SDP
[2022] QCAT 414
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
SDP [2022] QCAT 414
PARTIES:
In an application about matters concerning SDP
In applications about matters concerning SDP
APPLICATION NO/S:
GAA8405-22; GAA8406-22
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
6 December 2022
HEARING DATE:
7 November 2022
HEARD AT:
Southport
DECISION OF:
Member McDonald
ORDERS:
GUARDIANSHIP
1. The guardianship order made by the Tribunal on 17 December 2021 is changed by appointing The Public Guardian as guardian for the following personal matters:
(a) Accommodation;
(b) Health care;
(c) Provision of services; and
(d) Diet.
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years.
ADMINISTRATION
3. The appointment of The Public Trustee of Queensland as administrator for SPD 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 of The Public Trustee of Queensland remains current until further order of the Tribunal.
ENDURING POWER OF ATTORNEY
7. Any purported Enduring Powers of Attorney for SPD are overtaken by the making of these appointments and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made.
CATCHWORDS:
GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where attorneys powers overtaken by appointment – where adult’s interest not adequately protected
Guardianship and Administration Act 2000 (Qld), s 11B,
s 31, s 15Human Rights Act 2019 (Qld), s 13, s 15, s 24, s 25, s 37,
s 58
APPEARANCES & REPRESENTATION:
Adult:
SPD
CM, BM, LS, KS, RW AF, GF,
Current Guardian/s:
Public Guardian
Current Administrator/s:
Public Trustee of Queensland
Public Guardian:
CL
Public Trustee:
NTA
REASONS FOR DECISION
SDP is a 78-year-old lady diagnosed with dementia and schizophrenia, who is currently living in an aged care facility. On 17 December 2021, the Tribunal appointed the Public Guardian as guardian for SDP for decision about accommodation and services, and the Public Trustee as administrator for all financial matters. These appointments were to be reviewed one year from the date of appointment. These appointments overtook Enduring power of attorney of 15 May 2017 which appointed CM, SDP’s son as attorney for financial personal health and health matters. The decision had left in place the health-decision-making authority to CM. On 5 August 2022, the Tribunal received an application for earlier review of this decision from BM, SDP’s son, seeking appointment of himself and LS, SDP’s daughter in these roles. The review sought urgent extension of authority to include health matters under an interim order. BM told the Tribunal that CM had been making health decisions on behalf of SDP that compromised her health, through non carbohydrate diets for diseases she was not diagnosed with, and ceasing medication which had physiological consequences. An interim order was made, extending the guardianship of the current guardian to health matters, until the matter could be heard.
At hearing CM indicated that he was seeking to resume authority under the enduring power of attorney and opposed BI’s application as well as the continuation of the current appointees. He expressed concern that SDP had deteriorated in health during her admission to aged care under the decisions of the current appointees.
The Tribunal conducted a review in accordance with s 31 of the Guardianship and Administration Act 2000 (Qld).
(1)The tribunal may conduct a review of an appointment of a guardian or administrator (an
"appointee") for an adult in the way it considers appropriate.
(2)At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
(3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
(a) continue its order making the appointment; or
(b) change its order making the appointment, including, for example, by—
(i) changing the terms of the appointment; or
(ii) removing an appointee; or
(iii) making a new appointment.
(4)However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers—
(a) the appointee is no longer competent; or
(b) another person is more appropriate for appointment.
The Tribunal turned its mind firstly, to whether the grounds for the appointment continue to be made out. The capacity evidence before the Tribunal is that SDP is diagnosed with vascular dementia, and late onset schizophrenia. She has difficulty comprehending communication. She is assessed as not being able to make decisions freely and voluntarily and to lack understanding of information to make decision and appreciate the consequences of decisions in matters pertaining to health personal and financial matters.[1] The parties identify a general deterioration in her cognition since the previous hearing. Dr K notes in a recent contact in August 2022, SDP was restricted in language, falling asleep, and she was unable to complete a cognitive assessment, and physical general deconditioning had been noted. On 18 October 2022, DR K made a signed and dated notation that SDP’s MMSE was 14/30. SDP continues to have impaired capacity around these matters, and this is not disputed by the parties. The presumption of capacity is rebutted for financial personal and health matters.
Are there decisions to be made that require a Guardian to ensure SDP’s needs are adequately met or interest adequately protected?
[1]Dr SD, Exhibit 7.
