BJM

[2012] QCAT 575

CITATION: BJM [2012] QCAT 575

PARTIES: BJM

APPLICATION NUMBER: GAA6981-12

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 14 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application for an interim order for BJM is dismissed.

CATCHWORDS:

GUARDIANSHIP – where adult in hospital – where no evidence of imminent discharge plans – where no immediate risk of harm

Guardianship and Administration Act 2000, s 129

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. BJM was an inpatient in hospital when two applications were made to QCAT for the appointment of a guardian and one application made for the appointment of an administrator for him.  Before he had been admitted to hospital, BJM had lived alone in a caravan and he had previously refused services to assist with his care in the community and to assist him to take his medication.  He had experienced some problems with his self care and his medical treatment team considered that he could no longer return to live safely at home.

2. BJM’s brother, C, had been providing him with informal support with decision making but his brother had found it very stressful negotiating health care decisions with BJM.  One applicant to QCAT was a social worker at the hospital where BJM was being treated for terminal cancer. 

3. The other applicant was C who sought appointment as both guardian and administrator.  C reported that his brother was safe in hospital at the time of filing his application but C was concerned that his brother would be at risk when he was discharged from hospital.    

4. C applied for an interim appointment of a guardian and administrator. 

5. Appointments of decision makers for adults with impaired decision making capacity under the Guardianship and Administration Act 2000 (GAA Act) involve in most cases an oral hearing taking place when the applicant and proposed appointees can satisfy the tribunal that an appointment should be made.  However the GAA Act does have provisions that permit QCAT to make appointments on an interim basis without a hearing and without deciding the issues in the proceeding.

6. Section 129 of the GAA Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. The making of an interim appointment is a discretionary remedy that is designed to meet immediate needs for decision making support arising from specific circumstances of immediate harm.

7. At the time when the application for an interim appointment of a guardian and administrator was made, BJM was described as being safe in hospital.  He was being treated for a serious medical condition.  There was no evidence provided to QCAT that BJM was seeking to self discharge to an unsafe environment.  There was no evidence that the hospital intended to discharge BJM back to his caravan where he would have inadequate care and would be at risk.   

8. There was no evidence provided to QCAT that BJM’s financial affairs were at risk.  The evidence provided to the tribunal suggested that financial decisions were being made informally by his brother and that there was no immediate risk of harm.

9. In the absence of evidence that BJM was at an immediate risk of harm, I was not satisfied that there were grounds on which I could make an interim order for the appointment of a guardian or administrator for BJM.