TS
[2011] QCAT 684
•23 August 2011 with written reasons delivered on 14 November 2011
| CITATION: | TS [2011] QCAT 684 |
| PARTIES: | TS |
| APPLICATION NUMBER: | GAA3641-11 / GAA3655-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 August 2011 |
| HEARD AT: | Cairns |
| DECISION OF: | Mark Johnston, Member |
| DELIVERED ON: | 23 August 2011 with written reasons delivered on 14 November 2011 |
| DELIVERED AT: | Cairns |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for TS for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services; (d) Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year. 3. The Public Trustee of Queensland is appointed as administrator for TS for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – where deafness and excessive consumption of alcohol impact on decision making – where substitute decision maker found to be necessary |
APPEARANCES and REPRESENTATION (if any):
TS – the Adult
Marleen Blake, Deaf Interpreter, Department of Communities
HS and MGL from the Homeless Health Outreach Team
Angela Kimber from the Office of the Adult Guardian
Char Howell and Cheryl Smith from The Public Trustee of Queensland
REASONS FOR DECISION
Background to hearing
On 9 May 2011 the Application about TS was lodged with the Tribunal by a member of the Homeless Health Outreach Team (“HHOT”) which is part of Queensland Health. The Applicant sought an interim order appointing a guardian namely the Adult Guardian and of the appointment of an administrator namely The Public Trustee of Queensland. An interim order was granted on 20 July 2011 appointing the Adult Guardian for the following matters: accommodation decisions; provision of services; and legal matters not relating to the adult's financial or property matters. The interim order also appointed The Public Trustee of Queensland as administrator.
On 23 August 2011 the hearing of the Application took place in Cairns.
Something about the adult
TS is 36 years of age and lives at Department of Housing accommodation in Cairns. She has been there since 2010. The adult is very attached to the accommodation having previously lived on the streets for several years. She has suffered from deafness since the age of 17. The Applicant is a psychologist attached to Queensland Health and was working as part of the HHOT team. She has personally worked with TS for 12 months and outlines in her letter accompanying the Application that TS continues to be at risk physically sexually and financially.
Does the adult lack capacity?
The Tribunal received a Health Professional Report from Dr Tina Voolmann a doctor attached to the Mental Health Unit working with the HHOT team. In paragraph 4.1 of her Report which asks about the adult's current medical conditions she states:
Occasional “fits” but only when withdrawing from alcohol according to her; almost totally deaf which slowly developed from age 17; alcohol abuse going back to 1990; and psychosis is mentioned in the notes.
In paragraph 4.2 of the Report it is noted that TS is receiving the medication Epilem for epilepsy; and Seroquel for paranoid thinking.
In paragraph 4.3 of the Report the doctor states that noncompliance with medication and a lack of family support are factors that affect TS's ability to make decisions.
In paragraph 5.1 of the Report the doctor talks about the extent to which TS has the ability to understand and act upon information relevant for making decisions and the extent to which the adult appreciates the consequences of the decisions. In relation to personal health care the doctor has written the words “very limited”. In relation to lifestyle and accommodation choices the doctor has written the words “minimal ability” and in relation to financial affairs “probably poor”.
In the summary at paragraph 9 of the Report the doctor states that TS is unable to make complex decisions about: personal health care; lifestyle accommodation choices; and financial affairs. The basis for the incapacity is stated to be a history of alcoholism which has been in place for over 10 years.
The Applicant provided a letter to the Tribunal which contains a very good outline of the issues. In paragraph 3 the Applicant states:
TS's health has also deteriorated during the period I have worked with her. It is difficult to have a doctor see her as she is often unavailable. TS has been diagnosed with Wernicke Syndrome. TS does not appear to link drinking alcohol with the associated symptoms. This means that she does not take the medication that helps improve her mobility and cognitive function. TS’s short and long-term memory appears to have deteriorated over the last year. Previously discussed history is increasingly becoming more difficult for her to recall. Objective tests of memory have been very difficult to administer due to the long period of sobriety needed in order to assess. TS will often begin withdrawing from alcohol due too to the lack of funds or she will decide to stop drinking after a major event, such as being attacked, has taken place. TS, to my knowledge, has never responsibly planned to withdraw from alcohol and this places her at risk due to the seizures that she frequently suffers as a result of withdrawal.
