TOC
[2011] QCAT 281
•17 June 2011
| CITATION: | TOC [2011] QCAT 281 |
| PARTIES: | TOC |
| APPLICATION NUMBER: | GAA4082-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 17 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor A Ashman, Presiding Member |
| DELIVERED ON: | 17 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The appointment of The Public Trustee of Queensland as administrator for TOC is continued. 2. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 3. This appointment remains current until further order of the Tribunal. |
| CATCHWORDS: | Guardianship and administration for an adult – Administration – Review of the appointment of an administrator |
APPEARANCES and REPRESENTATION (if any):
CV, daughter
CB, son-in-law
RKY, representing the Public Trustee of Queensland
REASONS FOR DECISION
On 18 June 2008 the Queensland Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for TOC with plenary powers. That appointment was for three years.
The Tribunal undertakes a review of the appointment of guardians and/or administrators in accordance with s 31 of the Guardianship and Administration Act 2000. That section requires the Tribunal to revoke its appointment unless it is satisfied that it would make such an appointment if a new application for the appointment of a guardian and/or administrator were made. The Tribunal, therefore, first considered the capacity of TOC to make decisions for herself in financial matters.
Two documents are held on the Tribunal’s file that relate to TOC’s decision-making capacity. The first is an Aged Care Assessment dated 12 September 2006. In that report, the author states that TOC had a diagnosis of dementia and achieved a score of 18/30 on the Mini Mental State Examination (MMSE), administered on 29 August 2006. Such a score indicates that TOC had moderate cognitive limitations at that time. The second document is a health professional’s report by Dr FJ dated 25 March 2008. He stated that TOC could make simple decisions only and was demonstrating moderate to severe cognitive impairment. He provided a MMSE score of 9/30, which indicates severe limitations.
CV stated that she visits her mother approximately once each month at the aged care facility where she lives and in CV’s view, her mother is unable to make decisions for herself in financial matters. CB agreed with his wife’s assessment.
Based on the information available, the Tribunal is satisfied that the presumption of capacity as set out in the Guardianship and Administration Act 2000 in regard to TOC’s ability to make decisions for herself in financial matters is rebutted.
In accordance with section 31 of the Act the Tribunal then turned its attention to the need for an administration appointment.
The representative of The Public Trustee of Queensland provided an overview of TOC’s financial position. TOC receives a Centrelink pension of approximately $275 per fortnight and a pension from the New Zealand government of approximately $400 per fortnight, depending upon exchange rates. The Trustee also holds approximately $200 in its cash account for TOC.
TOC resides at an aged care facility where the fortnightly rate is approximately $840. This means that TOC’s income falls significantly short of the aged care facility fees. She has accumulated a debt to the facility of just over $6,000.
The Trustee has made a hardship application to the Department of Health and Ageing in an effort to secure funds to cover the difference between TOC’s income and the aged care facility fees, backdated to the time of her admission into care. The representative stated that she was awaiting the outcome of the application and was confident that this would be forthcoming, although she was not able to indicate when the decision was expected.
[10] The Trustee was also pursuing a former attorney for, and daughter of, TOC, HJS. It has been alleged that HJS misappropriated approximately $165,000, that sum being derived from the sale of TOC’s home in New Zealand. It has been alleged that the proceeds of the sale were deposited in HJS’s bank account and in other accounts belonging to members of her family.
[11] The office of the Public Solicitor has been dealing with this matter. RKY indicated that HJS seems to have disappeared and enquiries by the Public Solicitor have been futile to date. RKY also reported that the matter was unlikely to be pursued much further as TOC was not in a position to fund further enquiries and searches.
[12] The Tribunal is satisfied that TOC’s circumstances warrant the appointment of an administrator to ensure that her financial situation is stabilised in the near future in terms of additional support to cover her accommodation costs and regular outgoings.
[13] The Tribunal then considered who would be the most appropriate appointee as administrator.
[14] Section 31(4) of the Act states that an appointee can only be removed if that appointee is no longer competent or another person is more appropriate for appointment.
[15] It was agreed by CV and CB that The Public Trustee was performing capably. In correspondence with the Tribunal prior to the hearing, CV indicated that she was willing to take over the administration if it involved paying the nursing home fees and chemist fees only.
[16] CV has now changed her position. During the hearing she and CB expressed the view that it would be best to allow The Public Trustee of Queensland to continue in the role of administrator so that they could continue to act as family members without responsibility for TOC’s financial affairs.
[17] The Tribunal is satisfied that The Public Trustee of Queensland has performed its duties in a capable way and has actively sought support from the Department of Health and Ageing to assist TOC.
[18] The Tribunal finds, therefore, that TOC is unable to make reasoned decisions about her financial affairs, there is a need for an administrator to manage these affairs, and The Public Trustee of Queensland is the most appropriate appointee at this time.
[19] Orders are made accordingly.
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