FBB [2026] QCAT 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FBB [2026] QCAT 78 PARTIES: In applications about matters concerning FBB APPLICATION NO/S GAA15468-25 GAA15469-25 GAA15471-25 GAA1674-26 GAA1675-26 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 16 February 2026 HEARING DATE: 10 February 2026 HEARD AT: Brisbane DECISION OF: Member Casey ORDERS: 1. The application for a non-publication order for FBB is dismissed. 2. The Public Guardian is appointed as guardian for FBB for the following personal matters: (a) Accommodation; and (b) Provision of services, including in relation to the National Disability Insurance Scheme (NDIS). 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 4. The Public Trustee of Queensland is appointed as administrator for FBB for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS –whether a non-publication order is necessary – whether there is a need for a substituted decision-maker – where the views and wishes of the adult are considered – where there are concerns about the suitability of proposed appointees – where the requirements -- 1 of 14 -- 2 under s 12 of the Guardianship and Administration Act 2000 (Qld) have been met HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal considered whether the decision was compatible with human rights – whether the decision to appoint a guardian and administrator limited or engaged the adult’s human rights – where the Tribunal recognises the adult’s right to privacy – where the Tribunal recognises the adult’s right to not have their reputation impacted – where the Tribunal recognised the right of a person with impaired capacity to make decisions, to be restricted and interfered with to the least possible extent Guardianship and Administration Act 2000 (Qld), s 2, s 5, s 10, s 11, s 12, s 14, s 15, s 108, s 114A, Schedule 2, Schedule 4 Human Rights Act 2019 (Qld), s 13, s 15, s 19, s 24, s 25, s 48 Powers of Attorney Act 1998 (Qld), s 62, s 63 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 APPEARANCES & REPRESENTATION: Applicants: Others: SSB – sister of the adult CMK – independent NDIS contractor and team leader Colleague and support person for CMK NDIS support worker for the adult Sister of the adult (teleconference) Independent NDIS contractor and support coordinator (teleconference) Independent NDIS contractor and registered music therapist (teleconference) Independent NDIS contractor (teleconference) Delegate of the Office of the Public Guardian (phone) Representative of the Public Trustee of Queensland (phone) -- 2 of 14 -- 3 REASONS FOR DECISION History of the Applications [1] FBB (‘the adult’) is 53 years of age. FBB has resided alone in her current accommodation, a house which she leases from Queensland Department of Housing, for approximately thirty (30) years. This accommodation arrangement was instigated by the adult’s parents. Due to the adult’s complex needs, she has required extensive support within her accommodation and in order to access the community. The adult’s mother passed away in 2020, following the death of the adult’s father some years earlier. In 2023 SSB, a sister of the adult, moved into the adult’s rental property. [2] On 4 November 2025, the Tribunal received applications from CMK, a service provider of the adult, seeking the interim appointments of the Public Guardian and the Public Trustee of Queensland as guardian and administrator, respectively, for the adult. [3] CMK filed applications for substantive appointments of the Public Guardian as guardian and the Public Trustee of Queensland as administrator for the adult on 6 November 2025, together with applications for a confidentiality order and a non-publication order. [4] On 11 November 2025 the Tribunal made an interim order appointing the Public Trustee of Queensland as administrator for the adult for all financial matters. On 13 November 2025 the Tribunal made an interim order appointing the Public Guardian as guardian for the adult for the matters of accommodation and the provision of services, including in relation to the National Disability Insurance Scheme (‘NDIS’). The appointments were to remain current for three (3) months or until further order of the Tribunal, whichever was to be the sooner. [5] The Tribunal also made a pre-hearing confidentiality order on 13 November 2025, with the effect of withholding the identity of the applicant to the adult and SSB. The order was to remain in place until such time that the application for a confidentiality order was to be decided. On the same date, the Tribunal directed that the application for a confidentiality order was to be decided by the Tribunal on the papers on or after 11 December 2025. Parties were invited to file submissions by 10 November 2025 in relation to whether the Tribunal should make a confidentiality order. [6] On 11 December 2025, the application for a confidentiality order was refused. [7] On 5 February 2026, the Tribunal received an application from SSB, sister of the adult, seeking to be appointed as guardian and administrator for the adult. [8] The applications for the appointment of a guardian, administrator and for a non-publication order were heard on 10 February 2026 in Brisbane.12 The Legislation [9] Section 114A(1) of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) provides that, generally, information about a guardianship proceeding may be published. Under section 114A(2) of the GAA, a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult by a member of the public, or by a member of the section of the public to whom the information is published. [10] If satisfied it is necessary to avoid serious harm or injustice to a person, the Tribunal may make a non-publication order prohibiting the publication of information about a Tribunal proceeding, 1 Reasons have been published in a de-identified format for the purposes of s 114A of the Guardianship and Administration Act 2000 (Qld) (‘GAA’). 