HC
[2017] QCAT 324
•27 July 2017
CITATION: | HC [2017] QCAT 324 |
PARTIES: | HC |
APPLICATION NUMBER: | GAA8034-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
DELIVERED ON: | 27 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application by Hayat Haddad-Fernandez for an interim order is dismissed. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where adult diagnosed with dementia – where daughter seeks appointment as a guardian and administrator – where Enduring Power of Attorney allegedly in place – where interim appointment sought – whether the adult at an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 12(1), 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) (QCAT Act).
REASONS FOR DECISION
HC is an 86-year-old lady, living with her daughter HNC. She is supported by a carer, AA. HC was born in Lebanon and migrated to Australia approximately 40 years ago. She has poor English, according to her doctor.
On 26 July 2017, HH (another of HC’s daughters) filed an application in QCAT seeking the appointment of a guardian and an administrator for HC.
This Tribunal appoints guardians and administrators after a hearing has been held and only if the Tribunal is satisfied that the requirements of
s 12(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) have been met. The Tribunal must be satisfied that the adult in question has impaired decision making capacity for the matter, that there are decisions that need to be made, and that appointing a decision maker is necessary to ensure that the adult’s needs are adequately met or their interests adequately protected. That application will be considered in due course.
HH also applied for an interim appointment of a guardian and administrator for HC for personal and financial decisions. Appointments of a decision maker can be made on an interim basis, and prior to determination of the substantive applications, if the Tribunal is satisfied that the requirements of s 129 of the GAA are met.
Section 129 provides that if the Tribunal is satisfied, on reasonable grounds, there is an immediate risk there 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.
In her application, HH alleged that HNC and HF (their brother) were “partners in crime” who were emotionally and verbally abusing HC and restricting her quality of life and independence. HH alleged that HC was very lonely and didn’t get the help she needed, and so her mental health was suffering. HH alleged that her siblings had misused HC’s finances, and had taken money from their mother in 2015 and 2016.
HH provided a copy of an incomplete and unsigned Enduring Power of Attorney appointing HNC as attorney. HH claimed that the original copy of the document had been signed, and that HC held the original.
HH provided two letters from Dr Anthony French, consultant physician and geriatrician, dated 16 and 29 June 2017. Dr French stated that HC has severe dementia. On 16 June 2017, Dr French noted that HC’s cognition has recently worsened and that the family coped with this terribly, with a lot of confrontation and agitation. Dr French provided education about the importance of de-escalation during periods of agitation, and requested that HNC attend the next review appointment in 6 months’ time.
HC was shortly thereafter admitted to hospital with delirium, and reviewed again by Dr French. In his letter of 29 June 2017, Dr French noted that HNC had not been coping very well with HC as she had been waking up early and demanding care, and becoming aggressive at times. Dr French prescribed the use of Risperidone if HC was not settled, describing the home environment as “quite stressful”. Dr French noted that HH wished to move HC interstate to live with her. Dr French noted “I have very strongly suggested that this was not a good idea until at least this episode has settled down”.
HC was discharged back to the care of HNC.
For the purposes of the interim order, I accepted the medical evidence that HC had advanced dementia and I was satisfied that HC demonstrated impaired cognitive functioning.
HH alleged that HNC and HF were drug users and were not providing a reasonable quality of life for HC. HH alleged that HC was neglected and physically assaulted and was cared for by an unqualified carer. HH alleged that she is prevented from having contact with her mother.
HH said that she visited HC in mid-July in order to bring her back to Melbourne with her but was prevented from doing so by her siblings. HH said that a report from HC’s GP would be provided confirming that she was well enough to travel to Melbourne. That report was not available at the time the application for an interim order was considered.
Tribunal staff contacted HNC and HF to advise them that the application for interim orders had been received. They advised that:
a)HC lived with HNC under a long-term arrangement and was not being abused.
b)HF had managed HC’s finances informally and had been a signatory to her account for many years.
c)HH is unstable and had placed HC at risk by stopping her medication without discussion.
d)HH had arranged to have a previous Enduring Power of Attorney appointing HNC cancelled in 2016.
In relation to the application for the interim appointment of an administrator, I was not satisfied that there was sufficient evidence of immediate risk to HC’s property. HH referred to $22,000 allegedly withdrawn from HC’s account in 2015 and an account containing $5,000 being closed in 2016. These were serious allegations and were matters to be considered at the hearing of this application. HNC and HF denied abuse of HC and there was no independent evidence to support the allegations. According to the information provided by HH, HC had significant funds retained in her bank accounts.
HF’s management of HC’s finances had been a long-standing arrangement and there was no evidence of immediate risk.
In relation to the application for the interim appointment of a guardian, I was not satisfied that there was sufficient evidence of immediate risk to HC’s health or welfare. HC had a carer who supported her day to day. She had recently been in hospital and to see Dr French and there was no evidence of neglect or physical abuse contained in Dr French’s letters. According to Dr French, the home environment was one of heightened emotions. That had been the case for some time and HC was discharged to HNC’s home with Dr French’s involvement.
The allegations raised by the siblings were of concern, and were to be considered fully at the hearing of the substantive applications lodged in this matter.
On the evidence available to me, I was not satisfied there were reasonable grounds to conclude that there was an immediate risk to HC’s health, welfare or property, and the application for the Interim Orders was refused.
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