ERP [2015] QCAT 250

CITATION: ERP [2015] QCAT 250 PARTIES: ERP APPLICATION NUMBER: GAA1837-15; GAA1838-15; GAA2218-15; GAA2219-15; GAA2365-15; GAA2366-15; GAA3585-15; GAA3566-15. MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 29 May 2015 HEARD AT: Southport DECISION OF: Member McDonald DELIVERED ON: 12 June 2015 DELIVERED AT: Southport ORDERS MADE: 1. BEL is appointed as guardian for ERP for decisions about the following personal matters: accommodation, health care, provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 1 year. 3. The application for the appointment of a guardian by FM is dismissed. 4. The withdrawal of the application for the appointment of a guardian by NV has been approved by the Tribunal pursuant to section 46 of the Queensland Civil and Administrative Tribunal Act 2009. 5. The Public Trustee of Queensland is appointed as administrator for ERP, for managing all financial matters except day to day finances. 6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 1 year. 7. The administrator is to provide a financial management plan to the Tribunal within 3 months. 8. The Tribunal directs the administrator to -- 1 of 5 -- 2 provide accounts when requested. The application for the appointment of an administrator by FM is dismissed. 9. The withdrawal of the application for the appointment of an administrator by NV has been approved by the Tribunal pursuant to section 46 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: Guardianship and administration matters for adults - application for appointment of a Guardian - application for appointment of an Administrator Guardianship and Administration Act 2000 (Qld) Sections 12, 15 and General Principles APPEARANCES: ERP BEL, NV, LS AC, GC, NC FL FM, Anders Berquiers (Public Guardian), Nash Te Ua ( PTQ) REASONS FOR DECISION [1] ERP is an 81 year old lady who has recently relocated to Queensland from New South Wales. She remained in hospital on a social admission from January 2015 until the date of hearing, pending the outcome of the applications before the Tribunal. The Hospital had not been able to progress discharge without a clear appropriate substitute decision maker. [2] The Tribunal had received four applications before it for the appointment of an administrator and guardian for ERP. These came from a hospital social worker proposing the independent statutory bodies in these roles; her daughter, NV proposing herself and her sister and LS, and ERP former solicitor, FM and her sister, BEL. [3] These applications have arisen following ERP admission to the Gold Coast Hospital on 24 January 2015. Social Work and occupational therapy reports from the hospital (25 February and 23 February, respectively) indicate that the police brought her to hospital in a confused state, dishevelled and unable to answer simple questions. She had presented with a suitcase filled with rubbish. ERP informed hospital staff that she had sold her house and was relocating to the Gold Coast but was unable to provide information about her contacts. Concerns were noted by professional staff at the hospital that ERP indicated that she had recently sold her house in New South Wales but could not account for the proceeds. -- 2 of 5 -- 3 [4] ERP did not consider that she needed someone to manage her affairs, but if the Tribunal did appoint someone she would like that to be her sister BEL. [5] In considering an application for the appointment of an administrator and or guardian, the Tribunal is guided by sections 12, 15 and the General Principles of the Guardianship and Administration Act 2000 (Qld), (the Act). Pursuant to section 12 of the Act, the Tribunal must be satisfied that the adult has impaired capacity for the matter, that there is a need for a decision, or the adult’s health welfare or property is at unreasonable risk, and without an appointment the adult’s needs will not be met or interests adequately protected. [6] In considering the issue of ERP’s capacity to make decisions about the matters, the Tribunal had the benefit of reports of the medical and allied health professionals who conducted assessments during her admission to hospital. [7] Dr Wickganttinga, medical intern, provided a health professional report dated the 19 February 2015 which noted problems with recall, and that she was being at risk financially. It noted she demonstrated an inability to pay bills. She concluded that ERP was not capable of complex financial decisions. [8] The occupational therapists report of GA, dated 23 February 2015 noted ERP had been vulnerable in relation to her finances. A mini mental state assessment returned as score of 19/30, and her cognition was noted to have poor recall, poor orientation and attention. She noted decreased awareness of safety considerations and concluded she required 24 hour supervision due to her cognitive difficulties. She was noted to demonstrate poor insight into her functioning and reduced cognition. The report concluded that ERP’s poor understanding and problem solving skills recall impacts on her ability to interpret information. She noted that she had difficulties identifying risks, and was unable to reason through decisions around the purchase of property. She considered she was socially and financially vulnerable. She suggested that she may not have had the capacity to have transacted the sale of her property. [9] A neuropsychologist report of Dr Y, dated 26 March 2015, was submitted at the hearing. This report noted that there were several domains of well preserved cognitive function including attention span, working memory, a strong vocabulary and verbal fluency. However, she considers ERP had diffiulties with executive functioning, and memory deficits and requires structure and context to support her memory. The report noted marked reduction in executive skills such as inhibitory control and complex or novel problem solving. She considered that she did have capacity for simple day to day decisions. She