2 Documents considered to be credible, relevant and significant to an issue in the proceedings have been read into the record for the purposes of s 103 of the GAA. -- 3 of 14 -- 4 which is not already prohibited under section 114A of the GAA, but only to the extent necessary.3 [11] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult. [12] The adult is presumed to have capacity in accordance with General Principle 1 of the GAA.4 [13] The GAA defines capacity as follows:5 Capacity, for a person for a matter, means the person is capable of— (a) understanding the nature and effect of decisions about a matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [14] In the determination of capacity for an adult for a matter, the Tribunal must consider the type of decisions to be made and the support available to the adult from the adult’s existing support network.6 [15] The Tribunal is to consider the medical evidence and submissions from the parties to determine whether the presumption of capacity is to be rebutted for the adult. [16] The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA. [17] Under section 62 of the Powers of Attorney Act 1998 (Qld) (‘POAA’), a statutory health attorney is authorised for an adult’s health matter to make any decision about the health matter that the adult could lawfully make if the adult had capacity for the matter. [18] The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA. [19] The Tribunal must give consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. [20] Determination of the application for a non-publication order [21] In her application to the Tribunal, CMK submitted that she sought non-publication of any material that may disclose the identities of the applicant and any individuals who may have provided information in support of CMK’s applications to the Tribunal. [22] At the hearing, CMK confirmed that, by filing her application for a non-publication order, she was in fact seeking a confidentiality order over information and documents that have since been disclosed to all parties. [23] The Tribunal determines that CMK’s application for a non-publication order was submitted in error. Accordingly, the Tribunal dismissed the application for a non-publication order for the 3 GAA s 108. 4 Ibid s 11B. 5 Ibid sch 4 (definition of ‘capacity’). 6 Ibid s 5(c). -- 4 of 14 -- 5 adult under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’) as the application was misconceived. FBB’s capacity for personal and financial decisions [24] In a report dated 3 November 2025 a general practitioner states that the adult’s diagnoses include Down Syndrome, intellectual disability and autism spectrum disorder. The doctor states that the adult is ‘non-verbal’ and occasionally uses gestures to communicate. The general practitioner provides the opinion that, due to the adult’s intellectual disability, she is unable to understand the necessary criteria to make an enduring power of attorney, and is unable to make decisions in relation to simple and complex personal and financial matters. [25] At the hearing, the adult’s communicative ability was further explored. SSB stated that the adult had limited verbal skills and that the adult’s general demeaner assists others to glean information during interactions. She stated that the adult uses facial expression (e.g. smiling, frowning) and body language to express herself. Body language can include shrugging one shoulder or hitting herself in the cheek, with the latter being identified as a self-harming behaviour. Service providers submitted that the adult has engaged in music therapy to support language processing and that the adult sometimes articulates idiosyncratic utterances for divergent messages. For example, the adult will say ‘pray for [herself]’ to indicate something is wrong and that she requires support. The delegate of the Public Guardian provided information that a home visit she conducted on the day before the hearing was halted when the adult indicated, by trying to hit herself in the face, that the presence of the guardian was extremely disturbing to her. Tribunal findings about capacity [26] The Tribunal considered the evidence. The medical evidence establishes that, as a consequence of her intellectual disability, FBB is unable to make decisions in relation to her personal and financial matters and is unable to understand the necessary criteria should she seek to appoint an enduring power or attorney. [27] The oral evidence of service providers and SSB evidences the communication challenges FBB endures. [28] Upon consideration of the medical and oral evidence the Tribunal is not satisfied that FBB understands the nature and effect of decisions in relation to her personal and financial matters, nor understands the criteria necessary to make an enduring power of attorney, due to her intellectual disability and her associated communicative