TCI

[2010] QCAT 620

CITATION: TCI [2010] QCAT 620

PARTY: TCI

APPLICATION NUMBER:   G16381         

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE:     31 August 2010

HEARD AT:  Coolangatta Courthouse

DECISION OF: Mr John Gallagher

DELIVERED ON: 31 August 2010

ORDERS MADE:

GUARDIANSHIP

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

a.    With whom TCI has contact and/or visits;

b.    Provision of services.

2.  Unless the Tribunal orders otherwise, this appointment remains current for five (5) years.

CATCHWORDS :  GUARDIANSHIP AND ADMINISTRATION – presumption of capacity rebutted -  need for guardian and whom

REASONS FOR DECISION

The matter before the tribunal today was an application, received on 1 July 2010, from FIP, a daughter of TCI, seeking the appointment of herself as guardian for TCI.  TCI is an 88 year old lady who lives with another daughter (carer) in private accommodation on the Gold Coast.

There were numerous parties that appeared at the hearing held at Coolangatta on 31 August.  Without naming all the members and people who did attend, there were representatives of the family, including TCI herself, the applicant FIP, and her carer. The other members of the family know who they are and are listed in the tribunal documents.

The issues before the tribunal were similar to previous hearings that involved TCI.  The first issue was whether TCI has impaired capacity for personal matters, making personal decisions; the second issue was whether there is a need for the formal appointment of a guardian; and the third issue is, if so, who should be appointed.

In addition to the written material contained on the tribunal file, those attending the hearing were given the opportunity to express their views and those views, where relevant and relied upon, I discuss later in these reasons. 

Turning to the first issue of whether TCI has impaired capacity.  The tribunal adopted, and was aware of, the evidence from previous hearings, which included reports from Dr A, Dr G, Dr  C, Dr Cu, and Dr S, as well as aged care assessment team reports in ‘07 and ‘08.  The most recent report was a health professional report received recently from Dr S, which recorded a Mini Mental State Examination score of 16 on 21 January last year, and stated that TCI was unable to make any complex decisions.  In oral evidence by members of the family, it was agreed that TCI did not have capacity to make complex decisions in relation to personal matters. 

The next issue before the tribunal was the question of whether there was a need for the appointment of a formal guardian.  The issues discussed by those attending the hearing, and by the representatives of the family, were that there were no decisions required in respect of accommodation.  The question of health care issues was raised, with some conflict between the parties about what might be necessary; and the remaining two issues were the question of services to TCI while she is in private residence, and the question of what was described in the hearing as visits, but in effect are contact decisions, meaning in terms of members of the family being able to contact TCI, and TCI being able to visit and contact members of the family herself. 

The tribunal is satisfied on the evidence that was before it that there is not a need for an appointment in terms of health care issues at this stage. The scheme in Queensland called the Statutory Health Attorney, which exists under the Powers of Attorney Act 1998, provides that members of the family are statutory attorneys for health care matters for TCI, but it also provides that in circumstances where there is a dispute or an inability to agree on health care matters the Adult Guardian is the health attorney of last resort. In these circumstances the tribunal is satisfied that a statutory health attorney, TCI’s daughter and carer, would be probably the first port of call from the medical treating team, and other members of the family would or could then be involved in any decisions relating to health care.

It would be incumbent, and is incumbent, on people that are contacted and involved in making decisions about health care to inform other members of the family.  If this fails, or if there is disagreement as to care that should take place, or has taken place, the Adult Guardian is there under the legislation to step in and make decisions where appropriate decisions aren’t being made.  So, in these circumstances, the tribunal is satisfied that there wasn’t a need for an appointment of a guardian to make health care decisions.

However, in the area of services and contact, the tribunal was satisfied that there is a need in those areas.  TCI has recently been hospitalised with a serious medical condition and, at her age, and in terms of her health and health history, it’s likely that there will be other issues that may arise in terms of making her continued residence in private residence viable, and in terms of making that safe and in her best interests.  The tribunal is not making a decision about whether the current services being provided are appropriate.  It is simply deciding that there is a need for someone to be making decisions about what services should be provided in terms of TCI’s continued residence in private accommodation.

The issue of contact, as explained previously, is not simply, or not best, described as visits.  Contact is two-way, and the tribunal is satisfied that there are decisions that will and need to be made by a guardian in respect of whether it’s appropriate for TCI, for example, to travel to visit her daughter FIP or to visit other members of the family.  There may well be decisions in reverse of that, as to whether and how often other members of the family can visit her in terms of her health, and in terms of what is happening in private residence, and that sort of timetable.

In this regard, the tribunal found that there is a need for a decision by a guardian, and that, without an appointment in these areas, TCI’s needs would not be adequately met, and her interests wouldn’t be adequately protected. 

Which leads to the last question about who would be the most appropriate person to appoint as guardian.  There was considerable material before the tribunal (on various matters) from the family, friends, neighbours and others, some supporting the application by FIP and others opposing her appointment.  It was apparent to the tribunal that the degree of conflict, and the opposition to an appointment of FIP, indicated that an independent decision maker would be the most appropriate outcome.  It was suggested in the hearing that a longstanding friend and neighbour of TCI, a Mr GM, could fill such a role.  However, the tribunal was of the opinion that an independent person, in the circumstances of the family conflict, needs to be an organisation such as the statutory authority represented by the Adult Guardian.

The tribunal is satisfied, on the evidence, that the Adult Guardian would be better placed to liaise with all interested parties, assess the relative merits of options for decision on personal matters, and make decisions that best meet TCI’s needs.  The Adult Guardian, in this respect, has extensive skills and experience, and the tribunal is satisfied that the Adult Guardian is the appropriate appointee as guardian in those two areas.

So the end result of that, the orders that the tribunal will make, will be that the Adult Guardian is appointed as guardian for TCI for decisions about the following personal matters:  with whom TCI has contact and/or visits; and the provision of services.  Unless the tribunal orders otherwise, this appointment remains current for a period of five years.