GMB - [2012] QCAT 113

CITATION:

GMB [2012] QCAT 113

PARTIES:

GMB

APPLICATION NUMBER:

GAA886-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

6 February 2012

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

6 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal is satisfied that urgent action is required.

2. The tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Act 2009.

3. The Adult Guardian is appointed as guardian for GMB for the following personal matters only:

(a) accommodation decisions;

(b) with whom GMB has contact and/or visits;

(c) provision of services for GMB.

4. 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.

5. 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.

6. The Public Trustee of Queensland is appointed as administrator for GMB for all financial matters.

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

8. This administration 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.

9. The tribunal notes that the following enduring power of attorney for GMB is 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:

(a) The enduring power of attorney dated 25 January 2012 appointing FAR and EMC as attorneys for financial, personal and health matters.

CATCHWORDS:

GUARDIANSHIP – where allegations that adult has impaired decision making capacity – where appointment of guardian and administrator sought – where allegations of immediate risk of harm to welfare and property of adult

Guardianship and Administration Act 2009, s 129

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

GMB had been residing in high level aged care accommodation at Hervey Bay but in November 2011 she was taken to Western Australia by family members without the consent of her attorneys.
Following allegations of abuse, an application was made to the State Administrative Tribunal in Western Australia which appointed the Public Trustee in Western Australia as her administrator. An Enduring Power of Attorney made on 24 November 2011 was revoked.
GMB returned to Queensland on 17 January 2012. She was admitted into a hospital in Townsville for treatment of a medical condition.
GMB has a large family who want to be involved in decisions about her welfare and financial affairs. An application was made to QCAT for the appointment of a guardian and administrator for GMB by one of her family members. The application proposed The Public Trustee of Queensland and the Adult Guardian as decision makers for GMB.
The applicant sought an interim appointment of a guardian and administrator.
The tribunal has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and only if the presumption of capacity has been rebutted. The adult in question must also have an opportunity to state their views about the proposed appointment. However the Guardianship and Administration Act 2000 does have provisions that permit the tribunal to make appointments on an interim basis without hearing and deciding the proceeding.
Section 129 of that Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. The result of the power to make interim orders being limited to cases where the tribunal is satisfied there is immediate risk of harm is that QCAT must be satisfied that the adult’s right to adequate and appropriate support for decision making can be met by way of an interim appointment.
The tribunal was provided with evidence about GMB’s decision making capacity. Dr John Potter in a report dated 25 November 2011 reported that he had known GMB for seven years. Dr Potter expressed the opinion that GMB had dementia and was incapable of making decisions about personal health care, her living situation and her financial affairs.
Although it was not a prerequisite for making an interim appointment under section 129 of the Guardianship and Administration Act 2000 for the tribunal to make a decision about the decision making capacity of GMB, I was satisfied that there was at least prima facie evidence of impaired decision making capacity on which I could rely when considering if an interim appointment should be made. If GMB could not make all her own decisions, either formal or informal support would be required for her decision making. Inferences drawn from recent events appeared to suggest that informal support would be problematical.
Evidence was provided to the tribunal that in November 2011 GMB had been removed by a member of her family from her usual residence contrary to the wishes of her appointed attorneys. As a result of the actions of that family member, GMB’s regular care needs had been disrupted and she eventually was admitted to hospital. Changes to care and accommodation arrangements can be very unsettling to an adult with dementia and can have an adverse impact on cognitive functioning.
GMB was in hospital but she would need eventual placement into appropriate care outside a hospital environment. Those changes to GMB’s care and accommodation arrangements might be required before the hearing of the applications for the appointment of a guardian and administrator. Those changes should only be made after proper consultation with GMB and her family. Evidence was provided that the family was in conflict over what arrangements were most appropriate for GMB.
Given the recent history of decisions being made to remove GMB from Hervey Bay and to send her to Townsville without proper consultation with her appointed decision makers, I was satisfied that family members were likely to be motivated by the conflict existing between family members to impede the decision making process required for GMB’s ongoing care and accommodation. I was satisfied that GMB’s welfare was at risk of harm unless a clear decision making process was implemented by a person independent of the family conflict.
It was appropriate to appoint a guardian on an interim basis to make decisions about accommodation, services and contact until such time as the application for the appointment of a guardian could be heard. The Adult Guardian was independent of the family conflict and would be the appropriate appointee on an interim basis.
The tribunal noted allegations that GMB had been subjected to financial abuse by members of her family. Allegations were made of unaccounted withdrawals of $7,200 from her bank account and of her pension being redirected to a new bank account. Changes to the appointment of her financial attorneys had permitted these dealings on GMB’s bank accounts.
I was satisfied that GMB’s financial position was at immediate risk of harm unless steps were taken to secure her finances by installing a decision maker who was not involved in the family conflict. It was not appropriate to leave GMB’s finances in the apparent control of persons whose authority might be called into question by purported revocations and replacement by others and whose authority was rendered uncertain due to the appointment of an administrator in Western Australia.
I was satisfied that The Public Trustee of Queensland was the appropriate appointee as administrator on an interim basis. In view of the appointments of a guardian and administrator made on an interim basis, it was prudent to state in the order that the decision making authority of the Enduring Power of Attorney dated 25 January 2012 had been overtaken.