RJ
[2018] QCAT 360
•31 October 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
RJ [2018] QCAT 360
PARTIES:
In applications about matters concerning RJ
APPLICATION NO/S:
GAA11673-18
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
31 October 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Guthrie
ORDERS:
On 11 October 2018 the following orders were made:
GUARDIANSHIP
1. The Public Guardian is appointed guardian for RJ for the following personal matters only:
(a) accommodation decisions; and
(b) provision of services for RJ.
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.
ADMINISTRATION
4. The application by AA for the appointment of an administrator for RJ under an interim order is dismissed.
CATCHWORDS:
GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where the appointment of a guardian and an administrator was sought – where an application for the appointment of a guardian and administrator on an interim basis was filed – where applicant expressed risk to the adult if no interim appointment made – where the Tribunal was satisfied that there was an immediate risk of harm to the adult’s health, welfare or property – where RJ is at a high risk of absconding from hospital – where the Public Guardian was appointed as a guardian for RJ on an interim basis – where the application for the appointment of an administrator on an interim basis was dismissed
Guardianship and Administration Act 2000 (Qld), s 129.
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
These are my reasons for appointing, on 11 October 2018, the Public Guardian as guardian for RJ on an interim basis, a period of no more than three months, for making accommodation decisions and decisions in relation to provision of services for RJ. On that same date, I also decided to dismiss the application seeking the interim appointment of an administrator to make financial decisions for RJ including signing an aged care agreement to enable her to permanently placed in an aged care facility and not return to where she was living prior to her admission to a regional city hospital where she was still residing at the time I made the orders.
RJ is 81 years old. AA, a social worker at the hospital where RJ was a patient at the time of the orders, applied for the appointment of a guardian for RJ, proposing the Public Guardian be appointed. AA also applied for the appointment of an administrator for RJ, proposing the Public Trustee of Queensland be appointed.
Such applications are determined following a hearing by the Tribunal. The hearing provides the opportunity for the Tribunal to consider all relevant information including, to the extent possible, the views and wishes of the person about whom the applications concern, in this case, RJ.
The Tribunal, in determining such applications, must consider whether s 12 of the Guardianship and Administration Act 2000 (Qld) (GAA) is satisfied. The Tribunal must be satisfied, amongst other, things that RJ has impaired capacity for making the particular decisions that need to be made and without an appointment RJ’s needs will not be adequately made or RJ’s interests not adequately protected.
The applicant also applied for an interim order. In making the orders, I was required to consider the terms of s 129 of the GAA. Section 129 provides that the tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including s 118 (the requirements for notifying persons concerned about the hearing). In order to make such an order, the tribunal must be satisfied, on reasonable grounds, that 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. The maximum period for which an interim order can be made is three months.[1]
[1]GAA, s 129(6) provides for renewal of an interim order if the tribunal is satisfied there are exceptional circumstances justifying the renewal.
An interim order can also be made in the proceeding without hearing and deciding the proceeding or otherwise in compliance with the requirements of the GAA, including s 118 of the GAA, the provision which sets out the requirements for advising persons concerned in the applications of the hearing.
In order to make an interim order, it is not necessary for me to make a finding that the presumption of capacity is rebutted. However, in the absence of any medical evidence casting doubt on the adult’s decision making capacity, I would not make the interim order. I had before me a health professional report concerning RJ. According to Dr Aaron Quay, RJ has been diagnosed with dementia and can make simple personal health care decisions, only.
The application for the interim order states that RJ had attempted to abscond from the hospital. RJ had previously been transferred to a rural hospital but was unable to remain there as she continued to abscond. Dr Quay also outlined that RJ has attempted to leave the hospital on multiple occasions and proposed to harm herself.
For the purposes of considering the interim application, on the available evidence, I was satisfied that RJ had impaired cognitive functioning and that she was unable to make decisions for herself about where to reside to ensure her safety. It was clear from the material before me that RJ currently has a Department of Housing unit but the hospital was not prepared to discharge her home.
On 11 October 2018, I decided to appoint on an interim basis the Public Guardian to make decisions about RJ’s accommodation and provision of services. I considered that there was sufficient evidence that decisions needed to be made for RJ as she was absconding from the hospital and in doing so, was placing herself at the risk of harm. It seemed that the hospital was unable to keep her safe. The application also indicated that an aged care facility was holding a place for RJ. It was not clear whether arrangements were able to be made for RJ to be placed at the facility temporarily for a period of respite pending the hearing of the applications.
It was not clear to me that anyone had explained the applications filed in the tribunal to RJ, or that her views and wishes had been obtained regarding the decisions the hospital treating team considered would be in RJ’s best interests. The applications did not disclose any informal support networks for RJ such as friends and/or family members that might assist RJ.
While I was satisfied that due to RJ’s absconding and the inability of the hospital to keep her safe, that there was an immediate risk of harm to RJ’s welfare. However, there was insufficient evidence that her property was at immediate risk. The application stated that her bills were being paid by deduction from her income support payments. There was mention in the application of previous financial vulnerability and exploitation but there was no evidence that would support a finding that this was currently occurring.
The appointment of The Public Guardian on an interim basis will mean that options for safe accommodation for RJ can be explored and decisions made on an interim basis. In the event that the Public Guardian formed the view that the appointment of an administrator was required due to risk to RJ, the Public Guardian or some other interested person can make another application for an interim order.
In the meantime, the Tribunal’s registry will continue to process the substantive applications towards a final hearing.
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