TAR - [2014] QCAT 519

CITATION:

TAR [2014] QCAT 519

PARTIES:

TAR

APPLICATION NUMBER:

GAA8758-14; GAA8830-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

24 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. TB is appointed administrator for TAR for all financial matters.

2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.

3. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

4. That before 22 October 2014 the administrator must:

a. Search the records of the Registrar of Titles to identify any property registered in the adult’s name.

b. Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order.

c. Give to the Tribunal:

i. a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and

ii. a copy of the current title searches.

5. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:

a. give a copy of this order to the Registrar of Titles and

b. give a notice to the Registrar about the changes or the adult’s interest in another property.

CATCHWORDS:

GUARDIANSHIP FOR ADULTS – where adult had responsibilities for the financial support of his wife and family – where he was unable to access his bank funds due to incapacity from a medical condition – where a substituted decision maker was sought

INTERIM ORDER – where interim appointment of an administrator sought – where one applicant’s interests were likely to conflict with the interests of the adult – where two competing proposals for appointment on an interim basis – whether independent appointee required

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

TAR was an inpatient in hospital and was critically unwell when his wife, TW made an application to the tribunal seeking the appointment of an administrator for TAR. She sought appointment as his administrator so she could make financial decisions on his behalf while he was unwell.
TW also applied for an interim order appointing her as TAR’s administrator until the tribunal could conduct a hearing of her substantive application. In support of that application for an interim order, TW informed the tribunal that she did not have access to any money and she needed to cover their financial obligations (mortgage, car repayments, bills) as well as support their three children. TW stated that she had borrowed money from her parents for food and rent but they could not afford to give long-term support to her. She stated that she had been able to put their mortgage on hold for one month but that arrangement would expire on 26 October 2014.
The tribunal registry made some enquiries about the application for an interim order. A registry officer spoke with TW on 22 September 2014. TW informed that officer that she and her husband had separated three weeks ago. She stated that TAR’s mother was very angry with her and blamed TW for the situation that TAR was in. TW informed the officer that TAR’s bank account was in his sole name and had to be accessed.
The registry officer spoke to TAR’s mother, TM, on 22 September 2014. TM opposed the application for TW to be appointed as a sole administrator for TAR. TM stated that TW had asked TAR to leave. She stated that TAR had agreed to provide financial support to TW and the family until Christmas but no further arrangements for financial support had been made. TM stated that she could not work with TW as a decision maker for TAR but suggested that TB, the adult’s brother, would be able to do so.
The registry officer spoke with TB, the brother of the adult. He stated that he would not support the appointment of TW solely as an administrator for TAR. TB informed the officer that he was considering filing his own application for appointment as an administrator for his brother.
TB filed an application on 23 September 2014 seeking his appointment solely as an administrator for TAR. TB also applied for an interim appointment.
The registry officer sought the views of TW on 24 September 2014 to the application by TB for his sole appointment as an administrator under an interim order. TW did not support the appointment of TB as an administrator solely or jointly with her. TW stated that there was mistrust and miscommunication on both sides and it was not possible that they could work together. TW sought instead that The Public Trustee of Queensland was appointed as an interim administrator.
The tribunal has the power to appoint guardians and administrators to make decisions for adults with impaired decision-making capacity. Before making such appointments, the tribunal conducts a hearing to determine whether the person in question has impaired decision-making capacity and whether there is a need for a decision maker to be appointed by the tribunal. It can take up to three months between the filing of an application and the setting of a hearing date of the application.
However, the tribunal 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 is 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.
In this case, TAR had some responsibility for the financial support of his wife and family. His wife could not access his bank account to facilitate the payment of family’s bills and to provide the means of buying food and other necessary items of daily life. In addition, funds had to be made available from the resources of TAR to pay the mortgage on the former family home until the sale of that home.
The evidence had established to my satisfaction that there was an immediate risk of harm to the welfare of the adult as his family would be left without adequate funds if no one could access the funds in his bank account. In addition, mortgage payments had to be made to secure his interest in the house property and to respond to any immediate issues arising from the separation of TAR from his wife such as selling that property to reduce the overall debt situation of the family.
There were two competing proposals for appointment under an interim order: TB and TW, although she had informed the tribunal on 24 September 2014 that she supported the appointment of an independent administrator from outside the family.
The tribunal must consider the appropriateness considerations set out in section 15 of the Act when deciding whether a person is appropriate for appointment. One of the appropriateness considerations is the extent to which the adult’s and the proposed appointee’s interests are likely to conflict. It appeared from the evidence that TW had separated from TAR shortly before he became unwell and shortly before his capacity became impaired. According to the evidence of TM, some short-term arrangements had been made by TAR to support his family but more arrangements would be required in the near future. TW’s own interests in those arrangements are likely to conflict with the interests of TAR.
Rationalisation and distribution of the matrimonial property may be necessary and the first step may be the sale of the former matrimonial home. TW referred to the need for a sale of the home in her application to the tribunal. There would have to be negotiations between TW and TAR over the sale terms and division of any net proceeds of sale. TW would again be in a position of conflict between her own interests and those of her estranged husband.
I was satisfied that TW would not be appropriate to be the sole interim administrator for her husband as her interests were likely to conflict with those of her husband, given the separation that had occurred only recently. The evidence was that a joint appointment of TW and TB would not work and was not supported by TW.
I was not convinced that an administrator independent of the family would be required. A family member would be familiar with TAR’s affairs and with his general views and wishes about what decisions should be made on his behalf. In this case, the preferable appointee on an interim basis would be a family member who could act immediately and without any conflict of interest to access funds for the support of TAR and his family.
TB had sought appointment to the role. He was best placed to fill the role of a decision maker for TAR until the hearing of the applications for appointment of an administrator on an ongoing basis. The existence of disharmony between TB and TW would not disentitle him from the role of administrator. He must apply the General Principles and make decisions for the proper care of his brother and in turn discharge the responsibilities of his brother towards his family as a substitute decision maker while TAR is incapacitated. The evidence did not reveal any basis to suggest that TB would not be able to discharge all his duties appropriately.