EAP [2012] QCAT 247

CITATION: EAP [2012] QCAT 247 PARTIES: EAP APPLICATION NUMBER: GAA896-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 31 May 2012 HEARD AT: Maroochydore DECISION OF: Louise McDonald, Member DELIVERED ON: 18 June 2012 DELIVERED AT: Maroochydore ORDERS MADE: The application for the appointment of a guardian for EAP is dismissed. CATCHWORDS: Capacity APPEARANCES and REPRESENTATION (if any): EAP, HM, KA, JA REASONS FOR DECISION [1] An application for the appointment of a guardian and administrator for EAP was received from ED on 3 February 2012. [2] EAP has appointed the Public Trustee of Queensland under an Enduring Power of Attorney for financial matters dated 13 October 2011. During the proceeding of 18 April 2012, the Tribunal found that EAP lacked the capacity for financial decisions but that as she had a valid enduring power of attorney there was no need for the appointment of an administrator. This decision was delivered at hearing on 18 April 2012. [3] The application also sought the appointment of a guardian for EAP proposing the appointment of the Adult Guardian. The applicant was not involved in the hearing. The applicant’s representative at the hearing, MN advised that the nursing facility staff had been unable to contact the adult’s daughter, KA to discuss the application, or the adult’s needs and considered and had formed the view that she was not actively involved in her life. [4] The application suggested that EAP had a severe cognitive impairment and was incapable of determining her lifestyle and accommodation decisions. The applicant was not present at the hearing, but represented by a financial member of staff, MN, who was unable to qualify evidence of EAP’s capacity -- 1 of 3 -- 2 at the date of hearing or whether there had been improvements in her condition or otherwise. [5] EAP indicated at the hearing that she faced critical lifestyle decisions as she was currently accommodated in a facility where she did not want to be, was paying excessive fees for care at a level she did not require, and continued to maintain her own residence. EAP indicated she strongly sought to return to her home and live independently. She was concerned to be exposed to an accommodation charge and bills for which she was unaware she was accumulating; believing medical benefits had being paying for her accommodation at the facility. [6] Dr Michael Hayes, general practitioner provided a health professional report dated 31 January 2012. This report suggested that EAP had a significant cognitive impairment which onset in December 2011. He also noted a diagnosis of depression, and cirrhosis. He noted that the Norspon Patch she was wearing was likely to have a sedating effect but unlikely to be contributing factor to her severe cognitive impairment. He stated that she had a progressive cognitive impairment with no treatable cause, and was capable of simple health and accommodation decisions only. An MMSE Cognitive test returned a 19/30 result on 31 January 2012. Dr Hayes’ report did not respond to the issue of whether she could act on information and understand the consequences relevant to making decisions about personal health and lifestyle and accommodation issues. His report focused on the adult’s financial decision making ability. [7] The medical evidence presented at the time was strongly inconsistent with EAP’s presentation during the hearing. [8] During the hearing EAP presented very lucidly and coherently, and protested strongly that she had been accommodated without her consent and being charged fees she could ill afford. She presented proposals around her future lifestyle which were endorsed as appropriate by her daughter and adult grandson. [9] Oral evidence from her daughter and grandson JA was that EAP had dramatically improved in her condition, and was capable of living independently. [10] The Tribunal was not satisfied that the medical report furnished to the tribunal accurately represented the current state of EAP’s capacity, given these significant improvements noted by the family, and specifically did not comment on personal decision making ability. [11] On 18 April 2012, the Tribunal ordered that the adult undergo further testing of her capacity and provide the report of this to the Tribunal. The guardianship proceeding was adjourned on that basis. [12] The matter was heard on the papers on 31 May 2012. [13] Dr Mark Hayes furnished the Tribunal with a letter dated 11 May 2012 which noted that she had significantly improved in her cognitive function since previous assessments, possibly due to recovery from iron deficiency anaemia. He considered that she had nil cognitive impairment, and had in -- 2 of 3 -- 3 his opinion the capacity to make personal health lifestyle and accommodation decisions. [14] Based on this most recent evidence, together with EAP’s and her family’s representations the Tribunal considers that the presumption of capacity is not rebutted. The application for guardianship is dismissed. -- 3 of 3 --