MM
[2017] QCAT 351
•20 September 2017
CITATION: | MM [2017] QCAT 351 | |
PARTIES: | MM | |
APPLICATION NUMBER: | GAA 5840-17, GAA 5841-17 | |
MATTER TYPE: | Guardianship and administration matters for adults | |
HEARING DATE: | 5 September 2017 | |
HEARD AT: | Cairns | |
DECISION OF: | Member Johnston | |
DELIVERED ON: | 20 September 2017 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | 1. The Public Guardian is appointed as guardian for MM for the following personal matters: accommodation; health care; contact and service provision. 2. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. 3. The Public Trustee of Queensland is appointed as administrator for MM for all financial matters. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. The administrator is to conduct a search to see if there is any land in the adult’s name and if so to lodge a notice of interest over such property or properties and provide a copy of the notice to the Tribunal within three (3) months. 6. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14 ) days of such changes: (a) give a copy of this order to the Registrar of Titles; and (b) give a notice to the Registrar about the changes of the adult’s interest in another property. 7. This appointment remains current until further order of the Tribunal. | |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – Capacity Of Adult – capacity of an elderly woman diagnosed with dementia to manage her personal and financial matters – husband unwilling or unable to support her transition to residential care. Guardianship and Administration Act 2000 (Qld), s 12, s 14, s 15 | |
APPEARANCES: | ||
| MM the adult MS husband of the adult CC psychologist Queensland Health support person for the adult Dr SE applicant and Geriatrician Queensland Health Dr RC Geriatrician Queensland Health FL social worker Queensland Health BG Public Guardian representative HS Public Trustee Queensland representative | ||
REASONS FOR DECISION
Background
MM was admitted to the Cairns Hospital with a cognitive impairment from vascular dementia.
The medical team providing her care were concerned for MM’s health, safety and welfare at home on her own. While initially supporting her return home to her husband’s care the medical team were of the view that MS was not able to provide to her the level of care and support that was needed to assist her return to her husband’s care.
The medical team are of the view that MM needs intensive 24-hour care and support and that MS was simply not able to provide that level of care.
MS has admitted to the medical team that he is not managing and cannot provide the level of care and support needed but appears to be advising MM that he will take her home.
The medical team have recommended residential care and have brought the application because MS has refused permission for the medical team to discuss this issue with her and he is currently refusing to meet the medical team or plan any support for MM in the long-term.
The medical team do not believe that MS is a suitable person to be appointed as a guardian or administrator and are concerned as to her current vulnerability, health and safety risks, potential isolation and the risks that MS might present to staff and family members who are trying to assist her.
Does MM have capacity to manage her own affairs?
The applicant Dr SE provided a Health Professional Report by Dr CS from the Geriatrics Team at the Cairns Hospital. Dr CS in the Report states that MM suffers from the effects of a stroke on 28 September 2015 and from the effects of vascular dementia. Dr CS is of the view that MM is only able to make simple decisions, that her ability to make more complex decisions is impaired.
Dr NJ Neuropsychologist was engaged to undertake an assessment of MM’s capacity. In Dr NJ’s report, Dr NJ concludes that MM does not have decision-making capacity. Dr NJ supports the application to QCAT, and has expressed concerns regarding MM’s vulnerability.
Dr RC told the Tribunal that Dr RC supports Dr NJ’s conclusions regarding MM’s capacity and believes she does not have capacity.
Dr SE’s evidence was that MM’s abilities had been impaired by a combination of the stroke in 2015 and her vascular dementia. Dr SE’s was of the view that MM’s care needs are high and could only be met in a residential care situation where she received full-time care. Dr SE stated that MM’s cognitive deficits were due to her vascular dementia. MM is unable to manage her daily care. She has problems with abstract thinking; complex information; has memory impairments and has difficulty on a day-to-day basis making decisions. Dr SE stated that MM was a bright and intelligent person who would benefit from social interaction. Dr SE was of the view that MM needed intensive 24-hour care and she was at considerable risk of harm without that level of support.
FL told the Tribunal that the medical team were concerned that MS was not able to provide full-time care for MM. MS leaves the family home for lengthy periods. MM is left on a chair on her own with some fruit and water for lengthy periods. MM is alleged to have sat on the chair all day leaving her incontinence pads beside her. The medical team are of the view that she needs full time care and that MS cannot provide that level of care.
MS told the Tribunal that his wife had come a long way since she had been admitted into hospital. She was walking much better. He believes that there is nothing wrong with her apart from the effects of the stroke she experienced in 2015. He told the Tribunal that his wife could feed and bath herself; that Blue Care could help and he could install rails.
