WAB
[2013] QCAT 405
| CITATION: | WAB [2013] QCAT 405 |
| PARTIES: | WAB |
| APPLICATION NUMBER: | GAA6266-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Clare Endicott, Senior Member |
| DELIVERED ON: | 26 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. WK and WJ are appointed jointly and severally as administrators for WAB 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 within 28 days the administrators 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.
(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. 6. The Tribunal notes that the following Enduring Power of Attorney for WAB is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made: (a) The Enduring Power of Attorney dated 8 July, 2013 appointing CJ as attorney for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP - where allegations that the financial assets of the adult were at an immediate risk of harm – where attorney not managing sale of assets – where no evidence that adult was at immediate risk of harm in respect of health or other personal matters – interim appointment of administrators Guardianship and Administration Act 2000 s 129 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
WAB became unwell with a psychiatric illness and was admitted to New Farm Private Psychiatric Hospital on 18 July 2013. Her sons, WJ and WK, applied to QCAT for the appointment of a guardian and administrator for WAB to make decisions about personal and financial matters.
WAB had appointed her sister, CJ, as her attorney on 8 July 2013. WAB’s sons do not support CJ continuing in a decision making role. CJ informed the tribunal registry staff that she does not want to remain as attorney and that she would be happy to be removed from that role when the tribunal considers the applications for the appointment of a guardian and administrator.
QCAT has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and when the presumption of capacity has been rebutted by satisfactory evidence. However QCAT 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.
WJ and WK sought an interim appointment of a guardian and administrator. Section 129 permits the tribunal to 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.
In their application for an interim order, WJ and WK stated that WAB had been hospitalised under a Mental Health Order, that WAB has a chronic illness which had deteriorated over the last four weeks, that she lacked insight into the fact that she was unwell and that she was not mentally fit to make decisions.
The applicants stated that, since appointing her sister as her attorney, an investment portfolio owned by WAB had been liquidated for no apparent purpose. The portfolio had been set up to provide WAB with a regular income. The applicants stated that the whereabouts of the proceeds of sale of the shares, believed to be $800,000.00, was unknown.
In addition, the applicants stated that there was evidence that unusual expenditure had occurred in the period from May to July 2013 with some $24,000 in expenditure being identified.
The applicants stated that they want authority to care for their mother and on her release from hospital it was intended that WAB would stay with WK rather than return to her own home.
The attorney had informed the tribunal that she did not have a copy of the Enduring Power of Attorney document, that she did not know how much money WAB had and that other people were handling matters in relation to the sale of the share portfolio.
In view of the unexplained sale of the large investment portfolio and the expenditures made from the bank account of WAB at a time when the evidence appears to suggest that her mental state may have deteriorated, I was satisfied that there was an immediate risk of harm to WAB’s assets.
I was satisfied that no one with proper authority was actually making financial decisions for WAB while her mental state was deteriorating. Her attorney was not making decisions about WAB’s financial affairs and as a result, her interests could not be adequately protected unless an appointment of a financial decision maker was immediately made.
It was appropriate to appoint administrators for WAB on an interim basis until the application made by her sons could be heard. Her sons, WJ and WK, were appointed as administrators for all financial matters for WAB for three months on an interim basis.
There was no evidence provided to the tribunal that there was an immediate risk of harm to WAB’s welfare in any other circumstance. According to the evidence, WAB was in hospital, she was being treated for her mental illness and on her discharge from hospital it was intended that WAB would stay with one of her sons.
There was no evidence that personal decisions about health, accommodation or services could not be made adequately for WAB. Accordingly I did not make an interim appointment of a guardian as the pre-condition for such an appointment, namely that there was an immediate risk of harm, was not established on the evidence provided by the applicants.
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