SAS - [2014] QCAT 26 | CaseChat AU

CITATION:

SAS [2014] QCAT 026

PARTIES:

SAS

APPLICATION NUMBER:

GAA9494-13; GAA 9495-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

22 November 2013

HEARD AT:

Nambour

DECISION OF:

Member Mc Donald

DELIVERED ON:

15 January 2014

DELIVERED AT:

Maroochydore

ORDERS MADE:

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

(a) Accommodation;

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

(c) Health care;

(d) Provision of services;

(e) 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 SAS for all financial matters.

4. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

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 five (5) years.

7. The Administrator shall within fourteen (14) days:

(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.

9. The administrator shall within fourteen (14) days identify by way of a search of the records held by the Registrar, any power of attorney registered in the name of SW.

10. If a power of attorney is found to be registered in the name of the adult, the administrator shall lodge with the Registrar of Titles within fourteen (14) days, a copy of the order of the Tribunal.

CATCHWORDS:

Application for appointment of guardian – application for appointment of administrator

Guardianship and Administration Act 2000 ss 12, 14, Schedule 1

APPEARANCES and REPRESENTATION (if any):

SAS, NK, MK, DK, JM, RN

REASONS FOR DECISION

SAS is a 45 year old woman of indigenous background with significant physical impairment as a result of cardiopulmonary disease. The Tribunal has been informed that she has had 47 major suicide attempts, and is a significant consumer of hospital services on the Sunshine Coast. There are at least 13 community services involved in the support of the adult’s highly complex care needs. She has been allocated a care co-ordinator by Nambour Hospital due to the complexity of her needs.
An application for the appointment of an administrator and guardian was initiated by JM, the adult’s case manager at mental health services.
In considering the application the Tribunal must be satisfied (s 12 Guardianship and Administration Act 2000 (the Act)) that:
a)    the adult has impaired capacity for the matter,
b)    that there is a need for a decision in relation to a matter, or 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
c)    without an appointment the adults needs will not be adequately met or interests adequately protected.
The Tribunal must also be satisfied the proposed appointee is appropriate, and will apply the general principles of the Act identified at schedule 1.
The Tribunal considered evidence about SAS’s capacity. Medical evidence provided by JM, clinical nurse and case manager stated that SAS has advanced cardiopulmonary disease, and has a further diagnosis of borderline/ histrionic personality disorder with a history of drug abuse of mostly prescription drugs. JM told the Tribunal that SAS’s cognition may be impacted when hypoxic, and is generally vulnerable to being influenced.
JM has observed SAS to be unable to manage her finances. She notes that she is illiterate with poor numeracy. She notes that the adult has memory problems. She considers that she presents with a learning difficulty. She stated that she has observed SAS to become overwhelmed and unable to cope, and be unable to initiate action in relation to decisions that need to be made about her finances. She has no understanding of how to remedy bills or attend to banking, and as a result she has extensive unpaid bills. She stated that SAS becomes confused very easily. She has difficulty organising and administering medications despite being in a Webster pack which allocates daily medications between morning and night requirements. In her confusion, she has on an occasion taken all the week’s medications in the Webster pack. Due to SAS’s high level of need, the mental health mobile intensive team visit her twice each day.
JM advised the Tribunal that SAS makes very poor decisions in relation to her health and safety. SAS continues to smoke, despite being reliant on oxygen cylinders 24 hours a day to assist her to breathe. Recently, SAS was seriously burnt when her cigarette ignited the oxygen while in use.
SAS participated intermittently in the hearing, and was observed to be limited in her participation by her significant difficult breathing and her constant reliance on the oxygen.
MK, the adult’s ex husband participated in the hearing with SAS’s consent. Information provided by MK at the hearing indicated that the parties have not formally divorced. Further, although Federal Circuit Court Orders have been made awarding the former matrimonial home to SAS, these orders have not been affected. MK advised the Tribunal that SAS has a lengthy history of suicide attempts and self harming behaviour. He linked this to the involvement of the public trustee in the adult’s life and warned that SAS would be likely to be suicidal if the public trust was appointed as administrator. Further he stated that she was very vulnerable to being taken advantage of, and this was demonstrated by people regularly taking items from her home, and she is powerless to stop them.
The Tribunal clarified SAS’s views about the appointment of the Public Trust. SAS confirmed clearly on more than one occasion in the hearing that she wanted the public trust to be appointed to manage her financial affairs.
SAS has recently separated from her husband. MK advised the Tribunal that he has given her everything in the property settlement. He advised that an agreement has been reached to “give” the house to SAS. MK provided verbal indication that the property was valued at approximately $700,000. This property has not been transferred into SAS’s name as yet, and SAS indicated no understanding of this process. NK advised the Tribunal that she and DK currently reside there without payment of rent. Further she stated that SAS is gifting this house to them. They oppose the Public Trust appointment based on SAS’s previous unhappy involvement with the Public Trust, which they believe led to suicide attempts.
