YNG
[2015] QCAT 471
•20 November 2015
| CITATION: | YNG [2015] QCAT 471 |
| PARTIES: | YNG |
| APPLICATION NUMBER: | GAA655-15; GAA1485-15; GAA2849-15; GAA2850-15; GAA8891-15; GAA11066-15; GAA11067-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 November 2015 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 20 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | GUARDIANSHIP 1. The applications for the appointment of a guardian by GN, JD and ZE are dismissed. 2. The guardianship order made by the Tribunal on 2 December 2014 is changed by appointing the Public Guardian as guardian for YNG for decisions about the following personal matters: (a) Accommodation; (b) Health care. 3. Unless the Tribunal orders otherwise, this appointment remains current for three (3) years. ADMINISTRATION 4. The applications for the appointment of an administrator by HP, JD and ZE are dismissed. 5. The appointment of the Public Trustee of Queensland as administrator for YNG for all financial matters is continued. 6. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 7. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 8. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. |
| CATCHWORDS: | Guardianship and Administration – Review of appointment – whether applicants more appropriate than Public Guardian or Public Trustee of Queensland Guardianship and Administration Act 2000 (Qld), s 31 |
APPEARANCES:
YNG (Adult)
Pauline Sandilands (Support worker)
GN (Applicant)
HP (Applicant)
ZE (Son / Applicant)
Mark Smith (Lawyer for ZE)
JD (Step-daughter / Applicant)
DF (Nephew)
Jody Hollett (Public Trustee of Queensland)
Nikky Sluiter (Public Trustee of Queensland)
Susan Leonard (Public Guardian)
REASONS FOR DECISION
YNG is an 85 year old man who currently resides in a residential aged care facility in Central Queensland. YNG has been diagnosed with progressive vascular dementia. He has lived in the residential facility since early 2015. Prior to that time he had been living independently, however, following a fall and a resulting fractured femur he was hospitalised. The treating team did not consider that he was able to return home. YNG had appointed his son and his solicitor joint Enduring Powers of Attorney (‘EPA’). However, the attorneys could not agree on a decision as to appropriate accommodation for YNG following his discharge from hospital.
An application was made to QCAT to appoint a guardian for YNG to make accommodation decisions and for an administrator to make financial decisions. The Tribunal in December 2014 revoked the EPA and appointed the Public Guardian (‘PG’) to make decisions about accommodation and services. That appointment expires in December 2015. The Public Trustee of Queensland (‘PTQ’) was appointed administrator until further order.
Subsequently, a number of applicants have applied for a review of these appointments seeking alternate orders that they be appointed as guardian and / or administrator. The applicants were:
· GN applied to be appointed guardian. She is a long-time friend who has regular contact with YNG;
· JD. JD applied to be appointed as administrator and guardian. She is YNG’s step-daughter and lives in Perth. She says she has had a close relationship with YNG for 40 years.
· HP. HP applied to be appointed as YNG’s administrator. He has been YNG’s accountant for a number of years. He lives in Sydney.
· ZE. ZE is YNG’s son. He applied to be appointed as guardian and administrator. He is the former attorney whose Power of Attorney was revoked in 2014 by order of the Tribunal. ZE lives in Sydney.
· PTQ. They are the current administrators and support their continued appointment.
· PG. The PG is the current guardian for accommodation and services. The PG supports a continued appointment for accommodation and a new appointment for health care decisions.
These competing applications were heard at an oral hearing in Rockhampton. All applicants appeared in person except for the PG whose representative appeared on the phone. ZE was legally represented. YNG’s nephew also appeared via the phone, as did YNG and his support person, Ms Sandilands from the residential care facility. Nine friends also attended.
What did the Tribunal have to decide in these proceedings?
The various applicants have applied to review the appointment of the PG and the PTQ. The reviews are conducted under s 31 of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’). That provision requires the Tribunal, when considering a review of an appointment of a guardian or administrator to revoke the appointment unless satisfied that a guardian or administrator should remain in place.
If the Tribunal is satisfied that a guardian or administrator should remain in place, the Tribunal is required to continue the appointment of the appointed decision maker, unless that person is no longer competent or another person would be a more appropriate appointment.
