WED
[2009] QCAT 3
•14 December 2009
| CITATION: | WED [2009] QCAT 3 |
| PARTIES: | WED |
APPLICATION NUMBERS: GAA7376-09, GAA7377-09, GAA10198-09
| MATTER TYPE: | Guardianship and administration matters |
HEARING DATE: 1 December 2009
HEARD AT: Brisbane
| DECISION OF: | B Bayne Presiding Member R Clifford Member G Lewis Member |
DELIVERED ON: 14 December 2009
DELIVERED AT: Brisbane
ORDERS MADE: Appointment of guardian and administrator
| CATCHWORDS : | Review of Guardianship and Administration orders, appropriateness of proposed appointees, conflict |
APPEARANCES and REPRESENTATION (if any):
PW , daughter
Jane Caldwell, representing the Adult Guardian
Lisa Bloomfield, representing the Adult Guardian
Mark Williams, representing the Public Trustee of Queensland
Annette Wolski, advocate (with leave) for PW
REASONS FOR DECISION
HISTORY OF THE APPLICATION
WED is a 85 year old man with a diagnosis of dementia as well as ischemic heart disease, chronic cardiac fibrillation, hypertension, chronic obstructive airways disease, osteoarthritis and hypercholesterolaemia.
WED has a wife, WL. They have two children: WJ and PW. There has been a history of severe conflict between family members.
WED and WL have a family home in Brisbane. The property is WED’s sole name.
On June 2007, WL, due to ongoing physical health problems, moved out of the family home into a permanent placement in a nursing home.
In April 2007, PW had moved into the family home to provide support and care to her father.
On 15 September 2009, WED was admitted to hospital with chest pains. As at 1 December 2009, WED remained as an inpatient in a sub acute care unit of that hospital.
On 10 April 2007, WED had executed an Enduring Power of Attorney jointly appointing WJ and PW as his attorneys for personal, health and financial matters.
On 31 July 2008, the Guardianship and Administration Tribunal (GAAT) received an application from WJ, proposing the appointment of the Adult Guardian and Public Trustee of Queensland (PTQ) as guardian and administrator for his father. On 1 December 2008, the GAAT received an application from PW, proposing herself as guardian and administrator for her father.
A hearing of these applications was held on 5 December 2008. The GAAT made orders appointing the Adult Guardian as guardian for WED for accommodation and contact/visits and the PTQ as plenary administrator. Both appointments were for one year. The Enduring Power of Attorney dated 10 April 2007 was declared invalid as the GAAT determined that WED did not have the capacity to execute it at the time.
On 3 November 2009, the GAAT scheduled periodic reviews of the appointments of the Adult Guardian and PTQ. On 30 November 2009, the GAAT received an application from PW seeking a review of the appointment of the Adult Guardian and proposing herself as WED’s guardian.
A hearing of these applications was held on 1 December 2009 by the Queensland Civil and Administrative Tribunal (the Tribunal).
Orders were made on 1 December 2009. Reasons to accompany the reserved decision were provided on 14 December 2009.
THE PARTIES
The active parties attending the hearing on 1 December 2009 were
PW, daughter
Jane Caldwell, representing the Adult Guardian
Lisa Bloomfield, representing the Adult Guardian
Mark Williams, representing the PTQ.
The active parties not present at the hearing were WED, WJ and WL.
Leave was given to Ms Annette Wolski, to appear as advocate for PW.
THE ISSUES
The issues for the Tribunal at the hearing on 1 December 2009 were:
(a) Did WED have capacity for the matter?
(b) Was there an ongoing need for a Guardian? If so, who should be appointed?
(c) Was there an ongoing need for an Administrator? If so, who should be appointed?
The Guardianship and Administration Act 2000 (the Act) is an enabling Act conferring original and review jurisdiction on the Tribunal. As stated in s6, the intent of the Act is to seek a balance between the right of an adult with impaired decision-making capacity to maintain an independent role in the decision-making process and the adult's right to adequate and appropriate support for decision-making.
Most adults with impaired decision-making capacity do not need a guardian or administrator appointed because their family, friends and support network help them deal with important choices, such as where they live or how to arrange their financial affairs. Often, formal arrangements such as an enduring power of attorney are used appropriately by family or friends to help adults with impaired decision-making capacity.
