EB

[2021] QCAT 434

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

EB [2021] QCAT 434

PARTIES:

In an application about matters concerning EB

APPLICATION NO/S:

GAA138832-21 Application for an interim order

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

7 December 2021

HEARING DATE:

16 November 2021

HEARD AT:

On the papers

DECISION OF:

Member McDonald

ORDERS:

1.   The Public Guardian is appointed as guardian for EB for the following personal matters

(i)   Accommodation decisions

2.   The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.

3.   This guardianship appointment remains current for three months(3), or if this Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

4.   The application by JT for the appointment of an administrator for EB is dismissed.

5.   The Tribunal notes the following Enduring Power of Attorney is overtaken by the making of this appointment

(a)    The Enduring Power of Attorney dates 19 September 2007 appointing RB as attorney for personal matters.

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 129, schedule 4

Human Rights Act 2019 (Qld), s 9(4), s 13, s 31, s 48

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

1. The Tribunal received an application for an interim order for the appointment of a guardian and administrator on an interim basis for EB

2. The applicant sought the appointment of the Public Guardian and Public Trustee of Queensland urgently as guardian and administrator respectively. On 16 November 2021, the application came before me, and I granted an interim order for the appointment of a guardian, and dismissed the interim application for the appointment of an administrator. These reasons relate to these applications.

3. The interim order application filed on 10 November 2021 raised the following concerns:

4. 87 year old EB is diagnosed with severe dementia, and at application, resided in  residential aged care facility. On 19 September 2007 she appointed her son RB as Enduring Powers for attorney, financial, and personal/health matters, with financial powers to commence upon appointment.

5. The applicant, JT, a social worker at the local hospital, described EB to have high level needs arising from her physical and cognitive needs. She stated that EB is

   
   

   hoist / transfer and unable to sit upright. She indicated that an environment that did not over-stimulate her had been recommended upon her discharge from hospital and entry to aged care, such as soft lighting, quiet room and pleasant smells. She expressed concerns that the adult was fearful of sudden change. She provided documented progress notes from the adult’s long stay admission to the hospital. She noted that as an inpatient the adult had experienced discomfort when being moved.

6. JT expressed concerns that the required travel and changes of EB’s environment in her physical and cognitive condition would not be in EB’s interests.  She argued the application for an interim order was necessary where her family sought to remove her from her placement in a single room in her nursing home, to be relocated to a facility some 2 hours drive away, and accept a room in a four bedroom temporary placement, with plans to move her to a second family at a later date. She expressed concerns that family had intended two stages of physical moves from Herberton initially and subsequently to Babinda and would be dislocated from family by that decision. She argued that this would be both physically painful to the adult and detrimental to her cognitive state.

7. JM stated that EB’s residential care fees had been outstanding and her placement was at risk, where the appointed attorney had extended stays at the facility on a respite basis, and there was no ongoing eligibility for respite. She stated that although EB had substantial assets, the attorney was not willing to take action to fund her care.

8. JT’s application stated that she had consulted with the “local hospital staff” but did not identify any names, but that they expressed a view that the move would be both painful and stressful to the adult in.  JT notes that previous discussions had occurred with family member BH, who had concerns about the level of care at the residential care facility where the adult resided, but that had been “confirmed as untrue”. She noted that there was a fee dispute with the facility and payments were outstanding.  The applicant advised that she had not discussed the interim application with EB’s son, the appointed attorney, or with her daughter.

9. The Tribunal sought the views of the adult’s family about the interim order and statements presented by the applicant on 16 November 2021. Both of the adult’s children, RB and BH, indicated that they objected to the application for an interim order. RB stated that he had organised an ambulance to transport the adult to the new location, that the fees were unaffordable and neither he nor the adult want all of her assets sold to pay for her care. BH advised that she was seeking advice from JT as the most appropriate way to move EB.

10. Progress notes from the local hospital dated 5 November record JT’s notes of a conversation between and BH which indicated BH rejected an ambulance and were going to drive the adult.

11. The Tribunal may only grant an application for an interim order under s 129 Guardianship and Administration Act 2000 (the Act), if it is satisfied on reasonable grounds that:

    (a)     the adult concerned in the application has, or may have, impaired capacity for a matter; and

    (b)    there is an immediate risk of harm to the health, welfare or property of the adult, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult

    The Tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.

