MEK - [2015] QCAT 156

CITATION:

MEK [2015] QCAT 156

PARTIES:

MEK

APPLICATION NUMBER:

GAA3286-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Endicott

DELIVERED ON:

17 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by MD for an interim order is dismissed.

CATCHWORDS:

GUARDIANSHIP – where evidence that adult’s capacity for decision-making was impaired by alcohol abuse, where an application made to appoint a guardian and administrator for the adult

INTERIM ORDER – where allegation that adult was at an immediate risk of harm, where concerns that adult had access to funds that could be spent on buying alcohol

ENDURING POWER OF ATTORNEY – where adult had revoked an Enduring Power of Attorney granted to the applicant, where the adult had granted a new Enduring Power of Attorney, where power for decisions about financial matters commenced immediately, whether new grant of power responded adequately to risk of harm to adult’s welfare

Guardianship and Administration Act 2000 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

MD applied to the Tribunal for the appointment of a guardian and administrator for her mother, MEK. MD stated that MEK is an alcoholic and prescription drug abuser. MD stated that her mother’s addition to alcohol was spiralling out of control and that her mother was not compliant with medication prescribed by her psychiatrist. A report from MEK’s treating psychiatrist indicated that MEK’s capacity for decision making is severely impaired when she is intoxicated and she has no insight into her alcohol dependence and refuses treatment for this.
MD had been appointed as an attorney by her mother under an Enduring Power of Attorney. MD stated that together with her father, MH, she was trying to control MEK’s access to money which it was stated would be spent on alcohol. However the amount of family support for MEK changed dramatically when MH was accused of domestic violence and he left the matrimonial home in March 2015.
MEK revoked the Enduring Power of Attorney on 27 March 2015 and later granted an Enduring Power of Attorney to her two brothers, MBA and MBB on 10 April 2015.
MD had also applied for an interim order appointing a guardian and administrator for MEK. It was submitted that MEK had sold an interest in land to her brothers and that she was to be paid some $90,000 for her share of the land. MD expressed a concern that her mother would access the funds to buy alcohol.
Before the application for an interim order was considered, comments were sought from the current attorneys for MEK. They provided comments to the effect that they had set up and were in control of a bank account into which the sale proceeds had been paid. The money had not been accessed by the date of their submissions.
They submitted that they had visited MEK to check on her welfare. They expressed a desire to support MEK with decision-making and stated that they were retired or semi-retired, in a good financial position, and had the capacity and experience to manage the affairs of MEK.
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 holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.
MEK had appointed attorneys to make decisions for her in the event that she had impaired decision making capacity. She had originally granted decision-making power to her daughter but then revoked that power. The version of the Enduring Power of Attorney document that granted power to MD appears to not set out the date on which the power was granted. It is possible that the grant was invalidly made as the document does not appear to comply with the requirements of the Powers of Attorney Act 1998 but that is an issue to be decided at the hearing of the application, particularly when that grant of power has seemingly been revoked.
However there may be an argument that the revocation was also invalidly done as the form used for that purpose appears to be incorrect. There may also be an argument that MEK lacked capacity to revoke the Enduring Power of Attorney and these issues must be decided at the hearing of the application.
Lastly the current Enduring Power of Attorney dated 10 April 2015 also contains errors that may result in the invalidity of the grant of powers purported to be made by that document. In addition the evidence provided to the Tribunal about the current decision-making capacity of MEK may found an argument that she lacked capacity to grant a new Enduring Power of Attorney on 10 April 2015. However capacity is decision specific in that person may have impaired capacity to make financial decisions but may retain capacity to appoint an attorney. Again these are issues to be decided at the hearing of the application for appointment of decision-makers for MEK.
When considering the interim order application, the relevant issue is whether there was an immediate risk of harm to the welfare and finances of MEK that necessitated the appointment of a guardian and administrator. I was not satisfied that a case had been made out by MD that MEK would be at an immediate risk of harm if a guardian and administrator were not to be appointed on an interim basis.
MEK had endeavoured to put a decision-making regime in place. She had selected her brothers to make decisions for her about personal, health and financial matters. The grant of power for financial matters commenced at the time that she made the Enduring Power of Attorney, subject to her brothers accepting the grant of power. They had accepted the grant of power to them before the application for an interim order was considered.
Any risk of harm arising from MEK managing her own financial affairs when she was adversely affected by alcohol was mitigated by the presence of attorneys to make financial decisions for her. The attorneys had already taken steps to prevent MEK from freely accessing the funds from the sale of her interest in the land and they were willing to do what was necessary to look out for the welfare of MEK.
There was a presumption that MEK had capacity to grant the Enduring Power of Attorney on 10 April 2015 and unless and until rebutted by evidence satisfactory to the Tribunal at a hearing, the Enduring Power of Attorney was adequate to respond to the risks of harm identified by MD. A guardian and administrator would have no greater powers to protect the interests of MEK than the attorneys selected by her.
The Tribunal must apply the General Principles when making decisions under the Guardianship Act. One of those principles recognises the importance of preserving, to the greatest extent practicable, an adult’s right to make her own decisions. MEK made a decision that she no longer wanted her daughter to make decisions for her. She preferred instead to make a choice that her brothers make decisions for her. That choice had the effect of responding to an identified risk of harm and removing the need for another decision maker to be appointed by the Tribunal on an interim basis.
The appropriate decision made by the Tribunal was to dismiss the application for an interim order.