Accordingly, the Tribunal must determine:
i.Whether YNG has capacity to make financial and personal decisions;
ii.If not, whether there is a need for the appointment of an administrator or a guardian; and
If there is a need for an appointment, who is the appropriate appointee?
Does YNG have capacity to make financial and personal decisions?
The following medical evidence and oral evidence from those at the hearing was provided to the Tribunal:-
a) A report from Dr Tiong dated 24 November 2014, indicates that YNG has dementia and suffered a stroke in 2014. The doctor commented that YNG had poor insight into his ability to care for himself, together with poor decision making which could pose a significant danger to his own safety. He considered YNG did not have any capacity to make any complex decisions and had capacity to make only simple personal health care and lifestyle decisions.
b) A report from Pauline Sandilands, a registered nurse at the residential care facility where YNG lives. This report was received by the Tribunal in February 2015. Ms Sandilands confirmed that YNG has vascular dementia. She observed YNG had short-term memory loss. The written report indicates YNG can make simple decisions but not complex financial decisions. The report also indicated that YNG could make complex lifestyle and accommodation choices. Ms Sandilands attended the hearing with YNG on the phone at which time she advised the Tribunal that YNG can decide what he wants to eat and do on a daily basis but did not have the capacity to make more complex decisions about accommodation, his health care or his financial matters.
c) The applicants HP, JD & ZE advised the Tribunal that they believed YNG’s cognitive abilities had declined. They said this impacted on his ability to understand and make decisions.
d) GN suggested that YNG could make his own decisions but conceded that he had ‘good and bad days’.
The Tribunal finds that YNG has been diagnosed with vascular dementia and has significant cognitive impairment, including memory loss which has adverse impact on his decision making for personal and financial decisions. I am satisfied that YNG lacks the capacity to make personal (other than simple) and financial decisions.
Is there a need for the appointment of a guardian or administrator?
a) An administrator
YNG has significant assets, including a self-managed super fund worth approximately $780,00.00, a boat valued at $460,000.00, a home valued at $1.2million and a term deposit in excess of $3.9million. These assets must be maintained managed and protected. The PTQ was appointed as administrator in 2014 until further order and supports their ongoing appointment. The Tribunal is satisfied that an administrator needs to be appointed to ensure YNG’s financial needs are met and his interests are protected.
b) A guardian
The PG was appointed in December 2014 to make decisions about accommodation and the provision of services at the stage where YNG was in hospital, he could not safely return home and there was conflict between the two appointed attorneys as to an accommodation decision. Since the appointment of the PG, permanent accommodation in residential care has been secured for YNG.
The PG in its report dated 6 November 2015 stated that since their appointment it had become evident ‘that there is conflict between family members and parties who have an interest in YNG’. They said that:
whilst it is considered that an accommodation change for [YNG] will not be appropriate or necessary in the future there is concern that interested parties may request a change to his accommodation arrangements be made in the future. Therefore it is considered that it would be in [YNG]’s best interests for a guardian to be appointed for accommodation matters.
The PG also expressed concern if future health care decisions for YNG were left to family because of a reported conflict between family members and interested parties. They considered that it would be in YNG’s interest to have a guardian appointed for health care.
The applicants for the appointment, GN, JD, and ZE all felt that it would benefit YNG to have a decision maker for personal decisions. Whilst all applicants considered YNG was settled in his current accommodation, there was underlying suggestions from the applicants that other accommodation may be more suitable. YNG expressed that he was happy where he is residing, but it is noted he has previously expressed a desire to go back to his home.
In relation to health care Ms Sandilands from the residential aged care facility advised the Tribunal that, in her view, YNG will need health care decisions in the near future. Whilst the family members would be statutory health attorneys I noted there was underlying conflict between the family members themselves as to who would be best placed to make health care decisions for YNG.
I am satisfied there is a need of a guardian to make health care and accommodation decisions for YNG. There is no need for decisions about service provision whilst YNG remains in the current residential facility.
Who is the appropriate appointee?
