NS
[2015] QCAT 265
•24 June 2015
| CITATION: | NS [2015] QCAT 265 |
| PARTIES: | NS |
| APPLICATION NUMBER: | GAA541-15; GAA542-15; GAA1890-15; GAA1891-15; GAA5958-15; GAA5959-15 |
| MATTER TYPE: | Guardianship and administration matters for adults | |||
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| HEARD AT: | Rockhampton |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 24 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The guardianship order made by the Tribunal on 10 April 2014 is changed by removing the Public Guardian and appointing WS as guardian for NS for decisions about the following personal matters: accommodation; with whom NS has contact and/or visits; health care; and provision of services. 2. This appointment remains current until further order. This appointment is reviewable and is to be reviewed in five years. 3. The administration order made by the Tribunal on 10 April 2014 is changed by removing the Public Trustee of Queensland and appointing WS as administrator for NS for all financial matters. 4. The administrator is to provide an updated Financial Management Plan within three months. 5. The Tribunal directs the administrator to provide with the Financial Management Plan written independent legal advice as to the merits of a Family Provision Claim by NS against the estate of the late ES. 6. The Tribunal directs the administrator to provide accounts to the Tribunal two months prior to the anniversary of this order and annually thereafter. 7. This appointment remains current until further order. The appointment is reviewable and is to be reviewed in five years. |
| CATCHWORDS: | Guardianship - whether current guardian and administrator remain competent or another person is more appropriate - whether applicant not appropriate due to conflict in relation to potential Family Provision Claim by Adult Guardianship and Administration Act 2000 Schedule 1 and 4,ss 12, 14, 31(3) and (4) |
APPEARANCES and REPRESENTATION (if any):
Susan Leonard from the Office of the Public Guardian
Jody Hollett from the Public Trustee of Queensland
Jennifer Smith Advocate for Adult
WS, Adult’s brother
BJ, Adult’s cousin
REASONS FOR DECISION
Background
NS is a gentleman aged 51 years who has Down Syndrome and an intellectual impairment. He is described by those who know him as happy and affectionate.
NS is the eldest of four sons of VS and ES. The family home since 1973 was situated at a North Rockhampton suburb. VS moved from the home in 1997 to a Hostel as he required residential care. NS remained living with his mother.
In about 2008 ES’s niece BJ moved into the home at the North Rockhampton property to assist her, BJ says, in the home and with the care of NS.
The presence of BJ and members of her family at the North Rockhampton property appears to have been the source of some concern to ES’s younger three sons, WS, AS and TS. BJ says AS and TS took the opportunity when their mother was hospitalised in 2012 to attempt to force BJ to leave. BJ produced a letter dated 24 January 2013 written by WS to his mother advising he could no longer visit her at the North Rockhampton property. The letter stated that when he saw the house he felt emotionally distressed to the point that he could not talk and felt physically ill. In the letter he informed his mother he would in the future be communicating by letter and email only.
ES died on 5 January 2014. The circumstances of her death required that an autopsy be conducted. BJ says ES’s sons accused her of having contributed to their mother’s death. The coroner found that ES died of natural causes and did not require an inquest.
On 16 January 2014 the Tribunal appointed WS administrator for NS for all financial matters and guardian for accommodation, services, health care and contact on an urgent interim basis.
When the matter went to hearing on 10 April 2014 the Tribunal appointed the Public Trustee administrator for all financial matters and the Public Guardian guardian for all personal matters with both appointments to be reviewed after a year.
This hearing is the review of these appointments. WS and BJ each seek to be appointed both guardian and administrator for NS.
NS did not attend the hearing. I accept the evidence of his advocate that NS is aware of the hearing taking place and that there will be a discussion about who would make decisions about his future. His advocate advises that NS recalled attending the last hearing and did not want to attend. I find that NS received notice of the hearing and that it was appropriate to proceed in his absence.
The Issues and the Legislation
At this hearing the issues for the Tribunal were:
(a) Capacity: Is there sufficient evidence to set aside the earlier finding that NS lacks capacity?
(b) Guardianship: Is there an ongoing need for a guardian? If so, does the Public Guardian remain competent or is another person more appropriate for appointment?
(c) Administration: Is there an ongoing need for an administrator? If so, does the Public Trustee remain competent or is another person more appropriate?
Capacity
The presumption at law is that adults have capacity to make decisions. That presumption was rebutted when the appointments were initially made but upon review the Tribunal must consider the issue of capacity afresh[1].
[1]Guardianship and Administration Act 2000 (Qld) s 31 ss (3)and (4).
