FDN [2011] QCAT 325

CITATION: FDN [2011] QCAT 325 PARTIES: FDN APPLICATION NUMBER: GAA1182-10; GAA1183-10; GAA4191-10; GAA4162/11; GAA4163-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 June 2011 HEARD AT: Cairns DECISION OF: L. Clarkson L. Pearce DELIVERED ON: 4 July 2011 DELIVERED AT: Brisbane ORDERS MADE: The Adult Guardian is appointed as guardian for FDN for decisions about accommodation and provision of services. This appointment is reviewable and is to be reviewed in two (2) years. The application for the appointment of a guardian for restrictive practices for FDN is dismissed. The Public Trustee of Queensland is appointed as administrator for FDN for all financial matters. This appointment remains current until further order of the Tribunal. CATCHWORDS: GUARDIANSHIP and ADMINISTRATION - capacity of adult where adult taken out of State – jurisdiction of tribunal where adult lacks capacity to change domicile – appropriateness of family members to be appointed guardian and administrator Sections 12(1), 14(2), 15, 80ZD(1) of the Guardianship and Administration Act 2000. -- 1 of 14 -- APPEARANCES and REPRESENTATION (if any): IM, FG: FDN‟s parents Brent Wismer: Representative, Department of Communities (Child Safety) Kirrily Turner, Deborah Godden: Representatives, the Public Trustee Robert Davie: Representative, Office of the Adult Guardian Virginia Downton: St John‟s Community Care Dr Joh Viljoen: Family Medical Practitioner. REASONS FOR DECISION [1] FDN is a young adult, 18 years of age, who until recently resided with his family in North Queensland. [2] When aged 17 years, FDN was subject to a short term custody child protection order. [3] On 1 June 2010, at the hearing of applications brought by the Department of Communities (Child Safety), the Tribunal appointed the Adult Guardian and The Public Trustee of Queensland as FDN‟s guardian and administrator respectively. At that hearing, the Tribunal also initiated an application for the appointment of a guardian for restrictive practices, and appointed the Adult Guardian as guardian for restrictive practices (general). [4] On 10 May 2011, for reasons outlined in its decision, the Appeal Tribunal set aside the orders made on 1 June 2010, and remitted the matters to the Tribunal for reconsideration. [5] Since the decision of the Appeal Tribunal, FDN‟s father, IM, filed applications seeking his appointment as his son‟s guardian and administrator. [6] Thereafter, IM advised the Tribunal that FDN now resides interstate, and he submitted that in these circumstances, the Tribunal should not hear the applications, or should dismiss all applications. [7] The Tribunal heard all matters on 21 June 2011. Legislation and Issues [8] In relation to the appointments sought, relevant legislation included ss.12, 15, Schedule 4, and 80ZD(1) of the Guardianship and Administration Act 2000. [9] Section 12 outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult. [10] Section 15 outlines “appropriateness considerations” which the Tribunal must consider in deciding whether a person is appropriate for appointment as guardian or administrator. -- 2 of 14 -- [11] Section 80ZD(1) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian for a restrictive practice matter. [12] In light of the legislation, the issues for the Tribunal were these: a) Does FDN have impaired capacity for decisions about relevant matters? (Relevant matters in this case include personal matters and financial matters.) b) If so, is there a need for decisions about relevant matters to the extent that, without an appointment, FDN‟s needs will not be adequately met or his interests will not be adequately protected? c) If so, who is appropriate to be appointed as guardian and/or administrator? d) In relation to the appointment of a guardian for a restrictive practice matter, is the Tribunal satisfied about the matters outlined in s.80ZD(1)(a) to (d)? Those matters raise the following issues: (i) Does FDN have impaired capacity for the matter? [s.80ZD(1)(a)] (ii) Has FDN‟s behaviour previously resulted in harm to himself or others? [s.80ZD(1)(b)] (iii) Is there a need for a decision about the matter? [s.80ZD(1)(c)] (iv) Without an appointment, is FDN‟s behaviour likely to cause harm, and will his interests not be adequately protected? [s.80ZD(1)(d)(i) &(ii)] [13] The definition of “capacity” is outlined in Schedule 4, and includes three elements: a) understanding of the nature and effect of decisions about a matter; b) ability to make decisions freely and voluntarily; c) ability to communicate decisions in some way. [14] In light of IM‟s advice that FDN now resides interstate, and does not intend to return to Queensland, the Tribunal was required to consider whether it had jurisdiction to hear the matters. [15] The starting point for this consideration is the common law presumption that legislation is not intended to have extra