SAA
[2012] QCAT 707
| CITATION: | SAA [2012] QCAT 707 |
| PARTIES: | SAA |
| APPLICATION NUMBER: | GAA7627-12 / GAA7628-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 21 November 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | Mark Johnston, Member |
| DELIVERED ON: | 21 December 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for SAA for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services; (d) Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 3. The Public Trustee of Queensland is appointed as administrator for SAA for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. 7. That before 21 February 2013 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. |
| CATCHWORDS: | Alzheimer’s and chronic anxiety – depression impact on decision making |
APPEARANCES and REPRESENTATION (if any):
SAA the Adult
GR Interpreter
SG Adult’s husband
BJ Social Worker Mareeba Hospital
JC Applicant ACAT Social Worker
DJ from the Office Adult Guardian
GJ and GR from the Public Trustee of Queensland.
Sgt HB Mareeba Police
REASONS FOR DECISION
Background to hearing
On 5 September 2012 the application about SAA was lodged with the Tribunal by JC Social Worker a member of the Aged Care Assessment Team which is part of Queensland Health. The Applicant sought an interim order appointing a guardian namely the Adult Guardian and of the appointment of an administrator namely the Public Trustee of Queensland. An interim order was granted on 3 October 2012 appointing the Adult Guardian for the following matters: accommodation decisions; provision of services; health care and legal matters not relating to SAA’s financial property matters. The interim order did not appoint the Public Trustee of Queensland as administrator.
On 21 November 2012 the hearing of the application took place in Cairns.
Something about the adult
SAA is a 75-year-old Italian woman who until recently resided with her husband in her own home. SAA and her husband have no children and limited friends in the community. SAA has a primary diagnosis of progressive dementia; she has diabetes; osteoarthritis; hypertension and suffers from migraines. She is known to the Mareeba Police because of ongoing physical violence between SAA and her husband SG. SAA has a temporary Domestic Violence Protection Order against her secondary to acts of physical violence towards her husband. SAA was recently admitted to the Mareeba Hospital together with her husband SG. Prior to SAA being admitted to the Mareeba Hospital Sgt HB of the Mareeba Police raised concerns about the support she had received and the state of the domestic living environment. HB was concerned that it is deteriorating and that there were strong concerns about the ability for SAA and her husband to care for themselves on a daily basis.
Does the adult lack capacity?
The Tribunal received a health professional report from Dr SR specialist geriatrician attached to the Mareeba Hospital. In paragraph 4.1 of his report which asks about the adult's current medical conditions he states SAA suffers from a number of current medical conditions that include “Alzheimer's” and “chronic anxiety – depression”. He states that these conditions are likely to have lasted for “likely two – three years”.
In paragraph 4.6 of the report it is noted that a cognitive assessment had been performed with the aid of an interpreter and a score of “5/30” obtained. This result raises significant concerns about SAA’s ability to function independently in the community.
In paragraph 5.1 of the report the Doctor talks about the extent to which SAA has the ability to understand and act upon information relevant for making decisions and the extent to which the adult appreciates the consequences of the decisions. In relation to personal health care the doctor has written the words “unable to make appropriate decisions without supervision – encouragement”. In relation to lifestyle and accommodation choices the doctor has written the words “no insight into care needs. Has refused services for the last year despite evidence of some neglect and house not well kept” and in relation to financial affairs “nil understanding about financial issues”.
In the summary at paragraph 9 of the report the doctor states that SAA is unable to make simple decisions about: personal health care; lifestyle accommodation choices; and financial affairs. The basis for the incapacity is stated to be a history of dementia.
The Applicant provided a letter to the Tribunal which contains a very good outline of the issues. The Aged Care Assessment Team conducted an assessment of SAA’s ability to function within the community. They have assessed that SAA lacks capacity to manage on her own and she presents with high care needs.
SAA is well-known by the ACAT team and a number of assessments and reviews of her functional profile have been undertaken. These show that a cognitive impairment has been diagnosed. Her partner also has some cognitive impairments and living at home is not a viable option in the circumstances.
Oral evidence
SAA
SAA is a delightful Italian lady. She believes that her health has improved since her time in hospital and she feels that she is able to return to home and live in the community.