deficits [29] Accordingly, the Tribunal rebuts the presumption of capacity for FBB for personal and financial matters, along with the presumption of capacity for FBB to make an enduring power of attorney. Contentions and issues raised by CMK and members of the adult’s NDIS service provision team [30] CMK, who had been in her role as team leader since March 2025, raised the following concerns in her applications for the appointment of a guardian and administrator for the adult. [31] FBB had lived alone in her housing commission home for over 30 years in accordance with arrangements initiated by her now deceased parents. This arrangement had been adversely impacted when SSB moved in with the adult. [32] The adult receives NDIS funded services, including in-home care, community access support and allied health services. SSB is the adult’s NDIS nominee and Centrelink nominee and has assumed the role of informal decision maker for the adult. SSB has engaged independent contracts to provide support services to the adult. [33] Concerns have been raised about SSB’s ability to manage the adult’s finances and care, as well as the impact of SSB’s own health challenges and behaviours on the adult’s well-being. These -- 5 of 14 -- 6 concerns include financial exploitation, neglect, and a decline in the adult’s living standards and health. [34] CMK provided examples in relation to the adult’s health and wellbeing which include the following: (a) SSB has delayed NDIS service provision decisions resulting in staffing shortfalls and delayed authorisation of service agreements for allied health providers: (b) the adult’s medical care has been delayed on occasions with a worsening of conditions due to the inactions of SSB; (c) SSB has told support staff that she feels her privacy has been invaded having staff in the house on a 24/7 basis; (d) SSB has requested ‘family times’ during which no staff members are to be on duty and care would be provided to the adult by SSB, and that when shifts have resumed staff have reported the adult to be dishevelled and wearing unclean clothes, and that piles of dirty dishes have been found in the kitchen and uncleaned animal waste on the floors; (e) CMK alleges that SSB has threatened to punch a staff member in the face and has sworn and yelled at staff; (f) SSB has had two dogs in the house, one of which has since died; (g) one of the dogs, which had bitten two staff members and a visiting child, was declared dangerous by the Council resulting in SSB being ordered to keep the dog in an outside pen when staff or visitors were on site; (h) the same dog had not been observed by staff to be kept in the pen, but rather in SSB’s bedroom and, when long-standing staff were present, was permitted by SSB to roam freely within the house; (i) the adult has been observed to self-harm by hitting her head repeatedly in response to dog barking behaviour and when a dog entered a particular room; (j) SSB’s bedroom has been observed to be in a squalid condition (e.g. shattered drinking glass, dog excrement and vomit, dog food and bones, dirty dishes, food packaging) posing a risk of injury and illness to the adult, SSB and support workers; (k) SSB has displayed limited capacity to manage the domestic chickens as two died in the first month of ownership and a third was found dead on 3 July 2025; (l) a chicken pen, having being moved away from the boundary following a complaint by the neighbours, is not maintained, causing an overwhelming odour and attracting vermin, snakes, goannas and birds; (m) SSB throws chicken food across the garden, carport and patio, attracting a large flock of pigeons and has been the subject of a report to the Council. [35] CMK advised there had been concerns with the adult’s behaviour (including self-harming behaviour and night-waking behaviours) and the behavioural support services provided to the adult. CMK was supported in her submissions by two independent service providers. (a) Concerns were raised from the end of 2023 and for most of 2024 when the adult was observed to demonstrate distress and a decline in her mental health and wellbeing. During this time the adult began to ‘miss’ therapy sessions and ‘cry a lot’ in the therapy sessions that she did attend, with service providers changing their focus from increasing the adult’s skill development to maintaining previously acquired skills. An emotions and communication dictionary was created by service providers, with documentation sent in early 2025 to a particular individual who was to provide behavioural support services, with nil response. -- 6 of 14 -- 7 (b) Elements of the adult’s NDIS funding have been utilised to fund behavioural support services provided by an individual contracted by SSB, who has not seen the adult since March 2022. (c) The adult’s NDIS support coordinator told the Tribunal that, within the last three months, appropriate record keeping had occurred and a positive behaviour support plan has been well addressed, with the individual contracted for behavioural support services providing ‘good input’ and a ‘framework which has been addressed’. [36] CMK submitted that the adult’s NDIS funding had been adversely impacted as a consequence of SSB’s decisions and actions. CMK was supported in her submissions by the NDIS support coordinator. (a) They told the Tribunal that the adult was not funded for active overnight support services, however