SAM
[2015] QCAT 93
•4 March 2015
| CITATION: | SAM [2015] QCAT 93 |
| PARTIES: | SAM |
| APPLICATION NUMBER: | GAA1963-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Endicott |
| DELIVERED ON: | 4 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application by SSA for an interim order is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where adult had recently changed residences – where the adult had revoked an Enduring Power of Attorney and made another Enduring Power of Attorney – where allegations made that the adult’s care was being neglected INTERIM ORDER – where objective evidence from doctor that adult appeared well groomed, well attired and euthymic in mood, where adult denied any lack of care – whether there was an immediate risk of harm |
APPEARANCES:
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
SAM is 84 years of age. She has lived with her son, SSR since September 2014. Another son of SAM, SSA, applied to QCAT for the appointment of a guardian to make decisions about health care and accommodation. The application proposed SSA as guardian for SAM. SAM had lived with SSA prior to September 2014 for some years. SSA had been the attorney for SAM until 30 November 2014 when SAM revoked the Enduring Power of Attorney which had appointed her son SSA as her attorney.
SAM made a new Enduring Power of Attorney on 16 December 2014 appointing three members of her family as her attorneys but not SSA. SSA filed further applications in QCAT asking for a declaration about the capacity of SAM to make (and revoke) an Enduring Power of Attorney and for the appointment of an administrator. SSA proposed himself as administrator.
SSA also applied for an interim order to appoint him as guardian and administrator for SAM or alternatively his lawyer, Joanne Carusi, to be appointed as guardian and administrator on an interim basis.
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 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.
SSA submitted that SAM’s health and welfare were at immediate risk of harm. He submitted that SAM has been diagnosed with a myriad of health problems and that he was concerned that she was not being properly supervised and cared for by SSR. SSA submitted that SAM requires a high level of care and he believed that there was no possible way that she was being provided with full time high level care at his brother’s residence. He also submitted that she was at risk of harm due to environmental dangers at his brother’s residence and at risk of further deterioration of her cognitive functioning due to the change in her living circumstances.
SSA also submitted that decisions had to be made to pay bills and to maintain SAM’s property and finances until hearing. No grounds were identified to establish any immediate risk of harm to SAM’s finances.
The tribunal was provided with a report from Dr Gerald Byrne, a consultant psychiatrist. He had examined SAM on 22 January 2015. Dr Byrne described SAM as neatly and appropriately attired, well groomed, her affect was bright and reactive, her mood was euthymic and there was no evidence of depressed mood. Dr Bryne noted that SAM was preoccupied with the idea that SSA had been withdrawing funds regularly from her bank account, being funds that had not been spent on her care.
There were no indications from the report of Dr Bryne that SAM was being neglected as to her care or as to her personal hygiene or presentation. She appeared to be generally content although preoccupied with the idea that her son, SSA, had been misusing her funds.
SSR’s response was sought to the application for an interim order. He was with SAM when a tribunal registry officer spoke to SSR. Both SSR and SAM denied the allegations that SAM was not being properly supervised or cared for by SSR. SAM stated that SSR spends more time with her than SSA used to do, they both denied any allegations about her dietary intake not being adequately monitored, they denied that SAM was isolated at SSR’s residence, SAM stated that her room was air-conditioned so she was not concerned about high temperatures and she has a medi-alert device around her neck.
SSR stated that his mother had no health issues in the five months that she had been living with him and that she takes her medication in front of him at meal times. SSR stated that SSA had not forwarded mail advising of medical appointments despite being asked to do so. SAM told the registry officer that she did not want to see SSA.
There was no objective evidence given to the tribunal that SAM was at any immediate risk of harm. To the contrary, she appeared to be well cared for and happy according to the evidence of Dr Bryne. SAM and SSR had given satisfactory responses to the allegations made by SSA that negatived that there was any immediate risk of harm to her welfare or health.
I concluded that SSA had failed to establish a basis for any finding that SAM was at an immediate risk of harm nor for an interim appointment of a guardian and administrator being required to respond to harm to her welfare or health.
The application for an interim order was dismissed.
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