NHI

[2022] QCAT 366

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NHI [2022] QCAT 366

PARTIES:

In applications about matters concerning NHI

APPLICATION NO/S:

GAA8771-22
GAA8772-22
GAA9947-22
GAA9948-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 October 2022

HEARING DATE:

21 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Casey

ORDERS:

1.   Public Guardian is appointed as guardian for NHI for the following personal matters:

a)   accommodation; and

b)     health care

2.   This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

3.   The Public Trustee of Queensland is appointed as administrator for NHI for all financial matters.

4.   The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

5.   The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

6.   This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 

7.   Before 21 December 2022 the administrator must:

a)   Record the appointment as administrator on any property registered in NHI’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision

b)     Provide confirmation to the Tribunal that this has been completed by providing:

(i)       A copy of the title search conducted identifying NHI’s property; and

(ii)      A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by NHI.

c)   If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.

d)     If the ownership of any property of NHI changes in any way or NHI acquires an interest in another property the administrator must, within fourteen (14) days of such changes:

(i)       Give a copy of this order to the Registrar of Titles; and

(ii)      Give a notice to the Tribunal about the changes to NHI’s interest in another property.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – need for the appointment of a guardian and an administrator

Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 5, s 11, s 12, s 14, s 15, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’), s 61, s 118
Powers of Attorney Act 1998 (Qld) (‘POAA’), s 62
Human Rights Act 2019 (Qld) (‘HRA’), s 13, s 17, s 19,
s 24, s 25, s 48

APPEARANCES: 

Applicants:

FVK – social worker (videoconference)

YLH – friend of the adult (telephone)

Others:

NHI – the adult (videoconference with first applicant)

NRM – neighbour (telephone)

NRA – neighbour (telephone with NRM)

ESM – friend (telephone)

Two representatives of the Public Trustee of Queensland (telephone)

REM – solicitor, seeking leave to represent YLH (telephone with YLH)

REASONS FOR DECISION

1. NHI is a 90-year old single male receiving treatment in a regional hospital. He has no known family.  Prior to his hospital admission in July 2022, NHI was residing alone on his remote rural cattle property, approximately 70 kilometres from the nearest town. There were no formal supports in place.

2. On 18 August 2022, the Tribunal received an application from FVK, a social worker from the adult’s treating team, seeking the appointments of the Public Guardian and the Public Trustee of Queensland as guardian and administrator, respectively, for the adult.   On the same day, the Tribunal received an application from FVK for the Tribunal to grant an interim order appointing the Public Guardian and Public Trustee of Queensland as the adult’s guardian and administrator, respectively.

3. In an interim order of 19 August 2022, the Tribunal dismissed the application for the appointment of a guardian and appointing the Public Trustee of Queensland as administrator for the adult for all financial matters.[1]  The Tribunal directed the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.  The administration appointment was to remain current for three (3) months or, if the Tribunal were to make a further order in this matter, until the date of the further order, whichever was to be the sooner.

   [1]Guardianship and Administration Act 2000 (Qld) (‘GAA’), Section 12.

4. On 19 September 2022, the Tribunal received an application from YLH, a friend of the adult, proposing himself as his guardian and administrator for the adult.

5. The presiding member abridged time to allow the application from YLH to proceed[2] and granted leave for REM to represent YLH.[3]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’), s 61; GAA ss 110, 118.

   [3]GAA, Section 124.

   The Legislation

6. The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult.

7. The adult is presumed to have capacity in accordance with General Principle 1 of the GAA.[4]

   [4]GAA, Section 11B.

8. The GAA defines capacity as follows:[5]

   Capacity, for a person for a matter, means the person is capable of -

   (a) understanding the nature and effect of decisions about a matter; and

   (b) freely and voluntarily making decisions about the matter; and

   (c) communicating the decisions in some way.

   [5]GAA, Schedule 4 (definition of ‘capacity’).

9. In the determination of capacity for an adult for a matter, the Tribunal must consider the type of decisions to be made and the support available to the adult from the adult’s existing support network.[6]

   [6]GAA, Section 5(c).

10. The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.

11. The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.

12. The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.

    Does NHI have capacity to make personal and financial decisions?

    Evidence

13. The Tribunal received written medical evidence in relation to the adult’s decision-making capacity.  The reports are outlined below.

