NAP
[2012] QCAT 69
•17 February 2012
| CITATION: | NAP [2012] QCAT 69 | |
| PARTIES: | NAP | |
| APPLICATION NUMBER: | GAA10131-11 / GAA173-12 |
| MATTER TYPE: | Guardianship and administration matters for adults | |
| HEARING DATE: | 2 February 2012 | |
| HEARD AT: | Maroochydore |
| DECISION OF: | Louise Mc Donald, Member |
| DELIVERED ON: | 17 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the appointment of the Adult Guardian as guardian for NAP for decisions about the following personal matters, accommodation and healthcare is continued. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. |
| CATCHWORDS: | Review of Guardianship appointment where some family members seek to relocate the adult Guardianship and Administration Act 2000, s 31, Schedule 1 General Principles |
APPEARANCES and REPRESENTATION (if any):
CP (applicant), PO, (proposed appointee), AP, GP, KP, Meagan Copley representing the Office of Adult Guardian, (current appointee)
REASONS FOR DECISION
The Tribunal initiated a periodic review of the appointment of the Adult Guardian as guardian for NAP, (hereafter the adult) under the order of 17 February 2010. This order appointed the Adult Guardian as guardian for accommodation and health care decisions for a period of two years. CP subsequently filed an application for review of the current appointment proposing the adult’s granddaughter, PO as appointee in lieu of the Adult Guardian.
The hearing was conducted under s 31 of the Guardianship and Administration Act 2000, extracted below.
S 31 Appointment review process
(1) The Tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate.
(2) At the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
(3) If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either”(a) continue its order making the appointment; or
(b) change its order making the appointment, including, for example, by”
(i) changing the terms of the appointment; or
(ii) removing an appointee; or
(iii) making a new appointment.
(4) However, the Tribunal may make an order removing an appointee only if the Tribunal considers”
(a) the appointee is no longer competent; or
(b) another person is more appropriate for appointment.(5) An appointee is no longer competent if, for example
(a) a relevant interest of the adult has not been, or is not being, adequately protected; or
(b) the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or
(c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or
(d) the appointee has otherwise contravened this Act.(6) The Tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation.
The Tribunal considered whether it would make a new appointment by turning its mind to the criteria under s 12 of the Act.
12 Appointment
(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.
Medical reports suggest that the adult has advanced dementia, and currently resides in a high care nursing unit in Buderim. Her diagnosis includes vascular dementia cerebrovascular disease, depression with melancholic features. KP, the adult’s daughter in law, indicated that she saw the adult daily and noted that she is occasionally dazed, and while she doesn’t recognise her or the adult’s son, GP, she appears to know them as familiar faces. GP who saw the adult every two days confirmed this. Megan Copley the Adult Guardian’s representative who visited her most recently in November 2011 describes the stage of the adult’s dementia as advanced. The Tribunal concluded that this information suggested that the adult continued to lack capacity for personal decisions.
The Tribunal considered whether there was a need for a decision regarding personal matters, and whether without an appointment her needs would not be adequately met or interests adequately protected.
The applicant claims that the adult is currently living in a nursing home which is unsuitable for her, and she seeks to facilitate the adult's move to Bundaberg to be near a large number of her extended family, including the applicant, her husband, and the proposed appointee. The applicant gave evidence that she had concerns in relation to the quality of care at the nursing home, and has had investigations initiated through the relevant authorities in relation to this. The applicant seeks that a family member be appointed to make the decision to relocate the adult to a nursing home in the Bundaberg area where the adult has a large number of extended family members, and where she herself resides.
The Office of Adult Guardian appointed under the order of 17 February 2010 to make accommodation and health care decisions have followed up the concerns raised to them by the applicant in June 2011, and as a result of their inquiries determined that there was no apparent neglect or other health related issues which required immediate removal of the adult. They have been working with the P family to consider alternatives once a possible appropriate facility is located in Bundaberg. The Adult Guardian’s representative indicated that once an appropriate facility is located in Bundaberg, it would then fall to the appointee to make a decision.
The Adult Guardian’s report of 20 January 2012 notes that the adult’s health and function may decline as her condition progresses, and therefore there remains a need for a decision maker with respect to health decisions.
GP gave evidence that he did not have concerns about the quality of care of the nursing home and had several visits each week in which he could observe the level of care. He indicated that he was not tied to a view about whether relocation should occur, but considered a number of factors should be considered, including medical advice about the effect on the adult.
[10] The evidence of CP and AP suggests that some family members consider that the adult should live closer to one part of the family in Bundaberg. They also continue to hold concerns about care levels in the existing facility.
[11] All parties who participated in the hearing considered there was an ongoing need for a guardian to make decisions with respect to accommodation and health.
[12] The Tribunal concludes that a decision needs to be made in relation to accommodation, and health, and that without a guardian her interests will not be adequately protected. Therefore, the Tribunal is satisfied that there are appropriate grounds for an appointment.
