DRR [2014] QCAT 352

CITATION: DRR [2014] QCAT 352 PARTIES: DRR APPLICATION NUMBER: GAA2101-14; GAA2102-14; GAA3765-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 20 May 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 2 July 2014 DELIVERED AT: Brisbane ORDERS MADE: GUARDIANSHIP 1. The Adult Guardian is appointed as guardian for DRR for decisions about the following personal 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 one (1) year. ADMINISTRATION 3. RA is appointed as administrator for DRR for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal grants a partial exemption to the administrator(s) from the requirement to provide accounts but directs the administrator(s) to provide to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter: (a) Copies of the adult's bank statements/passbooks/term deposits for the past year; -- 1 of 8 -- 2 (b) Copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period; (c) Copy of receipts for any individual items purchased in excess of $500.00; (d) For any shares, investments or superannuation, a copy of all dividend notices or statements received during the year; (e) A list of the adult's current assets and liabilities; (f) A current fortnightly budget of income and expenditure; (g) A signed and witnessed Declaration as to continuing appropriateness for appointment. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. ENDURING POWER OF ATTORNEY 7. The following Enduring Power of Attorney for DRR is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made: (a) The Enduring Power of Attorney dated 29 September 2009 appointing RA as attorney for financial, personal and health matters. CATCHWORDS: DUTIES OF ATTORNEY – APPOINTMENT OF GUARDIAN AND ADMINISTRATOR – with a need for appointments Guardianship and Administration Act 2000, ss 12, 14, 15, 22 APPEARANCES and REPRESENTATION (if any): DRR RA DS BP Adult by telephone Enduring Power of Attorney holder Applicant/Social worker Social worker by telephone -- 2 of 8 -- 3 WK HJ AM SL CJ Social work student Social worker Disability Services Assistant Manager Disability Services Social worker - MIFNG REASONS FOR DECISION Background [1] DRR is a single woman who has lived independently for a number of years before meeting her current carer, RA. DRR and RA struck up a friendship several years ago when they were both in hospital. RA has been living with DRR as her carer and receiving a Carers’ Allowance from Centrelink. DRR has made RA her attorney under an Enduring Power of Attorney dated 29 September 2009. [2] Dr AS an intern on the surgical team that has been treating DRR has provided a Health Professional Report (“the Report”) in which he describes a number of health issues that affect DRR. These include: a diagnosis of Crohn's disease; epilepsy; extensive psychiatric history involving depression, borderline personality disorder and schizophrenia. [3] DRR and RA share the diagnosis of Crohn's disease. This is a type of inflammatory bowel disease that may affect any part of the gastrointestinal tract from mouth to anus. Those who suffer from the disease can experience abdominal pain, diarrhoea, fever and weight loss. A number of people with this illness will require surgery at some point over 10 years of the disease. [4] DS a social worker working for Queensland Health brought the Application because she was of the view that: ‘RA has been using the Cairns Hospital as an emergency respite service when she is not coping… There appears to be a pattern of RA not being able to manage her caring responsibilities and abandoning DRR at the hospital’. DS told the Tribunal that there had been 29 emergency presentations between 2008 and 2013 and that since December 2013 there had only been five weeks when DRR was not in hospital. DS was of the view that the Cairns Hospital was not the most appropriate place for respite and that an appropriate facility needed to be found where DRR could reside. One of the factors that influenced her decision to bring the Application was the prolonged periods when DRR was ready for discharge but could not be discharged because RA who was her designated carer was unable to pick DRR up. This was causing DRR considerable stress. [5] A close bond has developed between DRR and RA over several years and RA has been suspicious of the motives of others trying to become involved in DRR's life. They were both are unhappy about the Application and the material that had been filed in support of the Application. DRR was also disappointed that she could not attend in person. -- 3 of 8 -- 4 The first issue for the Tribunal is whether DRR has capacity to make her own decisions? [6] Dr AS in the Report when talking about DRR's ability to make personal health care decisions at paragraph 5.1 states: ‘DRR is able to complete very basic self-care for herself… however... appears to be impaired so tasks which require more complex functioning are less likely to be able to be completed’. The Doctor makes similar comments about DRR's ability to make lifestyle and accommodation choices and in relation to financial decision-making states at paragraph 5.3: ‘DRR does not carry out any of the financial tasks herself… And it is unlikely that DRR is able to complete these herself’. The basis of the Doctor’s opinion is set out in paragraph 9 of the Report where he states: ‘DRR has a complex medical and psychiatric history which has resulted in serious physical and psychiatric disability-both of these issues may be contributing to impairment of capacity’. [7] DS in her letter of 19 February 2014 accompanying the Application states: Occupational Therapy testing under the Montréal Cognitive Assessment Tool shows a moderate cognitive impairment 17/30 with reasonable executive functioning. The Consultation Liaison Mental Health Team notes that: [DRR's] cognitive impairment is evident and she displays concrete