PGV[2023] QCAT 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   These proceedings relate to a man aged in his mid-sixties. For privacy reasons, he will be referred to only as PGV; his wife will be referred to as WFA; and their daughter as DTA.
2. [2]
   On 8 September 2021, the tribunal (differently constituted) appointed WFA and DTA, jointly and severally, as PGV’s guardians for all personal matters.
3. [3]
   On 12 December 2022, PGV applied to the tribunal for a declaration about his capacity, and for a review of the appointment of the guardians. Those applications were heard on 14 March 2023. PGV’s solicitor, Mr Scott Argles of Aejis Legal, explained that PGV seeks a declaration that he has capacity for all personal and financial matters, and the revocation of the guardianship appointment.
4. [4]
   It is also relevant to note that PGV made enduring powers of attorney on 4 February 2016: one in the Queensland form, and the other in the New South Wales form. In each enduring document, he appointed WFA as his primary attorney for financial matters, with DTA and then a corporation as successive attorneys. Each appointment of WFA as financial attorney was expressed to have immediate effect. PGV did not appoint attorneys for personal, as distinct from financial, decision-making.
5. [5]
   At the hearing on 14 March 2023, the tribunal heard oral evidence from PGV, WFA, DTA, Dr Rachell Kingsbury (clinical neuropsychologist and clinical psychologist), and Ms Lisa Booth (PGV’s National Disability Insurance Scheme support coordinator).
6. [6]
   The extensive documentation before the tribunal includes the following by health professionals:

   1. (a)
      discharge summaries by Dr Adem Can, psychiatrist, relating to in-patient treatment of PGV at the Currumbin Clinic on numerous occasions between 2014 and 2020, initially for alcohol dependence, and later for alcohol use disorder, major depressive disorder and generalised anxiety disorder;
   2. (b)
      report by Chris Schumann, clinical neuropsychologist, dated 28 May 2021;
   3. (c)
      letter from Dr Nigel Prior, psychiatrist, dated 7 June 2021;
   4. (d)
      report by Dr Kingsbury dated 18 November 2022; and
   5. (e)
      report by Dr Masoud Shasti, general practitioner, dated 15 February 2023.
7. [7]
   Ms Schumann and Dr Shasti each describe PGV as having alcoholic dementia. Dr Prior describes PGV as having ‘mild-to-moderate dementia of multiple aetiology – alcohol-related, secondary to liver disease and multiple head injuries’.^[1] Dr Kingsbury, however, says that her assessment of ‘mild cognitive impairment is insufficient to warrant a diagnosis of alcohol related dementia …’.^[2]
8. [8]
   Reports also mention that on occasions up to 2021, PGV had a number of admissions for rehabilitation in connection with his alcohol use disorder.

Background

9. [9]
   PGV has had a distinguished academic career. He is now largely retired but he remains an adjunct professor. He told the tribunal that currently in this role he is the second supervisor for a doctoral student and he also performs mentoring.
10. [10]
    It is undisputed that PGV and WFA are separated but not divorced. They reached a property settlement in 2020, and the Family Court of Western Australia made consent orders accordingly. PGV lives in Ipswich, Queensland. WFA and DTA live in Perth, Western Australia.
11. [11]
    Since being appointed guardians, WFA and DTA have obtained an NDIS plan for PGV. He is living in NDIS-funded specialist disability accommodation where support workers provide ‘personal care’ on a 1:1 basis for a number of hours per week; 1:1 community access support for a number of hours per week; overnight 1:2 ‘passive support’; and 1:2 ‘shared support’ at other times.^[3]
12. [12]
    It is undisputed that PGV would prefer to live in inner Brisbane, and in particular at St Luke’s Green at Woolloongabba. St Luke’s Green enables ‘ageing-in-place’ as it comprises a co-located retirement village and aged care facility. PGV would like to purchase a retirement unit there. WFA and DTA as guardians have blocked this proposed move on the basis that inadequate care would be available in a retirement village setting. They had attempted to organise a move from Ipswich to specialist disability accommodation at Sunnybank. That would be closer to PGV’s desired living area but still not inner-city. According to WFA’s evidence, which I accept, PGV initially expressed some interest in moving to Sunnybank, where the family had lived in the past, but he has more recently advised that he does not wish to move there.
13. [13]
    PGV owns three real properties. He has superannuation and other investments. He derives substantial rental, superannuation and investment income. WFA told the tribunal, and I accept, that in the past when PGV was very unwell, she exercised various powers as financial attorney. However, as PGV’s functioning has improved, she has largely stepped back. She now only retains access to his National Australia Bank accounts. PGV, therefore, now largely controls his own finances.

Proposed declaration about decision-making capacity: finances 

14. [14]
    PGV seeks a declaration under section 146(1) of the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) that he has capacity. That provision says that ‘the tribunal may make a declaration about the capacity of an adult … for a matter’.
15. [15]
    It should be noted that the making of a declaration is discretionary.
16. [16]
    ‘Financial matters’ and ‘personal matters’ are distinct under the Act. They are defined in Schedule 2 to the Act. At this point, I will address PGV’s capacity for financial matters. The health professionals’ evidence differs on this topic, with Dr Kingsbury and Dr Shasti expressing opinions that PGV has capacity. Dr Prior and Ms Schumann express opinions to the contrary. I note that their reports are less recent.
17. [17]
    ‘Capacity’ is defined in Schedule 4 to the Act:

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

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

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

3. (c)
   communicating the decisions in some way.

