TFY
[2023] QCAT 295
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
TFY [2023] QCAT 295
PARTIES:
In applications about matters concerning TFY
APPLICATION NOS:
GAA14129-22, GAA14130-22, GAA6099-23
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
20 July 2023
HEARING DATE:
7 June 2023
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski (Presiding) and Member Matthews
ORDERS:
1. The applications by TFY’s father and by TFY’s sister, brother and sister-in-law for the appointment of a guardian for TFY are dismissed.
2. The appointment of TFY's mother as administrator for TFY for all financial matters except:
(a) any dealings in relation to real estate owned by TFY including the real property at [redacted]
is continued.
3. TFY's mother must provide to the tribunal within 28 days of being notified of a review of her appointment, and otherwise as requested by the tribunal:
(a) copies of TFY’s bank statements / passbooks / term deposits for the past 12 months;
(b) copies of receipts for any individual items that cost more than $500 in that 12 month period;
(c) the latest Centrelink statement;
(d) a list of TFY’s current assets and liabilities, including actual or estimated values; and
(e) a fortnightly budget for TFY.
4. The appointment of TFY's mother remains current until further order of the tribunal. This appointment is reviewable and is to be reviewed in five years.
5. The appointment of TFY's mother and TFY's father jointly as administrators for TFY for the following financial matter:
(a) any dealings in relation to real estate owned by TFY including the real property at [redacted]
is continued.
6. Before 20 October 2023, TFY's mother and TFY's father must:
(a) record the appointment as administrators on any property registered in TFY’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the tribunal’s appointment decision;
(b) provide confirmation to the tribunal that this has been completed by providing:
(i) a copy of the title search conducted identifying TFY’s property; and
(ii) a copy of the titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by TFY.
7. If the ownership of any property of TFY changes in any way or TFY acquires an interest in another property, TFY's mother and TFY's father must, within fourteen days of such changes:
(a) give a copy of this order to the Registrar of Titles; and
(b) give a notice to the principal registrar of the tribunal about the changes to TFY’s interest in another property.
8. The joint appointment of TFY’s mother and TFY’s father remains current until further order of the tribunal. This appointment is reviewable and is to be reviewed in five years.
9. The tribunal dispenses with the requirement for the administrators to provide a financial management plan.
10. Within 28 days of being notified of a review of their appointments, each administrator must provide to the tribunal a signed declaration as to continued appropriateness for appointment.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where a parent of adult seeks appointment of guardian for contact but contact is prohibited by a temporary court order – whether a guardian should be appointed
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION, ETC. – where parents appointed as administrators for adult – whether joint appointment remains appropriate despite deterioration of relationship between parents
Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11(1), s 11B, s 12, s 15, s 31
Human Rights Act 2019 (Qld), s 13, s 17(c), s 19, s 24
Powers of Attorney Act 1998 (Qld), s 62, s 63
APPEARANCES & REPRESENTATION:
Adult (TFY):
M Burgess of Queensland Advocacy for Inclusion attended as advocate for TFY. TFY herself did not attend.
Other active parties who attended (all self-represented)
TFY’s mother, TFY’s father, TFY’s brother, TFY’s sister, TFY’s sister-in-law
REASONS FOR DECISION
Introduction
These proceedings concern a woman aged 28. For privacy reasons, we will refer to her only by a pseudonym, TFY. Similarly, to avoid indirect identification of TFY, we will not name her relatives.
In the past, the tribunal had appointed a guardian for TFY for certain personal matters, but the tribunal revoked the appointment of a guardian in July 2021. At the same time, the tribunal appointed administrators for TFY:
(a)her parents jointly as administrators for dealings in relation to TFY’s real property; and
(b)her mother as administrator for all other financial matters.
At that time, TFY’s parents had been separated for some years. They remain separated.
In December 2022, TFY’s father applied to the tribunal for a review of the administration appointment, and for the appointment of a guardian for TFY. He proposed that he be appointed sole administrator and guardian. In May 2023, TFY’s sister, brother and sister-in-law applied to the tribunal for the appointment of a guardian for TFY. They proposed that they be appointed as TFY’s guardians. The three applications were the subject of an oral hearing on 7 June 2023. However, there was insufficient time to complete the hearing on that date. The tribunal directed that TFY’s father make his submissions in reply in writing. This would also give him time to examine written material filed by TFY’s mother on 2 June 2023. As it took longer than originally anticipated for TFY’s father to make his submissions, the tribunal also sought an update from TFY’s mother in relation to a domestic violence proceeding.
