OHH

[2012] QCAT 560

CITATION: OHH [2012] QCAT 560

PARTIES: OHH

APPLICATION NUMBER: GAA8609-12

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 9 October 2012

DELIVERED AT: Brisbane

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

CATCHWORDS:

GUARDIANSHIP – where interim appointment of guardian and administrator was sought – where no immediate risk of harm

Guardianship and Administration Act 2000, s 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

1. OHH lives at home with his wife.  He has been diagnosed with dementia.  Medical evidence provided to QCAT suggests that OHH has little insight as to how dementia is affecting many aspects of his functioning.  OHH is resistant to having respite care from care providing organisations and so the main responsibility for care falls onto Mrs OHH.  The couple is elderly and they receive practical support from their adult children, particularly their daughter  

2. Mr and Mrs OHH conduct joint bank accounts and many of their regular financial outgoings are paid by direct debit arrangements. 

3. An application has been made to QCAT by the daughter seeking the appointment of guardians and administrators for OHH.  The application acknowledges that currently Mrs OHH is making personal and financial decisions for her husband.  The applicant stated that Mrs OHH has her own health problems and that the family wanted other arrangements in place in the event that Mrs OHH was no longer able to make decisions for her husband.   The applicant also sought an interim appointment to be made.

4. The process for making appointments under the Guardianship and Administration Act 2000 (GAA Act) of decision makers for adults with impaired decision making capacity involves in most cases an oral hearing taking place when the applicant and proposed appointees can satisfy the tribunal that an appointment should be made.  However the GAA Act does have provisions that permit QCAT to make appointments on an interim basis without a hearing and without deciding the issues in the proceeding.

5. Section 129 of the GAA Act states that the tribunal can 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. The making of an interim appointment is a discretionary remedy that is designed to meet immediate needs for decision making support arising from specific circumstances of imminent harm.

6. In the case of OHH, the applicant did not expressly assert that OHH was at an immediate risk of harm but she submitted that it was very difficult for her mother to get support as OHH refuses to accept support either in his home or on a respite basis.  The applicant submitted that the effort of caring for her husband was taking a toll on Mrs OHH.  There was no suggestion that Mrs OHH would cease providing decision making support or care for her husband in the period between filing the application with QCAT and the hearing of that application. 

7. I was not satisfied on the evidence provided to QCAT that OHH was at an immediate risk of harm.  He was being well cared for at home and there was no suggestion that his financial position was at risk in any way.  Bills were being paid and his family was providing practical informal support for current decision making. 

8. In the absence of satisfactory evidence of immediate risk of harm, the application for an interim appointment of a guardian and administrator was dismissed.