thinking with poor understanding of hypothetical situations. [8] RA told the Tribunal that DRR is capable of making her own decisions if the information is explained to her in a way that she can understand. The concepts need to be broken down for DRR. She acknowledged that DRR's short-term and long-term memory has deteriorated. [9] HJ was of the view that DRR could not make complex decisions. She told the Tribunal that RA had provided a lot of care for DRR but the concern she has is in relation to DRR's ongoing needs. The best place for DRR when she is well is not a hospital ward. She needs appropriate support within the community. [10] AM told the Tribunal that DRR had first come into contact with her service in 2008 in the context of rest and respite. A functional needs assessment was conducted on 29 July 2013. This looked at DRR’s day to day skills rather than looking at her decision-making abilities. The Tribunal notes that AM’s evidence was that there was a need to find appropriate accommodation and services to support DRR because RA has some health issues that need to be dealt with and she will need to undertake rehabilitation so RA will not be able to care for DRR during those times. [11] What was clear to the Tribunal from AM’s evidence was that DRR's complex needs made decision-making about her needs complex. DRR needs someone to help with important decisions about where she lives and the services she receives. This echoes the comments of DS in her letter supporting the Application. -- 4 of 8 -- 5 [12] The Tribunal accepts the evidence of Dr SA who says that DRR was able to make simple decisions but not more complex decisions. This is supported by the evidence of HJ; AM and SD. Even RA accepts that DRR needs help with more complex decisions. The evidence is consistent with the Montréal Cognitive Assessment Tool and the thoughts of the Mental Health Team. [13] The Tribunal makes the following findings: DRR has been assessed under the Montréal Cognitive Assessment Tool as having a moderate cognitive impairment; DRR suffers from a number of health conditions including: epilepsy; depression; and a serious mental illness schizophrenia that could all impact on the DRR's ability to make decisions. The Tribunal is satisfied that the presumption of capacity has been rebutted. What should the Tribunal do with the Enduring Power of Attorney? [14] CJ told the Tribunal that RA had done everything that she could possibly do to support DRR. She has now reached a point where her own health is suffering and she does not have the capacity to care for DRR. This has placed RA in a very difficult position where she has to balance the care which she wishes to extend to DRR with the need to look after her own serious health issues. RA has recognised that she needs to work out where she can get DRR help while she gets her own health sorted out. RA will support DRR by visiting and doing whatever else she can do to help. There is however going to be a period when RA can't play a major role in DRR's life. RA will need to focus on her own health needs. [15] HJ stated that the hospital records show periods when DRR needed medical care. These records also show when DRR's health is good and she could have been discharged if there were suitable arrangements in place to support DRR in the community. The efforts that have been made to provide additional supports and services have been thwarted by RA on the basis that she has been taking responsibility for DRR's care in the community. The point has arrived where DRR would benefit from an independent decision maker to be appointed to help find her suitable accommodation and supports. [16] RA said to the Tribunal that there were times when she did not accept that DRR was well enough to return home. She also acknowledged that there were times when DRR was ready to return but that she wasn't in a position to care for DRR. She accepts that the hospital is not the most appropriate place for DRR to reside when she is well. Whilst she takes a break to prepare for surgery and for a period of rehabilitation after that she will not be able to provide care for DRR and other options will need to be looked at in terms of suitable accommodation. [17] The Tribunal accepts the evidence of CJ that RA has used her best efforts to support DRR over several years. The Tribunal accepts that there is a close and supportive relationship between DRR and RA. The Tribunal accepts that DRR has been heavily dependent on RA for her care and support around health and personal decision-making. The Tribunal -- 5 of 8 -- 6 accepts that DRR's preference is for RA to make personal and health decisions for her. The Tribunal also accepts the evidence of HJ that there is a need for decisions about where DRR lives and the support that she receives. The Tribunal accepts the evidence of HJ that there have been times DRR's health has been good enough for her not to be in hospital but there has been no suitable place for her to be discharged to. [18] The Tribunal believes that given RA's own health issues that there will be a period of time where she needs to focus on her own health. The Tribunal is of the view that in the circumstances it is appropriate to appoint an independent Guardian for 12 months who can consult with DRR; RA and other stakeholders about important personal and health decisions. [19] The Tribunal makes the following findings: DRR is currently in Tully Hospital waiting to be discharged to more appropriate accommodation; DRR's health and psychiatric history means that care needs to be taking to where she lives and the supports that she receives; and there is significant conflict between RA and DRR with some of the stakeholders. [20] The Tribunal also finds: RA is unable to care for DRR whilst she is undergoing her own health treatment. [21] The Tribunal finds that there is a history of RA not