when the adult did wake during the night and required support, the support workers assisted the adult and then invoiced for active support hours. As a consequence, the adult’s funds were quickly depleted. (b) The support coordinator described the financial and support consequence as amounting to a 10% gap that was ‘not huge and not for weeks and months’ and that currently the adult’s funding remains ‘ok with 24/7 1:1 [support] with inactive overnights’. [37] CMK submitted that the adult is at risk of financial exploitation and alleged financial misuse and a lack of transparency in the manner in which SSB informally manages the adult’s finances. She made the following submissions. (a) Service providers access funds for the adult’s essential needs from the adult’s passbook. In an established banking process, support staff attend the bank with the adult on a fortnightly basis to withdraw the funds. Support staff oversee the petty cash kept in the home for groceries, personal items and incidental expenses. This includes completing petty cash balance checks every shift, maintaining a finance spreadsheet and recording receipts for all purchases. (b) Staff have observed SSB frequently requesting cash from the adult’s petty cash tin, or for purchases to be made with the adult’s funds, including at times when the adult was in hospital following an ICU admission. In a recent example, CMK stated that, on the day following the routine withdrawal of $700 for expenses including community access, shopping and medications for the adult, SSB provided an extensive shopping list to a support worker and requested that the support worker purchase the items which totalled $517.45. Two days later, support staff reported that there was very little suitable food available in the home for the adult’s meals. (c) The adult holds a secondary savings account from which $20 per fortnight is automatically transferred into another account that is not in the adult’s name. (d) She was advised by a bank officer that the adult had previously been issued with a keycard and internet access, which the bank has since removed. [38] CMK submits that, although SSB can demonstrate genuine love, concern and desire for the adult to live her best possible life, SSB has limited ability to understand the impact of her actions on the adult. Submissions of SSB [39] SSB provided written and oral submissions to the Tribunal and stated that she was supported in her submissions by her sister (in attendance at the hearing), brother, and some independent contractors including the individual contracted to provide for behavioural support services to the adult. (a) SSB refutes the allegations of financial mismanagement of the adult’s funds and maintains that the orders made by the Tribunal prior to the hearing have undermined the -- 7 of 14 -- 8 natural authority of the adult’s family and damaged the reputation of the family as effective and tireless advocates for the adult. She submitted that further damage to the family’s reputation and relationships with stakeholders will occur if the orders were to ‘remain in place’ and that this, in turn, would likely decrease the resources available to the adult and the quality of her life. She submitted that the making of such orders is not in the public interest. (b) Since the interim orders had been in place, there had been no substantial action by either of the appointees that could be said to be protecting the adult or her interests from immediate threat. She stated that the only event which has occurred is that the Office of the Public Guardian had replaced her with the National Disability Insurance Agency (‘NDIA’) and she has ceased receiving travel allowance of $68.00 per fortnight. (c) SSB said that her management of the adult’s finances had been informal and continued the practices developed when the adult had been supported by Uniting Care. The adult has two passbook accounts. The adult’s rent, phone and health insurance are direct debited from her account. The bank requires that the adult attend with her support workers to withdraw cash from a passbook account with the adult’s photo attached. A requisition is drawn up for the cash withdrawal and signed by SSB for the team leader. Hard copies of receipts for purchases are stored before the information is recorded electronically. She and the adult produce invoices or quotes for any substantial or unusual purchases. The staff and team leader have access to these records. SSB denied the existence of a keycard or internet access connected to a bank account of the adult and stated that the bank does not permit the adult to have keycard access to her accounts. (d) SSB said her actions have included arranging for the adult’s accommodation fees to be direct debited, along with electricity and telecommunication costs. (e) SSB stated that she commenced living with the adult in 2023, in circumstances where her own tenancy had ended and she had been staying temporarily with a friend. SSB said that she had observed the adult to have been ‘in a bad way’ when she first came to stay with the adult and she did ‘not think it was safe to leave’. She told the Tribunal that there was a ‘possibility’ she may leave the accommodation ‘if everything could be stabilised’. (f) SSB has never paid rent for her accommodation and is not on the lease. She submitted that Queensland Department of Housing was aware of her accommodation