DFT

[2009] QCAT 23

CITATION:      DFT [2009] QCAT 23

PARTIES:   DFT

APPLICATION NUMBER:            GAA7770-09 GAA7771-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   8 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   8 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Application for interim orders dismissed

CATCHWORDS:  Interim order - where no demonstrated immediate risk to welfare or property of the adult

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of any party

REASONS FOR DECISION

1. On 18 November 2009 an application for an interim order about DFT (the adult) was lodged by DIA seeking the appointment of an administrator and guardian.

2. Section 129 of the Act provides for the making of interim orders if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult. 

3. The tribunal may make an interim order in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the Act.  The maximum period that may be specified in an interim order is 3 months. 

1. The Tribunal considered the following evidence about the adult’s capacity:

   health professional report: a registered nurse, reported on 3 December 2009 that in her opinion DFT could not make decisions freely and voluntarily, that he could not make any simple or personal decisions due to dementia, that he demonstrated short term memory deficits, he had possible hemorrhagic dementia and recurrent depression.  The nurse reported that an assessment conducted on 19 December 2008 had revealed minimal impairment. 
   other evidence: The tribunal was provided with copies of notes made by Dr BP on 13 May 2009 which noted that in a discussion with DFT’s wife, the doctor had expressed the opinion that DFT did not have capacity to make an advance health directive.  A note made by Dr BP on 12 November 2009 noted that DFT was not sure of the amount of money left to him by his brother and he did not comprehend the implications with respect to his pension.      

1. The following issues were raised as the basis for the interim order application:

·issues arising from the adult’s accommodation circumstances,

·issues arising from the adult’s health care circumstances,

·issues arising from the services that the adult needs,

·there is conflict between decision makers or family members over financial decisions,

·the adult made an Enduring Power of Attorney and did not have the capacity to do so,

·the current attorney or administrator is taking advantage of the adult financially,

·a contract needs signing or a financial or legal matter needs to be transacted,

·the adult is vulnerable to financial abuse or exploitation

1. The Tribunal considered the following evidence about those issues: DFT resides at a hostel where he receives good care and payment of the hostel fees comes from DFT’s superannuation income. DFT’s wife has been managing his income and has not been making adequate payments to the hostel to cover his fees.  DFT’s wife had threatened to remove him from the hostel due to strained relations with the hostel administration.  If DFT was removed from his current accommodation and returned to live with his wife, it was alleged that he would be at serious risk to his health as he had previously suffered from malnutrition when residing with his wife.  DFT had granted an enduring power of attorney to his wife in circumstances where she had been informed in May 2009 that DFT did not have capacity to do so.  DFT is not being granted access to information about his bank accounts and he is not given money by his wife to make even small purchases for himself.  DFT has been left a substantial interest in his late brother’s estate who died on 30 September 2009 and his wife has used her position as attorney to prevent DFT from carrying out his wishes as to the distribution of moneys from the estate.  DFT is deeply stressed by the resulting family rift.  DFT is bullied by his wife in her everyday handling of him.  He is being subjected to a hostile environment due to family tension.  On 24 November 2009 the applicant stated that a process had been put in place by the hostel administration to protect DFT from being stressed by both sides of his family.  It was stated that the estate funds of approximately $300,000 are unlikely to be paid out of the estate in the near future.  

1. The Tribunal made the following findings of fact about those issues: DFT has been diagnosed with dementia.  He has short term memory deficits.  He resides in a hostel where he receives appropriate care.  The threat made by his wife to remove him from the hostel has not been carried out.  The fees of the hostel are being paid from DFT’s income although in the past some of the payments have not been made in full.  There is a great deal of conflict between family members which has impacted on DFT and caused him stress. A process is in place to reduce that stress on him.  He is the beneficiary of an interest in his late brother’s estate and there is conflict over how the funds from that interest should be distributed.  The funds are unlikely to be paid put to DFT in the near future. 

1. On the basis of the information provided:

   ·the Tribunal considers that the adult has impaired decision making capacity for the matter, and

   ·the Tribunal is not satisfied that there is an immediate risk of harm to the adult’s health, welfare or property

CONCLUSION

1. The Tribunal determines that the need for an interim appointment of a guardian has not been established and the need for an interim appointment of an administrator has not been established

2. The Tribunal dismisses the application for an interim order.