WRG
[2010] QCAT 666
•15 December 2010
| CITATION: | WRG [2010] QCAT 666 |
| PARTIES: | WRG |
| APPLICATION NUMBER: | GAA5770-10, GAA5771-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 13 October 2010 |
| HEARD AT: | Southport |
| DECISION OF: | James Allen, Presiding member Ron Joachim, Member |
| DELIVERED ON: | 15 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | GUARDIANSHIP 1. That the guardianship order made by the Tribunal on 1 November 2005 is changed by removing CL, CR and SW as guardian and appointing the Adult Guardian as guardian for WRG for decisions about the following personal matters: (a) Accommodation; (b) With whom WRG has contact and/or visits. 2. Unless the Tribunal orders otherwise, this appointment remains current for five (5) years. ADMINISTRATION 3. That the administration order made by the Tribunal on 15 July 2008 is changed by removing SW as administrator and appointing CL and CR jointly as administrator for WRG for all financial matters. 4. The Tribunal directs the administrators to provide accounts to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter. 5. Unless the Tribunal orders otherwise, this appointment remains current for five (5) years. DIRECTIONS 6. The Tribunal directs the administrators to apply for approval of a conflict transaction in respect of any variation in the rent payable by the adult as tenant at the property. |
| CATCHWORDS : | Review of appointment of Guardian and Administrator; appropriateness and competence of appointee; sections 12, 14, 15 and 31 of the Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
The active parties present at the hearing were; WRG, GS. CL and CR and DY. The interested parties who attended the hearing were; HT and BG.
REASONS FOR DECISION
WRG is 59 years old and lives in rental accommodation at the Gold Coast. WRG has a history of motor vehicle accidents one in the 1980’s, which caused him a head injury and one in 2002 which resulted in internal injuries. As a result of the 2002 accident a significant sum of money is held for WRG by the Senior Masters Office of the Victorian Supreme Court.
The former Guardianship and Administration Tribunal recognised the appointment by the Victorian Civil and Administrative Tribunal of WRG’s sisters, CL, CR and SW as his guardians and administrators on 1 November 2005 with that order continuing those appointments for 5 years.
Those appointments then needed to be reviewed prior to 1 November 2010 and the Tribunal has also received an application from GS in regard to the appointment of DY as administrator for WRG. The Tribunal was later advised that DY did not wish to pursue that application.
THE ISSUES AND THE LEGISLATION
The Tribunal reviews the appointment of decision makers in accordance with section 31 of the Guardianship and Administration Act 2000 (GAA Act), in particular 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 in accordance with section 31(2) of the GAA Act. If the Tribunal is satisfied that there are appropriate grounds for an appointment to continue, it may change the terms of appointment, remove an appointee or make a new appointment in accordance with section 31(3) of the GAA Act. If an appointee is to be removed, the grounds for removal are set out in section 31(4) of the Act and the Tribunal can remove the appointee only if the Tribunal considers –
a)The appointee is no longer competent; or
b)Another person is more appropriate for appointment
There are examples given of why an appointee may no longer be competent in sections 31(5) of the GAA Act and they include that the appointee has neglected the appointee’s duties or abused their powers or otherwise contravened the Act.
The requirement that the Tribunal must revoke its order unless it would make a new order means that the requirements of section 12 of the GAA Act must be satisfied as follows –
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 adults health, welfare or property; and
c)Without an appointment –
i) The adults needs will not be adequately met; or
ii) The adults interests will not be adequately protected
The Tribunal may only appoint a person as Administrator, if the person satisfies the requirements set out in sections 14 and 15 of the GAA Act. This requires that the person be at least 18 years and not a paid carer or health provider of the Adult or that the person be the Public Trustee or a trustee company. The Tribunal must also consider that the person is appropriate for appointment having regard to the matters mentioned in section 15(1) of the GAA Act.
The issues for the Tribunal then are:
(1)Does WRG have impaired capacity for decisions about personal and financial matters?;
(2)Is there a need for the appointment of a guardian and if so, who should be appointed?;
(3)Is there a need for the appointment of an administrator and if so, who should be appointed?
CAPACITY
WRG is able to perform many tasks associated with independent living including long distance driving and managing his day to day finances, though he does not pay his own bills. It is noted in the medical reports that he is impulsive and subject to the influence of others. His sister, LC stated that he left school at 15 after having completed year 7, which is consistent with the medical reports stating that he has a mild intellectual impairment. He is also unable to read or write according to his sister, CR. WRG also has a history of motor vehicle accidents, with one in the early 1980s which resulted in short term memory loss and difficulties with speech and learning. In the latest health professional report from Dr M it was noted that his mini mental State examination score was 22 out of 30 which indicated mild cognitive impairment. Dr M’s opinion was that WRG would be able to make all simple decisions and complex health ones. In regard to financial matters Dr M stated specifically that WRG did not understand the long term consequences of decisions.
