TPO

[2022] QCAT 232

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TPO [2022] QCAT 232

PARTIES:

In an application about matters concerning TPO

APPLICATION NO/S:

GAA5526-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

30 June 2022

DATE OF ORDER:

17 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

The application for an interim order by DTA is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where attorney making financial decisions – whether interim administrator should be appointed to overtake attorney’s powers – whether immediate risk of harm

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where attorney making personal decisions – whether interim guardian should be appointed to overtake attorney’s powers – whether immediate risk of harm

Guardianship and Administration Act 2000 (Qld), s 12(1)(c), s 129(1)

Human Rights Act 2019 (Qld), s 17, s 19

Powers of Attorney Act 1998 (Qld), Chapter 1A

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

1. For privacy reasons, the adult whom this application concerns will be referred to as TPO, his daughter as DTA, and his son as SNA. TPO’s de facto partner, who is not the mother of DTA and SNA, will be referred to as WFA.

2. On 19 May 2022 DTA filed an application for an interim order. This was not decided immediately, because DTA had not yet filed a substantive application. On 2 June 2022 DTA filed substantive applications, namely an application for the appointment of an administrator for TPO and an application for the appointment of a guardian for TPO. DTA proposed that the Public Trustee and the Public Guardian be appointed to those roles, although she also proposed that she and her brother might instead be appointed.

3. The filing of substantive applications meant that the interim application could be decided. On 17 June 2022 I decided to dismiss it. DTA has requested reasons, which I now provide.

Background

1. In 2015, TPO appointed WFA as his attorney under an enduring power of attorney. The attorney’s powers were to commence only upon TPO’s loss of decision-making capacity. On 16 February 2022, TPO’s treating psychiatrist wrote a letter advising that TPO had lost capacity on account of Parkinson’s disease and dementia. The letter indicated that the attorney’s powers had accordingly commenced.

2. TPO lives in an aged care facility on the Gold Coast, but he recently spent time in hospital. DTA lives in the United Kingdom. SNA lives in the United States of America. WFA lives on the Gold Coast. It is common ground that she is acting as TPO’s attorney.

3. The appointment of an administrator, whether interim or long-term, would overtake the attorney’s financial powers to the extent of overlap. Similarly, the appointment of a guardian, whether interim or long-term, would overtake the attorney’s powers to make personal decisions to the extent of overlap.

4. In her applications, DTA raises numerous issues. These include:

   (a)an allegation that WFA prevents communication between TPO and his children, his brothers, and a friend;

   (b)an allegation that at times the children have been unable to establish TPO’s whereabouts;

   (c)an allegation that WFA prevents the children from communicating with TPO’s doctor;

   (d)an allegation that WFA provides only sporadic and contradictory information to the children about TPO’s health and care;

   (e)an allegation that WFA unnecessarily distressed TPO by informing him that the children had engaged a solicitor to try to resolve issues with WFA;

   (f)an allegation that WFA placed TPO in an aged care facility against his wishes, and without consulting his children, and has been feeding him incorrect information about the placement;

   (g)an allegation that WFA’s business has failed and that she has significant personal and business debts;

   (h)a concern that TPO’s house will be sold and the money used to pay WFA’s debts;

   (i)alternatively, a concern that WFA is protecting the home, instead of selling it to fund the best care for TPO, because WFA stands to inherit the house;

   (j)a contention that WFA lives in TPO’s house and is spending his money on repairing it even though she intends that he remain in aged care permanently;

   (k)an allegation that there has not been any attempt by WFA to have full-time care for TPO at home, as he would prefer; and

   (l)a contention that the children wish to visit TPO, who may not live much longer, but they justifiably fear that they might come all the way to Australia only to find that WFA will prevent visits.

5. WFA provided a response to the interim order application. Her contentions include that:

   (a)at this point, it is necessary for TPO to live in aged care because of his care needs;

   (b)TPO’s children can currently contact him by phone;

   (c)the financial allegations are irrelevant; and

   (d)the criteria for an interim order are not established.

Legislative framework

1. An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[1]

   [1]Guardianship and Administration Act 2000 (Qld), s 129(1).

2. Further, the tribunal can appoint an administrator or guardian only in circumstances where, without the appointment, the adult’s needs will not be adequately met or their interests will not be adequately protected.[2] These criteria will not usually be met when there is an attorney willing and able to act. However, of course, there are sometimes situations where the attorney is not adequately meeting the adult’s needs or not adequately protecting their interests.

   [2]Ibid, s 12(1)(c).

3. Attorneys must apply the general principles.[3] These include taking into account the adult’s rights, and maintaining their existing supportive relationships. The role of families and other significant persons to support the adult to make decisions is to be respected. Participation by the adult in decision-making is also to be promoted to the greatest extent practicable.

   [3]Powers of Attorney Act 1998 (Qld), Chapter 1A.

4. The adult’s rights can be affected by making or not making an interim order. However, the impact on rights is difficult to assess at a preliminary stage. For example, TPO’s freedom to choose where to live[4] may be enhanced by the appointment of a guardian who could decide to move TPO home. On the other hand, moving TPO home may amount to degrading treatment[5] if WFA is correct in contending that TPO cannot be properly cared for at home.

   [4]Human Rights Act 2019 (Qld), s 19.

   [5]Ibid, s 17(b).

Why was the application for an interim order dismissed?

1. When the substantive applications progress to hearing, all parties will have had the opportunity to provide all of their documentary evidence. They can give any oral evidence, and challenge the evidence of other parties. At that point, the tribunal will be in a position to properly assess whether WFA as attorney has been applying the general principles, and whether she is likely to apply them into the future.

2. At this preliminary stage of the proceedings, however, the tribunal must gauge whether, on the available information, the current decision-making arrangements pose an immediate risk of harm to TPO. I am not satisfied that they do.

3. TPO is being cared for in an aged care facility. DTA has raised the concern that WFA might sell TPO’s home to pay her own debts, but this is speculative, especially bearing in mind that DTA equally suggests that WFA may retain the property for her own advantage. Even if it is true that WFA has significant debts, that does not itself disqualify her from acting as attorney. Nor does it predict that she will misappropriate TPO’s assets. Were she to become bankrupt or insolvent, that would serve to revoke her financial powers,[6] but there is no evidence she is bankrupt or insolvent.

   [6]Powers of Attorney Act 1998 (Qld), s 57(2).

4. Further, if DTA or her brother were in Australia and wanting to visit TPO in his final days, and if WFA was unreasonably banning visits by them, that might lead the tribunal to conclude that there was an immediate risk of harm to TPO’s welfare. However, that is not the situation. It would not be proper to appoint a guardian merely to give DTA and her brother peace of mind that they could visit TPO if they come to Australia at some point.

5. DTA’s concern about not being consulted by WFA may have some relevance to whether WFA is likely to apply the general principles, but it does not necessarily signify any immediate risk of harm to TPO. It must be remembered that TPO, when he made his enduring power of attorney, entrusted WFA rather than his children to be his decision-maker in the event that he lost capacity. WFA’s powers should not be curtailed at a preliminary stage of the proceeding, unless the tribunal is satisfied of an immediate risk of harm to TPO.

Conclusion

1. As I was not satisfied that there was an immediate risk of harm to TPO, I dismissed DTA’s interim application.