TWG
[2010] QCAT 618
•11 November 2010
| CITATION: | TWG [2010] QCAT 618 |
| PARTIES: | TWG |
| APPLICATION NUMBER: | GAA8181-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 11 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of guardian revoked |
| CATCHWORDS : | GUARDIANSHIP – review – section 31 Guardianship and Administration Act 2000 – no need for guardian – revocation of appointment |
APPEARANCES and REPRESENTATION (if any):
REASONS FOR DECISION
On 11 November 2008 the Guardianship and Administration Tribunal appointed the Adult Guardian to be the guardian for TWG for accommodation, health care and service decisions for a period of two years.
During that appointment, the guardian made four decisions about accommodation for TWG but made no decisions about health care or service provision for TWG.
From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal (the Tribunal).
A review of the appointment was conducted by the Tribunal on 11 November 2010 on the basis of information on the Tribunal’s file. Notice of this review hearing was sent to TWG and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act).
When conducting a review of an appointment of a guardian, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. The Tribunal must be satisfied that the adult in question has impaired decision making capacity for the matter and that there is a need for appointment of a guardian as set out in section 12 of the Act.
The Tribunal was provided with a report from Dr C dated 18 August 2008 in which he referred to a diagnosis of vascular dementia made in 2005. Dr C reported that TWG had a very limited capacity to understand and act on information relevant to decision making about personal health care and lifestyle and accommodation matters. Dr C expressed the opinion that TWG could not make decisions freely and voluntarily.
No updated information about TWG’s decision making capacity was provided to the Tribunal for this review. However, the guardian reported that in January 2009 an assessment by the Aged Care Assessment Team had found that TWG’s care needs had increased to high level care. The guardian also reported that TWG had been unable to convey his opinions, views or wishes about the appointment of a guardian due to the nature of his dementia.
The Act defines capacity for a matter as a person being capable of understanding the nature and effect of decisions about the matter, being capable of freely and voluntarily making decisions about the matter and being capable of communicating the decisions in some way.
The Tribunal accepts the evidence of Dr C from 2008 and the more recent evidence contained in the report of the guardian. The Tribunal finds that TWG has been diagnosed with vascular dementia since 2005, his care needs have increased since 2008 and he is unable to communicate his views or wishes about the appointment of a guardian due to the ongoing effect of his dementia.
10. The Tribunal concludes that TWG cannot understand the nature and consequences of decisions about personal matters and cannot make decisions freely and voluntarily due to the effects of his dementia. The Tribunal determines that the presumption of capacity for decision making has been rebutted by the evidence before the Tribunal and determines TWG has impaired decision making capacity for personal matters.
11. TWG has resided in a Brisbane nursing home since January 2009 and the evidence by the guardian is that he has settled into that accommodation and is well cared for with the level of services made available to him. TWG is actively supported by his family. TWG’s daughter has expressed the view that there may be a need to source accommodation closer to where his wife resides but she was uncertain about the benefit such a move would have for TWG. The manager of TWG’s nursing home reported to the guardian that she did not foresee any decisions that would be needed to be made for TWG in the near future.
12. If the appointment of a guardian is to be continued in this case, the Tribunal must be satisfied that there is a need for decisions to be made about accommodation, health care and service delivery and that without the appointment of a guardian the decision making needs of TWG in those matters will not be adequately met.
13. The evidence reveals that no service decisions were made by the guardian over the two year period of appointment. There is no evidence that decisions are needed to be made on a continuing basis about the level of services provided to TWG.
14. Although TWG’s daughter raised the possibility that a change of his accommodation may be considered in the future, there is no evidence that other family members agree that such a decision is likely to be considered or that a move from his current nursing home would be considered feasible in view of the progression of TWG’s dementia. Evidence was provided to the Tribunal that TWG has settled into his current accommodation and is well cared for there.
15. The Tribunal is aware that it is possible that a need for a decision about a personal matter may arise from time to time. However, decisions can be made by persons other than by a guardian appointed by the Tribunal. Section 9 of the Act authorises decision making for an adult with impaired capacity on an informal basis by members of an adult’s existing support network. A support network can include members of the adult’s family and close friends of the adult.
16. Decisions made informally by members of the support network are valid when there is no guardian appointed by the Tribunal to make decisions for an adult about the matter in question. TWG has family members available, such as his wife and daughter, who may be prepared to make decisions about personal matters for him on an informal basis.
17. The Tribunal is not satisfied on the evidence presented in the review that decisions are needed to be made about accommodation and services for TWG or that without the appointment of a guardian those decisions cannot be validly and effectively made for TWG.
18. That leaves health care decisions to be considered. Under the Powers of Attorney Act 1998, a statutory health attorney is authorised to make any decision about a health matter that an adult could lawfully make if the adult had capacity for the matter. Members of an adult’s family are statutory health attorneys by virtue of that Act as long as they are not paid carers for the adult.
19. TWG’s family members can act as his statutory health attorneys to make valid decisions about health care for TWG without the need of any appointment by this Tribunal. In the event of disagreement or unwillingness by family members to act in that role, the Adult Guardian has been given the role of statutory health attorney of last resort and can make health care decisions for TWG without being appointed as his guardian for that purpose.
20. The Tribunal is not satisfied on the evidence presented in the review that decisions are needed to be made about health care for TWG or that without the appointment of a guardian those decisions cannot be validly and effectively made for TWG by his statutory health attorneys.
21. In view of the findings made by the Tribunal that there is no need for the appointment of a guardian for TWG, the Tribunal revokes the appointment of the Adult Guardian as guardian for TWG.
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