18. [18]
    ‘Capacity’ must be presumed until the contrary is proven: section 11(1) of the Act.
19. [19]
    Mr Argles’ written submission does not explain the purpose of the proposed declaration. In an application form, PGV said ‘I am seeking … a return to independent decision making, including in relation to financial matters which are currently controlled by my attorneys under an enduring power of attorney’.^[4] I gather from Dr Kingsbury’s report that PGV wishes to revoke his current enduring documents and to make a new enduring power of attorney appointing the Public Trustee of Queensland as financial attorney to make decisions should the need arise.
20. [20]
    I do not consider it necessary to make a finding on PGV’s financial decision-making capacity. Even if I found that he has capacity, I cannot see what purpose would be served by making a declaration of capacity. The exercise by WFA of financial powers is not contingent on PGV having impaired capacity: her appointment as attorney was immediate.  In other words, making a declaration that PGV has financial decision-making capacity would in no way strip WFA of her powers as financial attorney.
21. [21]
    It is not apparent what is stopping PGV from revoking the enduring documents and making a new enduring power of attorney for financial matters if he wishes. Perhaps in the circumstances a third party might question or challenge the validity of any new enduring document, but that could be addressed if it occurred. 
22. [22]
    Significantly, a declaration that PGV has financial decision-making capacity would not be determinative of whether he has capacity to revoke and make enduring documents. Capacity to make and revoke enduring documents is defined in particular ways in sections 41 and 47(1) of the Powers of Attorney Act 1998 (Qld). The definition of capacity in Schedule 3 to that Act, which is the same as the definition in the Guardianship and Administration Act, which has been quoted earlier, does not apply: section 41(3). Section 41(2) sets out six things that a principal must, at least, understand to be able to make an enduring power of attorney. In turn, a principal must have power to make an enduring power of attorney before they can revoke an existing one: section 47(1). The six criteria have not been addressed in the health professional reports, beyond Dr Shasti addressing one of them. Dr Kingsbury says that PGV has ‘capacity to appoint an independent Financial Guardian’^[5] but she does not address the six criteria.
23. [23]
    I have not been specifically asked to make a declaration about PGV’s capacity to revoke and make enduring documents, but even if I inferred such a request, I do not have enough evidence addressing the criteria to make such a declaration.
24. [24]
    Accordingly, I do not propose to make a declaration about PGV’s financial decision-making capacity or his capacity to revoke or make enduring financial documents.

Proposed declaration about decision-making capacity: personal matters

25. [25]
    ‘Personal matters’ include, amongst other things, ‘where the adult lives’, ‘services provided to the adult’, and ‘health care of the adult’.^[6] The same definition of capacity quoted in paragraph 17 above applies, as does the presumption of capacity.

Dr Prior

26. [26]
    I have earlier mentioned psychiatrist Dr Prior’s diagnosis of dementia. Dr Prior treated PGV in 2021 at the Damascus unit, which is a private detoxification and treatment facility in Brisbane.  Dr Prior’s letter of 7 June 2021 was brief. Dr Prior expressed the opinion that PGV ‘no longer has the capacity to make decisions in areas of his health, living circumstances and finances’.^[7]

Ms Schumann

27. [27]
    Clinical neuropsychologist Ms Schumann provided a 7-page report in May 2021 following a single-session consultation on 25 May 2021. Ms Schumann noted a 20-year background of PGV consuming up to a bottle of spirits daily, as well as a history of admissions for detoxification but then continued relapses. The longest period of abstinence had been 18 months. Ms Schumann discussed PGV having falls in the Damascus unit, but having ‘poor cognition regarding his high risk of falls and safety issues’.^[8] PGV told Ms Schumann he had been ‘sober over the past 6 months, suggesting some confusion regarding his recent admission’.^[9] (I note that PGV had been admitted to the Damascus unit for detoxification on 20 April 2021). Ms Schumann said that PGV ‘denied any difficulties coping at home and believed he could return home with continuation of his community supports’.^[10] (I note, though, that a report by Linda Cullen of a home care service called Right at Home, which is in document M2 on the tribunal’s file, paints a picture of significant difficulties in the home while that organisation was providing services between February and April 2021. At that time, PGV was living in his apartment in West End, Brisbane. According to Ms Cullen, PGV was often drinking. Blood was often found on the floor and walls where PGV had fallen. The glass oven door smashed when PGV fell into it, as did a glass shower door. Toilet seats were replaced three or four times after falls. A large hole in the living room wall resulted from PGV falling. Carpet was ‘consistently stained from faeces and blood …’.^[11] PGV was unable to use the toilet when inebriated. PGV refused requests by carers to go to hospital for treatment of injuries.)
28. [28]
    Ms Schumann administered a series of tests. She found strengths in some areas such as abstract reasoning, but deficits in some other areas such as concentration, processing speed, comprehension of lengthy test instructions, and some aspects of memory.
29. [29]
    Ms Schumann noted PGV’s then diagnoses of alcohol use disorder and depressive disorder. She said ‘he shows poor insight and impaired cognition’.^[12] Further, ‘he minimized the safety issues in relation to his falls and he had poor insight into his cognitive and functional deficits’.^[13] His ‘profile of cognitive deficits was widespread and reflected mild to moderate alcoholic dementia with poor insight in the context of mild to moderate depression’.^[14] Factors such as poor insight, rigid thinking, and intermittent confusion ‘will significantly impair his judgment’.^[15] Ms Schumann concluded that PGV ‘does not have the cognitive capacity to make complex decisions regarding his safety, accommodation, health, or finances’.

