NR
[2011] QCAT 433
•8 July 2011
| CITATION: | NR [2011] QCAT 433 |
| PARTIES: | NR |
| APPLICATION NUMBER: | GAA10053-10 / GAA10054-10 / GAA5098-11 / GAA5099-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 April 2011, 6 and 8 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Barbara Bayne, Member Michelle Howard, Member |
| DELIVERED ON: | 8 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. HG of Caxton Legal Centre is given leave to represent NR. 2. BL is appointed as guardian for NR for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 3. The guardian is to provide guardianship reports to the Tribunal by 15 December 2011 and 15 May 2012. 4. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. 5. BL is appointed as administrator for NR for all financial matters. 6. The administrator is to provide a financial management plan to the Tribunal by 8 September 2011. 7. The administrator is to provide accounts to the Tribunal by 8 May 2012 and annually thereafter. 8. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. |
| CATCHWORDS: | GUARDIANSHIP – capacity for decision making – where adult found unable to understand complex matters – where family conflict – where family member appropriate for appointment Guardianship and Administration Act 2000, ss 12, 14, 15 |
| RELEVANT PARTIES: | Mr NR the adult Ms HG solicitor, appearing for the NR (with leave) |
REASONS FOR DECISION
Mr NR is 78 years of age, and lives at home with his partner, Ms BS, in her home in Brisbane. He has five children and a stepdaughter.
The applications before the Tribunal were lodged in 2010 and 2011 and appear to be in response to each other. They are from various family members, seeking appointments of themselves as guardians and administrators for NR.
The first order for NR was made on 31 January 2011 and appointed three of his biological children as his guardians and administrators; the applications were reopened on 23 March 2011.
Orders were made at the hearing on 11 April 2011 which set aside the order dated 31 January 2011, adjourned the proceedings in order to obtain further medical information and made interim orders appointing the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for NR.
The matters were further heard on 6 July 2011 and 8 July 2011.
In relation to the appointments sought, relevant legislation includes ss 12, and 15 and Schedule 4 of the Guardianship and Administration Act 2000.
Section 12 outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult.
Section 15 outlines “appropriateness considerations” which the Tribunal must consider in deciding whether a person is appropriate for appointment as guardian or administrator.
The first consideration was that of NR’s capacity[1]. NR is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical and other evidence and submissions from the parties to determine if the presumption of capacity had been rebutted.
[1] Defined in Schedule 4 of the Act of the Guardian and Administration Act 2000.
Following a right partial anterior circulation stroke, NR was admitted to the Princess Alexandra Hospital on 11 October 2010. Contemporaneous reports from various members of the treating team refer to NR as “confused, delirious, disorientated and paranoid”[2] and his capacity at the time was considered by the team to be impaired. There was also reference to an underlying dementia.
[2] Dr M Andrews, Clinical Neuropsychologist, PAH undated but December 2010 indicated.
The discharge planning process was described as complex as a result of NR’s “lack of insight into the identified cognitive and functional deficits most likely related to organic damage caused by his stroke”[3]. Dr A further writes “NR’s cognitive deficits make it difficult for him to take in, comprehend and integrate new information… He appears to be unable to accept that he does have significant cognitive impairments. Currently NR has difficulty understanding the nature of complex decisions… and does not appear to have the ability to weigh up the advantages and disadvantages of his decisions. NR returned home in December 2010.
[3] PM, Social Worker, PAH, 11 March 2011.
In his three reports, dated March and June 2011, NR’s general practitioner of five years, Dr ZR, maintains that in his opinion, NR is “capable of making decisions in all matters” … “just as able as most 78 year olds with help from stepdaughter”. On 7 May 2011, Dr ZR recorded a MMSE score of 28/30 for NR.
Ms HG submits that the evidence is to the effect that NR has recovered from the stroke, is very capable and makes sensible decisions. She considered that she was able to take instructions from him. Ms BL thought he was managing well, was very cautious with his money and didn’t need substitute decisions makers.
NR’s biological children indicated that they believed that he needed support for decision making, which was described as erratic. BVM for example explained that the family had noted deterioration in his cognitive functioning over some years, with NR’s becoming increasingly aggressive and angry towards them. The family considers that he has no insight and was unable to accept and remember the explanations they had given him on several occasions with regards to their management of his money and investments as his administrators from January to March 2011.
NR in the hearings demonstrated that he has a reasonable overall understanding of his matters. He was however unable to provide much substantive detail and struggled at time to remain focused on the subject under discussion. He was preoccupied with several concerns, amongst them the “complete fabrications” of his biological family.
Importantly, the Tribunal was provided with a recent report from Dr WL, consultant geriatrician, who had been part of the team treating NR in the PAH in October 2010. On 25 May 2011 she reassessed NR’s ability to make his own personal and financial decisions as defined under the Act.
