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

1. 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.

2. 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.

3. 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.

4. 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 SJWN was at risk of dying due to the lack of iron and other medications. SL stated that SJWN was chronically anaemic and that he suffers from several respiratory problems. She stated that iron was essential to assist in the process of carrying oxygen to the brain and to all living cells in the body.

5. SL stated that one of the family members who was assisting SJWN with the administration of medication was changing the medication and did not accept the advice of SJWN’s doctors. SL sought the appointment of a guardian as she saw a need to act quickly to maintain the care plans laid down by SJWN’s doctors.

6. SL also stated that SJWN’s health was deteriorating and he sustained a fall which she attributed to his deteriorating medical condition.

7. QCAT can appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and when the presumption of capacity has been rebutted. However the Guardianship and Administration Act 2000 does have provisions that permit QCAT to make appointments on an interim basis without hearing and without deciding the issues in the proceeding, including the issue of whether or not a person has impaired decision making capacity.

8. QCAT was provided with a medical report which stated an opinion that SJWN could make his own decisions. However the issue of whether a person has decision making capacity is not only decided on medical evidence. If a person cannot make decisions freely and voluntarily, then a finding can be made of impaired decision making capacity. Evidence as to the ability of an adult to make decisions freely and voluntarily is usually based on factual evidence from family members or close friends of an adult and not primarily on medical evidence.

9. The factual evidence provided to the Tribunal about three different Enduring Powers of Attorney being made by SJWN over a five month period could give rise to an inference that SJWN was being subjected to influence by family members in dispute with each other. An inference could be reasonably drawn that SJWN was not freely granting decision making powers but was acting in response to the latest suggestion made to him about how he should order his affairs.

10. Although it was not necessary when making an interim appointment to make a finding about the extent, if any, of impaired decision making capacity, it is generally the case that the Tribunal would reach some satisfaction that there was evidence capable of establishing impaired capacity before an interim appointment was made. I was satisfied that there was evidence before the Tribunal which could reasonably form the basis of a finding of impaired decision making capacity.

11. Section 129 of that Act states that the Tribunal can make an interim appointment if the Tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.

12. The evidence provided to QCAT suggested that SJWN was at a risk of his health being compromised due to the ongoing dispute within his family about health care and medication issues. Connected with those issues was a concern that SJWN’s care arrangements may not be appropriate for his needs.

13. I was satisfied that SJWN was at an immediate risk of harm if his health and care needs were not being addressed due to the conflict and disharmony within his family. Confusion arising from SJWN’s changing the nomination of his attorneys added to the risk that decisions about health care, services and accommodation would not be made in a timely fashion or with his interests in mind.

14. I was satisfied that a guardian independent to the family was required on an interim basis to make decisions to reduce the immediate risk of harm to SJWN. At the hearing the family and indeed SJWN would have the opportunity to put forward their views about an appropriate decision making regime into the future for SJWN.