SBG[2015] QCAT 287

APPEARANCES:

SBG, appeared by telephone

Ms Sheryl Woolnough appeared for the Public Guardian

Mr Clinton Miles appeared for the Public Trustee of Queensland

Mr Nash Tenua appearing by telephone

REPRESENTATIVES:

SBG was represented by Ms A Joyce of Cronin Lawyers.

The Public Guardian was represented by Mr A La Spina, in-house solicitor

REASONS FOR DECISION

1. [1]
   SBG is 93 years old she is physically frail, uses a four wheeled walker and has both vision and hearing impairments. She resides in her own home at the Gold Coast with SL. She has a number of rental properties and investments of $824,000.00. She has previously received in home care from various service providers.
2. [2]
   On 19 June 2014, she appointed SL as her attorney for both personal and financial matters. Soon after this, a referral was made to the Public Guardian and following an investigation, the enduring power of attorney was suspended. An application was then made to the Tribunal by the Public Guardian for guardianship and administration for SBG.
3. [3]
   The Tribunal after a hearing on 12 December 2014 appointed the Public Guardian as guardian for decisions about accommodation, with whom SBG has contact and/or visits, health care and provision of services. The Public Trustee of Queensland was appointed as administrator for all financial matters.
4. [4]
   The major concern raised at the first hearing was the possibility that SL was unduly influencing his mother. In particular, concerning financial transactions and the negative affect his behaviour was having on service provision for SBG. There was a history of service providers refusing to attend to SBG because of SL’s actions.
5. [5]
   SBG was placed in respite by SL following the appointments by the Tribunal. The Public Guardian made a decision that SBG should remain in respite care. SL disregarding that decision removed SBG from respite care and returned her home. At that time, there were no care arrangements in place for SBG.
6. [6]
   The Public Guardian made various attempts to gain access to SBG and the family residence to determine what SBG’s care needs were. An in home capacity assessment was performed by Dr Laurel Morris, psychologist. This assessment was requested by the Public Guardian. It gave particular attention to the question of the effect if any that SL had on SBG’s capacity to make decisions.
7. [7]
   The assessment indicated that the family home was appropriate for SBG’s needs. That she presented in her home as a happy and contented woman. She was clean well groomed and alert. The assessment noted that SBG was independent in her activities of daily living. That SL provided all of her needs, which she could not do for herself.
8. [8]
   Dr Morris described SL as an eccentric man with a very forceful interpersonal manner, which may lead to discomfort in people. That SBG knows him well, accepts his behaviour and she displays no discomfort in his presence. SBG is said to have stated that she never feels forced into anything by SL.
9. [9]
   SBG’s capacity was assessed by Dr Morris using the Addenbrooke’s Cognitive Examination and the Mini Mental State Examination. The administration was said to be limited by SBG’s poor hearing and vision but was sufficient to conclude that that there had been a decline in SBG’s cognitive ability particularly with the speed of her responses. Her scores were slightly lower than in October 2014 particularly in regard to orientation to time and place and attention and concentration. SBG had a moderate decline in short term, retrograde and anterograde memory. Her language and comprehension and expression are intact, but her verbal fluency is slowed.
10. [10]
    These results indicate that her cognitive status is at a median level for an individual of her age and education, hence mild cognitive impairment is apparent, despite this her ability to state her wishes and opinions is robust and intact. Dr Morris further stated that “as such her ability to make complex planning and financial decisions is impaired. SBG indicated that she understood her loss of capacity and wished SL to make such decisions”.
11. [11]
    Dr Morris’s view was that SBG was able to communicate her wishes in a forthright manner and had a general understanding of matters requiring decision and could express her views without coercion and she is able to communicate these decisions. She found that the relationship between SBG and SL was a positive one and SBG had absolute trust in him. That it was SBG’s choice to entrust SL with the management of the family financial affairs.
12. [12]
    Dr Morris’s impressions of the dynamic between SBG and SL and that SBG appeared to be appropriately cared for at home were not reflected in the interactions that others in particular care providers and officers of the Public Guardian had with SBG and SL and saw between them. This concern was to the extent that the Public Guardian made application to the Tribunal for an entry and removal warrant^[1] for SBG.
13. [13]
    The Tribunal may issue a warrant only if it is satisfied there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect, exploitation or abuse, to an adult with impaired capacity for a matter.^[2]
14. [14]
    The Public Guardian in their material in support of the application set out SBG’s current circumstances relevantly as follows:-