The appointed guardian reported that during the appointment they had made decisions about SDP’s accommodation, ultimately accepting an offer of permanent placement in an aged care facility, after an earlier placement broke down. On an interim basis, SDP had returned to community-based care as an interim arrangement. In the current accommodation, the Public Guardian reports that SDP has regular contact with family members at this facility. The Public Guardian stated that the current accommodation met SDP’s care and support needs. The Public Guardian reported that they were aware that SDP had historically been removed repeatedly from placements by the CM. BM gave evidence that CM had moved SDP’s accommodation eight times in the past four years.[2] CM gave evidence that he believed that he had made decisions on behalf of SDP to meet her needs at all times. The Public Guardian argued that there continued to be a need for decisions about accommodation and services to ensure SDP was not removed from her current accommodation setting.
[2]Exhibit 11.
CM, in a written statement and oral evidence, stated that SDP had thrived in private care arrangement that he had organised and financed in a private setting, and he considered that SDP had deteriorated since these arrangements had come to an end. He considered the aged care setting had contributed to her decline. CM describes trying to be a good advocate for SDP’s care health and diet. He would like to resume a private care arrangement, arguing the decision to place her in aged care has not benefitted SDP.[3]
[3]Statement CM, Exhibit 12.
The existence of strong conflict between SDP’s children is not disputed. LS and BM opposing decisions made by CM and expressing concern about the impact of CM’s decision on SDP’s wellbeing around accommodation and care support, health and diet decisions. In an email to the Tribunal, BM stated that CM ceased SDP’s medication for thrombocytosis with the result that she was admitted to hospital “with blood levels at fatal levels (sic)” he stated “Mum was having sheep’s placenta injected into her daily”, “At one stage she was getting weekly colonic irrigations that she did not want”.[4] LS echoed these concerns. CM expresses concerns that BM would not encourage SDP’s relationships with some parts of the family if he were to make decisions on behalf of SDP. CM maintains that he has engaged his mother with treatment appropriate to her needs. There is strong conflict amongst the family about the appropriateness of treatments that SDP has been engaged with while CM was acting as attorney for these matters. BM and LS are concerned about the experimental nature of these treatments, and that they have impacted on SDP’s health and quality of life. No evidence was submitted by CM to support the appropriateness of his decisions around health matters, although he contends the treatments generate health improvements and have been undertaken with SDP’s best interests as primary motivation. Family members present at the hearing also noted that they had utilised some of these methods and observed positive improvements in themselves that they relate to the treatments. Notwithstanding this, it is not apparent that the principle of substituted judgement is being applied in these matters, but an application of CM’s own values in exercising functions as enduring power of attorney, rather than those of SDP.
[4]Exhibit 11.
There is also dispute about SDP’s dietary requirements. BM expressed the view that CM required the facility to place SDP on a carbohydrate free – diet.[5] CM explained that he had attempted to ensure SDP had a high protein breakfast in aged care to receive “quality food as opposed to a lot of carbohydrates”. Progress notes from the facility submitted to the Tribunal identify that CM has “insisted” on a ketogenic diet and gluten free diet for SDP, at times despite dietician advice.[6] Progress notes that SDP’s serology tests indicated that she did not require a gluten free diet.[7]
[5]Email BM 31 October 2022 Exhibit .
[6]Exhibit 9, 3 August 2022, 23 August 2022.
[7]Exhibit 9, 23 August 2022.
There is conflicting evidence before the Tribunal as to whether SDP has been diagnosed with Coeliac’s disease and requires a specialised diet. Despite the aforementioned serology test conducted by Dr AW on 5 August 2022,[8] SDP’s treating geriatrician appears to hold the view that she requires a gluten free diet due in correspondence in August 2022.[9]. Dr King identifies that a ketogenic diet is inappropriate for SDP in her current condition:
“Whilst in younger patients a strict ketogenic diet may be tolerated, In SDP’s circumstances, I agree this could be quite risky particularly in her current frail physical state due to the risk of acidosis generated in the body and dehydration potential. Anecdotal evidence for patients with dementia supports a high protein and low sugar refined diet ….requests for ketogenic diet are likely to compromise (SDP)’s physical health.”[10]
[8]Exhibit 10.
[9]Dr PK Exhibit 13, 11 August 2022.
[10]Ibid.
Dr PK’s comments provide evidence that continued advocacy for a ketogenic diet is not appropriate to SDP’s needs. It is not apparent that health and dietary decisions are currently directed to evidence-based treatments to respond to SDP’s medical needs, and that CM’s decisions on these matters may not be in SDP’s best interest.
The public guardian reported that decisions about accommodation services and health were necessary at this time, recounting concerns expressed by members of the family, LS and BM around accommodation instability and the “experimental” health care agreed to by the attorney.
