BD [2014] QCAT 597

CITATION: BD [2014] QCAT 597 PARTIES: BD APPLICATION NUMBER: GAA7401-14; GAA7402-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 22 September 2014 HEARD AT: Hervey Bay DECISION OF: Member Milburn DELIVERED ON: 9 November 2014 DELIVERED AT: Hervey Bay ORDERS MADE: GUARDIANSHIP 1. GS is appointed as guardian for BD for decisions about the following matters; (a) Accommodation (b) Health Care (c) Provision of Services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for BD 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. The appointment is reviewable and is to be reviewed in five (5) years. CATCHWORDS: Guardianship and Administration – conflict between siblings – concurrent interstate orders Guardianship and Administration Act 2000 s 5, -- 1 of 10 -- 2 s 14(2) APPEARANCES and REPRESENTATION (if any): GS BG BM Sunita Hora (Acting Principal Guardian for the Public Guardian, New South Wales) REASONS FOR DECISION [1] This case deals with the adult, 60-year-old, BD. BD has a severe intellectual disability and has been cared for all of her life. She was the subject of a guardianship order made by the New South Wales Civil and Administrative Tribunal dated 24 February 2014. [2] The Public Guardian in New South Wales was her appointed guardian. The NSW Public Guardian was appointed primarily because of conflict between two of BD's siblings, brother BG, who resides in New South Wales, and sister GS who resides in Queensland. In expressing the reasons for the tribunal decision, Senior Member Hughes (presiding member) said at page 5: The difficulties outlined in the reasons for decision of the Tribunal on 2 September 2013 in respect of the appointment of either GS (de-identified) or BG (de-identified) as BD’s guardian (de-identified) continue to apply. Neither sibling could agree or accept the others decision in relation to their sister’s accommodation. Their conflict over this issue is likely to adversely impact upon BD which would not be in her best interests. Accordingly, the Tribunal decided that the Public Guardian should continue to be appointed as guardian. A guardianship order on review can be made for up to three years from the date on which it is made. The Tribunal decided to make an order for a 12 month period. The Tribunal determined the order should not be reviewable as the decisions to be made by the Public Guardian are in respect of BD’s accommodation and are likely to be finalised within this timeframe. [3] BD has been living in supported accommodation in New South Wales for many years. The Public Guardian made a decision to continue with this long-standing arrangement. Given the comments of the learned Senior Member the purpose of making the twelve-month guardianship order had been satisfied. [4] The Public Guardian agreed to allow GS to take BD to Queensland for a holiday. GS, who had long fought for guardianship, brought her sister to her home. Not long after arrival in Queensland GS advised the Public Guardian that she would not return her sister to New South Wales. [5] The Public Guardian took action. Ms Sunita Hora, Acting Principal Guardian for the Public Guardian in New South Wales, sought assistance in Queensland. Ms Hora applied for the recognition of the NCAT order in -- 2 of 10 -- 3 Queensland. The guardianship order was indeed, as sought, recognised by the Queensland Civil and Administrative Tribunal on 3 June 2014. In her application Ms Hora identified a number of concerns. She said that: BD (de-identified) is currently residing in her sister's home, which she has only known for 2 weeks. She is living on a rural property with limited access to services. It is unclear if her sister is able to cope with her care needs without support services, 24 hours a day, on a long-term basis. In addition, BD is unprepared for this change and may be distressed if the arrangement is allowed to continue. She is also experiencing symptoms of early dementia. It is unclear if her care needs are likely to change in the near future. BD has been living in supported accommodation in Sydney for approximately 13 years. She attends a day program once a week and works in supported employment 2 days a week. The Public Guardian consented to a holiday with her sister GS at her home in Netherby for 2 weeks. GS has refused to allow her to return. BD is at risk of losing her accommodation and services if she does not return. The Public Guardian may be required to make an accommodation decision or request the assistance of the Queensland police force or ambulance service to remove BD from GS's home and assist in bringing her back to Sydney. [6] Following this, GS brought her own application for appointment of a guardian and appointment of an administrator before the Queensland Civil and Administrative Tribunal. It is her applications which are the subject of these proceedings. [7] In proceedings of this nature the tribunal commences proceedings presuming the adult in question does have capacity to make decisions. That presumption can be rebutted. In this case I note the health professional report prepared by Doctor Richard Sanders, General Practitioner, dated 24 May 2013 where he finds that BD has autism intellectual disability, which he categorised as severe. No one appearing before the