SAL - [2013] QCAT 31 | CaseChat AU

CITATION:

SAL [2013] QCAT 31

PARTIES:

SAL

APPLICATION NUMBER:

GAA7965-12, GAA10395-12, GAA10396-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

10 December 2012

HEARD AT:

Brisbane

DECISION OF:

Pam Goodman, Member

DELIVERED ON:

11 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Adult Guardian is appointed as guardian for SAL for decisions about the following personal matters:

(a) Accommodation;

(b) With whom SAL has contact and/or visits;

(c) Health care.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six (6) months.

3. The appointment of The Public Trustee of Queensland as administrator for SAL for all financial matters is continued.

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 remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in six (6) months.

7. The hearing is adjourned to 18 March 2013 at Brisbane at 1:30pm.

CATCHWORDS:

GUARDIANSHIP AND ADMINISTRATION – where independent appointees preferred in case of family disharmony

APPEARANCES and REPRESENTATION (if any):

SAL did not attend the hearing but other family members did:

SA (son); ST (son); SJ (daughter-in law); SR (daughter in law); WT (niece); SAN (grandson); and TZ (friend) attended in person. PH (daughter) appeared via telephone.

Lisa Jackwitz attended as the representative of the current administrator, the Public Trustee of Queensland.

The Tribunal and the parties were assisted by Ms Alexandra Pavlyskyi, interpreter.

REASONS FOR DECISION

The Tribunal is considering an application for the appointment of a guardian, and is reviewing the appointment of an administrator for SAL.
In making this decision, I have had regard to the provisions of the Guardianship and Administration Act 2000 (GAA) and the Queensland Civil and Administrative Tribunal Act 2009.
SAL is an 89 year old lady who is currently residing in Victoria with her daughter PH. She previously resided in Queensland with her son SA.
Pursuant to s 12 GAA, the first issue for the Tribunal’s consideration is whether SAL has impaired capacity for making financial and personal decisions. The legislation provides that all adults are presumed to have capacity to make their own decisions. I must determine whether that presumption is rebutted. Capacity is defined in Schedule 4 of GAA.
In this case, I have had regard to the report of Dr Krysia Debicki, SAL’s GP for the last approximately 5 months. Dr Debicki states that SAL has severe Alzheimer’s disease, bipolar affective disorder and hypothyroidism, and that she has no capacity to understand and act on information relevant for decision making, or to appreciate the consequences of decisions or the lack of decisions. SAL’s family supported this evidence, and agreed with the doctor’s evidence that she is incapable of understanding anything except the most basic instructions.
On the evidence presented, I am satisfied that the presumption that SAL has capacity for financial and personal decision making is rebutted.
I must turn to consider whether there is a need for decisions to be made, and whether an appointment is necessary to adequately meet SAL’s needs, or to adequately protect her interests.
I will consider first the application for the appointment of a guardian. A guardian makes personal decisions for another person (essentially, decisions that do not involve money). It is often the case that an appointment of a guardian is not necessary as a person’s support network will assist in the decision making process without the need for a formal appointment.
In this case, there is ample evidence before the Tribunal that the family are in dispute and are unable to work together to ensure that SAL’s needs are met and that her interests are protected. The family themselves assert this to be the case.
There is discord between family members as to where SAL should live. In particular, PH proposes that her mother remain living with her in Victoria and SA proposes that she should return to live with him in Queensland, where she had previously resided long term. There is a dispute between the parties as to the basis upon which SAL travelled to Victoria in August 2012 to stay with her daughter. PH states that the arrangement was to be permanent, SA states that the arrangement was to be short term. Each party suggests that SAL would prefer to live with them, and that she does not want to live with the other party. Each party raises concern as to whether the other will provide an appropriate level of care to their mother. There is a need for a decision maker to determine where SAL will live.
SA and other family members provided evidence that SAL has had no contact with them since moving to stay with PH. PH states that SAL does not wish to have contact with other family members, or that she is unavailable when they telephone. There is considerable conflict amongst the family as to how contact with SAL could be best facilitated. There is a need for a decision maker to determine who SAL has contact with, and how that will be arranged.
SAL is an elderly woman with complex health care needs. Since she moved to live with PH, the rest of her family have not been provided with any information regarding her health. They do not know if her health care needs are being met. There is limited evidence before the Tribunal. I am satisfied that there is a need for a decision maker to make health care decisions in SAL’s best interests.
I am satisfied that there is a need for a guardian to be appointed to make decisions for SA relating to accommodation, health and contact. SAL has a large family and there is a high degree of distrust and anger between family members. All family members agreed with the Tribunal’s assessment that an independent guardian would be best placed to make personal decisions for SAL that are in her best interests, and that take into account the views of all parties, and the General Principles set out in Schedule 1 of GAA.
I am satisfied that it is necessary and appropriate that the Adult Guardian be appointed to make personal decisions for SAL in the areas discussed above.
I considered also the application for review of the appointment of an administrator. An administrator is responsible for making financial decisions on behalf of another person. On 19 June 2012 this Tribunal appointed the Public Trustee of Queensland (PTQ) as administrator for SAL. The review of that appointment was conducted in accordance with s 31 of GAA.
As noted above, I am satisfied that SAL does not have the capacity to make financial decisions that will meet her needs and protect her interests.
There is an ongoing need for an administrator to be appointed.
Prior to the appointment of the PTQ, SA had been appointed as his mother’s administrator. The PTQ has conducted an investigation into SA’s conduct of the administration and has found no areas of concern.
PH and SA objected to any suggestion that the other be appointed as administrator. Given that SAL’s long term accommodation arrangements are to be determined by the Adult Guardian, the appointment of a family member as administrator is somewhat fraught at this time. SA and HP are unable to work together. If SAL were to remain living with HP, the appointment of SA as administrator would not be tenable. Similarly, if SA were to return to live with SA, the appointment of HP would inevitably lead to conflict.
As matters currently stand, the family members agreed with the Tribunal’s assessment that an independent administrator is more appropriate to make financial decisions for SAL. The appointment of the PTQ will be extended.
This is a somewhat unusual matter, given the high degree of family disharmony, the language barrier (although most present at the hearing were able to speak English, the assistance of the interpreter was required to ensure that all could fully participate), SAL’s high degree of incapacity, and the uncertainty currently surrounding her long term accommodation and health care arrangements.
I am satisfied that it is appropriate that this hearing is adjourned for a short period to enable the Adult Guardian and the Public Trustee of Queensland to work with the family to finalise pressing decisions, in particular, the issue of where SAL is to reside. Once that decision is made, others will flow (eg establishment of a weekly budget and purchase of any big ticket items; contact arrangements for family members etc). It may be that within a short period, an ongoing appointment is unnecessary, or another appointee is more appropriate for appointment. Accordingly, consideration of this matter is adjourned to 1.30pm on 18 March 2013.