GGS
[2012] QCAT 540
•24 October 2012
| CITATION: | GGS [2012] QCAT 540 |
| PARTIES: | GSS |
| APPLICATION NUMBER: | GAA7570-12 / GAA7571-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 24 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The withdrawal of the application for the appointment of a guardian and of an administrator is approved by the tribunal. |
| CATCHWORDS: | GUARDIANSHIP – where allegations that attorneys not making decisions in the best interests of an adult – where dispute over care provided in an aged care facility – where applicant sought to withdraw the applications |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
GSS appointed ST, CT and BH as his attorneys for personal, health and financial matters on 1 July 2008. GSS currently resides in an aged care facility and he is aged 79.
The service manager of the facility where GSS resides lodged an application in QCAT seeking the appointment of a guardian and an administrator for GSS. The applicant reported in her application that GSS had stated that he was fearful of one of his attorneys. The applicant also reported that another of the attorneys had been observed shouting at GSS to get off his bed despite GSS having significant health issues impacting on his mobility and stamina.
The applicant further reported that GSS would not speak up against his attorneys but she was of the opinion that the attorneys were not acting in the best interests of GSS. The applicant reported that GSS was feeling coerced by two of his attorneys to take part in activities that he felt were beyond his level of functioning. The applicant sought the appointment of the Adult Guardian and The Public Trustee of Queensland as his decision makers in order for GSS to feel safe and free from fear and intimidation.
The attorneys provided a response in which they denied the allegations made against them and asserted that they were acting in the best interests of GSS. In particular they stressed the need for GSS to mobilise and not to stay for long periods in bed as that would deleteriously affect his general wellbeing and health. The attorneys provided information that suggested that there was an active difference in opinion between the attorneys and the care facility about certain particulars of the care that should be provided to GSS. Family members of GSS sent in written evidence supporting the actions of the attorneys.
On 24 October 2012 the applicant asked for leave to withdraw her applications. She reported that GSS’s mood was brighter and he was more willing to attend activities and outings. She further reported that GSS had stated that he did not want to proceed with the applications, that one of the attorneys is less demanding and that he no longer feels intimidated by her. The applicant stated that she had brought the applications in the role as an advocate for GSS and respecting his wishes, she now wanted to withdraw the applications.
The applicant required leave of the tribunal to withdraw the applications. It was clear that the applicant was no longer concerned that GSS was at any risk by leaving decision making about his affairs to his attorneys. The focus of the dispute appeared in reality to be about the care being provided to GSS and not about the decision making process in place for GSS. The applications appeared to have been used primarily as a means of resolving that dispute rather than for the purpose of addressing the decision making needs of GSS.
The care facility has the responsibility to ensure that its residents are not subjected to inappropriate behaviour by visitors to the facility, regardless of the role that those visitors may otherwise play in the life of the resident. If behaviour takes place that is considered inappropriate, the care facility already has the means to address that behaviour by limiting access to residents to prevent harassment or annoyance to the residents and staff. It is not the role of QCAT to become a player in the exercise of the powers of a care facility.
However, if the welfare of an adult with impaired capacity is at risk because the decision making needs of that adult are not being met, QCAT will act to remove decision making powers from attorneys or from guardians or administrators where the need for a change of decision making is established. While there were allegations made in the applications in this case to the effect that the decision making regime put in place by GSS was no longer working to his benefit, the evidence filed to date was sparse and likely to be contested. Those allegations were then effectively backed away from by the applicant when she requested that her applications be withdrawn.
I was satisfied that it was appropriate to grant leave for the applications to be withdrawn. GSS did not want his attorneys to be replaced, the attorneys opposed the applications and the applicant acknowledged that the circumstances on which she had based her decision to bring the applications had changed. To proceed to a hearing would result in an unnecessary use of the scarce resources of the tribunal in circumstances where there was no support for a need to change the decision making regime for GSS.
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