VJC v NSC[2005] QSC 68

SUPREME COURT OF QUEENSLAND

[1] WILSON J:  The applicant and the respondent are the mother and father respectively of JFC, an intellectually disabled adult. By an originating application filed on 15 November 2004 the applicant sought leave to appeal against a decision of the Guardianship and Administration Tribunal given on 14 November 2003 by which the respondent was appointed guardian of JFC, or alternatively an order granting her access to JFC 2 consecutive week days each week. On the hearing of the application the applicant did not pursue leave to appeal against the Tribunal decision.

[2] JFC was born on 11 February 1970. When he was 5 weeks old, he contracted bacterial meningitis and was left with physical and intellectual disabilities. He is mildly to moderately mentally retarded, with a full scale IQ below the first percentile. He has significant visual, spatial, planning and organisation deficits, and his capacity for verbal learning and memory is severely impaired.

[3] The applicant and the respondent separated in 1980 (when JFC was aged 10), and were subsequently divorced. JFC and his 4 siblings remained with the respondent, who in due course obtained a custody order. The respondent remarried in 1996. JFC has always lived with the respondent. The household presently comprises the respondent (his father), his stepmother and him.

[4] JFC works 5 days a week at an Endeavour Foundation workshop. He spends every second weekend with the applicant, as well as 3 weeks holiday with her every year.

[5] At all times the applicant and the respondent have been concerned to do what is best for JFC. However, they have disagreed upon what is in his best interests, and there has been quite a deal of litigation both in the Supreme Court and before the Tribunal. The respondent considers that JFC needs structure and routine in his life and says that it is difficult for him to settle if that routine is upset (for example, by weekends or holidays with the applicant). Further he says in effect that JFC does not understand social limits and so needs considerable supervision; because he is a big man (over 6 feet tall and weighing about 85 kg) and often loud and effusive, he can easily be misunderstood by those who do not know him. On the other hand the applicant considers that JFC is being denied some human rights – that he is living too restrictive a life, and that he would benefit from greater participation in mainstream society and from being given the opportunity to use his creative talents.

[6] The law's concern for persons of unsound mind and the protection it affords them have a long history. Much of the language used in the cases and statutes may be offensive in the contemporary world. Language is a dynamic, evolving means of expression; the meaning and shades of meaning of words and the innuendos they bear change with the passing of time, so that what may be offensive in one age was not necessarily so at an earlier time.

[7] The common law drew a distinction between persons of unsound mind from birth ("idiots") and those who became so subsequently ("lunatics"). Control of the property and persons of those of unsound mind was the prerogative right of the Sovereign acting as parens patriae. In time it was delegated to the Lord Chancellor under warrant of the royal sign manual: Re D (A Lunatic Patient) (No 2) [1926] VLR 467 at 477- 478 per Dixon AJ; Re Magavalis [1983] 1 QdR 59 at 61 per McPherson J. The Lord Chancellor would direct a commission de lunatico inquirendo asking a jury to determine whether someone was of unsound mind and unable to manage his affairs. If the jury found that he was, then the Lord Chancellor could appoint a committee or direct inquiries and make orders for the care and protection of his person and property: Ex parte Cranmer (1806) 12 Ves Jun 445; 33 ER 168; Re D (A Lunatic Patient) (No 2) at 478; Re Magavalis at 61.

[8] This responsibility of the Lord Chancellor was given to the Supreme Court of Queensland by s 22 of the Supreme Court Act 1867 (now s 201 of the Supreme Court Act  1995). The commission de lunatico inquirendo was abolished by cl 4(1) of the 5th Schedule to the Mental Health Act 1974, which provided that where the Court was satisfied that a person was mentally ill and incapable of managing his affairs it might appoint a committee of his estate or his person.

[9] On 13 September 1993 in the Supreme Court of Queensland Dowsett J declared JFC a mentally ill person incapable of managing his estate, appointed the present respondent as the committee of his person, and made orders for access by the present applicant. The applicant applied to vary His Honour's order by putting in place a 12 month therapy programme: after various interlocutory orders, that application was dismissed on 18 May 1998; the applicant's appeal against the dismissal of her application was dismissed by the Court of Appeal on 2 July 1999.

