SM
[2014] QCAT 568
•11 July 2014
| CITATION: | SM [2014] QCAT 568 |
| PARTIES: | SM |
| APPLICATION NUMBER: | GAA5396-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 11 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application by SSC for an interim order is dismissed |
| CATCHWORDS: | GUARDIANSHIP – where guardian made decision for adult to reside permanently in an aged care facility – where objection from a family member to that decision – where review of appointment of guardian commenced – where decision made by administrator to sell the adult’s house to fund accommodation bond STAY – where applicant for review sought a stay of decision to place adult permanently into aged care facility – where stay application to be considered at same time of review of guardian – where subsequent application made to stay decision to sell house pending completion of review hearing – where evidence that sale would not occur before review hearing – whether applicant could establish prima facie case that review would be successful – whether balance of convenience in favour of stay or in favour of rejection of stay application Guardianship and Administration Act 2000 s 128 Jones v Queensland Health [2010] QCAT 700 |
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
SM is 85 years old. The Public Guardian (formerly the Adult Guardian) has been appointed to make some personal decisions for SM since 2010. It is the responsibility of the Public Guardian to decide where SM lives.
In August 2013 the appointed guardian made a decision that SM was to move into respite care at an Aged Care Facility in Tewantin. SM had up to that time been living in her own home north of Brisbane with in-house support. The tribunal had refused an application brought by her daughter, SSC, to stay the accommodation decision and had dismissed an application by SSC to give directions to the guardian about the continuation of in-home care for SM on 27 August 2013.
SSC applied in February 2014 to review the appointment of the guardian. She contends that the guardian has not applied the General Principles in making decisions about accommodation and contact for SM. SSC sought to be appointed as guardian for her mother.
That application is opposed by the other four adult children of SM. They support the accommodation decision made by the guardian and they support the proposal for the sale of the home of SM which would be a consequential result of the decision for SM to remain permanently in the current aged care facility.
The guardian then made a decision on 15 May 2014 that SM would remain residing permanently at the Aged Care Facility. SSC applied to the tribunal for a stay of that decision until the review of the guardianship appointment was held. One of the implications arising from the decision that SM is to reside permanently at the aged care facility was that she would have to pay an accommodation bond. In order to pay that bond, the house owned by SM would have to be sold.
An administrator had previously been appointed to make all financial decisions for SM. The administrator had informed SM’s family that a decision had been made to sell the house regardless of the outcome of the guardianship review as the administrator considered that it is in the interests of SM to sell the house whatever the outcome of the review.
On 12 June 2014 the administrator advised the family that there was a lot of work that needed to take place before the house could be sold. That work consisted of clearing the contents out of the house, putting out a tender to real estate agents to bid for the sale and arrange a valuation, receiving advice from the successful agency as to the work required to get the house sale ready, completing required maintenance and repair work and then setting an auction date.
On further enquiries from the tribunal registry, the administrator indicated that it was unlikely that the house would be ready for placement on the market for sale until after 30 July 2014, which is the hearing date of the application to review the appointment of the guardian and the stay application.
SSC applied to the tribunal for an interim order seeking a stay of the decision by the administrator to sell the house. She submitted that there was no need for the administrator to sell the house as there were sufficient cash assets and income to meet the immediate financial needs of SM. She submitted that the sale of the house would prevent the implementation of the proposal she wanted the guardian to consider involving moving her mother back to the house for rehabilitation and re-orientation back into the local community before SM moved into an aged care facility at that location.
The tribunal has power under section 128 of the Guardianship and Administration Act 2000 to stay a decision of a decision maker to secure the effectiveness of a pending application about that decision. The issue at the centre of the stay application is the potential sale of SM’s house. It is well established that an applicant for interlocutory relief such as a stay of a decision pending hearing must make out a prima facie case. SSC must satisfy the tribunal that, if the evidence remains as presented at the time of the stay application, there is a probability that at the hearing she will be granted the relief she seeks. In addition the tribunal must be satisfied that the balance of convenience is in favour of granting the stay. In such a case, the tribunal must find that the inconvenience or injury which is likely to occur to SM if the stay is refused outweighs the impact on SM if a stay were to be granted.[1]
[1]Jones v Queensland Health [2010] QCAT 700; Australian Broadcasting Corporation v O’Neill Laboratories Pty Ltd (2006) 227 CLR 57.