arrangements as a household member and that she had provided all requested personal information to Queensland Department of Housing in that regard. (g) Initially, after taking up residence in the adult’s accommodation, SSB paid for the electricity in lieu of rent. Currently, SSB neither pays for electricity or rent, nor does she contribute to the internet costs of the accommodation. SSB told the Tribunal that her car is available for use by the adult’s support workers to transport the adult. SSB said that from time to time she purchases items for the adult (e.g. clothing and shoes) and has paid for the adult’s physiotherapy and dental work. SSB said that there had been periods of time during which the adult could not attend the bank and that she had met the cost of the adult’s expenses including groceries, entertainment and petrol. SSB submitted that she has purchased major items for the household (e.g. replacement washing machine, dining table and chairs, sofa, household appliances, kitchenware) and that, at other times, the adult had paid for other major items (e.g. vacuum cleaner, dryer). (h) SSB’s caravan is stored in the front yard of the accommodation. (i) SSB provided a financial management plan to the Tribunal detailing her proposed actions should she be appointed administrator for the adult. Such plans included establishing direct debits for home and contents insurance, health insurance, internet/phone and -- 8 of 14 -- 9 electricity, along with obtaining financial advice in relation to opening a term deposit account for the adult and consideration of the prudent person rule.7 [40] Within her evidence to the Tribunal, SSB detailed her informal decision-making actions in relation to the adult’s personal matters. (a) She had helped her parents in securing funding from ‘Queensland Disability’ through the Challinor Reform Project which enabled the adult to establish her own home with 1:1 support. After six months of the adult residing in a different location, the adult moved into her current address in or about 1995 and received 1:1 support from Uniting Care. She stated that she had been the adult’s primary advocate in securing the adult’s funding through the NDIS and was appointed as her nominee. She said she has conscientiously carried out her responsibilities as the adult’s de facto guardian. (b) The adult’s NDIS plan is plan-managed. SSB is the plan nominee and has entered into all service contracts on behalf of the adult. There are eight service contracts on foot. SSB said she has secured services for the adult which have included speech pathology, music therapy physiotherapy, exercise physiology, hydrotherapy, special needs dentistry and a sleep study. A functional assessment is presently being prepared by an occupational therapist. The adult’s medical care is managed by the adult’s long-standing general practitioner. The adult also receives support from the Queensland Centre of Excellence in Autism and Intellectual Disability Health, through their multi-disciplinary team including psychiatrists, general practitioners and nurses. (c) SSB told the Tribunal that the adult’s NDIS plan includes behavioural support services which are conducted remotely from an individual who had formerly worked for Uniting Care, possibly in a management role. In undisputed evidence from SSB, the individual who is contracted to provide behavioural support services has not seen the adult since the occasion of the adult’s 50th birthday function in March 2022. (d) SSB provided submissions about the utilisation of the adult’s NDIS funds for active overnight supports. She said that the actions of the support workers, (providing active support and claiming for same) diminished the accumulated surplus of funding for the adult. As a consequence, the adult’s funds for direct support were exhausted in late 2025. She stated that the support providers were invoicing for active support when it was neither required nor funded for. She said whilst the surplus was in place, she did not become aware of the ‘excessive amounts in the invoices’. She added that the adult’s current NDIS plan, which took effect in August 2025 upon the adult being discharged from hospital, did not allow for the surplus and ‘we quickly ran out of money’. As a consequence, SSB said she increased her ‘family time’. (e) SSB also reported her dissatisfaction in relation to the adult’s support workers not attending to the adult at times when the adult wanted attention, as ‘they were concerned about doing the dishes after a meal’. (f) SSB told the Tribunal there is now one surviving dog residing at the accommodation and three surviving chickens. She said that she ‘did make mistakes about the chickens’ and confirmed that the chicken pen was moved away from the boundary as a consequence of neighbours’ requests. She advised that the chickens are not permitted in the house. SSB said that the adult’s NDIS support services include cleaning of the house (once per week) and yard maintenance. SSB said that, while she personally benefits from such services provided to the adult as they relate to her own utilisation of the common areas, the cleaners are not contracted to clean her room. She told the Tribunal that for six days of the week she cleans as well, however she does ‘not clean before the cleaners’. (g) SSB submitted that she is appropriate to be appointed a guardian for the adult and that the Public