territorial effect. See, for example, C v B & Anor [2006] QSC 195. [16] The issue for the Tribunal is whether FDN has or retains a substantial connection with the State of Queensland. In this case, the issue of jurisdiction will be decided by reference to the Tribunal‟s determination of FDN‟s domicile, as that concept is relevant to ascertaining the system of law which governs a person‟s civil status or his legal rights and duties. Evidence pertaining to capacity [17] The application by the Department of Communities (Child Safety) was supported by a Specialist Disability Assessment Report and Recommendations by Disability Services Evolve Behaviour Support -- 3 of 14 -- Service (the Evolve report). It refers to a formal diagnosis (by Dr Tim Warnock, Paediatrician) of Autism Spectrum Disorder, and indicates that FDN has difficulties in adaptive functioning which impact on his ability to independently carry out some tasks of daily living. This includes his ability to communicate effectively and manage his emotions; his ability to develop and maintain social relationships; and his ability to process information and acquire complex knowledge. [18] The Evolve report refers to a further diagnosis of Severe Obsessive Compulsive Disorder which also significantly interferes with FDN‟s capacity to function on a daily basis at home, at school, and in social situations. [19] The Evolve report outlines FDN‟s skills and abilities as follows: a) His communication skills are limited to very limited, and his performance on testing indicated an equivalent to an individual aged about 9 years. b) FDN does not have the capacity to manage his own health, such as purchasing personal care items or calling a doctor when he is unwell. His performance in this area is equivalent to an individual aged about 5 years. c) His money and value skills are very limited. He is not able to identify the correct cost of items when shopping, and buy specific items when requested. He is unable to perform tasks associated with banking or paying bills. FDN‟s performance in this area is equivalent to an individual aged about 5 years. d) Summary: FDN‟s diagnosed medical conditions significantly impact on his ability to adequately care for himself. He requires constant supervision and support to carry activities of daily living and to increase his independent living skills. [20] The Tribunal also received a letter dated 9 June 2011 from Dr Joh Viljoen, the “Family Medical Doctor”. In that letter, Dr Viljoen certifies that FDN is quite capable of looking after his own medication, under supervision. He is happy to be back with his family, and his needs are being adequately met by his parents. There is no need for any restrictive practices as he is now 18 years of age and has done high school to year 12 standard. [21] Dr Viljoen attended part of the hearing, and gave the following evidence to the Tribunal: a) He has not seen FDN for 2 years. b) He has not read the Evolve report. c) He agrees with the diagnosis of autism spectrum disorder, but not with the diagnosis of severe obsessive compulsive disorder – that behaviour, he says, is an integral part of autism. d) His practice is largely that of a general practitioner, but he also practices “street psychiatry” due to the inadequate numbers of psychiatrists in Far North Queensland. -- 4 of 14 -- e) FDN‟s anti-psychotic medication was not appropriate, and in any event, chemical restraint imposed on persons other than sex offenders is a “barbaric” practice. f) FDN has high functioning autism and the skill or understanding level outlined in the Evolve report is not accepted. FDN is “above that”. g) However, even with high functioning, Dr Viljoen stated that FDN has impaired capacity for decisions across a broad range of areas (including decisions about domicile); he can understand issues but needs guidance and support from his family. [22] In written material and in oral evidence, IM submitted that the Tribunal should not rely on the Evolve report because it is, among other things, illegal, misleading and inaccurate throughout. He also stated that the report is heavily biased towards information taken out of context from child safety files, and that the allegations are hearsay, rumour, and slander. IM submitted that the Evolve report should not be admitted as evidence. Apart from these assertions, IM submitted no grounds for the Tribunal to treat the Evolve report as inadmissible. [23] IM gave oral evidence at the hearing. He stated that FDN gets on well with his parents and siblings – like “peas in a pod”. He agreed with Dr Viljoen‟s assessment of FDN‟s decision-making capacity. That is, FDN has areas of high functioning, but has areas where he needs assistance. He can manage activities of daily living without prompting, and the family can assist him with financial matters. [24] IM also stated that he moved FDN away from Queensland due to the