JC Social Worker ACAT
There have been concerns about SAA’s ability to live in a home because of episodes of domestic violence involving her and her husband; and an incident of throwing rocks at her neighbour’s house. SAA was brought in to hospital and assessed. When she was discharged problems persisted and the police charged her with domestic violence and put in place a Protection Order. Continued episodes of domestic violence resulted in her being placed in hospital where she stayed. Her health has improved with regular meals and medication; her cognitive ability has improved however she would not be able to go home without significant supports. She has been diagnosed with a moderate impairment.
BJ, Social Worker Mareeba Hospital
She is a social worker based at the Mareeba Hospital. She has known SAA since she became an inpatient in the hospital. She has seen with regular meals; and her diabetes under control improvements in SAA's cognitive functioning. However the hospital has found it necessary to use sedatives to treat her and she has been kept separate from her husband. There are still episodes of escalating behaviour that are of concern. She agrees with JC that SAA is suffering from a dementia type of illness. She has a cognitive impairment due to her dementia. For example she cannot recall events which had occurred a couple of hours earlier. When she was questioned about her involvement with the court and the episodes of domestic violence she denies that anything like that ever happened.
Sgt HB Mareeba police prosecutor
He set out his concerns in a letter dated 17 July 2012 to the Office of the Adult Guardian in which he stated as follows:
It is indeed unusual for Police to be involved or even generally concerned with these types of situations; however the SAA and GS are a unique case.
I first had contact with the SAA and SG on 21 January 2011, when SAA was arrested for offences of Serious Assault Police, Public Nuisance, and Obstruct Police.
The circumstances surrounding her arrest, was that she was throwing large stone's (fist sized) onto her neighbours roof and threatening to kill her neighbour. Police were called and she would not settle and continued her behaviour and was swearing at the front of the house, despite all the police efforts to calm her. She was eventually arrested when all other avenues were exhausted and during arrest she resisted officers and bit one officer on the hand.
I saw SAA in the Mareeba Police Station; she was distraught, wholly emotive and obviously mentally unwell. I spoke with her solicitor and support person that day, who assured police that strong steps would be taken to ensure she receives some ongoing mental assistance.
In short, police did not proceed with the prosecutions on the basis that it was not in the public interest to proceed given SAA’s obvious mental state.
On 16 May 2011 police received reports from neighbours of domestic violence between SG and SAA, on arrival we is located SG who was bleeding from the head and the left forearm. They also noted bruising to his head. He advised that SAA had beaten him on the arm. He also advised she had hit him in the head with her cane. SG was referred to the local hospital. SAA was referred for Mental Health Assessment.
Police came involved with family on 6 June 2011, where it was alleged that SAA had attacked SG with a walking stick, causing a laceration to his right ear and also threatened him with a knife. SAA was taken for an Emergency Mental Health Assessment.
Police again had further contact on 19 January 2012 when there were further allegations of Domestic Violence. On this occasion in police presence, SAA spat twice on her husband and was abusive and threatening towards him. SAA was again subject to another Emergency Mental Health Assessment.
On 11 June 2012, police were again called to the residence due to Domestic Violence issues, SAA threatening to kill SG and armed with a knife. Damage done to property. Again SG sustained cuts to his head. Again SAA was taken for Emergency Mental Health Examination, and a temporary protection order was made.
On 27 June 2012, that order was breached by SAA as police were again called to the residence as SAA had again struck SG in the head with a walking stick and caused over 2 cm long laceration.
On each of these above mentioned occasions, the Office of Mareeba Prosecutions was consulted as to the best course of action. Police personnel constantly reported that deterioration of the residential environment regarding hygiene, large amounts of medication in the residence and an ongoing concern to the ability of SG and SAA to reside independently.
Police prosecutions received a request for a direction on whether to proceed with charges in relation to the matter on 27 June 2012 with police prosecutions endeavouring to liaise with mental health to put some long-term care in place for SG and SAA as it was not considered appropriate to lodge prosecutions at that stage. Notwithstanding the best efforts of the Mareeba Hospital, mental health, police and other agencies, SAA was refusing to engage and attend appointments.
