TBM [2019] QCAT 404 (13 December 2019)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

SL - delegate of the Office of the Public Guardian (attended the hearing by telephone)

CF - representative of the Public Trustee of Queensland

[1] TBM is 55 years old. He is in receipt of services through the National Disability Insurance Scheme (NDIS) for accommodation and community access support.

[2] On 18 September 2019, the Tribunal received an application from WN, a care leader within the non-government organisation (NGO) providing NDIS services to the adult. The applicant was seeking an interim order appointing a guardian and administrator for the adult.

[3] The Tribunal granted an interim order on 18 September 2019, appointing the Public Guardian as guardian for the adult for the following personal matters only:

• (a) Accommodation decisions;

• (b) With whom TBM has contact and/or visits;

• (c) Health care of TBM;

• (d) Provision of services, including in relation to the NDIS; and

• (e) Legal matters not relating to TBM's financial or property matters.

[4] On the same day, the Tribunal granted an interim order appointing the Public Trustee of Queensland as administrator for the adult for all financial matters.

[5] The guardianship and administration appointments were to remain current for three (3) months or, if the Tribunal were to make a further order in this matter, until the date of the further order, whichever was to be the sooner.

[6] The matters for determination by the Tribunal are:

• (a) Does TBM have capacity to make personal and financial decisions?

• (b) Is there a need for a guardian to be appointed? If so, who is the most appropriate person for appointment?

• (c) Is there a need for an administrator to be appointed? If so, who is the most appropriate person for appointment?

[7] 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 (Qld) ('GAA Act'). 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.

[8] TBM is presumed to have capacity in accordance with section 7 of the GAA Act and General Principle 1 of Schedule 1 under the GAA Act. 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.

[9] The GAA defines capacity as follows:[1]

capacity, for a person for a matter, means the person is capable of -

(a) understanding the nature and effect of decisions about a matter; and

(b) freely and voluntarily making decisions about the matter; and

[10] The Tribunal, when considering the appointment of a guardian or an administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA Act.

[11] If the Tribunal determines that there is a need for the appointment of a guardian or an administrator for TBM, the Tribunal, in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the GAA Act_,_ have regard to the appropriateness considerations set out in section 15 of the GAA Act.

[12] The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.

Does TBM have capacity to make personal and financial decisions?

[13] Written medical evidence before the Tribunal included a neuropsychological report by Dr Michelle Livock, a clinical neuropsychology registrar, in relation to a clinical assessment she carried out on 1 July 2019. The report states the adult has been previously diagnosed with an intellectual disability, and that he attended special educational facilities for primary and secondary schooling. Cognitive testing revealed a Full-Scale Intelligence Quotient (FSIQ) of 48, with cognitive functioning scored as within the 'extremely low' range. As such, TBM meets the criteria for severe intellectual disability (DSM-5 319.0 severe (F72)). The adult has deficits in the areas of language, perceptual reasoning, working memory, adaptive functioning and executive skills. To assist with the comprehension of short and direct sentences, the adult requires a practical demonstration.

[14] The above report documented that at the time of the above assessment, the adult was living with his brother, TSM. The arrangement had been in place since the adult moved to Queensland in 2003 following the death of his mother. The adult had lived with his mother up until the time of her passing. Whilst residing with his brother, TSM, the adult was unable to independently follow a food preparation process without support, was unable to catch public transport independently, and required support to be safe in the community (for example, not talking to strangers and crossing roads). The report stated the adult was in receipt of 1:1 community support three days per week where he engaged in activities including music group, shopping and art. Collateral from support workers revealed significant conflict in the relationship between the adult and his brother and that the adult's brother would manage the adult's disability support pension and bank account, providing him with variable allowances. Dr Livock observed the adult to be 'frail and underweight'. The clinician concluded that, as a matter of urgency, the adult was to be transitioned to his goal of supported accommodation, as he was 'not receiving adequate levels of support' and was 'at significant risk of harm'. Dr Livock continued that the adult is highly vulnerable and requires 24-hour support and supervision, including support with his health and nutrition choices. Recommendations also included increased support through the NDIS, including transport to provide community access.