    1. SBG is a frail 94 old who is living with and exclusively cared for by SL. She has been assessed by ACAT as eligible for permanent residential aged care. She is also eligible for in-home support and holds a DVA Gold Card.
    2. She receives no support in the home. Each support service that has sent staff into the home has assessed their staff to be at an unacceptable risk from SL to continue supporting SBG. SL is reported to engage in intimidating behaviours towards service providers. Statements were provided from service providers in support of this contention.
    3. An aged care placement was available for SBG where she will receive appropriate care.
    4. The Public Guardian has been advised by representatives of the Queensland Police Service that SL is well known to them and that there may be weapons at the family house. That the police service had grave fears for SBG and expressed the view that people attempting to intervene on her behalf may also be at significant risk of harm from SL. An officer of the Queensland Police Service has filed material indicating that there is sufficient evidence for a domestic violence application against SL.
    5. Having regard to the assessment of Dr Morris SBG does not have capacity.
    6. In particular, in regard to accommodation SBG has expressed to care providers that she would prefer to be in an aged care facility. When this was over heard by SL he is said to have told, his mother to “Shut up” and that SBG appeared distressed and intimidated by SL’s behaviour. There are numerous other references to SL either talking over the top of his mother or being verbally abusive towards her.
    7. In terms of neglect and preventing access to appropriate care there is material showing that a registered nurse from RSL Care made a home visit to SBG. SL refused to provide any information to assist in regard to SBG’s medical history. She then felt threatened and intimidated due to the actions of SL.
    8. A social worker has reported that SL has not allowed SBG to attend hospital on various occasions when she has been in pain due to bowel blockages.
    9. SL is said to have advised the Public Guardian on 2 June 2015 that if he does not get what he is asking for, SBG will go on a well-publicised hunger strike. Having regard to SBG’s total dependence on SL for her care needs including food and his disregard for the appropriate care needs of SBG the Public Guardian considers that the hunger strike would constitute either self-neglect or an imposed deprivation of SBG’s needs. The hunger strike is considered by the Public Guardian is intended by SL to achieve his own interests. Presumably in respect of his desire to regain control of her finances.
15. [15]
    The Tribunal made certain orders on 10 June 2015 in particular that SL was directed to allow the Public Guardian and service providers entry to the home and to have unrestricted access to SBG for the purpose of discussing her in-home support needs. Further, that he is directed to permit service providers to provide services to SBG. The Public Guardian was directed to file a report in the Tribunal in regard to the steps taken to discuss, assess and engage care services for SBG by 1 July 2015.
16. [16]
    The Public Guardians report in regard to these directions states that a date was arranged for the Public Guardian to attend at the house with service provider representatives. Officers of the Queensland Police Service were also requested by the Public Guardian to be present. When they attended at the house they were told by SL that SBG had gone to the local bowls club because the Public Guardian was late. SBG was required to walk to the bowls club using her wheelie walker.
17. [17]
    When the Public Guardians representative attended at the bowls club, they observed SBG leaving and were only able to speak with her for a short time. It was agreed that SBG would speak to them at the house at 2.00 pm. They returned to the house and were informed SBG had gone to a friend’s place. The representatives of the Queensland Police Service advised that SBG was carried from the house by her hair dresser, BN. When the police officers attended the friend’s house SBG was again not available.
18. [18]
    The directions made by the Tribunal were for the purpose of determining whether or not there were any current grounds to issue a warrant. The actions of SL in effectively hiding SBG from the Public Guardian and service providers has meant that the Tribunal does not have any material to show that SBG’s current needs are being met and highlights the lack of cooperation from SL in ensuring that those needs can be met.
19. [19]
    The Tribunal has numerous reports from independent third parties indicating that the house is inappropriate for SBG in terms of it being cold with leaks and having numerous trip hazards. That SBG does require supervision to meet her personal needs and these are not being met by SL. There is some indication that they may be being met by BN who has been identified as SBG’s hairdresser. There is no proof of this and the actions of BN is secreting SBG from the Public Guardian do not show someone who is primarily concerned with meeting her care needs.
20. [20]
    The Public Guardian’s representative confirmed at the hearing that the concerns raised by the Public Guardian still exist and that there are still grounds for issuing an entry and removal warrant. SBG clearly expressed to the Tribunal that she wished to have SL make any decisions for her and that there was no need for interference by the Tribunal and its appointed decision makers. SBG could not provide any explanation in regard to what occurred when the Public Guardian tried to visit her. Ms Joyce confirmed that she had received a copy of the report in regard to the visit but had no particular instructions in regard to it.