[10] In paragraph 4 of the letter she reports:
TS struggles to manage her finances. During one episode she spent $200 on a taxi fare to Innisfail. As previously mentioned, she often loses her keys and smashes windows to gain entry. Her ability to negotiate replacing these items is very poor. In the case of the window, she has managed to secure the unit by replacing one window that this was achieved by coercing a private company to complete the job for no recompense. In the past TS has managed a mobile phone (for texting) well. She has been unable to manage this for the last eight months due to constant damage or loss.
[11] In paragraph 5 of the letter she reports:
TS does have some insight into her situation and does understand that her drinking is a major issue for her. At times, she does demonstrate some motivation to change that this is short lived. TS values her unit and does not want to lose the tenancy. At times this can be used to motivate her to clean up but it is not sustained. She often states that she is desperately lonely however it is difficult to assist her with this when she drinks continuously. I feel that TS has the capacity to live a more productive and fulfilling life if more support could be put in place for her.
Oral evidence
TS
[12] There were times when things might not go well but most of the time she can look after itself. She is not in trouble with the law; she has put these troubles behind her and has not been in trouble with the law for a period of two years. In the past she had been living on the street and she had got into trouble with the police. She has lost her licence due to drink-driving. The loss of her licence has put her on notice to change her life. She conceded when challenged that she was having some difficulties at the present time but felt that she could manage.
Angela Kimber
[13] She had been speaking to members of the HHOT team and with the Department of Housing and it was clear that TS was at risk of becoming homeless because of issues around her tenancy.
MGL
[14] The HHOT team has had to work extremely hard to stop TS from being evicted. This has involved a lot of negotiations with service providers and the Department of Housing to provide TS with support. She has refused to engage and the state of her accommodation has deterred service providers from putting their staff into this situation. Their service is of the view that TS needs the support of a decision maker.
Findings of Fact
[15] The adult has a long history of alcohol addiction and a diagnosis of Wernicke Syndrome.
[16] Her lifestyle has impacted on her decision-making abilities on a regular basis exposing her to physical sexual and financial abuse.
[17] The adult has a long history of living an itinerant lifestyle prior to being provided with accommodation by the Department of Housing.
[18] The maintenance of her accommodation is essential to her well-being.
Decision in relation to capacity
[19] The Tribunal determines for these reasons that the adult does not have capacity to make decisions about the matter.
Legal requirements of the appointment of decision-makers
[20] Section 12 of the Guardianship and Administration Act 2000 provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision-making capacity the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the Tribunal determines that 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 without an appointment the adult needs will not be adequately met or the adult’s interests will not be adequately protected.
Is there a need for a guardian?
The Applicant
[21] In her application she explains the reasons for seeking the order in these terms:
TS is a deaf lady in her mid-30s who is a chronic alcoholic. In recent weeks her behaviour has escalated again and on Friday she was issued with a “notice to remedy breach”. Discussions with the Department of Housing suggest that she will likely be evicted. On Sunday the 17th of July, staff from HHOT team attended TS’s premises. Neighbours informed staff that TS had been physically abused by a friend. Two other itinerants were present at the unit, the fire alarm was sounding and the front window was smashed. As of last night she has had two nights in crisis accommodation and we are unsure of what events will be after this.
[22] In her letter with the application she states:
I am writing in support of a guardianship order to be put in place for TS. During this time despite a few small achievements, TS continues to be at risk physically, sexually and financially. TS has been deaf from approximately the age of 17. She is a chronic alcoholic and has been in and out of rehabs for the last 15 years. TS has been known to the service since January 2004. More recently, she has been engaged continuously with the service since August 2009. During this time TS has continued to consume alcohol to levels detrimental to health. Despite the best efforts of all the community services available to her in Cairns, TS's condition has not appeared to improve.
