TS
[2011] QCAT 112
•9 March 2011
| CITATION: | TS [2011] QCAT 112 |
| PARTIES: | TS |
| APPLICATION NUMBER: | GAA9244-10 GAA9246-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 17 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 9 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. SMF is appointed guardian for TS for decisions about the following personal matters: accommodation, provision of services and 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 two years; 3. The application for administration is dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – decision needed about where adult should live – adult to be released from correctional facility on parole – appropriateness considerations about proposed appointees |
APPEARANCES and REPRESENTATION (if any):
The applicant, Natalie Avery, attended at the hearing. TS attended at the hearing by way of telephone. Also attending at the hearing were Craig Brewer and Edel Hayes appearing for the Adult Guardian, Natalie Menyweather from Interact, SMF and friends of TS.
REASONS FOR DECISION
TS had been convicted of a series of offences, was incarcerated in a Correctional Centre and is eligible for parole. A decision on the release date from the Correctional Centre had not been made as the post release accommodation arrangements for TS had not been approved.
Natalie Avery of Queensland Corrective Services lodged an application with the tribunal for the appointment of a guardian and administrator for TS. Ms Avery expressed the concerns of Queensland Corrective Services that TS may require assistance with decision-making after her release from custody. Ms Avery expressed concerns that TS’s current and previous informal supports may not have acted in her best interests and Ms Avery sought the appointment of the Adult Guardian and The Public Trustee of Queensland as decision-makers for TS.
Ms Avery stated that TS’s parole conditions will stipulate that she would not be permitted direct or indirect contact with her former partner and co-accused. In an application for an interim appointment of a guardian and administrator, Ms Avery stated that TS wanted to arrange accommodation on release on a property belonging to a friend of her former partner. It was stated that this person, who had assisted both TS and her former partner with their parole applications and who was now a friend, was assisting TS with her decision-making.
The tribunal made an interim appointment on 19 November 2010 of the Adult Guardian as guardian for TS for decisions about accommodation and service provision. A hearing of the application for the appointment of decision-makers for TS took place on 17 February 2011.
According to the report of the Adult Guardian dated 14 February 2011, TS became eligible for parole in March 2010 and the Southern Regional Parole Board had approved her parole but no release date had been set as at the date of the report.
The guardian had made a decision on 23 November 2010 that prevented TS from residing with a nominated person. The decision had been based on findings that the property was owned, and resided in, by the friend of her former partner. It was determined that TS’s former partner frequents the property to visit his friend. The guardian reported that part of the conditions placed on TS’s parole was that she was to have no contact with her former partner. Other accommodation options were being considered by the guardian.
When considering the appointment of a guardian or an administrator for TS, the tribunal is required by section 12 of the Guardianship and Administration Act 2000 to determine first whether she has impaired decision-making capacity. There is a presumption at law that all adults have the capacity to make their own decisions. The tribunal commenced the hearing with that presumption and examined the evidence with a view to determining whether that presumption should stand or whether it was rebutted by the evidence.
Several members of her family and friends had provided letters to the tribunal expressing their opinions that TS has capacity to make her own decisions and that there was no need for decision-makers to be appointed for her.
Ms Avery had provided a series of medical reports to the tribunal. The most recent report was by Dr Prabal Kar dated 18 August 2010. Dr Kar reported that TS had extremely severe intellectual limitations. He found her to be a highly suggestible person. He noted that her IQ had been assessed as between 62-65 by different psychologists. Dr Kar reported that TS had very limited comprehension.
[10] A psychological assessment conducted on 30 April 2010 noted that TS had relied heavily on others in her daily functioning. TS had admitted that she had difficulty with learning and she required further explanation of new information. She admitted that she had a poor memory. The assessment noted that TS had previously exhibited great difficulty in understanding questions and had interpreted some questions in very concrete terms.
[11] The assessment concluded that TS had communication difficulties in being unable to respond to complex questions requiring careful consideration. She demonstrated great difficulties in a range of functional academic skills, including literacy and numeracy. The assessment found that TS was in the mild intellectual disability range of cognitive functioning.
[12] TS’s friends who attended the hearing had expressed opinions that TS needed more time to understand information than other people and needed at times for new information to be rephrased into more simple language but she could come to decisions with this support.
[13] The opinions expressed by Dr Kar were not challenged nor was any medical evidence produced to the tribunal expressing opinions that contradicted the conclusions reached by Dr Kar. The tribunal accepts the opinions expressed by Dr Kar. Consistent with those opinions, at the hearing TS displayed some limitations in her understanding of questions put to her about her future plans and her answers were overly optimistic and lacked detail given that her focus had been on release for some months.
