PJM
[2017] QCAT 65
•31 January 2017
CITATION: | PJM [2017] QCAT 65 | |
PARTIES: | PJM | |
APPLICATION NUMBER: | GAA12289-16; GAA12291-16; GAA012-17 | |
MATTER TYPE: | Guardianship and administration matters for adults | |
HEARING DATE: | 31 January 2017 | |
HEARD AT: | Brisbane | |
DECISION OF: | Professor Ashman, Member | |
DELIVERED ON: | 31 January 2017 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | 1. The guardianship order made by the Tribunal on 26 February 2016 is changed by appointing the Public Guardian as guardian for PJM for decisions about the following personal matters: a. With whom PJM has contact and/or visits; b. Provision of services; c. Seeking help for, or making representations on behalf of PJM. 2. The appointment of the Public Trustee of Queensland as administrator for PJM for all financial matters is continued. 3. The Tribunal dispenses with the requirement for the administrator to provide an updated financial management plan. 4. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 5. The application for directions for PJM is dismissed. | |
CATCHWORDS: | GUARDIANSHIP – ADMINISTRATOR – CAPACITY – a review of the appointment of a guardian and administrator – where the guardian appointment has been changed – where the administrator’s appointment has been continued unchanged – an application for directions has been dismissed. Guardianship and Administration Act 2000 (Qld) | |
APPEARANCES: | DA, mother | |
REPRESENTATIVES: | A legal representative of MM and DA | |
REASONS FOR DECISION
PJM was born with cerebral palsy. He is now 20 years old. The marriage between his parents, DA and PG, ended several years ago. PJM now lives with his mother and step-father, MM, in the family home owned by DA. The relationship between PG and DA has been difficult over the past several years, leading to significant distrust and disagreements between the natural parents about the level and type of care that PJM needs and receives.
PJM first came to the Tribunal’s attention in May 2015 when an application for a declaration of capacity was lodged on PJM’s behalf. The Tribunal subsequently dismissed the application. In June 2015 an application was lodged for the appointment of a guardian and administrator and this was eventually heard on 26 January 2016 following the appointment of a separate representative for PJM and leave being granted for parties to be legally represented. The Public Guardian and the Public Trustee of Queensland were appointed to their respective roles.
It appears as though mediation was held to facilitate an agreement about how various parties would participate in, and contribute to, PJM’s life. An agreement was reached in October 2015. Since the Tribunal’s 2016 appointments, the relationship between DA and PG remains fractious. PG expresses the view that the Public Guardian and the Public Trustee have made inconsistent and arbitrary decisions with the consequence that his involvement in PJM’s life and decision-making processes concerning his care, support, and financial matters has been restricted.
The review of the appointments of the Public Trustee of Queensland and the Public Guardian were scheduled for review on 31 January 2017. PG took this opportunity to lodge an application seeking Tribunal directions concerning a wide range of matters.
When undertaking a review, the Tribunal is bound by conditions set out in Section 31 of the Guardianship and Administration Act 2000 (Qld) entitled “Appointment review process”. In brief, when the Tribunal is reviewing an appointment, it must deal with the review as though it was an application for an appointment coming before the Tribunal for the first time. This necessitates a consideration of PJM’s ability to make independent decisions in both personal and financial matters, the need for any appointment, and who is best placed to fulfil the roles of an appointee.
The Tribunal, therefore, began the hearing with a consideration of PJM’s decision-making capacity.
Does PJM have capacity to make decisions for himself in personal and financial matters?
The Tribunal has on file a number of documents relating to PJM’s decision-making capacity. These include a single page statement from a health professional dated 22 December 2014 and a later health professional report from the same doctor dated 18 May 2015. There are also reports from the Royal Children’s Hospital, the Queensland Paediatric Rehabilitation service, and the most recent, a report from a second doctor. These various document are consistent in a diagnosis of Cerebral Palsy. The second doctor was of the view that PJM has capacity to make simple decisions for himself in personal health care, lifestyle, and accommodation choices, and financial matters.
