DM [2012] QCAT 152

CITATION: DM [2012] QCAT 152 PARTIES: DM APPLICATION NUMBER: GAA10291-11 / GAA10561-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 7 March 2012 HEARD AT: Brisbane DECISION OF: Julia Casey, Presiding Member DELIVERED ON: 7 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal removes WE and appoints the Adult Guardian as guardian for DM for decisions about accommodation, health care, provision of services and with whom the adult has contact and/or visits. 2. The appointment remains current until further order of the Tribunal. 3. The appointment is reviewable and is to be reviewed in two years. 4. The Tribunal appoints The Public Trustee of Queensland as administrator for DM, for all financial matters, until further order of the Tribunal. CATCHWORDS: Capacity of adult – Need for guardian and administrator – Appropriateness of appointees Guardianship and Administration Act 2000 APPEARANCES and REPRESENTATION (if any): DM adult DJ husband of the adult MR case manager of the adult TK representative of the Public Trustee of Queensland (attended the hearing by telephone) REASONS FOR DECISION -- 1 of 10 -- 2 History of the Application [1] DM (the adult) is a 26 year old indigenous woman who resides at Durack. [2] On 11 March 2009 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for the adult for all financial matters until further order of the Tribunal. [3] On 8 March 2010 the Queensland Civil and Administrative Tribunal appointed WE as guardian for the adult for all personal matters for a period of two years. [4] The appointments of the guardian and administrator were reviewed on 14 March 2012 in Brisbane. The issues and legislation [5] The issues for the Tribunal are: (a) Does DM have capacity for personal and financial matters? (b) Is there a need for a guardian? If so, who should be appointed? (c) Is there a need for an administrator? If so, who should be appointed? [6] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult. [7] DM is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult. [8] The Guardianship and Administration Act 2000 defines capacity as follows: “Capacity for a person for a matter, means the person is capable of- (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way”. [9] The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the Guardianship and Administration Act 2000. -- 2 of 10 -- 3 [10] If the Tribunal determines that there is a need for the appointment of a guardian and an administrator for DM, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000. [11] When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of the Guardianship and Administration Act 2000 that 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. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment. The evidence [12] In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are outlined below. Does DM have capacity for personal and financial matters? [13] Results of a psychometric assessment carried out on 3 November 2008 by Ms Alemka Russell, a psychologist, reveal that DM’s scores on Full Scale IQ, Verbal Score and Performance Scores of the WAISS-III fell in the Extremely Low Range of intellectual functioning. The report indicates that in early 1987 DM was involved in a car accident and sustained a closed head injury and that in late 1987 she “was caught in the middle of an argument and on examination she had a small swelling/contusion over the right temporal area”. Ms Russell stated in her report that it cannot be excluded that DM may have suffered some residual neuropsychological deficits and that there is a history of drug usage. Ms Russell’s recommendations, based on the assessment results, were that allowances should be made for DM in consideration of her “low intellectual ability” in the form of chunking information into smaller pieces to facilitate comprehension, and that sequences of more complex instructions should be provided in pictorial format. Ms Russell also recommended operant contingency schedules be incorporated in a behavioural management plan. [14] In her report dated 19 January 2009 Dr Alison Overland, a psychiatrist, stated the adult had been known to the mental health service since 2002 when she had been diagnosed with paranoid schizophrenia. Dr Overland reported that marijuana use causes the adult to become “increasingly psychotic” and that DM was subject to an involuntary treatment order under the Mental Health Act 2000. [15] In her report Dr Overland made reference to the psychometric assessment -- 3 of 10 -- 4 results obtained in November 2008 by Ms Alemka Russell, and stated that the adult has very poor ability to budget, plan expenses, control financial impulses and resist people “taking money off her one way or another”. Dr Overland opined that DM is not capable of making decisions freely and voluntarily, being very vulnerable to influence, and that while DM is able to make simple decisions, she is not able to make complex decisions relating to her personal and financial matters due to her intellectual disability and mental illness. [16] More recent evidence included a report dated 22 December 2011 by Dr Nga Tran, a psychiatrist, who has known the adult for a period of 8 weeks at the time of writing the report. In the report Dr Tran states the adult remains subject to an involuntary treatment order under the Mental Health Act 2000 for treatment of schizophrenia, and that DM has demonstrated reduced insight into her mental illness and the need for medication to