[14] The tribunal made findings that TS has a mild intellectual disability. She is highly suggestible, has limited comprehension and communication skills, has poor memory, has difficulties with new learning and has reduced literacy and numeracy skills. She is vulnerable due to her cognitive impairment and to her reliance on others to assist her with decisions. With those findings made, the tribunal then looked at the legislation for guidance about reaching a conclusion about TS’s decision-making capacity.
[15] The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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.
[16] In view of the findings made about her cognitive impairment, the tribunal concluded that TS would not reliably and consistently be able to hold onto and work with new information, put together options for action, foresee the consequences of taking one option over another and then stick with a choice of action for long enough to put her plans into action. The tribunal concluded that TS could not reliably understand the nature and consequences of decisions about a range of personal and financial issues that are likely to arise in her life.
[17] The tribunal was satisfied that the presumption of capacity had been rebutted by the evidence. The tribunal concluded that TS has impaired decision-making capacity for personal and financial matters. Ms Avery asked the tribunal to appoint a guardian for TS so personal decisions can be made for her.
[18] The Tribunal can appoint a guardian to make personal decisions for TS if the tribunal finds that a guardian is necessary. Section 12 of the Guardianship and Administration Act 2000 sets out the criteria to be considered by the tribunal when determining if there is a need for a guardian. A need for a guardian would be found if the evidence reveals that there are decisions that have to be made or if TS is likely to act in a way that involves, or is likely to involve, unreasonable risk to her welfare. However there would not be a need for a guardian if her decision-making needs can be adequately met by support given informally or if there is another reasonable way to adequately protect her interests.
[19] While TS is in the correctional centre, very few personal decisions are needed to be made. Ms Avery was concerned that on release on parole TS would have to make decisions about where she should live and her decision would likely to have impact on the viability of her parole. If decisions about her accommodation resulted in a breach of her parole, TS could be returned to the correctional centre and face the consequences of that breach. Arrangements had been made to link TS with support services to transition her into the community and decisions about the nature and extent of ongoing support services would be needed as TS re-established herself into the community.
[20] The tribunal was satisfied that the choice of accommodation was a factor critical to TS successfully being released from the correctional centre on parole. It is in the circumstances a complex decision. An accommodation decision made without full consideration of the consequences may result in TS’s release on parole being further delayed or if she is released, an inappropriate decision may in time result in her returning to the correctional centre.
[21] The tribunal concluded that the formal appointment of a guardian was needed to ensure that an accommodation decision was made in circumstances that the parole authorities could recognise that proper consideration had been given to this complex decision and that there was in place a regime for decision-making where a person had formal responsibility and accountability for the welfare of TS in this area of decision-making. The tribunal was convinced that informal support for decision-making about accommodation and services could not adequately meet the specific needs of TS at this point in time.
[22] At the hearing, the only appointee proposed for guardian was the Adult Guardian. It became apparent during the hearing that the friends of TS would welcome the opportunity to be considered for appointment to that role. The tribunal made directions to enable any person seeking to be considered for appointment as guardian to provide information and documentation to the tribunal about their appropriateness for appointment. Active parties and persons interested in TS were invited to provide their comments on the proposals for appointment.
[23] Several persons put forward their proposals which were considered by the tribunal as well as the proposal for the appointment of the Adult Guardian. One of the proposed appointees was SMF. He informed the tribunal that he was a long time friend of TS. He stated that he runs a successful business and he has been active in a wide variety of community organisations and activities. He stated that he would consult with TS but would also provide her with guidance about lifestyle decisions.
[24] Neither Ms Avery nor any active party made any comment about the proposal that SMF be appointed as the guardian for TS. The tribunal concluded from the documentation provided that SMF could satisfy the appropriateness criteria for appointment as set out in the Guardianship and Administration Act 2000. As there was a person appropriate for appointment as guardian, the tribunal determined that it should not appoint the Adult Guardian given the provisions in section 14(2) of the Act. The tribunal was satisfied that SMF would be able to apply the General Principles and would provide TS with both adequate and appropriate support for decision-making.
[25] Ms Avery had also asked the tribunal to appoint an administrator for TS for financial decisions. TS’s financial affairs are not complex. On release from the correctional centre, her income will be income support from Centrelink until such time as she finds employment. The tribunal was not informed that TS has any assets or outstanding liabilities. The range of decisions required about her financial affairs will be very limited and in the view of the tribunal can be made by TS with support from her informal support network.
[26] The Guardianship and Administration Act 2000 acknowledges the right of an adult with impaired capacity to make decisions with the support available from their support network. The tribunal recognises that the right of TS to make decisions should be restricted and interfered with to the least possible extent. The tribunal was not satisfied there was a need to appoint an administrator to make financial decisions for TS at this point in time.