SMY

[2017] QCAT 26

CITATION:

SMY  [2017] QCAT 26

PARTIES:

SMY

APPLICATION NUMBER:

GAA258-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

10 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application by Deidre Venz for an interim order is dismissed.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult had appointed attorneys in 2012 – where adult in hospital – where adult cannot make complex decisions – where decisions required for health care – where application made by social worker to appoint a guardian and administrator – where interim appointment sought – whether the adult was at an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) ss 12(1), 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) (QCAT Act).

REASONS FOR DECISION  

1. SMY is an inpatient at a private hospital with pressure area injuries and a urinary tract infection.  Evidence presented to the Tribunal stated that SMY was previously a patient at the hospital due to sepsis and urosepsis in December 2016.  She has been diagnosed with dementia. 

2. Dr Negas, who is part of the hospital treating team, stated that SMY had demonstrated a decline of cognitive functioning over the previous six to 12 months.  Dr Negas stated that SMY could not make any complex decisions due to dementia. 

3. SMY made an Enduring Power of Attorney on 17 December 2012 in which she jointly appointed SLC and HTMB as her attorneys for personal, health and financial decisions.  The attorneys did not accept the grant of these powers until 4 January 2017.

4. An application was filed in QCAT on 9 January 2017 by SMY’s social worker, Deidre Venz, in which she applied for the appointment of a guardian and an administrator for SMY. Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process.

5. Deidre Venz also applied for an interim appointment of a guardian and administrator for SMY for personal and financial decisions. Appointments of decision-makers can be made prior to a determination being made on the substantive applications if the Tribunal is satisfied that the requirements of s 129 of the GAA are established. That section provides that where there is an immediate risk of harm to the welfare or financial resources of the adult, an appointment can be made for up to three months before a hearing of the applications are heard and determined.

6. The applicant states that HTMB has refused to accept ongoing concerns and advice expressed by Dr Negas, other hospital staff, and community nurses from RSL HomeCare.  She states that there are genuine concerns for SMY’s ongoing health and wellbeing, particularly with ongoing issues related to pressure area wounds, recurrent infections caused by these wounds, and the development of further sites of wounds. The applicant states that SMY was kept at home under the care of HTMB longer than was advised by the treating medical practitioners.  The applicant states that the granny flat where SMY had been living at HTMB’s house was bordering on squalid, was malodourous and cluttered. 

7. The applicant also states that SMY has had multiple hospital admissions within six months.  Recommendations had been made over the past six months that SMY be placed into aged care.  The applicant states that HTMB wants to discharge SMY from hospital into her care and has refused discharge planning and input from the treating doctor.  The applicant states that there is a risk that SMY will be removed from hospital against medical advice. The applicant also queries the validity of the Enduring Power of Attorney due to the attorneys not signing to indicate their acceptance of the grant of powers until 2017 when the document was signed by SMY in 2012. 

8. The evidence before the Tribunal is that SMY had appointed her own decision-makers through the Enduring Power of Attorney made in December 2012.  The enduring document set up a regime whereby her children, SLC and HTMB, would make decisions about her personal and health matters when she could not do so and whereby the attorneys could make financial decisions from the date of the grant of power.  The main concern expressed by the applicant about the validity of the Enduring Power of Attorney is groundless as the acceptance by the attorneys in 2017 of the grant of powers does not of itself invalidate an Enduring Power of Attorney. Whether there are other grounds that could invalidate the Enduring Power of Attorney will be considered at the hearing of the substantive applications. 

9. The Tribunal registry staff contacted HTMB to gather her views about the application for an interim appointment of a guardian and administrator.  HTMB stated that she had been trying to treat the bedsore at home and send SMY to hospital when it became clear that SMY needed further medical treatment. 

10. HTMB denied that she had said that she wanted to take SMY home but that she had enquired of the hospital staff when SMY would be ready to be discharged home. HTMB stated that she was not asking for SMY to be discharged yet as it appears that SMY still needs to be in hospital.  HTMB stated that she was considering selling her house to buy a house where she could provide better care to SMY and she was even considering aged care placement if this was the most appropriate option for SMY. 

11. The evidence given to the Tribunal in support of the application for an interim order did not satisfy the requirements of s 129. SMY was in hospital receiving adequate care. Her carer and attorney had stated that she did not intend to remove SMY from hospital and that the attorney was considering several options for ongoing care of SMY. The assertion by the applicant that SMY was at an immediate risk of harm because she was going to be removed from hospital against medical advice was not established to the reasonable satisfaction of the Tribunal.

12. SMY had chosen her family members to make decisions for her.  The evidence did not establish that SMY was at an immediate risk of harm due to a lack of decision-making support for SMY.  If the attorneys for SMY make decisions contrary to the health care principles and the General Principles, the Public Guardian can suspend the powers of the attorneys.  However, the evidence before the Tribunal did not establish that the attorneys would be likely to act contrary to the requirements of law. 

13. I was satisfied that the personal and financial decision-making needs of SMY were being adequately met through her attorneys and that her attorneys were willing to act. I was not satisfied on the evidence before the Tribunal that SMY was at an immediate risk of harm. As the requirements of s 129 of the GAA for making an interim order were not established, the application had to be dismissed.