21. [21]
    While Dr Morris was of the view that SBG was well looked and SL was meeting her needs this was on the basis that she was able to attend to her self-care needs. The evidence from ACAT and the other independent service providers is that SBG requires assistance with her self-care and that a service provider is needed to perform these tasks. SBG has previously had falls, is vision impaired and has complicated health issues in relation to her bowels.
22. [22]
    An entry and removal warrant is clearly a great intrusion into someone’s life and should not be issued unless there are real concerns of risk of harm to SBG. The Tribunal is satisfied that SBG is an adult with impaired capacity and is at immediate risk of harm due to unmet service provision needs. This is as a result of the neglect of SL, SL to allow the Public Guardian the Tribunal appointed guardian for SBG in respect of the provision of services to have access to her to ascertain those needs and put in place appropriate service provision. While there is no evidence that SBG has initiated a hunger strike the fact that the threat was made by SL shows that he is willing to put his mother’s health at risk for the purpose of gaining his desired outcome. Which is the removal of the independent decision makers.
23. [23]
    The Tribunal issues a warrant to the Public Guardian by force of which the Public Guardian may, with necessary and reasonable help and force, enter the Gold Coast residence, and any other place necessary for entry and remove SBG. The Public Guardian may ask a police officer to help in the exercise of the Public Guardian’s powers under the warrant. The Public Guardian may enter the Gold Coast residence between the hours of 8.00 am to 6.00 pm. This warrant ends on the 3 August 2015.
24. [24]
    The Public Guardian has also requested that the Tribunal review his appointment as guardian for SBG and in particular, that the powers of the Public Guardian be enlarged to make decisions about legal matters not related to SBG’s financial or property matters. This is as a result of the Public Guardian being advised that SBG had engaged Cronin Lawyers in respect of the guardian and administrator appointments.
25. [25]
    When reviewing the appointment of a guardian the Tribunal does so in accordance with s 31 and s 12 of the Guardianship and Administration Act 2000 (Qld). That requires the Tribunal to be satisfied of the matters it would if it were making an initial appointment. That is whether SBG has impaired capacity for personal matters and whether there is a need for decisions in regard to those matters which requires a formal appointment. If there is need for a decision maker then the Tribunal must continue the appointment of the current appointee unless it is satisfied the Public Guardian is no longer competent or there is another party more appropriate.
26. [26]
    If the Tribunal finds SBG has impaired capacity and does not appoint a guardian for any particular matter then SBG’s son. SL would be able to make decisions under the enduring power of attorney dated 19 June 2014.^[3] The appropriateness and competence of SL as decision maker for SBG also then needs to be considered.
27. [27]
    At the hearing, SBG made her desire for the removal of the Public Guardian and Public Trustee of Queensland clear. She understood that she was with Ms Joyce, a solicitor and that Ms Joyce was acting for her. Ms Joyce indicated that she considered SBG was able to give instructions. While the Public Trustee of Queensland had been required to sign the solicitors client agreement as administrator for SBG there was no requirement for the Public guardian to make a decision, as they were not appointed for legal matter. The representatives of the Public Guardian indicated that they would have in consultation with SBG consented to the legal matter if that was her wish.
28. [28]
    SBG being able to express her views is consistent with the report of Dr Morris. It is clear from that report that SBG does not have capacity to make complex decisions and engaging lawyers to review the appointment of a decision maker is a complex legal matter.
29. [29]
    The same can be said for the other decisions, which are currently required for SBG that is accommodation, with whom she has contact and visits, health care and provision of services. There is clearly a continuing need for decisions about accommodation and service provision as the suitability of the current arrangements are the subject of the order for entry and removal. SBG has complicated health care needs, which also require monitoring. To ensure that SBG’s health and welfare needs are met it may be necessary to control or limit the contact that certain people have with her.
30. [30]
    The Tribunal is concerned to ensure that decisions are made to advance the interests of SBG and in a timely manner. SL has shown by his actions that he is not able to even cooperate in decision making about such things as service provision and accommodation. He has also strongly expressed his desire for the independent decision makers to be removed. He would potentially benefit from the removal of the decision makers, as he would be able to access SBG’s funds for various projects including the development of the land on which she resides into a unit block. There are no other parties available and for these reasons it is appropriate that the independent decision maker the Public Guardian be appointed.
31. [31]
    The Tribunal appoints the Public Guardian as guardian for SBG for decisions about accommodation; with whom SBG has contact and/or visits; health care; provision of services and legal matters not relating to finance or property matters for two years. To the extent of these appointments, the enduring power of attorney granted to SL is overtaken and may not be acted upon.