DP - [2021] QCAT 271 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DP [2021] QCAT 271

PARTIES:

In an application about matters concerning DP

APPLICATION NO/S: G44256

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

7 July 2021

REASONS DELIVERED:

20 July 2021

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
On 7 July 2021:

IT IS THE DECISION OF THE TRIBUNAL THAT:

The application by DD for an interim order is dismissed.

CATCHWORDS:
GUARDIANSHIP AND ADMINISTRATION – INTERIM ORDER – whether Tribunal satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of the adult

Guardianship and Administration Act 2000 (Qld), s 12, s 118, s 129, schedule 4.

Human Rights Act 2019 (Qld), s 9(4).

PJB v Melbourne Health (2011) 39 VR 373.

APPEARANCES:

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

REASONS FOR DECISION

On 13 May 2021 an application for the appointment of a guardian and administrator for DP was made by DD, DP’s daughter. On 7 July 2021 DD applied for an interim order seeking appointment as guardian and administrator for DP while the application of 13 May 2021 was “being processed”.
Although DD seeks appointment as guardian and administrator, in the application DD indicates that the current arrangements whereby DD assists her mother to make personal decisions is appropriate and a guardian is not required.[1] DD also states that the adult is not in immediate danger.[2] In terms of outcome, DD states that she wants to be able to make financial decisions for her mother so she is able to “buy clothes, car maintenance, medication as she is not able to make those decisions”.[3] In the application for an interim order, DD states that she wants the interim order because PD is “requiring residential aged care placement [and] her bank account and bill payments need to be sorted out as soon as possible”.[4]
[1]Application for administration/guardianship appointment or review – Guardianship and Administration Act 2000 filed on 13 May 2021, at [6.3].
[2]Ibid at [6.5].
[3]Ibid at [7].
[4]Application for interim order - Guardianship and Administration Act 2000, filed on 7 July 2021, Part D.
Before the Tribunal can make an order appointing a guardian for a personal matter or an administrator for a financial matter, the Tribunal must be satisfied of the elements in s 12 of the Guardianship and Administration Act 2000 (Qld) (the GA Act), namely:
(a)the adult has impaired capacity for the matter;
(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare and property; and
(c)without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.
Section 129 of the GA Act gives power to the Tribunal to make an interim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 271
Decision Date

CaseChat Overview and Summary

This case concerns an application for the appointment of a guardian and administrator for DP by her daughter, DD. DD made an application for the appointment on 13 May 2021 and subsequently applied for an interim order on 7 July 2021. The decision maker dismissed the application for the interim order on 7 July 2021. The legal issues the court was required to decide included whether the Tribunal was satisfied on reasonable grounds that there was an immediate risk of harm to DP’s health, welfare or property. In reaching its decision, the court considered the application, the evidence presented, and the statutory provisions relevant to the matter.

The court dismissed the application for an interim order based on the evidence presented. The court found that while DP has impaired capacity, there was no immediate risk of harm to her health, welfare or property. The evidence showed that DD was assisting her mother with most activities of daily life, and DP was not at immediate risk of harm. The court also considered the serious impact on DP's human rights if an interim order was made. The decision maker concluded that the pre-conditions to the making of an interim order under s 129 of the Guardianship and Administration Act 2000 (Qld) had not been met.

The final orders made by the Tribunal were that the application by DD for an interim order was dismissed. The decision maker provided reasons for the dismissal, including the lack of immediate risk of harm to DP and the serious impact on DP's human rights if an interim order was made.

Orders