VJM
[2012] QCAT 53
•23 January 2012
| CITATION: | VJM [2012] QCAT 53 |
| PARTIES: | VJM |
| APPLICATION NUMBER: | GAA745-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 January 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 23 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for interim order is refused. |
| CATCHWORDS: | GUARDIANSHIP FOR ADULTS – interim appointment sought – where no immediate risk of hard established 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
VJM is 91 years of age and currently an inpatient in hospital. Her care needs are high and she has been assessed as requiring residential care. VJM no longer receives acute medical care and is ready to be discharged from hospital.
However there is a dispute within her family as to where she should reside after discharge from hospital. That dispute was not resolved at the time that a social worker at the hospital where VJM is a patient applied to QCAT for appointment of a guardian and administrator for VJM. There was also an application for an interim appointment of substitute decision makers for VJM so decisions could be made prior to a hearing of the applications for the appointment of a guardian and administrator.
When considering the appointment of guardians and administrators for adults, QCAT is exercising jurisdiction under the Guardianship and Administration Act 2000. Under section 129 of that Act, QCAT can exercise its discretion and make an interim appointment of a guardian and administrator without a hearing. However it is a prerequisite to making an interim appointment that QCAT must be satisfied that there is an immediate risk of harm to the health, welfare or property of the adult concerned in the application.
The evidence provided to QCAT failed to establish an immediate risk of harm to VJM. She was in hospital where her care needs were being met. She was not at risk of discharge to a place where her care needs could not be adequately met.
Appointments of decision makers without a hearing and without notice to an adult or to persons interested in an adult should be made only when circumstances compel such action. In the absence of evidence that there was an immediate risk of harm to VJM, I considered that there was no basis to exercise discretion to make an interim appointment. The application for an interim appointment had to be refused.
There is of course a subjective element that comes into play when a member is exercising discretion. This may result in different outcomes occurring in cases where the evidence is similar because of the different evaluation made by members about the presence or absence of an immediate risk of harm. A member may also consider in some cases that it is not in the interests of justice to make an interim appointment without a hearing taking place or without notice to an adult.
The provisions in section 129 do not permit QCAT to make interim appointments to meet the needs of service providers when there is no established immediate risk of harm to an adult. The focus must be on the interests of the adult and not on the interests of her service providers.
The tribunal however recognised the merit in expediting a hearing of the applications for the appointment of a guardian and administrator so that VJM could be placed into suitable care after discharge from hospital. A hearing has been arranged for the earliest possible date.
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