Dr Kingsbury

30. [30]
    Clinical neuropsychologist and clinical psychologist Dr Kingsbury produced a 36-page report after consultations with PGV on 12 September 2022 and 10 October 2022. Dr Kingsbury took an extensive history and administered a number of tests. She also reviewed Ms Schumann’s report. Based on testing and observation, Dr Kingsbury found for example that PGV’s ‘speech and language architecture is sound’ and he has only ‘minor difficulties with anomia’.^[16] Dr Kingsbury noted some indications of memory disorder but observed that PGV was able to answer questions largely from recall, with only very limited need to access notes. Dr Kingsbury noted evidence of cognitive decline in PGV but found that he still has a high IQ, inconsistent with a diagnosis of dementia.
31. [31]
    Dr Kingsbury squarely addressed the three parts of the definition of capacity in the Guardianship and Administration Act.  In relation to understanding the nature and effect of decisions, Dr Kingsbury said that PGV demonstrated sound understanding of his financial resources, and the ability to make plans about finances, and about where to live and whether to persist in alcohol use. In relation to making decisions freely and voluntarily, Dr Kingsbury saw no indication of external influence. PGV was observed to be ‘free from apprehension or uncertainty’.^[17] In relation to communication, Dr Kingsbury noted that PGV’s verbal fluency is slowed but his verbal comprehension is in the gifted range. Overall, his communication abilities remain preserved. Dr Kingsbury concluded that PGV has capacity to make financial and lifestyle decisions, both simple and complex.
32. [32]
    Dr Kingsbury described PGV as ‘holding strong insight into the nature of his circumstance’.^[18]
33. [33]
    Dr Kingsbury commented that further substantial alcohol consumption would likely accelerate cognitive decline in PGV.
34. [34]
    Some background factors taken into account by Dr Kingsbury in her report should be mentioned.
35. [35]
    Dr Kingsbury was favourably impressed by PGV’s organised presentation at their consultations. This indicated a functional level of planning and organisation. Dr Kingsbury detected a ‘single, contained area’ in which PGV engaged in ‘positive impression management’.^[19] This was in his reporting of his history of alcohol use disorder. Dr Kingsbury considered this was not to do with lack of insight but rather a tendency to under-report which is common ‘in alcohol dependent populations due to underlying mental health and shame associated’.^[20] Dr Kingsbury said that PGV has post-traumatic stress disorder from childhood trauma, which she hopes he will go on to address in therapy. Dr Kingsbury commented that the post-traumatic stress disorder ‘appears never to have gained clinical attention or support’.^[21] (I note, though, that childhood trauma was discussed by Dr Can in the Currumbin Clinic discharge summaries, but a diagnosis of post-traumatic stress disorder was not made).
36. [36]
    Dr Kingsbury said the ‘clinical impression’ is ‘mild cognitive impairment (alcohol related) that is currently observed by substantial cognitive reserve’ in that PGV’s functioning is ‘upheld by his strong intellectual capacities’.^[22] Dr Kingsbury observed PGV to be able to ‘hold complex information in mind and consider novel information during the interview’.^[23]
37. [37]
    PGV told Dr Kingsbury he was endeavouring not to use alcohol. He denied alcohol use in the past three weeks.^[24] He referred to a single period of alcohol use ‘having allegedly been supplied by an NDIS worker’.^[25]
38. [38]
    PGV discussed with Dr Kingsbury the pros and cons of living in each of his real properties. He ruled out his apartment at West End, as he had relapsed into alcohol use there previously. He noted a positive feature of the suggested move to Sunnybank, but he ultimately preferred the option of buying into St Luke’s Green where he could age in place. He mentioned potential modifications to prevent falls. Dr Kingsbury noted that in this discussion, PGV was able to hold multiple options in mind, and weigh up the pros and cons of each.
39. [39]
    Dr Kingsbury says PGV told her that the tribunal appointed WFA and DTA decision-makers for ‘health, lifestyle and financial decisions’.^[26] (I note that this is not quite accurate: WFA and DTA were appointed guardians by the tribunal for personal matters – which would encompass health and lifestyle, amongst other things – but the tribunal did not appoint WFA or DTA to make financial decisions. As has been mentioned, WFA is the current financial attorney, who PGV appointed).
40. [40]
    PGV told Dr Kingsbury that he feels the current decision-making arrangements give rise to ‘adversarial family dynamics’.^[27] PGV ‘alleged that his ex-wife had threatened to use his finances to fund their daughter’s upcoming wedding and in a decision he had not consented to’.^[28] Dr Kingsbury commented that ‘he has been awarded 24-hour NDIS Support Workers, despite his described and observed functional independent abilities’.^[29] PGV described falls in the house which he said were not because of inebriation but because of wet tiled floors. He considers the substantial NDIS funding to be fraudulent, in view of the level of his own financial resources. He also said he had organised to attend a diabetic educator, and that he would like to engage a dietician to help him lose a little weight.
41. [41]
    Dr Kingsbury commented:

[PGV] … displayed a higher than required understanding of the aspects of his current circumstances as unethical and tantamount to elder abuse. He freely described his $300,000.00 NDIS package, being an involuntary recipient of this funding, as a form of fraud when considered to the true nature of his needs. He demonstrated commensurate understanding that his finances were being misappropriated between his Legal Guardians. He identified that having his decision-makers, as both comprising family members and both as residing in Western Australia, as inappropriate and inadequate in role and function.^[30]

42. [42]
    Dr Kingsbury also gave oral evidence. She described Ms Schumann’s assessment as not a capacity assessment. I am unsure what she meant by that. While it is the case that Ms Schumann did not cite the definition of capacity, she did systematically address topics relevant to whether PGV had capacity.
43. [43]
    Dr Kingsbury noted that capacity is time-specific and matter-specific, and that PGV may, as he is entitled to do, make decisions with which others may disagree.

