BF [2013] QCAT 123

CITATION: Re: BF [2013] QCAT 123 PARTIES: BF APPLICATION NUMBER: GAA230-13 / GAA1056-13 / GAA1057-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 7 March 2013 HEARD AT: Brisbane DECISION OF: Julia Casey, Presiding Member DELIVERED ON: 7 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adult Guardian is appointed as guardian for BF for decisions about the following personal matters: a. accommodation; b. health care. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 5 years. 3. The Public Trustee of Queensland is appointed as administrator for BF for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within 6 months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 7. Within 3 months of the date of order the administrator must: a. Search the records of the Registrar of Titles to identify any property registered in the adult’s name. b. Give the Registrar of Titles a notice on their prescribed form and a copy of this decision advising the -- 1 of 11 -- 2 Registrar that any interest in property held by the adult is subject to this order. c. Give to the Tribunal: i. a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and ii. a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within 14 days of such changes: a. give a copy of this order to the Registrar of Titles and b. give a notice to the Registrar about the changes or the adult’s interest in another property. 9. The Tribunal directs the administrator to provide accounts to the Tribunal’s approved examiners, Vincent Chartered Accountants, on the second anniversary of the initial appointment and every five (5) years thereafter. CATCHWORDS: Capacity of adult - need for guardian and administrator –appropriateness of appointees Guardianship and Administration Act 2000 s7, s12, s 14(1)(c), s 15, Schedule 1 APPEARANCES and REPRESENTATION (if any): The following parties attended the hearing: BM applicant and social worker OS applicant and nephew HY solicitor, granted leave to represent OS KM interpreter for OS FJ friend TN representative of the Public Trustee of Queensland REASONS FOR DECISION History of the Application -- 2 of 11 -- 3 [1] BF, (the adult), is a 76 year old woman of Japanese heritage. BF is widowed and receives care within a residential aged care facility on the Gold Coast. [2] On 10 January 2013 the Tribunal received an application from BM, a social worker, seeking the appointment of the Adult Guardian as guardian for the adult. [3] On 14 February 2013 the Tribunal received an application from OS, the adult’s nephew, seeking his appointment as guardian and administrator for the adult. [4] The matters were heard on 7 March 2013. The Legislation [5] The issues for the Tribunal, based upon the legislation, are: a) Does BF have capacity to make personal and/or 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? [6] The Tribunal is required to determine capacity as at the date of hearing in accordance with s 12 of the Guardianship and Administration Act 2000 (GAA Act) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult. [7] BF is presumed to have capacity in accordance with s 7 of the GAA Act and general principle 1 of Schedule 1 under the GAA Act. 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. [8] 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 (c) communicating the decisions in some way. [9] 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 s 12 of the GAA Act. [10] If the Tribunal determines that there is a need for the appointment of a guardian and/or administrator for BF, the Tribunal in deciding who to appoint in those roles, will, in accordance with sub-s 14(1)(c) of the GAA -- 3 of 11 -- 4 Act, have regard to the appropriateness considerations set out in s 15 of the GAA Act. The evidence [11] 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 BF have capacity to make personal and/or financial decisions? [12] The Tribunal had the benefit of two medical reports that are addressed below in chronological order. [13] A report dated 21 November 2012 by Dr Neil Cochrane, a neurosurgeon, provides that the adult underwent neurosurgery on 15 November 2012 for the removal of a subdural haematoma, in the context of dementia. Dr Cochrane stated that BF demonstrated confusion within the hospital setting along with poor insight into risks of leaving hospital after recent neurosurgery. Dr Cochrane opined the adult was unable to make decisions freely and voluntarily and that the adult was unable to make lifestyle/accommodation decisions, financial decisions and complex health decisions. [14] Further medical evidence is contained within a report dated 5 March 2013 by Peter Vincent, a registered nurse at the residential aged care facility in which the adult resides. Mr Vincent stated that the adult has dementia along with mild anxiety and receives 24-hour care in a semi-secure residential environment. He provided that the adult achieved a score of 21 on the Psycho-Geriatric Assessment Scales administered on 27 January 2013. Mr Vincent advised the adult demonstrates short-term memory loss and lacks insight into complex issues and decisions in relation to financial, social and cultural needs. He provided the adult has no financial management skills and is unaware of the significance of major financial decisions. In Mr Vincent’s opinion BF is unable to make decisions freely and voluntarily