DCE [2016] QCAT 284

CITATION: DCE [2016] QCAT 284 PARTIES: DCE APPLICATION NUMBER: GAA3404-16, GAA3405-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 15 June 2016 HEARD AT: Brisbane DECISION OF: Member Casey DELIVERED ON: 15 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Guardian is appointed as guardian for DCE for the following personal matters: a) accommodation, b) health care, c) provision of services. 2. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years. 3. The Public Trustee of Queensland is appointed as administrator for DCE for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years. CATCHWORDS: Capacity of adult - need for guardian and administrator –appropriateness of appointees Guardianship and Administration Act 2000 APPEARANCES and REPRESENTATION (if any): -- 1 of 9 -- 2 The following parties attended the hearing: DCE adult DC grand-daughter NJ daughter CR son TCK grand-daughter REASONS FOR DECISION History of the Application [1] DCE is an 85-year old woman who resides in a retirement complex in Brisbane. [2] On 31 March 2016 the Tribunal received an application from DC seeking her appointment as guardian and administrator for the adult. [3] The matters were heard in Brisbane on 15 June 2016. The Legislation [4] The issues for the Tribunal, based upon the legislation, are: a) Does DCE have capacity to make personal and financial decisions? b) Is there a need for a guardian to be appointed? If so, who is the most appropriate person for appointment? c) Is there a need for an administrator to be appointed? If so, who is the most appropriate person for appointment? [5] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider an application for the appointment of an administrator for the adult. [6] DCE is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult. [7] The GAA Act defines capacity as follows: “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 -- 2 of 9 -- 3 (c) communicating the decisions in some way”. [8] 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 Guardianship and Administration Act 2000. [9] If the Tribunal determines that there is a need for the appointment of a guardian and/or administrator for DCE, the Tribunal, in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000. The evidence [10] In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below. Does DCE have capacity to make personal and financial decisions? [11] In its determination of the adult’s financial decision-making capacity the Tribunal considered a report dated 18 March 2016 by Dr Jane Mikli, a geriatrician, who had last seen the adult on 14 March 2016. Dr Mikli provides the adult has dementia, ‘with gradual worsening memory impairment over years’, and that the adult attained a score of 21 out of a possible 30 on the Mini-Mental State Examination (MMSE) administered on 13 March 2016. Dr Mikli stated DCE ‘has limited ability to make personal health decisions. She presented to hospital with multiple rib fractures and no recollection of trauma. She has no insight into her cognitive deficits at all’, and that the adult ‘does not appreciate the risks associated with her memory problems and living alone’. Dr Mikli provided the opinion that DCE does not understand the criteria necessary to make an Enduring Power of Attorney, and that the adult was able to make simple and not complex decisions in relation to her personal health care, lifestyle/accommodation choices and financial affairs. [12] In correspondence to Dr Matthew Rickard on 17 March 2016, Dr Jane Mikli writes that DCE ‘was diagnosed with mild to moderate dementia, (likely Alzheimer’s disease)’, and referred to the adult’s MMSE score, which was attained during a hospital admission from 8-14 March 2016. [13] The Tribunal also had the benefit of a statement dated 19 May 2016, written by Dr Andrew Butler, a general practitioner, in which he writes ‘I have been a medical practitioner for DCE for over 20 years. In my opinion she is not of sound mind and is not able of making complex legal -- 3 of 9 -- 4 decisions’. [14] In her written and oral evidence to the Tribunal DC submitted the adult demonstrates short term memory deficits and confusion. She stated the adult has an ‘inability to accept her mental capacity is starting to diminish’ and is vulnerable to influence and exploitation from family members. DC was supported in her submissions by TCK and CR. [15] NJ provided the opinion the adult could make her own decisions. She told the Tribunal a solicitor was scheduled to attend the adult on the day following the hearing, in order for the adult to appoint an Enduring Power of Attorney. [16] DCE fluently and emphatically articulated to the Tribunal she was opposed to the application as she was capable of making her own decisions as she had her ‘full mental capacity’. While she stated that she paid rent to her grand-daughter, TCK, who owns the retirement village unit in which she resides, she was not able to correctly state the current costs she herself is required to pay to the village’s management in order to maintain her accommodation and receive services. DCE incorrectly told the Tribunal her DVA pension was $700 per month, and was unable to identify the nature and amount of regular expenses she incurs to maintain her lifestyle. [17] Echoing the written evidence, the adult stated she was unaware for the reasons for her hospitalization in March 2016 except that she ‘woke up with a sore rib’. The adult could not identify any current physical health conditions she experienced, nor could she describe the nature and purpose her Webster-packed