KJO - [2015] QCAT 545

CITATION:

KJO [2015] QCAT 545

PARTIES:	KJO
APPLICATION NUMBER:	GAA12682-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

22 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by KD for an interim order is dismissed.

CATCHWORDS:

GUARDIANSHIP – where appointment of a guardian sought – where application for appointment of an administrator made to replace Attorney for financial matters – where Attorney for financial matters had entered into contract for sale of Adult’s house - where family member opposed sale of the house

INTERIM ORDER – where application made for an interim order – where outcome being sought was for a stay of the completion of the sale of the house – whether sale should be stayed and whether there was an immediate risk of harm to the Adult

Guardianship and Administration Act 2000 (Qld) – ss12, 128,129

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

KJO is 89 years of age. She has been diagnosed with dementia. In October 2015, when she was an inpatient at a Brisbane Hospital, her son, KS, applied to QCAT to be appointed the guardian for KJO. He had been appointed the Attorney for KJO for financial matters in 1997 but at that time a person could not appoint an Attorney for personal matters.
Support for his application for appointment as a guardian for KJO was received from his brother, KP. However, his sister KD did not support that proposed appointment.
On 16 December 2015, KD filed in QCAT an application for appointment of a guardian and administrator for KJO. KD proposed that she should be appointed as guardian but in the application she also, somewhat confusingly, proposed herself and The Public Trustee of Queensland as administrator. A covering letter filed with the application suggested that she might have completed part of the application in error and that she was indeed seeking the appointment of The Public Trustee of Queensland to be the sole administrator.
In that letter, KD stated that the Attorney had sold the house owned by KJO, who by that date had been placed into an aged care facility. KD stated that the sale was to settle on 22 December 2015. She filed an application for an interim order as she asserted that the sale had been conducted with inappropriate and unnecessary haste. She further asserted that she opposed the sale out of a concern at the adverse impact that the sale would have on the psychological health of KJO, given her age, her temperament and personality.
In the application for an interim order, KD stated that she wanted an order to delay the sale of the family home and to prevent any further personal property being removed by the Attorney until 31 March 2016 to allow KJO a reasonable time to pay visits to the home with KD on her return to Brisbane.
KD asserted that she believed that KJO understood that she was in a nursing home and will need to stay there, but that KJO had been placed under considerable pressure by her Attorney and KP to sell her home with undue haste. KD asserted that the decision to sell the home was causing KJO significant distress. KD believed that KJO could best come to terms with the situation if she was given the opportunity to visit the home with KD on a few more occasions to reminisce about her life there and about their shared memories.
KD asserted that she had made requests to her brothers for such an opportunity and that she had been given a verbal assurance that the house would not be sold for another 12 months.
If it is found that KJO has impaired decision-making capacity, QCAT can appoint decision-makers to ensure that her decision-making needs are adequately met.[1] QCAT can make an interim order under s 129(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) without holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
[1]Guardianship and Administration Act 2000 (Qld) s 12(1).
KD sought an interim order specifically to delay the completion of the sale of the home formerly occupied by KJO. She did not ostensibly apply under s 128 of the GAA for a stay of the decision made by the Attorney but she in effect used the interim order process to seek to effect a stay of the sale decision. The factors relevant to granting a stay of the Attorney’s decision would be relevant to determining the application for an interim order as well as the factors set out in s 129 of the GAA.
In essence, the stay factors would be satisfied if KD could establish that she had an arguable case for the appointment of an administrator rather than financial decisions being made for KJO by her Attorney. She must also satisfy QCAT that it would be more convenient to KJO’s interests to grant a stay of the sale than it would be to permit the sale to be completed under the contract of sale.
According to the application, the house was already under a contract of sale and settlement was due on 22 December 2015. If KJO were to refuse to complete the sale under the contract, a reasonable inference could be drawn that she would be exposed to significant risk of damages for breach of contract. There was no allegation that the Attorney had no legal authority to enter into the sale and KD had not disclosed any legal grounds on which the Attorney, or indeed an administrator if appointed under an interim order, could lawfully refuse to complete the sale.
The Tribunal was not satisfied that KD had established that the benefits to KJO resulting from a stay of the completion of the sale on 22 December 2015 would outweigh the harm that would result to her if the Attorney were to be directed to abort the completion of the sale on the due settlement date. The balance of convenience was against the stay being allowed under s 128 of the GAA.
The application for an interim order did not disclose any satisfactory grounds on which it could be found by QCAT under s 129 of the GAA that KJO was at an immediate risk of harm if an administrator were not appointed. KJO had chosen her son, KS, to be her financial decision-maker in 1997. There were many years between when she made the Enduing Power of Attorney and when she started to develop the condition which is alleged to have resulted in her impaired decision-making capacity. There was no evidence that she had sought at any time to re-consider the confidence she had reposed in her son, KS, to make financial decisions for her.
As a decision-maker for financial matters was already in place, and as that person was actively making decisions for KJO, there did not appear on the evidence any reasonable grounds on which QCAT could be satisfied that KJO was at an immediate risk of harm if she did not have an administrator. The application for an interim order under s 129 of the GAA was dismissed.