MTD
[2022] QCAT 89
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
MTD [2022] QCAT 89
PARTIES:
In an application about matters concerning MTD
APPLICATION NO/S:
GAA1643-22
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
21 March 2022
HEARING DATE:
4 March 2022
HEARD AT:
Brisbane
DECISION OF:
Member Browne
ORDERS:
The application by NE for the appointment of a guardian and an administrator for MTD under an interim order is refused.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult’s property may be sold – where adult may be moved – whether immediate risk requiring interim appointment of guardian and administrator
Guardianship and Administration Act 2000 (Qld), s 129(1)(b)
Human Rights Act 2019 (Qld), s 13, s 48
ADZ [2021] QCAT 393
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 4 March 2022, I refused NE’s applications for the appointment of a guardian and an administrator under an interim order. NE has requested reasons for my decision that are now provided below.
The Tribunal has the power to make an interim order in respect of an adult only if the Tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[1]
[1]Guardianship and Administration Act 2000 (Qld) (‘G&A Act’), s 129(1).
A decision to make an interim order should not be made lightly and only when urgent action is required. In making an interim order, the Tribunal is required to consider the Guardianship and Administration Act 2000 (Qld) (‘G&A Act’) and, amongst other things, the presumption of capacity, the fact that an interim order is made without the adult and all other parties having had an opportunity to present evidence and make submissions; and the impact on the adult’s autonomy and human rights.
That said, if there is evidence before the Tribunal of an immediate risk of harm of sufficient magnitude, which would be alleviated by the interim appointment of a guardian and/or an administrator, then such an appointment may well be warranted.[2]
[2]See ADZ [2021] QCAT 393, [10].
In the present matter, I am not satisfied based on the information before me that there is an immediate risk of harm to the health, welfare or property of MTD.
In the application for an interim order containing information about MTD, it is reported that MTD has requested to review his current Enduring Power of Attorney (‘EPOA’) document but now lacks capacity to do so. Further to that, it is reported that there are concerns about a conflict transaction involving MTD’s property and the possible transfer of MTD’s share of property.
The application for an interim order identifies the current attorney (MTD’s stepson) as being a person who was not consulted about the application for an interim order. In relation to the reasons why there is an imminent risk of harm to MTD’s welfare and property, it is reported that the current attorney will be moving MTD into respite and aged care as soon as possible and has started working with the hospital to do so. The applicant states that, the current attorney will be selling the property where MTD is living and moving to overseas with his wife. Further to that, there are a number of concerns about the attorney’s actions including, amongst other things, that MTD’s house will be sold and a hearing before the Tribunal will not be able to occur before a contract with an aged care facility is signed on MTD’s behalf.
On 24 February 2022, the Tribunal requested that the applicant provide a copy of MTD’s EPOA document and further information about what decisions need to be made on an urgent basis and evidence of immediate risk of harm to MTD’s welfare, health and property, by ‘4:00pm on 28 February 2022’.
The Tribunal’s record reflects that the applicant did not respond to the Tribunal’s request for further information.
Turning firstly, to the issue of MTD’s capacity to make decisions about his personal and financial matters, there is no current medical information provided in support of the application for an interim order. There are earlier reports provided with the application prepared by Queensland Health dated 7 May 2020. The reports refer to MTD as presenting with newly diagnosed Alzheimer’s dementia. It is reported that MTD was found confused and wandering after driving himself from interstate and it was determined that he had delirium likely secondary to dehydration on the background of an undiagnosed cognitive impairment. MTD’s delirium is reported to have resolved during his admission and MTD was discharged into the care of his son. I am not satisfied based on the information before me that MTD may have impaired capacity in relation to his decisions about personal and financial matters.
Further to that, I am not satisfied based on the evidence before me that there is evidence of immediate risk of harm to MTD’s welfare, health and property. The attorney is reported to be working with the hospital to secure a placement for MTD. This would seem to suggest that the attorney is making decisions for MTD to ensure his welfare and health matters are protected. In relation to MTD’s property and financial matters, there is no evidence that the attorney has signed a contract for the sale of MTD’s house, only concerns that MTD’s house may be sold.
I declined to exercise my discretion under section 129 of the G&A Act to make an interim order. As discussed above, there is insufficient evidence of immediate risks to MTD’s health and welfare and financial matters generally. It is clear from the information provided by the applicant that there is an EPOA document and an attorney making decisions for MTD. The applicant has failed to respond to a request to provide further information to the Tribunal about the risks to MTD’s health, welfare and property matters. If MTD’s circumstances should change and urgent action is required before the hearing of the application for the appointment of a guardian and an administrator, a further application for an interim order can be made to the Tribunal together with supporting material.
In considering whether to exercise my discretion to grant an interim order, I have also considered the Human Rights Act 2019 (Qld) (the Human Rights Act). As required by s 48, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. MTD’s rights to, amongst other things, freedom of movement, privacy and reputation may be engaged and limited by the making of any order. Taking into account the findings made by me under the G&A Act, I am satisfied that the limits imposed by an interim order are not reasonable and justified in accordance with s 13 of the Human Rights Act. The application by NE for the appointment of a guardian and an administrator for MTD under an interim order is refused. I order accordingly.
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