OMN - [2022] QCAT 292

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

OMN [2022] QCAT 292

PARTIES:

In an application about matters concerning OMN

APPLICATION NO:

GAA7407-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

9 August 2022

HEARING DATE:

25 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

The application for an interim order by OMN’s sister is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where attorneys making decisions for adult with impaired capacity – whether interim administrator should be appointed

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where attorneys making decisions for adult with impaired capacity – whether interim guardian should be appointed

Guardianship and Administration Act 2000 (Qld), s 129(1)

PC [2022] QCAT 147

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

This matter relates to a man in his late eighties. For privacy reasons, I will refer to him only as OMN. He has two daughters, who are his current attorneys.
On 24 May 2022, OMN’s sister applied to the tribunal for the appointment of an administrator and for the appointment of a guardian for OMN. She proposes that the Public Trustee of Queensland and the Public Guardian be appointed administrator and guardian respectively. Those applications have not yet been heard and determined.
On 24 May 2022, OMN’s sister also applied for an interim order. That application was dismissed by another member of the tribunal on 3 June 2022.
On 13 July 2022, OMN’s sister filed a Form 10 application Application for administration/guardianship appointment or review – Guardianship and Administration Act 2000. She used a superseded form which is not the current approved form. Despite lodging that application, she indicated in the form that nobody should be appointed administrator or guardian. This presumably reflects a view by OMN’s sister that OMN retains decision-making capacity.
On 14 July 2022, OMN’s sister applied again for an interim order. She sought the interim appointment of the Public Trustee and the Public Guardian until the substantive applications are determined. On 25 July 2022, I dismissed the application. OMN’s sister has requested reasons, which I now provide.

Background

On 8 February 2022, the tribunal dismissed earlier applications by OMN’s sister for the appointment of an administrator and a guardian. This followed a hearing in July and December 2021. The tribunal also made a number of declarations, including that:
(a)a 2021 enduring power of attorney made by OMN, appointing one of his sisters (not the present applicant) and a long-term friend[1] as his attorneys, was invalid;
(b)a 2001 enduring power of attorney made by OMN, appointing his two daughters as his attorneys, is valid; and
(c)OMN has impaired capacity for all matters.[2]
[1]The friend has also been described…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OMN

Details

AGLC: OMN [2022] QCAT 292
Case: [2022] QCAT 292
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the attorneys for OMN, who has impaired capacity, and his sister. OMN's sister sought an interim order for the appointment of an administrator and a guardian for OMN. The application was dismissed by the tribunal. The legal issues that the tribunal was required to decide were whether OMN had impaired capacity and if there was an immediate risk of harm to his health, welfare, or property that warranted the appointment of an interim administrator and guardian. The tribunal considered the evidence presented by OMN's sister and the attorneys, and concluded that OMN's needs were being adequately met and his interests were adequately protected by his attorneys. The tribunal was not satisfied that there was an immediate risk of harm to OMN that warranted the appointment of an interim administrator and guardian.

In reaching its decision, the tribunal considered the statutory framework for making interim orders for adults with impaired capacity, and the evidence presented in the case. The tribunal noted that OMN's sister had raised similar issues in previous proceedings, and that the tribunal had already considered and rejected those issues. The tribunal found that OMN's attorneys were providing proper financial and other support to OMN, and that there was no compelling reason to question their assessment on an interim basis. The tribunal concluded that the health, welfare, and property of OMN must be the focus of its concern, rather than the propriety of a party's conduct.

The tribunal dismissed the application for an interim order. The tribunal found that OMN's attorneys were providing proper care and support to OMN, and that there was no immediate risk of harm to his health, welfare, or property that warranted the appointment of an interim administrator and guardian. The tribunal noted that OMN's sister had not succeeded in her previous applications for the appointment of an administrator and guardian, and that it would be perverse to accede to her wish for an outcome that she had failed to achieve in the previous proceeding. The tribunal's decision was based on the evidence presented in the case, and its consideration of the statutory framework for making interim orders for adults with impaired capacity.

Orders