ECE
[2018] QCAT 348
•25 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
ECE [2018] QCAT 348
PARTIES:
In applications about matters concerning ECE
APPLICATION NO/S:
GAA11247-18; GAA11632-18
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
25 October 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gardiner
ORDERS:
GUARDIANSHIP
1. The Public Guardian is appointed guardian for ECE for the following personal matters only:
(a) accommodation decisions;
(b) with whom ECE has contact and/or visits;
(c) health care of ECE; and
(d) provision of services for ECE.
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 (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
ADMINISTRATION
4. The Public Trustee of Queensland is appointed administrator for ECE for all financial matters.
5. The Tribunal directs the administrator to provide a written account of its actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.
6. This administration appointment remains current for three (3) weeks or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
NOTICE OF INTEREST IN LAND
7. Before 7 November 2018 the administrator must:
(a) Record the appointment as administrator on any property registered in ECE’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
(b) Provide confirmation to the Tribunal that this has been completed by providing:
i)A copy of the title search conducted identifying ECE’s property; and
ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by him.
(c) If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.
8. If the ownership of any property of ECE changes in any way or he acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
(a) Give a copy of this order to the Registrar of Titles; and
(b) Give a notice to the Registrar about the changes to ECE’s interest in another property.
ENDURING POWER OF ATTORNEY
9. The Tribunal notes that any purported enduring powers of attorney are overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made.
CATCHWORDS:
GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where appointment of guardian and administrator sought –where applicants expressed risk to the adult if no interim appointment made – where the risk related to the conduct of the appointed enduring power of attorneys for the adult – where the tribunal is satisfied that there is an immediate risk of harm to the ECE’s finances, health and welfare if no appointment was made – where the Public Guardian and the Public Trustee of Queensland – where any enduring power of attorney appointment overtaken to the extent the appointments had been made
Guardianship and Administration Act 2000 (Qld), s 129
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
ECE is 83 and her geriatrician has opined that she has a permanent and progressive condition affecting her decision making capacity and judgment. The geriatrician says she lacks capacity to make lifestyle, personal and health decisions and all but very simple financial decisions. ECE’s GP of some 3 years standing has however, mixed views on ECE’s current decision making capacity and judgment.
Section 129 of the Guardianship and Administration Act 2000 (Qld) provides that if the tribunal is satisfied, on reasonable grounds, there is an immediate risk to the health, welfare or property of 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 the Act, including the notice requirements. The interim order is for a maximum of three months.
While it is not necessary for me to make a formal finding that the presumption of capacity is rebutted before making an interim order, if there was no evidence on which it could be found that the presumption was rebutted it is not likely make the interim order. However, I was satisfied on the evidence of the geriatrician that ECE demonstrates impaired cognitive functioning and that she cannot make her own decisions.
ECE has three adult children. On 28 July 2006 she appointed her daughter T as her attorney for all matters in an Enduring Power of Attorney. This was accepted in the power by T on 29 May 2006, a date prior to the giving of the power by ECE. This was corrected by T re-signing the acceptance clause in this EPA on 12 July 2016, forwarded to her by solicitors acting for ECE on 26 May 2016.
On 14 July 2016 the same solicitors wrote again to T saying ECE now wanted to revoke the 2006 EPA.
On 12 July 2016, ECE had executed a further EPA appointing another of her children, her son C for all matters.
On 4 October 2018, ECE signed a revocation of the 2016 EPA to C.
The documents provided to this Tribunal show a high level of conflict between the children over the welfare of their mother and there are many allegations of inappropriate behaviour and restriction of contract with ECE. Domestic violence orders have been applied for by C against ECE’s other children M and T, although it is not clear if ECE or her son C (with whom she is now residing) is the instigator of these applications.
T alleged ECE’s home was sold at auction by C on 21 September 2016 with the funds to be at C’s disposal. There are allegations about the proposed use of these funds and of the disposal of other assets owned by ECE.
I decided to appoint on an interim basis The Public Trustee of Queensland as administrator for all financial matters, overtaking any current EPA. I considered that there was sufficient evidence, that there are reasonable grounds on which I could be satisfied that there is an immediate risk of harm to ECE’s finances and ensure the safety of the sale funds and any other assets until the hearing of this matter. I was also of the view that there was sufficient evidence to raise concerns about the family member’s ability to adequately protect and manage ECE’s finances and that until the hearing of the matter, The Public Trustee of Queensland was the most appropriate appointment in the circumstances.
On balance, I also became concerned about ECE’s welfare in view of the high conflict, including DV applications, made by the family member who is the current carer for ECE. There are allegations that she was being restricted in her access to other family members and friends and that she is fearful. A letter do T dated 1 September 2018 seems also to allege ECE is being confined against her will.
I am satisfied of the high level of existing conflict is increasingly having a negative effect on ECE and that there is an immediate risk in terms of her health and welfare by decisions made by some family members.
Until the hearing of this matter, I decided to appoint on an interim basis the Public Guardian as guardian for ECE for accommodation, services, health and contact, overtaking any current Enduring Power of Attorney.
The appointment of The Public Trustee of Queensland and the Public Guardian on an interim basis does not raise any presumption of the outcome of the substantive application. The presiding member at the hearing will determine that application based on all the relevant information before the Tribunal including any response to the application provided by the parties.
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