14. In a report dated 16 August 2022, Dr Lisa Kelly, a geriatrician, states that the adult was diagnosed during the current hospital admission with dementia of mixed aetiology.  The geriatrician provides that the adult attained a score of 21/30 on the Rowland Universal Dementia Assessment Scale administered by an occupational therapist on 4 August 2022, and that the score is indicative of a cognitive impairment. Dr Kelly states that the adult’s level of functioning could not be supported at his home, as his requires 1-2 persons present 24 hours per day to provide care, and that a home care package would not be possible due to the travel times that carers would be called upon to undertake.  The geriatrician writes that the adult lacks insight into his functional needs and, in her opinion, is able to make simple, not complex, personal decisions and unable to make all financial decisions. 

15. In his application to the Tribunal, the social worker and applicant submitted that the adult was admitted to hospital by the Queensland Ambulance Service (QAS), having been found on the floor of his residence after a long lie in squalid conditions.  QAS reported that the adult said that the floor was ‘the best place to get warm’. The applicant submitted four (4) photographs to the Tribunal, taken by QAS officers and provided to the hospital, depicting the cluttered and unhygienic living conditions within the adult’s residence on the date of the retrieval. On admission to hospital, the adult presented with malnutrition, a urinary tract infection, delirium and vitamin D deficiency.

16. In his oral evidence, the social worker and applicant said that the treating team’s assessment of the adult’s decision-making ability remained unchanged, given the adult’s ongoing decline in cognition, and that the treating team was seeking the appointments of a guardian and administrator for the adult to facilitate the clinical recommendation of residential aged care for the adult.

17. When questioned, NHI provided minimal evidence to the Tribunal. He told the Tribunal that the lease of his property paid for his rates and that YLH was his enduring power of attorney. (YLH denied being appointed as the adult’s enduring power of attorney). NHI fell asleep soon after his submissions and was awakened by the presiding member for the handing down of the decision of the Tribunal.

18. In its determination of decision-making capacity, the Tribunal must give consideration to the nature of the decisions that are required for NHI and the support available to him. The adult has health conditions and care requirements that require management.  Recommendations from a speech pathology assessment in a report dated 9 August 2022 include a level 4 (pureed) diet and level 2 (mildly thickened) fluids, with care staff monitoring for aspiration due to swallowing difficulties. In a physiotherapy report dated 3 August 2022, assessment findings include that the adult: requires assistance (especially on soft pressure mattress) and prompting with bed mobility; needs assistance from 1-2 persons for getting in and out of bed; needs a ‘sara steady’ on most occasions along with assistance and cueing to move from a sitting to a standing position and; mobilises mostly using a commode chair although has managed to mobilise on 2 occasions with a forearm support frame, walk belt and the assistance of two persons. 

19. NHI has identified some sources of informal support, however his safe discharge from hospital to appropriate accommodation has been unable to be effected in the absence of a formally appointed decision maker.  The adult has substantial financial matters, including real property and livestock.  Ongoing decisions are required in relation to the adult’s assets and expenditure.  The adult’s contribution to his aged care will need to be determined. A formally appointed decision-maker is necessary to consult with relevant government authorities (e.g. Australian Taxation Office, Services Australia) and financial institutions.

    Conclusion

20. The Tribunal accepts the evidence contained within the report of Dr Kelly, geriatrician, and that of the adult’s treating team.  The information is based on longitudinal multidisciplinary assessment and clinical observation of the adult during the current hospital admission.

21. Upon consideration of the evidence, and having regard to the nature of decisions required for NHI and the support available to him, the Tribunal determines that due to NHI’s cognitive deficits, he is unable to make financial and complex personal decisions. The Tribunal, therefore, is not satisfied that NHI understands the nature and effect of his financial and complex personal decisions. Accordingly, the Tribunal rebuts the presumption of capacity for NHI for these decisions.

    Is there a need for the appointment of a guardian for NHI?

    Evidence

22. The evidence in relation to the adult’s personal circumstances follows.  

23. The adult is medically stable and ready for discharge from hospital.  Residential aged care is recommended by the treating team.  In the absence of a decision maker for the adult for accommodation matters, the treating team has been unable to safely discharge the adult from hospital into an appropriate accommodation setting with necessary supports.

