CSY [2011] QCAT 660

CITATION: CSY [2011] QCAT 660 PARTIES: CSY APPLICATION NUMBER: GAA2283-11 / GAA2284-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 30 November 2011 HEARD AT: Brisbane DECISION OF: Professor A Ashman, Member Julie Ford, Member DELIVERED ON: 30 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a review of the appointment of a guardian for CSY is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. 2. The application for a review of the appointment of an administrator for CSY is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: Review of the appointment of a guardian – Review of the appointment of an administrator Guardianship and Administration Act 2000, ss 31, 33, 34, Part 2 APPEARANCES and REPRESENTATION (if any): CYK, wife CC, son TK, friend TV, friend EA, Director of Nursing and General Manager, Nursing Home Mark Vickers, representing the Public Trustee of Queensland -- 1 of 5 -- 2 PD, representing the Public Trustee of Queensland CA, representing the Adult Guardian LS, interpreter REASONS FOR DECISION [1] CSY experienced a major cardiovascular accident in 2007 and spent time as an inpatient before returning to the family home where he lived with his wife and son. In August 2010 following a short stay in an interim care facility he took up full-time residence in an aged care facility. In September 2010, the Adult Guardian was appointed as CSY’s guardian for decisions relating to accommodation, contact, health, and services. The period of the appointment was five years with the exception of contact, which was for one year. In August 2011, a review was held of the guardianship appointment and the contact appointment was changed to three years. The Public Trustee of Queensland has also been appointed as CSY’s administrator, that occurring on 18 December 2010. [2] The present hearing results from applications by CYK who sought a review of both guardianship and administration appointments, proposing herself as appointee for both roles. [3] Under section 31 of the Guardianship and Administration Act 2000, the Tribunal must undertake a review as though the matter was coming to the Tribunal for the first time. This necessitates consideration of CSY’s ability to make decisions for himself in personal and financial matters. The Tribunal can only make appointment if it considers that he is unable to make such decisions. Can CSY make decisions for himself in personal and financial matters? [4] The Tribunal considered two health professional reports. The first was prepared on 12 November 2009. The doctor had known CSY for about 18 months at that time and confirmed the cerebrovascular accident in 2007. He gave the opinion that CSY could make simple decisions in personal and financial matters only. The second report was prepared by EA, the Director of Nursing at CSY’s current residence. Her written evidence supported the doctor’s and added that CSY has a cognitive impairment, dementia, and no decision-making capacity at all. [5] EA also gave evidence orally by phone. She reported that CSY’s cognitive and physical state has deteriorated since his admission due to frequent transient ischemic attacks and that a swallowing problem has been increasing in severity over several months. [6] Participants attending the hearing agreed that CSY is unable to make decisions for himself at this time due to his cognitive impairment and communication difficulties. It appears that CSY cannot communicate with others. CC stated the view that his father could communicate but agreed that his decision-making capacity would not permit him to make complex decisions. -- 2 of 5 -- 3 [7] The Tribunal is satisfied by the evidence provided that CSY has diminished decision-making capacity and finds that the presumption of capacity contained in the Guardianship and Administration Act 2000 is rebutted. [8] The Tribunal then turned its attention to the application for a review of the guardianship and administration appointments. Does CSY have a need for a guardian? [9] EA spoke at some length about the tensions that have existed between the aged care facility staff and CYK and her son. She stated that CYK and her son have caused serious disruptions at the facility in recent months, one of these leading to attendance by police officers. [10] CA spoke to his guardianship report dated 11 August 2011 and provided a history of the Adult Guardian’s involvement with CSY’s family. He catalogued a series of events that were of concern specifically the failure of CYK and CC to care adequately for CSY at home. He also verified concerns of the Adult Guardian similar to those raised by EA. [11] CC and CYK (through her interpreter) alleged a number of failures in care on the part of the nursing staff. These included failure to provide appropriate nutrition, community access, adequate visiting opportunities for family members, and insults to the mother and son. These were all vigorously denied by EA. Indeed, she asserted that actions by CC in providing fast food for his father constituted a serious danger due to his father’s inability to feed himself and swallowing difficulties. She stated that visiting by the mother, but more so the son, were limited due to disruptions caused and abusive behaviour by CC directed toward care staff. In recent times these