HH
[2021] QCAT 103
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 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, but only if the Tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult. The maximum period that may be specified in an interim order is 3 months.
On 1 March 2021 the Tribunal made a decision appointing the Public Guardian as guardian for HH for health care decisions and the Public Trustee of Queensland as administrator for all financial matters. The Tribunal, on application by the Public Guardian, has since extended their appointment to decisions about accommodation, with whom HH has contact and the provision of services.[1] AJ has requested reasons for the earlier interim decision of 1 March 2021. These are my reasons.
[1]Tribunal Order dated 4 March 2021.
The application which preceded the order of 1 March 2021 sought the appointment of a guardian. There was no evidence or explanation as to what type of decisions regarding personal matters, if any, needed to be made and it was not clear from the application that the adult was at an immediate risk of harm such that she needed the powers of the Public Guardian extended. The application stated that HH had a NDIS package but that the service providers could not attend HH’s home due to safety concerns. There was a current DVO in place which named D as the person responsible for domestic and family violence towards HH. A copy of the DVO was not provided.
It was not clear to the Tribunal on 1 March 2021 that HH needed to be relocated or that any further service provision decisions needed to be made. The concern appeared to be with ensuring safe access to HH’s home by existing service providers, not with changing HH’s accommodation or current service providers. There was also no material before the Tribunal as to why contact decisions were needed, particularly given the DVO in place. In relation to the appointment of an administrator, the applicant stated that D had a history of substance abuse and gambling and was using HH’s pension to support his habits.
The appointment of a guardian or administrator on an interim basis is a serious incursion on a person’s human rights. 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 Act, being, in the course of making that decision, a ‘public entity’ acting in an “administrative capacity”.[2]
[2]Human Rights Act 2019 (Qld), s 9(4)(b); PJB v Melbourne Health (2011) 39 VR 373.
The appointment of an administrator with unlimited powers is a serious step to take because it transfers complete and exclusive control of a person’s estate to the administrator. It is particularly so when the appointment is made on an interim basis because the usual legal protections and rights of adults with impaired capacity do not apply. For example, the adult is not required to be given notice of the application, has no opportunity to be heard, and is not given a fair hearing. Similarly, the appointment of a guardian for, effectively, all personal decision-making is a decision that seriously undermines the personal autonomy of an individual and their right to make decisions which significantly affect their life.
Accordingly, the Tribunal made a decision which restricted HH’s right to make decisions to the least possible extent by making an interim order appointing the Public Guardian for health matters so that the Public Guardian could assist with health care decisions rather than D, the person named as the perpetrator in the DVO, and by appointing the Public Trustee for all financial matters given the Tribunal was satisfied that HH’s property was at immediate risk of harm.
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