HE
[2021] QCAT 34
•27 January 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
HE [2021] QCAT 34
PARTIES: In an application about matters concerning HE
APPLICATION NO/S:
GAA13544-21
MATTER TYPE:
Guardianship and administration matters for adults
REASONS DELIVERED ON:
27 January 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS:
On 8 November 2021:
The application by Leisa Ann Wheeler for the appointment of a guardian for HE under an interim order is dismissed.
CATCHWORDS:
GUARDIANSHIP AND ADMINISTRATION – INTERIM ORDER – whether Tribunal satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of the adult
Guardianship and Administration Act 2000 (Qld), s 129, schedule 4
Human Rights Act 2019 (Qld), s 9(4), s 13, s 31, s 48
PJB v Melbourne Health (2011) 39 VR 373.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 2 November 2021 Leisa Ann Wheeler, the adult’s current attorney, made an application for an interim order seeking the appointment of the Public Guardian as guardian. On 8 November 2021 an order was made dismissing the application for an interim order. These are the reasons for that decision.
Background to the application for an interim order
HE is 93 years of age. She is divorced and has one son who lives overseas and with whom she has little or no contact.
On 10 September 2016 HE appointed Heather Brickhill as her attorney for financial/ personal and health matters. The power of attorney with respect to financial matters was to begin immediately. The power of attorney for personal/health matters was to begin only when HE lost capacity. Ms Bricknell, a retired Registered Nurse, was a long term friend of HE’s, having known her for approximately 30 years.
On 28 March 2017 HE formally revoked the enduring power of attorney dated 10 September 2016. HE’s signature on the revocation is not witnessed or dated, although the witness certificate has been completed.
On 28 March 2017 HE appointed Leisa Wheeler as her attorney for personal/health matters and financial matters.
On 22 May 2017 Ms Bricknell filed an application for a declaration of capacity in relation to HE and an application seeking appointment as guardian and administrator for HE on the basis HE lacked capacity and was being unduly influenced by certain individuals, including in particular Peter Ward. Mr Ward at the time was allegedly performing paid work as a live-in carer/‘night time watchman’ for HE.
On 14 September 2017 the Tribunal made a declaration that HE did not have capacity to execute an enduring power of attorney on 28 March 2017 and, pursuant to s 113 of the Powers of Attorney Act 1998 (Qld) (POA Act) and s 82 of the GA Act, that the revocation and enduring power of attorney dated 28 March 2017 were each invalid. The Tribunal made an order revoking the enduring power of attorney dated 10 September 2016 pursuant to s 116 of the POA Act. The Tribunal also made an order dismissing the application for the appointment of a guardian and appointing Ms Wheeler as administrator.
On 3 October 2017, despite having been found to have lacked capacity in March 2017 to enter into an enduring power of attorney, HE entered into an enduring power of attorney appointing Ms Wheeler as her attorney for personal/health matters.
On 30 July 2018 the Tribunal authorised Ms Wheeler to enter into a conflict transaction, namely the payment of $700 per week for services provided to HE and payment of $18,200 for the period of six months prior to the hearing of the application. The approval was to be reviewed in 12 months. The approval for the $700 per week payment to Ms Wheeler was renewed by the Tribunal on 29 November 2019.
On 26 March 2021 a review of the appointment of an administrator for HE was adjourned and directions were made seeking a copy of a court order dated 17 February 2021; a copy of HE’s last will and codicils and an analysis of the streamlining of care arrangements for HE with a view to the reduction of the cost of her care.
On 19 July 2021 the appointment of Ms Wheeler as administrator was continued, reviewable in two years and an order made approving the payment of $700 per week to Ms Wheeler in exchange for management services to HE and record keeping for the period of her appointment as administrator. An application for authorisation of the payment of 20 weeks remuneration of past assistance to HE was refused.
On 2 November 2021 Ms Wheeler applied to the Tribunal for an interim order seeking “the appointment of the Public Guardian either solely or jointly with myself as the current EPOA.”