tribunal suggested that this report was incorrect. I had the benefit of witnessing BD during the hearing. I accept the conclusions contained within the medical report and these were supported by all relevant parties who appeared at the hearing. I determine that BD is not capable of understanding the nature and effect of decisions about matters, is not able to freely and voluntarily make decisions about matters and is not able to communicate any decisions in a meaningful way. As a result I find that the presumption of capacity for both personal matters and financial matters is rebutted. [8] I find that there is a need for decision in relation to matters pertaining to personal matters and financial matters. Most obviously the concerns before the tribunal relate to where BD is to reside. I find that there is a need for decision in relation to matters involving BD. I find that without appointment her needs will not adequately be met or her interests adequately protected. [9] In many ways my finding that BD does lack capacity and that there is a need for the appointment of a guardian and administrator are preliminary issues which were not in contest. The real issue in this case deals with -- 3 of 10 -- 4 the question of the appropriateness of a proposed appointee. The applicant, GS nominates herself as the proposed appointee as both guardian and administrator. [10] The Public Guardian in New South Wales acknowledges the need for an appointment in Queensland. Ms Sunita Hora, who appeared for the Public Guardian in New South Wales, proposed the appointment of the Public Guardian in Queensland. BG supported this position. GS was not opposed to the appointment of the Public Guardian in Queensland. Her application, however, was for appointment of herself. In support of GS' position were her brothers BR and GP. [11] In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider a number of factors. The tribunal must consider matters stated in section 15 of Guardianship and Administration Act 2000 (Qld). In coming to my decision I do consider those factors. I also consider the general principles as stated in the Act. I consider the extent to which the adult and the person’s personal interests are likely to conflict. Importantly, I consider whether the adult and the person, in this case GS, are compatible. I consider whether the person would be available and accessible to the adult. I consider the person’s appropriateness and competence to perform functions and exercise powers under an appointment order. In considering carefully each one of these provisions I have no doubt that the appropriate appointee is the applicant, GS. I appreciate that a finding to this effect puts the order in Queensland potentially in conflict with the order in New South Wales. The orders can coexist. The appointee in Queensland, GS can, at least in theory, liaise with the appointee in New South Wales, the Public Guardian, represented in effect, at least at the time of the hearing, by Ms Sunita Hora. That said, I do note the comment made by Ms Hora in her report to this tribunal1 where, at page 3, she says ‘the Public Guardian in NSW is unable to make a decision from another state’. I also note that the Guardianship Order made in New South Wales was for a period of only 12 months from 24 February 2014. [12] I make my finding because I have concluded that GS provides exemplary support for her sister BD. I have considered a number of witnesses in this regard. For ease of determination I choose to outline the evidence given by various witnesses in written form in the following summary and specifically state that I take into account and accept the various statements which have been made. I take into account the following evidence: Psychologist’s report, Kay Morgan, psychologist, dated 5 September 2014:  BD was assessed on 13 August 2014 in GS's company  GS identified herself as BD's younger sister and carer 1 Report to QCAT prepared by Ms Sunita Hora, Acting Principal Guardian for the Public Guardian NSW, dated 19 September 2014. -- 4 of 10 -- 5  from my observations on the information available to me BD has a diagnosis of autism spectrum disorder with associated expressive language disorder  BD is almost completely non-verbal – this is in direct contrast with the descriptions I have read from people who knew her when BD was living with her mother – they spoke of an aware lady who was able to communicate verbally in an effective manner  during the times I observed BD, she had a very limited vocabulary but was able to let her wishes be known nonverbally  from the information presented, there seems to have been a marked decrease in BD's lifestyle and communication ability after leaving her mother's care in 2001  I note that GS has made attempts to permanently care for her sister over the intervening years, without success  GS arranged for BD to visit and she has been in this area for about 3 months Recommendations:  I am of the opinion that the services accessed by GS will significantly improve BD's quality of life and ability to communicate more effectively  I am of the opinion that returning BD to her former accommodation will be a detrimental step for her  I am very impressed by GS's care and concern for BD, and am very aware of the strong bond