[10] Under the Guardianship and Administration Act 2000 the Guardianship and Administration Tribunal may appoint guardians and administrators for adult persons of impaired capacity. A guardian is appointed for one or more "personal matters" and an administrator is appointed for one or more "financial matters". "Personal matter" is defined in s 2 of Schedule 2 to the Act in the following way -

“Personal matter

A ‘personal matter’, for an adult, is a matter, other than a special personal matter or special health matter, relating to the adult's care, including the adult's health care, or welfare, including, for example, a matter relating to 1 or more of the following –

(a) where the adult lives;

(b) with whom the adult lives;

(c) whether the adult works and, if so, the kind and place of work and the employer;

(d) what education or training the adult undertakes;

(e) whether the adult applies for a licence or permit;

(f) day-to-day issues, including, for example, diet and dress;

(g) health care of the adult;

(h) whether to consent to a forensic examination of the adult;

(i) a legal matter not relating to the adult's financial or property matters.”

[11] On 1 November 2000 the Tribunal appointed the respondent as JFC's guardian for 3 years and the Public Trustee as his administrator also for 3 years. It also made the following recommendations (apparently in the exercise of a power granted to it by s 138) -

“IT IS RECOMMENDED BY THE TRIBUNAL:

a.That [the respondent] initiates whole of life planning for Mr JFC to include future work and future accommodation options.

b.That [the respondent] ensures that the current visiting arrangements whereby Mr JFC spends alternate weekends with his mother, [the applicant], continue in accordance with Mr JFC’s wishes.”

[12] The respondent's appointment as guardian was reviewed and confirmed by the Tribunal in early 2001. The applicant asked this Court for leave to appeal against the Tribunal’s decision, but leave was declined: C v C [2001] QSC 126. Both appointments were thoroughly reviewed by the Tribunal on 14 November 2003, when the respondent's appointment as guardian was extended for 5 years and he was appointed also as administrator for financial matters for 5 years.

[13] The present application is brought in the parens patriae jurisdiction of the Court. That jurisdiction is expressly preserved by s 240 of the Guardianship and Administration Act. It is a jurisdiction that is always exercised with great caution. The paramount consideration is what is in JFC's best interests. In this context "access" is not a right of the applicant as his mother. She bears the onus of persuading the Court that it would be in JFC's best interests for him to have the increased contact with her that she seeks.

[14] The parties reside in a town on the central coast of Queensland. The respondent is self employed in an aircraft maintenance business which he conducts from a hangar at the local airport. The applicant has recently completed a bookkeeping course through TAFE and intends to work as a bookkeeper from home. The applicant has sworn –

"[JFC's] present situation and lifestyle at his fathers house is as follows:

[JFC] is up at 6.15 am each week day and catches the bus at around 7 am.

[JFC] arrives home from work around 4.45 pm each day.

[The respondent] and JFC try to for [sic] a bike ride during the week although that is not always possible. [His stepmother] and JFC walk and ride around three times a week, and walk on the beach.

[JFC] goes to the hangar where they work and mixes with the staff and other people who work around.

(This would be after 4.45pm, after work during the week, as they are workers.)

[JFC] watches Videos and [the respondent] often watches Videos with [JFC].

[The respondent], [his stepmother] and JFC often go to the ....Harbour for fish and chips on Friday nights. [The respondent], [his stepmother] and [JFC] to [sic] church and morning tea each Sunday.

[The respondent] took [JFC] to a concert. [JFC] assists [the respondent] and [his stepmother] gardening.

Weekends are going on a picnic, ride in [the respondent's] car or assisting [the respondent] in the shed.

They regularly have family barbeques with the extended family.

There are photos of [JFC] looking very happy at these outings.

This is confirmed in a previous Affidavit in 2003 of ..... who is [JFC's] step-mother.

[JFC] has no social life other that [sic] which he does with [the respondent], [his stepmother] and the extended family. Also [JFC] has extremely limited social mixing in mainstream society, no educational, recreational and cultural pursuits...."

