LME

[2018] QCAT 314

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LME [2018] QCAT 314

PARTIES:

WV
CA

(applicants)

APPLICATION NO/S:

GAA10021-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

18 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

ORDERS:

On 28 August 2018:

1.   The application by WV and CA for the appointment of a guardian for LME under an interim order is dismissed.

2.    The Public Trustee of Queensland is appointed administrator for LME for all financial matters.

3.    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.

4.    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.

5.    The Tribunal notes that the following enduring power of attorney for LME 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 20 March 2013 appointing GDL and TEL jointly as attorney(s) for financial, personal and health matters.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where appointment of guardian sought – where appointment of administrator sought – where applicants expressed risk to the adult if no interim appointment made – where the risk related to the conduct of the appointed enduring power of attorneys for the adult – where the tribunal was not satisfied that there was an immediate risk of harm to the adults finances – where the tribunal was satisfied that there was an immediate risk of harm to LME’s health and welfare if no appointment was made – where the Senior Member appointed Public Trustee of Queensland – where the enduring power of attorney was overtaken to the extent the appointments had been made

Guardianship and Administration Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REPRESENTATION:

Applicant:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

1. LME is 86 years old. LME was an inpatient at a Brisbane hospital when, on 28 August 2018, LME’s son and daughter CA and WV (the applicants), applied for the appointment of an administrator and the appointment of a guardian for LME. They proposed the Public Guardian and the Public Trustee of Queensland.

2. Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12 of the Guardianship and Administration Act 2000 (Qld) (GAA) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made, and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process. In this case, an enduring power of attorney had been executed so any appointment of an administrator or guardian would require the overtaking of the enduring power of attorney or some other order by the Tribunal to prevent it being acted upon.

3. The applicants also applied for an interim order. Appointments of substitute decision-makers can be made prior to the substantive applications being determined if the Tribunal is satisfied that the requirements of s 129 of the GAA are established. That section provides that where there is an immediate risk of harm to the health, welfare or property of the adult, an appointment can be made for up to three months before the applications are heard and determined by the Tribunal.

4. An interim order can also be made in the proceeding without hearing and deciding the proceeding or otherwise in compliance with the requirements of the GAA, including s 118 of the GAA, the provision which sets out the requirements for advising persons concerned in the applications of the hearing.

5. I had before me a number of medical reports concerning LME.  The most recent report dated 23 August 2018, from the hospital’s care coordinator indicated that LME was able to request care from nursing staff and understood her general health needs. It was further reported that she was aware of her cash and valuable possessions and was able to state what she wished in regards to them but her health had deteriorated and she was unable to state her wishes. I also had before me a report dated 7 August 2018 prepared by Dr Kondos, general practitioner stating that LME was cognitively and medically unwell and was not capable of acting or making decisions for herself. While it is not necessary for me to make a formal finding that the presumption of capacity is rebutted before making an interim order, if there was no evidence on which it could be found that the presumption was rebutted I would not likely make the interim order. In this case, I was satisfied that there is sufficient evidence that LME was not able to make her own decisions. 

6. In their application for an interim order, the applicants claimed that the attorneys, GDL and TEL appointed jointly by LME by an enduring power of attorney executed on 20 March 2013, were involved in incidents of ‘elder abuse’ requiring security involvement at the hospital and that there was a ‘pattern of large sum withdrawals’ from LME’s account.  The application was supported by copies of Westpac bank statements showing, for example, the withdrawal by bank cheque to GDL the amount of $4,000. They also claim that there were admissions by GDL that he was using LME’s money to his own benefit when asked about the withdrawals.

7. On 28 August 2018, I decided to dismiss the application for an interim appointment of a guardian. I was not satisfied that there was an immediate risk to the health or welfare of LME as LME was, at the time, recovering from surgery and in hospital. There is a report before the Tribunal regarding an incident at the hospital involving raised voices and arguments between LME on the one hand and her daughter-in-law and GDL on the other. According to the report, the arguments led to security being contacted. During the course of these incidents it was reported that GDL took LME’s watch, bracelet, wallet, card and money, retuning LME’s handbag wallet and jewellery on a subsequent day. There is also a report from the hospital that the arguments centred on LME failing to give GDL any money.

8. However, the hospital staff were engaging with other family members regarding updates on the care LME was receiving and discharge planning.  There was insufficient evidence that LME was at immediate risk in terms of her health and welfare by decisions made by GDL and TEL under the enduring power of attorney as the hospital was able to manage the interactions. In the event that the applicants can provide further evidence of an immediate risk of harm then it is open for them to make a further application for an interim order. It is also open for them to make a complaint to the Public Guardian regarding the actions of the attorneys at any time. The Public Guardian can investigate the actions of attorneys.

9. I decided to appoint, on an interim basis, the Public Trustee of Queensland as administrator for all financial matters, overtaking the enduring power of attorney. I considered that there was sufficient evidence, as previously set out above,[1] that there are reasonable grounds on which I could be satisfied that there is an immediate risk of harm to LME’s finances. In my view, decisions needed to be made to protect the finances of LME until a final hearing of the substantive applications. Given I was of the view that there was sufficient evidence to raise concerns about the appointed attorneys’ ability to adequately protect and manage LME’s finances and only the Public Trustee of Queensland was proposed for appointment as an administrator, I decided that the Public Trustee of Queensland was the most appropriate appointment in the circumstances.

   [1]See paras [6] and [7].

10. During the period of the interim order, the Public Trustee of Queensland will be able to secure LME’s finances and provide a report to the Tribunal. The report will be considered by the presiding member at the hearing of the substantive applications.

11. The appointment of the Public Trustee of Queensland on an interim basis does not raise any presumption in relation to the outcome of the substantive application for the appointment of an administrator. The presiding member at the hearing will determine that application based on all the relevant information before the Tribunal including any response to the application provided to the Tribunal by the attorneys.