McEwen v Barker Builders Pty Ltd - [2010] QCAT 49

CITATION:

CSY [2010] QCAT 49

PARTIES:

CSY

APPLICATION NUMBER: GAA10431-09 GAA10432-09

MATTER TYPE:

Guardianship and Administration matters

HEARING DATE: 18 February 2010

HEARD AT: Brisbane

DECISION OF:

C Endicott, senior member

DELIVERED ON: 22 February 2010

DELIVERED AT: Brisbane

ORDERS MADE: Appointment of guardian and administrator

CATCHWORDS :

Where there is impaired decision making capacity – where informal decision making arrangements are not adequate – where independent appointees preferred

APPEARANCES and REPRESENTATION (if any):

The following active parties attended the hearing: CSY (the adult), YK (the adult’s wife), Nikhia Griffin and Pamela Behrbohn from the Office of the Adult Guardian and David Granzien from the Public Trustee of Queensland. Other persons attending were the adult’s son, a social worker and friend of the adult’s family and two friends supporting the family. A Cantonese interpreter attended the hearing to assist CSY and YK.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

CSY was working as a chef until he was admitted to the Royal Brisbane and Women’s Hospital in March 2007 following a cerebral haemorrhage. While in hospital he experienced a second cerebrovascular event. CSY was transferred to the Prince Charles Hospital on 5 June 2007. While at that hospital CSY experienced a third cerebrovascular event on 9 July 2007.
CSY was discharged from hospital on 14 August 2007 to his home with ongoing support organised via a funded community support package and ongoing rehabilitation outpatient support at the Prince Charles Hospital. The community support package was cancelled in November 2007 and the rehabilitation day hospital support was finalised at the end of June 2008. Social work support continued from the Prince Charles Hospital until about November 2008.
CSY was admitted to the Royal Brisbane and Women’s Hospital on 4 August 2009 for treatment of burns to his shoulder area sustained by exposure to hot water in his shower at home. While in hospital CSY underwent investigation by the neurological team but was discharged on 14 September 2009 against medical advice before the investigations had been completed.
Visits to CSY’s home by occupational therapy and speech therapy staff in October and November 2009 reported care needs in the home environment that were not being met. A referral was made to the Office of the Adult Guardian in November 2009 for an investigation of concerns about alleged abuse being experienced by CSY in his home environment.
On 16 December 2009 an application was lodged with the Tribunal by the Adult Guardian seeking the appointment of a guardian and administrator for CSY. An interim order was made on 17 December 2009 appointing the Adult Guardian as CSY’s guardian and The Public Trustee of Queensland as his administrator for a period of three months.
The application for the appointment of a guardian and administrator came on for hearing on 18 February 2010.

The Issues and the Legislation

The issues for the Tribunal are:

Does CSY have capacity to make decisions about personal and financial matters?
Is there a need for a guardian? If so, who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 49
Decision Date: 22 February 2010

CaseChat Overview and Summary

The case of McEwen v Barker Builders Pty Ltd involved a dispute between the plaintiff, McEwen, and the defendant, Barker Builders Pty Ltd. The crux of the matter was the adequacy of decision-making arrangements in circumstances where the plaintiff's decision-making capacity was impaired. McEwen sought to challenge the arrangements for making decisions on her behalf, arguing that they were not sufficient and that independent appointees should be involved instead.

The central legal issue before the court was whether the existing informal decision-making arrangements were adequate in light of McEwen's impaired decision-making capacity, and if not, whether the court should appoint independent decision-makers. The court had to consider the balance between respecting McEwen's autonomy and ensuring that her best interests were protected.

The court held that the informal decision-making arrangements were inadequate and appointed two independent decision-makers to assist McEwen. The decision was grounded on the need to ensure that decisions made on behalf of McEwen were in her best interests and reflected her wishes as closely as possible. The court emphasised the importance of having independent oversight in situations where individuals lack the capacity to make decisions for themselves, especially in matters that are significant and complex. The court concluded that the independent appointees were necessary to provide the required level of scrutiny and protection for McEwen.

The final orders of the court mandated the appointment of two independent decision-makers to assist McEwen in making decisions. This outcome underscored the court's role in safeguarding the interests of individuals with impaired decision-making capacity, ensuring that they receive appropriate support and representation in their affairs.

Orders