LF - [2013] QCAT 733 | CaseChat AU

CITATION:

LF [2013] QCAT 733

PARTIES:

APPLICATION NUMBER:

GAA8856-13; GAA9056-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

21 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

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

(a) accommodation decisions;

(c) health care of LF;

(d) provision of services for LF.

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 Public Trustee of Queensland is appointed administrator for LF 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 – where immediate risk of harm to welfare established – where interim appointment of decision makers required - where statutory appointees appropriate for interim appointments

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

LF is 73 years of age and he has been diagnosed with dementia. He has been living with several of his children in the recent past. Since 15 July 2013 he has been living with his son, LC. Some of his adult children are not happy with this arrangement and they have not been able to contact their father since 15 July 2013 due to severe conflict between some of the adult children. One of the children of LF has taken out a domestic violence order against her brother, LC.
Applications have been made by four of LF’s adult children to QCAT for the appointment of a guardian and administrator for LF. It is contended in those applications that LF is at risk of harm to his welfare and at risk of financial harm if he were to live with some of his children. All four applicants applied for an interim appointment of some substitute decision makers for their father until such time as QCAT could conduct a hearing of the substantive applications.
QCAT has the power under the Guardianship and Administration Act 2000 to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and if the presumption of capacity has been rebutted by the evidence produced to the tribunal. However QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of that Act without a hearing.
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. I was satisfied that the evidence provided in support of the applications for an interim appointment established an immediate risk of harm.
LC and one of his sisters gave evidence that LF had been subject to neglect when in the care of his children prior to July 2013. They stated that their father would arrive at the home of his children without any clean clothes, without toiletries, was skinny and appeared generally unkempt and malnourished. They stated that he would not have any money on him nor did he have access to any money. They stated that after a period of time in their care, LF’s appearance and wellbeing improved and he would return to the care of LJ.
LC and his sister stated that the process of neglect would start over again until LF ultimately was returned to the care of either LC or his sister. They stated that LJ had assumed informal control over their father’s finances. They stated that LJ had refused to disclose any information about their father’s finances to them.
LC and his sister provided copies of various bank statements from their father’s bank accounts which revealed withdrawals from their father’s account into another account. Details of the account holder were not able to be readily identified.
LJ and another sister also sought interim appointments of a guardian and administrator. They provided evidence that there was severe conflict existing between some of the siblings. They denied the allegations about LJ’s conduct. They contended that LF was at an immediate risk of harm while he remained residing with LC. It was alleged that LF was being held against his will and his health was at risk due to his dementia and diabetes. It was alleged that LC was a violent man with access to firearms. It was alleged that LC wanted to have access to his father’s financial assets for his own purposes.
It is not necessary to decide between the conflicting accounts given by the applicants when considering the applications for an interim appointment. What is clear from the overall evidence presented to the tribunal was that LF’s residence had been changed since July 2013 by the actions of LC without consultation with and without agreement from other members of his family who had until that time been instrumental in making decisions informally about where LF lived.
It is also apparent from the produced banking records that dealings on LF’s bank account have not been transparent, need explanation and have interfered with convenient access to his funds while he was living with family members other than LJ. Serious allegations of financial abuse have been levelled against LJ and serious allegations of potential financial abuse have been levelled against LC.
The family is bitterly divided and conflicted over what is best for their father. Serious allegations have been made of neglect and physical abuse against members of the family. It is clear that LF is in the middle of an aggressive family dispute and is at risk of his interests being ignored while his children focus on their personal feuds. This is clearly a situation that gives rise to a material risk of harm to LF’s welfare.
Having formed the view that an interim appointment of a guardian and administrator was necessary, consideration was given as to who should be appointed as a substitute decision maker until hearing. From the information filed on behalf of the applicants, I was not satisfied that the evidence had established that any of the applicants would be likely to apply the general principles that underlie the system of substitute decision making during the interim period to hearing. They appear from their evidence to be focussed more on their differences than on what are the right decisions to be made for their father. The tribunal will only be in a position to assess the appropriateness of any of the proposed appointees for the role of formal decision maker after a full hearing of the applications.
For the reasons set out in the preceding paragraph, I was satisfied that statutory appointees should be given the interim task of making decisions for LF. On the evidence, I was satisfied that decision making was required about accommodation, health care and service provision by the Adult Guardian and about all financial matters by The Public Trustee of Queensland.