Dr Shasti

44. [44]
    Dr Shasti’s report is much less detailed than the reports of the neuropsychologists. Dr Shasti gave the diagnosis as alcoholic dementia. Dr Shasti ticked boxes to indicate that PGV can make decisions about both simple and complex personal and financial decisions; that he can make decisions freely and voluntary; and that he does not have a communication impairment. Dr Shasti did not further elaborate, other than to describe PGV’s decision-making as independent, and to note that he achieved a score of 25 on a MMSE test. 

Surrounding issues

45. [45]
    One of the documents filed by PGV with his applications is a letter from the university at which he is an adjunct professor. The letter is dated 18 February 2022. It thanks PGV for his contribution during his appointment as an adjunct professor, and offers him a further appointment until September 2024. The letter, which I infer uses a standard form of words, says that the adjunct appointment recognises PGV’s leadership and standing in his professional community, his willingness to engage with students and scholars in his discipline, and the value the university places on its relationship with him. I consider this evidence has quite limited value in assessing PGV’s decision-making capacity, in the absence of evidence that the university undertook any particular type of appraisal in deciding to offer a further appointment.
46. [46]
    Some of the evidence discussed below in this section goes more obviously to questions such as whether there is a need for a substitute decision-maker, and the appropriateness of WFA and DTA as substitute decision-makers, rather than directly to the question of capacity. However, it is relevant to discuss this body of evidence when considering capacity because it bears on PGV’s perception of his situation as related to Dr Kingsbury and others.
47. [47]
    Dr Kingsbury in her oral evidence described behaviour of PGV’s guardians as circling close to coercive. In this context, she noted allegations made by PGV that the guardians had planned to use $100,000 of his funds for DTA’s wedding, though PGV managed to prevent this.
48. [48]
    At the hearing, I asked PGV to elaborate on the alleged mismanagement of his finances by his attorney that he had mentioned in an email and which is alluded to in Dr Kingsbury’s report. PGV referred in response to two matters. One involved WFA’s banking of a cheque for $10,000 for a return on an investment, even though he had explained to WFA that the cheque would not be honoured. The second matter involved an allegation that support staff at his accommodation are using some of his money contributed for his share of the food costs for their own food supply. PGV did not raise the issue about the funding of DTA’s wedding in his response.
49. [49]
    WFA in her oral evidence spoke of having made a mistake in relation to the $10,000 cheque. She said she discovered the cheque in the cleanout of PGV’s West End apartment. She presented the cheque to the bank but the bank explained it had expired. WFA said she does not know whether staff at PGV’s accommodation have misused any of the money contributed for PGV’s food.
50. [50]
    I found WFA to be an impressive witness. She gave her evidence in a straightforward, measured and responsive way. I accept her evidence. I am not persuaded that there has been any financial mismanagement on her part.
51. [51]
    I formed a similar favourable impression of DTA as a witness, and I accept her evidence. She denied any attempt to force a $100,000 contribution toward her wedding by PGV. She said PGV willingly contributed an amount of $16,000. I consider that not to be an extravagant sum, having regard to PGV’s substantial means.
52. [52]
    I find that there has not been any misappropriation of PGV’s finances by WFA or DTA, or any financial impropriety on their part.
53. [53]
    The guardians provided to the tribunal a number of incident reports and emails written by staff of the accommodation organisation between July 2022 and March 2023. They describe staff observing PGV purchasing alcohol but then denying it to staff; occasions when he has been affected by alcohol; conduct associated with inebriation such as agitation and verbal aggression; falls when inebriated; an unexplained large hole in the wall in PGV’s room; and PGV maintaining that it is a slippery bathroom floor that causes him to fall rather than inebriation. The reports do not suggest anything approaching daily inebriation, but generally describe inebriation on one or more occasions per month. In a September 2022 email to WFA and PGV’s NDIS support coordinator Lisa Booth, the service manager spoke of PGV increasingly purchasing alcohol. She said that there needed to be a discussion about implementing a restrictive practice relating to PGV’s access to alcohol. WFA responded cautiously, noting that the organisation’s drug and alcohol policy set out a systematic approach to be pursued before restrictive practices are considered. She requested a management plan. The material does not indicate any further steps in this regard.
54. [54]
    PGV was provided with a copy of the incident reports and the emails at the hearing, though I gather he had not seen them before. He said he doubts that they are all accurate. He characterised the incident reports as being made by untrained staff who want to keep their jobs by portraying that they are not at fault when something like a fall happens. PGV added that there have been occasions when support staff have not taken him to Alcoholics Anonymous meetings as arranged, and have suggested instead that he accompany them to their church as a better solution.
55. [55]
    There is evidence that PGV is unsteady on his feet and at risk of falling even when sober. A report by occupational therapist Caelia Brock dated 18 November 2022, for example, notes that PGV had been prescribed a four-wheel walker but prefers to use a single-point stick. DTA in her oral evidence described PGV’s limited and unsteady mobility as she observed it when she accompanied him to Sydney in late 2022.
