HE - [2021] QCAT 34 | CaseChat AU

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 34
Decision Date: 27 January 2022

CaseChat Overview and Summary

In the matter of HE, Leisa Ann Wheeler sought the appointment of a guardian for the adult, HE, under an interim order. The application was dismissed by the court on 8 November 2021. The primary concern was whether the Tribunal was satisfied on reasonable grounds that there was an immediate risk of harm to HE's health, welfare, or property, warranting such an appointment. The court had to evaluate the evidence presented regarding HE's capacity and the potential risks involved if a guardian were not appointed promptly.

The legal issues centred on the interpretation of the relevant statutory provisions and the standard of proof required to satisfy the court that an immediate risk of harm existed. Specifically, the court had to determine whether the evidence provided was sufficient to establish a reasonable apprehension of harm that necessitated the immediate appointment of a guardian. The court also considered the implications of such an order on HE's autonomy and the principle of least restrictive alternative in making its decision.

In reaching its decision, the court found that the evidence presented did not meet the threshold required to establish an immediate risk of harm. The court emphasised the importance of ensuring that the decision to appoint a guardian was based on clear and convincing evidence of imminent risk. As such, the court was not satisfied that the necessary standard of proof had been achieved. Consequently, the application for the interim order was dismissed, and no guardian was appointed at that time.

Orders

Orders of the court

On 8 November 2021:

The application by Leisa Ann Wheeler for the appointment of a guardian for HE under an interim order is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)