[15] In addition to the above report, the Tribunal was provided with a report dated 28 August 2019 by Dr John Houghton, a general practitioner. Dr Houghton stated the adult has an intellectual disability and attained a score of 11/30 on the Mini Mental State Examination (MMSE) on 11 July 2019. He referenced the above neuropsychological report, and provided the opinion that TBM is unable to make decisions freely and voluntarily. He further provided that the adult is able to make simple, not complex or abstract personal decisions, and is unable to manage money and make all financial decisions.

[16] The Tribunal took submissions from parties attending the hearing. The adult was not able to provide substantial information to the Tribunal. He stated he was happy and had made friends at his new and temporary accommodation which had been chosen by the delegate guardian. He became upset during the hearing, requiring support which was provided to him by the support workers. On one occasion during the hearing, he was heard apologising to his brother, TRM.

[17] The adult's family members concurred with the medical evidence. They stated they were aware he could not 'live on his own', or 'function out on the street' as he would 'get ripped off' as he does not know the value of money and items. They also stated he would 'get lost'.

[18] Staff from the non-government organisation also concurred with the medical evidence. FB submitted that as the adult does not know the value of cash, the support workers assisted him to withdraw money from his bank account. In her application to the Tribunal, WN described the adult as a friendly, kind and vulnerable person, who does not have the capacity to defend himself.

[19] The medical and oral evidence establishes that TBM has a severe intellectual disability with deficits in the areas of language (including literacy and numeracy), perceptual reasoning, working memory, adaptive functioning and executive skills. He is vulnerable to influence and exploitation. As a consequence of these deficits, TBM is unable to understand the nature and effect of his financial and complex personal decisions.

[20] The Tribunal concluded that the presumption contained in the GAA Act that TBM has capacity for financial and complex personal matters is rebutted.

Is there a need for a guardian to be appointed?

[21] At the time of the application to the Tribunal, the adult was residing with his brother, TSM, and was receiving limited support services through the NDIS. The applicant submitted that TSM had often cancelled support services and consistently refused their entry into the home. The applicant stated TSM had been verbally aggressive to service providers at these times.

[22] When describing the adult's circumstances at the time of the application, the applicant echoed the information contained in the above-mentioned neuropsychological report of Dr Livock. She reported the adult was malnourished, neglected and had endured periods of containment and isolation, including being locked out of the house and contained within the back yard while his brother had guests. FB added the adult had been fearful of TSM and had pleaded with her to remove him from the accommodation.

[23] In her oral evidence and the guardianship report completed on 11 December 2019, the delegate guardian described details of her actions under the interim order:

• (a) On 2 October 2019, the delegate guardian made a decision for the adult to urgently move to short-term accommodation to receive 24/7 support under a short-term accommodation agreement. The decision was in accordance with the adult's expressed views and wishes. The adult continued to reside in this accommodation at the time of the hearing.

• (b) On the same day, in accordance with the adult's views and wishes, the decision was taken for the adult to have no contact with TSM, as the adult was fearful for his own personal safety should TSM locate him. The decision remained in place at the time of the hearing.

• (c) At the request of the adult, his new temporary address and contact details were not to be shared with any other parties, including his sister, CS and his brothers TSM and TRM.

• (d) On 8 October 2019, the delegate guardian made a decision for Mercy Community Services to provide support coordination services to the adult in accordance with his NDIS plan budget and goals. On the same day, the delegate guardian made a decision for a NGO to provide community access and 24/7 supported accommodation for the adult, in accordance with his NDIS plan budget and goals. The arrangements remained in place at the time of the hearing.

• (e) Again, on 8 October 2019, the delegate guardian made a decision to provide occupational therapy and psychological services to the adult in accordance with his NDIS plan budget and goals. Occupational therapy assessment was to provide the necessary information to ascertain the level of support the adult requires, and would inform pending decisions in relation to the permanent accommodation and long-term service provision for the adult.

• (f) The delegate guardian permitted restricted supervised and planned contact between the adult and his brother, TRM, and with his sister, CS. Contact had included telephone calls. The guardian decided that the NGO staff would organize and supervise all such contact. The details of the adult's address and contact details remained withheld from TRM and CS at the time of the hearing.

• (g) The delegate guardian obtained the views of the adult and interested parties. The adult told the guardian he remained fearful of TSM locating and returning him to the accommodation they once shared. The adult had continued to express the desire not to have contact with TSM. He sought to stay in a shared accommodation setting, as he enjoyed the various interactive activities such as cooking. He said he would like to see some family members at holiday times.

