ST
[2016] QCAT 174
•30 March 2016
| CITATION: | ST [2016] QCAT 174 |
| PARTIES: | ST |
| APPLICATION NUMBERS: | GAA12832-15, GAA12833-15, GAA2238-16 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 30 March 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julia Casey, Member |
| DELIVERED ON: | 30 March 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | DECLARATION ABOUT CAPACITY 1. The application for a declaration about the capacity of ST is dismissed. GUARDIANSHIP 2. The guardianship order made by the Tribunal on 19 September 2011 is changed by appointing the Public Guardian as guardian for ST for decisions about the following personal matters: (a) Accommodation; and (b) Legal matters not relating to the adult’s financial or property matters. 3. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years. ADMINISTRATION 4. The administration order made by the Tribunal on 30 September 2015 is changed by appointing The Public Trustee of Queensland as administrator for ST for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years. |
| CATCHWORDS: | Capacity of adult - need for guardian and administrator – appropriateness of appointees – Guardianship and Administration Act 2000 (Qld) |
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing by telephone:
ST adult, applicant
SA partner of ST
CT delegate of the Public Guardian
CS representative of The Public Trustee of Queensland
REASONS FOR DECISION
History of the Application
ST (the adult) is a 31-year old woman who resides independently in rental accommodation in a Brisbane suburb.
On 2 February 2016, the Tribunal received an application from the adult seeking a declaration about capacity, in relation to the Guardianship and Administration Act 2000 (Qld) (GAA Act).
ST was subject to guardianship and administration orders. The Tribunal appointed the Public Guardian as guardian for the adult on 19 September 2011, to make decisions about all of the adult’s personal matters. The reviewable appointment was to remain current until further order of the Tribunal and was to be reviewed in 5 years. On 30 September 2015, the Tribunal changed the terms of the appointment of The Public Trustee of Queensland, authorizing the administrator to manage all of the adult’s financial matters except day-to-day finances and the adult’s Centrelink payments. The reviewable appointment was to remain current until further order of the Tribunal and was to be reviewed in 6 months. Prior to the Tribunal’s decision of 30 September 2015, The Public Trustee of Queensland had been appointed as administrator for the adult for all financial matters in accordance with the order of the Guardianship and Administration Tribunal dated 12 February 2004.
Consequently, the current matters before the Tribunal are in response to ST’s application for a declaration about capacity. The Tribunal is, therefore, also reviewing of the appointments of the guardian and administrator.
The Legislation
The issues for the Tribunal, based upon the legislation, are:
a)Does ST have capacity to make personal and financial decisions?
b)Is there a need for a guardian and/or administrator to be appointed?
c)If so, should the current appointees continue in their role or is another appointment more appropriate?
The Tribunal is required to determine capacity as at the date of hearing in accordance with s 12 of the GAA Act as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider an application for the appointment of an administrator for the adult.
ST is presumed to have capacity in accordance with s 7 of the GAA Act and general principle 1 of schedule 1 under the GAA Act. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The GAA Act defines capacity as follows:
“Capacity for a person for a matter, means the person is capable of-
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter: and
(c) communicating the decisions in some way”.
When conducting a review of a guardian or an administrator, the Tribunal must be satisfied not only in regard to capacity, but also must refer to s 12 of the GAA Act that sets out the essential requirements for such an appointment.
[10] The Tribunal must also take into account the provisions of s 31(2) of the GAA Act, and, in accordance with s 31(4) of the GAA Act, the Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.
[11] If the Tribunal determines that there is a need for the appointment of a guardian and/or administrator for ST, the Tribunal in deciding who to appoint in that role, will, in accordance with sub-s 14(1)(c) of the GAA Act, have regard to the appropriateness considerations set out in s 15 of the GAA Act.
The evidence
[12] In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below.
Does ST have capacity to make personal and financial decisions?
[13] In its determination of the adult’s financial decision-making capacity, the Tribunal considered a letter dated 25 January 2016 by Dr Jane Collins, a general practitioner, to The Public Trustee of Queensland. Dr Collins states that, in her opinion, the adult has a ‘mild disability’ and that the adult ‘advises that she has managed her financial decisions well since resuming responsibility for same. She is coherent and aware of the responsibility she is requesting to undertake’. Dr Collins concludes that she supports the adult in this regard.
[14] The Tribunal had previously received a report from Dr Jane Collins dated 6 August 2015 wherein she states she had known ST for a period of six weeks and that the adult believes she is capable of making simple financial decisions and transactions. Dr Collins states the adult reported she had been making such decisions and transactions prior to the appointment of the administrator. Dr Collins provides the opinion that, due to an intellectual impairment secondary to fetal alcohol syndrome, the adult is able to make simple, not complex, financial decisions, and is able to make all simple and complex personal decisions. However, Dr Collins then provides a contrary opinion in relation to financial matters, stating the adult is able to understand the criteria necessary to appoint and revoke an Enduring Power of Attorney, which is a complex decision.