[13] The Tribunal may only remove an appointee where they are no longer competent, or another person is more appropriate. The applicant suggested that in putting forward her application proposing PO in the role of guardian was made on the basis that PO was more appropriate than the Adult Guardian for this role.
[14] The applicant indicated that she had proposed PO for this role, being a family member located in Bundaberg, who was youthful. She was aware that she had a close relationship with the adult, and was committed to her best interests.
[15] The exercise of substituted decision making under the act must be done within the decision making framework outlined in the General Principles stated at Schedule 1 of the Act. These are stated below:
PRINCIPLES
1 Presumption of capacity
An adult is presumed to have capacity for a matter.2 Same human rights
(1) The right of all adults to the same basic human rights regardless of a particular adult's capacity must be recognised and taken into account.(2) The importance of empowering an adult to exercise the adult's basic human rights must also be recognised and taken into account.
3 Individual value
An adult's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.4 Valued role as member of society
(1) An adult's right to be a valued member of society must be recognised and taken into account.
(2) Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.5 Participation in community life
The importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.6 Encouragement of self-reliance
The importance of encouraging and supporting an adult to achieve the adult's maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.7 Maximum participation, minimal limitations and substituted judgment
(1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
(2) Also, the importance of preserving, to the greatest extent practicable, an adult's right to make his or her own decisions must be taken into account.
(3) So, for example
(a) the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult's life; and
(b) to the greatest extent practicable, for exercising power for a matter for the adult, the adult's views and wishes are to be sought and taken into account; and
(c) a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult's rights.
(4) Also, the principle of substituted judgment must be used so that if, from the adult's previous actions, it is reasonably practicable to work out what the adult's views and wishes would be, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must take into account what the person or other entity considers would be the adult's views and wishes.
(5) However, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must do so in a way consistent with the adult's proper care and protection.
(6) Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.8 Maintenance of existing supportive relationships
The importance of maintaining an adult's existing supportive relationships must be taken into account.9 Maintenance of environment and values
(1) The importance of maintaining an adult's cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.(2) For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.
10 Appropriate to circumstances
Power for a matter should be exercised by an attorney for an adult in a way that is appropriate to the adult's characteristics and needs.11 Confidentiality
An adult's right to confidentiality of information about the adult must be recognised and taken into account.
[16] The Tribunal questioned the proposed and current appointees in relation to considerations involved in exercising a decision in relation to the accommodation matter.
[17] The Office of Adult Guardian, represented by Ms Copley indicated that they would consult all family members in relation to this decision. They would consider medical opinion about the effect of a move on the adult’s condition, noting that she is diagnosed with advanced dementia. They would seek to discern the effect of a change in living environment may have upon her, through engaging with professionals involved in her care. The Tribunal was satisfied that this approach reflected an appropriate application of the General Principles of the Act.
[18] GP indicated that he understood that the Adult Guardian had been appointed to the role of guardian due the conflict between him and the applicant. He noted that the two have not spoken for some time. He expressed some concerns that he may not be consulted in relation to decisions because of the existence of this family conflict, given PO’s potential allegiances being the applicant’s daughter.
[19] PO indicated surprise at this suggestion, and an ongoing willingness to consult with GP. She gave the Tribunal the impression that she saw herself as outside of the conflict between GP and CP.
[20] GP was open to consideration of a potential move but indicated that he would like to hear medical opinion, and see the accommodation. He accepts that there were a large number of family members in the Bundaberg area and that his may potentially be beneficial to the adult. He indicated that he supported the Bundaberg family’s greater involvement but was not satisfied that there were issues in relation to the quality of care she was receiving at the current Buderim facility.
[21] PO was observed to be a passionate advocate that the adult should return to Bundaberg to be amongst the bulk of the family, including many grandchildren. She indicated a commitment to consult with the relevant people including GP.
[22] Asked what factors she would base her decision upon, she indicated that she would consider, whether it was “a nice home”, and the large number of grandchildren could visit her. The proposed appointee clearly weighs heavily the importance of existing supportive relationships in Bundaberg, but these also need to be balanced with those in her current environment. She did indicate a willingness to consult in relation to these matters.
[23] Asked whether medical opinion would be a relevant consideration in her exercise of substituted decision making, given the advanced stage of the adult’s dementia, she stated: ‘She will be fine, She will pick up here with family around.” PO presented as wedded to the outcome of a move to Bundaberg, even where it may potentially be in contradiction to medical advice.
[24] The Tribunal considered that this approach did not reflect a willingness to consider that the exercise of decision making power in a proposed relocation may not be appropriate to the adult’s circumstances, and therefore PO did not satisfy the Tribunal that she will apply the general principle 10 of the Act effectively.
[25] Accordingly, the Tribunal does not consider that the proposed appointee, PO is a more appropriate than the current appointee. The appointment of the Adult Guardian is continued for accommodation and health decisions in accordance with orders outlined at page 1.
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