DJS [2012] QCAT 576

CITATION: DJS [2012] QCAT 576 PARTIES: DJS APPLICATION NUMBER: GAA8445-12 & GAA8446-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 9 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The appointment of DJK as guardian for DJS for all personal matters is revoked. 2. The appointment of DJK as administrator for DJS for all financial matters is continued. 3. The tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the tribunal two months prior to the anniversary of this appointment and annually thereafter copies of the adult’s bank statements, copy of receipts for any individual items purchased in excess of $500 and a signed and witnessed declaration as to continuing appropriateness for appointment. 4. This appointment remains current until further order of the tribunal. This appointment is reviewable and is to be reviewed in five years. CATCHWORDS: GUARDIANSHIP – where appointments of guardian and administrator are reviewed – where no need for appointment of guardian established – where informal decision making adequate – where least restrictive option adopted -- 1 of 4 -- 2 Guardianship and Administration Act 2000, ss 12, 31 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] DJS sustained an acquired brain injury after a subarachnoid haemorrhage, a form of stoke, in September 2010. According to medical evidence provided to QCAT, DJS has significant cognitive impairment resulting from her stroke. Dr Richard Chambers reported on 1 November 2012 that DJS has severe deficits in memory, mild to moderate language deficits, reduced planning skills, reduced auditory memory comprehension skills, reduced attention and reduced problem solving skills. Dr Chambers expressed the opinion that DJS cannot make complex decisions due to an acquired brain injury associated with her stroke. [2] QCAT had appointed her son, DJK, as her guardian and administrator on 9 November 2010 for a period of two years. A review of those appointments took place today on the basis of written information provided to the tribunal. [3] When conducting a review of an appointment of decision makers appointed under the Guardianship and Administration Act 2000 (the GAA Act), the tribunal must take into account section 31 of the GAA Act which provides that the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. In other words, the tribunal must not merely adopt the position that the appointment criteria had already been satisfied on the occasion when the appointment was first made but must look afresh at the statutory criteria in section 12 of the GAA Act and reach a level of satisfaction that those criteria are currently met at the time of conducting the review if an appointment is to be continued. [4] In this case, before continuing any appointment the tribunal must be satisfied that DJS has impaired decision making capacity for personal and financial matters, that there are decisions that need to be made and that without the formal appointment of a guardian and administrator the decision making needs of DJS cannot be adequately met. [5] I commenced the review with the presumption that DJS can make her own decisions. I considered the evidence provided to the tribunal to see whether that presumption should stand or be set aside. I accepted the evidence from Dr Chambers that DJS has an acquired brain injury resulting in significant cognitive impairment. That evidence was supported by information provided by her family. -- 2 of 4 -- 3 [6] I made findings that DJS has an acquired brain injury, she has a significant cognitive impairment, severe deficits in memory, mild to moderate language deficits, reduced planning skills, reduced auditory memory comprehension skills, reduced attention and reduced problem solving skills. [7] The GAA Act defines decision making capacity for a matter as the ability to understand the nature and effect of decisions about the matter, to make decisions freely and voluntarily about the matter and to communicate the decisions in some way. In the absence of one or more of those abilities, the tribunal then has the basis on which it can conclude that there is some impaired decision making capacity for a matter. [8] Applying that definition to the facts I have found, I am satisfied that DJS, due to her impaired cognitive skills, would not be able to retain and work with information about her personal and financial affairs, she could not appreciate the range of options for action to respond to her decision making needs, particularly about more complex matters, nor could she anticipate all the consequences of those options, choose between them and then persevere in her choice in order to implement her decision and then recall what decision was made and the reasons for reaching that decision at a reasonable time afterwards. I am satisfied that the evidence has rebutted the presumption of capacity. [9] I conclude that DJS cannot understand the nature and effect of decisions about her personal and financial matters. I conclude that DJS has impaired decision making capacity for personal and financial matters. [10] DJS resides with one of her sons and she is settled into that environment. Her care needs are supplied by her son and on occasions by a respite facility. She has a very close and supportive family. DJS has ongoing health care needs but otherwise her personal decision making needs are few. Her son who is her carer and in his absence other members of her close family are able to provide support for all her needs. [11] DJS is likely to be able to make day to day decisions about her lifestyle and activities which have no or very limited consequences. In more complex matters, DJS would need support in reaching a decision. That support can be supplied by her carer or by other members of her family on an informal basis. Those decisions do not need to be made solely by a guardian appointed by the tribunal. Section 9 of the GAA Act authorises decision making for an adult with impaired capacity on an informal basis by members of an adult’s existing support network. A support network can include members of the adult’s family and close friends of the adult. [12] Decisions made informally by members of the support network are valid when there is no guardian appointed by the tribunal to make decisions for an adult about the matter in question. DJS has family members available who can make decisions about personal matters for her on an informal basis. The GAA Act acknowledges the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the -- 3 of 4 -- 4 least possible extent. The least restrictive option for personal decision making is not the continuation of the appointment of a guardian to make all decisions for DJS. The least restrictive option would allow DJS to exercise the right to make her own decisions with informal support from her family at this stage of her life. [13] I was satisfied that the decision making needs of DJS about personal matters can be adequately met by informal decision making support from her family. In those circumstances I would not make an appointment of a guardian for DJS today if a new application for a guardian were to be made to me. Under section 31(2) of the GAA Act, I must revoke the appointment of the guardian for DJS as there is no need for such an appointment at this time. [14] Turning to financial decisions, DJS has regular income from a Comcare pension which appears to be applied almost totally to her living expenses. Her savings are modest and reflect her limited income. [15] I am satisfied that there are ongoing decisions of a financial nature that must be made by DJS. Her income must be maintained and checked for appropriate payment levels, her bills and expenses must be paid on time and in the correct amount, her bank account must be accessed for her support and her savings managed so they are available for both short term and longer term needs. I acknowledge that it is difficult for informal decision making to be effective with financial matters as banks and pension paying entities require a legally authorised person to make decisions on behalf of another adult and will not disclose information for privacy reasons to persons without that clear authority. [16] I am satisfied that DJS’s decision making needs about financial matters can only be adequately met by the continued appointment of an administrator. Under section 31(4) of the GAA Act, once I am satisfied on that point, I should continue the current appointment unless that person is no longer competent or someone else is more appropriate to appoint as DJS’s administrator. DJK has complied with the directions of the tribunal and has provided accounts each year. The accounts have been examined and found to be satisfactory. DJK appears to have competently discharged his role as administrator. No one else has sought to be considered for appointment to that role. [17] I am satisfied that DJK should be continued as the administrator for DJS for all financial matters until further order of the tribunal. The appointment is reviewable in accordance with the GAA Act and is to be reviewed in five years. I grant DJK a partial exemption from lodging annual accounts with the tribunal but he must instead lodge with the tribunal copies of bank statements of DJS, copies of any receipts for purchases in excess of $500, and a signed and witnessed declaration as to his continuing appropriateness for appointment each year. -- 4 of 4 --