Dr WL summarises: On testing, there remain prominent deficits in memory, executive function, frontal abstract thinking and reduced auditory comprehension. In my opinion, he … will have difficulty making complex financial decisions and health decisions.
The Tribunal considered all of the evidence; it was particularly persuaded by the May 2011 report of Dr WL. The Tribunal concluded that NR is unable to understand the nature and effect of decisions about complex matters.
The Tribunal was satisfied that, on balance, the evidence presented rebutted the presumption of capacity at present; it found that NR has impaired capacity for complex personal and financial decisions.
The Tribunal next considered the applications for the appointment of a guardian.
Many adults with impaired decision-making capacity do not need a guardian or administrator appointed because their family, friends and support network help them deal with important choices, such as where they live or how to arrange their financial affairs.
NR is currently living at home with his partner of some years, Ms BS. Ms BS is understood to have dementia and NR is her primary carer. It is unclear as to how long Ms BS might reasonably be expected to be able to remain at home, and what would be the options for NR should she be moved into care.
Service provision is closely linked to accommodation. At present, NR, with Ms BL’s help, does the shopping, meal preparation, general household maintenance and is responsible for the medication regimes of both himself and his partner. Webster packs for both have recently been introduced, due to earlier problems with the taking of medications. NR has been resistant to services in the past; meals on wheels for example have been considered by him to be a waste of money. The need for adequate and appropriate service provision to maintain the couple in their own home for as long as possible is not clear and needs at least to be investigated.
NR also has a complex medical history and medications which needs to be proactively managed. In particular, the Tribunal notes the qualifying comments of Dr WL in her report dated 25 May 2011: “It is also possible that his current haloperidol dose may be affecting his cognition”. The Tribunal was concerned that the Adult Guardian, as health guardian, had not pursued this matter; the feasibility and effect of a reduction of this medication needs to be thoroughly investigated.
The Tribunal considers that these three of NR’s personal and health matters (accommodation, services provision and health) are, in the circumstances, complex. It is probable that NR, due to his reduced insight, will not recognise and accept the need for decisions and the implementation of these. The Tribunal was convinced that the appointment of a guardian is currently warranted for accommodation, service provision and health matters.
Reflecting the applications, the options for appointment were BVM, NZ and FP (jointly), Ms BL or the Adult Guardian as the option of last resort if there is no other appropriate person available for appointment.
The Tribunal recognises that there is a level of disagreement and some conflict within NR’s family. It also recognises that each of his children cares about him; and that all the family want their father to remain at home and to retain his independence for as long as he is able.
Any guardian or administrator must apply the general principles. These include taking into account the importance of maintaining NR’s existing supportive relationships[4].
[4] Schedule 1 General Principle 8 of the Act.
There was no evidence that BVM, NZ and FP, as guardians for NR from January to March 2011, had acted other than in NR’s interests.
Of importance however is the attitude, and wishes, of NR himself. It was obvious to the Tribunal that he currently holds his biological children in mistrust and suspicion. The relationship between them, from NR’s perspective, has broken down. NR relies on Ms BL and clearly articulated his wish for her to be his decision-maker if one was needed.
Ms BL has a close relationship with NR and has had for some time. She sees him regularly. She undertook to inform the family of any significant decisions or changes to NR’s circumstances. Representatives of the Adult Guardian did not oppose the appointment of Ms BL.
The Tribunal appreciates that his biological children consider that NR will be able to manipulate Ms BL. The Tribunal acknowledges this risk, but will monitor her decisions through guardianship reports.
A short appointment of Ms BL. A review within a year will consider NR’s needs at the time as well as the appropriateness of the appointee.
The Tribunal then considered the applications for the appointment of an administrator.
As indicated in various documents provided by the PTQ (as administrator under the interim order), NR is a self-funded retiree with assets of about $2,800 in the PTQ cash account, $148,000 in various cash accounts, just over $300,000 in shares and a motor vehicle. He has an annual income of about $30,000 and regular household and living expenses.
Competent investment and management of his assets are essential. The Tribunal considers that NR’s financial affairs can be described as complex, and warrant the appointment of an administrator.
On the final day of the hearing, BVM, NZ and FP informed the Tribunal that they would prefer the appointment of the PTQ rather than themselves. The options for appointment were therefore Ms BL or the PTQ.
As described above, Ms BL is NR’s strong preference. She will also not charge fees. She again undertook to inform the family of any significant decisions or changes to NR’s financial circumstances. The Tribunal again accepts that his biological children have concerns that NR will be able to manipulate Ms BL. The Tribunal acknowledges this risk, but will monitor the administrator’s actions through various and regular accounting requirements.
Again, the Tribunal was convinced that there was no evidence to support any contention that BVM, NZ and FP as administrators from January to March 2011 had acted inappropriately in any way. The opposite is suggested.
Given the nature of NR’s investments, a long term order is indicated.
Orders were made accordingly.
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