medications. [18] When the adult was unable to explain the meaning of an Enduring Power of Attorney, stating she was ‘not quite sure’. The adult was unable to state whom she would nominate as her attorney. [19] The Tribunal considered the medical and other evidence in relation to DCE’s decision-making. [20] The Tribunal finds that while the adult and NJ may have formed the view that the adult has the ability to make complex personal and financial decisions, the evidence of Dr Jane Mikli, Dr Andrew Butler and the adult herself does not, on any reasonable or objective basis, justify such a conclusion. [21] The adult was unable to demonstrate an understanding of the nature and effect of her income and expenditure. In relation to her personal matters, the adult demonstrated an inability to understand the reason for her most recent hospital admission, the nature of her current personal/health conditions and the nature and purpose of the prescribed Webster-packed medications. As a consequence of the adult’s poor insight into her health care matters, including cognitive deficits, she is unable to predict the associated impact of these factors on her own lifestyle and -- 4 of 9 -- 5 accommodation matters. Conclusion [22] The Tribunal finds that DCE has cognitive deficits, including memory deficits, as a consequence of mild to moderate dementia. [23] The Tribunal determines that DCE is unable to identify and remember key factors and predict consequences in relation to her complex personal and financial decisions, including matters in relation to appointing and revoking an Enduring Power of Attorney. [24] Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in the Guardianship and Administration Act 2000 that DCE has capacity for complex personal and financial matters is rebutted. Is there a need for a guardian to be appointed? [25] The evidence pertaining to the adult’s personal circumstances follows. [26] DCE currently resides independently in a unit within a retirement village. The unit is owned by her grand-daughter, TCK. [27] The adult requires re-assessment by the Aged Care Assessment Team to determine residential and community support services for which she may be eligible, to meet her increasing care requirements in the context of her progressive dementia. It is essential DCE is accommodated where she can receive care and service provision commensurate with her needs. [28] Health care decisions will be required in relation to the adult’s co- morbidities, that include osteoporosis, hypertension and coronary artery disease. The statutory health attorney regime has not met the adult’s needs and has failed to protect her interests during the adult’s recent hospitalizations as the adult prohibited health practitioners liaising with family members. Furthermore, poor communication processes exist between members of the adult’s family, preventing the possibility of effective substituted and supported decision-making in relation to health care matters for the adult. Conclusion [29] The Tribunal determines that there is a need in relation to decisions pertaining to the adult’s accommodation, provision of services and health care matters. There must be an adequate and effective decision making regime in place for DCE as otherwise the adult’s needs will not be met and her interests will not be protected. -- 5 of 9 -- 6 [30] Accordingly, the Tribunal is satisfied that the need for the appointment has been established having regard to the provisions of section 12 of the Guardianship and Administration Act 2000. Who is the most appropriate person for appointment as guardian? [31] The options for appointment as the adult’s guardian are DC or the Public Guardian. [32] In her evidence to the Tribunal DC stated she has been informally making personal decisions for the adult in consultation with a number of family members, including her sister, TCK and her uncle, CR. DC said the adult had thwarted her attempts to make the adult’s health care decisions during the recent hospitalization. [33] The proposed appointment of DC as the adult’s guardian is supported by TCK and CR, together with the daughter of NJ. Her application is opposed by DCE and NJ. Most significantly, in her oral evidence to the Tribunal the adult stated she did not want DC to be her decision-maker in light of recent conflicts due to the QCAT application. [34] In deciding if someone is appropriate for appointment as a guardian for the adult the Tribunal must consider the appropriateness considerations provided in Section15 of the Guardianship and Administration Act 2000. [35] The evidence is there has been conflict and poor communication processes between the adult’s family members in relation to personal decision making for the adult. Having regard to the negative communication processes that occur between DC and NJ, coupled with the adult’s opposition to DC being appointed as a decision-maker, the Tribunal is not satisfied that DC would be able to effectively consult with the adult or NJ in order to make decisions about the adult’s accommodation, provision of services and health care matters. [36] Furthermore, the appropriateness considerations set out in section 15(1)(c) of the Guardianship and Administration Act 2000 provide that the Tribunal must consider the extent to which the adult’s interests are likely to conflict with those of a proposed guardian and/or administrator. Having regard to the appropriateness considerations the Tribunal is not satisfied DC objectively make decisions about the adult’s accommodation and support services, when such decisions impact directly on her