In his submission dated 11 July 2023, TFY's father advised that, on reflection, he did not wish to continue his application for review of the administration appointment. That application can be withdrawn only with the tribunal’s leave.[1] We are not minded to grant such leave. Having heard the application, it is preferable to decide it. This is more efficient, as it will result in any continued appointment probably not having to be reviewed until 2028 rather than in 2026: such appointments under the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) must be reviewed at least every five years.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 46(2).
[2]Guardianship and Administration Act, s 28(1)(b).
In his submission dated 11 July 2023, TFY's father also proposed that the guardianship applications be adjourned until the domestic violence proceeding in the Magistrates Court is finalised. That proceeding is brought by TFY's mother against TFY's father seeking a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) in favour of TFY. That application is contested by TFY's father. It is currently listed for mention in the court on 8 August 2023. It could then be allocated a trial date, which will presumably be some months away. Meanwhile, a temporary protection order is in force. It was made on 9 May 2023. Amongst other things, it prohibits contact between TFY's father and TFY.
TFY's father submits that the tribunal should await the outcome of the trial in the Magistrates Court before deciding the guardianship applications, as ‘the facts and circumstances in dispute are relevant to the current applications before QCAT’.[3] We accept that there is an overlap of relevant issues. However, we are not inclined to adjourn the guardianship applications for what is likely to be many months. The tribunal is required to deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.[4] Quickness would not be served by the proposed adjournment. We do not believe that unfairness to TFY's father would flow from a denial of an adjournment. There is no bar in the Guardianship and Administration Act to him bringing a further guardianship application in the future, assuming he remains an ‘interested person’.[5]
[3]TFY's father submission dated 11 July 2023, first page.
[4]QCAT Act, s 3(b).
[5]See Guardianship and Administration Act s 115(2)(b). ‘Interested person’ is defined in Schedule 4 to the Act.
Accordingly, all three applications fall to be decided.
Issues
The tribunal must decide firstly the question of capacity; secondly, if the presumption of capacity is rebutted, the question of whether appointments are needed; and thirdly, if appointments are needed, who should be appointed.
Capacity
Capacity is defined in the Guardianship and Administration Act:
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.[6]
[6]Guardianship and Administration Act, Schedule 4, definition of ‘capacity’.
The tribunal must presume that TFY has capacity until the contrary is proven.[7]
[7]Ibid, s 11(1).
The most comprehensive assessment of TFY’s capacity on the tribunal’s file is that of general practitioner Dr Peter Wynn in his report dated 22 February 2013. Dr Wynn described conditions of cerebral palsy and microcephaly, with both physical and cognitive impairments. Dr Wynn considered that TFY can make simple health decisions, but is unable otherwise to make personal or financial decisions. TFY also has impaired communication ability, according to Dr Wynn, including ‘inappropriate expressions’.[8]
[8]Document H2 on the tribunal’s file, p 8.
Recent medical reports touch indirectly on capacity. Psychologist Heather Woodford, in a letter dated 1 June 2023, described TFY as presenting ‘with lower intellectual capacity but is co-operative and verbal in sessions’,[9] though ‘cognitively she is not able to engage traditionally in talk therapy’.[10] General practitioner Dr Dave Lutchman, in a mental health assessment dated 13 December 2022, referred to TFY as having ‘poor judgment’.[11]
[9]In document M2 on the tribunal’s file, letter of Ms Woodford, first page.
[10]Ibid, second page.
[11]In document M2 on the tribunal’s file, in GP Mental Health Treatment Plan, fourth page.
We viewed two videos of TFY conversing with her father, which he had filmed. Her presentation in those videos was consistent with the opinions outlined above.
In his submission dated 11 July 2023, TFY's father submits that the tribunal should require independent medical evidence about TFY’s capacity to form views and express wishes. This appears to relate to the question of how much weight the tribunal should place on TFY’s views and wishes about spending time with her father, as conveyed by her advocate Ms Burgess. However, we do not consider it necessary at present to make findings on TFY’s views and wishes about having contact with her father.
