PVS - [2015] QCAT 494

CITATION:

PVS [2015] QCAT 494

PARTIES:	PVS
APPLICATION NUMBER:	GAA10477-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

28 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by PC for an interim order is dismissed.

CATCHWORDS:

GUARDIANSHIP – where adult had been admitted to hospital with confusion associated with inadequate managing of his diabetes condition – where the adult had been assessed in hospital with impaired decision-making capacity – where Enduring Power of Attorney invoked for personal, health and financial matters.

INTERIM ORDER – where interim appointment of a guardian and administrator sought as Enduring Power of Attorney had been revoked – where adult had left residential care facility and had returned home contrary to decisions made earlier by the attorney – where evidence that adult had been later assessed as able to manage his diabetes – where evidence that adult had support in community – whether there was an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) –s129

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 (Qld) (QCAT Act).

REASONS FOR DECISION

PVS is 90 years of age. He appointed his cousin, PC, to be his attorney for financial, personal and health care matters on 29 October 2009. The grant of power for financial matters commenced immediately but under law, the grant of power for personal and health care matters only commences when the adult loses capacity for decision-making about those matters.
On 25 July 2015 PVS was taken to Greenslopes Private Hospital as his diabetes had caused complications. After assessment by a neuropsychologist and by a doctor, PVS was found to have impaired decision-making capacity for health, lifestyle and financial matters. His attorney made arrangements to place PVS into residential aged care after a further assessment found that his care levels required residential care.
PVS was subsequently removed from the residential aged care facility by a friend after another medical practitioner had reported that PVS had capacity for decision-making. It was also reported that PVS had revoked the Enduring Power of Attorney granted to PC.
PC applied to QCAT for the appointment of a guardian and administrator. She also applied for an interim order to be in place pending the hearing of the substantive application for appointment of decision-makers for PVS.
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 (Qld) 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.
PC submitted that PVS lacked capacity to make his own decisions, that he needed residential care, that she had grave reservations about the motivations and ability of the friend of PVS to provide care for PVS, that there was evidence of self-neglect and risk of exploitation from previous occasions when PVS was without an adequate level of care, that PVS was unable to manage adequately his diabetes and insulin intake, and that PVS was unable to care for himself adequately as to meals and domestic tasks. PC submitted that as a result of these matters, PVS was at risk of suffering immediate personal harm.
PC also submitted that PVS was unable to manage his own finances and was vulnerable to others. She submitted that PVS was at risk of suffering financial harm.
PC acknowledged that PVS did not want to have anything to do with her. She sought the appointment of the Public Guardian and The Public Trustee of Queensland as decision-makers for PVS.
When consulted about the applications made by PC, PVS responded through his lawyers. They alleged that PVS had been the subject of elder abuse by PC and that PVS opposed the making of interim orders. They reported that PVS had returned to his home and was living independently among a caring community of friends. It was stated that PVS had been medically assessed as having no significant cognitive impairment and Anglicare staff were satisfied that he was capable of caring for himself and of administering his own medication.
PC had not seen PVS since September 2015. Her concerns about his being at risk of immediate personal and financial harm were based on her knowledge of his functioning prior to 5 September 2015. The assessments of his decision-making capacity had been conducted in a hospital setting not long after he had been admitted to hospital showing acute confusion due to complications with his diabetes.
According to the ACAT assessment conducted in early August 2015, his symptoms had settled but concerns had been raised about PVS’s ability to safely manage at home. It was noted that he had support from friends but no formal supports in the community prior to his admission to hospital. The main issue was stated to be the ability of PVS to manage safely his diabetes and insulin intake. It was noted that he was relatively independent with his personal cares and was mobilising independently within the secure unit in hospital. It was stated that PVS was distressed about the prospect of residential care and had expressed a desire to leave the secure unit and to return to his home. The ACAT assessment approved permanent residential care.
Contrary to that approval, the evidence before the Tribunal by 28 October 2015 was that PVS was residing safely at home, he was receiving some form of community support from his friends and possibly from Anglicare and he had been assessed as having decision-making capacity. The evidence came via his lawyers who owed a professional duty to assist the Tribunal and not to mislead it with incomplete or wrong information.
I was not satisfied that there was cogent evidence that PVS was at an immediate risk of harm. He had been managing his diabetes and insulin intake poorly prior to his admission to hospital in July 2015 resulting in confusion and hallucinations. His symptoms had settled with appropriate care. Since 5 September 2015 the evidence was that PVS was now safely managing at home and had some support in the community.
I was not satisfied that the evidence had established that PVS needed to have substituted decision-makers appointed for him prior to the hearing of the substantive applications for the appointment of a guardian and administrator. The issues about his capacity for decision-making and whether he could adequately make decisions with support will be determined at a hearing when PVS will be able to participate and his evidence fully considered as well as the evidence relied on by PC. A person with impaired decision-making capacity can still exercise legal capacity through the support of others who are willing to take his views and wishes into consideration, consistent with his proper care and protection.
The application for an interim order had to be dismissed as the requirements of the existence of immediate risk of harm in section 129 had not been established to my satisfaction.