On 11 August 2012, police again were called to the SAA and SG address, where this time SAA was the victim of violence from SG. She had been struck on the head and as a result bit SG on the arm causing an injury which wound bleed profusely.
Sgt HB pointed out that they had an Italian speaker on staff and one of the female police officers was fluent in Italian. Despite the numerous attempts the situation within the home did not improve and SG and SAA were at great risk of physical harm from each other.
He went on to tell the Tribunal that it is necessary to charge SAA and take out a Domestic Violence Protection application out against SG. He supported the appointment of the guardian and the appointment of a financial administrator.
Discussion of the evidence
It is quite clear that SAA is suffering from a form of dementia and that one of the features of her illness is that her short term memory is extremely poor. SAA was horrified by the allegations raised by Sgt HB and denied that she had acted in the way alleged. Unfortunately all the allegations which have been made by the police are supported by evidence at the time. I accept the written evidence of Dr SR and the evidence of JC that SAA suffers from a form of dementia and is cognitively impaired. Whilst there have been some improvements in SAA’s mental state since her stay in hospital it is clear that the residual effects of her condition impact significantly on her cognitive functioning. The fact that SAA has no insight into her condition and her actions is not an unusual feature of dementia. There is ample evidence, notwithstanding language difficulties that SAA has impaired decision-making capacity.
Findings of Fact
SAA was admitted into the Mareeba Hospital because of concerns that she was no longer able to live in her home.
SAA has been diagnosed with the medical condition Alzheimer's.
SAA’s cognitive abilities have improved while she has been in hospital.
SAA’s cognitive abilities remain severely impaired as a consequence of the progress of the Alzheimer's disease.
Decision in relation to capacity
The Tribunal determines for these reasons that the adult does not have capacity to make decisions about the matter.
Legal requirements of the appointment of decision-makers
Section 12 or the Guardianship and Administration Act 2000 provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision-making capacity the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the Tribunal determines that the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.
Is there a need for a guardian?
DJ
She was of the view given the following factors that it was no longer possible for SAA to return home: the legal issues; the Domestic Violence charges and Protection Orders; the progression of the dementia; the state of her house; and the hours of support that would be needed, would be unsustainable. In her view SAA needs 24 hour support seven days a week which is currently being provided by the Mareeba Hospital.
The hospital is not the appropriate place for someone in SAA’s position. A nursing home placement is the most appropriate place for her. Her needs have been assessed by ACAT as High Care. A placement in a high care local nursing home is what is needed.
On 22 October 2012 BJ, social worker, at the Mareeba Hospital informed the delegated guardian that SAA and her husband both had been offered a permanent high care placement at the Mareeba Blue Care Garden Settlement and that they could go in as a couple. The delegated guardian accepted a place on the behalf of SAA and her husband. The transfer from the hospital was arranged for 31 October 2012. At the request of the delegated guardian, Ms BJ arranged for an interpreter who discussed this option with SAA. It was reported that SAA became very upset about the suggestion and lost control and refused point blank to go to the Mareeba Garden Settlement. On 1 November 2012 the guardian was advised by JB that Mareeba Garden Settlement had withdrawn the offer until a financial administrator had been appointed as they are concerned about who will sign a service agreement.
DJ in her oral evidence subsequently advised the Tribunal that Mr and SAA had met with the DON at Oz Care and that the Guardian had made a decision accepting positions in this nursing home for SG and SAA. She submitted that there was a continuing need for decision-making around: accommodation; service provision; health care; and legal matters. In relation to who is most appropriate to make decisions there are no family members or friends who are willing to advocate for her and it was not appropriate to require Queensland Health to undertake the role.
JC, BJ and HB
They all supported the appointment of a guardian in these areas.
Discussion
The Tribunal agrees with the submissions with regard to the need for a guardian. It is supported by the written and oral evidence presented to Tribunal.
Finding of Facts
SAA does not have any informal family supports of her own to assist her in making decisions.
SAA’s ability to make her own decisions around health, accommodation and legal matters is impaired.
SAA’s needs require a nursing home placement.
Appropriateness
The Adult Guardian indicated that SAA’s family live in Italy. She has no children and no relatives in Australia. She has some friends in the community and was participating in the local Catholic Church but no one is willing to undertake the role of supporting her.
