PSB
[2013] QCAT 17
•17 January 2013
| CITATION: | PSB [2013] QCAT 17 |
| PARTIES: | PSB |
| APPLICATION NUMBER: | GAA5390-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 3 December 2012 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Aaron Suthers, Member |
| DELIVERED ON: | 17 January 2013 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. The guardianship order made by the Tribunal on 11 October, 2011 is changed by removing BFJ and CLB as guardians and appointing the Adult Guardian as guardian for PSB for decisions about the following personal matters: a. Accommodation; and b. Health care. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. 3. The following enduring power of attorney for PSB is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: a. The enduring power of attorney dated 12 October, 1998 appointing MNR, BFJ and CLK as attorneys for financial, personal and health matters. |
| CATCHWORDS: | Review – capacity of adult – need for guardian – appropriateness of appointees – conflict within family Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| MNR | Applicant and daughter |
| BFJ | Daughter and appointed guardian |
CLK Daughter and appointed guardian
CK Son in law
REASONS FOR DECISION
History of the Application
PSB is a 95 year old woman who resides in a residential aged care facility.
On 11 October 2011 the Tribunal appointed two of her daughters, CLK and BFJ as guardians for PSB, to make decisions about health care matters. The appointment was until further order of the Tribunal. The appointment was reviewable and was to be reviewed in five (5) years.
PSB’s three daughters were present at the hearing in 2011.
MNR disagreed with the outcome of the 2011 hearing and sought a stay of the decision, but did not appeal.
MNR now seeks to review the appointment of her sisters as her mother’s guardians, and proposes that she be appointed in their stead.
The Tribunal will only continue orders for guardianship if satisfied that PSB still lacks capacity for a relevant personal matter, and if it would make an appointment, in the circumstances, if determining a new application afresh.
The Tribunal may only remove or replace a current appointee where an appointment is still required, if satisfied that the current appointee is no longer competent or another appointee is more appropriate for appointment.
Does PSB have capacity for all personal matters?
Every person who is the subject of an application in this jurisdiction is presumed to have capacity each time the appointment of a guardian is sought or reviewed.
Despite seeking appointment as her mother’s guardian, which presupposes that PSB has impaired capacity, MNR is of the view that her mother has capacity for all personal matters.
She says that PSB could understand the nature and effect of decisions in these areas of her life if she had more support from, and contact with, “people who value her”. Implicit in her position is her criticism of her sisters’ decision, after the last hearing, to cause a move of their mother from care in a regional city (where PSB had lived for some time, and where MNR also lives) to another location which is closer to CLK.
Medical evidence from PSB’s former general practitioner Dr Maen dated August 2011 reveals that PSB has dementia which was first diagnosed in 2009. In April 2009 a Mini Mental State test was performed and PSB returned a score of 17/30. The score is indicative of deficits in cognition and this was consistent with the doctor’s view that PSB’s cognitive capacity was limiting her ability to reason and “understand consequences”. The Doctor was of the view that PSB could not understand the nature and effect of even simple personal, health and lifestyle decisions.
A more recent report from Jennifer Howell, a registered nurse at PSB’s current residential care facility dated August 2012 shows that further cognitive testing of PSB indicates moderate cognitive deficits. She says that PSB makes simple lifestyle choices for herself, but often then forgets what she has chosen. It is Ms Howell’s view that PSB may require a move to a secure dementia facility.
Evidence from CLK, her husband and BFJ was consistent with the medical evidence and based on the overwhelming weight of the evidence the Tribunal is satisfied that whilst PSB still makes simple personal choices, she does not have the ability to consistently understand the nature and effect of those decisions. PSB has impaired capacity for all personal matters.
Is there ongoing need for the appointment of a guardian?
The potential areas of need for the appointment of a guardian identified at the hearing were the matters of health care decisions and decisions about where PSB should live.
PSB has a number of significant health issues including cardiac issues requiring her to have a pacemaker. MNR is critical of the decisions and actions of the appointed guardians in regards to PSB’s health. Her view is that PSB needs a new general practitioner (consequent upon a proposed change of her residence). In circumstances where PSB has complex health issues and there is disagreement amongst those who would be her statutory health attorneys, there is need for the ongoing appointment of a guardian for health decisions.
