BLK
[2022] QCAT 222
•21 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
BLK [2022] QCAT 222
PARTIES:
In an application about matters concerning BLK
APPLICATION NO:
GAA5801-22
MATTER TYPE:
Guardianship and administration matters for adults
DATE OF ORDER:
9 June 2022
DATE OF REASONS:
21 June 2022
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
The application by SLA for the appointment of a guardian for BLK under an interim order is dismissed.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where relative disagrees with decisions of attorney – whether immediate risk of harm – whether interim guardian should be appointed
Guardianship and Administration Act 2000 (Qld), ss 5, 129
Human Rights Act 2019 (Qld), ss 17, 19
Powers of Attorney Act 1998 (Qld), s 6C
APPEARANCES & REPRESENTATION:
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
For the sake of the privacy of the adult concerned:
(a)the adult will be referred to as BLK;
(b)his sister-in-law will be referred to as SLA; and
(c)his daughter will be referred to as DTA.
BLK is a man aged 80 years. On 30 May 2022 SLA applied to the tribunal for the appointment of a guardian for BLK. She proposes that she be appointed guardian. That application is yet to be heard and determined. It is likely to be some months before it is heard.
On 30 May 2022 SLA also applied to the tribunal to be appointed interim guardian, until the substantive application is heard. On 9 June 2022 I decided to dismiss the interim application. SLA has requested reasons, which I now provide.
Background
In 2013 BLK made an enduring power of attorney appointing DTA as his attorney (with BLK’s son as attorney if DTA is unable to act).
For personal decision-making, an attorney’s power commences only upon the principal losing capacity. Dr Korien Marais, general practitioner, indicates in a report dated 8 June 2022 that BLK has had Alzheimer's dementia since 2019. Dr Marais considers that this condition significantly impairs BLK’s decision-making capacity.
DTA and SLA both live in the Gladstone area. According to SLA, BLK also lived there until April 2022 when he moved to an aged care facility in a town 120 kilometres away. SLA says this change in accommodation was something that DTA decided as attorney. SLA says that BLK was not informed that he was going into aged care until he arrived at the facility.
SLA contends:
(a)BLK’s capacity may have been underestimated due to his hearing impairment, particularly if he was not wearing hearing aids during testing;
(b)BLK had not wanted to be placed in aged care, and he was very unhappy in the facility;
(c)SLA and her husband (BLK’s brother) visited BLK, and they found the conditions and care in the facility were poor;
(d)BLK asked her to do whatever she could to stop his children from making decisions about him without consulting him; and
(e)when SLA and her husband took BLK back to Gladstone for a visit, they decided to let him stay at their place overnight, but DTA called the police who removed BLK.
SLA has provided a letter from a local politician who knows BLK and who saw him at the aged care facility. The politician says he found BLK mentally sharp but sad about being away from his family and home town.
Further, according to SLA:
(a)DTA has cut off communication with SLA and SLA’s husband, but SLA learnt that BLK moved to an aged care facility in Gladstone on 26 May 2022;
(b)SLA has been unable to visit BLK at this facility; and
(c)the facility manager has informed her that DTA has provided a list of persons permitted to visit BLK, and that SLA and her husband are not on the list.
Dr Marais comments in her report that BLK was aggressive when admitted into the current aged care facility. Risperidone was prescribed when he did not settle. BLK is in a ‘secure dementia wing due to risk of wandering and getting lost’.[1] According to Dr Marais, BLK has no insight into his medical conditions.
[1]Document Med 1 on the tribunal’s file, page 7.
Legislative framework
An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[2]
[2]Guardianship and Administration Act 2000 (Qld) (‘G&A Act’), s 129(1).
An interim order should not be too readily made, for a number of reasons. An interim decision is made at an early stage of proceedings, when there has not yet been an opportunity for all parties to see the documents, challenge evidence, and gather and present their own evidence. Further, an interim appointment will frequently affect the adult’s rights such as their freedom to choose where to live.[3] On the other hand, an interim appointment may enhance a person’s rights, for example by promoting freedom from degrading treatment.[4]
[3]Human Rights Act 2019 (Qld), s 19.
[4]Ibid, s 17.
The G&A Act stresses that the right of an adult with impaired capacity to make decisions should be restricted to the least possible extent,[5] and that such a person has a right to adequate and appropriate support for decision-making.[6]
[5]G&A Act, s 5(d).
[6]Ibid, s 5(e).
An attorney must apply the general principles set out in the Powers of Attorney Act 1998 (Qld).[7] These include respect for the adult’s inherent dignity; taking into account the views, wishes and preferences of the adult; and recognition of the importance of maintaining existing supportive relationships.
[7]Powers of Attorney Act 1998 (Qld), s 6C.
Capacity
There is evidence that BLK may have impaired capacity for personal decision-making. Accordingly, it is open to the tribunal to appoint an interim guardian, if that course is otherwise justified.
Why was an interim guardian not appointed?
SLA has presented evidence which suggests that DTA may not have applied the general principles in making decisions as attorney for BLK: DTA may have failed to consult with BLK; she may have exposed him to degrading treatment in the out-of-town facility; she may be stifling supportive relationships between BLK and his brother and SLA; and so on.
On the other hand, it can be assumed that DTA will have a different account of events. She may well be able to justify the steps she has taken. Further, even if SLA is correct that the out-of-town facility was sub-standard, it is noteworthy that BLK has been moved, fairly promptly, to a facility in Gladstone. It may be that the out-of-town facility was only ever intended to be a transitional placement. Further, there might be justification for at least some current restriction on contact, depending for example on DTA’s reasons for involving the police some weeks ago.
The tribunal will not be in a position to make a well-informed assessment of whether DTA has applied the general principles, and of whether it is necessary to appoint a guardian to protect his interests and to overtake the enduring power of attorney, until the tribunal conducts a hearing of the substantive application. By that point, BLK, DTA and other parties will have had the opportunity to consider SLA’s evidence and respond to it with their own evidence.
Meanwhile, BLK is being cared for in a facility in his home town of Gladstone. I am not satisfied that there is any immediate risk to his welfare that would justify a change in the current decision-making arrangements. BLK made the choice, back in 2013, that DTA was to be his decision-maker in the event that he lost capacity. That choice should not be hastily interfered with. SLA has not established that there is a level of risk to BLK that would warrant such interference on an interim basis.
Conclusion
As I was not satisfied of an immediate risk of harm, I decided to dismiss SLA’s interim application.
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