The Tribunal may have regard to any capacity evidence available at the time of the appointment which is being reviewed and any new evidence provided.
Capacity for a matter is defined in Schedule 4 of the Guardianship and Administration Act 2000 (Qld) to mean the person is capable of:
a) understanding the nature and effect of decisions about the matter;
b) freely and voluntarily making decisions about the matter; and
c) communicating the decision in some way.
Down Syndrome is a genetic condition resulting in a number of physical and developmental characteristics and some level of intellectual impairment. That NS lacked capacity to make personal and financial decisions was rebutted at the previous hearing. No new medical evidence was produced to the Tribunal. BJ expressed opposition to the notion that NS lacks capacity to make his own decisions. She clearly wants his choices respected where he is able to make choices, but she agreed that he continues to need help with both personal and financial decisions other than simple decisions.
I find that NS has Down Syndrome and an intellectual impairment. Whilst he is able to make many day to day choices, he has relied on others throughout his life to make personal and financial decisions. I find NS is not able to understand the nature and effect of either personal or financial decisions nor to make decisions in these matters freely and voluntarily and therefore that the presumption that he has capacity in these matters remains rebutted.
Need for a Guardian
At the time of his mother’s death, NS was living in her the North Rockhampton property with BJ and other members of BJ’s family. Upon being appointed on an interim basis as guardian for NS, WS sought to relocate NS but that did not occur, being opposed by BJ, NS and NS’s advocate Ms Smith.
Initially following the Public Guardian’s appointment NS remained living at the North Rockhampton property with BJ.
The Public Guardian reports that concerns were raised by WS and staff from NS’s service provider that BJ was having a negative influence on NS which was impacting on his relationship with his family and the frequency of support he was receiving from the service provider.
The material provided to the Tribunal by BJ alleged NS’s father and three brothers were physically, verbally and emotionally abusive towards him and any negativity felt by NS towards his family was a result of the way he was treated, not her influence. She also produced evidence, including many complimentary personal endorsements, that NS, was very well cared for by BJ, and with her support and encouragement, was involved in many activities outside the home including volunteer work at a charity store, ten pin bowling, gym sessions and the weekly shop for household needs.
The Public Guardian reports that on 5 June 2014 NS’s guardian visited NS at the North Rockhampton property and observed during the visit that BJ had a negative opinion of NS’s family and shared her views openly and in front of NS. The guardian reported that BJ encouraged NS to describe his feelings towards his father and brothers which he expressed in a negative way and that the conversation about family appeared to be distressing to NS as he expressed anger and requested that the visit end.
The Public Guardian reports that at the visit BJ agreed with the guardian for strategies to be put in place to ensure that NS continued to receive regular supports from his service provider and that he would be encouraged to consider contact with his family.
The Public Guardian reports that following the guardian’s visit BJ was not willing to implement the strategies agreed to and NS was becoming further isolated. Additional concerns were raised by staff of the service provider about BJ’s influence on NS and concerns that NS may be being physically abused by BJ. Neighbours of the North Rockhampton property had made anonymous complaints that NS was being treated badly by BJ within the home.
The Public Guardian reports that a visit was therefore arranged for 29 July 2014 attended by NS, his guardian, his advocate and a support worker. The Public Guardian reports that during the visit NS disclosed that “last Sunday “BJ” punched me in the nose” and made his nose bleed. NS is reported at the meeting to have said that when this happened he “couldn’t breathe” and he thought he was “going to die”. Further, that “she does it all the time” and that he has to “do what I’m told”.
The Public Guardian reports that NS also disclosed that he had been hit in the stomach by “A”. In the Public Guardian’s report “A” is described as BJ’s partner. At the hearing Ms Leonard clarified that NS had described “A” as living in the house with BJ.
The Public Guardian reports NS’s support worker advised BJ had cancelled NS’s supports for the two days following the alleged incident on the Sunday. Police were advised of the disclosures and conducted a preliminary investigation but were unable to obtain reasonable evidence that abuse had occurred and there discontinued the investigation.
The Public Guardian decided it was not in NS’s best interests to continue residing with and receiving care from BJ and that day arranged emergency accommodation and service provision through Disability Services.
The Public Guardian reports that since NS moved from his North Rockhampton home he has re-established contact with his family and positive relationships are being developed.
The Public Guardian reports that initially after moving from home, NS returned to his volunteer work. However, BJ’s son visited NS at work and NS’s manager reported to the Public Guardian that NS had been reluctant to speak with the son and had asked the manager to accompany him. The manager advised the Public Guardian that she would not prevent BJ from having access to NS at his work. The management of the bowling alley attended by NS said likewise. Therefore, the Public Guardian discontinued NS’s attendance at both activities.
