AJ [2014] QCAT 683

CITATION: AJ [2014] QCAT 683 PARTIES: AJ APPLICATION NUMBER: GAA 3740 – 14 GAA 6211 – 14 GAA 6802 – 14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 30 July 2014 and 22 October 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 22 October 2014 DELIVERED AT: Cairns ORDERS MADE: GUARDIANSHIP 1. The guardianship order made by the Tribunal on I August 2013 is changed by removing Public Guardian as guardian and appointing TSL, TJA, TCF and CV jointly as guardians for AJ for decisions about the following personal matters: (a) With whom AJ has contact and/or visits; (b) Health care; (c) Provision of services. 2. The guardian is to provide a guardianship plan to the Tribunal six (6) weeks before the next review. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 4. The Tribunal notes the Enduring Power of Attorney for AJ dated 15 March 1999 is overtaken by the making of this appointment and, in accordance with Section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made. -- 1 of 7 -- 2 CATCHWORDS: Appropriateness of proposed Guardians Guardianship and Administration Act 2000 (Qld) ss 12, 14, 15, 31 APPEARANCES: APPLICANT: AJ Adult WD Rights in Action LD Service Provider VC Service Provider TJA Niece TLS Niece TCL Nephew FB QADA advocate FR Carers Queensland AS Public Guardian PL QADA Advocate TK Public Trustee BJ Social Worker CV Sister REASONS FOR DECISION Background [1] Mr AJ is a 59-year-old man diagnosed with an Intellectual Impairment and Bilateral Deafness. He resides with his brother Mr AL in a home on the family property in the Mareeba district. His sister CV resides next door in her own home. AJ receives services from Mareeba District Flexi-Support Association, Meals on Wheels, Blue Care and Rights in Action. [2] The Tribunal appointed the Public Guardian in 2013 because serious allegations were raised about AJ’ accommodation arrangements. Application for Adult Evidence Order [3] WD of Rights in Action had filed an application pursuant to section 106 of the Guardianship and Administration Act for an Adult Evidence Order. [4] The Tribunal pointed out to Ms WD that to be successful she would need to establish that it was necessary to avoid serious harm or injustice to a person or to obtain relevant information. -- 2 of 7 -- 3 [5] PL the QADA Advocate told the Tribunal that AJ has quite good supports. If there were signs of neglect or risk of abuse that would be evident. [6] BJ the Queensland Health Social Worker told of the Tribunal that a referral was made on 26 August 2013 because Rights in Action raised allegations concerning immediate risks to the health and safety of AJ. The Senior Medical Officer Dr M conducted a visit on 29 August 2013 and wrote that there were no immediate concerns. Some issues needed to be followed up. Ms BJ went and saw Dr HC and a referral was made to the Occupational Therapist to conduct an assessment. The Occupational Therapist was of the view that there was not a serious risk of harm. The Occupational Therapist made recommendations, which have been implemented by her family. [7] FB QADA Advocate had spent a number of hours with AJ. He was of the view that AJ was not easily lead and was prepared to express his own opinions. [8] The Tribunal was satisfied that the process outlined by Ms BJ would have disclosed information if there were any serious risk of harm. This was an independent assessment undertaken by Queensland Health. [9] The Tribunal notes that several family members, service providers, and an independent Administrator support AJ. [10] The Tribunal was not satisfied that there was any evidence presented in support of the application that met the threshold in terms of risk of serious harm or injustice. [11] Ms WD conceded that she could not point to evidence that met the threshold. [12] The Tribunal notes that there are a number of ways in which evidence can be presented to the Tribunal. The importance of an open hearing should be only overridden where there is evidence of serious harm or injustice. [13] The Tribunal dismissed the application for an Adult Evidence Order for these reasons. Does AJ have capacity to make his own personal decisions? [14] Dr HC had been AJ’ General Practitioner for the last two years. Dr HC provided a Health Professional Report in which she wrote that AJ’s current medical conditions included an intellectual disability and bilateral deafness. Dr HC was of the view that AJ is able to make informed decisions with simple explanations regarding uncomplicated health, accommodation and lifestyle decisions. Dr CH concluded that AJ needs support with more complex personal decision-making. [15] All the family members and advocates present agreed with Dr HC that AJ needed support around more complex decision-making. -- 3 of 7 -- 4 [16] The Public Guardian’s representative Mr AS was also of the view that AJ needed support around more complex decision-making. [17] The Tribunal was satisfied that AJ could make simple decisions with support but needed assistance with more complex personal matters. [18] The Tribunal finds that AJ has been diagnosed with an intellectual impairment. [19] AJ’s intellectual impairment affects his cognitive functioning in relation to more complex decision-making. Does AJ need a Guardian? [20] The Public Guardian the existing Guardian is of the view that without the appointment of a Guardian AJ's needs will not be adequately met and his interests will not be adequately protected. The Public Guardian has in the Tribunal Briefing Report recommended the appointment of a Guardian for the personal matters of accommodation, service provision and health care matters. [21] Mr SA has since the first hearing attended AJ’s home, met with AJ, and is of the view that an accommodation decision is not necessary. Mr SA’s evidence was that AJ wishes to continue to live in his home. Family had completed renovations and environmental safety issues had been resolved. Mr SA submitted that in the long term it might benefit AJ to move closer to the Mareeba and services. Mr SA was of the view that an accommodation decision may be needed in the future. [22] The Tribunal finds that AJ is well settled in his current accommodation. [23] The tribunal finds that AJ's family have responded positively to concerns that have been raised about safety and suitability of AJ’s accommodation. [24] Mr SA’s evidence was that AJ receives services from Mareeba District Flexi-Support, Blue Care, Meals on Wheels and Rights in Action. AJ support needs are greater than the funded four hours provided by Mareeba