MR

[2017] QCAT 73

CITATION:

MR  [2017] QCAT 73

PARTIES:

MR

APPLICATION NUMBER:

GAA642-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

27 January 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

27 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The interim appointment of The Public Trustee of Queensland as administrator for MR for all financial matters is continued;

2.    Unless the Tribunal orders otherwise, this appointment remains current until 2 April 2017;

3.    That before 27 February 2017 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;

4.     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.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECIEVERS AND MANAGERS – APPOINTMENT –where an adult cannot understand information on which decisions are based due to Alzheimer’s dementia – where carer cannot cope with the care needs of the adult resulting in the adult’s hospitalisation – where carer had stopped paying the mortgage on the adult’s home and foreclosure action was pending – where carer was struggling to meet the financial needs of the adult – where interim appointment had been made of an administrator – where Enduring Power of Attorney produced to the Tribunal – where effect was to suspend the appointment of the administrator until a review of that appointment was conducted – whether the interim appointment should be continued on review to address an immediate risk of harm to the adult’s property and finances

Guardianship and Administration Act 2000 (Qld) s 23, s 31(1), s129

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

1. MR is 63 years of age.  He had been admitted to a hospital outside of Brisbane on 20 December 2016 due to EG, his carer and stepdaughter, not being able to cope with his care needs.  He had previously been in hospital earlier that month but he had been discharged home on 15 December 2016.  MR has been diagnosed with Alzheimer’s disease and his treating doctor reports that MR cannot understand and act on information to make decisions.

2. A social worker at the hospital applied for the appointment of a guardian and administrator for MR.  According to evidence filed by the social worker, MR has been in a relationship with EG for about 12 years.  MR had been living at his home with EG and his stepdaughter, who is EG’s daughter.   The bank which has a mortgage over the home is foreclosing on the home loan in January 2017. 

3. Prior to his recent admission to hospital, MR had been receiving some limited in-home support from Alzheimer’s Australia, and Blue Care had been contacted to provide support in January 2017.  Staff at Alzheimer’s Australia had indicated that EG had told them some weeks earlier that she was not managing at home and requested in-home support.  Alzheimer’s Australia had arranged for a nurse to attend MR’s home a few days a week for medication administration.

4. Evidence was also provided from a person at Commonwealth Carelink Respite who stated that EG was a dedicated carer who managed MR’s care and who understood his care needs.  Evidence was also given that EG was struggling financially and had put the mortgage on hold. 

5. Evidence was also given from staff at Blue Care who had visited MR at home with EG.  It was reported that EG had been selling furniture to pay for food.  It was reported that EG could not afford to pay for MR’s continence pads and she had to accept a donation of pads from Blue Care.  EG’s daughter needed medical input and had quit school.  It was reported that MR’s care needs are very high and EG was not able to sustain that level of care in the home.  It was reported that the bank was foreclosing on the home in January 2017 and, at that time, MR would be homeless.  It was reported that EG has no family close by and has no friends or social support.  The Blue Care staff member reported that EG struggles with some of MR’s basic care needs and she was concerned about pressure sores.  It was reported that MR was malnourished.  Permanent residential aged care was recommended to meet MR’s care needs.

6. The social worker had attempted unsuccessfully to telephone EG on five occasions on 21 December 2016 and 22 December 2016.  Other hospital staff had attempted to telephone EG from 20 December 2016 to 22 December 2016 without success.  The social worker was finally able to speak to EG late in the afternoon on 22 December 2016.  EG stated that she could manage to care for MR.  EG stated that she would begin to search for rental properties due to the impending foreclosure by the bank.

7. EG told the hospital social worker that she did not agree with placing MR into a residential aged care facility but preferred some respite for him before he is returned home to her care.    

8. The social worker reported that MR’s welfare was at risk as his needs were not being met at home by EG.  He was malnourished, received limited community services, was a high falls risk, and at a high risk of developing pressure sores.   The social worker sought the appointment of the Public Guardian and The Public Trustee of Queensland to make decisions for MR.  EG had told the hospital that she was the Attorney for MR but no document had been produced. 

9. The social worker also applied for an interim appointment of decision makers for MR.  MR was in hospital and his care needs were being met in hospital.  The Tribunal was not satisfied that MR’s welfare was at an immediate risk of harm while he remained in hospital.  However, MR’s finances were at an immediate risk of harm as a result of the pending foreclosure action against his home and an interim appointment was made on 3 January 2017 appointing The Public Trustee of Queensland as the administrator for MR for all financial matters.

10. On 12 January 2017, a copy of an Enduring Power of Attorney was filed in the Tribunal. In that document, MR had granted on 25 January 2008 power to EG and GV and EGAH successively to make decisions about personal, health, and financial matters for him. Under s 23 of the Guardianship and Administration Act 2000 (Qld) (GAA), the Tribunal must review the appointment of the administrator upon becoming aware of an Enduring Power of Attorney that pre-dated the making of the administrator’s appointment.

11. The Tribunal gave notice to MR, EG, the other attorneys, the applicant, the Public Guardian and The Public Trustee of Queensland that a review would be conducted of the interim appointment of the administrator on 27 January 2017.  The review would be conducted on the basis of information given to the Tribunal and without an oral hearing.[1]  

    [1]Guardianship and Administration Act 2000 (Qld) s 31(1) provides that the Tribunal may conduct a review of an appointment in the way it considers appropriate.

12. Submissions were received from the social worker at the hospital who did not support EG making decisions as attorney for MR while a hearing of the substantive applications was pending before the Tribunal.  The social worker relied on the evidence that EG had not made decisions in the best interests of MR and was often not contactable on the phone.  No submissions were received from EG about the review.

13. In conducting the review of the interim appointment of the administrator, the Tribunal must under s 31 of the GAA revoke the appointment unless it is satisfied that it would make an appointment if a new application for an interim order were to be made. The Tribunal must be satisfied of the requirements of s 129 of the GAA: that there is an immediate risk of harm to the property of MR because of the risk of abuse, exploitation or neglect of the adult.

14. The evidence relied on in the review is essentially the same evidence that had influenced the Tribunal to make the interim order on 3 January 2017.  EG had demonstrated a lack of competence in managing the financial affairs of MR.  She had stopped paying the mortgage on MR’s house resulting in foreclosure, she could not afford to pay for MR’s continence pads, and MR had become malnourished while in EG’s care.  She had placed MR’s property at risk and she had not provided any evidence about how she would secure and maintain MR’s income and property interests.

15. The Tribunal was satisfied on the evidence that an administrator was needed immediately to manage the financial affairs of MR, particularly as to whether action could be taken or negotiated to prevent the loss of the house from foreclosure.  The attorney appointed by MR had not demonstrated competence in decision-making about financial matters.  The risk of harm could only be adequately addressed by continuing the interim appointment of the administrator pending the hearing of the substantive applications.    

16. The Public Trustee of Queensland was continued as administrator for all financial matters for MR with the result that the Enduring Power of Attorney was overtaken by operation of law to the extent of the administrator’s appointment.