BJ confirmed at the hearing she strongly seeks that NS return to live with her at the North Rockhampton property. WS equally strongly opposes that arrangement. The Public Guardian made a decision not to return NS to BJ’s care on the basis it was not in his best interests.
Clearly there is a need for decisions about NS’s accommodation and the services required by him to support him in his accommodation. There is also a need for decisions about with whom NS has contact or visits given that allegations have been made by him about being assaulted.
NS has Down Syndrome and diabetes and his weight and diet need to be monitored to ensure his good health. Ongoing health decisions are required to be made on his behalf. Given the conflict that exists between BJ and NS’s father and brothers, leaving health decisions to a statutory health attorney would not be in NS’s best interests and the formal appointment of a guardian will best meet his needs in relation to health as well as accommodation, services and with whom NS has contact.
Who should be appointed guardian
BJ and WS each seek appointment as guardian.
BJ has been opposed to the decisions made by the Public Guardian. She vehemently denies the allegations of assault or abuse of NS by herself or “A”, whom NS had allegedly referred to as living with her. She says “A” does not live at the house. In the Public Guardian’s report “A” is referred to as BJ’s partner and BJ says she does not have a partner nor would NS use that word. She says it is easy for others to misinterpret what is being said by NS and at the hearing suggested if NS had been “hit” it was during them “doing the Hokey Pokey”.
BJ is also critical of aspects of NS’s heath care whilst the Public Guardian has been guardian. She says she observed him to have lost weight, to have been eating inappropriate food and suffering an infection of his feet.
BJ says it was ES’s wish that she remain carer of NS in the family home.
WS has not been unhappy with the decisions of the Public Guardian but argues it is more appropriate that he as NS’s brother and being, along with his father and other brothers, the closest family member, should be appointed at this time. He says it was his mother’s wish he take on responsibility for NS and he has the ability and strong desire to make any personal decisions required for him.
The allegations were made by NS in the presence of his guardian, Ms Leonard, his advocate Ms Smith and a support worker. Ms Smith has been an advocate for NS for a considerable period and the support worker has known NS for a time as well. Ms Leonard is a Senior Guardian who had met NS previously to this meeting and has experience dealing with adults with impaired capacity. I find that the allegations as reported by the Public Guardian were made and the Public Guardian has acted competently and reasonably in making the accommodation decision in NS’s best interests.
BJ objects to the Public Guardian’s decision to relocate NS and discontinue his involvement in some activities and concern about those decisions is also expressed by a number of BJ’s supporters. Ms Leonard has explained the reasons for NS’s work and bowling being discontinued. The need for NS to be supervised for contact with BJ or members of her household is clear given the nature of the allegations made and the decision of the Public Guardian to involve NS in alternative activities is appropriate.
Ms Simone McLeod is services coordinator at Access Recreation and says she sees NS daily. She describes NS as having moved on and being very settled in his new accommodation. He has become friends with a cotenant. He is very social and involved in an activity each day. She says while NS has expressed a wish to work he is not particular about it being at his previous position.
BJ expressed concern about NS’s health care. She said he has gained weight which is a problem given his diabetes and that he has a foot infection not being adequately treated. Ms McLeod says NS himself has a good understanding of his diabetes which is well managed. She explained the recent treatment required by NS for a fungal infection of his feet.
There is no evidence that the Public Guardian’s decisions have been inappropriate. I do not find the Public Guardian is no longer competent but must consider whether another person is more appropriate.
BJ says she is the most appropriate person to be appointed guardian. She says that was her Aunt’s wish as she knows NS very well: how to communicate with him and all his needs including medical, dietary and “personal care products”. In support of her application BJ provided copies of: a Certificate of Attendance from Relationships Australia attesting to her attendance at a component of the Parenting Orders Programme; Blue Card Positive Notice Letter; letter from her mental health case manager, Chris Delaney, attesting that he has no concerns in BJ’s ability to be the primary carer of NS; and a letter from psychologist Rudy Vander Hoeven, advising that although BJ has a reported diagnosis of bipolar disorder, he has observed little evidence of serious disorder and that he considers she is very capable of being carer for NS.
A number of people attending spoke in support of BJ’s appointment citing her devoted care of NS and criticising aspects of his current care. A lack of involvement of NS’s brothers, WS in particular, was described by some.
Although supportive of BJ, TC, a friend of BJ and Chris Delaney gave their view that independent decision makers were the most appropriate appointments for NS.