[15] The Tribunal also had regard for medical evidence provided in a report dated 31 March 2010 by Dr Gillian Eastgate, a general practitioner. Dr Eastgate, who had known the adult for three years at the time of writing the report, states the adult has an intellectual disability, due to fetal alcohol syndrome, and a personality disorder, and that the adult was educated in a special school setting. She submits that, in her opinion, the adult has a poor understanding of the long term consequences of decisions and provides examples of the adult’s homelessness, which resulted from the adult walking out of supported accommodation, and episodic use of alcohol and poly-substances. Dr Eastgate states the adult’s impulsivity limits her ability to follow through with agreed health treatments, and that she is vulnerable to influence. She also submits the adult has a poor understanding of budgeting and is very poor at future planning. Dr Eastgate concludes that, in her opinion, the adult is unable to understand the criteria necessary to make or revoke and Enduring Power of Attorney, and is able to make simple, not complex, personal and financial decisions.
[16] Written evidence before the Tribunal included a Tribunal Briefing Report dated 22 February 2016 by BA, Public Trust Officer. The report includes the following information:
a)The administrator has been notified by ST’s support workers that she is struggling to manage her money.
b)The administrator had been further advised on multiple occasions that the adult’s purchasing of items including DVD’s, CD’s and jewellery rendered her unable to cover groceries and incoming bills.
c)ST was approved for a Centrelink advance on 8 February 2016 of $975 to pay for an overdue telephone bill. The loan has a repayment rate of $75 per fortnight, with a completion date of 26 July 2016. The loan was not approved by the administrator.
d)In discussions with the administrator, ST identified all expenses. The administrator then formulated a draft budget, based upon the adult’s assumptions, which predicted a deficit of $3,571 per annum.
e)Accordingly, the administrator formed the view that ST is unable to articulate her budget position and has not been able to purchase essential items (e.g. groceries), nor meet her financial obligations in relation to the payment of invoices.
[17] In her evidence, the delegate of the Office of the Public Guardian stated the adult would contact the office ‘very, very often’ with varying frequency ranging from ‘at least weekly’ to ‘sometimes multiple times per day’. The delegate submitted that in the period under review the guardian has exercised substituted decision-making in relation to the adult’s complex matters of accommodation, contact, health care, legal and other personal matters, and has supported the adult with her decisions pertaining to service provision.
[18] In her application to the Tribunal, ST states she has made financial decisions for the past few months and that she believes that, given the opportunity, she would be able save her cash assets currently held by The Public Trustee of Queensland. The adult stated that since receiving her pension that she has paid rent, telephone, gas and electricity accounts on time, and that she has been able to purchase Christmas presents and enjoy a holiday without contacting the administrator for additional funds.
[19] In her oral evidence to the Tribunal, ST stated she submitted the application in order to retrieve her cash assets from the administrator. She submitted she requires support with legal matters in relation to contact with her 3-year old son, SC, who is currently in the care of the Department of Communities Child Safety Services. She stated she did not need assistance with accommodation as she is anticipating a positive outcome in relation to contact with SC, which, she submitted, would enable her to reside with her young son and her uncle in New South Wales.
[20] ST advised the Tribunal of her current financial circumstances. She stated she had cash in her own Commonwealth Bank account along with a bank account she managed for her son, SC. She stated she used funds in her son’s bank account, which she termed ‘emergency savings’, to pay for telephone and medication expenses. During the hearing ST provided inconsistent information in relation to the current balance of her son’s bank account; $600, $500, $100 and $0.
[21] ST was unaware of the value of the cash assets The Public Trustee of Queensland is managing.
[22] She stated her liabilities include $400 to cash converters and an unknown amount to her mother. ST submitted she obtained a loan of $600 from Centrelink and that fortnightly repayments were $70. She was aware the loan was due to be repaid by July 2016.
[23] The adult told the Tribunal that she receives approximately $575 of Centrelink benefits into her account per fortnight, after rent and SPER repayments are automatically deducted. She provided that other expenses included medication, telephone, electricity, gas, and water.
[24] She advised that when she receives bills during weeks in which her pension was not paid she calls the providers and explains she will pay the bill when she next receives her pension payment.
[25] She stated since she has been managing her Centrelink payments she has been able to afford a holiday to visit her son in New South Wales, as she stayed with her uncle and the Department of communities Child Safety Services paid for her plane fare.
[26] ST further advised she had recently had $200 stolen from her wallet.
[27] The Tribunal observes the disparity between the medical evidence, the evidence of the guardian and administrator, and the evidence of the adult.
[28] The Tribunal considered the evidence in relation to the adult’s financial decision-making.
[29] While ST understood the nature of her Centrelink income she did not demonstrate an appreciation that her expenses were exceeding her income.
[30] Since gaining control of her day-to-day finances and Centrelink payments the adult has increased her debt by engaging with cash converters and obtaining a Centrelink advance/loan. ST did not demonstrate an understanding of the inevitable financial consequences of increasing her debt should the current situation continue.
[31] ST was unable to demonstrate knowledge or application of budgeting skills in order to manage her income and expenses and to reduce liabilities, as evidenced by her contact with creditors when she received invoices on weeks during which she did not receive her Centrelink payments.
