RDM

[2017] QCAT 198

CITATION:

RDM [2017] QCAT 198

PARTIES:

RDM

APPLICATION NUMBER:

GAA12824-16; GAA12828-16;GAA1082-17; GAA1083-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

28 April 2017

HEARD AT:

Southport

DECISION OF:

Member McDonald

DELIVERED ON:

22 May 2017

DELIVERED AT:

Southport

ORDERS MADE:

1.   The appointment of KM and DM jointly and severally as guardians for RDM for the following personal matters is revoked:

(a) Accommodation;

(b) Health care;

(c) Provision of services.

ADMINISTRATION

2.  The appointment of KM and DM jointly and severally as administrators for RDM for all financial matters is revoked.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult with impaired capacity has administrators appointed for financial matters and guardians appointed for personal matters – where reviews of those appointments were sought – where parties have moved interstate – where conflict between jointly and severally appointees –whether QCAT has jurisdiction to make appointments – whether sufficient connection with Queensland for extra-territorial reach of Tribunal to resident of another State

Guardianship and Administration Act 2000 (Qld), s 12, s 31, Schedule 1, Schedule 4

APPEARANCES:

RDM, ASM,KM, DM, WS,

REASONS FOR DECISION

1. RDM is a 78 year old man living with his wife, ASM, in the community. In May 2016, he had a stroke (cerebral artery stroke). Following a hearing on 22 September 2016, the Tribunal appointed his son and daughter, DM and KM, jointly and severally as Administrators for all financial matters and as Guardians for decisions about accommodation, health, and services.

2. On 22 November 2016, KM brought an application for review of these appointments, proposing her sole appointment, noting conflict between the co-appointees.

3. On 7 February 2017, the Tribunal received an application for review of the appointment of the administrators and guardians from DM, proposing continued joint and several appointments as guardians and amendment to the order proposing joint appointment for matters financial decisions in excess of $1000, and quarterly reporting “to ensure sufficient oversight.” 

4. At the hearing of this matter, RDM informed the Tribunal by reading his pre-prepared statement that he did not wish to have his son DM in an ongoing role managing his financial affairs but he wanted his daughter to continue to do so.

5. DM informed the Tribunal that he had not had contact with his parents since November 2016, when his father had angrily informed him that he did not want him to be involved in his financial decisions. He said that his parents do not have a phone and he has not spoken with them or KM since this time. DM informed the Tribunal that he was concerned that KM had been alienating him from his parents and he did not trust her sole decision-making. He stated that he considered that KM had “sabotaged his relationship with his parents to protect her own interests” in managing their parent’s financial affairs. He had concerns that only 7 days after the Queensland order was recognised in NSW, (where RDM is now domiciled,) KM filed for this review, effectively not giving the opportunity for collaboration. He was concerned that the purchase of a Villa in Tamworth was not a prudent financial decision, given the poor return rate on property in that area. He wants to ensure that “due diligence” occurs in financial decisions into the future. He was not satisfied that this approach was used in the decision KM made as administrator for RDM, to purchase the Tamworth villa. He was anxious that this decision had not been transparent, and that it had not been undertaken with in conjunction with an ACAT assessment as to determine what level of care needs his parents had.

6. KM informed the Tribunal that she had in fact obtained an ACAT assessment for her parents living needs, and provided the tribunal with reference numbers for this. She said she had experienced significant difficulties seeking collaboration from DM, and that in his dealings with her she had felt bullied. She stated that he had “not physically done anything” in the administration, leaving the actions to her. She said he had been obstructive in decision-making, and stated that she was concerned that DM was not allowing RDM to have a voice, in circumstances where RDM could communicate that he wanted to purchase the Villa in Tamworth. She referred to what she described as abusive phone calls from DM. KM indicated that it was both her parents’ wishes to relocate to Tamworth to be nearer to her as they age, their primary day to day support. She explained that RDM and his wife are now living independently in the community and managing well in her view, with her regular contact from her. In her view, there is no current need for support services to come into the home. She described RDM, having had his driver’s licence restored, as being a regular active tennis player. Both ASM and KM described their observation of considerable post stroke recovery. 

7. KM asserts that the stroke impaired RDM’s communication, but he has had significant recovery physically and cognitively since then, and she considers she is capable of contributing to decision-making and determining who manages his financial affairs. She considered that as DM had not been in communication with RDM, he was not aware of the extent of the recovery. KM did not furnish the Tribunal with a current report about his ability to make an enduring power of attorney, or medical evidence reflecting this recovery. The report that was submitted to the Tribunal was a speech therapist’s report which focused on his receptive and expressive aphasia.

8. When the Tribunal conducts a review of the appointment of an Administrator and Guardian under section 31 of the Guardianship and Administration Act, the legislation requires that the Tribunal must revoke an appointment unless it is satisfied that it would make the appointment if a fresh application were to be brought.

9. To make a fresh appointment, the Tribunal must be satisfied that the adult lacks capacity to make decisions and that there is a need for decisions to be made and without an appointment his needs will not be adequately met or interests protected.

10. The Tribunal notes the speech pathology report of LW dated 2 February 2017 indicates that RDM continues to have a moderate to severe Wernicke aphasia derived from the stroke he suffered in May 2016. She assessed that RDM has moderate to severe difficulties in auditory comprehension and reduced insight into his communication difficulties. This report indicates that he does have the ability to communicate his basic needs and wants especially with familiar communication partners. He is able to comprehend single words, written or spoken most of the time, and continues to have an unreliable yes/no response. He can make use of visual supports to support comprehension. The report suggests he continues to lack capacity in relation to complex communication. It was evident in the hearing that RDM was able to communicate his wishes very clearly about who he sought to manage his finances. He read from a statement and emphatically, albeit slowly, and strongly informed the Tribunal that he did not want his son to continue to manage his affairs, and instead wanted KM to do so. RDM’s verbal and non-verbal communication on this point was very clear. It may be appropriate for RDM to revisit his capacity to execute an enduring power of attorney.

11. RDM is now domiciled in New South Wales. Both applicants also live in New South Wales on a permanent basis. There is evidence that RDM visits his unit in Queensland on several occasions throughout the year, staying for short periods for holidays and at times, without any support or supervision. For the Tribunal to have jurisdiction to make orders in these circumstances, RDM would need to be domiciled in Queensland or have sufficient connection to Queensland. Given that his permanent domicile is now New South Wales, the laws of New South Wales should regulate this matter, and the Queensland Civil and Administrative Tribunal would have no basis to grant an application for appointment if a fresh application were to be made. The Tribunal must revoke the appointments of both guardian and administrator.