ill- treatment the latter had received in that State. IM indicated that his ultimate plan is to reunite the family in Canberra if the parents are successful in removing their children from the custody of the Department of Child Safety in the upcoming child safety hearing. [25] FG agreed with the opinions to the effect that her son needs assistance with a range of decisions. [26] The Adult Guardian representative stated that, in his view, FDN lacks capacity for decisions about all personal matters. The main concern is FDN‟s susceptibility to influence. Officers of the Adult Guardian found on their visits to FDN that he was able to be influenced to reach a particular conclusion. While FDN appears to have high understanding in certain areas, his susceptibility to suggestion and influence impacts on his ability to generate his own options and implement decisions. Ruling on the Evolve Report [27] The Evolve report is comprehensive. It contains some history and opinions which are not disputed by FDN‟s parents. They acknowledge, for example, that their son was subject to a short term custody order. They acknowledge the fact of a history of conflict between the parents and service providers. -- 5 of 14 -- [28] While its overall veracity is challenged by FDN‟s parents, the Evolve report outlines a history of the involvement of the Department of Child Safety which in essence is a matter of record. The Evolve report also contains useful opinions about the functioning level of FDN in certain areas of decision-making. [29] It is also relevant to note that details in the Evolve report of instances of conflict and intimidatory conduct alleged by service providers against IM is supported by evidence from other sources. [30] The Tribunal is not bound by the rules of evidence, or the practices or procedures applying to courts of record, and may inform itself in any way it considers appropriate. [see s.28(3)(b) & (c)] [31] The mere fact that IM challenges the veracity or impartiality of the Evolve report is not, of itself, sufficient justification for it to be rendered inadmissible. [32] The Tribunal ruled that, while there may be issues about the relevance or the weight which should be accorded to certain parts of the Evolve report, the report itself should not be excluded. Discussion of the evidence about capacity [33] FDN has not attended the Tribunal hearings concerning him, and the Tribunal has not had the benefit of speaking with him. The Tribunal therefore can rely only on the oral and written evidence presented. [34] The Evolve report described FDN‟s performance in various areas of decision-making as ranging in scope at the equivalent of an individual aged from 5 to 9 years. If the assessments are accurate, this young man requires a high level of assistance or supervision to manage his activities of daily living and to make decisions in a wide range of personal and financial matters. [35] The evidence of the representative of the Adult Guardian is consistent with the opinions expressed in the Evolve report, with the added concern about FDN‟s ability to make decisions freely and voluntarily. [36] FDN‟s parents and his doctor state that he is high-functioning, has a good understanding in a number of areas, and his skills and decision-making is at a much higher level than indicated in the Evolve report. However, these three parties confirmed that FDN needed assistance with decisions in a broad range of matters. [37] There is therefore some disagreement about the extent of FDN‟s impaired capacity. That disagreement is, however, confined to the extent of impairment, and not to the fact of impairment itself. [38] The evidence of all parties was consistent to the extent that FDN, at this time of his life, lacks the capacity to make decisions in a broad range of areas without support and guidance. -- 6 of 14 -- Does FDN have impaired capacity? [39] The evidence established that FDN needs assistance with decision- making in a broad range of areas. [40] The issue of one‟s domicile is a personal matter of relative complexity. A person must be able to understand that there are different jurisdictions, and be able to appreciate the consequences of choosing one domicile over another. Dr Viljoen‟s opinion is that FDN could not make such a decision without assistance, and that view is supported (by necessary inference) by the Evolve report. [41] In light of the consistent and unchallenged evidence to the effect that FDN needs assistance with decision-making in a broad range of areas, the Tribunal concluded that he has impaired capacity for decisions about relevant matters, and for decisions about the use of restrictive practices. [42] Thus, the presumption of capacity to which all Queensland adults are entitled is rebutted in FDN‟s case in relation to decisions about personal matters (including decisions about his domicile), financial matters, and about the use of