TR
[2012] QCAT 443
•12 July 2012
| CITATION: | TR [2012] QCAT 443 |
| PARTIES: | TR |
| 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 while living in a house without hot water in Lidcombe before she was moved to Queensland. On 26 June 2012 DP visited the house and reported that there was a putrid stench throughout the house, rubbish was piled outside and at the rear of the house, water had penetrated into the house and cockroach faeces was present throughout the kitchen cupboards. DP was critical of the efforts made by her brother who had been caring for his mother.
In written notes provided to the tribunal, TR had complained that in Lidcombe she had no food to cook and that she had depended on her son, TP for food. TR stated that she had no friends, no daily exercise and she spent the day inside her closed house in solitude.
Evidence was provided that TR had poor quality teeth, with only one tooth remaining in the front of her mouth. She complained of cold in the Lidcombe house and of having inadequate clothing. TR complained that she used to fall three or four times a day and no one was there to help her.
DP stated that TR had a fungal infection affecting her toe nails and toes, a possible urinary tract infection and she had a gum infection and needed restorative dental treatment.
There was no guardian in place either in Queensland or in New South Wales. There was a dispute in the family over arrangements for TR. DP informed the tribunal that TP did not support TR moving to Queensland. TP had been appointed as the financial manager for TR by the New South Wales Guardianship Tribunal.
The tribunal was satisfied that TR was in need of immediate medical treatment. Decisions were needed to be made immediately for appropriate medical care and accommodation for TR until such time as the tribunal could schedule a hearing of the applications for the appointment of a guardian and administrator. Other personal decisions about the level of support services required for TR and who had contact with her would be required to be made prior to the tribunal’s hearing.
The evidence satisfied the tribunal that TR was at immediate risk of harm unless decisions about her health care, accommodation and support services were made. TR had been removed from her home in Lidcombe without the knowledge or approval of her son. No clear informal decision making process was in place to meet the needs of TR. It was unlikely that TP and DP would communicate and informally reach decisions on matters of immediate need due to their differences over matters involving their mother.
The only appropriate outcome was the appointment of a guardian on an interim basis to make decisions about any personal matter that needed to be addressed prior to the hearing of the applications for the appointment of a guardian and administrator. DP had current information about the need for care and treatment for TR. It was appropriate that DP was appointed on an interim basis as guardian.
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