56. [56]
    So, I accept that PGV might fall when sober, and that support workers may have an incentive when writing incident reports to divert responsibility to PGV. Further, I consider the incident reports to be variable in their clarity. On the other hand, they were prepared by various staff members. It is unlikely, in my view, that there would be widespread misreporting of the circumstances of falls. I accept the overall thrust of the reports and emails which is to the effect that PGV’s alcohol consumption has increased, along with increased falls and agitation.  
57. [57]
    Dr Kingsbury also commented in her oral evidence on the accommodation decision made by the guardians. Dr Kingsbury said PGV’s accommodation is commensurate with a form of imprisonment: he cannot go anywhere unaccompanied, and he is reprimanded if he is late for a meeting. Dr Kingsbury said that carers in such accommodation are generally not professionally-trained, and they tend to provide essentially only supervision.
58. [58]
    WFA says that she initially thought an aged care facility would be the most appropriate setting for PGV but she kept an open mind and ultimately she and DTA opted for NDIS-funded accommodation when satisfied it could better meet PGV’s needs. WFA says PGV too expressed a preference for NDIS-supported accommodation over the other options considered at the time namely the West End apartment and an aged care facility. WFA says she has been aware of PGV’s preference to live in inner-city Brisbane. However, choices were limited. PGV had been in hospital, and the hospital was exerting strong pressure for discharge. The places available were not in inner Brisbane. WFA sees inner-Brisbane living as a longer-term goal, particularly while the tight rental market makes choices very limited. She said she saw the proposed move to Sunnybank as an intermediate measure. I accept this evidence.
59. [59]
    Ms Brock’s report of 18 November 2022 is a very detailed functional capacity and living needs assessment report. It recommends an increase in the hours of care that should be provided for PGV through NDIS to 35 hours per week of 1:1 personal care and 16 hours per week of 1:1 community access support, along with 1:2 support for 61 hours per week, and maintaining the ‘passive overnight’ 1:2 support. The rationale for this level of support can be understood in light of Ms Brock’s assessment of PGV’s limitations and needs. For example, Ms Brock considers that PGV is unable to toilet independently; he wears incontinence aids day and night; he cannot shower independently; he must be prompted to engage in personal hygiene tasks such as teeth brushing; he requires assistance to shave due to limitations with fine motor control; and he cannot prepare meals or perform other household tasks. According to Ms Brock, PGV has a very high falls risk and so needs to be accompanied while out of the house. Ms Brock met with PGV in the course of preparing her report. She considered that he has ‘reduced insight into his mobility and environmental hazards, increasing his risk of falls’.^[31]
60. [60]
    Whether the NDIS will expand funding in line with Ms Brock’s recommendations remains to be seen. However, her report is compelling. It is unchallenged by evidence from any other expert qualified to undertake such assessments. I accept that Ms Brock’s report captures the level of care needed by PGV. That need would only increase with more alcohol consumption. Sadly, PGV’s history does not augur well for sustained abstinence or moderation.
61. [61]
    I also have no hesitation in accepting the report of Linda Cullen which I discussed in paragraph 27 above. That report related to a period when PGV was living at West End and drinking more heavily, but it serves to emphasise the risks to PGV when he has limited support and supervision.
62. [62]
    Mr Argles submits that a move to St Luke’s Green would be a sensible choice for PGV to make. There has clearly been a marked reduction in PGV’s alcohol consumption compared with the period when he was living at West End. The incident reports represent isolated events, and PGV has presented as sober in his meetings with Dr Kingsbury and in frequent phone calls to Mr Argles. Meals and laundry services are available at St Luke’s Green, and PGV has the financial resources to engage carers.
63. [63]
    WFA says she has explored the St Luke’s Green accommodation option in view of Ms Brock’s report, but she has been advised by St Luke’s Green that it cannot accommodate a person requiring the recommended very high level of care. Mr Argles queried this, noting that St Luke’s Green had recently sent him updated information on buy-in costs, without any suggestion that PGV would be rejected as a candidate for residency. However, I accept that the discussions between WFA and St Luke’s Green have been informed by Ms Brock’s report, and that those discussions have established that St Luke’s Green is, unfortunately, not a viable option for PGV.
64. [64]
    In an email to the tribunal dated 6 February 2023, PGV described his accommodation as ‘insect infested with an unsafe bathroom and toilet’.^[32] This is in a similar vein to him telling Dr Kingsbury that slippery floors are responsible for his falls. WFA commented in a letter to PGV’s solicitor that PGV, while at his current accommodation, ‘has consistently denied drinking at all and contends that the damage to the property was caused by a rat or a possum’.^[33] Ms Booth, PGV’s NDIS support coordinator, said in her oral evidence that PGV texts her about rats and possums eating through the walls, but she is aware that he is trying to explain away a hole in the wall caused by him falling. I consider that such comments by PGV deny or fail to recognise the impact of his drinking.
65. [65]
    Further, whatever criticisms might be made of particular support workers and their level of expertise, I am satisfied that they provide supervision and assistance that is necessary. I see no reason to suppose that PGV would obtain a superior level of care through privately-funded carers.