Guardian does not have the knowledge or skill to ensure the adult’s care and to 7 Trusts Act 1973 (Qld) pt 3 s 22. -- 9 of 14 -- 10 advocate for her within the NDIS. She added that the Public Guardian is not in a position to recruit and manage the staff and that by resorting to engaging service providers from an agency would seriously impact the quality of the adult’s care and expose the adult to harm. Submissions of the delegate of the Public Guardian [41] The delegate guardian reported that consultation with stakeholders had occurred in the period of the interim order, however nil decisions had been requested from the guardian in relation to accommodation and service provision matters. The guardian reported there were no concerns raised in relation to the service provision arrangements which were in place, with the exception that CMK had reported that there was mutual agreement that the working arrangements between herself and SSB had become untenable and had expressed her willingness to resign. The guardian had been informed that the current service providers are longstanding and experienced in providing support. [42] The guardian told the Tribunal that she had visited the adult at home on the day before the Tribunal hearing. The guardian said that the adult’s accommodation was found to be neat and tidy, however the presence of the guardian within the home was extremely disturbing to the adult, as indicated by the adult attempting to hit herself. The guardian said she immediately terminated the visit. [43] The guardian submitted there is a need for the appointment of a guardian for accommodation and service provision matters. The adult is a participant in the NDIS and requires ongoing decisions in relation to support within her home and in order to safely access the community. Whilst the adult’s current accommodation is appropriate and has recently undergone modifications, including the installation of a ramp and new flooring to support the adult’s needs, the guardian noted the expressed concerns pertaining to the household management and reports that SSB exhibits poor hygiene and hoarding behaviours, which are impacting the adult’s living environment. The guardian submitted that an appointment of a guardian for the adult for accommodation and service provision is necessary to ensure protection of the adult’s right to safe living arrangements where her supports and care needs can be suitably met. [44] The guardian further submitted that the Public Guardian is able to act as statutory health attorney of last resort for health care decisions pursuant to section 63(2) of the POAA. Submissions of the representative of the Public Trustee of Queensland [45] The representative of the Public Trustee of Queensland advised the Tribunal of the actions taken and financial matters identified in the period of the interim order. Details include the following. [46] The adult receives the disability support pension. There are no liabilities. [47] The adult has savings deposited in two Suncorp accounts. The Public Trustee of Queensland holds a total of approximately $6,000 for the adult in a cash and a term investment account. [48] Rent is automatically deducted, as are electricity and internet costs. Other expenditure includes food items (supply meals), private health insurance, medical and pharmaceutical expenses, petrol and personal/living costs. [49] The representative noted the allegations of misappropriation in relation to SSB and provided information on transfers between the adult’s account and another account which is not held by the adult. The representative submitted that, if appointed, the Public Trustee of Queensland will continue to investigate the alleged misappropriation further. Personal and financial decisions needed [50] FBB has complex care needs which include support with activities of daily living and with behavioural support to reduce and/or eliminate self-harming behaviours. As a participant within the NDIS, FBB will require ongoing decision-making about the nature and scope of support services (including care and allied health services) which she is to receive. -- 10 of 14 -- 11 [51] The adult has resided in the current rental property for approximately three decades. Her home has recently undergone some modification and maintenance to support her changing needs. Since 2023, however, the adult’s living arrangements have been significantly impacted by SSB and the lifestyle choices SSB has made for herself. SSB occupies a bedroom within the adult’s accommodation and shares the common areas. SSB’s caravan is located within the front yard of the property. Various animals belonging to SSB have been accommodated in the house and yard. Support workers have raised concerns to the Tribunal in relation to squalid conditions within the property, as a consequence of SSB’s lifestyle choices, that have impacted the health and wellbeing of the adult, raised the ire of neighbours and posed occupational health and safety risks to the adult’s support providers. [52] As the adult is not able to adequately express her views, wishes and preferences in relation to the continued habitation of SSB in her property (including SSB’s daily lifestyle choices), the Tribunal is not satisfied that, without the appointment of a guardian for accommodation decisions under the GAA, the adult’s needs would be adequately met and her interests adequately protected. A