The administrator had filed a letter which set out information on which the decision to sell the house was based. The administrator stated in that letter that they had signed a residential care agreement and an accommodation bond of $345,000 had been negotiated. Interest of $1,871 a month was accruing on the unpaid bond. The administrator informed the tribunal that they had written to the guardian on 22 May 2014 enquiring whether selling the house would have an adverse effect on SM’s personal or health interests. They had received no reply by 25 June 2014.
The administrator informed the tribunal that the decision to have SM reside permanently at the aged care facility was affordable subject to selling SM’s house. She has cash assets and managed investments of $195,000 in addition to the house valued at $600,000. Her pension income was inadequate to meet her annual residential care fees, even without taking the interest debt into account on the unpaid bond.
A reasonable inference was drawn from the information that the earnings from her investments are needed to make up the pension shortfall for care fees as well as to pay for other living or medical costs, for the holding costs of the house property and for any house maintenance or repair costs. It could be reasonably inferred that use of those earnings, or indeed use of her capital assets, to pay the interest on the outstanding bond would further adversely affect SM’s financial position in both the short and longer term.
The administrator stated that even if circumstances arose where a bond was not required to be paid, it would be in the best interests of SM to sell the house as it was unrealistic to expect that SM could return to live there with 24 hour care, it was unlikely that the sale would have any adverse affect on SM’s personal and health interests and the house cannot produce as much income as other forms of investments.
Finally the administrator stated that as at 25 June 2014 they were arranging to remove the contents of the house so the required work could be undertaken to put it in a saleable condition. It was estimated that at least several weeks would pass before the sale process could commence. This information was consistent with the enquiries made by the tribunal registry earlier in June 2014 that the house would not be ready for placement on the market for sale until after 30 July 2014.
The four siblings of SSC filed a submission supporting the decisions made by the guardian and administrator. They submitted that a move from the current aged care facility would not be beneficial for SM and would place undue stress on her. They submitted that their mother is not orientated to place. She asks to go home in terms of having her father come and take her to her parents’ home. They state that she demonstrates no interest in what is happening in the location where she had formerly lived and her house there is losing value and deteriorating. They sought a dismissal of the stay application about the administrator’s decision to sell the house.
The evidence before the tribunal did not lead to a conclusion that the house would be sold before the hearing of the review application on 30 July 2014. Quite the contrary – the inference from the evidence was that the house would not be sold until a lot of work had been carried out and that would take several weeks after 25 June 2014. An auction would then be arranged so that the prospect of a quick sale process before 30 July 2014 was not evident from the evidence.
The evidence provided to the tribunal satisfied me that there was little probability that the decisions made by the guardian and administrator would be set aside by the tribunal. SSC wants to retain an option that on the evidence is unrealistic. It is difficult to understand how the option of leaving the house available for SM to return to, on a short term basis, before being placed into alternative residential age care in that location is in the interests of SM. It is reasonable to infer that her health would be adversely affected by any such series of moves as anticipated by SSC and her financial interests would most certainly be adversely affected by that option.
I was satisfied that the balance of convenience came out in favour of the stay being rejected. Once I was satisfied that the sale would not take place before the review hearing, it was clear that the impact of a stay would not improve or even stabilise the options open to SM. However a stay would inevitably delay of the arrangements for the sale of the house and would expose SM to incurring ongoing interest on the negotiated accommodation bond for a longer period than is currently budgeted or anticipated by the administrators.
I was satisfied that a stay of the decision by the administrator to sell the house was not supported by the evidence and would not be an appropriate exercise of discretion by the tribunal in the circumstances. The application for the stay was dismissed.