[15] The applicant contends that it would be in JFC's interests for him to spend only 3 days per week at work, and on the other 2 weekdays for him to mix more in mainstream society and to do things such as attending a gym, aqua aerobics, horseback riding, doing literacy and numeracy courses, reading books, etc. The respondent says that JFC is happy in his work and comfortable with his working conditions and his relationships with staff and other people at work, and that there has never been a day when he has not wanted to go to work. He says that JFC has to be sheltered to some extent, but that he does mix with people other than direct family - for example, bus drivers, friends he meets at Mass, people he meets at St Vincent de Paul Society functions, and others he meets during the year.

[16] The applicant has expressed concern that JFC is being denied basic human rights and that the respondent is not abiding by the "General Principles" in Schedule 1 to the Guardianship and Administration Act. Those general principles,  which must be applied when exercising jurisdiction under the Act, are an important statement of contemporary values in relation to the welfare of an intellectually disabled person and are thus relevant to the application of the parens patriae jurisdiction today.  Of particular relevance to the present application are the principles that all adults have the same basic human rights regardless of capacity (Principle 2); that an adult has a right to respect for his or her human worth and dignity as an individual (Principle 3); that an adult has a right to be a valued member of society, and the importance of encouraging and supporting an adult to perform social roles valued in society (Principle 4); the importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community (Principle 5) and the importance of encouraging and supporting an adult to achieve the adult’s maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable (Principle 6).  These principles are set out in full in the appendix to this judgment.

[17] What is the evidence on which the applicant relies to support her contentions?

[18] Ms Tonya Plumb, a psychologist, assessed JFC at the behest of the applicant in April 2003, and prepared a report which was before the Tribunal when it reviewed the guardianship order in November 2003. She interviewed JFC and the applicant, but not the respondent. She said -

“Clinical Interview with [JFC]

As [JFC] has been extensively assessed previously by a full range of professions, including medical, psychological, and educational specialists, further testing was not considered either appropriate or helpful.  Instead, the writer asked [JFC] a series of specific questions about his current lifestyle, his likes and dislikes, and any preferences regarding his future. 

As would be expected, [JFC] appeared to have a very rudimentary understanding of his Guardianship Order.  When asked who made decisions about him, he promptly stated “Dad’s the boss”.  It was quite difficult to extract an expression of a preference from [JFC].  [JFC] was asked if he would like to join in some other activities such as sports and gardening, [JFC] stated “It’s up to Dad”. 

[JFC] described his day to day activities when attending Endeavour Foundation.  He presented as proud of having his job at Endeavour, but stated he sometimes got “sick of doing it”.  He enthusiastically described his friends at the Endeavour Foundation.   He was fearful of not attending Endeavour Foundation five days per week, as he believed he would lose his job. 

He stated that he liked listening to country music at home, and his favourite performer was John Williamson.  He also watched television, and he nominated “Dad’s Army” as one of his favourite programs.  His other interest was cars and motorbikes.  He stated “I can’t drive, but I wish I could”.  [JFC] stated he often went to the hangar with his Dad (his father’s workplace). 

He looked forward to seeing his mother, and enjoyed going with her to visit neighbours and friends.  He particularly liked going shopping at …

Review of Evidence

[JFC] is clearly comfortable, secure, and happy in his current living arrangements with his father.  He perceives his father as “the boss” and probably derives considerable comfort from having his father making the majority of his decisions.  However, he also derives considerable stimulation and interest from his fortnightly weekend visits to his mother’s residence.  There is no doubt that both of his parents care deeply for him, and have his best interests at heart.  It was also apparent that [JFC] holds both of his parents in a very high regard.

[JFC] has been at the Endeavour Foundation since his teenage years.  While he may sometimes find the repetitive nature of his job boring, he has responded well to the security and safety and structure the organization provides him.  He also has a number of friends there of many years standing. 

Although difficult to measure, it is unlikely [JFC] has regressed.  However, it is highly probable that there has been little progress, particularly in the domains of life that relate to opportunities for recreation, leisure, and participation in community life.  He does not appear to have had the benefit of organizations such as …….. Life Enhancement Group that provide disability support services including life skills training, respite and community access.  Social and recreational interaction within the community is also provided, including sports and gymnastics.  Participation in community life and encouragement of self-reliance are two of the General Principles in Schedule 1 of the Guardianship and Administration Act 2000 that relate to enhance this aspect of [JFC’s] life. 