During 2010 TS was offered a Department of Housing unit, this was after she had been reportedly living on the streets for five years. TS manages to maintain her units for short periods of time (maximum three months), whilst she remains sober. However during these periods TS still requires considerable support. When TS is intoxicated the standard of her hygiene lowers considerably. During these times, TS uses a bucket to toilet in, in her living room, as she is unable to negotiate the stairs to the bathroom upstairs. Her only furniture is a couch and the bed upstairs. TS was given furniture when she originally moved into the unit but this needed to be removed after a long period of intoxication and the furniture being rendered unusable. She frequently sleeps on the floor amidst vomit and cigarette butts. In another recent episode, TS smashed three windows, over a two-week period, to gain entry to her unit after losing her keys. Due to her inability to manage her money, she could not afford to have the windows fixed. This allowed unsavoury visitors to enter her unit to take advantage of her both sexually and financially. The hygiene levels of her unit means that services often refused to engage with her. Her living standards are placing her at risk of losing her tenancy.
Angela Kimber
[23] In her report she sets out the following background information:
TS is a 35 year old woman who is deaf and uses Auslan to communicate. TS also has a diagnosis of Wernicke’s Syndrome. TS has struggled with her alcohol addiction for much of her life and had been leading in an itinerant lifestyle up until two years ago. TS is supported by the Homeless Health Outreach Team. The HHOT team have been working with TS to engage services to assist her, but due to some of TS's lifestyle choices, services have been consistently withdrawn. TS has struggled to manage her Housing unit she has been living in for the past two years and has recently been facing eviction due to the state of the unit. TS has struggled to maintain her unit in a secure and hygienic manner, but upon request to clean the unit has managed to comply. On each occasion TS has not been able to maintain this level of cleanliness for more than a couple of months, at times less than a day. TS's unit is a second storey unit and TS finds it difficult to manage the stairs to enter her unit due to balance issues. When TS is intoxicated she often has difficulty gaining entry to her unit and will break the windows to re-enter it. TS is very vulnerable to abuse from others due to the unsecured state of the unit. It has been reported that TS has been the victim of sexual exploitation throughout her time residing in a current accommodation…
TS is currently in a very vulnerable situation and is at great risk of homelessness, exploitation and abuse from others in the current living arrangement. Without a move to more appropriate accommodation to suit her mobility and security, she will continue to be at risk of homelessness and unable to access services to assist her in maintaining her tenancy. TS's current lifestyle choices have resulted in criminal charges and without future assistance to manage the legal affairs.
[24] In her oral evidence she stated that TS's accommodation was at risk and that she could see a need for someone outside of the service provider namely the HHOT team to negotiate with the Department of Housing to find a better place for TS to live. She also sees a need for services to be provided to the adult. The evidence shows that it has been difficult to engage a service provider because of the trying conditions and TS's tendency to discourage service agencies. Her chosen lifestyle also deters service agencies.
HS and MGL from the Homeless Health Outreach Team
[25] TS's needs are too great to be met by the HHOT team. They support the need for an appointment of a guardian and see the critical areas as being: accommodation; service provision; and health. They understand that her accommodation is at risk and that there is a history of her disengaging from services.
[26] When she is intoxicated and fitting she is taken by ambulance to the Cairns Base Hospital. Some of the doctors at the hospital will not admit the adult because they see it as a social admission. This has occurred on at least three occasions of this year. Their concern is that her life is at risk. It is important for an advocate to be appointed to support her in these situations. Her epilepsy needs to be closely monitored. The combination of the epilepsy with her consumption of alcohol creates significant risks for her. TS’s health needs to be regularly monitored.
[27] The HHOT team don’t always have a doctor with them and when they do this is usually a mental health practitioner so they are not in a position to monitor the adult’s physical health conditions. This risk is further complicated by her not taking her medication for epilepsy from time to time.
[28] TS's partner has aggressive tendencies so it has been necessary to reach an agreement with him for him to be absent to allow service provision to occur. This is another complicating factor.
Findings of fact
[29] The adult will need to surrender her unit and find new accommodation because of safety and other concerns.
[30] The adult will benefit from a service provider as poor lifestyle choices impact upon the adult’s self-care.
[31] There is a history of the adult refusing services and disengaging from service providers.
[32] The adult does not see a GP on a regular basis.
[33] The adult has significant health issues having being diagnosed with epilepsy. Her medication needs to be supervised.
[34] The adult’s choice to regularly consume alcohol impacts on her health.