SAS advised that DK’s girlfriend told her to leave the property. She stated that people were taking money from the house and she was unable to prevent it.
Presently, SAS is living in St Vincent de Paul accommodation given her crisis situation. DK, the adult’s son stays overnight intermittently with SAS. MK considers that DK is providing an acceptable level of care to SAS. He refers to the incident where DK put out the fire to suggest that this is an example of DK providing appropriate care to SAS, and SAS’s need for support from her children.
JM stated that SAS’s accommodation is highly vulnerable because she has repeatedly breached her tenancy agreement by having DK stay overnight. Eviction has been proposed by the lessor, and her accommodation is sustained only by the goodwill of the community service organisation given the high level of SAS’s needs. SAS has been unable to manage issues around preventing the breach, or dealing with the proposed eviction.
The Tribunal finds that SAS does not understand the nature and consequences of her personal and decisions, being unable to take action to protect her interests in relation to her accommodation, and manager her day to day medical health and financial decisions. She is vulnerable to influence such that her decisions are not freely and voluntarily made. Subsequently, the Tribunal finds that SAS does not have capacity for personal and financial decisions. The Tribunal must then determine whether there is a need for a substitute decision maker in these areas.
JM and RN indicate that SAS’s care needs are at a high care level, where she requires 24 hour supervision and care from qualified nursing staff due to her medical and cognitive needs. The adult continues to be a risk to herself smoking while using oxygen cylinders. Further she has mental health services administer her medication twice a day; however this is not sustainable into the long term. JM states that on some days SAS is agreeable to a care facility which can provide an appropriate level of care, however, from day to day, she is not consistent with these views. It is JM’s firm view that the adult requires a significantly higher level of care than she currently receives.
MK submitted that NK and DK can adequately provide the care SAS requires. JM stated that care has previously been provided by family members which was not optimal, and since that time, the adult’s care needs have increased significantly. She submitted that SAS requires 24 hour supervision and a high level of medical care related to her respiratory disease. NK indicates that health decisions in the past have been made be herself while her mother was living in Gympie, but since SAS’s move to the Sunshine Coast has been unable to continue to be involved due to her own commitments with young children.
JM considered that the current statutory health regime was not effective and a formal independent appointment was necessary to fully support the adult’s complex care needs.
Given the complexity of SAS’s care needs multiple services are involved in her care. As her health deteriorates, her needs continue to increase, and her need for support services changes as this occurs.
RN further considered that there was a need for decisions to be made around the adult’s contact. She advised that there had been what was described as “harassment” from oxygen cylinder providers around bill payments. Further, given the adult’s current accommodation is vulnerable due to the unpermitted overnight stays of other parties, she considered contact needed to be regulated in the adult’s best interest given she was at risk of homelessness. The Tribunal finds a need for decisions about contact in relation to the risk of homelessness only.
The Tribunal finds that the medical evidence suggests that the adult has a higher level of care needs than can be met in her current arrangement. The evidence suggests that neither MK, DK or NK have insight into the level of SAS’s care needs, where they consider that these needs can be met by them. It is apparent that DK was present when SAS was smoking while using oxygen, which demonstrates no understanding of the risks associated with this conduct. The Tribunal finds that the adult’s family consistently demonstrated an absence of insight into the complexity of the adult’s needs, and how those needs can be met. Subsequently, the Tribunal finds a need for a decision maker in relation to personal decisions around accommodation, health, services and legal matters not relating to property. The adult guardian is the only proposed appointee, and in view of the evidence an independent appointee is necessary.
The Tribunal considered the evidence regarding the need for the appointment of an administrator. It is apparent that there is real property which has been ordered to be transferred to the adult which has not effected. Further, the adult’s children are presently living there and the adult is unable to reside in her own home. The adult’s daughter’s evidence was that the adult has stated that she will gift the property to them. The Tribunal finds that adult’s assets are vulnerable and in needs of protection.
Further the Tribunal notes the evidence of JM that SAS is unable to cope with her day to day finances and bill payment. The Tribunal finds that the adult needs a substitute decision maker to manage her day to day income and expenditure.
The submissions of MK, DK and NK clearly indicate that they oppose the appointment of the Public Trust, fearing that SAS will become suicidal. The Tribunal does not accept this is likely given it has confirmed with SAS that she sought the Public Trust’s appointment, and further JM indicates SAS has been consistent with the expression of this wish for several months since the appointment was suggested. The Tribunal has formed the view that the adult is vulnerable and needs an independent substitute decision maker regarding her financial matters.