SM

[2018] QCAT 125

CITATION:

SM [2018] QCAT 125

PARTIES:

SM

(Adult)

APPLICATION NUMBER:

GAA4017-18

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Guthrie

DELIVERED ON:

30 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

On 6 April 2018 the Tribunal made the following orders:

1. The Public Trustee of Queensland is appointed administrator for SM for all financial matters.

2. That the administrator shall as soon as practicable:

(a)     lodge any necessary notices in Victoria to protect the interests in land of SM;

(b)     notify the Tribunal that the above has been attended to and provide documentary proof of this.

3.  The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.

4.  This administration 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.

ENDURING POWERS OF ATTORNEY

5. Any purported enduring power of attorney for SM is overtaken by the making of these appointment(s) and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointment(s) have been made.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where adult has impaired decision making capacity for financial matters – where appointment of guardian and administrator sought– where allegations of elder abuse by current carers – where allegations of pressure on adult to change will – where immediate risk of harm to adults finances – where any enduring power of attorney for adult was overtaken by the interim appointment – where appointment of guardian under an interim order is dismissed – where administrator appointed under interim order.

Guardianship and Administration Act 2000 (Qld) s 22, 129

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

1. SM is 82 years old and at the time of the orders was in hospital.  A social worker at the hospital applied to the Tribunal for the appointment of an administrator and guardian for SM. At the same time, an interim appointment of a guardian and an administrator was sought. The relevant legislative provisions which the Tribunal must apply in determining such applications are contained in the Guardianship and Administration Act 2000 (Qld) (‘GAA’).

2. On 6 April 2018, I made an interim appointment of an administrator for SM. These are my reasons for the orders I made.

3. The Tribunal has the power to appoint substitute decision-makers for adults with impaired decision-making capacity. The Tribunal may appoint a substitute decision-maker for an adult if the criteria in s 12 of the GAA are satisfied. To determine the applications the Tribunal will conduct a hearing of the applications taking into account the relevant information provided by the active parties to the application including the views of the adult concerned as well as any information from others interested in the adult’s life.

4. However, s 129 of the GAA provides the Tribunal with a discretion to make an interim appointment of a guardian and/or administrator, pending the hearing of the substantive applications. Such appointments can be made without hearing and deciding the proceeding or otherwise complying with the GAA including giving notice to active parties[1]. Section 129 of the GAA 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 health, welfare or property of the adult concerned.

   [1]Including the adult concerned.

5. I decided to appoint the Public Trustee of Queensland as administrator for SM on an interim basis until the hearing of the application for the appointment of a guardian and administrator. I did not appoint a guardian. To the extent of the appointment I made I also overtook any purported enduring power of attorney. The material before me suggested that SM may have executed an enduring power of attorney. The tribunal contacted the person said to be the attorney, a friend of SM’s residing in New South Wales. However, that person could not confirm that there was an enduring power of attorney in existence and was not currently involved in any decision making for SM. She was aware that SM was in the care of a couple and did not have concerns regarding their care of SM.

6. In support of the substantive application, the applicant filed a health professional’s report dated 4 April 2018. It is reported that SM has cognitive decline. The doctor expressed the opinion that SM has capacity to make simple, but not complex personal health care decisions and could not understand her financial affairs.

7. The doctor also expressed the opinion that SM has limited capacity/ ability to understand the consequences of her decisions about personal health care, her living situation and her financial affairs. It was stated, that for example, SM feels safe to go home despite the fact she needs a two person assist and rollator for mobilisation. It was also reported that she expressed feeling pressure to return home where she was living with her carer.  However, she also expressed wanting to reside in an aged care facility in a particular town but could not articulate an explanation for her views.

8. The doctor has stated that SM’s pension is handled entirely by her carers and that they may have a negative impact on the adult. It is reported that she had been encouraged to leave hospital by her carers in the past when it was her treating team’s view that it was unsafe to do so. It was also reported that SM had expressed that she did not want her carers looking after her money. There were also allegations that SM’s carers were encouraging her to transfer her house to them.

9. Although, I am not required, in making a decision under s 129 of the GAA to be make a final finding about whether the presumption of capacity has been rebutted, in SM’s case, I would not make an interim order in the absence of some medical evidence that SM’s decision-making capacity is impaired. In this case, there is some evidence that SM may not be able to make decisions freely and voluntarily and that she is unable to make complex decisions about both personal and financial matters.

10. There are claims that SM’s carers not only control her finances, but have been pressuring her to alter her will. There is also some evidence that her carers may not be providing adequate care for SM at home, leading to her return to hospital.

11. Based on the claims made by the applicant I considered there were reasonable grounds that there was an immediate risk of harm to SM’s finances. SM’s financial resources should be expended for her benefit including her proper care. SM should be involved in decisions affecting her financial resources. I decided to exercise the discretion under s 129 to appoint the statutory administrator, the Public Trustee of Queensland on an interim basis until the Tribunal can conduct a final hearing of the application for appointment of a guardian and the application for the appointment of an administrator. The applicant had not proposed the appointment of any other person.

12. At the time of making the decision, SM was residing in hospital. I concluded that there was no immediate risk of harm to SM’s health or welfare. SM was safe in hospital. I acknowledge that the applicant raised concerns about the carer’s interactions not only with members of hospital staff involved in the care of SM, but also with SM herself. However, while SM remains in hospital she is safe. I must consider the immediate risk. Further, with the Public Trustee of Queensland managing SM’s finances, I considered it unlikely that decisions having an adverse effect on SM’s health or welfare would be made in the period before a final hearing.

13. In the event that SM’s circumstances change, it is open for the applicant to make another application for an interim order.