District Flexi-Support. The service provider has provided extra- unfunded support. Disability Services have assessed AJ. He has been deemed eligible for four hours funded in home and four hours per week community access support. [25] The Public Guardian, AJ’s family and advocates all saw a need for more funded support hours. [26] The Tribunal is satisfied that there is a clear need for greater hours and accordingly decision-making in relation to service provision. [27] The Tribunal finds that AJ is highly reliant on his family and service providers to allow him to have independence and access to the community. [28] The tribunal finds that AJ would benefit from more funded support hours. [29] Mr SA’s evidence was that AJ has a range of health issues. He is waiting knee surgery. Mareeba District Flexi-Support is assisting AJ to acquire new hearing aids and to manage the pain associated with his knees. Mr -- 4 of 7 -- 5 SA was of the view that health care decisions would be needed in the future. [30] AJ’s family and advocates all agreed with the Public Guardian that there was a need for decisions to be made in relation to AJ’s health care. [31] FR the Carers Queensland Advocate submitted that AJ's family could make health decisions for AJ and would be the least restrictive option. [32] FR submitted that the conflict with the service provider had subsided and that the family could make these decisions and that, this would be the least restrictive option. [33] The Tribunal finds that AJ has a number of current health issues that will need to be managed. [34] The Tribunal finds that AJ has bilateral deafness so that ongoing care in to this aspect of his health will be necessary such as the provision of hearing aids. [35] AJ suffers significant pain from his knees and is awaiting surgery. [36] The Tribunal accepts that AJ’s family are his main supports and that his sister has played a very important role for many years. [37] The Tribunal notes however that there has been significant and ongoing issues pertaining to the lack of maintenance of the dwelling where AJ and his brother reside. The Public Trustee refers to discussions going back to 2012 about the property and maintenance. [38] The Report provided by Rights in Action raised significant concerns about the condition of the property and the health and safety of the residence. [39] The Tribunal notes that the result of the Rights in Action advocating was the referral for an occupational therapy assessment. [40] The Tribunal notes that TB Occupational Therapist made a number of recommendations in relation to the home environment. [41] The Tribunal notes that because of these recommendations the work has been undertaken. Ms TK told of the Tribunal that there was a benefit to a formal appointment of a Guardian. The Public Trustee pays the bills – there needs to be a person with formal decision-making authority to give instructions to the Trustee. [42] The Tribunal is not satisfied in these circumstances where the intervention of an advocate and Queensland Health was necessary to have this work undertaken that informal arrangements would provide the necessary protection for AJ. [43] The Tribunal is of the view that AJ’ rights and interests are best protected by the appointment of a formal decision maker who is required to act in accordance with the General Principles and who has to account the tribunal. [44] AJ’s family raises the need for the appointment of a Guardian for contact. The Tribunal was told that there was a family member AC who has been estranged from AJ who has indicated that he does not want to have contact with AJ. The Tribunal was told that AJ was afraid of this person -- 5 of 7 -- 6 and that the appointment of a Guardian for contact would ensure that AJ’s needs and interests were protected [45] The Tribunal finds that there is a history of AJ working for Mr AC. [46] There have been allegations made that Mr AC financially and physically abused AJ. Who should be AJ’s Guardian? [47] The Tribunal was told that there had been significant improvements in the relationship between the parties since a stakeholders meeting had taken place. [48] Mr SA praised the actions of TJA, which he described as “fantastic”. [49] CV indicated that she would remain around to help her brother. [50] AJ indicated he liked the support he received from Mareeba District Flexi- Support. He was happy with his family's support. [51] Ms BJ told the Tribunal that she had only seen the family acting very responsibly and they had been very active in relation to his medical care. [52] The tribunal notes that some of the parties including Rights in Action support the continuation of the Public Guardian. [53] The issue for the Tribunal is to decide who is the most appropriate between AJ’s family and the Public Guardian. [54] The Tribunal notes that VC in her letter of 19th of May 2014 comments that: “since the appointment of the Public Guardian… there has been little change”. Ms VC notes that the directives of the Public Guardian: “had little impact”. [55] The Tribunal is satisfied that AJ’ family are appropriate to make important personal decisions for AJ. . [56] AJ’s family have developed a good understanding of the issues. They know what is necessary for them to follow the General Principles and act in AJ’s best interests. [57] AJ's family have undertaken to be active in looking after AJ personal affairs. [58] AJ family have seen the benefit that has been provided to AJ through his access to the community. [59] AJ's family are aware of the positive relationships that AJ has with his service providers. [60] The Tribunal notes that his Guardian has because of remoteness needed to work with AJ’s family to make decisions. [61] The Tribunal is also aware of the range of independent supports that exist in AJ's life and the involvement of an independent administrator. [62] There has been a significant improvement in AJ’s life. The Tribunal thanks AJ’s advocates at Rights in Action and Queensland Health and AJ’s family for taking important steps to improve AJ’s quality of life. -- 6 of 7 -- 7 [63] The focus of the Tribunal in any appointment must be the best interests of AJ. [64] The Guardianship order made by the Tribunal on 1 August 2013 is changed by removing the Public Guardian as Guardian and appointing TSL; TJA; TCF; and C jointly as guardians for AJ for decisions about the following matters: With whom AJ has contact, and/or visits; health care and provision of services; [65] This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year. -- 7 of 7 --