JC, BJ and HB all supported the appointment of the Adult Guardian.
Findings of fact
There are no family members or friends wishing to support SAA around the important decisions that need to be made in her life.
The Adult Guardian is a professional guardian who is appropriate to undertake given a history of the adult refusing services.
Decision in relation to the need for a guardian
The Tribunal determines that there is a need for a decision in relation to the following areas: accommodation; service provision; health; and legal matters not involving property or finances. The Tribunal is satisfied that without the appointment of a guardian there is an unreasonable risk to the adult’s health and welfare. The Tribunal is satisfied that the need for an appointment of a guardian has been established.
Does someone need to help SAA to manage her finances?
JC
She told the Tribunal that SAA had no idea of how to manage her finances.
BJ
She agreed with JC's assessment of SAA’s ability to manage her finances. She was for example unable to complete a statement of their financial assets for the purposes of the nursing home application. She would not be able to make arrangements to sell her house if the money is needed for the nursing accommodation. She has been reliant on her husband SG to manage their finances and he is no longer able to do that. She has observed SAA removing money from her husband's wallet when he is not there. She then wraps it in a handkerchief and hides it.
DJ
She supports the appointment of an administrator because an administrator is necessary to facilitate an entry into a nursing home. A previous placement has failed because there was no administrator in place. This has meant that a placement in a nursing home in their local community has been lost.
Sgt HB
He strongly supported the appointment of an administrator and indicated that he was disappointed that an administrator has been appointed on an interim basis at the same time as the Adult Guardian.
Findings of fact
SAA has an interest in her home with her husband which will need to be managed.
The adult is unable to budget. There are debts that will need to be paid and costs for accommodation that will need to be met.
Is there a need for an administrator to be appointed?
The Tribunal is of the view that there is a need for a decision in relation to financial matters. There is evidence of the adult’s financial vulnerability. The Tribunal determines that there is an unreasonable risk to the adult’s property and that without an appointment the adult’s interests will not be adequately protected. The Tribunal determines that the need for the appointment of an administrator has been established.
Appropriateness
The Tribunal noted that no family members or friends attended the hearing or were suggested during the hearing as appropriate to be appointed as decision-makers for the adult.
The applicant JC, JB the social worker attached to the Mareeba Hospital, the guardian's representative and Sgt HB all supported the appointment of the Public Trustee.
The Tribunal is of the view that an independent administrator is well placed to liaise with all interested parties, assess the relative merits of options the decisions on financial matters and to make decisions that best meet the adult’s needs.
Findings of fact
The adult has no family members or other persons willing and able to act as decision-makers for her.
The Tribunal determines that the appointment of the Public Trustee of Queensland is an appropriate appointment in the circumstances.
Discussion
What we have seen without the appointment of the administrator is that an appropriate placement in Mareeba Garden settlement which is in the community the adult has lived in has been withdrawn. The next offer of placement was from Oz Care in Malanda which is outside the normal community in which they live. This is a disappointing result.
Interpreter
The Tribunal notes how helpful the interpreter was in the process to help the adult.
These reasons have been put in writing so that they can be explained to SAA with the aid of an interpreter.
General comment
SAA and her husband SG are lovely people. They have lost their way with the onset of dementia and in the absence of a supportive family member or friend. The decline in her cognitive functioning and her husband's declining cognitive abilities have no doubt contributed to the occurrences in 2011 and 2012 involving several episodes of domestic violence. It is hoped that with the support of a guardian and administrator to make personal and financial decisions that the quality of their life can be improved and that they can spend the latter part of their lives properly cared for. The Tribunal hopes that with these appointments the Queensland Police Service will discontinue charges against SAA and would ask the Adult Guardian to advocate on her behalf in this regard.
The Tribunal appoints the Adult Guardian as guardian for SAA for a period of 12 months in relation to the following matters: accommodation; service provision; health; and legal matters. The Tribunal appoints the Public Trustee of Queensland as the administrator for SAA until further order and dispenses with the need for the administrator to lodge a financial management plan. The administrator is to conduct a search to see if there is any land in the adult’s name and if so to lodge a notice of interest over such property or properties and provide a copy of the notice to the Tribunal.
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