].
The issue for the Tribunal however, is who is in a better position to assist M to make decisions in his best interests in the areas of identified need and taking into account the considerations in s15 of the Guardianship and Administration Act 2000.
Guardianship
M has special needs due to the nature and extent of his impairment. These include his daily personal care and health care. As J was the primary breadwinner for the majority of their time together, C has been primarily responsible and the informal decision maker for M in these respects for many years.
C submitted that for the few months that she was not residing with J and M following their most recent separation that M lost weight and that his skin conditions were not adequately treated. It is also noted that J, to his credit, admitted during the course of the hearing that M missed C for that time. This suggests that C and M are close and that M feels supported, in a physical and emotional sense, by her. C also stated during the hearing that she is often the only person who can understand him. These factors support the view that C would be in a position to take into account M’s views and to exercise any decision making power in a way that is appropriate to M’s characteristics and needs.[12]
[12]GAA Act, Schedule 1 – General principles, ss 7 and 10.
M’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 M is sensitive to tension and disharmony and requires comforting and reassuring on occasions. The Tribunal finds that C, 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 J’s sincere and heartfelt offer to give up his employment in order to care full time for M. The Tribunal does not doubt the genuineness of this offer but for J to cease his employment has potential to further complicate and destabilise an already difficult situation.
There is a need for M to be able to access disability services that are age appropriate and offer him some intellectual challenge. Both parents were genuinely motivated to assist M in this regard but C, as the person who has been the primary carer of M 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.
M is also used to C attending health care appointments with him, regulating his medications and applying any necessary treatments or creams for his skin conditions. The evidence is that C has always performed these responsibilities for M’s health care with attentiveness and diligence. For these reasons, the Tribunal finds that C 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 M regarding personal matters relating to accommodation, health care and the provision of services.
In relation to decisions with respect to with whom M has contact and/or visits, the Tribunal notes that there is significant conflict at present between C and JH to the point where C has been granted an apprehended violence order against J. C also states that when they were separated that J made contact with M impossible.[13] The Tribunal finds, in view of this conflict, that neither party would be an appropriate person to assist M 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
M receives approximately $860 a fortnight by way of a Disability Pension. The Medical Report provided by Dr K states that M 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 M has no understanding of finance matters. The Tribunal accepts this evidence and finds that M lacks capacity in relation to financial decisions.
CH states in her Financial Management Plan that M 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.
C satisfies the statutory requirements to be an administrator.[16]
[16]GAA Act s 16.
As many of the financial decisions to be made will be of a day to day nature or involve expenses incurred in taking M to medical appointments, it is more appropriate, particularly if JH moves to New South Wales, for C to be appointed administrator.[17]
[17]GAA Act s 15.
The Tribunal accordingly appoints CH administrator for MH for all financial matters.
All appointments are until further order and reviewable one year from the date of appointment.
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