10. At the hearing WRG conceded that he was impulsive. He was also unable to give the Tribunal a good indication of how he spent his weekly allowance of $300 and details of his current assets and income. WRG also accepted that the person who was currently staying with him, H was not a good person to be living there but he was unable to get him out of the house. WRG’s sisters said that WRG was inconsistent and that sometimes he would want H to move out and other times he would want him to stay. They advised of two other examples since June 2009, when WRGs mother died, of people who put WRG at risk came into his life. GS said that these problems arose due to WRG’s generous nature and impulsiveness. DY and BG were of the view that WRG was vulnerable, that he was able to manage his pension but would need assistance with complex matters. CL stated that if WRG were to have control of his pension he would spend his entire pension soon after receiving it and would not have funds to pay his bills. She also stated that there were no problems with WRG’s friends and that the problem was with undesirables.
11. The Tribunal is satisfied that WRG has impaired capacity for complex decisions in regard to personal matters, apart from health matters, and financial matters as a result of his impulsivity and vulnerability which are due to his intellectual disability and acquired brain injury.
GUARDIANSHIP
12. The current order appoints WRG’s sisters as his guardians for decisions about accommodation and with whom he lives. CL advised the Tribunal that while the guardians had not been able to use their powers to move people out of the accommodation in which WRG lived they had not been able to deal with real estate agents or the police in regard to property matters without the appointment as guardian. The current accommodation for WRG is also owned by a company, Ranville Pty Ltd as trustee of the Jonti Family Trust of which the guardians are controllers and beneficiaries. WRG’s sisters stated they have arranged all of his accommodation since the motor vehicle accident in 2002.
13. WRG was attending Dr M until recently and prior to that he attended Dr C. CL indicated that there had been some conflict between the guardians and the doctor, the sisters had attempted to attend the doctors with WRG and the Doctor had said in CL’s words “he was expecting a confutation”.
14. GS submitted that the presence of the guardianship order was a source of conflict and that WRG has an extensive support network. She also stated that it was not the guardianship powers that has been used to deal with problems but the rental tenant solution.
15. The Tribunal is concerned in regard to WRG’s vulnerability to having people come into his life whom he is then not able to remove when they become a threat to him and is satisfied that there is a need for a guardian for accommodation and contact matters. In terms of exercise of powers, it would be for the guardians to decide that a person was undesirable and then request the lessor to take appropriate action to have that person removed. As WRG has capacity for complex health matters that is not an area where appointment is required. The Tribunal recognises that there is conflict inherent in WRG’s sister’s as they are the effective owners of his current accommodation and his guardian and is satisfied that they are no longer appropriate to be in that role. As there is no other person in WRG’s life who is seeking appointment the Tribunal will appoint the Adult Guardian as guardian for decisions about accommodation and contact for WRGs.
ADMINISTRATION
16. WRG is in receipt of the disability support pension in the amount of $797 per fortnight of which he receives $600 paid in four amounts of $230 on Thursday’s and $70 on Friday’s. WRG’s administrators pay his household bills and $100 towards his rent, from the remainder of his pension and he pays for his living and fuel expenses. The fund held in Victoria by the Senior Master’s Office of the Supreme Court contributes $530 per fortnight towards the rent, as well as car expenses including registration insurance services and tyres. The amount held by the Senior Masters Office is approximately $140,000 and WRG has an amount of $40,000 which his administrators loaned to Ranville Pty Ltd when the house was being purchased. This loan was approved as a conflict transaction by the former Guardianship and Administration Tribunal.
17. DY thought WRG would be able to manage his pension and gave as an example a recent commitment he had made to buy a TV at $45 per fortnight for two years on a $195 deposit. WRG though could not explain how he determined that he could afford the fortnightly payment and how much the TV would ultimately cost him.
18. At the hearing WRG stated that his sisters in their role as administrators do not keep him informed in regard to his finances. They stated that he was kept informed about such things as his budget. Once his financial affairs were explained to him in the course of the hearing WRG indicated that he would be happy for his sisters to continue as administrators.
19. In exercising their role as administrators WRG’s sisters have ensured that they have exercised the least restrictive option by providing WRG with the bulk of his income by way of the payment of $600 over the four days each fortnight. They also ensure that his regular bills are paid and liaise with the Senior Masters Office in regard to payments available from that office. While it was noted in the last review of the accounts by administrator that they were running at a deficit the examiner stated that it was probable the administrators were acting in WRG’s best interests. One area of concern is that if the rent for the house WRG resides in is required to be reviewed the administrators would be in a conflict situation. The Tribunal notes that SW does not wish to continue as administrator for WRG.
20. The Tribunal is satisfied that WRG has a requirement for an administrator in particular as he has a history of impulsive expenditure when he does not have financial support. He also has complex finances issues in terms of dealing with the Senior Master’s Office in regard to the funds they hold for him. The current administrators have acted competently and appropriately in their role and the Tribunal will continue them as administrator’s apart from SW. The Tribunal also directs that if the rent is to be reviewed in respect of WRG’s accommodation an application for a conflict transaction must be made to the Tribunal.
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