SFR

[2014] QCAT 612

CITATION: SFR [2014] QCAT 612

PARTIES: SFR

APPLICATION NUMBER: GAA10154-14

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 21 November 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Endicott

DELIVERED ON: 25 November 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for a stay is refused.

2.    The Public Trustee of Queensland must give to the tribunal 60 days written notice before exercising any election to determine the right of SFR to reside in his house at Sunnybank.

3.    The direction will cease to have effect upon the completion of the review of the appointment of the guardian on 30 January 2015.

CATCHWORDS:

GUARDIANSHIP – where adult has impaired decision making capacity – where guardian has been appointed make accommodation decisions and an administrator has been appointed to make financial and property decisions – where decision made by guardian to place adult into residential aged care – where friends of the adult disagreed with that decision

STAY – where order sought to stay accommodation decision – where adult only held right to reside in his former home – where that right was determinable by the exercise of an election to relinquish the right – where the exercise of the election must be by deed – where the administrator had not exercised that election – whether in that circumstance stay needed to secure effectiveness of review application  

APPEARANCES:

APPLICANT: CI represented by Ms D Pendergast of Counsel

OTHER ACTIVE PARTIES: SFR
Public Guardian appearing by Mr T Brown and Ms L Poole
The Public Trustee of Queensland appearing by Mr C Miles
NB

REASONS FOR DECISION

1. SFR has been found to have impaired decision making capacity and a guardian and an administrator have been appointed to make certain decisions for him under the Guardianship and Administration Act 2000. The Public Trustee of Queensland was appointed to make all financial decisions and the Public Guardian was appointed to make decisions about his accommodation, who he has contact with, health care, services and legal matters not relating to his financial or property matters.

2. A decision was made by the Public Guardian on 13 October 2014 to place SFR into an aged care facility.  Before that decision was made, SFR had been residing in a house at Sunnybank.  He had owned that house for some years but it was no longer his property by the time that the appointment of the guardian was made.  

3. A group of friends of SFR objected to the decision to place him into aged care accommodation.  They assert that the placement was not necessary as adequate care could be provided to SFR in his Sunnybank house where he could remain living in the community and he could continue his usual activities in his local community. 

4. One friend, CI, has applied to review the appointment of the guardian and proposes that another friend of SFR is appointed to that role rather than the Public Guardian.  A hearing of the review of the appointment of the guardian is scheduled for 30 January 2015.

5. In the meantime, CI seeks an order to stay the accommodation decision made by the Public Guardian. Under section 128 of the Guardianship and Administration Act 2000, the tribunal has power to stay the decision pending hearing of the review of the appointment of the guardian.  CI has sought an order that would effectively reverse the decision to place SFR into residential aged care and would result in SFR being returned to reside in his Sunnybank house. 

6. The stay application is opposed by the Public Guardian and by The Public Trustee. 

7. CI has submitted that if the Public Guardian is removed as guardian at the end of January 2015, and if NB is appointed as the guardian, decisions would be made to permit SFR to remain living in his home for as long as possible.  CI submitted that adequate care arrangements could be put into place to meet SFR’s care needs and to keep him safe.

8. CI submitted that the Public Guardian had failed to comply with the General Principles when making the accommodation decision in October 2014.  CI submitted that it was in the interests of SFR that he should return to live in his home before the end of January 2015.  CI submitted that SFR’s emotional and psychological wellbeing would be adversely impacted if he were to remain living in the aged care facility when he was capable of residing in his home.  However there was no evidence to substantiate that submission. 

9. In contrast to the submissions of CI, the Public Guardian submitted that SFR’s emotional and physical wellbeing would be at risk if he were to be removed from the aged care facility and returned to his home in Sunnybank.  The Public Guardian relied on the ACAT assessment which was conducted in September 2014 and which recommended that SFR be placed into permanent residential care. 

10. The ACAT assessment revealed that SFR manifested regular short term and long term memory problems, was not always orientated to time, lacked problem solving and planning skills and demonstrated poor insight and judgement.  The assessment also concluded that SFR required assistance and prompting for some routine care tasks.

11. Some information contained in the 2014 ACAT assessment was disputed by the applicant and other witnesses. More recent evidence was provided to the tribunal that confirmed that SFR regularly demonstrated poor short term memory and that he was easily influenced by people around him.  SFR spoke to the tribunal and asserted that he could look after himself and did not require any care.  He gave no indication that his emotional wellbeing was at risk while he remained a resident in the aged care facility.