Recommendations

In summary, the writer is of the opinion that [JFC] is well provided for under his current Guardianship Order.  However, the writer respectfully suggests the Tribunal consider giving [JFC] the opportunity on a trial basis to participate for perhaps one day a week in the recreational and social activities as outlined above.  The writer is particularly concerned that [JFC] expands his opportunities for socializing and improving his recreational and sporting skills.  This will be a particularly important skill to develop as his parent’s age and are unable to provide for all the major domains of his life as they currently do. 

This would of course also depend on whether he can vary his employment conditions at Endeavour.  There is no doubt [JFC] benefits greatly from the stability and structure of his work at the Endeavour Foundation.” 

[19] The report is now somewhat dated. Be that as it may, there is no evidence from the Endeavour Foundation about whether JFC could vary his employment conditions. This is a serious shortcoming in the applicant's case.

[20] The applicant relies on a letter written by Dr Graham Futter, psychiatrist, to Dr Richard Malone, general practitioner, on 9 November 2004. Dr Futter wrote -

“[The applicant] consulted me on the 8th November 2004.  On that day [she] showed me a number of documents relating to her son [JFC].  [JFC] is intellectually disabled and is in the custody of his father. 

[The applicant] is very concerned that [JFC] is not living a full and happy life at present.  [JFC] goes to work at the Endeavour Foundation five days a week.  In 2003 John had only twelve days leave from Endeavour. 

I am concerned that [JFC] is being deprived of his basic human right of expressing his choice to do a number of things at the moment.  Apparently [JFC] has expressed a desire to do things like horse riding and ten pin bowling.  He has also been to a gym and expressed a desire to be involved in an exercise program there.  He is also not allowed to access the facilities available to him at the library.  [JFC] has been assessed at TAFE and has been told that he could do a numeracy and literacy course.  [JFC] has expressed a desire to do this course so that he will be able to communicate better and even do some reading.

[JFC] is also not allowed to make a list and go shopping. 

[The applicant] is going to petition the court to be given two days access to [JFC] so that he would be able to be involved in some of the above activities. 

[The applicant] will utilise this letter to strengthen her case for [JFC].”

As the respondent pointed out, Dr Futter did not interview JFC, the respondent or JFC's supervisors at the Endeavour Foundation workshop. He made various assumptions based on what the applicant apparently told him. It is not at all clear the evidence that JFC has expressed a desire to participate in all these activities; rather they are activities which the applicant has identified as ones she thinks he would benefit from.

[21] Dr Malone wrote a letter "to whom it may concern" on 3 January 2003 in which he said -

“I have examined [JFC] today and would support [the applicant’s] application for [JFC] to participate in more activities outside the workshop under her guidance. 

I would envisage that this would assist [JFC’s] development as a social and interactive member of the community.”

It is impossible to know what information he was given about JFC, his lifestyle and his social interaction, and so his letter does not advance the applicant's case.

[22] Mr Brian Hennessy, psychologist, provided a report in November 2000. He was asked by the applicant to express a professional opinion on whether or not JFC would benefit from increased intellectual, social and physical stimulation. For this purpose he saw the applicant on 2 occasions and JFC on one occasion. He noted JFC's need for adequate and systematic stimulation in order to maintain his optimum level of functioning and sense of self-worth, and recommended exposure to a variety of social, cultural and recreational activities. The report is expressed in very general terms. It was written over 4 years ago, and does not contain any evaluation of the applicant's actual lifestyle or activities and contacts and the extent to which the recommended strategies could or were being pursued.

[23] Mr Michael McCarthy is a family friend of the applicant and JFC. They "communicate with each other quite regularly". In an affidavit made on 30 December 2004 he swore -

“I am aware of [the applicant’s] problems concerning lack of her access to [JFC].  I am aware of her frustration and of [JFC’s] frustration at not being allowed by the present Guardian basic human rights of an individual.  I feel that [JFC’s] opportunities are passing him by as he toils day after day in the Endeavour Sheltered Workshop, doing repetitive jobs.  Other intellectually disabled adults are his only stimulation.”