guardian is necessary for accommodation matters so that decisions about where an adult resides and with whom an adult resides will be made in accordance with the GAA, including the General Principles.8 [53] The evidence before the Tribunal does not establish the need for imminent health care decisions. The Tribunal is persuaded by the submissions of the delegate guardian that the Public Guardian is able to act as statutory health attorney should any health care decisions be required for the adult. [54] FBB has assets, income, expenses and a tenancy agreement that require ongoing decisions. Without the formal appointment of an administrator, the adult remains vulnerable to financial exploitation by informal support persons (including service providers and SSB) accessing her bank accounts, authorising direct debits and engaging with Queensland Department of Housing in relation to her tenancy agreement. [55] Accordingly, the Tribunal determines that the provisions of s 12 GAA have been satisfied in relation to the need for the appointment of a guardian for the matters of service provision (including in relation to the NDIS) and accommodation and an administrator for all financial matters. Determination of the applications for the appointment of a guardian and administrator [56] The Tribunal accepts that SSB has been supporting the adult informally in all areas of decision making. The Tribunal also accepts that, as NDIS nominee, SSB has engaged with the NDIA and service providers over a period of years to ensure the adult receives services to support her within her home and to access the community. [57] It is of concern to the Tribunal that SSB’s personal decisions in relation to her own accommodation and lifestyle considerations are impacting the adult’s accommodation and lifestyle circumstances. SSB has taken up residence in the adult’s Queensland Department of Housing rental accommodation and is not contributing towards the rent. SSB told the Tribunal that there was a ‘possibility’ she may leave the accommodation ‘if everything could be stabilised’. SSB’s financial management plan indicates that, should she be appointed administrator, she would ensure that the adult would meet the full costs of the rent and $207 per fortnight for electricity for the accommodation. SSB’s financial management plan did not include any details of whether SSB would continue to reside in the accommodation and, if so, how she would contribute. [58] SSB’s submissions to the Tribunal in relation to the manner in which she informally made financial decisions for the adult is of further concern to the Tribunal. The evidence from CMK and SSB is consistent in that the adult, in accordance with a long-standing arrangement, attends the bank with a service provider to be supported to withdraw cash on a fortnightly basis. The 8 GAA s 11B. -- 11 of 14 -- 12 cash is then kept on the premises of the adult’s accommodation to be utilised by service providers who record all transactions and cash takings. Such actions place the adult at risk of financial exploitation from all individuals who attend the adult’s accommodation. [59] Further to this, SSB has provided evidence that she has made financial decisions for the adult that have been at times arbitrary and made with consideration of her own financial contributions. Examples include the following: SSB’s decision to pay for electricity for the accommodation in lieu of rent for the initial period of her residency: SSB’s subsequent decision for the adult to meet the total cost of the electricity; and SSB’s decisions for the adult to pay for the replacement of some large appliances and SSB to pay for others. [60] The submissions from CMK and SSB establish that some financial decision making has been shared between contracted service providers and SSB, e.g. a protocol which includes SSB providing invoices or quotes to service providers for any substantial or unusual purchases for items within the accommodation. [61] SSB’s submissions in relation to her decision making about the adult’s service provision matters have led to concerns being raised by the adult’s service providers. The undisputed evidence is that the adult’s funds were being depleted by service providers supporting the adult at nights when the adult awoke and required assistance. According to SSB, such services were not provided for in the adult’s NDIS plan. As informal decision maker, NDIS correspondence nominee and NDIS plan-nominee, SSB should have been aware of the nature and extent of support for which the adult was funded and the rate of which the funding was being utilised. As an occupier of the adult’s accommodation and decision maker, SSB would have been in a position to observe the active overnight support being delivered to the adult. Whilst SSB has been the adult’s decision maker for NDIS service delivery, the adult’s surety of ongoing essential support services was compromised. Such events have occurred at a time when the adult’s vital support services (e.g. cleaning, gardening, dishwashing) have been utilised to attend to shared spaces within the accommodation which SSB and her animals are occupying. [62] The Tribunal is not persuaded by the submissions of SSB that the adult’s family have a natural authority in relation to decision making for the adult. This assertion does not advance SSB’s argument of being appropriate for appointment as the assertion is