It is apparent that the family and friends interested in YNG’s welfare have strong and conflicting views as to who the appropriate substituted decision makers should be.
In order to replace the PG or PTQ the Tribunal must be satisfied that another person is more appropriate. In deciding whether a person is appropriate the Tribunal is required to consider the following matters set out in s 15(1) of the GAA Act:
a) The general principles and whether the person is likely to apply them.
The general principles in sch1 pt 1 and include:
· The presumption of the adult’s capacity;
· Taking into account the right of all adults to the same basic human rights;
· Recognition of the adult’s right to respect his or her human worth and dignity;
· Recognising the adult’s right to be a valued member of society;
· Taking into account the adult’s participation in community life;
· Encouraging self-reliance;
· Recognising an adult’s right to participate to the greatest extent possible in decisions affecting the adult’s life;
· Maintaining existing supportive relationships;
· Maintaining the adult’s culture, environment and values;
· Exercising power appropriate to the adult’s characteristics and needs;
· The adult’s right to confidentiality;
b) The application of the health care principle if an appointment for health care is made. This provides for the exercise of a power in the least restrictive manner, only in the adult’s best interests and taking into account the adult’s views where practicable;
c) The extent to which the adult’s and the person’s interests are likely to conflict;
d) Whether the adult and the person are compatible;
e) Whether the person would be available and accessible to the adult;
f) The person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
a) Who is the appropriate administrator?
The PTQ is in place. YNG’s accountant HP, his step-daughter JD and his son ZE all say they are more appropriate than the PTQ and more appropriate than each other.
HP has been YNG’s accountant for many years. He says because of this relationship he is better placed than the PTQ to make appropriate financial decisions. He also says he has a close personal relationship with YNG which is preferable to the statutory body. YNG told the Tribunal that he would be happy for HP to look after his accounts.
The PTQ do not support HP appointment. In their report they say HP has not been cooperative in providing documents to them since their appointment. For example, they had requested the company constitution and the super fund trust deed on a number of occasions since January 2015. HP had initially said that he would provide the documents and then after numerous requests he advised the PTQ in June 2015 that he had in fact given the documents to the adult in 2012. The documents were found in the adult’s garage.
The PTQ also say that despite HP knowing of their appointment in December 2014 and requesting he forward all correspondence for YNG to the PTQ, HP has continued to send mail to YNG’s residential address where he knew he was not residing, including reminder accounts.
It is also noted that HP resides in Sydney which brings into question HP’s availability and accessibility to YNG. A matter of concern also is the fact that HP indicated his firm would continue to render accounts to YNG for completing tax returns. This would be a conflict transaction for HP if he were appointed as administrator. This would mean HP would have to seek the Tribunal’s authorisation each time he rendered an account.
Whilst it is acknowledged that HP has a long standing relationship with YNG, due to his distance from YNG and the likelihood of recurring conflict transactions I am not satisfied that he is more appropriate than the PTQ.
JD says she is more appropriate than the PTQ as she is a family member. She has indicated she would seek the guidance of a financial advisor and provided to the Tribunal a proposal letter from that advisor who had assisted her with her own father’s affairs. JD’s appointment as administrator is not supported by YNG’s friends or his son, ZE. It is noted that she lives in Perth, which raises concerns about accessibility and availability. I am not convinced that JD is a more appropriate appointee than the PTQ.
ZE, YNG’s son is his former EPA. He says he now has a close relationship with his father, despite being estranged in the past. He says he phones him once a week. He has experience looking after his own accounts and he says he is capable of seeking financial advice when needed.
The PTQ notes that there is conflict between family members and between family members and friends. I have concerns that an appointment of a family member where there is a level of conflict would not be in YNG’s best interests. I also note that ZE lives in Sydney which adversely affects his accessibility to YNG. Therefore, I am not satisfied that ZE is a more appropriate than the PTQ.
I note that both JD and ZE support the appointment of the PTQ if their applications are unsuccessful. I am not satisfied that HP, JD or ZE are more appropriate than the Public Trustee. I confirm the appointment of the PTQ as administrator for YNG until further order.
b) Who is the appropriate appointee as guardian?