24. The adult has complex comorbidities that require decisions.  In their written submissions to the Tribunal, NRA and NRM, neighbours of the adult, describe their attempts to support the adult prior to his hospitalisation by dropping off meals 1-2 times weekly in the context of their observed decline in the adult’s health over a two-year period.  They submitted they found the adult eleven (11) days prior to his hospitalisation in a ‘noticeably deteriorated state’ on his ‘hands and knees’. They said that the adult became ‘very irate and hostile’ regarding ‘any suggestion of external medical assistance’.  They said they ‘compromised’ with the adult as, by the end of their visit, they believed the adult appeared to ‘have recovered’.  They agreed to call him every day and instructed their staff to supply food and firewood daily.  They said they were unable to undertake these tasks themselves as they had family commitments elsewhere.  NHI was eventually taken to hospital by ambulance when the daily phone call from NRA and NRM went unanswered and NRM managed to attend the adult’s property. They described that an ambulance was called, despite the adult’s ‘aggression and anger’.  NRA and NRM further submitted that due to conflict among the adult’s friends and associates, consensus would be unlikely among statutory health attorneys in relation to ongoing health care decisions for the adult. 

25. There is no evidence before the Tribunal that NRA and NRM advised other statutory health attorneys of the adult about the incident wherein he was found on the floor of his home on his hands and knees eleven (11) days prior to his eventual transport to hospital by ambulance, nor the arrangements that they had undertaken to provide indirect assistance to him in the intervening period.

    Deliberation

26. The evidence establishes that in the absence of an appointment of a formal decision maker for an adult, the adult’s treating team has been unable to progress discharge planning so that he can obtain appropriate accommodation.

27. NHI has complex comorbidities that require management.  The Statutory Health Attorney regime[7] is not appropriate, given the impoverished state of the adult’s health on admission to hospital against a background of belated intervention and inadequate consultation between members within the adult’s friendship network.

    [7]Powers of Attorney Act 1998 (Qld) (‘POAA’), Section 62.

    Conclusion

28. Accordingly, pursuant to section 12 of the GAA, the Tribunal is satisfied that there is a need for decisions in relation to accommodation and health care matters for NHI. The Tribunal determines that without the appointment of a guardian for these matters, the adult’s needs will not be met, nor his interests protected.

Is there a need for the appointment of an administrator for NHI?

Evidence

1. The representatives of the Public Trustee of Queensland advised the Tribunal in relation to their discovery of the adult’s financial circumstances during the interim order.  They stated that the adult owns a 20,430-acre remote rural property, which the local stock and station agent suggested is worth between $4M and $5M.  The dwelling on the property is considered unhabitable.  The adult has an ABN registered beef cattle farming business. No income has been received in the current or previous financial year from cattle sales. The Public Trustee of Queensland has been unable to establish the number of head of cattle owned by the adult in the absence of a completed muster of the property.  The interim administrator has been advised that there would only be approximately ten head of cattle remaining after a large number either perished or were sold in the drought that occurred several years ago.

2. NHI has a total of approximately $109,500 in cash assets over three accounts. He is not in receipt of a Centrelink pension.  There are no identified liabilities.

3. The Department of Transport has advised the Public Trustee of Queensland that the adult has three vehicles (a prime mover and two semi-trailers) registered in the names of NHI and NRM, with NRM as the primary customer.  In evidence from NRM and NRA, the adult signed transfer documents on 16 July 2021 with the intention to transfer the vehicles solely to NRM, however these forms have not been lodged with the Department of Transport. The vehicles are located at the property of NRM and NRA. A fourth vehicle, an unregistered utility, is located at the adult’s property.

4. The Public Trustee of Queensland understands that the adult is the owner of two firearms which are held in a gun safe at his property.

5. Expenditure includes insurances (public liability and workers’ compensation), rates, electricity, property repairs/maintenance (e.g. fencing) and telephone costs.

6. The representatives of the Public Trustee of Queensland submitted that they have been advised that the adult has verbal agreements in place with his three neighbours, (two of whom are NRM and NRA) to agist their cattle on his property.  In exchange for the agistment, NRM and NRA are to pay the adult’s expenses in relation to public liability insurance, electricity and telephone.  Property rates are to be paid by the other neighbour.

7. In his report to the Tribunal, the social worker stated that NRM and NRA have been liaising with the adult’s local accountant for tax purposes in so far as bringing documents to the adult to sign and then returning them to an accounting firm on behalf of the adult. From making his own enquires with the accounting firm, the social worker was advised that the firm had undertaken accounting services for the adult from March 2020 until June 2022, after which time a different accounting firm in another regional city had been engaged.  The social worker had been unable to ascertain a reason for the change of provider.

8. In addition to the above factors, and pending a decision of a guardian, the adult’s contribution to his aged care would need to be determined through consultation with Services Australia and a contract with a residential aged care facility will require authorisation.

   Deliberation

9. The evidence establishes that the adult’s assets, income and expenditure will require full identification, protection, management and, if required, reinstatement. His contribution to his aged care will need to be calculated and effected.

