NMR
[2015] QCAT 34
•7 January 2015
| CITATION: | NMR [2015] QCAT 34 |
| PARTIES: | NMR |
| APPLICATION NUMBER: | GAA 6323 – 14 GAA 8006 – 14 GAA 8007 – 14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 October 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 7 January 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appointment of the Public Trustee of Queensland as NMR’s Administrator is continued. 2. This appointment remains current until further order of the Tribunal. 3. The appointment of the Public Guardian made by the Tribunal on 12 September 2013 is changed by appointing the Public Guardian for the following matters: (a) Accommodation; (b) Provision of services; and (c) With whom NMR has contact and/or visits 4. The Public Guardian is appointed as NMR’s Guardian for 3 years. |
| CATCHWORDS: | DUTIES OF GUARDIAN AND ADMINISTRATOR - Conflict between family members over who should care for the adult Guardianship and Administration Act 2000 (Qld) ss 12, 14, 15, 31 |
APPEARANCES:
| NMR | The adult Parent Sister Neice Sister Sister Sister Sister Sister Sister Public Trustee of Queensland official Public Guardian official |
REASONS FOR DECISION
Background
Mr NMR is a 56-year-old Torres Strait Island man. NMR has been living with his sister NB for several years. He has been diagnosed as suffering from an intellectual impairment and the negative effects of the mental illness schizophrenia.
The Tribunal appointed the Public Trustee of Queensland on 7 September 2010 and the Public Guardian on 12 September 2013.
The Tribunal has received an application from NMR’s sister WR seeking her appointment as NMR’s Guardian and Administrator.
This hearing was been conducted with a background involving significant conflict between members of NMR's family over who should make important decisions for him.
Does NMR have capacity to make his own decisions?
Dr CH NMR’s General Practitioner for several years provided a Health Professional Report in which she wrote that NMR suffers from an intellectual impairment and the mental illness schizophrenia. Dr CH reports that the effect of these conditions significantly impairs, NMR’s cognitive capacity limiting him to make simple personal and health decisions.
All the family members present agreed with Dr CH’s Report that NMR did not have capacity for anything other than simple decisions.
The Tribunal accepts the report of Dr CH and makes the following findings.
NMR was born with an intellectual impairment.
NMR has been diagnosed with the major mental illness schizophrenia.
These conditions have affected NMR’s cognitive functioning limiting his ability to just making simple decisions.
Does NMR need a Guardian?
His family has supported NMR all his life. He is not able to make his own decisions about where he lives; the services that support him; his health and mental health; and other important personal decisions. He has been reliant on his sister NB and the range of service providers in his life. This included the mental health service, Endeavour Foundation, and St John's Community Care.
WA the Public Guardian’s representative was of the opinion that there was a need for a decision maker in relation to the following matters: contact, accommodation and service provision.
The basis for the need around contact was continued allegations by WR. WT a solicitor employed by the Cairns Community Legal Centre Inc. wrote to the Public Guardian on 3 July 2014 raising certain concerns of behalf of WR. Ms WT raises concerns “that NMR’s carer is preventing his participation in family, cultural and community life. The importance of NMR's involvement with family and cultural events was emphasised by order in a previous guardianship hearing, requiring his attendance at such events. NMR is obviously dependant on his carer to facilitate his attendance and participation. Despite this, NMR has not attended any recent family events. This includes his nephew's wedding and his father’s 83rd birthday in early 2014”.
The Tribunal did not make an order requiring NMR’s attendance at cultural and family events. The Tribunal supports the application of the General Principles in the Schedule 1 to the Guardianship and Administration Act. These support NMR’s involvement with family and cultural events.
Ms WT wrote to the Public Guardian pointing out that “Ms WR shares an important bond with her brother, as his eldest sibling”. Ms W T pointed out that Ms WR had been unable to visit NMR at his accommodation due to family conflict. Ms WT points out that: “Ms WR does not have any means of communicating with NMR, as neither she nor other family members are aware of a land line phone number for the house”.
The Tribunal supports NMR having contact with family members where the contact is supportive. The Tribunal would encourage NMR’s family to work with each other and the Guardian to develop plans and strategies that enable positive contact to occur.
Mr WA stated in relation to accommodation, that there was a period when NB was not able to care for NMR. This was due to her having her own health issues. The Public Guardian pointed out that NM NMR's sister provided care to NMR while NB was in hospital. The Public Guardian was of the view that a decision might need to be made once the capacity for NB to remain as a carer and the appropriateness of NMR's accommodation had been established.
