GD
[2011] QCAT 146
•5 April 2011
| CITATION: | GD [2011] QCAT 146 |
| PARTIES: | GD |
| APPLICATION NUMBER: | GAA2604-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 5 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for an interim appointment of guardian and administrator is dismissed |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION FOR ADULTS – interim appointments sought – immediate risk of harm not established – informal support for decision-making being given by wife |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32(3) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 4 April 2011 an application for an interim appointment of a guardian and administrator for GD was lodged by AB and CD.
Section 129 of the Guardianship and Administration Act 2000 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 because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.
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. According to section 129 of the Act, the maximum period that may be specified in an interim order is 3 months.
The applicants stated in their application that an interim order was being sought to put into place an impartial person to oversee GD’s finances and his living arrangements. The applicants stated that the current system was not working and that GD needs help.
The applicants stated that their reason for seeking an interim order was because GD was about to be without anywhere to stay. He was currently residing in a respite facility with his wife but they were intending to leave that facility on 18 April 2011 to reside in another facility on the Sunshine Coast. The applicants stated that the arrangements with the new facility were not finalised and GD and his wife could not remain in the respite facility past the end of the respite period.
The applicants stated that GD and his wife would have to return home which is a two storey house where GD had had some falls. The applicants stated that the proposed facility on the Sunshine Coast would be excellent for their parents but the applicants were concerned that their parents could not afford to buy into the facility.
The information in the application revealed that one of the applicants had contacted the Sunshine Coast facility and discussed GD’s inability to sign any documentation due to his lack of capacity.
The applicants stated that they were concerned that their parents would have nowhere to live except in their own home and their mother would commit all of GD’s finances to a place they would be unable to keep and they will become destitute or would be unable to have any quality of life.
The tribunal was not satisfied that the application established there was an immediate risk of harm to the health, welfare or property of GD. He was currently receiving appropriate care. The tribunal noted that there was a stated intention by his wife to remove GD from the respite facility on 18 April 2011. After that time, the evidence established that GD would either reside in another facility or at his own home.
[10] There was no evidence that his wife could not provide adequate care for GD. There was reference to a risk of falls but there was nothing to suggest that those risks could not be adequately addressed by an appropriate level of care and supervision.
[11] The tribunal was not satisfied that the proposed property arrangements would take place until after a decision-maker was appointed for GD. The application stated that attempts to arrange an Enduring Power of Attorney for GD had failed. The application suggested that the current home is jointly owned by GD and his wife. A contract for the sale of the home could not be entered into and finalised and a new property purchased without a decision-maker being appointed for GD if it is found that he lacks capacity for making his own financial decisions.
[12] The tribunal proceeds on the grounds that appointments of decision-makers without a hearing and indeed without notice to an adult, or to his spouse who is his carer in this case, should be made only when circumstances compel such action.
[13] Section 129 restricts the making of interim orders to those cases where an adult is at an immediate risk of harm. That restriction attempts to find the balance between the right of an adult with impaired capacity to have the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making.
[14] GD appears to rely on his wife for decision-making at the moment. That is an understandable and natural position. The evidence provided to the tribunal in support of the application for interim orders did not establish a basis to set aside that reliance in the short term and to impose another decision-making regime in the absence of appreciable risks of immediate harm.