WS says he is the most appropriate person to be appointed guardian. He says he is NS’s next of kin and they have a brotherly loving relationship which has been re-established over the past year. He points out his good working relationship for NS’s benefit with both the Public Guardian and Public Trustee during their appointment in contrast to BJ whom he says, says she would never work with him. His appointment is supported by his father and brothers and was he says, also what his mother would have wanted for NS.
Ms Leonard gave evidence that during the time NS was in BJ’s care BJ demonstrated she was not willing to work with the Public Guardian; she did not return phone calls from the guardian and she did not follow agreed protocols regarding NS having access to support services. BJ did not provide evidence to support the reasons given by her for frequent cancellation of support services. Bruises on NS and comments made by him to support workers aroused concerns he was being injured in his home. Ms Leonard says during her visit to the North Rockhampton property she witnessed BJ speak in a derogatory manner about NS’s father and brothers in his presence and discouraged his contact with them. The Public Guardian was therefore of the view that BJ would not be appropriate as a decision maker for NS.
Ms Leonard says the Public Guardian’s relationship with WS was initially terse but once he realised she had NS’s best interests at heart he worked closely with her for NS’s benefit. Ms Leonard says WS regularly contacted her regarding NS’s well-being and visits for NS with WS, their other brother and father have been very positive.
Ms Leonard says the view of the Public Guardian is that WS is an appropriate person to make decisions for NS and that where an appropriate person is identified that person is more appropriate to appoint than the Public Guardian who is the appointee of last resort[2].
[2]Guardianship and Administration Act 2000 (Qld) s 14(2).
Ms Smith as NS’s advocate describes her opinion as “doing a 180 degrees turn” since the previous hearing when she was supportive of BJ’s appointment. She expresses shock at the allegations made by NS as to his treatment in the household at the North Rockhampton property but was convinced that what NS said was not being misinterpreted. She says NS has settled well into his new accommodation. She has been involved with re-engaging NS’s contact with his father and brothers, particularly WS. She is of the view that WS is the more appropriate appointment as guardian for NS.
Both Ms Leonard and Ms Smith are of the view that if contact with BJ is decided at some point to benefit NS, such contact needs to be supervised.
Ms Merrilyn Halsey says she has been manager of Access Recreation for six years. She recounted WS’s support of his mother and NS during ES’s hospitalization for a mastectomy, including his care of NS for two weeks at a local motel and ES speaking of her weekly phone calls with WS. She says in her last conversation with her, ES asked that she get in touch with WS as regards NS’s support should anything happen to her. Ms Halsey described WS as being very close to NS since he has been allowed to have contact which he was denied at the North Rockhampton property. She supported WS as being the most appropriate appointment.
Ms McLeod as has been noted sees NS daily. She says that given her experience in working with WS she is “very comfortable” with his being appointed guardian.
I find that BJ has not supported NS’s relationships with his father and brothers and that she is unlikely to do so in the future as would be required of a decision maker. I find that allegations have been made about NS’s treatment within BJ’s household. Whilst such allegations may not be able to be proved beyond all reasonable doubt, the fact NS has made such allegations makes the appointment of BJ as guardian inappropriate.
I find that Ms Leonard, Ms Smith, Ms Halsey and Ms McLeod were each independent and reliable witnesses who I found objective and convincing in giving evidence. Ms Smith in particular was previously supportive of BJ but her observations over the past year have led her to change her view.
I find that WS has a close and continuing relationship with NS and is motivated to act always in NS’s best interests. I find he has the ability and life skills to make appropriate personal decisions for his brother and that he shows an understanding of and willingness to apply the General Principles required of a decision maker. I find that WS is an appropriate appointee as guardian for NS and I am persuaded by the Public Guardian’s view that where such an appropriate appointee is identified that person’s appointment is more appropriate than the continuing appointment of the Public Guardian.
Therefore I order that the guardianship order made by the Tribunal on 14 April 2014 is changed by removing the Public Guardian as guardian and appointing WS as guardian for NS for decisions about the following personal matters: accommodation; with whom NS has contact and/or visits; health care; and provision of services. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five years.
Is there an ongoing need for an administrator
NS receives a disability pension, has substantial savings and an interest in his late mother’s estate. His income and assets need to be managed to meet his accommodation and other costs. Whilst ES was able to manage NS’s financial affairs informally prior to her death, a formal appointment will best meet his needs, particularly given the conflict between BJ, who was previously assisting both NS and ES, and the members of his immediate family as well as the need for the distribution of ES’s estate which is not straightforward. No one has argued that a formal appointment is not required.
