SWB
[2014] QCAT 134
| CITATION: | SWB [2014] QCAT 134 |
| PARTIES: | SWB |
| APPLICATION NUMBER: | GAA2055-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 4 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for an interim order is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – REVIEW OF APPOINTMENT OF ADMINISTRATOR – INTERIM ORDER SOUGHT – where family not notified of hearing of application for appointment of administrator – where The Public Trustee of Queensland appointed as administrator – where family sought review of appointment – where interim order sought to replace administrator – whether any immediate risk of harm established Guardianship and Administration Act 2000 ss 31 and 129 |
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
On 7 November 2013 the Tribunal appointed The Public Trustee of Queensland to be the administrator for SWB for all financial matters. TSP, a stepdaughter of SWB, filed an application to review that appointment on 26 February 2014 and she sought to be appointed as administrator in place of The Public Trustee. She also sought to be appointed as a guardian for SWB.
In her application TSP stated that SWB’s property was at an immediate risk as The Public Trustee was in the process of selling his house. She stated that she brought the review application due to the fact that she and other members of the family of SWB had not been informed of the tribunal hearing in November 2013 and had, as a result, not been involved at that hearing.
TSP also sought an interim order although it was not clearly expressed in her application what orders she sought on an interim basis. She set out that she wanted guardianship but it is more likely that TSP wanted The Public Trustee removed and TSP appointed as administrator on an interim basis.
Under section 31 of the Guardianship and Administration Act 2000 the tribunal can remove an appointed decision maker only if the tribunal is satisfied after a hearing of the review application that the appointee is no longer competent or that another person is more appropriate for the role of substituted decision maker.
The tribunal would carefully consider any relevant and cogent evidence that The Public Trustee either is no longer competent for the role of administrator or that TSP is more appropriate for appointment. The Public Trustee must be given the opportunity to respond to any such evidence and to contest the submissions made by TSP. The issues raised in the review application will require an oral hearing to determine whether there should be any change to the appointment made on an earlier occasion by the Tribunal.
The fact that TSP had not been notified of the hearing in November 2013 is not in itself determinative of the review of the appointment. The fact that she was not notified of the hearing does not have any impact on an assessment of competency of the current appointee or provide any direct support for an assertion that TSP is more appropriate for appointment than the current appointee. An oral hearing of the review will be scheduled in due course.
TSP states that The Public Trustee was in the process of cleaning out the house owned by SWB in order to sell that house. It was a reasonable inference to draw from her comments in the filed documents that TSP was seeking an interim order to replace The Public Trustee so that she as an interim administrator could slow down or stop that process. It was not explained by TSP how the sale of the house would amount to his property being at an immediate risk. SWB, who is in aged care, was no longer residing in the house.
QCAT can make an interim appointment of a decision maker for up to three months under section 129 of the Guardianship Act without a hearing. However 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 if an interim order were to be made.
There was no evidence presented to the tribunal that SWB or his property was at any immediate risk of harm. He is a resident in an aged care facility. He no longer resides in his house. It is a valid decision for an administrator to make to realise the assets of an adult with impaired capacity so that funds can be available for that person’s ongoing support. Sale of the house would free up funds belonging to SWB for his support.
A sale of the house would merely replace one asset with another – namely real property is exchanged for cash that can be invested and can earn income for SWB or can be used to pay for his aged care fees or to pay an accommodation bond, if that was a requirement of his current care arrangements.
The basis put forward by TSP to interfere with the decision about the house was that she and her brother had not been notified and her brother had in the past stayed at the house when he was in the local area. This evidence does not support a finding of immediate risk of harm to SWB’s assets or to his wellbeing. No evidence was presented that SWB would be disadvantaged or harmed by the sale.
I was not satisfied by the evidence that SWB was at an immediate risk of harm. There was no basis established for any interim order replacing the appointed administrator. This finding must result in the application for an interim order being dismissed.
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