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- Unreported Judgment
ME QCAT 102
ME  QCAT 102
Guardianship and administration matters for adults
13 March 2017
Senior Member Endicott
Ex tempore 13 March 2017
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.
GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult has impaired capacity for making personal decisions – where the adult is eligible for funding support from the National Disability Insurance Scheme – where the adult does not have any informal support network with decision-making – where decisions are required about the involvement of the adult in the National Disability Insurance Scheme – whether a guardian should be appointed
Guardianship and Administration Act 2000 (Qld), s 5, s 12(1)
The Public Trustee of Queensland by Clinton Miles, Manager of Disability Services
The Public Guardian by Amelia Barker
REASONS FOR DECISION
- I am considering an application for the appointment of a guardian for ME. Under the Guardianship and Administration Act, the Tribunal has power to appoint decision-makers for adults but only if the factors set out in section 12 of the Act are met. That is, the Tribunal must be satisfied that ME has impaired decision-making capacity for making her own decisions about personal matters, in particular, her involvement in the NDIS process. The Tribunal must be satisfied that there is a need for a decision to be made in that ME is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to her health, welfare or/and property. And without an appointment, the needs of ME will not be adequately met or her interests would not be adequately protected.
- The Tribunal has received information as to the current decision-making abilities of ME. The information is somewhat dated now, but, at the time, Dr Alan Wallace, on the 27th of November 2003, referred to conditions amounting to a congenital intellectual impairment. ME also, at that stage, had been diagnosed with Parkinson’s disease. Doctor considered that ME, at that stage, required supervision and considerable assistance with a range of activities of daily living. There had been some mention in some of the information provided to the Tribunal that ME had a full score IQ of about 52.
- The Tribunal accepts that information and makes findings as follows: that ME has been acknowledged and assessed as having an intellectual impairment. I find that that intellectual impairment has been assessed and there have been some findings or results that the full-scale IQ, as a result of testing, would be in the range of about 52. I also find that ME has been diagnosed with Parkinson’s disease, which is a progressive debilitating disease. I find that she does require considerable supervision and assistance.
- When looking at capacity for decision-making, the Tribunal must apply the definition of capacity that is set out in the Guardianship and Administration Act. That definition is this: A person has capacity if they can understand the nature and the effect or nature and consequences of decisions that they make about a matter. They can make decisions freely and voluntarily about that matter, and they can communicate that decision to other people. In the absence of one or more of those features, the Tribunal then has a basis on which it can reach a conclusion that there is some relevant impaired decision-making capacity for the matter.
- So applying that definition to the evidence before me, I am satisfied that ME has an intellectual impairment. It is, by its very nature, congenital and is ongoing. I find that as a result of her intellectual impairment, she would not be able to understand complex information in relation to her own affairs. In particular, she would not be able to understand what information is required on which decisions about her involvement in the NDIS would be based. She would not be able to retrieve from her own experiences and memory relevant information that could augment current information about decision-making about that matter. She would not be able to formulate reasonable options for decision-making in relation to the NDIS. That is a complicated and complex issue involving understanding the extent of needs, having insight into the functional needs that have presented to date and that may develop into the future.
- She would have difficulty in analysing what additional information would be required so that the range of options is adequate. She would have difficulties – in fact, be unable – to evaluate the pros and cons of any options for decision-making that could be formulated by her or on her behalf. And lastly, she would have difficulties, then, in foreseeing and appreciating the consequences that would attach to choosing between options that have been formulated in relation to that particular matter. So I am satisfied the evidence does set aside any starting presumption of capacity that ME could make her own decisions about the NDIS involvement. I am satisfied that she would not be able to understand the nature and the consequences of the decisions that are to be made about her involvement in the NDIS, and, as a result, I reach the conclusion that she does have impaired decision-making capacity for making decisions about her involvement in the NDIS.
- Next, under section 12, I have to be satisfied that there is a need for a decision. There has been considerable work done, both by the Applicant, The Public Trustee of Queensland, and by the Public Guardian, to date in this application, focusing, to some extent, on whether there is a need for a decision, and then how that decision should properly be made. The Public Trustee of Queensland in its initial submissions to the Tribunal had pointed out that there was a lack of existing support network for ME. The submissions acknowledge that ME does have a brother, MP, but contact by The Public Trustee was unable to be achieved with MP. There have been no replies to telephone messages, and staff at the aged care facility, where ME lives, had advised The Public Trustee of Queensland that at that stage, that is, towards the end of last year, MP had had no contact with ME.
- The Tribunal was told by The Public Trustee through its submissions that the aged care facility supported the application for a guardian and was pleased that such an option was available. The submissions went on to state that taking into consideration ME’s situation and identifying the specific support categories, covered by the NDIS, The Public Trustee of Queensland considered that ME would be eligible to receive support, including the following categories: assistive technology, in particular, the need for any specialised equipment for the client that could not be funded by the aged care facilities, and also, categories involving improved health and wellbeing. The Tribunal then received further submissions from The Public Trustee of Queensland on the 30th of January 2017. Those further submissions confirmed the information that had been contained with the application far back in September 2016. However, the submissions brought the Tribunal up-to-date with involvement between The Public Trustee of Queensland and the Public Guardian in trying to sort out all existing and relevant matters that would be involved in an application of this type.
