GIM

[2009] QCAT 15

CITATION:  GIM [2009] QCAT 15

PARTIES: GIM

APPLICATION NUMBER:             GAA10037-09 GAA10038-09

MATTER TYPE: Guardianship and administration matters

HEARING DATE:   3 December 2009

HEARD AT:   Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON:   3 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:  Application dismissed

CATCHWORDS :  Interim Order, need for the appointment of a guardian and administrator not established, s.129 of the Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any): heard on the papers

REASONS FOR DECISION

1. On 2 December 2009 an application for an interim order was lodged by BMS seeking the appointment of an administrator and of a guardian for GIM (the adult).  

DOES THE ADULT LACK CAPACITY FOR THE MATTER?

1. The Guardianship and Administration Act 2000 (the Act) defines capacity as:

   “capacity”, for a person for a matter, means the 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 Tribunal considered the following evidence about the adult’s capacity

(i)health professionals reports: Dr JE dated 17 November 2009 who stated that the adult had sustained a stroke on 27 September 2009, had scored 10 out of 30 on an MMSE on 5 November 2009 and on 13 November 2009, would not be able to comprehend discussion regarding more complex health care interventions, has limited insight into lifestyle and accommodation choices, and is inconsistent in discussions concerning financial matters and does not remember such discussions.  Dr JE considered that the adult could not make any simple or complex decisions due to an acquired brain injury.   The stroke resulted in cognitive impairment and there has been no significant neurological recovery other than some improvement on fluctuating level of arousal.  

1. The Tribunal made the following findings of fact about the capacity of the adult:

The adult sustained a stroke on 27 September 2009 which resulted in cognitive impairment from which there has been no significant recovery to date.  The adult has limited insight into her situation and does not remember conversations she has had about her finances.    

CONCLUSION

1. The Tribunal determines that the adult does not have capacity to make decisions about personal and financial matters.   

LEGAL REQUIREMENTS FOR APPOINTMENT OF DECISION MAKER

1. Section 12 of the Act provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision making capacity the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the Tribunal determines that 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 or property and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.

2. The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. 

3. Section 129 of the Act 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, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.

4. 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.  The maximum period that may be specified in an interim order is 3 months. 

IS THERE A NEED FOR AN INTERIM APPOINTMENT OF A GUARDIAN OR ADMINISTRATOR?

1. The following issues were raised as the basis for the interim order application:

• there is conflict between decision makers over personal decisions
• there is conflict between decision makers or family members over financial decisions

1. The Tribunal made the following findings of fact:

The adult resides in permanent nursing home accommodation and her immediate health care and service needs are adequately provided.  There is an enduring power of attorney in place but the attorneys are in conflict with each other. The dispute is over how certain documentation is to be handled by the attorneys.  Other siblings of the attorneys want to be added as attorneys.  One sibling has assaulted one of the attorneys during a confrontation about the adult’s property.  The adult’s financial affairs are being managed by the attorneys.    

1. The Tribunal determines that
   AND

   • there is a need for a decision in relation to the matter
   • the adult is not likely to do something in relation to the matter that involves, or is likely to involve, immediate risk of harm to the adult’s health, welfare or property
   • the adult’s needs will be adequately met or the adult’s interests will be adequately protected without an interim appointment

CONCLUSION

1. The Tribunal determines that the need for an interim appointment of a guardian has not been established, and the need for an interim appointment of an administrator has not been established

CONCLUSION

1. The Tribunal dismisses the application for an interim order.