He did not explain what he meant by JFC's frustrations at being denied basic human rights; he did not say what he knew of JFC's daily activities at the workshop (other than that the work was repetitive) or what opportunities JFC was missing. He is a lay witness, and so his opinions are inadmissible as evidence.

[24] Mr John Curtis is a young man who met JFC at the New Life Christian Church which he attends with the applicant. In an affidavit made on 4 January 2005 he swore -

“2.… I have found [JFC] to be extremely friendly and he talks at length about the Morgan Car that he is sanding back in his father’s shed. 

3.I have also visited [JFC] at his mothers house and gone for a walk along the beach with him.  [JFC] has shown interest in my car and all things mechanical.

4.I offered to go to [JFC’s] fathers house and help him do some sanding on the Morgan Car and see the work that he has been doing.  [JFC] was very keen for me to do this.  However, this was unable to eventuate as when I phoned and asked [the respondent], [JFC’s] father and Guardian, he refused to allow me to visit [JFC].”

The respondent's explanation for declining Mr Curtis' offer was that he had never heard of him until one day when he rang and asked if he could come and help JFC sand his car, and that the sanding was almost finished when he rang. On the limited material before the Court, it is difficult to be critical of this response.

[25] Pastor Craig Tomkinson is the principal pastor at the New Life Christian Church attended by JFC and the applicant. In an affidavit made on 21 December 2004 he swore that he had known them for about 3 years. He said -

“2.… [JFC] is a friendly man who has a great desire to mix socially in mainstream society. 

3.I am concerned that [JFC] is missing out on life’s opportunities as he has to attend the Endeavour Industries Workshop, full time, five days per week.  Here he mixes only with other intellectually disabled adults all day. 

4.I support [the applicant’s] application for guardianship or for two consecutive days access to [JFC] to enable her to take [JFC] to stimulating activities such as, horseback riding, literacy and numeracy at TAFE, the library, the gym and swimming, and any other activity that [JFC] tries and wishes to do.”

…

5.[JFC] is now 34 years of age and I believe that as [JFC] grows older and his parents age, it is vitally important that he becomes aware of his basic human rights and that he is allowed to mix and socialize in mainstream society and to access opportunities that will enhance his lifestyle.”

[26] I do not doubt that Pastor Tomkinson is well-intentioned in his concern for JFC, but his opportunities to observe JFC seem to have been limited, and he is not in a position to evaluate the various activities proposed by the applicant.

[27] I am satisfied that JFC does need structure and routine, and that the respondent is providing that both in the home environment and by facilitating his work at the Endeavour Foundation workshop. I am persuaded, too, that he needs some social interaction and stimulation in order to maintain his optimum level of functioning and sense of social worth. However, there is insufficient evidence for me to be satisfied that under the present access arrangements he is being denied adequate social interaction and stimulation or that what the applicant is proposing would enhance his welfare.

[28] The Guardianship and Administration Tribunal is a specialist tribunal set up to determine issues relating to intellectually disabled adults. In determining an application it is constituted by an experienced lawyer, someone with professional knowledge or experience of persons with impaired capacity, and someone with personal experience of such a person: Guardianship and Administration Act ss 90, 101. Proceedings before the Tribunal must be conducted as simply and quickly as the requirements of the Act and an appropriate consideration of the matters before it allow, and it is not bound by the rules of evidence: s 107. It can mould its procedures to the demands of a particular case: ss 104, 107, 109.