   Conclusion

10. Pursuant to section 12 of the GAA, there is a need for the appointment of an administrator for the adult for all financial matters, as his financial needs will not be met nor his financial interests protected without the appointment of an administrator.

    Who are the most appropriate appointees as guardian and administrator for NHI?

11. The options for appointment as guardian for the adult are the Public Guardian or YLH.  The options for appointment as administrator for the adult are the Public Trustee of Queensland or YLH.

12. NRA and NRM submitted they supported the application by the social worker for the appointments of the Public Guardian and Public Trustee of Queensland as guardian and administrator for the adult, respectively.

13. YLH provided written and oral submissions to the Tribunal in relation to his appropriateness for appointment as guardian and administrator for the adult. 

14. In his affidavit dated 6 September 2022, YLH stated that he is a close friend of the adult.  YLH said that when he was a baby in the early 1970s his parents befriended the adult.  He said the friendship continued when he and his family of origin moved from the region.  At that time YLH was 20 years of age. He said that when he had children of his own, he and his children stayed at the adult’s property and that he and his children helped the adult attend to his cattle, domestic animals and general farm maintenance.

1. YLH stated in the affidavit that he was unaware of the adult’s hospitalisation until he was contacted by the social worker/applicant.  He said that the adult spoke to him by telephone from the hospital and asked him to urgently visit him.  YLH submitted that he travelled to visited the adult the following day, at which time the adult told him of the treating team’s recommendation of aged care.  YLH said that the adult did not want to be accommodated at the local residential aged care facility and had asked to live with YLH and his family.  When advised by YLH that his request could not be granted as YLH had just sold his own property, the adult said that YLH could live with him.  YLH submits that the adult then told him that he had bequeathed his property to YLH.  He said the adult gave him a letter from his solicitors in Brisbane, and asked him to contact them to obtain a copy of his will. YLH stated he had since returned to the adult’s regional area on two occasions to visit the adult in hospital.

2. YLH provided a copy of the adult’s will of 22 May 2018 to the Tribunal wherein YLH is appointed as the adult’s executor and trustee of his will, and the sole beneficiary of his estate.

3. YLH further submitted in his affidavit dated 6 September 2022 that he was advised by his solicitor, REM, that ‘in the interim’ he has ‘a beneficial interest in the expectancy of the whole [sic]estate’ and that ‘as it is accordingly only my interest that can be protected, I object to any of [the adult’s] estate being expended in fees to either the Public Guardian or the Public Trustee of Queensland’.   YLM concluded his affidavit by stating that should there be a need for an appointment of an administrator for the adult ‘during the remainder of his life, I seek to be so appointed and assert that I have a superior interest and right to do so than any other party. I would happily undertake any steps necessary in the capacity of Administrator without charge to the Estate’.

4. YLH’s oral submissions echoed the content in his affidavit. His legal representative submitted that there was no better indication from the adult in relation to his ‘faith and trust’ in YLH than his decision to appoint YLH as his soul executor and beneficiary.

5. In other oral evidence to the Tribunal, YLH stated that he had not seen the adult for over a year prior to the adult’s hospitalisation.  He said that they had maintained telephone contact until a month before the adult’s hospitalisation.  YLH said he did not recall any conversation, prior to the adult’s hospitalisation, in which he and the adult spoke about the adult’s preferences for his personal requirements into the future. He submitted he wants to be more involved in the adult’s care and is able to clean up the adult’s house and move his caravan onto the adult’s property to provide full time care.  He said that during the adult’s current hospitalisation, the adult had provided him with verbal consent to move into his property.  YLH further advised that he had attended the adult’s property whilst the adult has been hospitalised and had been told to leave by the interim administrator.

6. In relation to health care, YLH told the Tribunal that the adult’s treating team would not discuss the details of the adult’s health care with him.  He said he had spoken with a doctor approximately two weeks prior to the hearing and was advised that the adult was getting better.  YLH said he was unaware of the adult’s diagnosis and that he had not been informed by the treating team of their recommendation for the adult to receive residential aged care.  YLH said he and his wife had thought that they could clean the adult’s house and live there.  On hearing the evidence from the social worker in relation to the persistent recommendation of the treating team for residential aged care for the adult, and on hearing that the Tribunal had made a determination that there was a need for the appointment of a guardian for the accommodation and health care, YLH submitted that he would have to approach the aged care facilities in the adult’s regional town and discuss the matter further with the adult and his treating team.  He added that he would undertake to make decisions in the adult’s best interests. YLH’s legal representative submitted that ‘the residuary beneficial interest’ is for YLH and that ‘his first application is to care for [the adult]’.