restrictive practices. The issue of domicile and Tribunal jurisdiction [43] Dicey (Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R) states the relevant common law rules: a) Every person receives at birth a domicile of origin: b) A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth; c) Every independent person can displace a domicile of origin by acquiring a domicile of choice in another jurisdiction. The person evidences and implements this decision by ceasing to reside in the former jurisdiction, and by taking up residence elsewhere with the intention of doing so permanently or indefinitely. [44] In the present case, if FDN was born in Qld, then that State is his domicile of origin. If he was not, the move of the F/I family (with their children) to Queensland would have had the effect of converting FDN‟s domicile from the place where he was born to that acquired by his parents, namely the State of Queensland. It is considered therefore that at the time of the first Tribunal hearing, FDN was domiciled in Queensland. [45] Thereafter, a person changes his domicile by acquiring a domicile of choice. This event occurs when an adult makes a definite determination to abandon the old domicile, coupled with the intention to take up permanent residence in the new domicile. That entails therefore a person leaving the jurisdiction with the definite intention of permanently or indefinitely residing in another jurisdiction. [46] Of relevance then, is a consideration of whether FDN has the capacity to form the intention necessary to bring about a change of his domicile. -- 7 of 14 -- [47] The general rule is that a person with a decision-making impairment who is regarded as a dependent person for the purpose of the law of domicile cannot acquire a domicile of choice by his own actions, but retains his existing domicile for so long as he has impaired capacity. [Hepburn v Skirving (1861) 9 WR 764] The rationale is that acquisition and abandonment of a domicile of choice require the exercise of will, and a person with impaired capacity may be "unable to exercise any will". [Uruqhart v Butterfield (1887) 37 Ch D 357 at 382] [48] The evidence does not establish that FDN initiated a decision to change his domicile, or that the choice was made of his own volition. In any event, the Tribunal has found that FDN has impaired capacity for decisions about his domicile, and it concluded in the circumstances that any purported decision by FDN about a domicile of choice was inoperative. [49] The Tribunal found therefore that, at the time of the present hearing, FDN was domiciled in Queensland. Accordingly, the Tribunal held that it had jurisdiction to hear the applications about FDN, and to make orders accordingly. Need for appointment Restrictive practices [50] Issues relevant to s.80ZD(1) are discussed below. [51] Section 80ZD(1)(a) – The Tribunal has found that FDN has impaired capacity for a restrictive practice matter. [52] Section 80ZD(1)(b) – Evidence presented to the Tribunal was sufficient for the Tribunal to conclude that FDN‟s behaviour has in the past caused harm to himself and others. [53] Section 80ZD(1)(c) – At the time of the first hearing, the Tribunal was satisfied that FDN had been prescribed medication which constituted chemical restraint and which was being administered by a relevant service provider (as that term is defined in s.123B of the Disability Services Act 2006). However, at the time of the rehearing, the evidence established that FDN is no longer residing in supported accommodation and he is no longer being supported by a relevant service provider. He is no longer subjected to restrictive practices governed by the Disability Services Act 2006. There is therefore no need for a decision in relation to such matters. [54] The provisions of s.80ZD(1)(c) are not satisfied, and the application for the appointment of a guardian for restrictive practices must be dismissed. Need for appointment of guardian The evidence [55] FDN‟s parents stated that they see no need for the formal appointment of a guardian, as they can assist or manage all relevant decisions in this regard on an informal basis. However, their submission is that, if the -- 8 of 14 -- Tribunal finds that a guardianship appointment is appropriate, then IM should be so appointed. [56] FDN‟s parents are his statutory health attorneys. No party at the hearing submitted that the statutory health attorney regime (outlined in s.63 of the Powers of Attorney Act 1998) would not be workable. [57] The evidence indicates there is a wide range of personal decisions required for FDN. Dr Viljoen‟s opinion is that FDN should undergo a complete medication review. The Evolve report indicates that he has complex care requirements which may need to be provided in a supported environment. [58] The Adult Guardian‟s representative submitted that the apparent need for decisions by a guardian