inconsistent with the provisions of the GAA, including the General Principles.9 [63] Further, the Tribunal is not persuaded by SSB’s submissions that the orders made by the Tribunal have damaged the reputation of the adult’s family as effective and tireless advocates for the adult. Section 11A of the GAA provides that adults with impaired capacity are the primary focus of the GAA. As such, the Tribunal’s primary focus is FBB. The primary focus of an appointed guardian and administrator for FBB is FBB. [64] In deciding whether a person is appropriate for appointment as guardian and administrator for an adult, the Tribunal must include in its consideration the extent to which the adult’s and person’s interests are likely to conflict.10 [65] SSB has benefited by her decision to reside with the adult. She is not on the lease and does not pay rent. She no longer pays electricity costs. Her surviving animals remain accommodated and she utilises the adult’s accommodation location to store her caravan. SSB has received some benefits from the informal decisions she has made in relation to the adult’s service provision, which include cleaning and gardening services at the location in which she now resides. For SSB to make decisions about whether she should leave the adult’s accommodation along with the nature and scope of NDIS service provision provided to the adult, would present a likely conflict of interest between her own personal and financial circumstances and those of the adult. 9 GAA s 11B. 10 Ibid s 15(1)(c). -- 12 of 14 -- 13 [66] Given the Tribunal’s concerns in relation to the above personal and financial decisions made by SSB as informal decision maker for the adult, her misplaced assertions of having a natural authority in relation to decision making for the adult and the likelihood that her own interests and those of the adult would present a conflict of interest for SSB should she be appointed as administrator and guardian, the Tribunal is not satisfied that SSB would be able to discharge effective decision making for the adult in accordance with the GAA including the General Principles.11 [67] Accordingly, the Tribunal determines that SSB is not appropriate for appointment as guardian and administrator for the adult, having regard to section 14(1) and section 15 of the GAA, respectively. [68] The Public Guardian is appropriate as the guardian of last resort. [69] Accordingly, the Tribunal appoints the Public Guardian as guardian for FBB for the matters of accommodation and the provision of services including in relation to the NDIS. This appointment is until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. [70] The Tribunal determines that the Public Trustee of Queensland, as an independent, skilful and experienced decision-maker, is appropriate for appointment as administrator for FBB, having regard to the provisions of section 15 of the GAA. [71] Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for FBB for all financial matters. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. This appointment is until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. Application of the Human Rights Act 2019 (Qld) [72] The Tribunal gave consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). [73] The following human rights of FBB may be limited and engaged by the making of the Tribunal’s order: (a) The right to be recognised as a person who is equal before the law12 will be engaged by the appointment of a substituted decision-maker such as a guardian and administrator; (b) The right to freedom of lawful movement within Queensland, including the freedom to decide where to live;13 (c) The right to privacy and not to have her reputation impacted because her personal and sensitive information will be shared with others;14 (d) The right to a fair hearing15 is engaged and limited because the adult was not able to tell the Tribunal her views and wishes. The Tribunal has, however, considered the views of the people who provide the adult with support. [74] The rights identified are limited by the operation of the GAA which provides for the appointment of substituted decision-makers to make decisions for a person who is found to have impaired decision-making capacity for a relevant matter. The GAA seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. The GAA acknowledges the right of a person with impaired capacity to make 11 Ibid s 11B. 12 HRA s 15. 13 Ibid s 19. 14 Ibid s 25. 15 Ibid s 31. -- 13 of 14 -- 14 decisions should be restricted and interfered with to the least possible extent. Further, the General Principles that reflect relevant rights of a person with impaired decision-making capacity must be applied by a person or other entity that performs a function or exercises a power under the GAA. [75] The Tribunal is satisfied that the limits imposed on the adult’s human rights by the making of these orders are reasonable and justified in accordance with s 13 of the HRA. The Tribunal has applied the GAA including the General Principles and is satisfied that the orders made are necessary and the least restrictive based on the information before the Tribunal. [76] The Tribunal has considered the relevant human rights under the HRA and is satisfied that the order made appointing a guardian and administrator for the adult is the least restrictive. [77] NOTE: A person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult. -- 14 of 14 --