- The Tribunal was told that a case conference had been held on the 15th of December 2016 between The Public Trustee and the Public Guardian and that at that stage, the Public Guardian were pursuing inquiries with Synapse to see whether assistance could be obtained through that. However, as Ms Barker has orally informed the Tribunal and her report to the Tribunal shows, that it was not until the 24th of January 2017 that the Public Guardian concluded that as a result of its inquiries, ME could not be supported by Synapse as she did not identify as an Aboriginal or Torres Strait Islander.
- The Public Guardian, through its inquiries, was satisfied that ME would not be able to participate in the planning meeting or even be able to express her wishes to an advocate, which is one of the options that is being considered in many of the applications of a similar type. ME would not be able to cope with leaving the facility, and she has established friendship groups within the facility, and that there have been some areas of support or improvement in her support, such as providing new facilities such as a wheelchair, which are not funded under the care provided by the aged care facility.
- The Public Trustee’s submissions concluded that in view of this updated information, ME is a young person in aged care, and her disability is reported by the aged care facility to be such that she is unable to work with an advocate. The Public Trustee concluded there was, in their submissions, a need for a guardian to ensure that ME’s rights and interests are protected in relation to the NDIS, that the aged care facility has not registered ME for NDIS, and that they do not appear to have a process in place to approach the NDIA for registration, and that The Public Trustee also submitted that the Public Guardian is of the view that ME’s needs are not currently being fully met and there is support for the appointment of a guardian.
- These conclusions were, in fact, set out and acknowledged in the report to the Tribunal by the Public Guardian dated the 13th of February 2017. In that, the Public Guardian acknowledges that there had been some work done after the application was lodged with the Tribunal to identify whether or not ME would require a guardian for NDIS purposes. It was acknowledged by the Guardian that ME is 56 years of age and is residing in aged care, that she has no known informal support network to assist her through the NDIS and that it was acknowledged by their inquiries that she would not be able to benefit by having an advocate or some informal support services funded to assist her through the NDIS process. The Tribunal was informed in the report that alternative options have been explored. However, it appears that the recommendation made by the Guardian is that the Tribunal does formally appoint a guardian for ME to assist her through the NDIS process. It was acknowledged that there might be funding if she entered into the NDIS, not only to obtain support for a new wheelchair, but she might, in fact, having funding through that process for transport; to access daily activities; for assistive technology; to increase her social and community participation; to improve health and wellbeing; and to result in improved life choices for ME.
- The Tribunal has taken into account the evidence that was given to the Tribunal through those submissions from The Public Trustee and from the Public Guardian and, of course, takes into account the submissions based on that evidence. I am satisfied that there is a need for a decision to be made about a personal matter, that is, the enrolment and engagement through the NDIS process by ME. I am satisfied that this is a complex area, where a decision by a guardian would be required. The work done by the parties to date has been commendable. It has ruled out the other alternatives that the Tribunal is obviously minded to think of before a guardian is appointed. I am satisfied the evidence does lead to a conclusion that ME would not be able to engage with an advocate. I am satisfied that she would not be able to be assisted through informal support through the process, as that informal support is not available from her family, and it is not available from her current aged care provider.
- So in view of the absence of her ability to engage with an advocate and the absence of a known support network, the only option for the Tribunal is to consider the appointment of a guardian, because without a guardian for this purpose, the needs of ME in this area will not be adequately met, and her interests would not be adequately protected. I am satisfied that the NDIS will assist ME. I hope that my views are supported by the NDIA eventually, but she is a young person in aged care. There are limits to what the aged care system can provide. They provide accommodation and care, but not the other types of assistant technology and support for engagement in the community. The NDIS promises much and hopefully can deliver for ME an improvement in her wellbeing, an improvement in her community participation and an improvement overall in her quality of life. I am satisfied in this case that a guardian is required to ensure that the opportunities are available for ME to participate as fully as possible in the NDIS process.
- The application asks for the appointment of the Public Guardian. I note the Public Guardian is willing to take on that role, so I will appoint the Public Guardian to be the guardian for ME for the following matter, that is, for her involvement with the National Disability Insurance Scheme. This appointment will be until further order of the Tribunal. Now, Ms Barker, is there any estimate of how long, do you think, this formal appointment needs to be in place? There are, of course, delays. No one can be quite sure. I do not want to put it too short, but it is until further order, but I am thinking of when the review would be adequate to take place.
- So in two years’ time, one would think that there is at least hopefully an acceptance of the need for ME to be supported by the NDIS, some initial plan in place, and then a bit of a track record as to whether that plan is adequate to meet her needs, or whether, as you say, Mr Miles, a further iteration of the plan would be needed, and that would then probably still require the ongoing support of a guardian. So I will make it reviewable in two years’ time. So thank you both very much. Thank you, Mr Miles, for being involved in bringing this process to the Tribunal, and thank you, Ms Barker, for all the hard work that both agencies have done.
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- Shortened Case Name:
 QCAT 102
Senior Member Endicott
13 Mar 2017