The opinions expressed by health professionals about TFY’s capacity have not been challenged by any party. We find that TFY has significant cognitive impairment, leaving her unable to understand the nature and effect of decisions of any complexity. We find the presumption of capacity is accordingly rebutted for both personal and financial matters.
Need
Legislative framework
A guardian or administrator may be appointed for a person with impaired capacity for a personal matter or a financial matter respectively if the following criteria in section 12 of the Guardianship and Administration Act are met:
(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.
Even if these criteria are met, it is important to bear in mind that the appointment of a guardian or administrator is discretionary. Acknowledgements expressed in the Guardianship and Administration Act are relevant. These include that an adult’s right to make decisions is fundamental to their inherent dignity; that the right to make decisions includes the right to make decisions with which others may not agree; and that the right of an adult with impaired capacity to make decisions should be restricted to the least possible extent.[12] The Act seeks to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making.[13]
[12]Guardianship and Administration Act, s 5.
[13]Ibid, s 6.
The appointment of a substitute decision-maker may impact on TFY’s human rights, such as:
(a)her right not to be subjected to medical treatment without her full, free and informed consent;[14]
(b)her freedom to choose where to live;[15]
(c)her property rights particularly her right not to be arbitrarily deprived of her property,[16] noting that although the appointment of an administrator would not remove TFY’s ownership of property, it would impede her control of her property; and
(d)her right to liberty and security.[17]
[14]Human Rights Act 2019 (Qld), s 17(c).
[15]Ibid, s 19.
[16]Ibid, s 24.
[17]Ibid, s 29(1).
A human right may be ‘subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.[18] It may be relevant to consider factors such as the purpose of the proposed limitation, and whether the purpose can be achieved in a less restrictive way that is reasonably available.[19]
[18]Ibid, s 13(1).
[19]Ibid, s 13(2).
The tribunal must apply the principles set out in Chapter 2A of the Guardianship and Administration Act, both when assessing need and when assessing the appropriateness of any proposed guardian or administrator. These include:
(a)that TFY has the same human rights and fundamental freedoms as all other adults, regardless of her impaired capacity;[20]
(b)respect for TFY’s autonomy including freedom to make her own choices;[21]
(c)the importance of her full and effective participation in society;[22]
(d)the importance of maintaining TFY’s existing supportive relationships;[23]
(e)acknowledgement of the role of families, carers and other significant persons in TFY’s life;[24]
(f)TFY’s right to liberty and security on an equal basis with others;[25]
(g)maximising her participation in decision-making;[26] and
(h)safeguarding TFY’s rights, interests and opportunities in the least restrictive way.[27]
[20]Guardianship and Administration Act, s 11B, general principle 2.
[21]Ibid.
[22]Ibid.
[23]Ibid, general principle 4.
[24]Ibid.
[25]Ibid, general principle 7.
[26]Ibid, general principle 8.
[27]Ibid, general principle 9.
In conducting a review of the appointment of administrators for TFY, the tribunal must revoke the existing appointments unless satisfied it would make an appointment (or appointments) if a new application for appointment were to be made.[28] If the appointments are not revoked, the tribunal can remove a current appointee only if it considers that the current appointee is no longer competent or another person is more appropriate for appointment.[29]
[28]Guardianship and Administration Act, s 31(2).
[29]Ibid, s 31(4).
Finances
A disability support pension is TFY’s main source of income. She lives with her mother in rented accommodation on a rural property. She contributes to the rent and household costs. Many of her disability-related costs are met from her National Disability Insurance Scheme package. Documents on the tribunal’s file indicate a small surplus in her budget. Consistent with this, TFY’s savings grew from some $11,000 in 2021 to some $12,000 in 2023.
TFY’s only other substantial asset is a real property that was given to her some years ago by a trust controlled by her father. The property is occupied by her elderly paternal grandmother. The grandmother does not pay rent but meets outgoings. We understand that this has been the situation since the gift was made, with the common expectation that the grandmother would be able to live for the remainder of her life in the property.
