MA
[2012] QCAT 685
•13 November 2012
| CITATION: | MA [2012] QCAT 685 |
| PARTIES: | MA |
| APPLICATION NUMBER: | GAA9596-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 13 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal is satisfied that urgent action is required. 2. The Tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Act 2009. 3. The Adult Guardian is appointed guardian for MA for the following personal matters only: (a) accommodation decisions; (b) health care of MA. 4. 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. 5. 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. 6. The Tribunal notes that the following enduring power of attorney for MA 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 3 September 2012 appointing DC as attorney for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP – where adult at immediate risk of harm – where decisions needed about care and accommodation 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
MA was admitted to hospital in October 2012 for treatment of a range of medical conditions. According to medical staff at the hospital he was exhibiting signs of delirium and he lacked insight into the extent of his functional deficits. MA had been diagnosed with vascular dementia in early 2012 but had until October 2010 been able to live at home under the care of his partner.
An application for the appointment of a guardian and administrator was lodged with QCAT by a social worker at the hospital where MA was receiving treatment. The applicant stated that a guardian was needed so decisions could be made about where MA lived, his health care and about what services he needed for his proper support. The applicant stated that MA’s partner was planning to remove MA from hospital against medical advice in circumstances where the treating team were of the opinion that MA needed to be cared for in a dementia secure residential facility.
The applicant applied for an interim appointment of a guardian and sought the appointment of the Adult Guardian.
QCAT had been provided with a copy of an enduring power of attorney dated 3 September 2012 by which MA had appointed his partner, DC, as his attorney for personal, health and financial matters. DC was willing to act as MA’s attorney to make personal decisions for him when he lacked capacity to do so. DC told QCAT on 6 November 2012 that the hospital did not regard the enduring power of attorney as being valid and would not recognise her authority under that document.
On 7 November 2012 a staff member from QCAT’s registry spoke to DC and informed her that an application had been made for an interim appointment of a guardian for MA. DC opposed an appointment in view of the enduring power of attorney which provided her with decision making powers. DC denied that she had any issue with the medical treatment being provided to MA but she did not agree with the refusal of the hospital to allow him to have any leave from the hospital. DC stated that MA needed to be taken out on trips away from the hospital.
In view of the information provided by DC, QCAT registry staff sought further information from the social worker at the hospital. Information was provided that MA required 24 hour supervision from medical staff as he was a threat to himself and to others. MA had punched a nurse in the stomach when he was delusional. The social worker stated that DC had previously discharged MA from hospital only to return him the next day as she could not cope with him. The social worker stated that DC had expressed inconsistent ideas about where they would live if MA were to be discharged from hospital and that MA being in hospital prevented them from doing things together.
QCAT can appoint a guardian to make personal decisions for an adult with impaired decision making capacity. Appointments of decision makers are made after a hearing and when the presumption of capacity has been rebutted. However the Guardianship and Administration Act 2000 does have provisions that permit QCAT to make appointments on an interim basis without hearing and without deciding the issues in the proceeding.
Section 129 of that Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare of the adult concerned. In this case the applicant submitted that MA was at an immediate risk of harm due to the plans of his partner to discharge him from hospital to take him home.
For the purposes of considering the application for an interim appointment, I accepted the evidence that MA was in current need of ongoing care that was best provided in either a hospital or dementia specific facility. I was satisfied that he would not be safe if he were to be discharged from hospital without adequate care supports in place. I was satisfied that he was at an immediate risk of harm to his welfare in view of the inconsistent statements made by DC about discharging MA from hospital against medical advice.
I was satisfied that an independent decision maker and not MA’s attorney would be the most appropriate person to make accommodation and health care decisions for MA on an interim basis. It is essential that a decision maker takes into account not only the views of MA, where possible, and the views of his partner but also the views of the treating team at the hospital. The decisions to be made would focus on the needs of MA examined in an impartial and supportive manner.
I appoint the Adult Guardian as guardian to make decisions about accommodation and health care for MA for three months or until further order of the tribunal whichever is sooner. The enduring power of attorney dated 3 September 2012 is overtaken to the extent of the interim appointment made by the tribunal.
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