The basis for an appointment in relation to services was that there were a range of services that were in place and others which could be taken up to help with NMR’s engagement with the community and which supports would help him to live independently.
The family members present at the hearing agreed that there was a need for the appointment of a Guardian to make decisions about where NMR lives; which services NMR received; his health care; and contact arrangements.
Who should make these decisions on behalf of NMR?
The issue as seen by the tribunal is that Ms WR would like to take NMR back to Melbourne where she lives and organise supports for him to live with her. She has the support of NMR's father and some other family members in taking this course of action. NMR’s sister NB and several other family members want him to remain in Cairns. There is clearly significant conflict between family members over who should have responsibility for deciding where NMR lives.
NMR told the Tribunal that he likes living with NB and likes living in Cairns. He told the Tribunal that he was happy with where he was living.
The current arrangements are clearly only sustainable if NB’s health enables her to continue the role as his primary carer and there are sufficient supports in place to support NMR living independently in the community.
The Tribunal has no doubt that Ms WR’s application to take responsibility for supporting her brother NMR is well intentioned.
The focus of the Tribunal is on the best interests of NMR. The Tribunal is satisfied that this will be best meet with the appointment of an independent Guardian.
The Tribunal is also of the view that given the significant conflict that exists between family members that the appointment of an independent Guardian is appropriate. This will ensure that NMR's wishes are taken into account in making the best decisions for him. This will also allow Ms WR and other family members that have strong views and wishes to be taken into account.
The Public Guardian can assess the relevant merits of the accommodation options; service provision arrangements; and contact arrangements before making any decisions on behalf of NMR.
The Tribunal is satisfied that NMR needs supports to make important personal and lifestyle decisions.
The tribunal finds that NMR needs support to live independently. This includes an appropriate place to live and services that support him in his accommodation. There is significant conflict between family members over appropriate accommodation arrangements. There have been allegations made about the appropriate level of care is provided by his sister NB. The Public Guardian has not substantiated those allegations.
Allegations about the standard of care provided to NMR.
Ms WR has raised concerns in relation to the care provided to NMR by his sister NB. She has raised these concerns at previous hearings of the Tribunal.
The Tribunal would be highly concerned if there was found to be any substance to the allegations.
WA told of the Tribunal that: “The allegations that Ms WR had made were in relation to NB not providing adequate appropriate care in the past, Delegate Guardians had not been able to substantiate these claims”.
WA reported that he had visited NMR; spoken to the Endeavour Foundation, the mental health service, St John's Community Care and other stakeholders who have been unable to provide any information to substantiate the allegations. The information, which he received, from third parties was that NB provided a good standard of care for her brother.
The Tribunal also notes that NMR made it quite clear that he was happy living with NB and happy living in Cairns. NMR did not express any concerns about his current living arrangements.
Does NMR need an administrator to help him with his finances?
The Public Trustee of Queensland has been managing NMR’s finances since 2010.
HC reported that NMR‘s last budget was undertaken on 20 February 2014 in consultation with NB. NMR receives living expenses on a Monday and accesses his funds through a teller. He pays half the electricity account and monies are deposited into NB's account for groceries. Allowances have been made a payment of outings, transport and personal spending.
There were no questions asked in relation to the services provided by the Public Trustee of Queensland.
Ms WR’s submission is in effect that if NMR moves to Melbourne with her that it would be more appropriate for her to manage his finances.
The Tribunal can see some merit in that submission however until a decision is made for NMR to move to Melbourne the tribunal is of the view that the current arrangements are more appropriate. The Public Trustee of Queensland is an independent administrator that manages NMR’s finances prudently and with a degree of transparency.
The Tribunal is satisfied that NMR needs an administrator. The evidence is that NMR is completely dependent on others to manage his budget and finances generally.
The Tribunal notes that Ms WR would like to have telephone contact with NMR. The Administrator could provide funds for a landline or offer funds towards other communication solutions if the Public Guardian was satisfied that could help as part of a plan or strategy to resolve contact issues.
The Tribunal continues the appointment of the Public Trustee of Queensland until further order.
Orders
The Tribunal makes the following orders.
The appointment of the Public Trustee of Queensland as NMR’s Administrator is continued
The appointment remains current until further order of the Tribunal.
The appointment of the Public Guardian made by the Tribunal on 12 September 2013 is changed by appointing the Public Guardian for the following matters: accommodation; provision of services; and with whom NMR contact and/or visits.
The Public Guardian is appointed as NMR’s Guardian for 3 years.
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