and, while she is able to make simple health care decisions, she is unable to make simple and complex lifestyle/accommodation decisions and financial decisions. [15] In her evidence to the Tribunal BM concurred with the opinion of Peter Vincent and added that the adult has inconsistently demonstrated some insight into her circumstances – although this has not been sustained. BM advised the Tribunal that although the adult had recently been assessed as eligible to receive high-level dementia-specific care, she is currently managed in a general unit of the residential aged care facility. [16] OS submitted the adult has become disoriented within her semi-secure environment and has been unable to remember his name. OS stated that while the adult is able to express an opinion and has told him she is -- 4 of 11 -- 5 worried about her cash assets, she is unaware of the details of her financial situation, along with the location and value of her cash assets. [17] FJ told the Tribunal she concurs with the medical evidence and added that BF’s anxiety negatively impacts on her ability to trust people, and that the adult no longer understands monetary values. Conclusion [18] The opinions of the Dr Cochrane and Mr Vincent are consistent with the oral evidence provided by BM, OS and FJ. [19] The Tribunal makes findings that BF has significant cognitive deficits associated with dementia in the context of a recent sub-arachnoid haemorrhage and its surgical removal. [20] BF is receiving high-level care in a semi-secure residential aged care facility, having been assessed as eligible to receive high-level dementia- specific residential care. [21] The adult demonstrates disorientation, confusion and poor recall, and has inconsistent insight in her personal circumstances. BF is not aware of her financial circumstances. [22] Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in the GAA Act that BF has capacity for complex personal matters and all financial matters is rebutted. The Tribunal concludes that BF, due to her cognitive deficits, cannot understand the nature and effect of decisions about her complex personal matters and all financial matters, and is unable to make decisions freely and voluntarily about the matters before the Tribunal. Is there a need for a guardian to be appointed? [23] The evidence pertaining to the adult’s personal circumstances follows. [24] BF’s first language was Japanese. She converses in English without requiring assistance from an interpreter. [25] BF moved to Australia approximately 18 years ago. The adult’s husband, a war veteran, passed away in 2004. BF has no family in Australia. [26] BM submitted that prior to her hospitalization the adult was residing alone in her home on the Gold Coast, supported by Church of Christ care staff, who were expressing concern that they were experiencing difficulty meeting the adult’s increasing care requirements. BM further advised that neighbours of the adult also reporting her unsafe behaviours at that time. [27] In the absence of a formal decision-maker for the adult BM, in her role of social worker, liaised with the adult’s treating team to facilitate the adult’s discharge from hospital to her current accommodation as the adult was deemed unable to return to independent living within the community with -- 5 of 11 -- 6 support. The adult entered the facility initially receiving high-level respite care. [28] An accommodation decision is required in order for the adult to be provided with appropriate and permanent care that will be commensurate with her increasing needs. [29] The nature and extent of support services to be provided to the adult will be dependent on the circumstances of the adult’s accommodation. [30] BF has a number of health issues that require treatment and management. As her care requirements are increasingly complex she requires a decision-maker to ensure she receives appropriate medical treatment. The decision-maker may also be called upon to provide or withhold consent to medical intervention in the context of end of life decisions. Conclusion [31] Pursuant to s 12 of the GAA Act the Tribunal is satisfied there is a need for decisions pertaining to accommodation and health care matters. There must be an adequate and effective decision making regime in place for BF as otherwise her needs will not be met and her interests will not be protected. Who is the most appropriate person for appointment as guardian? [32] The options for appointment as the adult’s guardian are OS or the Adult Guardian. [33] In her oral evidence BM stated that although she believed the Adult Guardian was the only option for appointment at the time of her application, she has recently formed the view that the proposed appointment of OS would be ’more personal‘ for the adult. [34] HY submitted OS is ”fully aware‘ of the obligations of a guardian appointed under the GAA Act as she had provided this information to him. [35] OS advised the Tribunal that he travelled to Australia from Japan on a three month visa within days of being advised of the adult’s ill health and present circumstances by staff from the Japanese Consulate. He provided that he must leave Australia by mid April 2013. [36] OS submitted that he considers the adult as his own mother, and that she has ’looked after him‘ in his formative years, contributing to the cost of his education and taking