between GS and BD  my recommendation is that BD be allowed to remain in the care of GS and an appropriate plan to be put in place just in case GS is unable to care for her Certificate from Jeni Wallace, podiatry assistant, Blue Care Fraser Coast Allied Health Services, dated 21 August 2014:  BD was referred to the Fraser Coast Allied Health Podiatry Service on 20 May 2014  BD commenced podiatry services on 11 July 2014 for ongoing general foot care and maintenance on a 6 – 8 weekly basis Medical report from Doctor Ahmed Said Elsedfy, General Practitioner, Jema Clinic, Lennox Street Maryborough, dated 15 August 2014:  BD is a patient of Jema Clinic since 10th of May 2014  I found her clean and tidy all the time whenever she comes to the clinic  I also found that she is doing well as her carer [sister] is taking good care of her and making sure that medication is given as advised -- 5 of 10 -- 6 Report from Cameron Hollebone, physiotherapist, dated 14 August 2014:  BD requires physiotherapy support to help improve her mobility, decrease the risk of falls and assist with weight loss  BD was happy to take any exercises by copying the movements being completed by myself and GS  with her habitual nature, a different approach to improve her mobility and exercises to assist with weight loss is required Medical report from Doctor Edward Ogiji, General Practitioner, Jema Clinic, Lennox Street Maryborough, dated 19 August 2014:  GS is physically and mentally fit to look after her sister BD Report from Caitlin Rogash, accredited practising dietitian, Blue Care Fraser Coast Allied Health Services, dated 12 August 2014:  BD requires support as she currently has a BMI of over 33 kg/M2 which places her in the Obese I category  this indicates a moderate risk of co-morbidities and if she continues to gain weight she will soon be at severe risk with potential long-term health issues  BD was initially assessed in July where the client’s sister, GS, reported that BD had lost 4 kg in the 6 weeks that she had been staying with her  GS requested additional information for further strategies to assist BD with losing weight  the physiotherapist provided exercises for BD to complete to improve mobility and assist with weight loss  one month later review assessment was completed and unfortunately during this time BD was unable to lose any weight although some of the strategies had been successfully implemented Communication assessment report by Meghan Campbell, speech pathologist, Blue Care Allied Health Team Blue Care, dated 24 June 2014:  Thank you for bringing BD all the way to Hervey Bay to meet me Recommendation:  speech pathology program that aims to increase BD's use of words Report from Emma Smith, occupational therapist, Blue Care Fraser Coast Allied Health Services, dated 11 June 2014:  I attended a home assessment to review BD’s safety in her home environment with BD, GS and myself present  GS is BD’s full-time carer and provides assistance with all activities of daily living, including showering, meal preparation, community access and domestics -- 6 of 10 -- 7  a number of matters were identified as potential issues on the day of the home assessment  a number of recommendations were made to ensure BD remains safe at home Certificate from Sharyn Wilson, team leader Blue Care Maryborough respite services, dated 18 July 2014:  I am writing to confirm that BD attends our day respite centre two times a week to improve her independent living skills and social interaction Letter from Nicholas Advaney, Spec Savers optometrists, Maryborough, dated 20 June 2014 addressed to Doctor:  BD attended for routine examination recently with her sister Letter/report from Fiona Brown, aged and disability carer, dated 4 August 2014:  I have developed a firm friendship with GS and BD over the years  GS and BD are my lunch/dinner guests twice each week  I have been impressed with the progress BD has made in her vocal and interpersonal relationship skills since her arrival in May 2014  BD is animated and responsive after each exciting, activity filled, socially-interactive experience  BD decides on her activity choices  BD is visibly blossoming and responding with pleasure to her new Queensland lifestyle Letter from Marion Carter, friend of GS, undated:  I have been a friend of GS for almost 14 years  I have always admired and respected how GS has had her sister BD's welfare and happiness at heart  GS called to the home where BD lived on a weekly basis to check  BD has blossomed since arriving to stay with GS  I am able to backup and support GS with BD if need be  I am a trained enrolled nurse and have worked in aged care and areas of rehabilitation and dementia for 40 years and I am qualified should any assistance be required Letter from GP, eldest brother of BG, BR, GS and BD, dated 18 July 2013:  I am writing this letter in support of my sisters BD and GS  BD has suffered from autism since a very young age -- 7 of 10 -- 8  Mum spent all her life caring for her at home never wanting her to enter a "home"  this situation continued until my mother had to enter a home herself due to ill health and old age and she passed away  this situation was all handled by BG  BG has no personal face-to-face contact that BD and has very little communication