treat her mental illness. Dr Tran provided the opinion that the adult takes into account her husband’s opinion and accepts his influence, and that the adult is able to make simple personal health care decisions along with complex lifestyle/accommodation choices and financial decisions. In the report Dr Tran stated that he was not aware of any cognitive assessments that were administered to DM and that he was unable to access any reports from other health professionals in relation to the adult’s capacity. [17] In correspondence to the Tribunal dated 8 February 2012 Dr Tran opined that “while I believe DM has the capacity to make her own decisions regarding lifestyle issues and simple health care issues, I also believe that she is susceptible to undue influence by others”. [18] The Tribunal is of the view that at the time of writing the report Dr Tran was not aware of the results of the adult’s psychometric assessment carried out by Ms Alemka Russell in November 2008, and that consequently Dr Tran was unaware that the adult has the dual diagnoses of intellectual disability and mental illness. [19] DM provided inconsistent evidence to the Tribunal and frequently looked to DJ to answer questions that were directed at her. She submitted she has moved several times in recent years, (e.g. Bamaga, Hopevale, Cooktown, Cairns, Brisbane), predominantly living with family members, including her aunt and her sister, until residing with DJ. The adult advised that she took up residence in Cairns in early 2011 after she and her sister, WE, travelled to Cairns from Bamaga to attend the funeral of a family member. DM submits that WE returned to Bamaga alone using an airline ticket purchased with funds the Public Trustee of Queensland had made available for DM’s return trip to Bamaga. [20] In her evidence to the Tribunal DM submitted that she began a relationship with DJ in March 2011 while residing in Cairns. In August 2011 the couple relocated to Brisbane, where DJ’s family resides. They were married on 9 October 2011 and are now accommodated in a caravan park at Durack. -- 4 of 10 -- 5 [21] DM told the Tribunal she miscarried twins earlier this year. She was unable to provide details as to the gestation period or procedures and treatment to which she consented as a result of the miscarriage. [22] In her oral and written evidence to the Tribunal DM submitted that she is able to look after her own money. [23] DJ concurred with the adult in relation to self-management of her finances, adding that she has sufficient support available to her to do so. He told the Tribunal that he allocates spending money to DM and that she in turn provides him with proof of her purchases in the form of receipts. He submitted that the adult asked him to manage her money within a day, or “a couple of days”, of meeting him. [24] Representatives of the Public Trustee of Queensland, in oral and written evidence, submitted that they held concerns that DM could be vulnerable and exploited if there was no one to assist her in relation to making financial and lifestyle decisions. [25] The administrator provided that initially in the period under review WE was paid $180 per week for payment of the adult’s living and board/rent and for mobile phone expenses, as the adult was residing with WE at that time. Payments were suspended at a later date when the administrator was contacted by an aunt of the adult stating that the adult had been residing in Cairns, and not with WE in Bamaga, for some months. The Public Trustee of Queensland has calculated that WE owes the adult a sum of $2,499.99 (which includes flights, church rallies and the Cairns Show) and has requested that WE repay the money. To date, a response from WE has not been forthcoming. At present, the adult does not wish the administrator to take action to recover the funds. [26] Ms MR, the adult’s case manager, submitted to the Tribunal that the adult remained subject to an involuntary treatment order under the Mental Health Act 2000. MR stated that the adult had not informed the treating team in relation to her pregnancy and miscarriage. Conclusion [27] Having regard to the medical and oral evidence, the Tribunal made the following findings of fact in relation to the capacity of the adult: DM has an intellectual disability and a mental illness. She is subject to an involuntary treatment order under the Mental Health Act 2000. DM is unable to make decisions freely and voluntarily. She is vulnerable to influence and exploitation. She is unable to understand the nature and effect of personal and financial decisions. -- 5 of 10 -- 6 [28] Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in General Principle 1 of the Guardianship and Administration Act 2000 that presumes that DM has capacity for personal and financial matters is rebutted. Is there a need for the appointment of a guardian? [29] DM presently resides with her husband in a caravan park at Durack. The appropriateness of accommodation requires regular monitoring and appraisal to ensure the adult’s needs are met and her interests are protected within this environment. [30] DM receives treatment for her mental illness as an involuntary patient under the Mental Health Act 2000. Treatment is provided by the treating team at Inala Mental Health Service and includes medication, regular reviews by her treating psychiatrist and case management. The recently reported miscarriage of a twin pregnancy highlights the need for ongoing decisions in relation to the adult’s physical