The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
THE EVIDENCE
In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below.
DID WED HAVE CAPACITY?
The Tribunal was required to determine capacity as at the date of hearing in accordance with section 12 of the Act. The Tribunal must be satisfied that WED had impaired capacity before it could further consider the applications before it.
The Act defines capacity in Schedule 4 of the 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.
WED was presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity had been rebutted for WED.
WED was first diagnosed with dementia in 2007. From then, various medical reports began to indicate increasing concerns with his cognitive functioning.
WED’s treating doctor of two years, provided a health professional report dated 18 July 2008 in respect of WED’s decision-making capacity. In it, the doctor opined that WED could only make simple personal and health decisions.
An Aged Care Assessment Team (ACAT) report was completed for WED in 2007, giving approval for low level residential care, dementia specific. An MMSE score of 7/30 was recorded at this time. An ACAT report in 2008 gave approval for high level, dementia specific, residential care.
In the hearing on 1 December 2009, PW informed that Tribunal that she recognised the severity of WED’s dementia. He had short term memory problems and required constant prompts and repeats. She considered that his condition had deteriorated since a hospitalisation in September 2009 and that he was now exhibited accelerated confusion, anxiety and aggression.
There was consensus from the parties attending the hearing and from WJ that, although WED was able to make some simple decisions, he needed assistance with all more complex matters.
Conclusion
The medical and health professional reports were consistent in their conclusions that WED, because of dementia, was experiencing cognitive impairment that would affect his decision-making, notably through memory loss, confusion and lack of insight.
The Tribunal was satisfied that WED had impaired capacity for complex personal and financial decisions.
IS THERE A NEED FOR A GUARDIAN AND IF SO, WHO SHOULD BE APPOINTED?
The Adult Guardian had been appointed as WED’s guardian for accommodation and contact/visits by the Tribunal on 5 December 2008. The application from PW on 30 November 2009 proposed herself as guardian.
The Tribunal in the review process must consider Section 31 of the Act. S31 provides:
31 Appointment review process
(1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate.(2) At the end of the review, 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.
(3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
(a) continue its order making the appointment; or
(b) change its order making the appointment, including, for example, by—(i) changing the terms of the appointment; or
(ii) removing an appointee; or
(iii) making a new appointment.
(4) However, the tribunal may make an order removing an appointee only if the tribunal considers—
(a) the appointee is no longer competent; or
(b) another person is more appropriate for appointment.
(5) An appointee is no longer competent if, for example—
(a) a relevant interest of the adult has not been, or is not being, adequately protected; or
(b) the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
(c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or
(d) the appointee has otherwise contravened this Act.
(6) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation.
S31(2) provides that the Tribunal must consider s12 of the Act which reads (in part):
12 Appointment
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(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.
(2) The appointment may be on terms considered appropriate by the tribunal.
The Tribunal also considered s15 of the Act which provides (in part):
15 Appropriateness considerations
(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;
(c) the extent to which the adult’s and person’s interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than 1 person is to be appointed—whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
The Tribunal considered the verbal and written evidence of a number of parties.
The Adult Guardian
On 9 February 2009 the Adult Guardian had made the decision that WED should remain in his own home with PW providing informal care. At the time, WED was receiving 14 hours of formal care per week through Bluecare and Veterans’ Affairs.
On 14 September 2009 the Adult Guardian made the decision that WED should move into an aged care facility. This decision was based on the following:
(a) The multidisciplinary team at the hospital had stated that WED would benefit from a dementia secure placement on discharge. At the time of the hearing, WED was being held in the hospital pending placement
(b) An independent Occupational Therapist report dated 8 October 2009, commissioned by the Adult Guardian to assess WED’s functional abilities, stated that WED was becoming increasingly frail, was at high risks of falls and that his level of dementia had increased with corresponding difficult behaviours including a propensity to wander. The report strongly indicated that WED’s care needs had recently increased significantly and that his needs would now be best met by 24 hour professional care
(c) The ACAT assessment in 2008 approved high level dementia specific nursing home placement
(d) WJ and WL considered that WED was becoming increasingly frail and prone to falls. They had been convinced for some time that WED would benefit from full time professional nursing care.
