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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SWB

Details

AGLC: SWB [2014] QCAT 134
Case: [2014] QCAT 134
Decision Date

CaseChat Overview and Summary

In the matter of SWB, TSP applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of the appointment of an administrator for SWB. TSP also sought to be appointed as the new administrator in place of The Public Trustee of Queensland. This was an application for an interim order to replace the existing administrator, pending a review of the original appointment. The application was dismissed by Senior Member Endicott.

The primary legal issue for QCAT was whether an interim order should be made to replace the current administrator with TSP. Under section 31 of the Guardianship and Administration Act 2000, an appointed decision maker can only be removed if QCAT is satisfied that the appointee is no longer competent or that another person is more appropriate for the role. The application for an interim order under section 129 of the Act required QCAT to be satisfied, on reasonable grounds, that there was an immediate risk of harm to the welfare or property of SWB if an interim order were not made.

QCAT found there was no evidence presented that SWB was at any immediate risk of harm. While TSP argued that The Public Trustee was in the process of selling SWB’s house, this did not amount to an immediate risk of harm to SWB’s property or wellbeing. SWB was in aged care and no longer resided in the house. The sale of the house would free up funds for SWB’s ongoing support. There was no evidence that the sale would disadvantage SWB. QCAT was not satisfied that there was an immediate risk of harm, so the application for an interim order was dismissed.

The application for an interim order to replace the existing administrator with TSP was dismissed. An oral hearing of the review application will be scheduled in due course.

Orders