1. The meaning of Capacity for a matter is stated at Schedule 4, means a person is capable of:

   (a)  Understanding the nature and effect of decisions about the matter; and

   (b)  Freely and voluntarily making decisions about the matter; and

   (c)  Communicating the decisions in some way

2. The capacity evidence before the Tribunal was by way of a report from Dr Kim Favier, general practitioner, in the report of 19 September 2021.

3. The report notes that EB has a diagnosis of Alzheimer’s disease with no capacity to understand information and appreciate consequences of decision about her health, accommodation lifestyle decisions, or financial matters. She expressed a view that EB was not capable of simple decisions in these decision-making domains, and was unable to make decisions freely and voluntarily. He noted that her condition was advanced and had impacted on her expressive and receptive communication and that she was able to communicate only via looks and gazes.

4. The medical information before the Tribunal indicates that due to EB’s cognitive impairments related to her diagnosis of Alzheimer’s Disease, she may not be able to communicate her needs and wishes, may not understand information to make decisions about her lifestyle accommodation. There is evidence before me which allows me to be satisfied upon reasonable grounds that EB may have impaired capacity for decision around her health, lifestyle accommodation and finances.

5. The information before me as at the date of the decision indicates that professionals in EB’s care network at the local hospital have concerns about her health and safety in light of an imminent move by the appointed decision maker. I am satisfied that there is a risk of immediate harm to EB’s welfare based on the material before me. I find EB’s welfare may be affected by the attorney’s accommodation decision, and the grounds for an interim order pursuant to s 129 are made out in relation to personal matters. I grant the application for the interim appointment of a guardian.

6. Where the evidence before me indicates that nursing home fees and contracts are outstanding, I am not satisfied that there is immediate risk of harm to the adult’s property. As the grounds for an interim order pursuant to s 129 are not made out in relation to financial decisions, I refuse the interim application for administration.

7. I must interpret the statutory provisions in a way compatible with human rights. That is, only if it is reasonable and justified in accordance with section 13.[1] I note that in making an interim order for a guardian for accommodation decisions, the Tribunal is acting as a public entity.[2] I am required by s 48 of the Human Rights Act 2019 to consider EB’s human rights that may be affected by this decision. In appointing an interim guardian, EB’s right to a freedom of movement[3] and to privacy and reputation[4] may be limited by the appointment of a guardian for accommodation decisions.[5] As this application is made under s 129 (3), EB’s right to a fair hearing[6] has also been limited in the interim, pending the hearing of the substantive applications for the appointment of a Guardian and Administrator to be heard at a later date.

   [1]Human Rights Act 2019 (Qld), s 8.

   [2]Ibid, s 9(4)(b).

   [3]Ibid, s 19.

   [4]Ibid, s 25.

   [5]Ibid, s 58.

   [6]Ibid, s 31.

8. I may only, when acting as a public entity, place reasonable limits on a human right and only where demonstrably justifiable.[7] I may have regard to factors stated at s 13(2) in considering whether these limits imposed by the decision satisfy this legal test. Having regard to these considerations, I note the following:

   [7]Ibid, s 13(1).

9. The Tribunal is conveyed jurisdiction to administer particular aspects of the legislative scheme for decision making arrangements for adults who needs or may need another person to exercise decision making authority on their behalf.[8] The limitation on the right to fair hearing is authorised by s 129 (3) of the Guardianship and Administration Act 2000. The appointment of a guardian on an interim basis is authorised by ss 129 (1) and (2) where I am satisfied that there is an immediate risk of harm to the adult’s welfare. The urgent nature of the application, and immediacy of the purpose being to protect the adult from the risk of harm justifies the limit on the adult’s right to a fair hearing on a short-term basis, and limits on rights of free movement and privacy until the matter is heard.

   [8]Guardianship and Administration Act 2000 (Qld), s 7.

The purpose of the provision is for the protection of the adult, in circumstances where they may be exposed to harm and immediate intervention is necessary to protect the adult who lacks or may lack the capacity to decide for themselves. In balancing the object of protection from risk of harm and the limitation of these rights, I have formed the view that the protection from risk of harm outweighs the limitation on these rights, where in less than three months a full hearing of the application will occur. On this basis, I am satisfied that the decision is a reasonable and justifiable limitation.