RPB
[2012] QCAT 497
•31 August 2012
| CITATION: | RPB [2012] QCAT 497 |
| PARTIES: | RPB |
| APPLICATION NUMBER: | GAA7521-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 31 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for an interim order is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – whether immediate risk of harm – whether interim appointment required |
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
RPB had been living in her own home until earlier this year. She was hospitalised for medical treatment and after discharge home, she sustained a fracture of her hip and returned to hospital. On 7 June 2012 RPB appointed her son, Robert, to be her financial attorney and enduring guardian.
Robert made arrangements to sell RPB’s house in New South Wales and arranged for her to go into residential aged care in Townsville. RPB has another son, Peter, who lives overseas. He does not agree with the actions taken by his mother’s attorney. He applied to QCAT for the appointment of a guardian and administrator for his mother.
Peter also applied for an interim appointment of a guardian and administrator until the final hearing of his applications. Peter provided information about his mother’s functioning on which he relied to establish for the purposes of the interim order application that his mother has impaired decision making capacity. He did not provide any medical evidence about his mother’s capacity.
There is a presumption at law that all adults have capacity to make their own decisions. Appointments of decision makers for adults with impaired decision making capacity are made when the presumption of capacity has been rebutted by clear and relevant evidence. This position generally is only reached after a full hearing by a member of QCAT when the cogency of evidence produced to the tribunal has been assessed.
However the Guardianship and Administration Act 2000 (GAA Act) does have provisions that permit QCAT to make appointments on an interim basis without a hearing and without deciding the issues in the proceeding, including the issue of whether an adult has decision making capacity. Such an interim appointment is current for a limited period of time until the final hearing can take place.
Section 129 of the GAAT 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.
Peter asserted in his application that his mother’s property was at immediate risk as her home was being sold by her attorney and that his mother was in immediate danger due to the actions of her attorney. His assertions were a consequence of the decision made by RPB on 7 June 2012 to appoint her son Robert as her attorney and enduring guardian.
According to a report by her GP, Dr B dated 7 June 2012, RPB was at that time mentally sound and orientated to time, place and person. Dr B was of the opinion that RPB was capable of making decisions regarding the appointment of a guardian in her affairs. According to the witness to the power of attorney document, the effect of the appointment of her son as her financial attorney and enduring guardian had been explained to RPB and she appeared to understand the effect of her actions.
An assessment conducted by the Aged Care Assessment team in July and August 2012 noted that RPB displayed occasional short term memory problems, depressive symptoms, confusion and disorientation to time and place and noted that RPB’s functioning fluctuated when she was unwell or preoccupied. The assessment concluded that RPB has a complex medical history and medical issues and she requires assistance with self care. The ACAT report stated that RPB was aware that she required the assistance and support from a residential care facility and that she was pleased to go to Townsville. The recommendation of the ACAT assessment was high level residential care.
According to information provided by her attorney, the sale of RPB’s house would settle around 14 September 2012 and that the sale price obtained was a good price. Part of the sale proceeds would pay the nursing home bond and the balance would be invested for RPB. She had already moved into the nursing home and interest on the outstanding bond payment would accrue until the bond was fully paid.
After considering the evidence provided to QCAT, I was not satisfied that RPB was at immediate risk of harm as to her welfare or as to her property. Her care needs were being met by a residential care placement and her assets were being managed by her attorney who is accountable for his actions at law.
There was clearly a difference of opinion within her family as to what decisions should be made about personal and financial matters. All interested persons will have the opportunity to provide direct input at the hearing of the applications for the appointment of a guardian and administrator. However until that hearing takes place, I could not find an immediate risk of harm to the interests of RPB to necessitate setting aside the decision making regime she had chosen to put in place.
Although the settlement of the sale of her house had not been completed, the evidence did not warrant QCAT taking steps which would be likely to have the consequence of stopping settlement from taking place and exposing RPB to serious adverse legal and financial implications. According to the evidence of the ACAT assessment, the steps being taken to place RPB into residential care were in accordance with her wishes.
As I could not be satisfied that the requirements of section 129 of the GAA Act had been met, I dismissed the application for interim orders.
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