Re: SJWN - [2013] QCAT 136

CITATION:

Re: SJWN [2013] QCAT 136

PARTIES:

SJWN

APPLICATION NUMBER:

GAA1470-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

6 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Adult Guardian is appointed guardian for SJWN for the following personal matters only:

(a) accommodation decisions;

(b) health care of SJWN;

(c) provision of services for SJWN.

2. 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.

3. 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.

4. The Tribunal notes that the following enduring power of attorney for SJWN is overtaken by the making of these appointment(s) and, in accordance with s 22(2) of the Act can no longer be acted upon to the extent that these appointment(s) have been made:

(a) The enduring power of attorney dated 17 February 2013 appointing SGB and SND as attorney(s) for financial, personal and health matters.

CATCHWORDS:

GUARDIANSHIP – where a person made three Enduring Powers of Attorney over a five month period – where allegations that the adult was at an immediate risk of harm – where family members were in dispute over care of adult

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

SJWN granted decision making power to various members of his family under three different Enduring Powers of Attorney made on 19 September 2012, 21 January 2013 and 17 February 2013. Some members of his family are in dispute with each other over aspects of his care.
An application was made to QCAT on 7 January 2013 seeking orders about the validity of the Enduring Power of Attorney made on 19 September 2012. Later QCAT was informed that a more recent Enduring Power of Attorney (21 January 2013) had been made.
It was apparent from the information provided to the Tribunal that members of the family held strong and often conflicting views about what action was appropriate and necessary to ensure the proper care and support of SJWN. The Tribunal initiated applications for the appointment of a guardian and an administrator for SJWN so that consideration could be given at the ultimate hearing as to whether another form of substituted decision making would be required in case it was determined that one or more of the Enduring Power of Attorney were not valid or were no longer appropriate for SJWN.
On 22 February 2013, SL applied to QCAT for an interim order. She sought the appointment of a guardian and an administrator for SJWN on the grounds that…

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 Re: SJWN

Details

AGLC: Re: SJWN [2013] QCAT 136
Case: [2013] QCAT 136
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was called upon to make an interim appointment of a guardian for SJWN, who had been granted decision-making powers to various members of his family through three separate Enduring Powers of Attorney made over a five-month period. The Tribunal was faced with a dispute among family members over aspects of SJWN's care, leading to concerns about his immediate risk of harm. QCAT was required to determine whether an interim appointment of a guardian was warranted to address the immediate risk of harm to SJWN's welfare and property, as outlined in Section 129 of the Guardianship and Administration Act 2000.

The key legal issue before the Tribunal was whether SJWN had impaired decision-making capacity, which would warrant an interim appointment of a guardian. The Tribunal considered the evidence of conflicting Enduring Powers of Attorney made by SJWN over a short period, which suggested that he might not be making decisions freely and voluntarily. Additionally, there was a medical report indicating SJWN could make his own decisions, but the issue of decision-making capacity is not solely based on medical evidence. The Tribunal also considered the evidence of SJWN's deteriorating health and a recent fall, which were attributed to his medical condition.

After considering the evidence, the Tribunal was satisfied that there was evidence capable of establishing impaired decision-making capacity. The dispute among family members over SJWN's care, along with concerns about his health and the potential for inappropriate care arrangements, led the Tribunal to conclude that SJWN was at immediate risk of harm if his health and care needs were not addressed. The Tribunal was satisfied that an interim appointment of a guardian was necessary to reduce the immediate risk of harm to SJWN. The Tribunal directed that the guardian provide a written account of their actions to the Tribunal three working days prior to the hearing. This guardianship appointment was set to remain in effect for three months or until further order by the Tribunal, whichever came sooner.

The Tribunal's final orders included appointing the Adult Guardian as guardian for SJWN for personal matters such as accommodation decisions, health care, and the provision of services. The Tribunal also noted that the enduring power of attorney made on 17 February 2013 was overtaken by the appointment of the guardian and could no longer be acted upon to the extent of the guardian's appointments. The Tribunal directed the guardian to provide a written account of their actions to the Tribunal three working days prior to the hearing. This guardianship appointment remained in effect for three months or until further order by the Tribunal, whichever came sooner.

Orders