CA [2020] QCAT 444

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CA [2020] QCAT 444 PARTIES: In applications about matters concerning CA APPLICATION NO/S: GAA2529-20 GAA2530-20 GAA2532-20 GAA2533-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 13 November 2020 HEARING DATE: 9 June 2020 HEARD AT: Cairns DECISION OF: Member Johnston ORDERS: GUARDIANSHIP RC and CC are appointed jointly and severally as guardians for CA for the following personal matters: (a) Accommodation; (b) Provision of services; (c) Health care. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION CC is appointed as administrator for CA for all financial matters. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. The Tribunal grants a partial exemption to the administrator from the requirements to provide annual accounts but directs the administrator to keep records of dealings and transactions involving the adult’s income and property, and directs the administrator to provide to the Tribunal within 21 days of being notified that a review of their appointment has been commenced: -- 1 of 6 -- 2 (a) copies of the adult’s bank statements/passbooks/term deposits for the past year; (b) a list of the adult’s current assets and liabilities; (c) a current fortnightly budgeted income and expenditure; and (d) a signed and witnessed Declaration as to continuing appropriateness for appointment. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. NOTICE OF INTEREST IN LAND Before 13 February 2021 the administrator must: (a) Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: (i) a copy of the title search conducted identifying the adult’s property; and (ii) a copy of the Titles Registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. (c) If no property is held, provide a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – who should be appointed as decision maker for the adult – conflict between family members. Guardianship and Administration Act 2000 (Qld), s 6, s 7, s 12, s 15, General Principle 1 APPEARANCES & REPRESENTATION: Adult: CA -- 2 of 6 -- 3 Public Trustee: CS Interested Person/s: CB – Granddaughter DC – Son RC – Daughter CC – Son TO – Daughter CH – Daughter AC – Son VB – Human Rights Advocate Aged and Disability Advocacy (ADA) Australia provided written submissions REASONS FOR DECISION Background [1] CA was living in central Queensland being supported by one of her daughters RC when her health started to deteriorate and RC decided to move her to a larger city where her health-care needs could be better met. There has been conflict between family members over who should make decisions for CA and this has led to applications by different family members to be appointed as decision-makers for CA. [2] The Tribunal notes that an amended Notice of Hearing dated 5 June 2020 was issued. The Tribunal raised the issue with the parties and they expressed the preference to proceed. The Tribunal accordingly abridged time to allow the applications to proceed. The first question for the Tribunal is whether CA has capacity to make decisions for herself or whether she needs to be supported around decision-making. [3] Dr D S Specialist Geriatrician provided a Health Professional Report dated 20 December 2019 that stated that CA had been diagnosed with moderate dementia. The doctor stated that CA was not able make important personal; healthcare; lifestyle; and financial decisions. [4] The Tribunal notes that none of the parties present disputed Dr D S’s diagnosis. [5] The Tribunal finds that CA has been diagnosed with moderate level of dementia. [6] The presumption of capacity for personal and financial matters has been rebutted. Does CA need a guardian to be appointed? [7] RC told the Tribunal that she had moved her mother to a larger centre so that she could be closer to health care facilities. RC was of the view that her mother would benefit from support around decisions involving the areas of: accommodation, services and healthcare. She was of this view because her mother’s health had deteriorated and she would need to be supported in the community with services and appropriate accommodation. There would be a need for future health care decisions. -- 3 of 6 -- 4 [8] DC was of the view that his mother needed support around the same areas. He stated that there was also an issue around contact, stating that he and other family members had been prevented from having contact with his mother. [9] The Tribunal heard a considerable amount of evidence from the parties around the issue of contact with CA. The Tribunal was not satisfied on the evidence on balance that RC was not allowing other family members access to the adult. The Tribunal was not satisfied that there was an unreasonable risk to the adult’s health and welfare in relation to the matter of contact. [10] The Tribunal in these reasons will emphasise the need for any appointee to observe the General Principles. An adult should have access to members of her existing support network and any appointee needs to take active steps to ensure this occurs. [11] The Tribunal accepted that the evidence showed there was a need for a guardian in relation to the following matters: accommodation; services; and healthcare. [12] The Tribunal finds that CA will need services to support her in the community. She will need appropriate accommodation. CA’s health is declining and there will be a need for future health care decisions. [13] The Tribunal concludes: (a) there is a need for a decision