FPC [2012] QCAT 689

CITATION: FPC [2012] QCAT 689 PARTIES: FPC APPLICATION NUMBER: GAA8132-12 / GAA8133-12 / GAA9862- 12 / GAA9863-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 December 2012 HEARD AT: Brisbane DECISION OF: Professor A Ashman, Member Jim Allen, Member DELIVERED ON: 21 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The appointment of the Adult Guardian as guardian for FPC for all personal matters is continued. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 3. The appointment of the Public Trustee of Queensland as administrator for FPC is continued. 4. The financial management plan dated 22 November 2012 is approved. 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. CATCHWORDS : Appointment of a guardian; appointment of an administrator Guardianship and Administration Act 2000, s 31 APPEARANCES and REPRESENTATION (if any): -- 1 of 6 -- 2 2 FPC’s Mother FPC’s Father Representative of the Endeavour Foundation KA representing the Adult Guardian GJ representing the Public Trustee of Queensland GL representing the Public Trustee of Queensland REASONS FOR DECISION [1] FPC is 19 years old and lives with two other residents in a house supported by the Endeavour Foundation. One of the co-residents is FPC’s younger brother who will turn eighteen years of age in January 2013. [2] FPC’s parents have had a long and difficult relationship with government and non-government agencies over the care of their four children. In December 2011, the Adult Guardian and the Public Trustee of Queensland were appointed as guardian and administrator respectively for FPC for one year. On 20 September 2012 the Tribunal initiated periodic reviews of these appointments and shortly thereafter FPC’s mother lodged applications at the Tribunal seeking her appointment as guardian and administrator for daughter, FPC. [3] Under s 31 of the Guardianship and Administration Act 2000, the Tribunal is to consider the review of appointments as though they were coming before the Tribunal for the first time. The Tribunal is to revoke an order unless it would make an order upon review, and if there are existing appointees, the Tribunal can only change an appointee if the appointee has acted incompetently or there is a more appropriate appointee available to fulfil the role of guardian and/or administrator. [4] In considering the review of the appointments and the new applications, the Tribunal first considered whether FPC has the capacity to make decisions for herself in personal and financial matters. Does FPC have decision-making capacity for personal and financial matters? [5] The Tribunal reviewed three health professional reports provided in 2011, there being no other medical reports concerning FPC’s decision-making capacity available since November 2011. General practitioner, Dr SA, wrote on 12 October 2011 that FPC had a diagnosis of congenital intellectual disability with limited ability to choose between two options. He stated that FPC could only make simple lifestyle, accommodation, and financial decisions. [6] Dr VJ provided a report dated 19 October 2011. He indicated that FPC had a diagnosis of autism and stated that she had no ability to understand decision-making processes. He stated that FPC was able to make simple health decisions only. -- 2 of 6 -- 3 3 [7] Finally on 13 November 2011, paediatrician Dr WT confirmed the diagnosis of autism stating that FPC was fully dependent upon others and able to make only simple health, lifestyle, and accommodation decisions. [8] Those attending the hearing were invited to comment on these reports. There was consensus that FPC was dependent on others and required considerable decision-making support. [9] The Tribunal finds that FPC’s decision-making capacity is limited by autism and the presumption of capacity for personal and financial matters contained in the Guardianship and Administration Act 2000 is rebutted. [10] The Tribunal, therefore, proceeded to consider the need for the appointment of a guardian and an administrator. Is there a need for the appointment of a guardian and if so, who? [11] The representative of the Adult Guardian was invited to report on the Adult Guardian’s involvement in FPC’s life since its appointment. The representative stated that there had been considerable disagreements and serious conflict between various stakeholders in FPC’s life. These conflicts were generally between FPC’s parents and other stakeholders. The extent of these disagreements had ultimately led to the termination of carer support by a disability services provider, a role that was subsequently accepted by the Endeavour Foundation. [12] The Adult Guardian’s representative outlined various contact and service delivery decisions made since its appointment. She stated that in the future, decisions will be needed in many areas of FPC’s life including accommodation, service delivery, health, contact, and education and training. [13] Consideration currently is being given to a change in residence, specifically when FPC’s brother turns 18 years in early 2013. FPC’s mother has proposed that FPC lives with her in a flat not far from the family home, where the father and two adult children presently reside. Approval has been received through Disability Services for funding to support an accommodation change, although what has been anticipated is a co- tenancy arrangement with another disability client. If FPC and her mother took up shared accommodation it would be necessary to seek a reassessment of funding support. [14] The representative of the Endeavour Foundation stated that FPC generally is settled in her current accommodation and interacts in appropriate ways with the other two residents, although occasional tensions arise between FPC and her co-resident sibling. When asked to comment on