The Adult Guardian acknowledged that this was a difficult matter. She recognised the family conflict over the level of care required and appropriateness of accommodation options.
The Adult Guardian stated that, in the past, there was no suggestion that PW’s care had in any way been inappropriate or insufficient.
The Adult Guardian expressed her conviction, echoing that of the Federal Government, that frail aged people and those with a disability should be assisted to live independently in their own homes and enjoy quality of life for as long as possible.
She stated however that her current concerns and convictions as to WED’s best interests were based on his current circumstances. The evidence of WED’s increased frailty and growing care needs had convinced the Adult Guardian that he now (unfortunately) required full time professional nursing care.
The Adult Guardian advised that she would investigate the possibility of a placement with WL in the nursing home that she resided in. The Tribunal was informed that this facility was accredited to provide permanent high level and low level care, and could accommodate couples.
The Adult Guardian explained that she had made three contact decisions since her appointment. Each decision enabled WJ and WL access to WED.
Until WED moved into hospital on 15 September 2009, specific and detailed arrangements by the Adult Guardian had allowed WJ and WL visits to WED at home.
The Adult Guardian also identified the current and future need for the appointment of a guardian for health and services provision. She considered that WED’s health was likely to decline and that family members were unlikely to be able to agree and/or communicate about these issues as well as on WED’s ongoing care needs.
WL and WJ
Although WJ and WL were unable to attend the hearing on 1 December 2009, they had provided written submissions.
They both argued vehemently that WED now needed full time professional care. They were also strongly of the opinion that WED and WL should live together in the same aged care facility where WL currently lives. This would allow them to see each other regularly and enjoy activities and outings together.
Both parties considered that contact and access to WED had been difficult over the past few years. They were convinced that WL’s opinions and wishes as WED’s wife of many decades had not been properly considered.
They opined that the high level of family conflict was ongoing and were very concerned that PW refused to visit or even speak to either of them. They were also convinced that PW was fundamentally not interested in her mother and in keeping her parents together.
They stated concern that over the past few years PW had continually failed to inform them of WED’s health and medical matters.
WJ and WL were in strong support of the continuation of the appointment of the Adult Guardian and opined that, in addition to her current authority, the Adult Guardian should be given responsibility for WED’s health decisions.
Wendy Parsons
PW was adamant that she did not support the decision of the Adult Guardian to have WED placed in a care facility in that this decision was unnecessary and not in her father’s best interest. On 2 November 2009, she had lodged an appeal of this decision with the Adult Guardian.
PW explained that she had provided high level and appropriate care to her father since April 2007. She considered that her approach had been needs-based and person-centred and that WED’s overall care and emotional wellbeing were best met in his familiar home environment with a familiar, trusted and consistent care giver.
She considered that neither a hospital nor an aged care facility could provide the one on one support required by WED, and provided by her. She opined that WED had been in hospital for far too long and that the past 11 weeks of hospitalisation had subjected him to a greater risk of falls, urinary tract infections, constipation, aspiration problems and had accelerated his cognitive decline.
She stated that she had noticed increased unsettled behaviour, confusion, frustration, aggression, anxiety and overwhelming sadness since his admission, all of which she attributed to his removal from his familiar home environment.
PW expressed the belief that the Adult Guardian’s determinations about nursing home placement for her father had been primarily based on the occupational therapist’s report. She challenged the independence and voracity of this report and informed the Tribunal that she considered that it was basically flawed and was biased.
PW informed the Tribunal that it was WED’s strong desire to return home to her care. She stated that she wanted to honour WED’s fervent wish to die in his own home. If she was appointed guardian, she would expedite these aspirations and organise appropriate support services.
She denied that her provision of care and support for her father was motivated by a belief that she would therefore inherit the family home.
PW expressed strong dissatisfaction with the level of care and services provided by the nursing home. She opined that these would not meet her father’s needs. She considered that, if necessary, another care facility would be more appropriate as it had much better staff to patient ratios and far better patient services.
