SPA
[2014] QCAT 570
•20 October 2014
| CITATION: | SPA [2014] QCAT 570 |
| PARTIES: | SPA |
| APPLICATION NUMBER: | GAA9436-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 20 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application by SNM for an interim order is dismissed |
| CATCHWORDS: | GUARDIANSHIP – where adult exhibiting confusion and poor memory – where family member made decisions informally for the adult’s care and accommodation in an aged care facility – where another family member sought formal appointments of a guardian and administrator INTERIM ORDER – where appointments sought before hearing – where evidence did not establish any immediate risk of harm – where concerns about lack of communication – whether interim orders should be made Guardianship and Administration Act 2000 s 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
SPA is 86 years of age. In August 2014 SPA was hospitalised in Adelaide after being found to be driving on the wrong side of the road and exhibiting confusion. He was discharged from hospital and was brought to Queensland by his nephew, SNB. Subsequent medical assessment on 3 October 2014 has established that SPA remained very confused, his memory was very poor, he did not recall he had family until prompted and his score on a Mini Mental State Examination was 15 out of 30.
SPA is a resident in an aged care facility at Wynnum. According to evidence from the facility manager, SPA has adjusted well in residential care and he can engage in activities, attend the local shops and attend religious services. Due the level of his confusion, the facility staff have acted on advice from SPA’s nephew that SPA must be accompanied whenever he leaves the facility.
SPA appointed his nephew, SNB, as his attorney for financial matters in an Enduring Power of Attorney made on 26 February 2009. According to the evidence before the tribunal, SPA has not appointed any attorney to make personal decisions for him.
It appears that SNB has made personal decisions for SPA since his hospitalisation in August 2014. These decisions have been made informally by SNB who, as a close family member, is part of SPA’s informal support network.
According to evidence before the tribunal, SNB instructed the aged care facility to limit visitors to SPA as he became easily confused and agitated when he had contact from people unfamiliar to him.
Another family member, SNM applied to QCAT for the appointment of a guardian and administrator for SPA. SNM was critical of the decisions made by SNB and asserted that SPA was at risk of being exploited as SNB was not consulting with or informing the family about the decisions made about SPA.
SNM also sought an interim appointment of a guardian and administrator for SPA. 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.
SNM based his application on a concern that SPA was at risk of harm. However the evidence provided to the tribunal revealed that SPA was in an aged care facility, he had adjusted well to his surroundings and he was engaging in activities at that facility. He was under the care of a doctor and his decision-making needs were being met by SNB. The concerns expressed by SNM were more about lack of communication from the decision maker giving rise to some perceived risk of harm. The evidence did not satisfy me that SPA was at an immediate risk of harm.
The issues around communication are validly issues to be taken into account at the time of the hearing of the applications for appointment of a guardian and administrator. Any decision maker appointed by the tribunal must apply the General Principles and must be able to satisfy the tribunal that relationships with people within the support network of an adult with impaired capacity will be maintained.
The evidence and submissions of SNM did not persuade me that an interim appointment of any decision makers was required. SPA had an attorney to make financial decisions for him and it appeared from the evidence that personal and health care decisions have been able to be made informally for SPA. The application for an interim appointment was dismissed as no immediate risk of harm had been established because of the absence of a guardian and administrator.
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