I find that SDP faces decisions about maintaining appropriate accommodation and support around her daily living, health and diet management where there are concerns about the impact of the attorney’s decisions in these areas on SDP’s wellbeing’s. I find that there is a need for decisions in relation to these matters and without the appointment to of guardian to make decisions, based on the evidence, the Tribunal is satisfied that SDP’s interest will not be adequately protected. There Tribunal is satisfied that it would make an order appointing a guardian if a new application were to be made, since the grounds for appointment of a guardian continue to be made out.
The Tribunal can remove an appointee is they are no longer competent or, (if the Public Guardian is appointed), if someone else is appropriate for appointment. This became unnecessary to consider, as although an application was received from BM and LS seeking appointment as guardian, at hearing, the parties each acknowledged the intractable conflict between family members around these issues, and identified that a third party would best able to navigate the high conflict relationships. While submissions made about how BM did not meet the considerations for appropriateness, they are no longer relevant here, the proposed appointees accepted the appointment of the Public Guardian around these decisions. In the circumstances, the Public Guardian continues to be the most appropriate given the high level of conflict and diametrically opposed positions of SDP’s children on these matters.
Is there continued grounds for the appointment of an administrator?
There is no dispute that SDP continues to have impaired capacity for financial matters. The attorney would like to resume authority under the overtaken enduring power of attorney of 15 May 2017.
The Public Trustee reported that during their appointment, they had attended to SDP’s ongoing financial obligations around her accommodation costs, and care agreements, private health insurance, chemist accounts, and developed a budget around managing her income and expenses. They advised that SDP retained approximately $27,000 held in accounts managed by the Public Trustee. Public Trustee reported that BM raised concerns that SDP’s funds may have been misappropriated by CM and further investigation is necessary around these concerns. Specifically, the Public Trustee reported confirmation that $1,139,105.62, (being the proceeds of the sale of SDP’s property in her sole name) located in New South Wales on 2 November 2015 was paid into the bank account of CM. The Public Trustee indicated that several attempts have been made to gain clarification from CM about this matter, with a lack of responsiveness from CM, including a returned email that he was on leave, and further returned emails advising that their email had been blocked.
CM was given an opportunity to clarify these matters the hearing but did not provide a response.
The Public Trustee reported further the following matters: A statutory declaration of CM dated 27 August 2020 indicated that a Runaway Bay property had been purchased in the name of SDP for $1.725Million. This property was sold for $1.625million with CM acting as attorney for SDP for the sale on 14 March 2017. On 12 March 2018, a jointly owned property with SDP’s sister was purchased with funds from CMs company. This property sold on 23 July 2020 for $233,142.12 and proceeds of the sale were not paid into SDP’s account. The Public Trustee identified that they sought clarification of a number of withdrawals on SDP’s accounts but CM had not provided further comment, or engaged with them. The Public Trustee reported that they had received correspondence from CM’s solicitors stating that he had paid SDP’s accommodation and care costs, but when asked for details of the same had not responded to PTQ’s requests. The PTQ indicated that referral to the Official Solicitor has been made in relation to possible future action.
CM did not provide further clarification of these concerns to the Tribunal at hearing.
The Tribunal notes that the Public Trustees evidence indicates that there continues to be decision which need to be made around day-to-day management of income and expenses and further investigation in relation SDP’s funds. As the investigations are of the attorney’s conduct, and there is evidence that the attorney has mixed his funds with SDP’s funds in breach of his obligation as attorney to keep property separate[11] he is no longer competent to act as attorney for financial matters. There is also a suggestion that he has failed to keep records, as he has not produced these at the request of the current administrator. Since there are financial decisions that are necessary that require an administrator to ensure that SDP’s interests are adequately protected, the grounds for the appointment of an administrator continue to be made out.
[11]Powers of Attorney Act 1998 (Qld).
Although BM and LS initially bought an application to be appointed as administrators, at the hearing, both BM and SL indicated that they thought it would be appropriate for the Public Trustee to continue the current investigations as administrator. The Tribunal considers the Public Trustee is competent and appropriate to undertake these further matters in SDP’s interests. Orders are made continuing their appointment until further order of the Tribunal.
These appointments may limit SDPs human rights to freedom of movement, property rights, privacy and reputation rights and right to health services contained at ss 19, 24, 25, 37 of the Human Rights Act 2019 (Qld). The Tribunal must make a decision that is consistent with human rights.[12] Human rights may only be limited where it is reasonable and demonstrably justified.[13] Given that the purpose of the decision is to ensure that SDP’s interests are adequately protected in rights to access appropriate treatment to meet her needs, and maintain stability in her accommodation which will meet her needs, I consider that any limit upon these rights is reasonable and justifiable.
[12]s 58 Human Rights Act 2019 (Qld).
[13]s 13(1) Human Rights Act 2019 (Qld).
0
0
0