PE [2016] QCAT 285 | Case summary

[1] PE lives in Cremorne Queensland with her elderly mother CE and her brother, CTJ.

[2] PE is an insulin dependent diabetic. Her mother and brother applied to the Queensland Civil and Administrative Tribunal by application received on 5 April 2016 to be appointed as PE's guardian.

[3] The principal reason for the application was so that they could make health care decisions for PE.

[4] This application was followed by an application from the Public Trustee, PE's administrators seeking directions. The Public Trustee sought directions such that the Public Trustee might pay legal accounts from a firm of solicitors Macrossan and Amiet Solicitors.[1]

[5] This firm was engaged by CE to prepare the application for guardianship.

[6] Two accounts were issued by Macrossan and Amiet totalling $3,785.95.

[7] The reason for the application was that the accounts were issued in the name of CE and not in the name of the adult, PE.

[8] The Public Trustee are unable to pay accounts in the name of a person other than their client's name.

[9] The applications were heard in Brisbane by teleconference on 8 August 2016.

[10] The application for guardianship is an application under s 12 of the Guardianship and Administration Act 2000 (Qld). This requires the Tribunal to firstly consider PE's capacity for decision-making for personal matters and then to consider whether there is a need to appoint a guardian and if so who should be appointed.

[11] The evidence on the Tribunal's file regarding capacity is that PE has an intellectual disability and schizophrenia. She attended a special school as a youngster and according to her mother, CE developed schizophrenia around the age of 17.

[12] She is unable to manage her diabetes satisfactorily and does not accept necessary medical recommendations and attendances.

[13] She is reported to have poor insight and poor judgment putting her health at serious risk.

[14] The information on the file was provided by Dr Corinna Smith from the Mackay Base Hospital. The applicants agreed with the information provided by Dr Smith.

[15] All adults in Queensland are entitled to the presumption of capacity. That presumption can be rebutted.

[16] The evidence before me is such that the presumption of capacity can be rebutted.

[17] I find therefore that PE does not have capacity to make decisions about her personal matters.

[18] The Tribunal generally appoints guardians under the following circumstances:

where there is no one available to make decisions;

where the decisions that are being made on an informal basis are not in the persons' bests interests;

where there is conflict amongst family members; or

where there is conflict between family and a service provider.

[19] The application identified that three types of personal decisions currently have to be made for the adult, namely health care, provision of services and day-to-day issues, for example the adults diet and dress.

[20] The outcome sought by the applicant clearly refers to concerns regarding decision making for health care. The adult is an insulin independent diabetic and has had a number of her toes removed presumably as a result of poor circulation associated with the diabetes.

[21] The adult is a reluctant patient apparently. In the past both the mother and brother have made decisions for PE including attending medical appointments, obtaining prescriptions and liaising with support services.

[22] The applicants do accept that CE can act as Statutory Health Attorney. The application identified some delay in treatment in February 2016 as the adult was refusing to undergo surgery. The surgeon initially did not take instructions from the mother as the Statutory Health Attorney and requested that a legal guardian be appointed.

[23] However, on further discussions by the Hospital with the Office of the Adult Guardian, the Hospital was willing to act on the instructions of the mother. The application noted that this delayed surgery.

[24] Evidence was given to the Tribunal, by the applicant that BlueCare attend daily to give PE her insulin injection and tablets. They also conduct blood sugar tests and check her toes at that time. She is in receipt of Meals on Wheels to cover seven days per week.

[25] It is apparent that these services have been arranged on an informal basis and there is no issue with them. This is what the Act envisages.

[26] The Powers of Attorney Act 1998 (Qld)[2] also provide a regime in Queensland called the Statutory Health Attorney regime which permits close family and friends to make health care decisions on behalf of an adult with impaired capacity.

[27] I am satisfied that this regime has worked and will work for PE going forward. I am satisfied, therefore, that without an appointment, her needs will be adequately met and her interests will be adequately protected by the Statutory Health Attorney regime should PE be required to undergo further surgery and other intrusive treatment as a result of her diabetes.

[28] Consequently, I will dismiss the application for guardianship.

[29] I will now turn to the application for directions submitted by the Public Trustee. The Public Trustee provided two accounts to the Tribunal from Macrossan and Amiet Solicitors seeking a direction about whether to pay these accounts.

[30] The first account was dated 11 February 2016 in an amount of $1,037.15 including GST. This account provided for $282.36 of that account to be paid for in respect of care and conduct. There were a range of activities, which made up the bill including attendance by the senior solicitor upon the adult at Mackay Base Hospital, discussions with Surgical Unit Registrar regarding capacity. There were a range of emails sent and perused as well as a number of telephone conversations.

[31] The need for a number of these seems questionable to me and I wonder whether instructions were given to attend upon the adult.

[32] The second account in the sum of $2,745.80 which was dated 1 April 2016, included an entry for care and conduct in the amount of $725.35. The care and conduct component of these accounts vary between 26.42 per cent and 27.23 per cent when GST is excluded.

[33] The second account lists a variety of telephone attendances, emails and letters and preparation of documents the latter of which incurred a cost of $1,386.00 including GST.

[34] Upon questioning the applicants advised as follows:

they did not know the hourly cost of the solicitors;

they did not receive a cost agreement from the solicitors;

they have paid the first account and are not seeking reimbursement from the Public Trustee from PE's funds.

[35] The Tribunal is concerned that a simple guardianship application, which is usually made by the applicant themselves without incurring legal costs, would cost almost $4,000.00. It is a simple matter from the perspective that there was no counter application and none would have been envisaged, there is no family conflict, there is no conflict between the family and service providers including health providers. Indeed, the application acknowledges that the Statutory Health Attorney regime is able to operate for PE.

[36] It concerns the Tribunal greatly that in the low cost jurisdiction of QCAT and in particular guardianship that a firm of solicitors would charge this amount of money when on the face of it all that was required was a meeting to get instructions, some action to get a health professional report and thirdly the completion of the application form.

[37] I have therefore decided to adjourn the application for directions as I am not satisfied at this point that it is appropriate for the Public Trustee to pay the fees that have been incurred from PE's funds.

[38] I have directed that the Public Trustee liaise with Macrossan and Amiet Solicitors to further analyse the account and provide a report to the Tribunal within four months. I will further direct that a copy of these reasons be given by the Public Trustee to the solicitors

PE [2016] QCAT 285 (8 August 2016)

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