accepting the services that have been put forward to help DRR. [22] The Tribunal for these reasons overrides the Enduring Power of Attorney to the extent of these appointments. What personal decisions need to be made for DRR? [23] HJ told the Tribunal that there was a need for decisions around: DRR’s health care; where she lived; and the services that could be used to support her. [24] AM told the Tribunal that DRR needed somewhere to live whilst RA was unable to care for her. This might involve a permanent placement with the help of Disability Services or it might involve a form of respite until RA has the capacity to care for DRR using whatever supports is available in the community. The difficulty with DRR is balancing her needs between disability and medical. [25] RA told the Tribunal that a nursing home placement would be unsuitable for DRR that she needs to be with younger people if she is placed in supported accommodation. [26] DS told the Tribunal that she supported the appointment around: healthcare; accommodation; and service provision. These are the areas she believes that DRR needs to be supported. -- 6 of 8 -- 7 [27] The Tribunal accepts that without an appointment there would be unacceptable risk to DRR and without an appointment her needs will not be adequately protected. [28] The Tribunal accepts that there is a need for appointment around the areas of: healthcare; where DRR lives; and the services that are provided to support her living in the community. [29] The Tribunal makes the following findings: DRR is currently a social patient at Tully Hospital; this is not the most appropriate form of accommodation for DRR; DRR will need to be supported in the community as she is not able to live independently; DRR has complex health needs. Who should be appointed as DRR’s Guardian? [30] RA told the Tribunal that she had spoken with DRR about who should make personal decisions for her. RA felt that she should be involved and acknowledged her own needs would limit her ability to help DRR on the short term. She would still like to be able to advocate for DRR. She does not know after her operation how long it will take for her to recover and whether there will be any limitations on her recovery. Her position is that even if DRR goes into care she still wants to support her in the longer term. [31] The Tribunal finds: there is significant conflict between the applicant, RA and DRR; DRR has complex needs and that have to be addressed; RA has her own health issues that need to be addressed; the Adult Guardian is an independent Guardian who can consult with all interested parties; and the Adult Guardian can support DRR around making important personal decisions. [32] The Tribunal appoints the Adult Guardian for a period of one year in relation to the following matters: healthcare; service provision; and accommodation. Who should manage DRR's finances? [33] SD raised a concern in her Application that DRR was dependent on RA to carry out financial tasks and this placed her in a very vulnerable position where she could be exploited. [34] RA told the Tribunal that she had supported DRR with her own money and that she felt that she could still help DRR by managing her finances. She told the Tribunal that she could be put in place arrangements for DRR’s: rent; telephone and utilities; and other bills to be debited from her pension and for her personal expenditure to be paid into an account which she could access. RA told the Tribunal that she was aware of DRR’s needs and had acted informally making financial decisions for DRR for several years with DRR’s support. She told the Tribunal that DRR's finances were quite simple. She receives a disability support pension; has no savings of note; her needs utilise most of her pension. -- 7 of 8 -- 8 [35] DRR told the Tribunal that she wanted RA to continue to support her by managing her finances. [36] CJ told the Tribunal that she was concerned that if DRR went into a facility it would place a strain on DRR's finances. [37] The Tribunal notes that DRR’s finances are relatively straightforward. Whilst there are concerns about DRR’s vulnerability there is no evidence that DRR has been taken advantage of by RA. The evidence is that over several years RA has made sure that DRR’s needs have been met. The Tribunal in the circumstances is prepared to appoint RA as administrator and require her to account to the Tribunal for her actions in managing DRR’s finances. This will put in place a safeguard to ensure that DRR is not taken advantage of and will protect RA from allegations that she has taken advantage of DRR. The Tribunal agrees with CJ that DRR's placement in supported accommodation may place some strain on her finances. The Tribunal proposes making a short appointment of one year so that it can come back and review the situation in 12 months. [38] The Tribunal makes the following findings: DRR receives a disability support pension which needs to be managed so that bills are paid and her needs are met; RA had managed DRR finances with DRR’s support for several years; DRR continues to want RA to manage their finances. [39] The Tribunal in making a decision has taken into account: DRR’s wishes; and the role of RA acting informally over several years; and the nature of DRR finances. The appointment of an administrator will provide for greater transparency in relation to the management of DRR's finances. This should serve to protect both DRR and RA in relation to the management of DRR's finances. [40] The Tribunal makes the following additional finding in relation to appropriateness: RA is willing to provide more transparency in the management of DRR finances by accounting to the Tribunal. [41] The Tribunal overrides the Enduring Power of Attorney by the making of this appointment. The Tribunal appoints RA as administrator for a period of 12 months. -- 8 of 8 --