PK
[2010] QCAT 75
•12 February 2010
CITATION: PK [2010] QCAT 75
PARTIES: PK
APPLICATION NUMBER: G20160
MATTER TYPE: Guardianship and administration matters
HEARING DATE: 12 February 2010
HEARD AT: Brisbane
DECISION OF: Ron Joachim - Member
DELIVERED ON: 12 February 2010
DELIVERED AT: Brisbane
ORDERS MADE:
The Tribunal is satisfied that urgent action is required.
The Tribunal, for the purposes of making this Interim Order, hereby dispenses with any or all of the procedural requirements of the Act and the Queensland Civil and Administrative Tribunal Act 2009.
Guardianship
The Adult Guardian is appointed guardian for PK for all personal matters.
The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.
This guardianship 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.
Administration
The Public Trustee of Queensland is appointed administrator for PK for all financial matters.
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.
This administration appointment remains current for three (3) months or, if the Tribunal makes a further order on this matter, until the date of the further order, whichever is the sooner.
Enduring Powers of Attorney
The Tribunal notes that the following enduring power of attorney for PK is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made:
(a)The enduring power of attorney dated 10 February 2009 appointing PM as attorney for financial, personal and health matters.
CATCHWORDS: Interim order, immediate risk of harm, Enduring Power of Attorney overtaken
APPEARANCES and REPRESENTATION:
Reasons for decision
Background
On 8 February 2010, the Queensland Civil and Administrative Tribunal (QCAT) received an application from Ms Deidre Venz, from Life Abundant Counselling and Consultancy, an approved Department of Veteran’s Affairs provider.
Her application sought the appointment of the Public Trustee of Queensland (PTQ) as administrator for PK and the appointment of the Adult Guardian (AG) as guardian for PK.
These applications were made pursuant to the Guardianship and Administration Act 2000 (the Act).
Also on 8 February QCAT received an application from Ms Venz seeking interim orders on the basis that PK was subject to abuse and neglect and immediate appointments were required urgently.
PK is 86 years old and normally lives on the Gold Coast with his wife PM. At the time of the application he was at a private hospital, on the Gold Coast, having had a surgical procedure.
Dr Graham Exelby provided a report which accompanied the applications. He has been PK’s general practitioner for 26 years.
This report indicated that PK has dementia and is unable to make any simple or complex decisions for himself. Dr Exelby stated that PK is totally controlled by his wife who has no interest in caring for him. Dr Exelby further indicated that PK has no insight into his current medical problem, namely bowel obstruction.
The Legislation
Section 129 of the Act outlines the provisions in relation to interim orders. This is set out below:
(1) This section applies if the tribunal is satisfied, on reasonable rounds, there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.
(2) The tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.
(3) An interim order may not include consent to special health care.
(4) An interim order has effect for the period specified in the order.
(5) The maximum period that may be specified in an interim order is 3 months.
(6) An interim order may be renewed, but only if the tribunal is satisfied there are exceptional circumstances justifying the renewal.
(7) To exercise jurisdiction under subsection (6), the tribunal must be constituted by a legal member.
The essential element in PK’s case is whether it can be reasonably considered that there is an immediate risk of harm to the health, welfare or property of the adult concerned, including risk of abuse, exploitation or neglect or self-neglect.
The Tribunal is also able to make an interim order without a hearing or otherwise complying with the notice provisions under Section 118 of the Act.
This permits the Tribunal to consider the matter on the papers without giving notice to parties.
In PK’s case the matter was considered by examining the applications, the report of Dr Exelby, emails from PB, son, a letter from the applicant to the Tribunal and a copy of an Enduring Power of Attorney executed by PK appointing his wife as attorney for personal/health matters and financial matters.
The written evidence and immediate risk of harm
In a letter dated 4 February 2010 Ms Venz indicated that a woman who wished anonymity had advised her of the following allegations:
·That PK is left alone for 3-4 days at home
·That Mrs K uses PK’s funds freely
·That PK has poor personal hygiene
·That PK is left unattended at a Football Club
·That PK lost significant weight over the past 12 months
·That Mrs K has spent at least $24,000 in 6 months on the poker machines at the Football Club
·That Mr and Mrs K spend all day at the club on a daily basis
·That PK approaches staff and patrons regarding his hunger
Ms Venz advised she had confirmed the concerns expressed above with a staff member of the Football Club.
Ms Venz further advised in the letter that she had spoken with PK’s children who advised that:
·They are banned from attending their father’s house
·They have noticed significant weight loss over the past 1-2 years
·Their father appears very unkept when they have seen him
·Their father was found wandering the streets on one occasion and was returned by a concerned motorist
·Mrs K contacted them demanding they purchase an electric razor as she did not have money to do this
Ms Venz noted that the discharge planner at the hospital spoke with Mrs K on 3 February who indicated she did not wish to take him home and was not interested in caring for him anymore
It is alleged in the application that Mrs K is withholding money and using the adult’s money possibly for gambling purposes
Conclusion
There is sufficient information before the Tribunal to satisfy the Tribunal that there is an immediate risk of harm to PK from both a health and welfare perspective and in relation to financial matters. This arises because of the risk of abuse, exploitation or neglect of PK.
The current decision maker for PK is his wife, who has been appointed by PK under an Enduring Power of Attorney (EPA).
The evidence available suggests strongly she is not a suitable decision maker.
Accordingly, until the application can be heard by the Tribunal, it is necessary to overtake the EPA and to appoint the Adult Guardian as guardian for PK and to appoint the Public Trustee of Queensland as administrator for PK.
These appointments are made for three months.
Order
The Tribunal is satisfied that urgent action is required.
The Tribunal, for the purposes of making this Interim Order, hereby dispenses with any or all of the procedural requirements of the Act and the Queensland Civil and Administrative Tribunal Act 2009.
Guardianship
The Adult Guardian is appointed guardian for PK for all personal matters.
The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.
This guardianship 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.
Administration
The Public Trustee of Queensland is appointed administrator for PK for all financial matters.
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.
This administration appointment remains current for three (3) months or, if the Tribunal makes a further order on this matter, until the date of the further order, whichever is the sooner.
Enduring Powers of Attorney
The Tribunal notes that the following enduring power of attorney for PK is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made:
(a)The enduring power of attorney dated 10 February 2009 appointing PM as attorney for financial, personal and health matters.
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