Conclusions about capacity for personal matters, and proposed declaration

66. [66]
    I do not regard as well-founded some of the perceptions reported by PGV to Dr Kingsbury – relating to matters such as financial impropriety, inappropriate decision-making by the guardians, and unneeded NDIS services – which she treated as evidence of his insight. I take into account Dr Kingsbury’s view that PGV’s positive impression management about his alcohol use relates to factors such as shame rather than indicating a lack of insight. I also take into account that a level of distrust of the guardians by PGV has probably arisen because they have made decisions he regards as detrimental. This may have coloured his view of their motives. Nonetheless, I consider that beyond these factors is a fundamental lack of insight by PGV into his accommodation and care needs, as has been remarked upon by Ms Schumann and Ms Brock. Whether this is attributable directly to the cognitive impairment that Dr Kingsbury notes, or the dementia that other health professionals have diagnosed, or more to some blind spot or denial associated with his condition, is unclear. The lack of insight means, however, that PGV is unable to understand the nature and true effect of decisions about accommodation and services. He is unable to weigh up the real pros and cons of different choices because he cannot appreciate the true level of his functioning and his needs.
67. [67]
    Supreme Court cases such as Hewitt v Bayntun & Allianz Australia Insurance Ltd^[34] and Barr v Amalgamated Property Maintenance Pty Ltd^[35] explain that present capacity must be assessed, as distinct from the possibility of a future loss of capacity due to a relapse into substance abuse or the recurrence of an episodic mental illness.
68. [68]
    The proper approach is to assess PGV in his sober state: he is by no means constantly inebriated, and the time when he is likely to make major decisions is when he is in a sober state. I have assessed PGV’s capacity accordingly.
69. [69]
    I have taken into account that the reports of Dr Kingsbury and Dr Shasti are more recent than those of Dr Prior and Ms Schumann. I have also taken into account the fact that Dr Kingsbury assessed PGV over two interviews, whereas Ms Schumann conducted only one interview. I also take into account the more detailed nature of Dr Kingsbury’s report, and the fact that she squarely addressed the definition of capacity. Nonetheless, I do not accept the ultimate opinions of Dr Kingsbury and Dr Shasti about capacity, having regard to the whole of the evidence.
70. [70]
    I find that the presumption of capacity is rebutted in relation to the personal decision-making matters of accommodation and services including NDIS.
71. [71]
    It may be that PGV has capacity to make other personal decisions, with the likely exception of health care decisions relating to treatment for his alcohol use disorder. However, as I will go on to explain, I do not consider it would be appropriate to appoint guardians for areas other than accommodation and services including NDIS.
72. [72]
    In these circumstances, I see no utility in making a declaration of capacity in relation to PGV’s personal decision-making. I decline to make any declaration.

Should guardians (or a guardian) continue to be appointed?

73. [73]
    I must revoke the appointment of guardians unless satisfied that I would appoint a guardian or guardians if I were deciding a fresh application for appointment.^[36]
74. [74]
    The criteria for a fresh appointment are found in section 12(1) of the Guardianship and Administration Act:

12Appointment

3. (1)
   The tribunal may, by order, appoint a guardian for a personal matter … for an adult if the tribunal is satisfied—

1. (a)
   the adult has impaired capacity for the matter; and

2. (b)
   there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

3. (c)
   without an appointment—

1. (i)
   the adult’s needs will not be adequately met; or

2. (ii)
   the adult’s interests will not be adequately protected.