lies essentially in the areas of accommodation and service provision. [59] The Tribunal is satisfied that there are fairly complex decisions about a range of personal matters which may need to be made for FDN. Further, these are decisions which he cannot make himself, at least without assistance. [60] The issue then is, whether in the absence of a formal appointment, FDN‟s informal support network can make these decisions to the extent that his needs will be adequately met and his interests adequately protected. [61] There is material from a number of sources indicating a history of problems with FDN‟s family members who would normally be regarded as forming part of his informal support network. [62] The Evolve report states that the interpersonal relationships within the F/I family have been characterised by closed communication, emotional distancing, hostility, and violence. In particular, the Evolve report refers to an extensive child protection history since 1995. They include 16 Child Protection Notifications and 3 Child Concern Reports involving family violence, excessive discipline, & substance abuse. [63] The Tribunal is not aware how many, if any, of the child safety notifications and reports involved FDN. It is also relevant to note that FDN is now an adult, and no longer subject to matters with which the Department of Child Safety might be concerned. To the extent that the history and description of the “interpersonal relationships” recorded in the Evolve report could not be supported by other evidence, the Tribunal did not rely on the material. [64] In other areas, however, the Evolve Report has a range of sources, including Department of Communities (Child Safety) and (Disability Services), Support Provider - ARC Disability Services, and the court proceedings granting the Child Protection Order. [65] The Adult Guardian‟s report refers to difficulties between the parents (particularly, IM) and support workers in which it is alleged IM engaged in aggressive and intimidatory conduct. The Adult Guardian‟s report is also based on evidence of verbal abuse and threatening behaviour by IM against support staff of another Service Provider – St Johns Community Care. -- 9 of 14 -- [66] The Adult Guardian‟s representative gave evidence of a telephone conversation with IM where a contemporaneous note was made. In that conversation, IM stated in the context of a proposed family visit with FDN: “If anyone from ARC is coming to the visit they will not make it out in one piece.” [67] The Tribunal is unable to determine the reasons for the history of conflict between FDN‟s parents and the respective organisations who have involved with their son. Both „camps‟ essentially allege unreasonable conduct by the other. The Tribunal is also unable to determine whether the conflict has been exacerbated by what it considered to be the somewhat unusual views of Dr Viljoen concerning chemical restraint, which he expressed rather forcefully. [68] The Adult Guardian‟s representative told the Tribunal that, despite the fact that FDN is presently residing interstate, the appointment of the Adult Guardian would ensure some systemic decision-making support would remain in place for him. [69] The Department of Child Safety representative outlined the difficulties arising from the inability of FDN‟s parents to work collaboratively with other support agencies. This inability was stated to be pervasive in its effect, and has alienated all but the most persistent of agencies and those required by legislation to be involved in the lives of the F/I family. Discussion of the evidence about need for an appointment [70] FDN‟s parents acknowledge a history of conflict between them and service providers. The parents allege that the conflict stems from poor service provision, as does Dr Viljoen. (Although, Dr Viljoen‟s opinion in this regard is questionable, given that he has not seen FDN for some time. In any event, to the extent of the fact of conflict, the Evolve report is not challenged.) [71] The submission of the Department of Child Safety is also unchallenged in its recording of a history of conflict. [72] IM denies the allegations of threatening and intimidatory conduct against service providers, and denies the specific threat related by the Adult Guardian‟s representative. Conclusion about need for appointment of guardian [73] The evidence of IM to the effect that he has not engaged in threats and intimidation against service providers is not accepted. The Tribunal accepts the evidence to the contrary from a number of sources (including disinterested parties) that such behaviour has occurred. [74] The Tribunal does not condemn or purport to sit in judgement about the aggressive behaviour of IM. It is difficult to imagine the stress and pressures arising in the circumstances facing this family. -- 10 of 14 -- [75] However, that is not to say that the Tribunal should