PRH
[2010] QCAT 529
•29 October 2010
| CITATION: | PRH [2010] QCAT 529 |
| PARTIES: | PRH |
| APPLICATION NUMBER: | GAA7995-10 GAA7996-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 29 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 29 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of guardians revoked. Appointment of administrators continued. |
| CATCHWORDS : | GUARDIANS and ADMINISTRATORS - review of appointment – section 31 of Guardianship and Administration Act 2000 – where no need established for guardian – where need for administrators – where current appointees continued |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 1 November 2005 the Guardianship and Administration Tribunal appointed PDM and JRG as the guardians and administrators for PRH (the adult) for a period of five years. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal (the Tribunal).
The Tribunal conducted a review hearing on the papers of the appointment of the guardians and administrators for PRH. Notice of the review hearing was sent to PRH as required by section 118 of the Guardianship and Administration Act 2000 (the Act).
PRH is cared for in a residential aged facility and his family is in regular contact with him. His needs are being met by his family and by the staff at the residential facility. His personal circumstances are unlikely to change materially in the immediate future.
When the Tribunal conducts a review of an appointment of a guardian or administrator, section 31 of the Act requires that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
Section 12 of the Act requires the Tribunal to be satisfied that PRH has impaired decision making capacity and that there is a need for appointment of a guardian and administrator. If an ongoing need for a substituted decision maker is not established, the Tribunal must revoke the appointment of that substitute decision maker.
There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted on 1 November 2005 but the Tribunal must consider afresh in this review whether PRH has decision making capacity for personal and financial matters.
The Act defines[1] capacity as: “capacity”, for a person for a matter, means the person is capable of-
[1] Schedule 4 Dictionary of the Guardianship and Administration Act 2000
a)understanding the nature and effect of decisions about the matter; and
b)freely and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
The Tribunal had been provided with a report from Dr Merson from 2005 who made a diagnosis of dementia and possible brain damage due to past alcohol usage. Dr Merson expressed the opinion that PRH could not make decisions freely and voluntarily and could not make complex decision due to his dementia. No new medical information was provided to the Tribunal for the review but PDM stated that her father’s condition had worsened since 2005, he was confused, he had poor memory and his communication was limited.
The Tribunal accepts the evidence from Dr Merson and PDM. The Tribunal finds that PRH has been diagnosed with dementia since 2005, his condition is progressive and has worsened since 2005, he is now confused, he has poor memory and his communication is limited due to his dementia. He has a cognitive impairment that is permanent and progressive.
10. Applying the criteria in the definition of capacity to those findings of fact, the Tribunal is satisfied that PRH could not understand the nature and effect of decisions about personal and financial matters and is not capable of making decisions freely and voluntarily. The presumption of capacity for decision making has been rebutted by the evidence and the Tribunal concludes that PRH has impaired capacity for making decisions about his personal and financial affairs.
11. Turning now to the question of a need for a guardian, the evidence provided to the Tribunal revealed that an accommodation decision was made by his guardians after their appointment in 2005 and that PRH resides permanently in an aged care facility which meets all his care needs. Apart from ongoing decisions about health care and day to day issues, there was no evidence that any other decisions are needed to be made about accommodation, lifestyle or contact matters.
12. The evidence reveals that PRH’s family, in particular his daughters are available if day to day decisions about replacing clothing, dietary matters and outings are to be made and there is no conflict within the family about such matters. There is a robust support network in place for PRH to respond to his needs.
13. As to decisions about health care, PRH’s daughters are familiar with his health care needs, they appear to be well known and respected by the aged care facility and they are available to make decisions when required.
14. In order for the appointment of the guardians to continue, the Tribunal must be satisfied that there is a need for personal decisions to be made and that without the appointment of the guardians the decision making needs of PRH will not be adequately met. Alternatively the Tribunal must be satisfied that PRH is likely to do something that involves, or is likely to involve, unreasonable risk to his health or welfare and that without the appointment of guardians his interests will not be adequately protected. There is no evidence that PRH is at risk because of his own actions.
15. Section 9 of the Act authorises decision making for an adult with impaired capacity on an informal basis by members of an adult’s existing support network. A support network can include members of the adult’s family and close friends of the adult. Decisions made informally by members of the support network are valid when there is no guardian appointed by the Tribunal to make decisions for an adult about the matter in question.
16. The Tribunal is satisfied that no decisions are needed to be made on a continuing basis about PRH’s accommodation, about the level of services provided to him or about other complex personal issues. There are ongoing decisions required about simple day to day matters. Those decisions can be made informally by members of PRH’s support network and will be as validly made on his behalf as decisions made by a formally appointed guardian.
17. As for health care decisions, under the Powers of Attorney Act 1998, a statutory health attorney is authorised to make any decision about a health matter that an adult could lawfully make if the adult had capacity for the matter. Members of an adult’s family are statutory health attorneys by virtue of that Act as long as they are not paid carers for the adult.
18. PDM and JRG come within the category of statutory health attorneys for PRH as they are members of his family and they are not his paid carers. They would have valid authority to make decisions about health care for PRH without being formally appointed as guardians by this Tribunal.
19. PRH’s need to have consent given on his behalf for health care can be adequately met by his statutory health attorneys providing that consent when necessary. The Tribunal is satisfied that there is no longer a need for a guardian to be appointed to make health care decisions for PRH.
20. In view of the findings made by the Tribunal that there is no need for the appointment of a guardian for PRH, the Tribunal revokes the appointment of PDM and JRG as guardians for PRH.
21. Turning now to the question of a need for an administrator, the evidence provided to the Tribunal revealed that PRH owns a house and he has accumulated savings. He is in receipt of a pension from Veteran’s Affairs as well as rent earned from his house. He has regular expenses for care, accommodation and medical costs as well as expenses relating to his house. There are a myriad of decisions that need to be made about PRH’s financial affairs in order to maintain his source of funds and to secure his present and future wellbeing.
22. The Tribunal is satisfied that it is usually quite difficult for informal decision makers to manage a person’s financial affairs due to privacy requirements of banks, pension authorities and other financial institutions. The Tribunal is satisfied that there is a need for the formal appointment of an administrator to ensure that PRH’s financial decision making needs are adequately.
23. Subsections 31(3) and (4) of the Act provide that once the Tribunal is satisfied that there are appropriate grounds for an appointment to continue, the Tribunal may make an order removing a current appointee only if the Tribunal considers that that appointee is no longer competent or another person is more appropriate for appointment.
24. The Tribunal finds that PDM and JRG have lodged satisfactory accounts when required with the Tribunal and have approached the Tribunal for authorisation when they intended to enter into a conflict transaction. They have demonstrated a sound understanding of the General Principles and have acted prudently and competently as administrators. The Tribunal is unaware of any other person who would be more appropriate than the current appointees for the role of financial decision maker for PRH.
25. The appointment of the administrators is continued for 5 years and the administrators must provide information as directed in the order of the Tribunal each year. As the appointment made by this order is a new appointment, the administrators will again be required to lodge a copy of the order against the registration of PRH’s real property and provide evidence to the Tribunal that this step has been taken.
0
0
0