limitations have been lifted. CSY’s brother has a history of visiting but he has not been seen for some time. [12] There remains concern about decisions relating to accommodation (CSY has been removed from the facility and not returned, and it is likely that further attempts might be made to move him to another location), contact (due to the disruptive actions of CYK and CC), health (specifically related to CSY’s nutritional and physical need), and services (associated with proper medical care). Who is the most appropriate guardian? [13] Due to the actions of CYK and her son, concerns were raised by EA and CA about an appointment of CYK as her husband’s guardian. The Tribunal is satisfied that their actions in the past have compromised CSY’s health and welfare. [14] The Tribunal is further satisfied that a productive and collaborative relationship exists between staff of the aged care facility and the Adult Guardian. [15] The Tribunal finds that an appointment of CYK as her husband’s guardian would not be in CSY’s best interest in that she would not apply the general -- 3 of 5 -- 4 principles and health care principles contained in the Act and that there is conflict between his carers and CYK and her son that could potentially place CSY at serious risk. Does CSY have a need for an administrator? [16] VM outlined CSY’s current assets. These included a property jointly owned with CYK, approximately $3,000.00 in a bank account, a small amount in a joint bank account, approximately $600.00 in the Public Trustee’s Cash Account, approximately $4,000.00 in the Public Trustee’s Growth Account, and a Centrelink pension of approximately $700.00 per fortnight. The family home is rented and CSY receives one half of the rental income, which is paid to the Public Trustee. Nursing home fees, house rates, water rates, and insurance are paid by the Public Trustee on CSY’s behalf. [17] VM reported that CYK has been reluctant to engage with the Public Trustee about her husband’s financial affairs. She refuses to contribute to the usual outgoings associated with the rented property. [18] The Public Trustee’s major concern relates to a withdrawal of $45,000.00 by CYK from her husband’s bank account. She has refused to engage with the Public Trustee in regard to the whereabouts of this money or her reasons for the withdrawal. [19] During the hearing, the Tribunal questioned CYK about the reasons for the withdrawal, and the whereabouts of any of that sum that remains. Through her interpreter, she was reluctant to provide any information other than indicating that it was in a bank account. She would not disclose how much, if any, of the amount remains. [20] During the Tribunal’s interaction with CYK over this matter, CC regularly prompted her with answers and attempted to answer on her behalf. The Tribunal instructed him to desist. When he did not, CC was asked to remove himself from the bar table to a seat at the back of the hearing room, which he did. [21] VM reported that the Public Trustee has been in correspondence with the ANZ Bank about recovery of the $45,000.00 as that bank had been notified of the Public Trustee’s appointment as administrator and, despite this, CYK was provided the money via several withdrawals. [22] Given CSY’s limited financial circumstances, CYK’s reluctance to engage with the Public Trustee, and her unwillingness to contribute to the ongoing costs associated with the rental properly, the Tribunal finds that there is a need for the appointment of an administrator. Without such an appointment, CSY faces an unreasonable risk to his financial circumstances and his equity in current assets including the family home. Who is the most appropriate administrator? [23] CYK proposed herself. The Tribunal is not satisfied that she would act in her husband’s interests. She admitted to the withdrawal of the bulk of -- 4 of 5 -- 5 CSY’s assets from his bank account. She has refused to engage with the Public Trustee about the reasons for the withdrawal and to repay that amount. The Tribunal finds that she has not and would not act in her husband’s best interests to secure his assets and use those assets in an appropriate way. [24] The Tribunal finds that an appointment of CYK as her husband’s guardian would not be in CSY’s best interest in that she would not apply the general principles contained in the Act. The decision [25] The Tribunal finds that CYK has not acted in her husband’s interest in regard to continuing proper care subsequent to his acquired brain injury. Her actions, and those of her son, have compromised his health and welfare during the time he has been a resident of a Nursing Home. She has not acted to restrain her son’s behaviour which has led to disruptions at the aged care facility. The Tribunal is concerned that her appointment would put her husband’s health and well-being at serious risk. [26] The Tribunal finds also that CYK has provided no defensible reason for the withdrawal of $45,000.00 from her husband’s bank account. She has failed to protect his assets and to engage with the appointed administrator to ensure that his interests are protected. [27] The Tribunal finds that CYK is not an appropriate appointee as a guardian or an administrator for CSY. [28] CYK’s applications for requested reviews are dismissed. -- 5 of 5 --