PE
[2015] QCAT 520
•15 December 2015
| CITATION: | PE [2015] QCAT 520 |
| PARTIES: | PE |
| APPLICATION NUMBER: | GAA12375-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 15 December 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Public Trustee of Queensland is appointed administrator for PE for all financial matters. 2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 3. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. |
| CATCHWORDS: | GUARDIANSHIP – where adult’s cognitive functioning was impaired by a serious medical condition- where allegations that a family member had access to the adult’s funds- where that family member was alleged to have misused the funds of the adult on an earlier occasion INTERIM ORDER – where evidence that there was an immediate risk of harm to the adult’s financial position – whether an interim appointment of an administrator was required Guardianship and Administration Act 200 –s129 |
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
PE is 71 years of age. An application was made to QCAT for the appointment of a guardian and administrator for PE by a social worker at the Townsville Hospital. PE had been admitted for treatment of serious medical conditions. The evidence provided to QCAT revealed that PE had shown some improvement in her multi-organ dysfunction as a result of her hospitalisation but her higher level cognitive function was impaired.
At the time of filing the application at QCAT, the evidence established that PE was still critically unwell, not able to demonstrate awareness of the consequences of health care decisions, only able to follow single step instructions and could not understand or conduct any financial decision-making. According to a report of Dr Trout, a medical specialist at the hospital, PE could not make decisions freely and voluntarily and her communication skills were impaired as she had a tracheostomy tube in place restricting her verbal communication and she was too weak to engage in written forms of communication.
According to Dr Trout, PE was unable to make any simple or complex decisions due to her acute medical conditions and delirium as part of her multi-organ dysfunction. Dr Trout also referred to a history of PE being subjected to financial and psychological abuse from her family.
The applicant sought the appointment of the Public Guardian to make accommodation and service delivery decisions and a relative to make health care decisions for PE. The applicant sought the appointment of The Public Trustee of Queensland to make financial decisions for PE.
The applicant sought interim appointments of decision-makers until such time as the hearing of the substantive applications could take place. 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 holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.
It was submitted that PE was at an immediate risk of harm. It was alleged in the application for an interim order that two of the sons of PE were drug users who themselves had some form of impaired decision-making capacity. It was stated that PE was vulnerable to financial abuse from her sons as there was a history of one of her sons accessing his mother’s funds following the death of his father.
It was stated that two of her sons were unrealistic about PE’s progress and about her high care needs. It was stated that these sons had a fraught relationship with their mother which was often volatile. One of the three sons of PE wanted to take any decision-making out of the hands of his brothers to ensure that his mother’s best interests were met.
Further enquiries were made with the applicant by tribunal registry staff to clarify what was the immediate risk of harm to PE that had triggered the application for an interim order. The applicant stated that one of the sons had taken PE’s keycard from her belongings at the hospital and had access to her bank account. PE had been moved from the Intensive Care Unit to a ward and discharge plans had to be made which could include placement into residential aged care.
There was adequate evidence that PE could not understand information on which personal and financial decisions were based. Due to her serious multi-organ dysfunction, her cognitive functioning and her communication skills were impaired and she could not appreciate consequences of complex decisions about her health care, care and accommodation needs, particularly for facilitating her discharge from hospital.
The evidence also established that she could not understand the nature and consequences of financial decisions. Although a determination about decision-making capacity is not required to be made when considering an application for an interim order, I was satisfied that the evidence provided to the tribunal had established that PE had impaired decision-making capacity for personal and financial matters.[1]
[1]Section 129(2) of the Guardianship and Administration Ac t 2000
I was also satisfied that there was an immediate risk of harm to the financial wellbeing of PE. There was evidence that one of PE’s sons had exploited her financial position on an earlier occasion and that son now had possession of her bank keycard. Concerns had been raised by another son of PE who would have had some direct knowledge of the actions of his brother on that earlier occasion. It was essential that funds belonging to PE were safeguarded and used only for her benefit. From the evidence provide to the tribunal there had arisen a real risk that her funds would be used for purposes other than for her benefit.
It was appropriate to appoint a decision-maker about financial matters for PE to ensure that her finances were managed for her benefit until such time as a hearing of the applications for the appointment of a guardian and administrator could be held. The applicant had sought the appointment of the Public Trustee of Queensland. With such an appointment, the financial affairs of PE could be managed independently over family members who are alleged to have placed their own interests over those of their mother. The issues about the ongoing need for a decision-maker and as to who would be an appropriate decision-maker for PE would be decided at a final hearing but in the interim, the financial interests of PE would be protected from misuse by taking decisions out of the control of family members.
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