health care that include consents to medical procedures and medications, in the context of the continuing requirement for the adult to receive treatment for her mental illness. [31] The adult may be eligible to receive cultural, educational and vocational support services to enrich her life. A decision-maker is needed to source and secure appropriate support services to the adult. [32] In the context of alleged abuse from persons whom she trusted, and her ongoing vulnerability to exploitation, DM requires decisions to be made in relation to the nature and frequency of contact she has with other people. Conclusion [33] Pursuant to section 12 of the Guardianship and Administration Act 2000 the Tribunal is satisfied that there is a need for decisions in relation to DM’s accommodation, health care, the provision of services and with whom DM has contact and/or visits. Furthermore, the Tribunal is not satisfied that without an appointment the adult’s needs will not be adequately met or that her interests will not be adequately protected. [34] The need for the appointment of a guardian for DM has been established. Who should be appointed as guardian? [35] When conducting a review of a guardian the Tribunal must take into account section 31 of the Guardianship and Administration Act 2000 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. [36] The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer -- 6 of 10 -- 7 competent or another person is more appropriate for appointment. [37] The Tribunal has received no response from the adult’s guardian, WE, in relation to this hearing and the matters before the Tribunal. [38] In the period under review the adult’s relationship with WE has deteriorated. The adult alleges the guardian used some of adult’s funds for her own benefit. DM is unwilling to have contact with WE. [39] There is no evidence before this Tribunal that WE has exhibited competence in her role as guardian to date, or that the actions taken by WE have been appropriate and in accordance with the General Principles. [40] At the hearing DJ submitted that he would like to be appointed as the adult’s guardian, in the event that the Tribunal finds that DM lacks capacity for personal decisions. He submitted that as an indigenous man he understands the relevance of indigenous issues in the substituted decision- making process for the adult. [41] The Tribunal observes that since establishing her relationship with DJ the adult has become isolated and estranged from many members of her family, in the context of extreme vulnerability to influence. In his oral and written evidence to this Tribunal DJ has not demonstrated that he understands the complexity of the adult’s personal needs in relation to her mental illness co- existing with her intellectual disability. The Tribunal is not satisfied that DJ is able to make personal decisions on the adult’s behalf, with the benefit of consultation with members of the adult’s treating team, service providers and support network, in order to protect her interests and meet her needs. [42] Furthermore, DJ told the Tribunal that he is concerned about the possibility of contracting cancer, (as many members of his family have developed the disease), and that in recent months he has sustained five heart attacks and has undergone an endoscopic procedure. DJ informed the Tribunal that his ill-health and stress caused him to initiate a separation between the adult and himself in February 2012, and that there have been additional recent occasions when he has wanted to terminate his relationship with the adult due to his ill-health and stress. [43] The Tribunal is of the view that while DJ has appropriate cultural knowledge or experience, he is not appropriate to be appointed as guardian for the adult, in accordance with section 15 of the Guardianship and Administration Act 2000, due to his inability to comprehend the complexity of the adult’s needs, coupled with his continuing ill-health and associated stress which threaten his availability and accessibility to the adult. [44] Section 14(2) of the Guardianship and Administration Act 2000 provides that the Tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. -- 7 of 10 -- 8 Conclusion [45] The Tribunal is satisfied that the Adult Guardian is an independent decision maker with extensive skills and experience. The Adult Guardian is likely to apply the general principles and is an appropriate person to appoint as guardian after taking into consideration the provisions in section 15 of the Act. [46] The Tribunal concluded, pursuant to section 31(4)(a) and (b) of the Guardianship and Administration Act 2000, that based on the evidence before the Tribunal, the Adult Guardian is more appropriate for appointment at this time. [47] The Tribunal removes WE and appoints the Adult Guardian as guardian for DM for decisions about accommodation, health care, provision of services and with whom the adult has contact and/or visits. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years. Is there a need for the appointment of an administrator? [48] The representative of the Public Trustee of Queensland provided details of the adult’s current financial circumstances. [49] DM is in receipt of a Centrelink Disability Support pension. [50] Assets consist of $4,842 in a Public Trustee of Queensland cash account and $4,638 in a term deposit account. The adult has minimal funds in two savings accounts and personal effects of approximately $560. [51] The Public Trustee has been attending to fortnightly payment of accommodation fees and other expenses, including everyday living and travel expenses. The adult’s annual budget has a surplus of $473. [52] There are no liabilities. [53] According to the administrator’s calculations WE owes the adult a sum of $2,499.99 in relation to allegations that WE used the adult’s funds for her own purposes. Conclusion [54] The Tribunal determines, based on the evidence provided, that the adult has assets, income and expenses that require management to ensure that her financial needs are met, and that funds are available for accommodation and living expenses. [55] The Tribunal is satisfied that there is a need for the appointment of an administrator with regard to the provisions of section 12 of the Guardianship and Administration Act 2000. -- 8 of 10 -- 9 Who should be appointed as administrator? [56] The Tribunal must take into account the provisions of section 31 of the Guardianship and Administration Act 2000 in the review of an administrator. [57] At the hearing DJ proposed his own appointment as the adult’s administrator should the Tribunal establish the adult does not have capacity for financial matters. He submitted that he is appropriate, willing and available to act in this role. [58] The representative of the Public Trustee of Queensland submitted that since establishing his relationship with the adult DJ, also known to the Public Trustee of Queensland by another surname, has made requests to the administrator for the adult’s funds to be released for his own benefit. The representative submitted that DJ’s initial contact with the adult’s trust officer was to request the adult contribute to mortgage repayments on a property he purported to own. Despite requests from the administrator, DJ was unable to provide relevant documentation in relation to the property to support his proposal. [59] The representative further provided that DJ has also requested the administrator release the adult’s funds to pay for expenses he jointly incurred with the adult, (e.g. payments for accommodation, travel by rail and medical expenses). The representative stated that DJ’s requests have been inconsistent with budgetary guidelines and constraints. [60] In additional evidence to the Tribunal the representative of the Public Trustee of Queensland provided that when the couple began residing in the caravan park at Durack, monies were transferred into the adult’s account on a fortnightly basis in order to pay for the adult’s rent, groceries and general living expenses. On 16 February 2012 the manager of the caravan park advised the administrator that the adult’s rent was in arrears. In the same week DJ underwent an endoscopic procedure, for which he was required to pay, and the couple advised Centrelink that they had separated (and as such the adult would be eligible for an increase in her pension entitlement). [61] The representative further submitted that a manager from Queensland Rail’s “Tilt Train” service contacted the adult’s trust officer early in 2012 advising that the adult and her husband were unable to pay for food and beverage costs on a journey from Cairns to Brisbane and that he would press charges if the account was not settled. [62] DJ has not provided evidence to this Tribunal that he understands the adult’s financial needs, in the context of her vulnerability due to her mental illness coupled with her intellectual disability, while he has been supporting her in her financial decision-making. The adult has been at risk of losing her accommodation and facing charges as a result of financial decisions supported by DJ. -- 9 of 10 -- 10 [63] Furthermore, DJ’s oral evidence to the Tribunal included that he continues to experience ill-health and associated stress which he believes may cause him to separate again from the adult. [64] The Tribunal is of the view that while DJ has appropriate cultural knowledge or experience, he is not appropriate to be appointed as administrator for the adult, in accordance with section 15 of the Guardianship and Administration Act 2000, due to his inability to comprehend the complexity of the adult’s needs and her vulnerability stemming from her dual diagnoses, in addition to his continuing ill-health and associated stress that jeopardize his availability and accessibility to the adult. [65] In the period under review the Public Trustee of Queensland has been active in securing the adult’s income, managing expenses and liaising with stakeholders. [66] The Tribunal notes the steps taken to date by the independent and experienced administrator have been appropriate, and that the administrator has taken into account the views of the adult. The Public Trustee of Queensland has acted in accordance with the general principles and has exhibited competence in its role as administrator to date. Conclusion [67] The Tribunal is satisfied that the appointment of The Public Trustee of Queensland is appropriate to ensure that the adult’s financial needs are met and her financial interests are protected. [68] The Tribunal concluded, pursuant to section 31(4)(a) and (b) of the Guardianship and Administration Act 2000, that the Public Trustee of Queensland is competent and that, based on the evidence before the Tribunal, no other person is more appropriate for appointment at this time. [69] The Tribunal appoints the Public Trustee of Queensland as administrator for DM, for all financial matters, until further order of the Tribunal. -- 10 of 10 --