The PG’s appointment expires in December 2015. They say their appointment for accommodation should continue and that they should also be appointed for health care because of the level of conflict between family members, and between family members and YNG’s close friends.
GN is a close friend of YNG. She wishes to be appointed as his guardian. She looks after his day to day needs that aren’t provided for in the residential home. She likes to take him out on outings and appears to have a role of co-ordinating visits and outings with his friends. She says she is more appropriate than JD or ZE because their relationship with their step-father and father has been tumultuous at times. She says she does not believe that YNG would want either of them appointed as guardian.
She said she is more appropriate than the PG as she believes that they are not truly interested in YNG’s welfare and have prevented her and other friends from taking YNG back to his home and his boat for visits. She says if she was appointed guardian she would not have to confront this obstacle. She acknowledged that YNG is settled where he is, but at times has considered he could live at home with sufficient care.
JD and ZE do not want GN appointed as guardian. They say she is not family and they were also concerned that she would not communicate with them about YNG’s health or other matters. They said that she did not tell either of them that YNG had suffered a stroke in June. GN agrees that she did not tell them, but says that this was because YNG had asked her not to. GN’s (and indeed all of the other friends present at the hearing) main concern with the current arrangement seems to be the difficulty in working with the independent decision makers, she sees them as a barrier to ensuring that YNG is able to leave the nursing home on outings and accessing his home.
The representative from the PG said that this may have been an issue in the past because YNG did not have permanent residency until June. The PG is appointed for accommodation decisions only. There is no appointment regarding contact. As such they have no decision making power with regard to who YNG sees and where he goes on visits. The only issue in this regard would be his safety and wellbeing which the nurses and other carers at the nursing home would manage. If the PG’s appointment continued GN and other friends would not have to seek their permission before taking YNG on outings.
I acknowledge that GN and YNG’s other friends have his best interests at heart, and have played (and should continue to play) an important role as an informal support provider. However, because of the conflict between GN and YNG’s family members and concerns about her willingness to communicate with family members about decisions concerning health and accommodation for YNG, I am not convinced she is a more appropriate appointment than the PG.
JD says she is more appropriate than the PG and ZE or YNG’s friends. She outlines the close relationship she has had with her step-father and says she would make personal decisions in his best interests. I have concern again about the apparent conflict between her, ZE, and YNG’s friends. I am not convinced she would be best placed to maintain YNG’s existing supportive relationships, particularly with his close friendship group. Further, she indicated at the hearing that she is not totally satisfied with YNG’s living arrangements and if appointed would give thought to moving him to Perth. She is also not easily accessible if YNG remains in his current residential accommodation. I do not consider JD to be a more appropriate appointment than the PG.
ZE says he is the most appropriate person to be appointed as YNG’s guardian. He says he is his son and it is important for a family member to make decisions for the adult. He says he has a close relationship with his father. It is true that where a family member is willing and able to take on the appointment they are usually more appropriate than an independent body. However, that is not always the case when there are other factors to consider. Here, YNG’s close friendship group question the relationship between ZE and his father. They expressed concerns that YNG may be moved to Sydney if ZE is appointed. ZE conceded that he had considered such a move at some point, but he agrees that his father is settled where he is and that is the most appropriate consideration. In all the circumstances I do not consider ZE to be more appropriate than the PG.
Whilst ZE says he is the most appropriate person, he says if he is not to be appointed he supports the continued appointment of the PG as an independent decision maker. JD also supports the continued appointment of the PG if she is not appointed.
Conclusion
It is apparent YNG is fortunate to have strong support from close friends and family. It is unfortunate that there is a high level of conflict and a lack of communication between those people as to what is in the bests interests for YNG. In those circumstances where YNG lacks the capacity to make certain decisions and there is a need for decisions to be made, independent decisions makers are the most appropriate appointments
Accordingly, on review I find there are no applicants more appropriate for appointment than the PG and the PTQ. I find that the PTQ should be appointed as administrator until further order, and that the PG should be appointed to make accommodation and health care decisions for three years.
0
0
0