7. In relation to financial matters, YLH submitted that the adult had discussed some financial matters with him, including that the arrangements with the owners of neighbouring properties were to remain in place ‘until he passes.’ YLH admitted he had no knowledge of the obligations of an administrator in relation to liaising with relevant government authorities and aged care providers to determine the adult’s financial contribution to his aged care.

   Deliberation

8. The Tribunal was not persuaded by the submissions of YLH and his legal representative. 

9. YLH has had limited contact with the adult and members of the adult’s support network in the context of the adult’s cognitive decline. He was advised of the adult’s hospitalisation by the hospital social worker. By his own evidence to the Tribunal, he was advised of the treating team’s recommendation of residential aged care placement by the adult himself.  In these circumstances he did not actively seek clarification or confirmation from the adult’s treating team.  He was, therefore, unaware of the adult’s diagnosis, the extent of his functional and cognitive deficits and consequential care requirements when he told the adult he would relocate to the adult’s property and reside with the adult. YLH then attended the adult’s property whilst the adult was in hospital until he was told to desist by the interim administrator in the context of an application for guardianship and administration before the Tribunal. Notwithstanding that YLH changed his submissions at the hearing in relation to his proposed personal decision making for the adult when advised of the adult’s diagnosis and the recommendations of the treating team for residential aged care placement, the Tribunal is not satisfied YLH understands the nature and extent of the adult’s personal circumstances to such an extent that he would be able to make decisions in accordance with the General Principles,[8] including the Health Care Principles.[9]

   [8]GAA, Section 11B.

   [9]GAA, Section 11C.

10. In relation to his proposed financial decision making for the adult should YLH be appointed as the adult’s administrator, the Tribunal places much weight on the evidence contained in his affidavit.  In stating that it is only his interest that can be protected during the remainder of the adult’s life due to the expectancy of the entirety of the adult’s estate as beneficiary, and that he has a superior interest and right to do so than any other party, YLH demonstrates his failure to understand that the adult is the primary focus,[10] rather than himself.

    [10]GAA, Section 11A (1).

11. Further, whilst being a beneficiary does not in itself preclude YLH from being an appropriate appointee[11], his stated objection to any of the adult’s estate being expended in fees to the Public Guardian and Public Trustee of Queensland demonstrates his interest in preserving the adult’s assets for his own benefit as sole beneficiary of the adult’s estate. The Tribunal is therefore not satisfied that YLH would be able to make financial decisions that further the adult’s interests at the expense of his own.

    [11]GAA, Section 15 (3).

12. Accordingly, the Tribunal is not satisfied that YLH is appropriate for appointment as guardian and administrator for the adult.[12]

    [12]GAA, Section 15.

    Conclusion

13. The Tribunal is of the view that the Public Guardian and the Public Trustee of Queensland, as independent, skilful and experienced decision makers, would be able to consult with all stakeholders and make decisions that best meet the adult’s needs, in accordance with the General Principles.[13] The Public Guardian and the Public Trustee of Queensland are considered appropriate appointees, having regard to the provisions of section 15 of the GAA.

    [13]GAA, Section 11B.

14. Accordingly, the Tribunal appoints the Public Guardian as guardian for NHI to make decisions about accommodation and health care matters. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

15. The Tribunal appoints the Public Trustee of Queensland as administrator for NHI for all financial matters until further order of the Tribunal.

    Application of the Human Rights Act 2019 (Qld)

16. The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. NHI’s rights to privacy,[14] freedom of movement[15], property[16] and protection from being subjected to medical treatment without his full, free and informed consent[17] may be engaged and limited by decision of the Tribunal to appoint a guardian and administrator for the adult. On balance, the decision of the Tribunal provides for the adult to have opportunity to be safely discharged from hospital, have access to appropriate accommodation and health care, and have his income and assets utilised in his best interests. Taking into account the above findings in relation to the criteria set out in the GAA, the Tribunal is satisfied that the decision of the Tribunal is the least restrictive option given the adult’s vulnerability and that the benefits of the decision of the Tribunal outweigh any limitations imposed on the adult’s human rights. Accordingly, the Tribunal determines that the limitations imposed by the decision of the Tribunal are reasonable and demonstrably justified in accordance with section 13 of the HRA.

    [14]HRA, Section 25.

    [15]HRA, Section 19.

    [16]HRA, Section 24.

    [17]HRA, Section 17(c).