75. [75]
    ‘Impaired capacity’ for a person for a matter means the person does not have capacity for the matter’.^[37]
76. [76]
    For the reasons already explained, I consider that PGV has impaired capacity for the matters of where he should live (accommodation) and what services he requires (services including NDIS).
77. [77]
    There is a need for an accommodation decision, given that PGV is not living in his preferred locality. There is also an ongoing need for decisions about PGV’s NDIS plan including whether efforts should be made to have the plan further reviewed, if the current attempt to expand funding is refused, and whether different or additional providers should be engaged.
78. [78]
    There is also a likelihood, in the absence of the appointment of a guardian or guardians, that PGV would make decisions about accommodation and services including NDIS that would involve unreasonable risk to his health and welfare.
79. [79]
    Further, I consider that without the appointment of a guardian or guardians, PGV’s needs will not be adequately met and his interests will not be adequately protected. This is because he would likely end up with insufficient care and supervision.
80. [80]
    Accordingly, it is open to continue the appointment of guardians (or a guardian).
81. [81]
    While it is likely that PGV lacks decision-making capacity in relation to health care concerning his alcohol use disorder, due to lack of insight, I consider it unlikely that the appointment of a guardian for decision-making in that area would achieve anything. A health guardian could decide, for example, that PGV should have further detoxification or rehabilitation. The guardian, though, could not force PGV to attend. PGV has previously engaged in such treatment voluntarily, often with encouragement from WFA. This can happen again.
82. [82]
    I can see no basis for concluding that the ongoing appointment of a guardian or guardians for all personal matters is required. I note that the 2021 appointment was made at a time when PGV was in hospital and had recently come out of a coma.
83. [83]
    I therefore consider that an appointment only for accommodation and services including NDIS is open. It is important to bear in mind that such an appointment is discretionary. In exercising the discretion one way or the other, it is important to consider other relevant factors.
84. [84]
    These include that the Guardianship and Administration Act acknowledges that an adult’s right to make decisions is fundamental to their inherent dignity;^[38] and that the right to make decisions includes the right to make decisions with which others may not agree.^[39] The right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent.^[40]
85. [85]
    The Act seeks to strike a balance between an adult’s right to the greatest possible degree of autonomy in decision-making and their right to adequate and appropriate support for decision-making.^[41]
86. [86]
    The general principles in Chapter 2A of the Act must be applied.^[42] Relevantly, this includes recognition of the adult’s dignity and worth, equal and inalienable rights, and fundamental freedoms.^[43] An adult’s full and active participation and inclusion in society is important.^[44] The adult’s right to liberty and security on an equal basis with others must be taken into account, and the adult should not be deprived of liberty except in accordance with law.^[45] The adult’s views, wishes and preferences must be sought.^[46] The rights, interests and opportunities of the adult must be promoted and safeguarded, and a power under the Act must be exercised in a way least restrictive of the adult’s rights, interests and opportunities.^[47]
87. [87]
    Read in isolation, the last of these factors would arguably preclude the appointment of a guardian in a case such as PGV’s, because an appointment inevitably restricts his rights. However, it is apparent that the factors should be read together, and balanced.
88. [88]
    A number of human rights are recognised in the Human Rights Act 2019 (Qld) (‘Human Rights Act’). Section 17 requires that a person not be treated in a degrading way. This is relevant, in my view, because the continued appointment of guardians in this case may well result in decisions that PGV continue to receive services contrary to his wishes, and in an environment where he is subject to a level of in-home surveillance by care providers. (There would be some level of scrutiny too if PGV engaged private carers. However, private carers may well not be required to report incidents in the same way that an NDIS provider is). Section 19 of the Human Rights Act protects freedom of movement, including recognising a person’s freedom to choose where to live.
89. [89]
    Human rights ‘may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.^[48] Whether limitation is justified may involve consideration of factors such as the purpose of the limitation and whether a less restrictive and reasonably available way of achieving it is available.^[49]
90. [90]
    Having considered these various factors, I am of the view that a guardian or guardians should continue to be appointed, notwithstanding PGV’s opposition and the impact on his rights and liberty. The likelihood of PGV rapidly declining into an abject state in the absence of adequate accommodation, supervision and care is high. Overall, PGV’s dignity and wellbeing, including his opportunities for work and other social participation, will be more enhanced while living in appropriate accommodation with a high level of carer support than if PGV were to make his own decisions about accommodation and services. I consider that PGV’s interests cannot be safeguarded in any less restrictive way than by the continued appointment of guardians (or a guardian).    

Should the existing guardians be replaced?

91. [91]
    The existing guardians can be removed only if they are no longer competent, or another person is more appropriate for appointment.^[50]
92. [92]
    Some examples of situations in which a guardian would no longer be competent are given in section 31(5) of the Guardianship and Administration Act. These include where a relevant interest of the adult has not been adequately protected; where the guardian has neglected their duties or abused their powers; or where the guardian has otherwise contravened the Act.
93. [93]
    Obligations of guardians include acting honestly and with reasonable diligence to protect the adult’s interests,^[51] and applying the general principles.^[52] One of the general principles is the presumption of capacity, but a guardian appointed for a matter is not required to presume that the adult has capacity for the matter.^[53]
94. [94]
    Appropriateness considerations for guardians are set out in section 15 of the Guardianship and Administration Act. They include the general principles and whether a person who might be appointed as guardian is likely to apply them; the extent to which the interests of the person and the adult are likely to conflict; whether the person and the adult are compatible; whether the person would be available and accessible to the adult, and the person’s appropriateness and competence to perform functions and exercise powers including whether the person has ever been a paid carer for the adult. Further, if more than one person might be appointed, a relevant factor is whether those persons are compatible.^[54]
95. [95]
    PGV expressed his views in an email to the tribunal dated 6 February 2023.^[55] He said his human rights were being violated including freedom of movement, freedom of association, freedom of expression, freedom of accommodation, freedom of privacy and reputation, freedom of property rights, and the right to health services. Further, PGV contended:

