ASM

[2017] QCAT 197

CITATION:

ASM [2017] QCAT 197

PARTIES:

ASM

APPLICATION NUMBER:

GAA12833-16; GAA12834-16; GAA1095-17; GAA1083-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

28 April 2017

HEARD AT:

Southport

DECISION OF:

Member McDonald

DELIVERED ON:

 22 May 2017

DELIVERED AT:

Southport

ORDERS MADE:

1.   The appointment of KM and DRM jointly and severally as guardians for ASM for the following personal matters is revoked:

(a) Accommodation;

(b) Health care;

(c) Provision of services.

ADMINISTRATION

2.        The appointment of KM and DRM jointly and severally as administrators for ASM for all financial matters is revoked.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult with impaired capacity has administrators appointed for financial matters and guardians appointed for personal matters – where reviews of those appointments were sought – where parties have moved interstate – where conflict between jointly and severally appointees –whether QCAT has jurisdiction to make appointments – whether sufficient connection with Queensland for extra-territorial reach of Tribunal to resident of another State

Guardianship and Administration Act 2000 (Qld), s 12, s 31, Schedule 1, Schedule 4

APPEARANCES:

DM, ASM, KM, DRM, WS

1. ASM is a 76 year old lady living with early stages of vascular dementia. She is living with her husband, DM, in an independent living villa in Tamworth, New South Wales. On 22 September 2016, her children, DRM and KM, were appointed jointly and severally as guardians for decisions about accommodation health and services, and as administrators for all financial matters. The initial application arose following her husband’s hospitalisation for a stroke.

2. Some two months after the appointments were made, KM brought an application for review of these appointments, proposing her sole appointment, noting conflict between the co-appointees.

3. On 7 February 2017, the Tribunal received an application for review of the appointment of the administrators and guardians from DRM, proposing continued joint and several appointments as guardians and amendment to the order proposing joint appointment for matters financial decisions in excess of $1000, and quarterly reporting “to ensure sufficient oversight.” 

4. DRM informed the Tribunal that he had not had contact with his parents since November 2016, when his father had angrily informed him that he did not want him to be involved in financial decisions. He said that his parents do not have a phone and he has not spoken with them or KM since this time. DRM informed the Tribunal that he was concerned that KM had been alienating him from his parents and he did not trust her sole decision-making. He stated that he considered that KM had “sabotaged his relationship with his parents to protect her own interests” in managing their parent’s financial affairs. He had concerns that only 7 days after the Queensland order was recognised in NSW, (where ASM is now domiciled,) KM filed for this review, effectively not giving the opportunity for collaboration. He was concerned that the purchase of a Villa in Tamworth was not a prudent financial decision, given the poor return rate on property in that area. He wants to ensure that “due diligence” occurs in financial decisions into the future. He was not satisfied that this approach was used in the decision KM made as administrator to purchase the Tamworth villa. He was anxious that this decision had not been transparent, and that it had not been undertaken with in conjunction with an ACAT assessment as to determine what level of care needs his parents had.

5. KM informed the Tribunal that she had in fact obtained an ACAT assessment for her parents living needs, and provided the tribunal with reference numbers for this. She said she had experienced significant difficulties seeking collaboration from DRM, and that in his dealings with her she had felt bullied. She stated that he had “not physically done anything” in the administration, leaving the actions to her. She said he had been obstructive in decision-making, and stated that she was concerned that DRM was not allowing DM and ASM to “have a voice”. She referred to what she described as abusive phone calls from DRM. KM indicated that it was both her parents’ wishes to relocate to Tamworth to be nearer to her as they age, their primary day to day support. She explained that DM and ASM are now living independently in the community and managing well in her view, with her regular contact from her.

6. When the Tribunal conducts a review of the appointment of an Administrator and Guardian under section 31 of the Guardianship and Administration Act, the legislation requires that the Tribunal must revoke an appointment unless it is satisfied that it would make appointment if a fresh application were to be brought.

7. To make a fresh appointment, the Tribunal must be satisfied that the adult lacks capacity to make decisions and that there is a need for decisions to be made and without an appointment his needs will not be adequately met or interests protected.

8. The report of Dr W of 25 July 2016 indicates that ASM understands all the elements necessary to execute an Enduring Power of Attorney under the Queensland Powers of Attorney Act.  There is no contrary evidence to this before the Tribunal. However, as ASM is now domiciled in New South Wales, it may be appropriate to revisit her capacity to make an Enduring Power of Attorney in the jurisdiction where she is living. 

9. ASM is no longer lives in Queensland. Both applicants also live in New South Wales on a permanent basis. For the Tribunal to have jurisdiction to make orders in these circumstances, ASM would need to be domiciled in Queensland or have sufficient connection to Queensland. Given that her permanent domicile is now New South Wales, the laws of that State should regulate this matter, and the Queensland Civil and Administrative Tribunal would have no basis to grant an application for appointment if a fresh application were to be made. The Tribunal must therefore revoke the appointments of both guardian and administrator.