We would appoint an administrator if a fresh application for appointment were before us. There is a need for financial decisions to be made, including how to spend and save within TFY’s limited budget, and whether to retain the real property. In relation to the property, there is a need for oversight of insurance and maintenance. At some unknown point, a decision will be required about whether to sell, rent out, or otherwise make use of the property. Without an administrator or administrators, TFY’s needs will not be met, as she is unable to manage her own finances. The continued appointment of an administrator or administrators is a reasonable and justifiable limitation on her property rights, as it is vital for safeguarding her financial and social wellbeing. No less restrictive way of achieving that purpose is available. Third parties such as banks and the titles registry would be unwilling to act on the instructions of a family member who lacks formal appointment.
Contact
Contact between TFY and her father is a contentious issue between the parents. It is common ground that for several years after the parental separation, TFY would spend time with her father and paternal grandmother most weeks after church, as well as having other contact with her father from time to time. TFY’s father says that in more recent times, TFY's mother would often come up with excuses why the weekend contact could not happen. Eventually, by late 2022, he was told that TFY no longer wished to spend time with him. Visits ceased altogether, contrary to his strong wishes. He argues that he and TFY always maintained a close and loving relationship, which he says is illustrated in the videos played during the hearing. These videos show TFY and her father conversing. TFY’s father says these were filmed at the last visit.
TFY’s mother says that she ceased facilitating contact because TFY showed increasing signs of distress about contact. TFY's mother says she does not know for sure why this distress developed. She suggests it was at least partly linked to the father and paternal grandmother insisting that TFY use the toilet, when she is used to using pull-up incontinence underwear.
TFY's father sought orders for contact. The tribunal has no power to make such orders. The most it could do would be to appoint a guardian for the matter of contact. The guardian could then decide whether there should be contact, and if so, whether it should be subject to conditions. A guardian would not have power to compel contact. However, in a scenario where a guardian decided there should be contact, and assuming that TFY remains living with her mother, it may be that the mother would facilitate contact if satisfied that the decision had been reached after careful consideration and in accordance with the general principles.
Whether such an appointment should be made would ordinarily involve the tribunal considering a range of factors. These would include the nature of the past relationship between TFY and her father, and TFY’s views, wishes and preferences if these could be reliably ascertained. That process would then lead to findings about whether, without the appointment of a guardian for contact, TFY’s needs would not be adequately met or her interests would not be adequately protected.
However, at present, the appointment of a guardian for contact would be futile and speculative. Contact between TFY and her father is banned by a court order. While this is only a temporary order, it seems likely it will endure for several months at least. Whether a final order prohibiting or limiting contact will then be made remains to be seen. In these circumstances, even if the tribunal were to reach conclusions favourable to TFY's father about contact, it would not exercise its discretion to appoint a guardian because of the futility.
Accommodation
While the main focus of TFY’s father has been on restoring contact, he has also expressed concerns about her accommodation. For example, he has said that a paedophile lives in a nearby caravan, implying that this carries risk for TFY. He made a complaint to the National Disability Insurance Agency contending that TFY had been subjected to an unwelcome colonic procedure by an ‘unregistered colonic Nurse … who runs the commune with her Husband’.[30] We do not have any information about the outcome of that complaint. TFY’s paternal grandmother in a statutory declaration describes an occasion when she visited the ‘Farm Commune’ and saw that TFY had been ‘left alone and unsupervised’ and was distressed.[31] When this incident occurred is not specified.
[30]Complaint to National Disability Insurance Agency in document H32 on the tribunal’s file.
[31]Statutory declaration of the paternal grandmother, in document H32 on the tribunal’s file, [5].
Against that, TFY’s mother and brother describe the home environment favourably, saying that church friends had kindly offered this much-needed accommodation for TFY and her mother. The tribunal is not aware of any concerns raised by the health professionals and service providers who are involved in TFY’s life about the suitability of the accommodation. Statements by some of the service providers are in material filed by TFY's mother.
We could appoint a guardian to make accommodation decisions for TFY if we were persuaded that her needs are not adequately met or her interests are not adequately protected. We are not so persuaded. We do not consider that there is substantial credible evidence that the present accommodation is unsuitable or unduly risky for TFY.
National Disability Insurance Scheme plan and services
TFY receives various services under her NDIS plan. Her mother is NDIS nominee for TFY. This enables the mother to participate in plan reviews and decide which providers are engaged.
Ms Burgess suggested that the tribunal consider appointing TFY's mother as guardian for this area of decision-making, as TFY's father was seeking to replace the mother as nominee despite his lack of proximity and involvement in services.