Capacity is defined in the Act. To have decision-making capacity for a matter, an adult must understand the nature and effects of the decision, make the decision freely and voluntarily, and be able to communicate the decision in some way. PJM’s parents agreed that his decision-making was impaired although the major impediment was his inability to communicate decisions effectively. It was agreed that with appropriate communication devices it is likely that PJM could satisfy all conditions required for full capacity. For the purposes of the review, it was agreed that his decision-making was impaired by virtue of his limited communication skills.
On the basis of the written and oral evidence provided, the Tribunal finds that PJM has cerebral palsy and has a cognitive impairment that significantly affects his ability to communicate decisions. The presumption of capacity contained in the Guardianship and Administration Act 2000 (Qld) is, therefore, rebutted. This establishes jurisdiction to enable the Tribunal to consider if there are needs that might require the appointment of a guardian and/or an administrator, and if there are such needs, who is the most appropriate appointee(s) to fill those roles.
Do needs exist in financial matters that warrant the appointment of an administrator for PJM? And if so, who is the most appropriate appointee?
The Tribunal first considered the need for an administrator. The representative of the Public Trustee of Queensland reported that PJM’s assets were modest and that the Public Trustee manages the income and expenditure from PJM’s pension only. After each fortnight, there was a small surplus accumulating to about $600 over a year. Despite this, the Public Trustee is holding about $8,000 on PJM’s behalf.
On his own evidence and through his legal representative, PG argued that the Public Trustee was not fulfilling its duty as plenary administrator as it was not managing approximately $60,000 provided to PJM by the Department of Communities, Child Safety and Disability Services. This amount comes as self-directed funds to PJM, managed by the service provider. PG stated that he has never been privy or contributed to ongoing decisions about how that money was to be spent, the budgeting process, or provided information concerning the reconciliation of the annual expenditure. This position was disputed by the representative of the service provider and by DA who stated that PG had been involved in each of these aspects and as recently as December 2016, had been provided with reporting documents.
The Tribunal was provided a copy of an agreement between DA as trustee for PJM and the service provider, the 2016 budget and income/expenditure transactions for the second half of 2016. These documents gave evidence that the overwhelming bulk of the funds were expended according to the budget in support of PJM’s education, lifestyle, and health care needs by the end of that year. The service provider representative stated that this was the case each year. All participants at the hearing were provided with copies of these documents.
PG agreed that the funds appear to have been used for his son’s care but challenged the rigidity of the budget allocations. He further claimed that he found it difficult to understand PJM’s financial situation when there were two agencies providing reports. The Public Trustee’s representative noted that little can be done to resolve PG’s concerns given the independence of the two funding and reporting processes. He emphasised that Disability Services funding falls outside the jurisdiction of the Pubic Trustee and it has no authority to oversee or report on the use of those funds.
After a lengthy discussion about funding, budgeting, and reporting issues parties attending the hearing agreed that there was a need for the continued appointment of an administrator to manage PJM’s pension income and expenditure. Furthermore, the Public Trustee of Queensland was supported as the most appropriate nominee to fulfil that role at this time.
The Tribunal finds, therefore, that without an appointment PJM’s needs will not be adequately met or his interest adequately protected. The Tribunal finds that the Public Trustee of Queensland is the most appropriate administrator at this time. All parties took the view that it is conceivable that the conflict between members of PJM’s family might be either partly, or fully, resolved in the future and that a short, rather than indefinite, appointment would be proper at this time. The Tribunal agreed that a review of the Public Trustee’s appointment in the short-term rather than long-term would enable consideration of changes in the family dynamics that might see a member, or members, of PJM’s family able to assume the role of administrator(s). Therefore, the Tribunal continues the appointment of the Public Trustee of Queensland until further order but directs a review to be undertaken in one year.
Do needs exist in personal matters that warrant the appointment of a guardian for PJM? If so, who is the most appropriate appointee(s)?
In the report of its plenary appointment received by the Tribunal on 16 December 2016, the Public Guardian confirms that both of PJM’s parents have his best interests in mind but it also draws attention to the level of conflict between them. Over the term of its appointment, the Public Guardian has not been involved intensively in PJM’s life. Decisions have been made in regard to: PG’s access to his son; the appointment of a special representative to address concerns about contact, life plans, services, and activities; and the engagement of an advocacy service to support PJM. The report concluded that the only need for an appointment of guardian at this stage was for seeking help and making representations on PJM’s behalf.