ignore IM‟s conduct, or the effect that it may have on FDN‟s wellbeing if that conduct occurs in his presence. Nor should the Tribunal overlook such conduct when determining whether FDN‟s informal support network is capable of making relevant decisions in his best interests. [76] The Tribunal does not know whether in the future FDN will require the support of a service provider, and does not know whether it is in his best interests to reside with his family or in supported accommodation. But the Tribunal holds that such decisions must be considered dispassionately and must be made having regard to the best interests of this young man. Given the history of emotion and conflict, the Tribunal is concerned that FDN‟s informal support network will be unable to make decisions in this manner. [77] For these reasons, the Tribunal concluded that, without the formal appointment of a guardian for FDN to make decisions about accommodation and service provision matters, his needs will not be adequately met, or his interests will not be adequately protected. Who should be appointed as guardian? [78] The options for the Tribunal include IM and the Adult Guardian. No other person was proposed for a guardianship appointment. [79] The appropriateness considerations outlined in s.15 include a person‟s appropriateness and competence to exercise powers under an appointment order. [80] Section 14(2) empowers the Tribunal to appoint the Adult Guardian as guardian for an adult only if there is no other appropriate person available for appointment. Conclusion [81] For the same reasons which led the Tribunal to the view that FDN‟s informal support network was not appropriate to make certain decisions for him, the Tribunal finds that, at least in the decision-making areas of accommodation and service provision, the Adult Guardian is the only appropriate appointee available for appointment at this time. Need for appointment as administrator The evidence [82] The Public Trustee representative stated that FDN‟s assets include $5,200 held in the Cash Account, Ergon security deposit of $150, and a bank account with a nominal balance. The Public Trustee holds these funds as a bare trustee, pending further order of the Tribunal. The Public Trustee also receives FDN‟s disability pension from which certain expenses are paid. -- 11 of 14 -- [83] IM stated there was no need for the appointment of an administrator as the family could adequately assist FDN to manage his finances. He also submitted that if the Tribunal felt disposed to appoint an administrator, then he should be appointed as his son‟s administrator. Discussion of the evidence about need for appointment [84] The evidence indicates that FDN has relatively modest assets and income. Nevertheless, there will be a need for ongoing day-to-day decisions about financial matters, such as budgeting and bill paying. [85] Further it is submitted that FDN is vulnerable to influence. The lack of a formal decision-maker for him may result in his exploitation. Conclusion about need for appointment [86] The evidence established that there will be an ongoing need for decisions about financial matters to be made for FDN, and he is unable to attend to these matters himself. [87] Unlike decision-making for personal matters, where the Tribunal encourages the involvement of an adult‟s informal support network to the extent that a formal guardianship appointment may not be necessary, it is often the case in financial dealings that financial institutions and other business organisations require the production of formal authority before the decision of a substitute decision-maker will be recognised and given effect. [88] Further, the absence of an administration appointment, may not properly protect the interests of a vulnerable adult because decisions about financial matters cannot be enforced. In these circumstances, there are no formal restrictions on an adult to deal with his or her finances, and financial exploitation may only be discovered after the event. [89] The appointment of an administrator for a vulnerable adult will also promote accountability and transparency because of the Tribunal‟s overseeing role in relation to such appointees [90] The Tribunal concluded therefore that, on balance, without the appointment of an administrator, FDN‟s interests will not be adequately protected. Who should be appointed as administrator? The evidence [91] The options for the Tribunal included IM and the Public Trustee. [92] The evidence of the Public Trustee representative was to the effect that there is no material on the Public Trustee file to indicate that IM is an inappropriate appointee. [93] At the time of the initial application by the Department of Child Safety (12 February 2010), the applicant expressed concern that FDN had been in -- 12 of 14 -- the Department‟s custody since May 2009, and he had no access to money during this