any proposed change in accommodation, FPC’s father supported the move from the current Endeavour Foundation residence to a flat with the mother. -- 3 of 6 -- 4 4 [15] There was consensus among parties attending the hearing that FPC’s needs in personal matters were significant and spanned all aspects of her life including health care, contact and visits with others, the need for additional community support and services, accommodation, and for the consideration of future education and training. The Tribunal was satisfied that these needs require the appointment of a decision-maker to ensure that any negotiations undertaken and decisions made in regard to FPC’s personal life are in her best interest. [16] As FPC’s mother nominated herself to fill the role of guardian, the Tribunal spoke to her at length, seeking her understanding of the role of guardian. She spoke generally about FPC’s needs, the importance of education, and the development of independent living skills. FPC’s mother could not, however, provide any details or explain how she would go about performing the duties of a guardian. She hesitated when asked questions and took advice from her husband who could be heard speaking to her from the background. [17] The nature of the mother’s explanations was along the lines of the following quotes: The role of the guardian is “to make sure things happen”; to ensure that “FPC can move forward” and “excel”; and the guardian has “responsibility for everything.” [18] FPC’s mother was not able to distinguish the roles of parent/carer from the role of decision-maker as a guardian appointed by the Tribunal. [19] On the basis of the interactions that the Tribunal had with the mother, it is not convinced that she could act independently as FPC’s guardian, especially if her decisions were in conflict with FPC’s interests and/or other stakeholders’ views. [20] The Tribunal finds that the Adult Guardian has not acted incompetently in performing its decision-making duties since its appointment in December 2011 and, due to her inability to assert an understanding of the role and responsibilities of a guardian, finds that FPC’s mother is not more appropriate than the Adult Guardian as guardian for FPC. [21] The Tribunal, therefore, continues the appointment of the Adult Guardian as plenary guardian for FPC. [22] The Tribunal is mindful that FPC is a young woman whose circumstances are likely to change significantly over the forthcoming few years. The Tribunal wishes to undertake a review of the appointment of guardian within a relatively short period and will appoint the Adult Guardian until further order of the Tribunal but this appointment will be reviewed in two years. Is there a need for the appointment of an administrator and if so, who? -- 4 of 6 -- 5 5 [23] The representative of the Public Trustee of Queensland outlined the actions taken by the Public Trustee since appointment. Considerable effort has been devoted to securing a back payment from Centrelink following FPC’s transition from the relevant youth allowance scheme to a Disability Support Pension when she reached 16 years of age. It is unclear why the appropriate payments were not forthcoming although Centrelink indicated that the necessary application was not submitted within a critical timeframe by FPC’s guardian(s) at the time. The representative indicated that the Public Trustee would continue negotiations with Centrelink should the appointment be continued. [24] The Public Trustee’s representative reported that FPC receives a Disability Support Pension plus a mobility allowance. She is in a secure financial position for a person of her age with a significant sum being managed by the Public Trustee of Queensland. The representative indicated that FPC’s financial situation would need to be re-evaluated if there was a change in accommodation. Overall, the financial situation is uncomplicated with the single exception of current negotiations with Centrelink. [25] As FPC’s mother’s application sought her appointment as administrator, the Tribunal spoke to her about the way in which she would manage FPC’s financial affairs. The mother responded in much the same way as she did during the conversation about her role and responsibilities as guardian. When asked what she would do if the Public Trustee ceased as FPC’s administrator and she was appointed in its place, she stated that she would “do something similar—putting it toward term investment and accommodation.” She noted, “It’s doing well.” [26] When asked why she would be more appropriate than the Public Trustee as administrator, she states that it would cut out the middle man, she would be more reliable, hands on, and would not dip into her [FPC’s] situation. [27] In response to the Tribunal’s questions, FPC’s mother was vague in her answers and did not appear to have any clear ideas about how she might manage FPC’s finances into the future. She again took advice from her husband who prompted her answers from the background. [28] The Tribunal is not convinced that FPC’s mother could act knowledgeably and independently as FPC’s administrator. [29] The Tribunal is satisfied that the Public Trustee of Queensland has acted appropriately and competently since its appointment in December 2011 and, due to her inability to explain clearly how she would monitor, manage, and invest FPC’s assets and inability to articulate her understanding of the role and responsibilities of an administrator, finds that FPC’s mother is not more appropriate as an administrator for FPC. [30] The Tribunal, therefore, continues the plenary appointment of the Public Trustee of Queensland as administrator for FPC until further order of the Tribunal. -- 5 of 6 -- 6 6 [31] The Tribunal’s orders will contain references to reporting requirements. -- 6 of 6 --