him on holidays twice yearly to Hawaii and Hong Kong with her husband. He advised he wanted to ’pay her back‘ by being appointed her decision-maker and that as a family member he is obliged to ’protect family’. [37] OS stated he had last seen the adult 17 years ago when he travelled to Australia on his honeymoon, and that he suggested to the adult, upon the -- 6 of 11 -- 7 death of her husband in 2004, that she return to Japan. He stated he had attempted to write the adult a letter in early 2012 but it was returned to him. He provided his father and paternal aunt had regular telephone contact with the adult over the many years the adult has domiciled in Australia. These statements were confirmed by FJ who told the Tribunal that BF considered OS’s father ’the light of her life‘ and that the adult would talk to her sister ’at great length‘. [38] The Tribunal observes the entirety of the OS’s submissions were in the context that he would repatriate the adult to Japan should he be appointed guardian. He stated he is concerned the adult is in Australia by herself and if appointed he would return to Japan to source facilities that provide 24- hour care and ’will accept dementia patients‘ and then re-enter Australia to escort the adult to Japan. [39] OS submitted he had not made enquiries with medical or nursing staff in relation to the adult’s health diagnoses, prognosis, care requirements, treatments (including medication) and service provision despite visiting the adult on a regular basis within the care facility, since his arrival in Australia. OS has not made enquiries to medical and nursing staff to determine if the adult is medically fit to travel to Japan and, if so, the relevant care requirements for the journey. [40] In deciding if someone is appropriate for appointment as a guardian or administrator for the adult the Tribunal must consider the appropriateness considerations provided in s 15 of the GAA Act. [41] Section 15(1)(a) and (b) provide the Tribunal must consider the likelihood of proposed appointees applying the general principles and the health care principle, respectively. [42] General Principle 7(4) contained within Schedule 1 of the GAA Act provides the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to determine what the adult’s views and wishes would be, a person or entity in performing a function or exercising a power under the Act must take into account what the adult or other entity considers would be the adult’s views and wishes. [43] The Tribunal observes that the adult has resided in Australia for more than 17 years and that even though she became widowed in 2004 and maintained regular telephone contact with her brother and sister in Japan, BF chose to remain in Australia. The Tribunal is not satisfied OS would discharge substituted decision-making for the adult as he has provided the purpose of his visit to Australia was to return the adult to Japan. [44] In addition, OS has not demonstrated he would fulfill the requirements of an appointed guardian to effectively consult with doctors and nursing home staff and to apply the general principles and the health care principle, as he has failed to liaise with the relevant professionals to ascertain the details of the adult’s medical issues, current care requirements and ability to undertake international travel. -- 7 of 11 -- 8 [45] Section 15(1)(f) provides that consideration must be given to the availability and accessibility of the proposed appointees to the adult. The Tribunal is not satisfied OS would be available and accessible to the adult as the conditions of his current visa do not permit his visit to Australia to extend beyond mid April 2013. Presently, there are no arrangements in place for OS’s return into Australia. [46] The Tribunal does not consider OS would be able to discharge decision making for BF in a way that was consistent with the legislative requirements, including the general principles and the health care principle. The Tribunal is therefore not satisfied OS is an appropriate appointee in relation to s 15 of the GAA Act. [47] Section 14(2) of the GAA Act provides that the Tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. [48] The Adult Guardian is an independent decision maker with extensive skills and experience. The Tribunal is of the view that the Adult Guardian would be able to effectively liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. Conclusion [49] The Tribunal is satisfied the Adult Guardian is the appropriate appointee and appoints the Adult Guardian as guardian for BF to make decisions about the following matters: accommodation and health care. [50] Unless the Tribunal orders otherwise, this appointment remains current for five years. Is there a need for an administrator to be appointed? [51] In her oral evidence BM provided the information in relation to the adult’s financial circumstances. [52] BF’s assets include a residential property near Surfers Paradise valued at approximately two million dollars. In addition, it is estimated the adult has cash assets of approximately six million dollars. Other assets include house contents, a vehicle and personal items. [53] The adult’s income is substantial due to the nature of her investments. [54] BF also receives a war widows’ pension from the Department of Veterans’ Affairs (DVA). While the adult holds a DVA Gold Card the