sister, TCK, who currently owns the retirement village in which the adult resides. [37] On balance, the Tribunal does not consider DC would be able to discharge decision making for the adult in a way that was consistent with the legislative requirements, including the general principles. The Tribunal is therefore not satisfied DC is an appropriate appointee as guardian for the adult in relation to section 15 of the Guardianship and Administration Act 2000. [38] Section 14(2) of the Guardianship and Administration Act 2000 provides the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment. The -- 6 of 9 -- 7 Public Guardian is an independent decision maker with extensive skills and experience. [39] In the absence of any other appropriate person available for appointment, the Tribunal is satisfied the Public Guardian is the only entity capable of complying with the general principles in order to make personal decisions that best meet the adult’s needs. Conclusion [40] The Tribunal appoints the Public Guardian as guardian for DCE to make decisions about the following matters: accommodation, provision of services and health care. [41] This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years. Is there a need for an administrator to be appointed? [42] The evidence before the Tribunal pertaining to the adult’s financial circumstances follows. [43] DCE receives a pension from the Department of Veterans’ Affairs. [44] Her assets include funds held in two bank accounts. [45] There is inconsistent evidence of money being owed to the adult by some family members, and of funds being removed from the adult’s bank accounts by other family members for the stated purpose of reducing the adult’s risk of financial exploitation. [46] Expenditure includes fees to the retirement village, (at approximately $600 per fortnight), along with expenses for groceries, telephone, utilities, pharmaceuticals and recreational activities. [47] There are no liabilities. [48] The adult’s fortnightly budget is in surplus. Conclusion [49] DCE has income, assets and expenditure that require management. [50] Pursuant to s12 of the Guardianship and Administration Act 2000 the Tribunal is satisfied there is a need for decisions pertaining to financial matters. There must be an adequate and effective financial decision making regime in place for DCE as otherwise the adult’s needs will not be met and her interests not protected. Who is the most appropriate person for appointment as administrator? [51] The options for appointment as the adult’s guardian are DC or the Public Guardian. -- 7 of 9 -- 8 [52] The proposed appointment of DC as the adult’s administrator is supported by TCK, CR and the daughter of NJ, and opposed by DCE and NJ. [53] In her evidence to the Tribunal DC provided she has been informally making financial decisions for the adult in consultation with a number of family members, including her sister, TCK and her uncle, CR. [54] Inconsistent evidence before the Tribunal includes submissions by DC that members of NJ’s family have not fully repaid money loaned to them by the adult. NJ disputed these submissions, and alleged that funds had been removed from the adult’s bank accounts by DC in an attempt to preserve her cash assets. [55] The Tribunal must have regard to the appropriateness considerations provided in Section 15 of the Guardianship and Administration Act 2000 when deciding if a person is appropriate for appointment. Section 15(1)(a) provides that the Tribunal must consider the general principles and whether the person is likely to apply them. [56] In consideration of the adult’s opposition to DC’s proposed appointment as administrator, coupled with the negative communication processes that exist between family members, the Tribunal is not satisfied that DC would be able to effectively consult with the adult and all stakeholders, including NJ and members of her family, in order to gain information and effect decisions about the adult’s financial matters, including identification and recovery of cash assets, as required. [57] On balance, the Tribunal is not satisfied DC would be able to perform functions and exercise power as an administrator for DCE under the Guardianship and Administration Act 2000 in a way that would be consistent with the legislative requirements, including the general principles. The Tribunal determines DC is not an appropriate appointee as administrator for the adult in relation to section 15 of the Guardianship and Administration Act 2000. [58] The Tribunal concludes that an independent administrator, free from any potential conflict of interest, would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters, and make decisions that best meet the adult’s needs in accordance with the general principles. In this respect, the Public Trustee of Queensland is an independent decision maker with extensive skills and experience. [59] The Tribunal determines, pursuant to s15 of the Guardianship and Administration Act 2000, that the Public Trustee of Queensland is appropriate for appointment as administrator for the adult for all financial matters to ensure the adult’s financial needs are met and her financial interests are protected. Conclusion -- 8 of 9 -- 9 [60] The Tribunal appoints the Public Trustee of Queensland as administrator for DCE to make decisions about all financial matters. 1. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 2. The Tribunal directs the Public Trustee of Queensland to provide accounts to the Tribunal when requested. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years. -- 9 of 9 --