time. It was further alleged that FDN‟s parents were in receipt of his pension, but did not make any moneys available to him. The Department paid him an allowance of $20 each week. [94] The Tribunal was not aware of the funds or pension to which FDN, as a minor, would be entitled. Nevertheless, IM was queried about what funds he made available to his son while he was in the custody of the Department. [95] IM stated that the Department‟s concerns were unfounded. He says the family visited FDN and purchased items for him. IM also stated that on occasions he gave money to his son. [96] IM stated that the amounts of money involved were relatively small. And the Tribunal was not concerned with this action of itself. It is, however, in the Tribunal‟s view, reflective of the extent to which IM‟s lack of objectivity may influence his decision-making process. [97] The Department of Child Safety representative outlined his concern with payment of the fees of any service provider in the event that IM controlled his son‟s funds. This is based on the history of the inability of the family to work with service providers. Discussion of the evidence about who should be appointed [98] IM proposed himself for appointed. His appointment is supported by his spouse, and by necessary inference, Dr Viljoen. [99] On the issue of funds paid to FDN by his parents while he was in the custody of the Department of Child Safety, the Tribunal found the evidence of IM to be unconvincing, and unsatisfactory in any event. That is because, on the best interpretation of FDN‟s capacity, he cannot make financial decisions without assistance, and thus is vulnerable. Despite any conflict with the service providers, it would likely have been in the best interests of FDN for IM to hand money to the custodians to be used for his son‟s benefit. [100]The representative of the Department of Child Safety opposed the appointment of IM, and the Tribunal found that the Department‟s concerns in relation to the payment of fees of a service provider were not unreasonable. That is because an administrator could render ineffective the decision of a guardian about the engagement of a service provider by simply refusing to pay relevant fees. Conclusion [101]Whether by way of informal support or by way of a guardianship appointment, the Tribunal found that FDN‟s parents will be unable to properly support their son in relation to some personal decisions which will likely arise in the future. -- 13 of 14 -- [102]This finding does not of itself reflect a view that FDN‟s parents have not properly cared for him, or that they are not concerned for his wellbeing, or that they are not motivated to act in what they perceive is their son‟s best interests. [103]The finding is more an acknowledgement of the conflicted situation in which IM finds himself. It arises from a genuine concern held by the Tribunal that the appointment of IM as his son‟s guardian would likely result in the decision-making process being affected by his emotion, historical conflict, perceptions and personal prejudices. [104]For similar reasons, the Tribunal found that IM was not appropriate for appointment as his son‟s administrator, and that the appointment of the Public Trustee was appropriate at this time. Notations about criminal history [105]IM‟s statutory declaration as to his eligibility for appointment indicated that he did not have a criminal history, and he reiterated this in response to direct questioning at the hearing. [106]The Tribunal reserved its decision at the hearing, and made its decision later in the afternoon of 21 June 2011. [107]Subsequently, on 27 June 2011 (that is, after the decision was reached but before the reasons therefore were delivered) the Tribunal was advised that IM did in fact have a criminal history. The offences outlined in the search result are not, of themselves, of a nature which would necessarily suggest that he should be disqualified for an appointment. [108]Nevertheless, the fact of a criminal history is a relevant factor for the Tribunal, and is outlined in the “appropriate considerations” at s.15(4) of the Guardianship and Administration Act 2000. Indeed, s.16(1)(c) places an obligation on a proposed appointee to advise the Tribunal of this fact. It is ordinarily Tribunal procedure to discuss the circumstances of a person‟s criminal history so that the Tribunal may be placed in a position to make an informed determination about that person‟s appropriateness for appointment. [109]In this case, for obvious reasons the Tribunal was unable to do so at the hearing. The Tribunal concluded that it should not do so now. That is because: the search result was received after the Tribunal reached its decision; the fact of whether or not a person had a criminal history was not relevant to the Tribunal‟s decision; and had no bearing on its deliberations. Orders were made accordingly. -- 14 of 14 --