[29] The Tribunal gave very careful consideration to JFC's best interests in making and confirming the guardianship order in favour of the respondent. It took full note of the applicant's genuine concerns for JFC's welfare, and her belief that he would benefit from a less rigid lifestyle and greater social interaction. The Tribunal has not expressly been given jurisdiction to deal with access to an intellectually disabled adult. Access is a concept borrowed from family law and disputes between parents (and sometimes other relatives) about children. In that context, too, it is now recognised that the issue is not one of parental right but of whether it is in the best interests of the child to have contact with a parent and if so to what extent: Hodak v Newman (1993) 17 Fam LR 1; Rice v Miller (1993) 16 Fam LR 970; Re Evelyn (1998) 23 Fam LR 53.  A decision as to with whom an intellectually disabled adult comes into contact, in what circumstances and for how long is, in my view, a “personal matter” within the definition of such matters in Schedule 2 to the Guardianship and Administration Act. Accordingly it is prima facie a matter for the respondent as guardian to determine.

[30] Section 138 of the Guardianship and Administration Act provides –

“138 Advice, directions and recommendations

(1) Once an application about a matter has been made to the tribunal, the tribunal may –

(a) give advice or directions about the matter it considers appropriate; or

(b) make recommendations it considers appropriate about action an active party should take.

(2) If the tribunal gives advice or a direction or makes a recommendation, it may also –

(a)  continue with the application; or

(b) adjourn the application.

(3) The tribunal may also give leave for an active party to apply to the tribunal for directions about implementing the recommendation.

…

(5) If the tribunal gives directions to a guardian, administrator or attorney, the person must comply with them, unless the person has a reasonable excuse.

…”

[31] It may be that on an application for the appointment of a guardian the Tribunal could give a binding direction with respect to access. (As I have noted, in November 2000 the Tribunal made a recommendation in this regard.) Further it may be that having made an appointment the Tribunal is not thereby functus officio, as after appointment a guardian is under a continuing duty to provide the Tribunal with updating advice about his appropriateness and competence (s 17), the Tribunal may make inquiries about these matters (s 18), the appointment may be reviewed at any time on the initiative of the Tribunal or the application of an interested person (s 29) and it must be reviewed at least every 5 years (s 28). These questions were not fully canvassed before me, and I should not be taken as having finally determined them.

[32] This Court clearly has jurisdiction to determine access to an intellectually disabled person. As I have already said, it is a jurisdiction to be exercised with great caution. The existence of a specialist tribunal with power to determine this question would be a powerful consideration against this Court's making such an order even if there were otherwise a supportable case for its doing do. If the Tribunal had jurisdiction, this Court could, and in an appropriate case should, transfer the access application to it pursuant to s 241.

[33] The application is dismissed.

GUARDIANSHIP AND ADMINISTRATION ACT 2000

PRINCIPLES

SCHEDULE 1

section 11

PART 1 – GENERAL PRINCIPLES

1 Presumption of capacity

An adult is presumed to have capacity for a matter.

2 Same human rights

(1) The right of all adults to the same basic human rights regardless of a particular adult's capacity must be recognised and taken into account.

(2) The importance of empowering an adult to exercise the adult's basic human rights must also be recognised and taken into account.

3 Individual value

An adult's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.

4 Valued role as member of society

(1) An adult's right to be a valued member of society must be recognised and taken into account.

(2) Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.

5 Participation in community life

The importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.

6 Encouragement of self-reliance

The importance of encouraging and supporting an adult to achieve the adult's maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.

7 Maximum participation, minimal limitations and substituted judgment

(1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.

(2) Also, the importance of preserving, to the greatest extent practicable, an adult's right to make his or her own decisions must be taken into account.

(3) So, for example –

(a) the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult's life; and

(b) to the greatest extent practicable, for exercising power for a matter for the adult, the adult's views and wishes are to be sought and taken into account; and

(c) a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult's rights.

(4) Also, the principle of substituted judgment must be used so that if, from the adult's previous actions, it is reasonably practicable to work out what the adult's views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult's views and wishes.

(5) However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult's proper care and protection.

(6) Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.

8 Maintenance of existing supportive relationships

The importance of maintaining an adult's existing supportive relationships must be taken into account.

9 Maintenance of environment and values

(1) The importance of maintaining an adult's cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.

(2) For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.

10 Appropriate to circumstances

Power for a matter should be exercised by a guardian or administrator for an adult in a way that is appropriate to the adult's characteristics and needs.

11 Confidentiality

An adult's right to confidentiality of information about the adult must be recognised and taken into account.