Does the Public Trustee of Queensland remain competent or is another person more appropriate?
No concern has been raised about the competency of the PTQ but both BJ and WS say they are more appropriate to be appointed.
BJ submits that she did a good job of assisting NS with his finances while his mother was alive as well as after her death. She says she was entrusted with being a signatory for the bank accounts of both ES and NS and she never took advantage of that trust. At the last hearing the evidence before the Tribunal was that NS had in excess of $46,000 in his account. Whilst it was apparent from the documents and oral evidence before the Tribunal that the family of ES may have experienced disquiet about what financial arrangements were in place between ES and BJ and whether her contribution to the household at the North Rockhampton property was fair, no allegations were made as to any dishonesty in dealing with NS’s funds.
Legal proceedings have been commenced against BJ by WS as executor of the estate of ES with VS as second applicant seeking possession of the the North Rockhampton property as she has refused to vacate the house. BJ appeared to be of the view her refusal to vacate was justified on the basis of her maintaining the household to which she sought NS’s return should she be appointed guardian.
ES and her husband VS held the property as tenants in common in equal shares. ES’s will appoints WS as executor and trustee. The will leaves her half interest in the North Rockhampton property to her trustee to allow NS the right to reside in the home during his lifetime “or until such time as my trustee considers that NS is not able to reside in the house property either alone or with the appropriate level of support”.
The income from the rest and residue of ES’s estate, which will include her half interest in the North Rockhampton property should her trustee determine NS is not able to live in the house, is to be paid to NS during his lifetime. The will provides further that upon the death of NS, ES’s estate is distributed equally between her other three sons.
I have made findings that BJ has not been supportive of NS’s relationships with his father and brothers and that NS has made allegations of being mistreated within BJ’s household. In my view those findings support not just a finding that BJ is not appropriate to be appointed guardian but also that she is not appropriate to be appointed as a financial decision maker. Additionally there is the conflict that arises from BJ’s wish to remain residing at the North Rockhampton property. WS as trustee together with his father as half owner seeks that BJ vacate the premises. WS says he intends to sell the property and apply the share left to NS for NS’s benefit. As he points out, BJ’s position has resulted in considerable costs to the estate which ultimately affects the value of assets to be applied for NS’s benefit.
BJ emphasises it was ES’s strong wish that she care for NS in the North Rockhampton home. DR, a friend of BJ’s alleges that ES was about to change her will the very day before she died to reflect that wish. I am not persuaded to take that allegation into account. Probate of the will made by ES in 2008 has been obtained. In any case I prefer the evidence of Ms Halsey as to ES’s regard for her son WS and her expectation of the role he would fulfil in NS’s life.
I do not find BJ to be appropriate to appoint as administrator for NS.
In considering his appropriateness to be appointed guardian for NS, I have made findings that WS has a close and continuing relationship with NS, is motivated to act in NS’s best interests and shows an understanding of and willingness to apply the General Principles required of a decision maker. These findings also support a finding that WS is an appropriate person to make financial decisions for NS. Additionally I find that WS has the necessary experience and capability to be an administrator.
Whilst ES’s estate is unfortunately involved in litigation against BJ I am satisfied WS has taken appropriate legal advice and seeks to protect the interests of NS.
I find that WS is an appropriate person to be appointed as administrator for NS.
As WS submits, NS’s assets are relatively modest, as is the estate of his mother from which he will eventually benefit. The legal costs incurred by the estate will be significant and may not be recovered from BJ as the respondent to the estate litigation. The fees of the Public Trustee will further erode the assets held by NS. Given WS has the capability to manage NS’s finances, a situation envisaged by ES in appointing him executor and trustee, I find WS to be more appropriate to appoint as administrator.
The Public Trustee has raised the possibility that it may be appropriate for NS to make a Family Provision Claim against his mother’s estate. The concern about the conflict which arises as the result of WS being the executor and a residuary beneficiary and also NS’s administrator in my view can be addressed by a direction that independent advice about the prospects of success of a Family Provision claim is obtained.
I order that the administration order made by this Tribunal on 14 April 2014 is changed by removing the Public Trustee of Queensland and appointing WS as administrator for NS for all financial matters. The administrator is to provide an updated financial management plan within three months. The Tribunal directs the administrator to provide with the financial management plan written independent legal advice as to the merits of a Family Provision claim by NS against the estate of ES. The Tribunal directs the administrator to provide accounts to the Tribunal two months prior to the anniversary of this order and annually thereafter. This appointment remains current until further order. This appointment is reviewable and is to be reviewed in five years.
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