HG

[2012] QCAT 530

CITATION: HG [2012] QCAT 530

PARTIES: HG

APPLICATION NUMBER: GAA6404-12

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 27 July 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 Public Trustee of Queensland is appointed administrator for HG for all financial matters.

4.    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.

5.    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.

6.   The administrator shall within twenty-eight (28) days:

a)  identify, by way of a search of the records held by the Registrar of Titles or other means, any interest in real property registered in the name of HG (“the adult”).

b) lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order.

c)  provide to the Tribunal:

(i)        a copy of the search of records held by the Registrar of Titles referred to above and;

(ii)       a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order.

7.    If any change is made in an interest in land held by HG (“the adult”) which is the subject of this administration order or if there are any further dealings in land on behalf of the adult by the administrator, the administrator shall lodge with the Registrar of Titles within fourteen (14) days of the finalisation of such interest a copy of this order and a notice (in a form prescribed by the Registrar of Titles), concerning such changes or dealings.

8.    The administrator shall pay, on behalf of the adult, any fee associated with the above notices.

9.    The Tribunal notes that the following enduring power of attorney for HG is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made:

(a) The enduring power of attorney dated 17 May 2011 appointing ABC and DEF as attorneys for financial, personal and health maters.

CATCHWORDS: GUARDIANSHIP – interim order sought – where allegations of financial abuse made – where decision making authority of attorneys had been undermined – where there was an immediate risk of harm

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

1. HG was an inpatient in Logan Hospital in July 2012.  HG is 88 years of age and has been diagnosed with gradual cognitive decline over the past 12 months.  The treating team at the hospital had been informed of allegations that the attorneys for HG had been acting inappropriately and had been attempting to obtain a financial benefit from HG. 

2. A social worker at the hospital applied to QCAT for the appointment of a guardian and administrator for HG due to the allegations of misuse of their powers made against the attorneys.  Enquiries made by tribunal staff with the attorneys revealed that the attorneys denied any misuse of their powers.  It was however stated by each attorney that people had been trying to force HG to sign over her property to them and that there had been issues for some years as HG had invited people to stay with her and offered them money in her will.  One attorney expressed a desire to resign from the role of attorney over the allegations made by HG.

3. The applicant sought an interim appointment on the basis that HG was medically unwell, very confused and unable to monitor the actions of her attorneys in the context of the allegations that had been made from two separate sources that the attorneys were acting inappropriately.  

4. There is a presumption at law that all adults have capacity to make their own decisions.  Appointments of decision makers for adults with impaired decision making capacity are made when the presumption of capacity has been rebutted.  A rebuttal of the presumption of capacity can be reached after a hearing by a member of QCAT when the evidence produced to the tribunal has been tested. 

5. However the Guardianship and Administration Act 2000 (GAA Act) does have provisions that permit QCAT to make appointments of substituted decision makers on an interim basis without a hearing and without deciding the issues in the proceeding, including the issue of whether an adult has decision making capacity.  An interim appointment is only in place for a limited period of time until the final hearing can take place.  

6. Section 129 of the GAA 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 applicant had sought an interim order on the basis there was an immediate risk of harm to the property of HG.

7. I accepted that HG had told a range of people that her attorneys were involved in some form of financial abuse.  I also accepted that HG had made similar allegations about her neighbours and other people over the recent past.  I noted the denials of the attorneys and the reluctance of one of the attorneys to remain in the role. 

8. It appeared to me that the required mutual trust between HG and her attorneys was gone.  This position may well be found at a hearing to be the consequence of her declining cognition but until a hearing could take place, there would remain distrust and confusion about the decision making process used to protect the financial assets of HG.  Certainty and confidence about decision making is essential in order to avoid harm occurring to the financial position of an adult whose capacity is alleged to be impaired.  

9. I was satisfied that there was an immediate risk of harm to the property of HG as there was evidence that HG, particularly when unwell, had been making various offers of financial benefit to others and the allegations made against her attorneys tended to undermine their authority to stop financial abuse from occurring.  A clear and unambiguous decision making process was required to respond to the allegations of immediate harm until a hearing could establish the veracity of the allegations.  I was satisfied that an administrator was needed on an interim basis to take action to prevent any adverse consequences occurring to the property of HG until a QCAT hearing.

10. I appointed The Public Trustee of Queensland as administrator as neither of the attorneys would be appropriate appointees under an interim order due to the allegations made against them.