    1. (a)
       the guardians denied him the opportunity to purchase suitable retirement accommodation;
    2. (b)
       there is a history of mismanagement of his finances by one of the guardians;
    3. (c)
       he is living in substandard accommodation that is insect infested and has an unsafe bathroom and toilet;
    4. (d)
       there is regular theft of food paid for by a guardian without his agreement;
    5. (e)
       he receives National Disability Insurance Agency funding based on an application submitted by a guardian without his input or approval;
    6. (f)
       his community access through the National Disability Insurance Agency has been withdrawn and he is fundamentally confined to a property in a suburb of Ipswich to which he has no connection; and
    7. (g)
       his guardians have no contact with him regarding major decisions impacting on his life.
96. [96]
    PGV also commented in one of his tribunal application forms that the guardians have not permitted him to have outings unless someone – usually a person approved by the guardians – is available to accompany him.
97. [97]
    Mr Argles submits that the guardians have violated PGV’s human rights in relation to accommodation and outings. Further, the guardians are not appropriate appointees because of how far away they live and the fact that PGV and WFA are estranged spouses who have had a property settlement.
98. [98]
    In her oral evidence, Dr Kingsbury described the appointment as substitute decision-maker of an ex-partner as atypical. Further, the location of the guardians so far away in Perth makes it hard for them to be responsive.
99. [99]
    PGV’s NDIS support coordinator, Ms Booth, on the other hand, spoke favourably in her oral evidence of the work of WFA and DTA as guardians. Ms Booth also commented that PGV exhausted his NDIS community access funds going to doctors trying to get a new diagnosis. She said that PGV is living in shared accommodation but the National Disability Insurance Agency has been asked to fund single-occupancy accommodation as PGV has struggled to share accommodation.
100. [100]
     WFA and DTA say that PGV’s condition has improved compared with when he was living at West End. However, they consider that he still requires considerable assistance; more than can be provided in a retirement village. They say they want PGV to engage in activities in the community, but say he must be accompanied by carers to ensure he safely navigates the terrain. In a letter to the tribunal dated 10 March 2023, DTA said that PGV is offered opportunities for stimulating activities, but he prefers to spend time on his computer.
101. [101]
     WFA in her oral evidence denied PGV’s assertion that the guardians fail to consult him on important issues. She said the guardians take into account PGV’s views, wishes and preferences. She acknowledged that she tends to communicate more with the support coordinator rather than directly with PGV, but added that PGV tends to ring her at all hours.  She said that she and PGV worked together on the Sunnybank proposal.
102. [102]
     I accept the account given by the guardians of their actions, and I prefer their account where it conflicts with that of PGV. PGV has a tendency toward ‘positive impression management’ in relation to his alcohol use. Further, I consider that some of PGV’s other perceptions are distorted by resentment toward the guardians and probably too as a result of his cognitive impairment.
103. [103]
     I find that the guardians have discharged their responsibilities diligently and competently, and that they have applied the general principles. Application of the general principles involves judgment and balance. For example, a guardian must take into account and respect the adult’s privacy.^[56] However, this would not prevent a guardian, in exercising their powers to protect the adult’s interests, from sharing relevant private information with a service provider or an expert engaged to make an assessment. Another example is that a guardian must recognise and take into account the adult’s rights.^[57] This would include the adult’s right to freedom of movement including the adult’s right to choose where to live. However, that would not prevent a guardian, having taken into account the adult’s views, wishes and preferences, from making a decision that the adult live somewhere other than the place the adult prefers, or insisting that the adult be accompanied on outings, if the guardian concluded that such decisions were necessary to protect the adult’s interests. These are the sorts of challenges that WFA and DTA have faced as guardians. I consider that if their appointments are continued, they would continue to act responsibly, taking into account PGV’s views, wishes and preferences as well as the advice of experts and their deep knowledge of PGV’s background and personality.
104. [104]
     Mr Argles’ description of the marital relationship as estranged is inapt, in my view. PGV and WFA are separated. They are likely to remain separated, given that they have had a property settlement. Despite this, WFA clearly has ongoing concern for PGV, and she has shouldered the heavy and largely thankless responsibility of being a guardian for PGV.
105. [105]
     Dr Kingsbury is probably correct in describing the appointment of a separated spouse as a substitute decision-maker as atypical. However, it is not extraordinary. Each case must be approached on its particular facts. The marital situation would have been known to the tribunal when it made the appointment in 2021, as the application for the appointment of guardians, which was made by DTA, described WFA as PGV’s ‘former partner’.^[58]
106. [106]
     Similarly, the fact that the guardians live in Perth was known to the tribunal when it made the appointments. I do not consider that the geographical distance has impeded their ability to carry out their duties. They can travel to Brisbane if required, and they are easily contactable electronically.
107. [107]
     In my view, the only factors tending against the continued appointment of WFA and DTA as guardians are the questions of whether they are compatible with PGV, and whether the appointment clashes with the ‘importance of maintaining an adult’s existing supportive relationships’, which is a factor that must be taken into account.^[59]
108. [108]
     Compatibility is addressed in section 15(d) of the Guardianship and Administration Act:

whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult.

109. [109]
     I consider that the long-term knowledge of PGV by WFA and DTA, and their familial connection with him, make them compatible in terms of communication skills and social and cultural knowledge. However, no doubt compatibility goes further to include whether there can be a workable level of trust, empathy and concern. I consider that there has been an erosion of PGV’s trust in the guardians as they have made and stuck to decisions with which he disagrees.
110. [110]
     In terms of supportive relationships, I consider that the primary supportive relationship in PGV’s life for many years has been his marriage. His relationship with DTA would also have been significant. These are not the only supportive relationships in PGV’s life. He has friends and colleagues, and he maintains contact with his sister who lives in Sydney. A continued appointment of WFA and DTA may tend to diminish the level of emotional support that PGV might seek from WFA and DTA, as they exercise their roles as decision-makers for him.
111. [111]
     These issues have led me to consider whether the Public Guardian should instead be appointed as guardian for PGV. That would shift responsibility to the Public Guardian for decision-making, and allow WFA and DTA to focus on emotional connection with PGV. I must be mindful, though, that the tribunal may appoint the Public Guardian ‘only if there is no other appropriate person available for appointment’.^[60] Notwithstanding the disadvantages I have mentioned, I consider that, on balance, WFA and DTA remain the most appropriate persons for appointment. Their knowledge of PGV and his history places them in the best position to make decisions which protect his interests.

Conclusion

112. [112]
     I have decided to dismiss the application for a declaration about capacity. I have decided to continue the appointment of WFA and DTA as guardians, while narrowing their responsibilities to encompass only the areas of accommodation and services including NDIS.
113. [113]
     I have also made an order granting leave for PGV to be represented in the proceedings. I gave oral reasons for that decision during the hearing.