12. For the purposes of the stay hearing, I reached the conclusion that SFR lacked insight into his care needs.  He readily believed that he could care for himself but the evidence provided to the tribunal was that he had to rely on a service provider to take his medications on a daily basis and that he had to be prompted on a daily basis to carry out routine self care tasks.  His level of dependency on others for adequate care had increased but the level of his dependency was not understood by SFR and not fully appreciated by his friends.

13. I was satisfied that a reasonable basis had existed for the decision to place SFR into care in October 2014.  It was clear that the views of some of the friends of SFR were not sought by the Public Guardian before making that decision.  The Public Guardian had anticipated that those friends would oppose SFR being moved into residential aged care and might set out to obstruct the implementation of such a decision.  Consultation on that basis may have proved to be redundant or at least not of assistance in the formation of a decision by the guardian. 

14. It was argued on behalf of CI that the Public Guardian had not taken into account SFR’s role as a valued member of his community and had not considered the importance of encouraging and supporting his ability to live in the general community. The delegate of the Public Guardian responded to these arguments by submitting that the only adequate way to ensure the emotional and psychological wellbeing of SFR as well to meet his physical care needs was to make the decision to place him into residential care.  The Public Guardian had relied on the ACAT assessment and input from another service provider, Centracare, and concluded that SFR’s care needs had passed beyond what could be provided in the general community.

15. I am not required in the stay application to decide whether or not the method used by the Public Guardian in reaching the accommodation decision was sound or not.  That issue is more relevant for the hearing of the application to review the appointment of the guardian when the merits of the current appointee and the proposed appointee are considered on appropriateness grounds.  

16. The primary issue to be decided in the stay application is whether the accommodation decision should be stayed to secure the effectiveness of the review application.  One of the issues to be considered in the review is how best to meet the care needs of SFR and, at the same time, how best to support his right to continue to be a valued member of society. 

17. Maintaining at the present time the greatest number of accommodation and care options would be an important factor in providing the basis for an accommodation decision after the review that best meets the requirements of SFR and that best complies with the General Principles.  In other words, the effectiveness of changing on review the decision maker for SFR for personal matters would be limited if it were not to be open to any new decision maker to return SFR to live in the Sunnybank house.   

18. However the current accommodation options are not straightforward.  SFR has a right to reside in the Sunnybank house until his death determinable at the election of SFR.  Any such election must be exercised by means of a deed executed on behalf of SFR.  This right to reside came about as part of an agreement reached between SFR’s administrator and the owner of the property and sanctioned by the Supreme Court in September 2012.

19. There is also an undertaking given on behalf of the owner of the Sunnybank property that if SFR for any reason vacates the property, a payment of $3,250 would be made quarterly by the owner to SFR.  That payment would be of great benefit to SFR’s financial position.

20. If SFR were to give notice in terms of the agreement that he relinquishes the right to reside in the property before the hearing of the review application at the end of January 2015, he would lose the opportunity to return to the Sunnybank house to live.  However the election has not been exercised at present.  Indeed the representative for The Public Trustee at the hearing stated that The Public Trustee would not exercise the election by which an inference could be drawn that an election would not be exercised before the review at the end of January 2015. 

21. I was satisfied that SFR’s right to reside in the house at Sunnybank will continue until he exercises an election to relinquish that right by way of a formal deed. The act of placing SFR into aged care in October 2014 did not result in the election to relinquish being exercised. I was satisfied that a stay is not needed to secure the effectiveness of the outcome of the review application as the option for SFR to return to the Sunnybank house will remain open by the date of the review. 

22. A stay application is not designed to operate merely as a means of reviewing a decision made by the guardian that a person may not agree with.  A stay application is designed to maintain the status quo until the substantive application can be determined.  It is an essential means to stop the operation of a decision that would otherwise render the outcome of a substantive application nugatory.  If the effectiveness of the substantive application is unaffected by a decision made by the guardian, then there is no basis for a stay order. 

23. The evidence produced for the stay hearing established to my satisfaction that the guardian’s decision to place SFR into residential care would not amount to a decision to relinquish his right to reside in the Sunnybank house.  That right can only be relinquished by his administrator exercising an election in the manner set out in the agreement sanctioned by the court.  I am satisfied that SFR’s administrator does not intend to exercise the election before the review hearing.

24. In case there is any remaining doubt, I will direct that the administrator must give the tribunal 60 days written notice before exercising any election to determine the right of SFR to reside in the Sunnybank house.  This direction will cease to have effect upon the completion of the review of the appointment of the guardian on 30 January 2015.

25. The application for a stay is refused.