The Public Trustee, the Adult (Public) Guardian and their Aboriginal client.

I would like to draw your attention to the situation of a person for whom I advocate, who I will refer to as “the person” so as not to breach confidentiality restrictions. He is a client of the Public Trustee and former client of the Adult Guardian (now known as the Public Guardian).

There are two elements of this story, the Public Trustee and the Adult Guardian but the problem is the combined consequences of the Queensland’s guardianship agencies’ structural inability to engage with Aboriginal clients, their life needs and the perspective of their families. As such, statutory authorities’ substituted decision making on behalf of Aboriginal clients is without insight or sensitivity resulting in a severe disadvantaging of the person.

The person is an Aboriginal man in his early thirties. He grew up in an Aboriginal family in North Queensland. At the age of four he was involved in a car accident and suffered injuries to a leg and an arm. The psychological consequences of the injuries and lifestyle when recuperating manifested as emerging mental health issues as a teenager, as recorded in medico-legal reports. Mental health issues are the only diagnosed medical issues other than orthopedic injuries.

1/ The Public Trustee

1When the person turned 18 he received an insurance payout for the car accident. The amount was enough to buy a house which is what the person and his family wanted it to be spent on. The Supreme Court appointed the Public Trustee to administer the money.

The Public Trustee refused to buy a house for the person, in direct defiance of the will of the person and his family and he consequently lived in a cycle of inappropriate hostels and the streets.

When the person was twenty, his family successfully applied to the (now defunct) Guardianship and Administration Tribunal (GAAT) to replace the Public Trustee as administrators in order to purchase a home for the person.

At this time, the Public Trustee falsely reported to the GAAT that the person had an acquired brain injury. Previous medical reports specifically ruled out a head injury and there were no new diagnoses suggesting a brain injury. This false attribution of an acquired brain injury subsequently informed the decisions of the Adult Guardian and GAAT including being relied on to justify the the removal of the person’s right to make personal decisions and consequent restrictions on contact with his mother including family accommodation and care options.

When the person was 21 a two bedroom unit on the Sunshine Coast and a thirty acre bush block on the Sunshine Coast hinterland were purchased for him by his family trustees – a fulfilling and flexible lifestyle with investment potential. The person was the first person in his family to ever own his own home since the forced removal of his grandparents from their traditional estate.

Shortly after the properties were purchased the Public Trustee was re-appointed administrator. The unit was initially rented out on the open market to pay for Public Trustee fees and the bush block was sold.

When the person was twenty four he lived in a South Brisbane Park for eleven months. Because of his assets, he was ineligible for public housing and basic homelessness safety nets. He had no access to any money as his pension was being paid to the Public Trustee who had no arrangement to deliver it to the person. At the time, the Adult Guardian was appointed as the person’s substituted decision maker for accommodation decisions and would not let him live with his mother. The Adult Guardian was aware that the person was living in the park. At this time the Public Trustee sold the person’s Sunshine Coast unit, which had been bought specifically for the person and a carer to live in and close to health and welfare services. The Public Trustee did not speak to the person, his family or the Adult Guardian in making the decision to sell the unit. For the next four years the person lived in a cycle of living in the park, gaol and age, culture and disability inappropriate nursing homes, after which he has been allowed to live with his family and has lead a stable and happy life, except for insecure accommodation and constant conflict with the Public Trustee about even basics such as access to pension, transport and to get some sort of lifestyle benefit from his assets.

Under the management of the Public Trustee, the person’s life was transformed from an 18 year old with the means of being the first person in his family to own his own home, to a 21 year old that actually owned not just a home but a lifestyle, then to today, a person with fewer accommodation options than the average homeless person. Because the Public Trustee lost a lot of his money in the GFC, he no longer has the means to purchase a home. Yet his remaining assets still make him ineligible for public housing, which also means he is not allowed to live with any family member who is in public housing as his assets are above the household limit. His current carers, pensioners, are ineligible for public housing as long as they live with the person. Except for his current carer’s, all of his extended family live in Public housing. There are ongoing problems with private rental market as he faces racial and disability discrimination, this has never been successful in the past and there are problems at present that are just a continuation of the cycle of insecure accommodation that has existed for most of his life.

