ILG
[2023] QCAT 296
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
ILG [2023] QCAT 296
PARTIES:
In applications about matters concerning ILG
APPLICATION NOS:
GAA6982-23, GAA6983-23
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
19 July 2023
HEARING DATE:
19 July 2023
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDERS:
1. The application by DTA for the appointment of an administrator for ILG is dismissed.
2. The application by DTA for the appointment of a guardian for ILG is dismissed.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – EXTENT OF POWERS – where adult resides on Norfolk Island – whether QCAT has jurisdiction
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – JURISDICTION, PROCEDURE AND EVIDENCE – where adult resides on Norfolk Island but owns real property in Queensland – whether sufficient connection with Queensland
Guardianship and Administration Act 2000 (Qld), s 12
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
RAM [2011] QCAT 239
DFI [2016] QCAT 37
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Introduction
These proceedings relate to an elderly man. For privacy reasons, I will refer to him as ILG and to his daughter as DTA.
ILG lives on Norfolk Island.
On 13 June 2023, DTA applied to the tribunal for the appointment of an administrator and the appointment of a guardian for ILG. DTA said that ILG has been in hospital on Norfolk Island for two years, and that she and her siblings believe he should move to the Australian mainland where they believe he can receive better care.
On 19 June 2023, I made directions for DTA to provide a written submission to the tribunal by 10 July 2023 explaining why the tribunal has jurisdiction to make orders in relation to ILG who, on the information provided, is not a resident of Queensland and does not own property in Queensland. I directed that if the tribunal were not then satisfied that it has jurisdiction, it may dismiss the applications on the papers, under section 47 of the QCAT Act.
DTA has not made a submission in response to the directions.
When I made the directions on 19 June 2023, I had not seen a financial management plan prepared by DTA dated 18 June 2023. The plan had been emailed to the tribunal’s registry but was not yet on file. The plan indicates that ILG jointly owns a number of real properties: one on Norfolk Island, one in New South Wales, and one in Queensland. DTA says in the plan: ‘without knowing the details of [ILG’s] finances, there are no immediate plans to make any changes to any current investments’.[1]
[1]Document F1 on the tribunal’s file
I have decided to dismiss DTA’s applications, for the reasons that follow.
Why the applications have been dismissed
Under section 47 of the QCAT Act, the tribunal may dismiss an application that is misconceived or lacking in substance.
Under the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’), the tribunal may appoint an administrator (to make financial decisions) and/or a guardian (to make personal decisions, such as where the person lives) for an adult. However, I agree with the observations made in RAM [2] and DFI [3] to the effect that the tribunal has limited power to make orders about adults outside Queensland. To make a guardianship appointment, there must be a sufficient connection with Queensland, such as the adult being present in Queensland or ordinarily residing in Queensland. To make an administration appointment, it may be sufficient that the person has an asset located in Queensland even though the person lives elsewhere.
[2][2011] QCAT 239.
[3][2016] QCAT 37.
On the available information, ILG is not present in Queensland and he does not ordinarily reside here. I see no basis on which the tribunal could appoint a guardian for him. Accordingly, that application should be dismissed under section 47 of the QCAT Act.
Having now seen the financial management plan, I understand that ILG has, according to DTA, a share in a real property in Queensland. That would be a sufficient connection, if there was some reason to appoint an administrator to make decisions about that property. Under section 12 of the Guardianship and Administration Act, an administrator could be appointed if:
(a)ILG has impaired capacity (and medical evidence has been provided by DTA that he has); and
(b)there is a need for a decision in relation to the property or ILG is likely to do something in relation to the property involving unreasonable risk to his health, welfare or property; and
(c)without the appointment, the needs of ILG would not be adequately met or his interests would not be adequately protected.
Nothing in the material suggests that there is a need for a decision about the Queensland property, or that ILG is likely to do something about the property involving unreasonable risk, or that the meeting of ILG’s needs or the protection of his interests requires the appointment of an administrator to make decisions about the property.
I am therefore not satisfied that there is any basis upon which an administrator could be appointed. The application for the appointment of an administrator should therefore be dismissed.
I have also considered whether there are any legislative provisions which give the tribunal jurisdiction to make orders about an adult living on Norfolk Island regardless of connection with Queensland. I note that DTA mentioned in her guardianship application that in 2021 she had made a guardianship application to the New South Wales Civil and Administrative Tribunal. She said that application was ultimately withdrawn because a deed of family agreement between ILG’s children and his wife was signed which ILG’s children thought would ensure his wellbeing. It occurred to me that DTA may think that QCAT gained jurisdiction when responsibility for various services on Norfolk Island was vested in Queensland in recent years. I therefore examined the Norfolk Island Act 1979 (Cth), the Norfolk Island Regulations 2021 (Cth), and the Norfolk Island Applied Laws and Service Delivery (Queensland) Ordinance 2021 (Cth). They provide a scheme for the application of some Queensland laws in Norfolk Island. However, I have not found any provisions that would presently apply any Queensland law about guardianship and administration in Norfolk Island.
Conclusion
DTA’s applications have therefore been dismissed.