• (h) The views of TRM and CS were sought. They advised the guardian that the adult should be with his family, as they love him and seek to look after him. They sought to accommodate the adult with TRM, who stated he could manage the contact the adult would have with TSM. TRM also expressed concern in relation to the amount of time the adult spent with support workers.

• (i) During the period of the interim order, there were no health care decisions sought from the guardian. The submission of the guardian was that the statutory health attorney regime, which was in place prior to the interim order, is not appropriate due to the nature of family relationships and associated 'safety concerns'. Of note, the adult has received bilateral hearing aids through the NDIS in the period of the interim order.

• (j) Legal decisions were not sought from the guardian for the duration of the interim order. There were no legal matters pending at the time of the hearing.

[24] The evidence establishes the adult requires a guardian to make decisions in relation to appropriate, safe and permanent accommodation, having regard to his consistently expressed views. The adult requires a guardian to make decisions about the provision of services required within his accommodation setting and when accessing the community. Without the appointment of a guardian for the provision of services, including in relation to the NDIS, the adult is at risk of not receiving services that are vital to his safety, inclusion and wellbeing.

[25] The adult remains fearful of TSM and consequently does not want to have contact with him. The nature and extent of contact with TRM and CS, who are in contact with TSM, have been at the discretion of the guardian under the interim order. Further decisions are required by a guardian in relation to with whom the adult has contact and/or visits to ensure the adult's safety and wellbeing.

[26] Given the above factors in relation to the adult's contact with his siblings, and the demonstrated ineffectiveness of the statutory health attorney regime which was in place prior to the interim order, the Tribunal determines the statutory health attorney regime is not appropriate. A guardian is required for health care decisions to protect and promote the adult's health and wellbeing.

[27] Accordingly, the Tribunal is satisfied that without the appointment of a guardian for accommodation, the provision of services, including in relation to the NDIS, health care and with whom the adult has contact and/or visits, the adult's needs will not be met and his interests will not be protected. Consequently, the Tribunal determines that the provisions of section 12 of the GAA Act have been satisfied in this regard.

Who is the most appropriate person for appointment as guardian?

[28] The application before the Tribunal proposes the Public Guardian as guardian for the adult.

[29] At the hearing, and in the absence of a formal application to the Tribunal, members of the adult's family expressed an interest in assisting the adult in his personal decision-making. They confirmed their views that were previously submitted to the delegate guardian, stating the adult 'should be with family' and that the adult should be accommodated with TRM and MA.

[30] The family described their infrequent contact with the adult in the months and years preceding the interim order. Contact had inconsistently taken place at Christmas and on the adult's birthday. They submitted they did not realise how 'serious the situation was' in relation to the adult's accommodation with their brother, TSM, as they would have 'worked something out sooner'. Their submissions included that they had observed a positive and 'dramatic change' in the adult since the interim order, and they maintained they would be willing to work with the NGO in relation to NDIS support services.

[31] The Tribunal observes that, by their own evidence, TRM and CS did not adequately support the adult with his personal decisions, on an informal basis, prior to the interim order. Once the decisions of the delegate guardian were effected, their response had been to relocate the adult to the care of an alternative family member, who is in contact with TSM. At the time of the hearing, the adult remained fearful of TSM. TRM and CS have not demonstrated that they have turned their minds to the consistently stated views of the adult to remain in supported accommodation and to access support services through the NDIS to fulfil his goals and aspirations of a more independent lifestyle. There is no evidence before the Tribunal that they have demonstrated an understanding of the General Principles within the GAA Act. Notably, they have been subjected to contact decisions made by the delegate guardian under the interim order.

[32] The Tribunal does not consider TRM or CS would be able to discharge effective decision making for TBM in a way that is consistent with the legislative requirements, including the General Principles and the Health Care Principle. The Tribunal is therefore not satisfied TRM or CS would be appropriate appointees in relation to section 15 of the GAA Act.

[33] Section 14(2) of the GAA Act provides that the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. The Public Guardian is an appropriate and independent decision maker with extensive knowledge, skills and experience in applying the General Principles to decision-making.

[34] Accordingly, the Tribunal appoints the Public Guardian as guardian for TBM for the matters of accommodation, provision of services (including in relation to the NDIS), health care and with whom the adult has contact and/or visits.