His assets also make him ineligible for Legal Aid or Aboriginal legal service representation, both of which he could access if he owned his own home.

When the person’s current carer’s are no longer able to live with him he will be left with the same lack of options that he faced previously including a return to a cycle of gaol and living in the streets. This is no exaggerated prophecy of doom, there simply are no other options. He cannot access public housing, he cannot stay with family in public housing, there are no appropriate supported accommodation programs and he cannot afford his own home. He cannot access basic homelessness services such as housing and legal support.

2/ The Adult Guardian

The Adult Guardian was appointed substituted decision makers for the person’s personal decisions for various things at various times. All appointments were based on the false assumption of the person’s incapacity because of an acquired brain injury despite all medico-legal reports identifying that the person did have the capacity for all personal decisions except the management of his insurance payout. The one single diagnosis of an ABI, five years after it was recorded on all the person’s files and repeatedly reported to GAAT and medical authorities, was made by a doctor that was told by the Adult Guardian that the person had a brain injury, was not provided with any previous medical reports, including a neuro-psychologist report ruling out a brain injury or the most recent medico- legal report that not only diagnosed mental illness but referred the person to a particular hospital mental health unit. The new diagnosis ruled out mental illness, attributing all symptoms to an ABI. The Queensland Civil and Administrative Tribunal (QCAT) that replaced the GAAT for guardianship matters has recently stated that the ABI was a misdiagnosis, but despite this and to the contrary of all previous credible medico-legal reports, QCAT has re-affirmed the presumption of incapacity for personal matters on the basis of this misinformed diagnosis.

The Adult Guardian placed contact restrictions on the person and his mother for six years, against the person’s will, including prohibiting the person being cared for by his mother. An internal Adult Guardian review identifies that the Adult Guardian acted without objectivity towards the person’s mother, made decisions based on insufficient evidence, made culturally inappropriate decisions and made decisions outside of its GAAT appointment. Yet the Adult Guardian restrictions on contact between the person and his mother continued for six years, only ceasing when the person walked out of his nursing home and lived on his mother’s lounge room floor, shortly after which the Adult Guardian’s appointment ended.

The success and stability of the person in the care of his mother since his defiance of Adult Guardian decisions is solid proof of the inappropriateness of the decisions to remove the person from his family. All contemporary reports and policies regarding Aboriginal families specifically identifies the importance of family connections and the disastrous consequences of removing vulnerable people from their families. The internal Adult Guardian report identifies that non-objective and culturally inappropriate decisions were made based on insufficient evidence. The Adult Guardian’s most recent submission to QCAT is that the person’s mother is the most significant and important relationship in the person’s life – after six years of arguing and acting to the contrary.

In the context of severely restricted accommodation options as a result of Public Trustee decisions, the Adult Guardian deprived the person of opportunities of family support during his times of extended homelessness that accompanied periods of serious regression of mental health issues. The Adult Guardian refused to provide mental health services, insisting that the person had an ABI and no mental illness as per the now discredited diagnosis of an ABI, and was consequently referred to an ABI service and then nursing homes. He was prescribed anti-psychotic medication by an in-house G.P. in his last nursing home, shortly before he walked out, but except for that he had received no mental health treatment while under the management of the Adult Guardian.

The Adult Guardian decisions, based on false information of an ABI from the Public Trustee, a documented bias against the person’s mother and a structural incapacity of the Adult Guardian to engage with, let alone make substituted decisions for, their Aboriginal clients, have had a serious consequence on the person’s life including separating him from his primary family support, denying appropriate accommodation, denying appropriate health care and denying appropriate legal representation.

This has resulted in a serious deterioration of the person’s mental health through the stresses of homelessness and repeated unnecessary incarcerations (because he had no fixed address).

The person’s grandmother, who was his co-carer when recuperating from his accident, was forcibly removed from her family as a child and sent to Palm Island. From that time until after the person’s mother was born, the family had their lives and wages managed by statutory agencies – the “protection” system. The grandmother’s wages were held by the state yet she was never allowed to benefit from it, begging permission to buy basics for her family. The person’s insurance payout and the possibility of home ownership represented a break from the cycle of enforced poverty and institutional powerlessness, but instead this same cycle has been repeated in this generation.