Decision in relation to the need for a guardian
[35] The Tribunal determines that there is a need for a decision in relation to the following areas: accommodation; service provision; health; and legal matters not involving property or finances. The Tribunal is satisfied that without the appointment of a guardian there is an unreasonable risk to the adult’s health and welfare. The Tribunal is satisfied that the need for an appointment of a guardian has been established.
Does someone need to help TS to manage her finances?
Char Howell
[36] She has met with TS and with the HHOT team. She needs money for food and smokes and medication. She has been told that TS’s pension monies disappear within days and she doesn't have enough to meet her needs. This means she does not have money for food and smokes and for her medication. Her electricity account is $820 in advance. Her rent and electricity are paid directly by Centrepay. She has an outstanding SPER fine of $6,400.
HS and MGL from the Homeless Health Outreach Team
[37] It is very important for TS's well-being that her medication and food are paid for. She has lost her keys so she has smashed her windows to get in. She does not have the ability to budget to pay for the windows to be repaired. This leaves her vulnerable to other people moving in and out and taking advantage of her. Other people take her cigarettes and food because of her vulnerability. It also places her at risk of her tenancy being revoked because having others with her breaches the tenancy rules.
[38] An example of her poor decision-making was spending the sum of $200 on getting a taxi ride to Innisfail. Their view is that TS doesn't understand the consequences of her actions.
[39] The arrangements for her rent and electricity to be deducted from a pension were set up by Wayne Reynolds of Deaf Services. TS does not have this capacity.
[40] They have a real concern that without a formal decision maker TS will disengage from the supports and services that are available.
[41] All the furniture was removed because she had been binge drinking. She needs help getting back on her feet so that she can get her furniture back and have an improved quality of life.
Findings of fact
[42] The adult receives a Disability Support Pension.
[43] The adult has a history of being taken advantage of financially.
[44] The adult has a SPER debt of $6,400.
[45] The adult is unable to budget for repairs to her windows.
Is there a need for an administrator to be appointed?
[46] The Tribunal is of the view that there is a need for a decision in relation to financial matters. There is evidence of the adult’s financial vulnerability and of her financial exploitation. The Tribunal determines that there is an unreasonable risk to the adult’s property and that without an appointment the adult’s interests will not be adequately protected. The Tribunal determines that the need for the appointment of an administrator has been established.
Appropriateness
[47] The Tribunal noted that no family members or friends attended the hearing or were suggested during the hearing as appropriate to be appointed as decision-makers for the adult.
[48] The HHOT team support the appointment of the Adult Guardian and the Public Trustee.
[49] The Tribunal is of the view that an independent guardian and an independent administrator are well placed to liaise with all interested parties, assess the relative merits of options the decisions on personal matters and financial matters respectively and to make decisions that best meet the adult’s needs. The Adult Guardian and the Public Trustee as independent decision-makers have extensive skills and experience and are considered appropriate to be appointed as guardian and administrator respectively in this case.
Findings of fact
[50] The adult has no family members or other persons willing and able to act as decision-makers for her.
[51] The Tribunal determines that the appointment of the Adult Guardian and The Public Trustee of Queensland are appropriate appointments in the circumstances.
Term of the appointments
[52] The Tribunal did not accept the evidence of TS that she was able to make decisions for herself at this point in time. The Tribunal has however in fairness to TS made a short appointment of 12 months. This will enable firstly the Adult Guardian and The Public Trustee of Queensland to make decisions to support the adult in relation to her current difficulties. A decision on new accommodation; decisions about supports; and the management of her finances for her own benefit should all assist TS.
[53] The applicant is concerned that TS's ability to manage her own affairs has deteriorated as a result of her addiction to alcohol. It will be in her best interests to work with the appointees and to be in the position to demonstrate that she is in control of her life and able to make good decisions.
[54] The Tribunal appoints the Adult Guardian as guardian for TS for a period of 12 months in relation to the following matters: accommodation; service provision; health; and legal matters. The Tribunal appoints The Public Trustee of Queensland as the administrator for TS for a period of 12 months and directs the administrator to lodge a financial management plan within four months.
Interpreter
[55] The Tribunal notes how helpful the deaf interpreter was in the process to help the adult.
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