We agree that TFY's mother is a more appropriate decision-maker for this matter because of her proximity to TFY and her close involvement with the provision of services. TFY's father, in contrast, lives quite some distance away and does not have day-to-day involvement.
In an email dated 6 July 2023, TFY's mother informed the tribunal that on 23 June 2023 an NDIS representative informed her that a request by TFY's father to become nominee had been refused.
We assume that any future attempt by TFY's father to become nominee would similarly be rejected by the National Disability Insurance Agency while circumstances remain as they are. Accordingly, we are not persuaded that it is necessary, in order to ensure that TFY’s interests are protected, that a guardian be appointed for this area of decision-making.
Health
TFY's father expressed dissatisfaction that he is not consulted about health decisions for TFY.
If a health care provider seeks to carry out treatment for which TFY cannot give informed consent, they would seek consent from a statutory health attorney.[32] Such a person can act because of their relationship with TFY. No formal appointment by a court or tribunal is required. In practice, health providers would ordinarily turn to TFY’s mother because of her ready availability and her day-to-day knowledge of TFY’s circumstances. There is no obligation to additionally consult or seek consent from another person such as TFY's father.
[32]See Powers of Attorney Act 1998 (Qld), ss 62 and 63.
We are satisfied that the present arrangements are sufficient to meet TFY’s needs and to protect her interests.
Should any changes be made to the administration appointments?
Appropriateness considerations are set out in section 15 of the Guardianship and Administration Act. They include factors such as whether the person is likely to apply the general principles; whether they are compatible with the adult; whether they are compatible with any co-administrator; availability to the adult; and the nature and circumstances of any past bankruptcy of the person.
Both of TFY’s parents were found to be appropriate when they were appointed as administrators in 2021. TFY's mother was found to be appropriate notwithstanding that she had, as she disclosed, been bankrupt. She attributed the bankruptcy to a difficult financial position she had been left in when the marriage ended. There is no suggestion, or any signs in the financial records provided by TFY’s mother since her appointment, that her prior bankruptcy has affected her competency in managing TFY’s financial matters. We consider that TFY’s mother remains competent and appropriate to remain sole administrator for the bulk of TFY’s financial matters, which are quite routine in any event. No other person currently advances themselves as more appropriate.
In relation to the joint appointment of the parents for real property matters, there have been some material changes since the appointments were made in 2021: the prohibition upon TFY’s father contacting TFY under the temporary protection order, and what seems to be a worsening of the relationship between TFY’s parents. These factors call into question whether TFY’s father remains appropriate, and whether a joint appointment of the parents is workable. Ms Burgess also queries the appropriateness of TFY’s father, commenting that ‘many of the incidents recounted about [TFY’s father’s] recent conduct could be characterised as coercive and controlling’.[33]
[33]Written submissions by Ms Burgess, at document H68 on the tribunal’s file, [38].
On balance, we consider that the joint appointment should remain. We understand that TFY’s father has experience in property dealings, which is likely to be beneficial. The current prohibition on contact with TFY, and the possibility that a permanent order of a similar nature may be made, does diminish his suitability. However, TFY’s mother’s close contact with TFY will enable TFY’s views, wishes and preferences to be taken into account. The parents should be able to work cooperatively on the management of TFY’s real property despite their personal differences. It does not currently require frequent communication between them. Any future decisions are likely to be relatively contained decisions not requiring prolonged negotiation.
Accordingly, the tribunal will continue the existing administration appointments, subject to some small alterations of the wording mainly to align the exception to TFY’s mother’s sole appointment with the wording of the joint appointment.
We dispense with the requirement for a financial management plan because TFY’s financial affairs currently are straightforward and routine.
The 2021 tribunal orders required TFY’s mother to provide certain financial records annually: bank statements, receipts for individual items that cost more than $500, and the latest Centrelink statement. We consider that this level of scrutiny is no longer required. Instead, we will require TFY’s mother to provide certain records within 28 days of being notified of a review of her appointment, and if she is otherwise requested by the tribunal to provide them.
Conclusion
We have decided not to appoint a guardian for TFY. This is because an appointment would be variously futile or unnecessary, as explained above.
We have decided to continue the existing administration appointments, with some minor changes.
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