Ms Wheeler states in her application that on 20 October 2021 she had discussed with HE her financial situation and that she would soon need to move into aged care, as opposed to continue to live in her own home. Ms Wheeler said in the application that she told HE that if she refused to discuss the situation with Ms Wheeler, that Ms Wheeler “would have no choice but to bring in an independent third party to assist in moving forward”. Ms Wheeler continued:
HE has become very hostile and paranoid since that conversation so I feel it would be better to bring in a Guardian to assist.
In the covering email attaching the application, Ms Wheeler makes clear that HE strongly opposes the move, that she now wishes to have Ms Wheeler removed and that she believes Ms Wheeler is after her money and trying to force her into a home against her will.
Statutory framework
The Tribunal has power to make an interim order appointing a guardian for personal matters under s 129 of the Guardianship and Administration Act 2000 (Qld) (GA Act).
Section 129 of the GA Act gives power to the Tribunal to make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the Act,[1] but only if the Tribunal is satisfied, on reasonable grounds, that:
(a) the adult concerned in the application has, or may have, impaired capacity for a matter; and
(b) there is an immediate risk of harm to the health, welfare or property of the adult, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.[2]
[1]GA Act, s 129(2).
[2]GA Act, s 129(1).
The maximum period that may be specified in an interim order is 3 months.[3]
[3]GA Act, s 129(5).
‘Capacity for a matter’ is defined in schedule 4 of the GA Act to mean 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 In making my decision.
I accept that the Tribunal is subject to the Human Rights Act 2019 (Qld) when it makes a decision to appoint an administrator or guardian under the GA Act, being, in the course of making that decision, a ‘public entity’ acting in an “administrative capacity”.[4]
[4]Human Rights Act 2019 (Qld), s 9(4)(b); PJB v Melbourne Health (2011) 39 VR 373.
Consideration
The appointment of a guardian or administrator on an interim basis is a serious incursion on a person’s human rights. I accept, for the reasons above, that the Tribunal is subject to the Human Rights Act 2019 (Qld) when it makes a decision to appoint an administrator or guardian under the GA Act.
There was no evidence of the state of HE’s finances. Presumably HE has been living with support in her home for a number of years. There was no evidence that HE’s finances or her home was at immediate risk of harm such that an urgent appointment of a guardian for the purpose of making an accommodation decision should be made. Ms Wheeler merely provided in the application that it would be “financially irresponsible” for HE to continue to live at home with private care.
In a covering email attaching the application for an interim order, Ms Wheeler also raises the argument that she will be “legally exposed to being sued by her beneficiaries, should [she] spend all of her money on private care at her home, rather than retaining a residual for her beneficiaries”. This argument does not address how that places HE at “immediate risk of harm”.
Further, it is not clear from the application why Ms Wheeler, presuming her to be HE’s duly appointed attorney for personal matters, could not make a decision regarding HE transitioning to aged care if one was required to be made in HE’s best interests. That Ms Wheeler might find a decision to move HE to aged care ‘difficult’ is not a sufficient basis for making an interim order appointing the Public Guardian under s 129.
There was insufficient evidence to justify an appointment on an interim basis. There was no evidence of HE’s financial position and therefore no basis upon which it could be found that her property was at immediate risk of harm. Moreover, HE would, ordinarily, be entitled to receive notice of a hearing seeking the appointment of a guardian, an opportunity to be heard and to attend a hearing where the requirements to be satisfied before a guardian can be appointed would be fully ventilated. Here there would also be a need to consider the validity of the enduring power of attorney dated 3 October 2017 and whether it should be revoked or overtaken. The rights normally afforded to an adult in a guardianship hearing, including the right to be heard, are all dispensed with under the GA Act in the case of an interim order but only because an adult is at an immediate risk of harm.
Accordingly, because I could not be satisfied on the material before me that HE’s heath, welfare or property was at immediate risk of harm, I refused the application. This decision, in my view, is consistent with the general principles under the GA Act and with HE’s human rights to engage in a hearing of the matter where the issues are able to be fully explored and HE, and any other active parties, have an opportunity to be heard.
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