HH - [2021] QCAT 103 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HH [2021] QCAT 103

PARTIES:
In an application about matters concerning HH

APPLICATION NO/S: G44547

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

1 March 2021

REASONS DELIVERED:

23 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
On 1 March 2021:

IT IS THE DECISION OF THE TRIBUNAL THAT:

GUARDIANSHIP

1.    The Public Guardian is appointed guardian for HH for the following personal matters only:

(a)    health care.

2.    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.

3.    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.

ADMINISTRATION

4.    The Public Trustee of Queensland is appointed as administrator for HH for all financial matters.

5.    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.

6.    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.

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

Human Rights Act 2019 (Qld), s 9(4).

PJB v Melbourne Health (2011) 39 VR 373.

APPEARANCES:

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 26 February 2021 an application for the appointment of a guardian (Public Guardian) and administrator (Public Trustee) for HH was made by AJ, a social worker with the Hervey Bay Hospital. At that same time, AJ applied for an interim order seeking the appointment of the Public Trustee as administrator for HH for all financial matters and a guardian.
The application for the appointment of an administrator and guardian has been listed for hearing in the Tribunal on 13 May 2021.
Before the Tribunal can make an order appointing a guardian for a personal matter or an administrator for a financial matter, the Tribunal must be satisfied of the elements in s 12 of the Guardianship and Administration Act 2000 (Qld) (the Act), namely:
(a)the adult has impaired capacity for the matter;
(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare and property; and
(c)without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.
Section 129 of the…

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 103
Decision Date

CaseChat Overview and Summary

In the matter concerning HH, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding on the interim appointment of a guardian and an administrator for an adult with impaired capacity. The application, made by AJ, a social worker with the Hervey Bay Hospital, sought the appointment of the Public Guardian and the Public Trustee of Queensland for HH's personal and financial matters, respectively. The application was made under the Guardianship and Administration Act 2000 (Qld), with the interim order sought under s 129 of the Act.

The legal issues before the Tribunal were whether HH had impaired capacity for personal or financial matters, and if so, whether there was an immediate risk of harm to HH's health, welfare, or property that warranted the appointment of a guardian or administrator. The Tribunal was required to balance HH's right to autonomy and decision-making with the need to protect HH from harm and ensure their welfare and property were adequately managed.

In making its decision, the Tribunal considered the evidence provided and noted that while HH had a National Disability Insurance Scheme (NDIS) package, there was no clear evidence or explanation as to what type of decisions regarding personal matters needed to be made. The application did not demonstrate an immediate risk of harm that would necessitate the Public Guardian's powers being extended. However, regarding financial matters, there was evidence that D, the person named in a Domestic Violence Order (DVO) against HH, had a history of substance abuse and gambling and was using HH's pension to support these habits. This led the Tribunal to conclude that HH's property was at immediate risk of harm.

Given the seriousness of the decision to appoint a guardian or administrator, the Tribunal exercised caution and restricted HH's right to make decisions to the least possible extent. It appointed the Public Guardian for health care decisions only and the Public Trustee for all financial matters, with the interim order to remain in place for three months or until a further order was made, whichever was sooner. The Tribunal also directed the guardian and administrator to provide written accounts of their actions to the Tribunal no later than three working days prior to any hearing.

The QCAT's decision underscores the importance of balancing the rights of individuals with impaired capacity with the need to protect them from harm, while also respecting their autonomy and decision-making abilities to the greatest extent possible.

Orders