[35] This appointment is until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.

Is there a need for an administrator to be appointed?

[36] Prior to the interim order, the adult's disability support pension was directly deposited into TSM's bank account. The applicant alleges that the adult was unable to obtain a bank account as he was unable to obtain a birth certificate, and that TSM provided the adult with inconsistent and insufficient funds for food, living expenses and community-based activities.

[37] Under the interim order, the Public Trustee of Queensland took actions to identify and protect the adult's finances. Evidence from the representative of the Public Trustee of Queensland in relation to the adult's financial circumstances at the time of the hearing follows:

• (a) The adult received the disability support pension at $933 per fortnight. The Public Trustee of Queensland had ascertained the adult is eligible for rent assistance at $138 per fortnight and had effected same.

• (b) He had an account with the Bendigo Bank with limited funds.

• (c) The Public Trustee of Queensland was holding $715 in a cash account for the adult. His pension was being received into this account. The adult's living expenses are accessible to the adult from the Bendigo Bank account.

• (d) TBM had a debt to Centrelink of $210, due to an advance income support payment of $1313. The administrator estimated the debt would be repaid by 24 December 2019.

• (e) Expenditure included accommodation fees of $394 per fortnight, along with repayments of the advance income support payment. The Public Trustee of Queensland has reviewed and signed a residential agreement for the adult's current accommodation.

• (f) At the time of the hearing, the representative could not determine whether the adult was a formal tenant in relation to the Department of Housing accommodation in which he had resided with his brother, TSM. Clarification had been sought by the administrator from the Department of Housing.

• (g) The Public Trustee of Queensland had also written to TSM to investigate alleged misappropriation of the adult's funds.

• (h) The Public Trustee of Queensland had consulted with the adult and relevant stakeholders to formulate an interim budget, with an annual surplus estimated at $373.

[38] Pursuant to section 12 of the GAA Act, the Tribunal is satisfied that there is a need for decisions in relation to financial matters due to the adult's current circumstances and his high level of vulnerability to financial influence and exploitation. There must be an adequate and effective decision-making regime in place for TBM, as otherwise his needs will not be met and his interests will not be protected.

Who is the most appropriate person for appointment as administrator?

[39] The application before the Tribunal proposes the Public Trustee of Queensland as administrator for the adult.

[40] At the hearing, and in the absence of a formal application to the Tribunal, TRM and CS expressed an interest in managing the adult's finances. This was supported by MA.

[41] The Tribunal observed that family members failed to support the adult with his financial decisions prior to the interim order. Additionally, as siblings of TSM, they would have a conflict of interest in relation to undertaking an investigation into alleged misappropriation of the adult's funds.

[42] The Tribunal does not consider TRM or CS would be able to discharge effective decision making for TBM in a way that is consistent with the legislative requirements. The Tribunal is therefore not satisfied TRM or CS would be appropriate appointees in relation to section 15 of the GAA Act.

[43] Under the interim order, the Public Trustee of Queensland protected the adult's income and made funds available to secure the adult's accommodation and to advance his wellbeing. The administrator is consulting with relevant stakeholders and authorities to determine outstanding liabilities or expenses for which the adult may be responsible, along with any income to which the adult may be entitled.

[44] In addition, the interim administrator had:

• (a) Sent letters to banks to ascertain if has other bank accounts;

• (b) Confirmed there are no State Penalties Enforcement Registry (SPER) debts held;

• (c) Confirmed there are no Queensland registrations held;

• (d) Completed and forwarded a Lost and Unclaimed Superannuation Form to the Tax Unit;

• (e) Secured the adult's current accommodation by signing an agreement;

• (f) Formulated a budget; and

• (g) Ordered a NSW Birth Certificate to facilitate the opening of a personal bank account.

[45] The representative submitted that, should the Public Trustee of Queensland be appointed as administrator for the adult, the investigation would continue into potential misappropriation.

[46] The Tribunal is of the view that the Public Trustee of Queensland, as an independent, skilful and experienced administrator, would be able to make financial decisions that best meet the adult's needs, in accordance with the General Principles. The Public Trustee of Queensland is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA Act.

[47] Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for TBM for all financial matters, until further order of the Tribunal.

[1] GAA, Schedule 4 (definition of 'capacity').