WAK

[2017] QCAT 74

CITATION:

WAK [2017] QCAT 74

PARTIES:

WAK

APPLICATION NUMBER:

GAA1455-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

10 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application by WLR for an interim order is dismissed.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult has communication difficulties following a stroke – where allegations that adult’s partner would not act in the interests of the adult – where those allegations were not accepted by the adult’s treating team – where discharge arrangements were to be made – where application made for appointment of guardian and administrator – where interim appointments sought – whether there was an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) s 129(1)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. WAK is 43 years of age.  She sustained a stroke in December 2016.  She is currently in hospital undergoing rehabilitation.  Prior to the stroke, WAK lived with her long-term partner, BS, in a home owned by them.   

2. WAK’s father, WLR, applied to QCAT for appointment as the guardian and administrator for WAK.  In his application, WLR stated that BS was, in fact, the former partner of WAK and that for the last few years before WAK’s stroke, she and BS only shared a house together.  WB submitted that BS was not suitable to look after WAK or to manage her financial affairs.  WLR stated that BS has been known to lose up to $1,000 a night on the pokies and that he has a relationship with another woman.  WLR submitted that BS had hardly assisted with house payments, rates, or electricity costs in previous years and that BS has stated that WAK cannot move back into their house unless she can look after herself.

3. WLR submitted that BS had walked out on WAK when she had the stroke and that BS would not be responsible for her.  WLR submitted that BS was out to gain financially in his dealings with WAK.   

4. According to evidence filed in the Tribunal, WAK had sustained severe aphasia as a result of the stroke.  She also was diagnosed with anxiety and depression.  Dr Doherty reported on 20 January 2017 that WAK had a possible cognitive impairment secondary to her stroke with poor insight.  Dr Doherty also reported that there was a complicated family dynamic.  Dr Doherty reported that WAK had possible receptive aphasia given her inconsistent verbal and nonverbal responses. 

5. An assessment of her communication abilities confirmed the presence of severe expressive and receptive dysphasia.  Ms James, speech pathologist, reported that WAK could, with support, indicate her thoughts and feelings via yes/no responses consistently across days for simple and concrete questions.  Examples included when and how often she would like different people to visit her.

6. A social worker in the rehabilitation unit where WAK resides provided a report dated 23 January 2017.  She stated that WAK and BS had been together for about 25 years.  The social worker noted WAK’s parents believe that there have been some difficulties in the relationship.  However, WAK repeatedly told the social worker that she wants BS to visit her as regularly as possible and that she wants to return to her home and live with BS on discharge from hospital. 

7. The social worker reported that WAK had told her parents that she wanted them to visit her once a week only.  This request was explained on the basis that WAK wanted life to return to normal and she would usually only see her parents on a weekend.  The hospital put a visitation roster in place to avoid conflict between WAK’s parents and BS to reflect WAK’s wishes.

8. The social worker had discussed discharge planning with WAK.  The social worker reported that BS is supportive of WAK returning home if she is able to manage in a home environment. 

9. The social worker expressed a conclusion that WAK seemed to have capacity to make basic decisions such as what visitors she wants to see but she is unable to describe the risks inherent in not taking her medication.  The social worker stated that the hospital is aiming to discharge WAK to her own home on 7 March 2017 with her partner, BS.  WAK is accepting of services on discharge and the treating team considered that WAK had the capacity to make the decision around her discharge destination. 

10. The social worker reported that WAK’s parents do not agree with the discharge decision.  They have visited WAK outside of the times she had requested and WAK has become distressed by this.  WAK’s parents dismissed suggestions that they should respect WAK’s wishes on the basis that she does not know what she wants.  The social worker reported that the team has tried to educate WAK’s parents that WAK has a communication impairment but that she can make many decisions when presented with information in an appropriate way. 

11. WLR applied for an interim order for the appointment of an administrator to manage WAK’s financial situation and assets.  WLR submitted that BS is claiming to be WAK’s partner.  WLR submitted that BS is trying to make a claim on the house, car, bank accounts, Centrelink payments, and the redraw facility on the house payments as part of his claim against any assets owned by WAK.

12. QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the Guardianship and Administration Act 2000 (Qld) (the GAA) without holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. The evidence relied on by WLR did not reveal any current action by BS that would be likely to affect adversely WAK’s financial position in the immediate future and did not provide a reasonable basis for a conclusion that WAK was at an immediate risk of harm.

13. The Tribunal registry staff contacted BS for his comments on the interim order application.  BS denied that WAK was at an immediate risk of harm.  BS stated that WAK could make her own decisions about discharge from hospital, although communication is still a problem.  BS stated that he had arranged payments to start from Centrelink.  BS stated that their finances are managed together and he has access to WAK’s finances. 

14. The registry staff also contacted the social worker at the hospital for comments on the interim order application.  She stated that BS had done nothing that would suggest that WAK’s best interests were not being looked after by him.  BS was managing all WAK’s affairs informally and provides everything she wants.   The social worker stated that when WAK’s parents visit the hospital, they are disrespectful, and WAK becomes agitated. 

15. In the absence of evidence that could reasonably lead to a conclusion that WAK was at an immediate risk of harm, the application for an interim order had to be dismissed.  WLR could not identify any actions of BS that gave rise to an immediate risk of harm.  WLR referred to BS having intentions to make a claim against WAK’s assets but there is no evidence of that having occurred.  To the contrary, the evidence from the hospital staff reveal that BS is supportive of WAK and that WAK wants BS to be involved in her life. 

16. There is an absence of evidence that any financial decisions have to be made at the present time for WAK that cannot adequately be made by BS as the long-term partner of WAK.  Issues about the conflict between WAK’s parents and BS can be explored at the hearing of the substantive applications, but the allegations of conflict alone do not satisfy the Tribunal that WAK is at an immediate risk of harm that warrants an interim appointment of an administrator.