regarding her health and well-being  I believe that BD would be far happier in GS's home  I cannot understand BG's logic of not agreeing to BD being looked after by her sister GS  I couldn't think of a more capable person to look after BD than her sister GS Letters from BR, youngest brother of the adult, undated:  I am in favour of BD living with my sister GS in Queensland  she has been in the home long enough  I don't know why (brother) BG has a problem with this as they don't want BD living at their house  in the event of my sister GS becoming unable to provide housing and care for our sister, BD, I, BR, agree to provide accommodation and care for our sister BD Letter from Patricia Davies, undated:  I facilitate an Autism/Asperger’s support group at (town held) District Community Centre on a regular basis  GS attends with her adult sister BD  GS comes to source information from the support group to help her to give BD a happy and productive life  GS receives help and support at our meetings and learns what activities are available. [13] I have placed a great deal of weight on the evidence of Ms Kay Morgan, psychologist. I accept her recommendations and findings. I accept that returning BD to her former accommodation would be a detrimental step for her. I accept the recommendation that BD should be allowed to remain in the care of GS. [14] The evidence to which I have referred above clearly demonstrates that circumstances have changed very considerably since the NCAT order was made in February 2014. The concerns that were raised by the learned Senior Member2 have been allayed as a result of the actions of GS. The concerns that were raised by Ms Sunita Hora in her application for recognition of the New South Wales order have also been put to rest as 2 See paragraph [2] of this decision. -- 8 of 10 -- 9 result of the actions of GS. Previously there was uncertainty as to how BD would cope with changed surroundings in Queensland. These concerns have been addressed. Any questions as to whether GS might be a suitable guardian have been answered. Clearly she is. Concerns as to whether GS would have the capacity to appropriately care for her sister on a 24-hour basis have been answered. She is capable of doing so. The decision of the tribunal in this instance might appear to be in conflict with the decision of NCAT. I do not believe that it is. The decision of this tribunal reflects information and circumstances that did not exist when the NCAT Decision was made. [15] An adult with impaired capacity has a right to adequate and appropriate support for decision-making3. I find GS to be an appropriate and competent appointee. I had considered appointment of the (Queensland) Public Guardian however I find GS a better choice and in any event the tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter4. I find support for this proposition from the report5 provided to the tribunal by the Public Guardian in New South Wales, where the following statement was made at page 2: The Public Guardian would like a family home environment for BD, in keeping with the Guardianship Principle, which states “the importance of preserving the family relationships and the cultural and linguistic environment of such persons should be recognized”. Living in a family home would also be a less restrictive option. [16] I am confident that GS will consult relevant stakeholders, and in particular her siblings, in relation to decisions involving her sister. With the resolution of the issue of guardianship the former problems associated with a difference of opinion between GS and Mr BG can now be put to one side. [17] I am informed that an administration order was made by NCAT in July 2014 appointing the Public Trustee New South Wales. I believe it is appropriate to have the Public Trustee deal with financial issues but that the Public Trustee of Queensland should share in or perhaps takeover control. I therefore do make an order appointing the Public Trustee of Queensland as administrator. I expect that the respective officers in Queensland and New South Wales will communicate in relation to these matters. It is a matter for the Public Trustee New South Wales to consider bringing the matter back before NCAT if it chooses to do so. I hope that it does; with a view to seeking to vacate the existing New South Wales administration order. [18] I do take into account that GS did act contrary to the authority of the New South Wales Public Guardian and has frustrated the decision-making 3 Guardianship and Administration Act 2000 s 5. 4 Guardianship and Administration Act 2000 s 14(2). 5 Report to QCAT prepared by Ms Sunita Hora, Acting Principal Guardian for the Public Guardian NSW, dated 19 September 2014. -- 9 of 10 -- 10 process of the Public Guardian. This is a factor to consider but those factors which are set out in the legislation must be considered in priority. [19] I make the following Orders: GUARDIANSHIP 1. GS is appointed as guardian for BD for decisions about the following matters; (a) Accommodation (b) Health Care (c) Provision of Services 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for BD 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. The appointment is reviewable and is to be reviewed in five (5) years. -- 10 of 10 --