noted that she had surface knowledge about her finances but had diffiulties providing information on complex matters such as awareness of expenses associated with purchase, monetary cost of daily living expenses, interest accrued on investment. She considered that ERP’s cognitive deficits may increase her -- 3 of 5 -- 4 vulnerability from a financial perspective. She also noted she had difficulty communicating consistent reasoned decisions. [10] Having considered the evidence on her capacity to make decisions, the Tribunal concludes that medical and allied health evidence indicates that ERP has cognitive deficits which impact on her ability to understand the nature and consequences of decisions, and has impaired capacity for complex personal and financial matters, and is vulnerable in this regard. [11] Social workers at the hospital indicate that it is assessed that ERP will require 24 hour supervision. Discharge plans have been unable to be made until an appropriate decision maker is appointed. FL has been working with BEL around sourcing an alternative placement. This is strongly resisted by ERP. [12] After some discussion with BEL, it became clear that she was aware of ERP’s concerns about placement and would look at options that would best suit her requirements. She confirmed that she understood difficult decisions may need to be made which ERP may not agree with, but indicated that she would act on medical and allied health advice in that regard. FL confirmed that she was confident based on her dealings with BEL over the previous 6 weeks that she would act accordingly. She noted collaboration had been occurring with the social work staff in this regard for some time. [13] Based on the information available, the Tribunal concludes that there is ongoing health, accommodation and service support decisions that need to be made in her transition from hospital and thereafter. Further the Tribunal concludes that Ms BEL is the most appropriate appointee as guardian in this regard, and this appears to be unanimously supported by all parties, including ERP. She is compatible with, and available and accessible to the adult, is unlikely to have conflict of interest. Discussion with her suggests she is likely to apply the General Principles of the Act. [14] In terms of financial decisions, there is evidence before the Tribunal that there are decisions which are likely to be needed to be made in relation to assets assessment for placement. The Public Trustee informed the Tribunal of the complex range of considerations in this process. It noted that there may also be necessary liaison with Centrelink around any possible overpayment or debt once the primary residence was liquidated. As well as management of the decisions, there is the need to invest and protect ERP funds for her future. This discussion alerted the applicants to the complexities and rigours of an administration appointment in these circumstances, and the members of ERP family present acknowledged that this was likely to cause significant strain on BEL who is aged in her eighties. BEL did indicate this caused some concern. [15] The Tribunal considers that there is the need for financial decisions to be made, and without an appointment ERP’s interests will not be adequately protected. -- 4 of 5 -- 5 [16] There were multiple applicants before the Tribunal. NV withdrew her application in favour of the appointment of BEL. She and LS strongly opposed the appointment of FM, as did all members of the adult’s family who each supported BEL’s application. [17] FM, a solicitor in New South Wales considered he was the appropriate appointee because ERP had been given instructions to make the application to be appointed as guardian and administrator. It was clear that this had occurred during her admission to hospital. He informed the Tribunal that he had been ERP’s solicitor and she had long held this view that she wanted him to act to manage her finances if she became incapable. This was perplexing to the Tribunal given the nature of a guardianship and administration appointment being made in circumstances where a person lacks capacity. FM confirmed that ERP had not at any time appointed him as enduring power of attorney. [18] At the hearing FM identified that he supported BEL’s appointment as guardian, but continued to seek appointment as administrator. It was abundantly clear that ERP daughters were strongly opposed to FM’s application, indicating they were concerned he was financially motivated. They considered a person closer was necessary in this role, but it appeared that they did not fully appreciate the nature of this role. [19] The Tribunal understands that their concerns about FM’s application is that he is not available to the adult, and there may be a conflict between his and the adult’s interest [20] If, as FM suggests ERP instructed to FM to make the application during her admission, the evidence makes clear that she was in a particularly confused state and is likely to have lacked the capacity to instruct FM. Notwithstanding that, had this been her longstanding wishes that FM manage her affairs, it is unclear why she would not have executed an Enduring Power of Attorney in these terms when she did have capacity. [21] ERP was strongly opposed to the appointment of the Public Trustee. However, she communicated a misapprehension of the role of the Public Trust and accused the Public Trust of stealing her hard earned money. [22] Given the complex financial matters which may need to be attended to upon any placement, the Tribunal considers the Public Trustee is best placed to act as a substitute decision maker. There is no scope for any conflict of interest, and the Public Trustee is available and accessible to the adult. Consistent support from family members for their appointment was noted during the hearing. The Tribunal concludes that the Public Trustee is the most appropriate appointee in the circumstances. -- 5 of 5 --