Department does not presently contribute to the cost of her nursing care. [55] BF’s expenses consist of accommodation fees that are inclusive of a monthly fee in lieu of an accommodation bond, along with medical and living expenses, financial advisor/accountant fees, and outgoings on the Gold Coast property. -- 8 of 11 -- 9 [56] There are no liabilities. [57] A residential agreement may require authorization as a result of the guardian’s decision in relation to where the adult will reside. At that time an accommodation bond may charged. (For example, the bond charged to high care residents at the adult’s current accommodation facility is in excess of $300 000). Conclusion [58] BF has income, assets and expenditure that require management. [59] A residential agreement may require authorization as a result of the guardian’s decisions. [60] Pursuant to s 12 of the GAA Act the Tribunal is satisfied there is a need for decisions in relation to financial matters. There must be an adequate and effective decision making regime in place for BF as otherwise the adult’s needs will not be met and her interests will not be protected. Who is the most appropriate person for appointment as administrator? [61] Section 7(g) of the GAA Act recognizes that the Public Trustee of Queensland is available as a possible administrator for an adult with impaired capacity. [62] Consequently, the options for appointment as the adult’s administrator are OS or the Public Trustee of Queensland. [63] The Tribunal must consider the appropriateness considerations provided in s 15 of the GAA Act when deciding if a person is appropriate for appointment. [64] HY submitted OS is ’fully aware‘ of the obligations of an administrator appointed under the GAA Act as she had provided this information to him. [65] OS submitted that without formal authorization he had been unsuccessful in obtaining information from the adult’s accountancy firm in relation to the nature and extent of the adult’s assets. [66] He further submitted that while he manages his own finances he has no experience in managing complex and substantial assets comparable to those of the adult and that, if appointed, he would consult with accountants, financial advisors and lawyers in order to manage the adult’s financial matters in her best interests. [67] OS confirmed his belief that it was his role as a family member ’to protect the family‘ and repeated his intentions to return to Japan as he does not have permanent residency in Australia. [68] The representative of the Public Trustee of Queensland advised the Tribunal that, if appointed, the Public Trustee of Queensland would source -- 9 of 11 -- 10 advice from accountants, financial planners and lawyers to ensure the protection and management of adult’s finances and consult with all stakeholders, (including the adult, family and friends) in order to make decisions that protect the adult’s assets, limit her exposure to risk and maximize her income potential. The representative further advised that the financial advice would include consideration in relation to the sale or retention of the adult’s real property. [69] The representative submitted that, if appointed, the Public Trustee of Queensland would pay an accommodation bond as a matter of priority, subject to the decision of a guardian for accommodation matters, as the adult is currently incurring higher fees and charges in lieu of the payment of a bond. [70] BM acknowledged OS’s inexperience with managing significant assets and opined that OS could manage the adult’s finances if he were afforded the ’right advisors‘. [71] FJ, in support of OS’s application, told the Tribunal that the adult would not want ’someone else taking over her affairs’. [72] With regard to the appropriateness provisions of s 15 of the GAA Act, the Tribunal is not satisfied OS would be available and accessible to the adult as his visa conditions stipulate his return to Japan no later than mid April 2013. [73] Furthermore when BF had the capacity to do so she would have made a multitude of simple and complex financial decisions. She would have considered the nature of her decisions, along with the consequences of her decisions, or a lack of a decision, in relation to her simple and complex financial matters. The Tribunal is not satisfied OS would be able to discharge substitute decision-making on behalf of the adult as he is inexperienced in managing financial matters of this value and complexity, and he has had minimal contact with the adult for the past 17 years and therefore has minimal knowledge of the extensive financial decisions the adult would have made when she had the capacity to do so. [74] The Tribunal is not satisfied OS be able to perform functions and exercise power as administrator for BF under the GAA Act in a way that would be consistent with the legislative requirements, including the general principles. [75] The Tribunal determines that OS is not appropriate for appointment as administrator for BF with regard to the provisions of s 15 of the GAA Act. [76] The Public Trustee of Queensland is an independent, skilful and experienced administrator. Conclusion -- 10 of 11 -- 11 [77] The Tribunal determines, pursuant to s 15 of the GAA Act, 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. [78] This appointment remains current until further order of the Tribunal. -- 11 of 11 --