MM told the Tribunal that whilst her balance was affected she still had capacity to make her own decisions. MM told the Tribunal that she trusted MS to provide all the support she needed and she was looking forward to returning home. MM told the Tribunal that if she needed help, her husband MS would provide any assistance needed. MM did acknowledge that she was suffering problems with her memory and did have problems remembering things.
SK, MM’s son told the Tribunal that it was necessary for her son K and his wife R to help MS clean up his mother to get her ready for the ambulance to go to hospital because she was dehydrated, urine soaked and in generally poor state. He alleged that on other occasions his mother had been left in bed all day and had been unable to get out of bed because of her frailty.
The Tribunal makes the following findings:
(a)MM suffered a stroke in 2015 that had a major impact on her health;
(b)MM has been diagnosed with vascular dementia, which has affected her cognitive functioning;
(c)The cognitive impairment has affected her memory and executive functioning;
(d)MM has no insight into her ability to function independently in the community;
(e)MM is very dependent on others to assist her with her daily living;
(f)MM is unable to recognise the high level of care that she requires.
The presumption of capacity for personal and financial matters is rebutted.
Does MM need a guardian to help her with personal, health and lifestyle decisions?
BG from the Public Guardian told the Tribunal that it’s believed based on the evidence of the medical in relation to the high level of care needed, that MM needed nursing placement. BG was of the view that left home alone, MM’s needs were not being met and in relation to her health, safety and well-being she was being put at risk.
BG also recommended the appointment of a guardian for healthcare because MM had a range of health issues and there would be a need for future health care decisions.
SK told the Tribunal that MS had prevented him and his brother D from having access to their mother MM. He would like the opportunity to speak to his mother on the telephone and the opportunity to visit her. He said that his mother had been cut off from her friends. He would support a guardian being appointed for contact.
BG stated that there had been issues with MS’s contact with MM at the Opera Ward of the Cairns Hospital because there had been loud and aggressive behaviour towards MM. Dr SE had also raised concerns about MS being loud and aggressive towards staff at the hospital.
BG submitted that any appointment should include service provision as that would allow for respite care and service provision pending MM’s placement in a nursing home.
MS denied that he had refused access by family members to MM. He denied he had been loud or aggressive to his wife or to staff at the hospital.
Dr SE, Dr RC, FL, BG and SK all support the appointment of a guardian for decisions involving: accommodation, healthcare, provision of services, and contact.
MS was of the view that there was no need for the appointment of a guardian at all, as his wife, MM had capacity.
The Tribunal makes the following findings:
(a)MM’s level of care needs require a nursing placement;
(b)The members of the treating team raised concerns about MS being loud and aggressive towards MM and the staff at Cairns Hospital;
(c)SK has made complaints about being denied contact or access to his mother MM;
(d)MM’s cluster of health issues will require future health care decisions.
The Tribunal concludes:
(a)There is likely unreasonable risks to MM health and welfare;
(b)Without an appointment MM interests will not be adequate.
Who is most appropriate as MM’s guardian?
Dr SE, Dr RC, FL, BG and SK all support the appointment of the Public Guardian for decisions involving: accommodation, healthcare, provision of services, and contact. The basis of the view of the medical team and Mr S are set out above. The medical team believe that MM needs intensive 24-hour care. The medical team are of the view that MS is not able to provide that level of care and that if MM is returned home her health, safety and well-being will be put at high risk. The medical team believe that they owe MM a duty of care to protect her from harm and promote her safety and well-being.
MS is opposed to the appointment of guardian, as he believes that his wife has capacity.
The Tribunal would like to make it absolutely clear that it accepts MS’s evidence that he is only interested in his wife’s best interests and that he wants to do all possible to support her.
The Tribunal is of the view however that MS and MM’s relationship is enmeshed mutually dependent relationship. MS cannot see the level of care that MM actually needs. He can only see that MM is his partner and that she should be living at home with him.
The Tribunal also notes that MS attended the hearing in a highly emotional and agitated state. He was clearly motivated by his wife’s well-being but had all sorts of difficulties actually remaining in control of his emotions. The Tribunal complements MS for controlling his behaviour during the hearing. The Tribunal could also see how MS could become loud and aggressive when presented with information or advice contrary to his own view of MM’s health and well-being.
The Tribunal makes the following findings in relation to appropriateness:
(a)MS wants the best for MM;
(b)MS lacks insight into MM’s ability to return home;
(c)MS has unrealistic expectations about MM’s functioning capabilities;
(d)His lack of insight and unrealistic expectations cloud his judgement in making the best decisions for MM;
(e)There are complex family dynamics and an enmeshed relationship involving MS and MM;
(f)MM is very dependent on MS;
(g)An independent professional guardian would be able to involve MS and MM in decision-making but had the ability to make objective personal decisions for MM based on her best interests.
