ADZ

[2021] QCAT 393

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ADZ [2021] QCAT 393

PARTIES:

In an application about matters concerning ADZ

APPLICATION NO/S:

GAA13506-21

MATTER TYPE:

Guardianship and administration matters for adults

ORDER MADE ON:

5 November 2021

REASONS DELIVERED ON:

11 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

The application for an interim order by WFZ is refused.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult may be removed from aged care facility against his wishes – whether immediate risk requiring interim appointment of guardian

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult may be removed from aged care facility against his wishes – whether immediate risk requiring interim appointment of administrator   

Guardianship and Administration Act 2000 (Qld), s 129(1)(b)

APPEARANCES & REPRESENTATION:

Nil

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

1. ‘ADZ’ is a 75 year-old man who is currently in aged care on a respite basis.

2. ADZ’s wife, ‘WFZ’, applied to the tribunal on 27 August 2021 for a guardian and an administrator to be appointed for ADZ. Those applications are yet to be heard and determined. It is likely to be some months before they will be heard.

3. On 2 November 2021 WFZ applied to be appointed guardian and administrator for ADZ on an interim basis. On 5 November 2021 I decided to refuse that application, for the reasons that follow.

ADZ’s circumstances

1. A report by Dr Liam Yu dated 25 August 2021 indicates that ADZ has partially-impaired capacity for decision-making, resulting from a brain tumour. Significantly, however, in response to a series of questions relating to capacity to make an enduring power of attorney, Dr Yu indicates that ADZ does have capacity to make an enduring power of attorney. In this regard, it is relevant to note that the definition of capacity for decision-making and the definition of capacity for making an enduring power of attorney are different.[1]   

   [1]The former is defined in Schedule 4 to the Guardianship and Administration Act 2000 (Qld), and the latter is defined in section 41 of the Powers of Attorney Act 1998 (Qld).

2. There is no suggestion that ADZ has made an enduring power of attorney. I do not know whether it has not occurred to him to do so or whether, perhaps, his functioning has significantly declined since Dr Yu assessed him in August.

3. The impetus for the interim application was that the aged care facility had advised WFZ that ADZ’s respite funding would run out on 8 November 2021. If the facility could not secure an extension from the Commonwealth funding agency, it would have to send ADZ back to hospital. If a substitute decision-maker were appointed for ADZ, however, that decision-maker could accept a permanent placement for ADZ. WFZ explained in her interim application that she is unable to care for ADZ at home, and that he does not want to return to hospital.

4. The tribunal sought an update from the facility. It advised on 5 November 2021 that a 21-day extension of respite funding had been granted.

Why was the interim order application refused?

1. The tribunal can make an interim appointment only if satisfied, among other things, that there is an immediate risk of harm to the health, welfare or property of the adult in question.[2]

   [2]Guardianship and Administration Act 2000 (Qld), s 129(1)(b).

2. The immediate risk of harm identified by WFZ in her interim application was the imminent removal of ADZ from the aged care facility back to hospital, contrary to his wishes.

3. However, assuming (without deciding) that this would be a risk of sufficient magnitude to warrant the interim appointment of a guardian and/or an administrator, the risk is no longer imminent because there has been an extension of respite funding.

4. In the absence of immediate risk, the interim order application was refused.

Conclusion

1. It is open to WFZ to make a further interim order application in due course if required. However, she should first discuss with ADZ the option of him making an enduring power of attorney, if he still has the capacity to do so. An enduring power of attorney would probably provide a much quicker solution. If the matter is resolved in that way, WFZ should then file in the tribunal an application for leave to withdraw her applications for the appointment of a guardian and an administrator, using QCAT Form 58.