OR the adult is likely to do something involving or likely to involve unreasonable risk to health or welfare; and (b) without appointment the adult’s needs are not adequately met or interests not adequately protected. Who should be appointed as CA’s guardians? [14] CA expressed her wish quite clearly: that she supported her daughter RC and her son CC to be appointed. [15] VB, the ADA representative, provided a report stating that the adult was “delighted” with her move to a larger centre and supported RC and CC being appointed as guardians. [16] The Tribunal notes that different family members supported different proposed appointees. The adult expressed the view that all family members had a supportive relationship with her. [17] The Tribunal in determining the most appropriate party to be appointed took into account the provisions in s 15(1) of the Act. The Tribunal notes that the adult’s wishes should be given considerable weight. Her consistent view was that RC and CC should be appointed. [18] The Tribunal accepted the evidence that CC was in regular contact with his mother. The Tribunal accepted the evidence that DC had in recent times limited contact with his mother. [19] The Tribunal accepted that RC had taken on the role as primary support and carer for the adult and a number of family members were of the view she had done a very good job supporting her mother. [20] The Tribunal was on the view that on balance of probabilities RC and CC were the most appropriate appointees for the reasons set out above. -- 4 of 6 -- 5 [21] The Tribunal appoints RC and CC as guardians for CA for the period of one year for the following matters: health care; services: and accommodation. Does CA need an administrator to be appointed? [22] RC told the Tribunal that because there was currently conflict between family members over her purchase of the mother’s house, she would prefer not to be appointed as Administrator. She supported her brother CC being appointed. She gave evidence that CA had monies in a Westpac account, was receiving an Age Pension and confirmed that she had borrowed some money from her mother to undertake renovations to her mother’s old home. She told the Tribunal that at the time of the transaction to purchase her mother’s home all other family members were aware of the transaction and supported her actions in buying her mother’s house. RC told the Tribunal that now that the transaction has been finalised some family members say they were not consulted. She would prefer another family member acting as administrator so that she can deal with the administrator at arm’s length and avoid a potential conflict of interest. [23] The Tribunal gave RC leave to withdraw her application to be appointed as Administrator. [24] The Tribunal had received a number of submissions from family members around RC’s actions in relation to her mother’s financial affairs. The Tribunal also received submissions from RC rebutting the allegations. The Tribunal agrees with RC that having another family member support the adult with her financial matters was appropriate. [25] DC told the Tribunal that his mother did not have capacity to manage her financial affairs and he supported the appointment of an administrator. [26] All family members present were of the view that an administrator needed to be appointed. Who should be appointed as administrator? [27] CA expressed the view that CC, her son, should be appointed as administrator. [28] The ADA representative stated that the adult supported CC being appointed. [29] There was conflict between family members as to who should be appointed. [30] The Tribunal in determining the most appropriate party to be appointed took into account the provisions in s 15 of the Act. The Tribunal notes that the adult’s wishes should be given considerable weight. Her consistent view was that CC should be appointed. [31] The Tribunal accepted the evidence that CC was in regular contact with his mother. The Tribunal accepted the evidence that DC had in recent times limited contact with his mother. [32] The Tribunal was on the view that on balance of probabilities CC was the most appropriate appointee for the reasons set out above. [33] The Tribunal appoints CC as Administrator for CA for the period of one year on a plenary basis being for all financial matters. -- 5 of 6 -- 6 One year review [34] The Tribunal, due to the high level of conflict, has only made appointments for one year. The Tribunal will at review look at the need for the appointments and who is most appropriate. [35] The Tribunal recommends that the Guardians prepare a contact plan. The purpose of the plan is to ensure that the adult remains in contact with the adult’s existing supportive network in accordance with the General Principles. The contact should take place in a way that enhances and is positive to the adult’s well-being and safety. The guardians are to set out ground rules around any contact with the adult to ensure appropriate contact takes place by family and friends. [36] The Tribunal also recommends the Guardians put together a strategy that ensures appropriate information flow to the adult and the members of her existing support network so that those interested know about the adult’s personal circumstances and how she might be best supported. [37] The Tribunal notes that the two above recommendations are simply examples of how the General Principles for supporting adults with impaired capacity can be applied. -- 6 of 6 --