MB
[2013] QCAT 714
•26 November 2013
| CITATION: | MB [2013] QCAT 714 |
| PARTIES: | MB |
| APPLICATION NUMBER: | GAA10127-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 26 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Adult Guardian is appointed guardian for MB for the following personal matters only: (a) accommodation decisions; (b) provision of services for MB. 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 MB 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 24 December 2013 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 Tribunal notes that the following enduring power of attorney for MB 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 13 May 2013 appointing MT as attorney for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP – where attorney had expressed an intention to remove an adult from care – where some evidence attorney was not well and not capable of acing for the adult – where attorney had failed to ensure there were funds available to pay regular expenses for the adult – where adult’s house had been sold but sale had not yet settled – where immediate risk of harm to adult’s welfare and financial affairs 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
MB is 85 years of age. She resides in a nursing home. MB had appointed her son, MT, to be her attorney for financial, personal and health matters on 13 May 2013.
MT had given written notice to the nursing home that he intended to remove MB from the home on 22 November 2013. He had stated in that notice that he intended to care for his mother at home.
The nursing home had been informed by mental health staff working with MT that he was unwell and they did not support MT caring for his mother at home. The clinical care manager from the nursing home applied to QCAT for the appointment of a guardian for MB.
In the application the clinical care manager also sought the appointment of an administrator for MB. The applicant stated that an account for accommodation and care had not been paid on time as there had been insufficient funds in MB’s bank account. There had been some informal arrangements in place for monitoring outgoings incurred at the nursing home to ensure that future monthly care and accommodation accounts were able to be afforded by MB but despite this, the bank account went into default a second time with insufficient funds when another monthly account was submitted. In addition, MB was required to pay an accommodation bond and her house had been sold but settlement of the sale was yet to take place.
The applicant sought an interim appointment of a guardian and administrator due to the threat made by the attorney to remove MB from the nursing home and the failure of the attorney to ensure that there were sufficient funds in the bank account of MB to pay for her nursing home accounts.
QCAT has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and when the presumption of capacity has been rebutted. However QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of the Guardianship and Administration Act 2000 without a hearing.
Section 129 of that Act 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.
The evidence provided to the tribunal was that MB could not make any complex decision and could not make any decisions about her accommodation and financial affairs. Enquiries conducted with the nursing home on 26 November 2013 revealed that MB had not been removed from the nursing home on 22 November 2013 but no indication was given that MT had withdrawn his intention to remove his mother from care.
I was satisfied that a reasonable inference could be drawn that MT would follow through with his intention to remove MB from care at a time when MT was himself unwell and unable to provide adequate care for his mother. I was satisfied that there was an immediate risk of harm to MB if her attorney made an accommodation decision for his mother that involved inadequate level of care being provided for MB.
I exercised discretion under section 129 to appoint a guardian for MB on an interim basis to ensure that appropriate accommodation and other specified personal decisions would be made for her until such time as the tribunal could determine the application for the appointment of a guardian.
I was also satisfied that a reasonable inference could be drawn that MT had not taken adequate steps to ensure that his mother’s expenses could be paid from her income paid into her bank account. On two occasions there had been insufficient funds in her bank account to pay for her nursing home fees. As the amount of her pension should have been sufficient to cover these fees (which the evidence had established were set at 85% of her pension), I formed the view that her attorney was not managing her funds in an appropriate manner, placing MB at risk of incurring debts and of losing her placement in the nursing home.
I was also concerned that the former home of MB had been sold and there needed to be someone readily available to ensure that settlement took place and that the settlement funds were used to pay the accommodation bond for MB. In view of the mismanagement of her bank account by her attorney on two occasions, I considered that MB’s property interests were at an immediate risk of harm if left to her attorney to handle the settlement and to distribute the settlement proceeds according to the needs of MB.
I considered that it was necessary to exercise discretion to appoint an administrator on an interim basis to ensure that there was in place an orderly and prudential process to handle the sale of her house, the payment of the accommodation bond, the payment of her accounts and the management of her financial affairs until the hearing of the application for the appointment of an administrator. It was also necessary to overtake the Enduring Power of Attorney while the interim appointments were in place.
The only options were to appoint the Adult Guardian and The Public Trustee of Queensland on an interim basis.
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