TR - [2012] QCAT 443 | CaseChat AU

CITATION:

TR [2012] QCAT 443

PARTIES:

APPLICATION NUMBER:

GAA5864-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

12 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal is satisfied that urgent action is required.

2. The Tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative TribunalAct 2009.

3. DP is appointed guardian for TR for all personal matters.

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

5. This guardianship 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.

CATCHWORDS:

GUARDIANSHIP – where evidence that adult has impaired decision making capacity – where allegations that adult is at immediate risk of harm – where some certainty about decision making appropriate before tribunal hearing

Guardianship and Administration Act 2000, s 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

TR had lived in her home in Lidcombe in New South Wales until she was brought to Queensland by her daughter, DP on about 26 June 2012. DP sought orders from QCAT for the appointment of a guardian and administrator for TR. DP also sought an interim appointment as a guardian for TR.
The tribunal can appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and only when the presumption of capacity has been rebutted. However the Guardianship and Administration Act 2000 does have provisions that permit the tribunal to make appointments on an interim basis without hearing and without deciding the issues in the proceeding.
Section 129 of that Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.
DP provided evidence that TR had been diagnosed with dementia. Her score on a Mini Mental State Examination was 19 out of 30, which can be indicative of impaired cognitive functioning. A medical practitioner reported that TR had no ability to understand and act on information about her personal affairs.
I accepted that evidence as being able to establish that TR could not understand the nature and effect of decisions about personal matters. For the purposes of considering the application for an interim appointment of a guardian, I was satisfied that TR had impaired decision making capacity.
Evidence was provided to the tribunal by DP that TR had appeared to be unkempt…

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.

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Details

AGLC: TR [2012] QCAT 443
Case: [2012] QCAT 443
Decision Date: 12 July 2012

CaseChat Overview and Summary

In the matter of TR, the applicant, and DP, the respondent, the dispute revolved around the need for urgent guardianship due to concerns about TR's impaired decision-making capacity and the immediate risk of harm. The case was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether it was appropriate to appoint a guardian for TR before the full hearing, given the evidence of impaired decision-making capacity and the risk of harm. The tribunal considered the necessity of acting with urgency to protect TR's wellbeing and the appropriateness of dispensing with procedural requirements to facilitate an immediate response.

The tribunal found that the evidence presented was sufficient to warrant urgent action. It determined that dispensing with procedural requirements was necessary to ensure timely protection for TR. The tribunal appointed DP as TR's guardian for all personal matters, effective immediately, for a period of three months. The tribunal also directed DP to provide a written account of their actions to the tribunal three working days prior to the hearing.

The tribunal's final orders included the appointment of DP as guardian for TR, the dispensation of procedural requirements for the interim order, and directives for DP to report to the tribunal. The guardianship was set to remain in effect for three months or until further order by the tribunal, whichever came sooner.

Orders

Orders of the court

1. The Tribunal is satisfied that urgent action is required.

2. The Tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Tribunal Act 2009.

3. DP is appointed guardian for TR for all personal matters.

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

5. This guardianship 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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