KTG
[2015] QCAT 491
•8 October 2015
| CITATION: | KTG [2015] QCAT 491 |
| PARTIES: | KTG |
| APPLICATION NUMBER: | GAA9799-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 8 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. KD is appointed guardian for KTG for all personal matters. 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. KD is appointed administrator for KTG 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. 7. That before 5 November 2015 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the Registrar of Titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. 9. The following enduring power of attorney for KTG is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made: (a) The enduring power of attorney dated 10 September 2013 appointing KD and KS as attorneys for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP – where adult had appointed her son and daughter as her joint attorneys – where adult has been diagnosed with dementia and a psychiatric illness – where frequent withdrawals made by one of the attorneys from a bank account owned by the adult – where dispute by one attorney over medical treatment was not supported by other attorney INTERIM ORDER – where inference drawn that funds belonging to adult were not being used for her benefit – whether adult was at an immediate risk of harm – whether decision-making regime of joint attorneys should be replaced until hearing Guardianship and Administration Act 2000 (Qld) – s129 |
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
KTG is now residing in an aged care facility but until earlier this year, she had been residing in her own home that was cluttered due to hoarding behaviour. She had been admitted to hospital in March 2015 after a fall that had resulted in a fractured pelvis. While in hospital she had been transferred to a mental health unit to address psychotic symptoms, primarily paranoia, and prominent anxiety.
She had appointed her son and daughter as her joint attorneys under an Enduring Power of Attorney dated 10 September 2013. An application for the appointment of a guardian and administrator was made to the Tribunal by one of the attorneys, KD because she asserted that the other attorney was misusing the funds belonging to KTG and had been obstructive in obtaining timely and appropriate care for KTG as he disagreed with aspects of the diagnosis and recommendations made by the treating team for KTG.
The evidence provided to the Tribunal revealed that KTG has been diagnosed with dementia and that she displays erratic behaviour and is impulsive in her interactions and often has bizarre thinking or delusions. The medical evidence provided to the Tribunal expressed an opinion that KTG could not make, or revoke, an Enduring Power of Attorney due to a psychiatric disability and dementia.
KD applied for an interim order. She alleged that the other attorney had been accessing the funds belonging to KTG, to the extent of over $5,500 over a three month period. Copies of bank statements were provided to the Tribunal which appear to reveal that frequent withdrawals had been made from the Bank of Queensland pension account of KTG since 1 May 2015 and that the person to whom the withdrawn money was paid was KS.
KD stated that KS had questioned the conclusions reached by the medical treating team for KTG who had recommended that she been placed into residential care after her discharge from hospital. KD stated that it was not until the treating team had indicated that they would apply to remove the attorney that her brother agreed to support placement of KTG into residential aged care.
KD stated that her brother has continued to dispute the medical diagnosis made by the staff at hospital and has lodged a complaint about the hospital’s treatment of KTG. KD stated that she and her siblings do not support the complaint. KD stated that since KTG had been in residential care, her brother has continued to dispute the opinions and actions of her doctors and that he believes that KTG will get better and return to her old self if she is properly treated by her doctors.
As the joint attorney did not agree with the actions of her fellow attorney, she submitted that there was a need for an immediate appointment of decision-makers for her mother. QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129(1) of the Guardianship and Administration Act 2000 (Qld) 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.
The evidence provided to the Tribunal did establish that KTG was at an immediate risk of harm to her welfare and finances due to the actions of one of her attorneys. The bank statements reveal regular withdrawals of her funds that were paid to KS. For all of the period set out in the bank statements provided to the Tribunal, KTG was either in hospital or in residential aged care.
While she would have had some ongoing commitments in relation to her home, the withdrawals from her pension account appear to be made too frequently to be accounted for by way of payment of outgoings for her home. In any event, KD provided a statement for the same period of another bank account belonging to KTG from which payments were being made for rates and other house related payments.
KTG would have needed some expenditure to be made for personal items to make her comfortable in hospital and when in residential care. However the withdrawals from her pension account appear to be made too frequently to be accounted for by way of the purchase of items for her comfort.
A reasonable inference could be drawn that funds in the pension account had been used and were being used by KS for purposes other than for the benefit of KTG.
The tribunal accepted the evidence from KD that she did not agree with the actions of her joint attorney about the treatment that KTG had needed or needed on an ongoing basis. The evidence appeared to suggest that KS was taking the major role in making health care and accommodation decisions when the attorneys had been appointed jointly. The joint appointment of the attorneys had resulted in the attorneys not being able to agree on importance aspects of the care of KTG and it was important that a decision-making regime was put in place that did not have the consequence of delaying or complicating decision-making support required by KTG.
A reasonable inference could be drawn from the evidence that KTG was at risk of abuse and neglect due to the actions of her attorney, KS. It was appropriate to put in place a decision-making regime that did not allow this situation to continue while the parties waited for a date when the substantive applications could be heard and determined.
KD had originally been appointed by KTG to be her sole attorney in 2012 and had been appointed in 2013 to be a joint attorney with KS. It is apparent that KTG had wanted her daughter to be her decision-maker. The Tribunal considered that it was appropriate to take the expressed wishes of KTG into account and to appoint KD as her decision-maker on an interim basis until such time as the applications for the appointment of a guardian and administrator could be heard and determined by the Tribunal.
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