MDI
[2017] QCAT 231
•24 May 2017
CITATION: | MDI [2017] QCAT 231 |
PARTIES: | MDI |
APPLICATION NUMBER: | GAA5193-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Guthrie |
DELIVERED ON: | 24 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | ADMINISTRATION 1. The Public Trustee of Queensland is appointed as administrator for MDI for all financial matters. 2. That the administrator shall as soon as practicable: a) Lodge necessary notices in New South Wales to protect the interests in land of MDI; b) Notify the Tribunal that the above has been attended to and provide documentary proof of this. 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 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. NOTICE OF INTEREST IN LAND 5. Before 19 June 2017, the administrator must: a) Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision; b) Provide confirmation to the Tribunal that this has been completed by providing: i. A copy of the title search conducted identifying the adult’s property; and ii. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. c) If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 6. 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. ENDURING POWER OF ATTORNEY 7. Any purported Enduring Power of Attorney for MDI 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. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult had appointed attorneys – where adult diagnosed with Diogenes Syndrome – where adult resides in an aged care facility – where adult is unable and unwilling to attend to financial matters and debt – where adult is in significant arrears to aged care facility – where adult has outstanding debt to a finance company – where interim appointment sought – whether the adult was at an immediate risk of harm Guardianship and Administration Act 2000 (Qld) s 12(1), s 15, s 129 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
MDI resides in an aged care facility. On 18 May 2017, PWKH, the general manager of the aged care facility, applied to the Tribunal for the appointment of the Public Guardian as a guardian for MDI and the appointment of the Public Trustee of Queensland as the administrator for MDI. Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12(1) 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.
PWKH also applied for an interim appointment of a guardian and an administrator for MDI. Appointments of decision-makers can be made prior to a determination being made on the substantive applications 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 or welfare of the adult, an appointment can be made for up to three months before a hearing of the applications are heard and determined. An interim order can also be made in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including s 118, the provision which sets out the requirements for advising persons concerned in the proceeding of the hearing.
It was clear from the applications filed in the Tribunal that ME, MDI’s daughter, was the primary contact for the aged care facility in relation to matters concerning MDI, both personal and financial. Further information was obtained from ME by the Tribunal that she was an attorney appointed by MDI under an enduring power of attorney. ME indicated that the Tribunal should seek a copy of the enduring power of attorney from the aged care facility.
In the application for an interim order, PWKH stated that MDI owed $24,324.24 with respect to his aged care costs. PWKH raised concerns that the full amount of MDI’s pension payments were not being deposited into the nominated account from which accommodation fees were being paid via direct debit resulting in the accumulation of the debt. PWKH set out in the application the ultimately unsuccessful efforts made by the aged care facility to contact ME to deal with the debt, including no response being received to correspondence. There was also reference in the material to another debt owed by MDI to a finance company. It was clear from the material that ME made visits to her father but the applicant claimed that communication with ME was difficult in relation to a number of issues and no other family member could be contacted to discuss the issues of concern to the aged care facility. It was also indicated that ME did not wish her sibling to be informed of MDI’s whereabouts.
Concerns were also raised by staff at the aged care facility that MDI lacked sufficient clothing and only after this was requested by the aged care facility would it be after a time provided. ME informed the Tribunal that the debt to the finance company was incurred by MDI when he had capacity to make such decisions.
The medical evidence before me, a report the care manager of the aged care facility, indicates that MDI has been diagnosed with Diogenes syndrome, dementia, and autism spectrum disorder. The report states that MDI has no motivation to attend to financial matters and he shows no interest in money matters. Further, the opinion was expressed that MDI could not understand and make his own decisions about either personal or financial matters whether simple or complex. I am satisfied that MDI was not managing his financial affairs.
I accepted from the material provided by the applicant that, at the time I made the interim order, MDI had accumulated a significant debt in respect of his aged care fees. I was satisfied that the applicant had attempted to deal with the issues with ME prior to applying to the Tribunal. That such a debt had accumulated despite an attorney being in place to manage MDI’s finances, together with the representations by the applicant that the full amount of MDI’s pension was not being deposited into the account so that the debt would continue to accumulate, in my view, provided reasonable grounds upon which I was satisfied that there was an immediate risk of harm not only to MDI’s financial assets, but also his welfare if his financial resources were not being expended for his benefit. I was satisfied that without an appointment MDI’s interests would not be adequately protected.
I considered it appropriate in the circumstances to appoint the Public Trustee of Queensland on an interim basis as it was necessary to overtake any enduring power of attorney that was in existence appointing ME and no other family members had been identified in the application as appropriate for appointment in terms of s 15 of the GAA.
Pursuant to s 129(5) of the GAA, the maximum period that may be specified in an interim order is 3 months.
At the hearing of the substantive application, the presiding member may make whatever order he or she considers appropriate based on material and evidence then before the member.
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