MWED

[2013] QCAT 553

CITATION: MWED [2013] QCAT 553

PARTIES: MWED

APPLICATION NUMBER: GAA5939-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 16 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application for an interim order is dismissed.

CATCHWORDS: GUARDIANSHIP – where interim appointment of administrator sought – where adult in respite care – where no immediate risk of harm to adult’s welfare or financial position established

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

1. MWED is 95 years of age.  She recently moved into residential care on a respite basis after being unable to have her care needs fully met at her own home.  Her family applied to QCAT to be appointed as her guardians and administrators so decisions of a personal and financial nature could be made for MWED.

2. QCAT has the power to appoint decision makers for adults with impaired decision making capacity. The process for the appointment of a decision maker for an adult involves the tribunal being satisfied that the presumption of decision making capacity has been rebutted by evidence presented at a hearing and the tribunal being satisfied there is a need for the appointment of substitute decision makers for that adult.

3. However 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 a hearing and without deciding whether or not a person has impaired decision making capacity. In this case, the family of MWED sought an interim appointment of an administrator so that an accommodation agreement for permanent care could be signed for MWED, her financial assets could be assessed and so that her home could be sold for the payment of an accommodation bond.

4. Section 129 permits the tribunal to make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. In other words, the applicants must be able to establish that there is an immediate risk of harm to MWED’s welfare or financial position unless decision makers are appointed immediately. On the evidence provided to the tribunal, the applicants failed to satisfy me on that point.

5. MWED is in care. Although the evidence revealed that the respite arrangements would come to an end on 31 July 2013, there was no evidence that MWED would not be able to stay as a resident at that residential care facility after that date in either an extended respite basis, or as a permanent resident subject to an accommodation contract being signed at a future date or at some other residential care facility. There was no evidence that MWED was at risk of personal or financial harm if an interim order was not made. There was no evidence that her bills could not be paid on her behalf or that payment could not be deferred or that she was incurring liabilities that would adversely impact her general financial position.  To the contrary, the evidence suggested that she had a caring family who were looking after her affairs.   

6. No doubt it would be beneficial to MWED and to her family if decision makers were in place as soon as possible. However, in the absence of evidence of harm, that is not enough to justify QCAT making an interim appointment under section 129. While orders made under section 129 are discretionary in nature, the criteria for an interim appointment are clearly set out in section 129. An interim appointment should not be made merely because it would be more convenient than waiting for a hearing in the normal course of events.

7. The application for an interim order is dismissed