MMK
[2014] QCAT 133
| CITATION: | MMK [2014] QCAT 133 |
| PARTIES: | MMK |
| APPLICATION NUMBER: | GAA1130-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 7 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for an interim order is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – REVIEW OF APPOINTMENTS – where assertion that appointee is no longer competent – where assertion that inappropriate health and care decisions being made GUARDIANSHIP – INTERIM ORDER – where insufficient evidence to find immediate risk of harm Guardianship and Administration Act 2000 ss 31 & 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
RJ has been the guardian for MMK since 24 June 2011. Her appointment was reviewed on 20 June 2013 and her appointment was continued for five years. RJ is also an administrator for MMK but her appointment as administrator is held jointly and severally with MC who is the mother of MMK.
MC has applied to QCAT for a review of the appointments of guardian and administrator for MMK. MC wants RJ removed as a decision maker for her daughter and seeks an order that MC is appointed as the sole guardian and administrator for MMK. Under section 31 of the Guardianship and Administration Act 2000 the tribunal can remove an appointed decision maker only if the tribunal is satisfied that the appointee is no longer competent or that another person is more appropriate for the role of substituted decision maker.
The tribunal would be required to consider carefully any relevant and cogent evidence that RJ is no longer competent for the role of guardian and administrator. RJ must be given the opportunity to respond to that evidence and to contest the submissions that she is no longer competent for the role of substituted decision maker for MMK. The issues raised in the review application will require an oral hearing to determine whether there should be any change to the appointments made on an earlier occasion by the Tribunal.
MC also applied for an interim order. QCAT can make an interim appointment of a decision maker for up to three months under section 129 of the Guardianship Act without a hearing. However 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 if an interim order were to be made.
MC made assertions about what she considers to be unsatisfactory care and health care arrangements in place for her daughter. One issue related to a delay in MMK having a vitamin injection and another issue related to the refusal by RJ to consider placing MMK back on an anti-epileptic drug due to past adverse effects that the medication reportedly had on MMK. Neither issue gave rise to an immediate risk of harm as there was no evidence or assertion that MMK had experienced any adverse impact as a result of RJ’s actions or decisions.
Assertions were made by MC that MMK is frequently cared for by a person of whom she does not approve. MC asserts that MMK, who lives in a house with RJ, has been moved from a bedroom to a downstairs room which she describes as a garage. MMK is cared for by paid carers for a period of time each day and no independent evidence was provided by the paid carers as to the actual change in living circumstances of MMK. There was insufficient evidence to be satisfied that MMK was at an immediate risk of harm due to the care being provided to her.
MC asserted that RJ has not provided her with copies of financial documentation that she needs to comply with her own duties as an administrator for MMK. There was no evidence or even assertions that RJ is not managing the financial affairs of MMK adequately and no basis on which the tribunal could be satisfied that MMK’s finances are at an immediate risk of harm.
As I could not be satisfied by the evidence that MMK was at an immediate risk of harm, the application for an interim order was dismissed. It is essential that the tribunal has the opportunity to conduct an oral hearing when all the active parties can given evidence and make submissions as to whether there should be any change to the decision making regime in place for MMK.
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