HI - [2013] QCAT 543 | CaseChat AU

CITATION:

HI [2013] QCAT 543

PARTIES:

APPLICATION NUMBER:

GAA8487-13

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 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Adult Guardian is appointed guardian for HI for the following personal matters only:

a. accommodation decisions;

b. provision of services for HI.

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.

4. The Tribunal notes that the following enduring power of attorney for HI 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 7 January 2002 appointing ABC as attorney for personal and health matters.

CATCHWORDS:

GUARDIANSHIP – where decision made about an adult’s care and accommodation by attorney – where that decision cannot be implemented – where an adult is at immediate risk of harm

Guardianship and Administration Act 2000 s 129

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

HI had lived alone in her home until she was admitted to hospital following a motor vehicle accident on 17 August 2013. She underwent physiotherapy and occupational therapy and 13 September 2013 she was independently mobile with a four wheeled walker. The treatment team at the hospital had concerns about HI’s ability to return home safely.
Accordingly to evidence provided to QCAT, HI had been assessed as having difficulties with planning, insight, abstraction, visuo-spatial perception and with following instructions. Further evidence was provided that HI had short-term memory impairment and that while on the ward in hospital, she needed frequent cues and prompts to complete most tasks and for reorientation and directions when mobilising.
The assessment completed by the Aged Care Assessment Team recommended that HI have low level residential care but also included an option for a home care package to assist with shopping, meals, administration of medication, hygiene and social support.
HI had made an Enduring Power of Attorney in 2002 and had granted power to her daughter, ABC, to make personal and health care decisions for her. Under the Powers of Attorney Act 1998, those powers come into effect when the grantor loses capacity for decision making about personal and health matters.
The tribunal was provided with copies of some case notes from Dr Aitken who is a consultant physician and geriatrician. Dr Aitken had consulted with HI on 29 August 2013 and on 30 August 2013 and he issued a report on 30 August 2013 stating that HI no longer had capacity to manage her own financial affairs and he recommended that her Enduring Power of Attorney for financial matters be immediately activated. His report did not mention whether he considered that HI lacked capacity to manage her personal and health matters as well.
The case notes of Dr Aitken from a consultation on 11 September 2013 stated that HI superficially presents well and sounds rational but she is unable to recall information repeatedly presented to her, she is unable to recall that she had told the same information several times in a conversation, she is unaware of her care needs, she stated that she is able to do activities of daily living when she has not been able to do them, she was unable to understand that she had set up The Public Trustee as her financial decision maker, denies there is conflict between her children and stated that she had been told that she was capable of looking after her finances and of going home by a physiotherapist friend of her daughter.
Dr Aitken noted that he had concluded that HI was cognitively impaired and had demonstrated significant deficits in reason and insight. Dr Aitken stated a belief that HI was at risk of undue influence.
In further case notes following a family meeting on 12 September 2013, Dr Aitken noted that HI had repeated herself multiple times during the meeting and did not take on board the issues that had been discussed with any clarity. He noted that HI continued to believe that she can be discharged to her daughter, DE’s home and when she is better she could go home by herself. Dr Aitken stated that HI has a dysexecutive syndrome related to early dementia and is highly suggestible and able to be influenced/coerced into believing things about her care. Dr Aitken noted an opinion that HI does not have capacity to make a rational and informed decision about her care needs.
ABC sought out suitable residential care facilities for her mother and on 19 September 2013 an offer was made by a facility to take HI as a resident. That offer was accepted by ABC as the attorney for HI.
On 22 September 2013 DE, another daughter of HI, sent an email to her siblings and stated that she disagreed with that decision. DE stated that the attorney had bullied HI into accepting nursing home placement when she wants to go home. DE stated that she was confident that HI could return home if given the right support. DE had removed HI from her respite care and told her siblings that they could see their mother at a mutually arranged venue when she had settled in.
An application was made to QCAT by ABC for the appointment of a guardian for HI. She also sought an interim appointment on the grounds that HI’s current accommodation (a house that is being run as a boarding house for 6 to 8 tenants) was unsuitable and that HI’s emotional wellbeing was at risk.
QCAT has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and when the presumption of capacity has been rebutted. However QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of the Guardianship and Administration Act 2000 without a hearing and without deciding whether or not a person has impaired decision making capacity.
Section 129 permits the tribunal to 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.
ABC submitted that HI had been abducted by DE. ABC submitted that the offer of accommodation at the aged care facility was open for only a further seven days and she had been prevented from speaking to her mother to make arrangements for her placement into that facility. ABC submitted that there was unresolved tension in the family related to allegations of financial and emotional abuse of HI by DE.
ABC told the tribunal registry staff that DE had ignored the efforts of staff at the respite facility to have HI remain in care and that HI’s medication had been left behind when she was removed from care.
Although it was not necessary when making an interim appointment under section 129 to make a finding about the extent, if any, of impaired decision making capacity, the tribunal would generally take into account whether there was evidence capable of establishing impaired capacity before an interim appointment was made. I was satisfied that there was evidence before the tribunal which could reasonably form the basis of a finding of impaired decision making capacity.
HI had been removed from care and prevented from having an orderly transition into residential aged care by the actions of DE. The placement offer would expire on or about 2 October 2013 and there no other contingency had been put in place by the attorney for the care of HI. The attorney for HI had made a decision about her care and accommodation based on the advice of health care professionals and on input from family members but by the deliberate actions of a person lacking legal authority, that decision was unable to be implemented. The attorney and other members of HI’s family were prevented access to her and she was being isolated from them.
I was satisfied that there was an immediate risk of harm to HI. The decision making regime that she had put into place was being deliberately obstructed by DE. That obstruction would result in suitable care and accommodation being lost to HI as DE had expressed the belief that HI did not need residential aged care but that she could return to live at home with support. It is not an unreasonable inference to draw that further important decisions about HI’s care will be sought to be made by unilateral action by a person without lawful authority and contrary to the General Principles.
HI is vulnerable due to her dementia. With dementia there is likely to be reduced cognitive functioning. I find that HI is suggestible. She is at risk of immediate emotional harm and confusion by the conflict emanating from what appear to be long standing tensions within her family. It is essential that decisions about her care and accommodation are made calmly and are made by a person who is not part of that family conflict until such time as the hearing of the application for the appointment of a guardian can be conducted.
I appointed the Adult Guardian on an interim basis to make decisions for HI about accommodation and services.