The Tribunal is of the view in these circumstances where there are:
(a)High emotional feelings expressed MS;
(b)A lack of insight into MM’s care needs by MS;
(c)High potential for conflict with MS that the appointment of an independent professional guardian is most appropriate.
The Tribunal also believes that MS is unable to meet his wife’s care needs because of the high level of support that is required. This is not a reflection on MS’s ability to care for her but rather her high needs, which require intensive 24-hour support.
The Public guardian is appointed for one year in relation to the following personal matters:
(a)Healthcare;
(b)service provision;
(c)accommodation and
(d)contact.
Does MM have a need for an administrator?
HS told the Tribunal that the Public Trustee of Queensland was waiting to hear back from Centrelink before preparing a budget to meet MM’s needs. A search of the Titles Office shows a property registered in MM name, which is unencumbered.
MS stated that there was a mortgage to the Westpac Banking Corporation around $200,000 over the property. He also declared that he had been declared bankrupt many years ago.
HS told the Tribunal that there were no SPER debts and that MM received a pension.
MS had no idea what MM received by way of pension. He said that the house payments were in arrears; that power was connected to the property and that MM’s mobile was prepaid. He indicated to the Tribunal that they had a joint bank account and a joint debit card. MS indicated that his daughter and her partner were living in the residence paying $200 a week in rent.
The medical evidence is that MM does not have capacity to manage her financial affairs. There will be a need for an Income and Assets Assessment to be lodged with Centrelink so that an assessment can be made of the Resident Accommodation Deposit in the Daily Accommodation Payment.
The evidence before the Tribunal is that the medical team have tried returning MM home but are now of the view that this is not sustainable and that MM is placed at too high a risk in terms of her health, safety and well-being at home. The medical team have tried to engage with MS about future planning for MM and he has refused to cooperate.
The Tribunal has already noted in these reasons that MS wants to do the best by MM. The Tribunal is however, of the view that MS’s judgement is clouded. He is too close to his partner emotionally and unable to think clearly about her needs. He cannot accept that she needs intensive 24-hour support.
The Tribunal in these circumstances accepts there is a need for an administrator. MS is so emotionally entwined with MM that his judgement is severely impaired. The Tribunal from observing MS at the hearing believes that MS would have considerable difficulties actioning a plan for his wife’s move into residential care. MM needs an administrator that can fund her placement in residential care.
The Tribunal finds that MM receives a pension and has an interest in her home that need to be managed to meet her future needs.
Dr SE, Dr RC, FL, BG and SK all support the appointment of the Public Trustee of Queensland as administrator for decisions involving MM’s financial affairs.
MS does not see a need for the appointment of an administrator and is opposed to the appointment of the Public Trustee of Queensland
The Tribunal makes the following findings in relation to appropriateness:
(a)There had been concerns expressed by Queensland Health regarding MS’s inability to support MM needs and best interests;
(b)MS does not believe that MM needs residential care and not supportive of plans to place MM in a nursing home;
(c)The Public Trustee of Queensland is an independent professional administrator who can assist MM with her financial affairs;
(d)The Public Trustee of Queensland will be able to work with the appointed guardian to ensure that MM’s best interests are taken into account;
(e)The Public Trustee of Queensland will be able to work with MM and MS around making the best decisions in relation to MM’s financial affairs.
The Tribunal reserved its decision because it was concerned by MS’s presentation. He presented in a strongly opinionated, emotional, and volatile manner. He expressed negative and derogative comments about most of the medical professionals who had been involved with his wife’s care. The Tribunal recommends to MS that he seek counselling or other support to deal with relationship and other conflict issues. The Tribunal has no doubt that he is motivated to do well by his partner but he is not in a position to act in her best interests for the reasons set out above. The appointment of an independent guardian and administrator will allow MM and MS to be consulted around decision-making.
The Tribunal makes the following orders listed below.
The Public Guardian is appointed as guardian for MM for the following personal matters: accommodation; health care; contact and service provision.
Unless the Tribunal orders otherwise, this appointment remains current for one (1) year.
The Public Trustee of Queensland is appointed as administrator for MM for all financial matters.
The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
The administrator is to conduct a search to see if there is any land in the adult’s name and if so to lodge a notice of interest over such property or properties and provide a copy of the notice to the Tribunal within three (3) months.
If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
(a)give a copy of this order to the Registrar of Titles; and
(b)give a notice to the Registrar about changes of the adult’s interest in another property.
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