SP
[2010] QCAT 361
•29 July 2010
| CITATION: | SP [2010] QCAT 361 |
| PARTIES: | SP |
| APPLICATION NUMBER: | GAA4387-10 GAA4388-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 29 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 29 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Adult Guardian appointed as guardian for decisions about accommodation, services and health care and The Public Trustee of Queensland appointed as administrator for all financial matters |
| CATCHWORDS : | GUARDIANSHIP – ADMINISTRATION – where no informal support network available - where need for guardian and administrator established |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
SP had resided with her mother until 2007 when her mother was placed into a residential aged care facility. SP was referred to mental health unit at the Prince Charles Hospital after a justices examination order had been made under the Mental Health Act 2000 in December 2009.
SP received support from a community care organisation which had offered her support in all areas of care but SP at times refused assistance. In July 2010 SP was referred back to the mental health unit at the Prince Charles Hospital for assessment. An application was lodged with the Tribunal by the service manager at the community care organisation seeking the appointment of a guardian and administrator for SP to make personal and financial decisions on her behalf.
At law there is a statutory presumption that adults have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”). Unless there is sufficient evidence to rebut that presumption, it must stand.
The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
a)understanding the nature and effect of decisions about the matter; and
b)freely and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
The Tribunal was provided with a report by Dr PR dated 19 July 2010 in which he stated that he had known SP for about five years. Dr PR diagnosed a congenital intellectual disability, a psychotic illness and possible dementia. He referred to a low IQ, short term memory deficits, lack of insight, auditory hallucinations, aggressive behaviour and a score of 17 out of 30 on a Mini Mental State Examination conducted in 2006. Dr PR expressed the opinion that SP could not make any complex decision and could make only simple financial decisions due to a cognitive impairment, intellectual disability, mental illness and dementia. Dr PR reported that he visited SP at her home in June 2010 and found soiled clothing and sheets, general disorganisation, empty pill boxes but no evidence of any up to date medication for SP to take.
The service provider supports the opinions expressed by Dr PR as to SP’s decision making capacity. Staff of the service providers have reported an inability by SP to pay bills resulting in disconnection of services and an inability to budget for the purchase of food and medical resources.
The Tribunal accepts the unchallenged evidence of Dr PR and the service provider and finds that SP has an intellectual disability, she has been diagnosed with a mental illness, she has poor short term memory, she exhibits poor organisational skills, she cannot budget effectively and she lacks insight into her cognitive and functional deficits.
The Tribunal concludes that she cannot understand the nature and effect of decisions about her financial and personal affairs as she cannot retain and act on information about her affairs and she cannot appreciate the consequences of her actions. She has displayed a lack of understanding of her medical needs, she cannot reliably pay her bills and she does not exhibit understanding of the risks to her welfare arising from her squalid domestic conditions and her poor medication control.
The Tribunal is satisfied that the presumption of capacity to make her own decisions about personal and financial matters has been rebutted. The Tribunal concludes that SP has impaired capacity for decision making.
10. According to staff at the community care organisation, SP has been residing alone since her mother was placed into care in 2007. Her neighbours report that there are loud noises and shouting heard coming from SP’s house at nights. Evidence was given to the Tribunal that her house is disorganised, medication for her medical conditions is not administered properly, food is out of date and spoiled and mice have been found in her pantry. SP presents at times in dirty clothing and neglects her personal hygiene.
11. The Tribunal finds that SP tends to neglect her self care and hygiene resulting in a risk to her health and welfare. Decisions have to be made to accommodate SP where her needs can be met and where services can be supplied consistently to reduce the risks arising from her self neglect. A comprehensive health care assessment is needed to address SP’s physical and psychiatric health care needs and to put into place treatment to stabilise her various health disorders.
12. Section 12 of the Act deals with the question of need for an appointment of a decision maker and provides, where relevant, as follows:
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the 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—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected…..
13. Evidence has been given to the Tribunal that SP does not have any support from her family or from friends. Her mother is unable to support her due to her own poor health and SP is alienated from her sister and former friends. Having found that decisions are needed to be made about SP in the areas of accommodation, health care and service delivery, the Tribunal is satisfied that these decisions can only be made by a guardian formally appointed by the Tribunal in the absence of any other persons available to make such decisions informally.
14. The applicant proposes the appointment of the Adult Guardian. The Tribunal is satisfied that the Adult Guardian is an appropriate appointee as guardian as the Adult Guardian is experienced in applying the general principles and has the skills to make decisions for SP in a way consistent with her proper care and protection.
15. The appointment of the Adult Guardian as guardian for SP will be for a period of two years. It is likely that at the expiration of that period no further personal decisions will have to be made for SP apart from health care decisions which may be then appropriately made under the statutory health attorney provisions. A review of the appointment will take place at that time when the ongoing need for a guardian will be considered.
16. The applicant was not able to provide many particulars of SP’s financial affairs apart from evidence that SP was not able to pay her bills resulting in a risk that services would be disconnected to her home. It is unknown if SP has any assets.
17. The Tribunal finds that SP is unable to budget and reliably to pay her bills. She is at risk of financial abuse. It is unknown if she is receiving adequate income and whether there are any assets that must be secured to provide support in later years. Decisions must be made to manage her income and expenditure and to ensure that any assets are used for SP’s benefit and support.
18. The Tribunal is satisfied that the appointment of an administrator is the only way in which SP’s needs can be adequately met in the absence of family or friends available to provide informal support for financial decision making.
19. The applicant has proposed the appointment of The Public Trustee of Queensland as administrator for SP. The Public Trustee of Queensland is experienced in managing the financial affairs of adults with impaired capacity and can make financial decisions for SP in a way consistent with her proper care and protection.
20. The Tribunal appoints The Public Trustee of Queensland as administrator for SP for an indefinite period and the appointment will remain in place until further order of the Tribunal. The administrator is directed to file a financial management plan with the Tribunal and accounts when requested.
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