In written and oral evidence, PG argued that access to his son had been unjustifiably restricted and that PJM’s mother and step-father had not provided funds to enable them to engage in a range of activities that would benefit PJM. In his 22-page submission to the Tribunal, PG itemised a range of concerns that breached the arrangements made during mediation.
DA and MM agreed that PG has PJM’s best interest at heart although his involvement in PJM’s life has been inconsistent. PG accepted that his circumstances were such that he could not be as fully involved in PJM’s life to the extent that he wished.
In addressing the issue of existing needs that might require the appointment of a guardian, three issues emerged from a wide-ranging conversation. First, it was apparent that significant tensions exist between the service provider administration and PG. PG stated that the relationship was such that he could not work successfully with the service provider and wishes an alternative to manage PJM’s Disability Services funding. The representative of the service provider stated that the company was willing to withdraw but suggested that PJM’s current case manager has a workable relationship with PG and if she was the primary contact, this might go some distance toward ameliorating the tensions.
DA and the representative of the Public Guardian expressed views to the effect that the continuation of a stable manager of the Disability Services funding was imperative and there was a need for an independent party to seek a resolution to the conflict.
Second, PG, MM, and DA raised issues concerning PG’s access to his son. These are not related to any adverse influence of PG on PJM’s life but more to the management of details that might facilitate access (e.g., availability of transport or funding public transport). It appears that there are also issues with the timing and the flow of information between PG and DA related to PJM’s health care.
Third, PG and DA believe that there is a clear role for an advocate in PJM’s life, a position supported by the Public Guardian. Both PG and DA intimated that they could engage an advocate for PJM but it was not clear if both would agree on the choice of advocate who would, necessarily, need to work closely with both parents.
In other guardianship areas such as health care, education and training, and general activities of daily living, there appears to be consensus about what is in PJM’s best interest. Both mother and father agreed that health care matters have, up to the present time, been dealt with effectively and efficiently with both parents generally communicating satisfactorily with each other. However, given the complexity of the relationship between mother, father, and step-father in other matters and the complexity of PJM’s physical care, social, and emotional needs and communication impairment, the Tribunal finds that there is a need for the appointment of an independent guardian and without that appointment, PJM’s needs will not be adequately met or his interests adequately protected.
The Tribunal finds needs in the guardianship decision-making areas of service provision, contact, and advocacy. The Tribunal heard submission from those present at the hearing about the most appropriate appointee and there was agreement that the Public Guardian was best placed to act as decision-maker to address those needs.
The Tribunal, therefore, finds that the Public Guardian is the most appropriate appointee as guardian for PJM for decision associated with service provision, contact, and seeking help and making representation on PJM’s behalf. As the Tribunal made a reviewable appointment of the Public Trustee of Queensland, it is judicious to align the appointment term for the Public Guardian so that both guardianship and administration appointment can be reviewed at the same time. The term of the appointment of the Public Guardian is, therefore, until further order of the Tribunal but the appointment is reviewable in one year.
Is there a need for Directions to be given to any party?
In PG’s 22-page submission, over three pages were devoted to directions that he sought from the Tribunal. When asked if directions were required for the 41 issues raised, PG’s representative submitted that PG’s primary intent of the list was to impress upon the Tribunal the broad range of matters in which he has experienced restriction that has prevented him from adequately supporting his son. It was conceded that if the Tribunal were minded to issue directions then it would be essential to engage in a discussion with all parties as to the merits or otherwise of such directions. That the Tribunal has been appraised of these issues is sufficient.
The Tribunal, therefore, finds no need for directions to be issued and dismisses the application for directions.
Summary
The following orders are made:
a. The guardianship order made by the Tribunal on 26 February 2016 is changed by appointing the Public Guardian as guardian for PJM for decisions about the following personal matters: with whom PJM has contact and/or visits; the provision of services; and seeking help for, or making representations on PJM’s behalf.
b. The appointment of the Public Trustee of Queensland as administrator for PJM for all financial matters is continued. The Tribunal dispenses with the requirement for the administrator to provide an updated financial management plan, and directs the Public Trustee to provide a report when requested. The appointment remains current until further order of the Tribunal but is reviewable and is to be reviewed in one year.
c. The application for directions for PJM is dismissed.
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