[32] In relation to the adult’s personal matters, ST did not demonstrate an understanding of the complex nature of her personal matters in relation to the legal matters concerning contact with her son, SC. Furthermore, she did not demonstrate an understanding of the possibility of an adverse outcome from the legal proceedings and the impact this would have on her lifestyle and accommodation issues.
Conclusion
[33] The Tribunal finds that while Dr Jane Collins on 25 January 2016 may have formed the view that the adult has the ability to make complex financial decisions, the evidence of Dr Gillian Eastgate, the adult and the delegates of the appointed decision makers does not, on any reasonable or objective basis, justify such a conclusion.
[34] On balance, the Tribunal places greater weight on the oral evidence that includes observation and description of the manner in which the adult manages her day-to-day finances and Centrelink payments.
[35] Furthermore, the Tribunal is satisfied that ST is unable to identify key factors and predict consequences in relation to her complex personal circumstances that involve contact with her son, SC. She is also unable to predict the associated impact of these factors on her own lifestyle and accommodation matters.
[36] The Tribunal makes findings that ST has an intellectual disability and a personality disorder.
[37] The Tribunal concludes that ST, due to her intellectual disability, cannot understand the nature and effect of decisions about her financial and complex personal matters, including matters in relation to appointing and revoking an Enduring Power of Attorney.
[38] Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in the GAA Act that ST has capacity for personal and financial matters is rebutted.
Is there a need for a guardian to be appointed?
[39] ST has increasingly demonstrated supported decision-making in all personal areas with the exception of legal and accommodation matters.
[40] Outstanding legal matters are in relation to the care of the adult’s son, SC. The child protection matter has been adjourned until 27 April 2016.
[41] ST is anticipating a positive outcome which may include a move to New South Wales, requiring a decision in relation to accommodation.
Conclusion
[42] The Tribunal determines that there is a need in relation to decisions pertaining to the adult’s accommodation and legal matters not relating to her financial or property matters, and that without the appointment of a guardian for these matters the adult’s needs will not be adequately met nor her interests adequately protected. Accordingly, the Tribunal is satisfied that the need for the appointment has been established having regard to the provisions of s 12 of the GAA Act.
Should the current guardian be continued or is another appointment more appropriate?
[43] The Tribunal must consider whether the appointed guardian should continue in that role or whether another party is more appropriate for appointment under s 31 of the GAA Act.
[44] The Public Guardian is available to continue as guardian for the adult.
[45] The Tribunal has liaised with the adult and stakeholders in order to make decisions that best meet the adult’s needs. The Public Guardian has been diligent in efforts to provide supportive and substituted decision-making, and is willing and available to act.
[46] The Tribunal is of the view that in the period under review the Public Guardian of Queensland has acted in accordance with the terms of the order of 19 September 2011 and has fulfilled its obligations under the GAA Act.
Conclusion
[47] The Tribunal determines, pursuant to s 31 of the GAA Act, that the Public Guardian is competent and that no other person is more appropriate for appointment as administrator for the adult.
[48] The Tribunal changes the appointment of the Public Guardian as guardian for ST to make decisions about accommodation matters and legal matters not relating to the adult’s finances and property.
[49] This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.
Is there a need for an administrator to be appointed?
[50] The evidence pertaining to the adult’s financial circumstances follows.
[51] ST receives the disability support pension and rental assistance.
[52] Her assets include funds held in her bank accounts and $1750 held by The Public Trustee of Queensland.
[53] Liabilities include a Centrelink advance payment, SPER fines and monies owed to Cash Converters.
[54] The adult’s expenses include accommodation fees, along with expenses for pharmaceuticals and repayments of liabilities.
Conclusion
[55] ST has income, assets, expenditure and liabilities that require management.
[56] Pursuant to s 12 of the GAA Act, the Tribunal is satisfied there is a need for decisions pertaining to financial matters. There must be an adequate and effective decision making regime in place for ST as otherwise the adult’s needs will not be met and her interests not protected.
Should the current administrator be continued or is another appointment more appropriate?
[57] The Tribunal must consider whether the appointed administrator should continue in that role or whether another party is more appropriate for appointment under s 31 of the GAA Act.
[58] The representative of The Public Trustee of Queensland provided evidence that they abided by the terms of the order of 30 September 2015, including the redirection of the adult’s Centrelink income and accounts to the adult. The representative further advised the administrator paid an outstanding maintenance debt with Bric Housing in the sum of $2,470.27 in December 2015.
[59] The Tribunal is of the view that in the period under review the Public Trustee of Queensland has acted in accordance with the terms of the order of 30 September 2015 and has fulfilled its obligations under the GAA Act.
Conclusion
[60] The Tribunal determines, pursuant to s 31 of the GAA Act, that The Public Trustee of Queensland is competent and that no other person is more appropriate for appointment as administrator for the adult.
[61] The Tribunal changes the appointment of The Public Trustee of Queensland as administrator for ST to make decisions about all financial matters.
[62] The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
[63] The Tribunal directs The Public Trustee of Queensland to provide accounts to the Tribunal when requested.
[64] This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.
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