PW stated that although she had valued the input of the Adult Guardian, the guardian was not always available and did not know WED as she did. She also reported a lack of communication by the Adult Guardian.
PW stated that in her opinion her father’s best interests and well being should be central to accommodation decisions and not those of equal family access to him. Acknowledging the Adult Guardian’s decisions in this regard, she informed the Tribunal that all family members had been able to visit WED at home.
PW considered that she was the most appropriate and best placed person to undertake the role of guardian for her father.
She did however acknowledge the high level of conflict and acute difficulties in any meaningful communication between herself and her mother and brother.
DISCUSSION OF THE EVIDENCE
The Tribunal took time to consider all evidence, particularly under the provisions of s12, s15 and s31 of the Act.
If the Tribunal found that there was a need for the appointment of a guardian for WED, there were two options for appointment: the incumbent Adult Guardian or the daughter, PW.
The Tribunal was convinced that WED’s family continued to disagree about most aspects of WED’s ongoing care. Family members were unable to communicate on any level without conflict arising and were unable to be in each others’ presence.
There was no indication that the conflict and disagreements between the family were likely to subside. They had in fact escalated quite considerably in the recent past.
The Tribunal was concerned in particular about the opinions and wishes of WL, WED’s wife of 58 years. Principle 8 of the Act provides:
8 Maintenance of existing supportive relationships
The importance of maintaining an adult’s existing supportive relationships must be taken into account.
The Tribunal understood that WED and WL were separated by her illness and her need for residential care, and that WL has continually expressed a strong wish to be reunited with her husband.
The Tribunal appreciated the complexity in this matter, and recognised the need for difficult decisions, and the importance of such decisions to be made on well researched grounds, free of emotionalism.
The Tribunal regarded the Adult Guardian to be an independent, professional and experienced decision maker for personal and health matters.
Conclusion
The Tribunal was satisfied that there was a need for the appointment of a guardian for WED for accommodation, services, contact/access and health matters.
Although the Tribunal appreciated that arguably the most contentious issue in this case was whether nursing home was the most appropriate accommodation for WED, it recognised that, under the legislation, an accommodation decision was a matter for the person/authority who was appointed Guardian. The role of the Tribunal was to appoint the more appropriate decision maker.
The Tribunal was satisfied that, under the circumstances, the Adult Guardian had demonstrated her ongoing competence. In addition, PW had not been able to persuade the Tribunal, largely because of the high level and ongoing family conflict, that she was more appropriate for appointment.
Accordingly, the Tribunal appointed the Adult Guardian as guardian for accommodation, services, contact/access and health for WED for five years.
WAS THERE AN ONGOING NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR? IF SO, WHO SHOULD BE APPOINTED?
The Public Trustee of Queensland had been appointed as WED’s plenary administrator by the Tribunal on 5 December 2008.
The Tribunal in the review process must consider both Section 15 and Section 31 of the Act.
The PTQ submitted a recent Detailed Fortnightly Budget, a Statement of Transactions and a Statement of Advice. The Tribunal examined these documents at some length, noting that WED’s budget was in surplus. The Tribunal also noted that PW was currently living in the family home and was, through her son, paying rent to WED.
The Tribunal noted that WJ and WL had raised some concerns about the future of the house and its occupancy. They would like it to be vacated and for WED and WL to be able to make regular day visits to it. They recognised however that these issues would be dependent on the future decisions of the guardian.
WJ and WL expressed support for the ongoing appointment of the PTQ.
PW did not challenge the current appointment or any of the decisions made by the PTQ as administrator for WED. She was in support of the ongoing appointment of the PTQ.
Conclusion
The Tribunal was satisfied of the need for the appointment of an administrator for WED.
The Tribunal was satisfied that the PTQ had discharged its general and specific responsibilities as administrator as specified under the Act. All evidence presented to the Tribunal indicated that the Public Trustee of Queensland was competent.
The Tribunal was satisfied that the Public Trustee of Queensland was the most appropriate decision maker, and indeed the only one proposed, to ensure WED’s needs were met and his interests were properly protected in the future.
The order of the Tribunal appointing the Public Trustee of Queensland as WED’s administrator for all financial matters was therefore continued.
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