PSB’s daughters are at loggerheads about where she should reside. MNR feels that PSB should be moved back to a care facility in Beaudesert, or may be able to live independently with her support. Her sisters oppose this. There is a need for a guardian for accommodation decisions.
Should the current guardians continue or is another appointment more appropriate?
The Tribunal must determine whether the appointed guardians remain appropriate for decisions about health care and who would be most appropriate for appointment to make decisions about where PSB lives.
Criticism raised by MNR about her sisters’ actions as guardians included the decision to move their mother to Hervey Bay and what she said was their failure to promote her ability to speak to her mother by delays in having a private phone placed in her room. She also noted concerns around the state of her mother’s dental treatment when she first moved to her new residence and that she missed an appointment for the interrogation of her pacemaker.
It was clear though that MNR did not forward all of her mother’s medical information to her sisters when PSB moved to her new residence. She had been dealing with her mother’s health care informally, prior to the appointment of her sisters as guardians. No independent evidence was led that PSB’s dental treatment was neglected and the Tribunal accepts that the appointed guardians acted promptly to ensure that their mother received the appropriate cardiac care, within a reasonable time after their appointment.
The decision to move PSB to her new residence is of concern to the Tribunal. Whilst the appointed guardians say, and the Tribunal accepts, that a move was required from the previous care facility where PSB resided, no satisfactory explanation was forthcoming as to why another facility, closer to where PSB had resided, was deemed inappropriate. Further, the guardians were appointed only for health care decisions – not for accommodation decisions. Whilst health care for a person living in a high care placement can be said to be linked to that accommodation, the Tribunal finds that the guardians acted outside the scope of their appointment in moving PSB, and they acknowledge that they did so without seeking in any way to consult MNR. Even if they had been acting within the scope of their appointment, such behaviour fails to show appropriate regard to a guardian’s obligation to ensure that maintenance of PSB’s existing supportive relationships was taken into account.[1] The appointed guardians have raised concerns about their ability to communicate effectively with MNR and refer to what they say is her aggression toward them.
[1] General principle 8 of the Guardianship and Administration Act 2000.
The simmering ill-feeling between PSB’s daughters was palpable at hearing. MNR went so far as to accuse one of her sisters of being complicit in the premature death of her aunt who had been ill in hospital. Whilst she was able to acknowledge that such an allegation was scandalous if untrue, the only basis for the assertion that she could offer was that her sister had the opportunity, by virtue of visiting her aunt in hospital, and motive because she stood to benefit under her aunt’s will.
Decisions about where PSB lives and about her health care should be made, where possible, by a guardian who is able to seek input from all relevant parties about what is in her best interests when formulating their decisions. Whilst such a consultative approach is not specifically mandated by the Guardianship and Administration Act 2000, it is, in the Tribunal’s view, a relevant consideration when weighing the question of who is appropriate and competent for appointment as guardian and it is inherent in making health care decisions in compliance with the health care principle set out in the Act. That principle requires, in part, that exercise of the power to make health care decisions only occur if it “is, in all the circumstances, in the adult’s best interests” (emphasis added)
The conflict between the siblings here also impacts on any of their ability to apply general principle 8, in maintaining PSB’s existing supportive relationships.
On that basis the Tribunal is not satisfied that the current guardians remain appropriate for appointment to make decisions about health care or that MNR is appropriate for that appointment. The Tribunal cannot be satisfied that any of the siblings are appropriate for appointment as decision makers about where their mother should live.
In those circumstances[2] the Tribunal can consider the appointment of the Adult Guardian. The Tribunal is satisfied that the Adult Guardian is experienced, independent, competent and will liaise with all parties who have an interest in ensuring that the best decisions are made for PSB.
[2] Section 14(2) Guardianship and Administration Act 2000.
At the hearing in 2011 it was found that an earlier enduring power of attorney, executed by PSB, which appointed her three daughters as attorneys should be overtaken by the appointments the Tribunal made. For the reasons above that remains appropriate.
Orders are made accordingly.
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