WJH
[2018] QCAT 103
•4 April 2018
CITATION: | WJH [2018] QCAT 103 |
PARTIES: | WJH (Adult) |
APPLICATION NUMBER: | GAA2620-18 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Guthrie |
DELIVERED ON: | 4 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | On 2 March 2018 the following orders were made: GUARDIANSHIP 1. The application for an interim order for the appointment of a guardian and administrator for WJH is granted. 2. The Public Guardian is appointed for three (3) months for: a. accommodation and; b. provision of services decisions. 3. 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 ADMINISTRATION 4. The Public Trustee of Queensland is appointed administrator for WJH for all financial matters 5. 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 6. 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 NOTICE OF INTEREST IN LAND 7. Before 2 April 2018 the administrator must: a. Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. b. Provide confirmation to the Tribunal that this has been completed by providing: i. A copy of the title search conducted identifying the adult’s property; and ii. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. c. If no property is held, a Record of a search of the Land Registry from the Registrar of Titles confirming no property is held. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property, the administrator must within fourteen (14) days of such changes: 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. ENDURING POWERS OF ATTORNEY 9. Any purported enduring power of attorney for WJH is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – application for an interim order – where allegations made that adult’s home is not fit for human living – where allegations of mismanagement of adult’s funds – where the Tribunal was satisfied there was an immediate risk to the adult – where interim orders made – where request for reasons filed out of time Guardianship and Administration Act 2000 (Qld), s 12, s 14(2), s 16, s 22(2), s 118, s 129 |
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
On 2 March 2018, I appointed, on an interim basis, the Public Guardian as guardian for WJH for accommodation and provision of services decisions. Further, I appointed, on an interim basis, the Public Trustee of Queensland as administrator for all financial matters.[1] In this case, an enduring power of attorney had purportedly been executed appointing RKW, but could not be produced. Any appointment of an administrator or guardian would require the overtaking of the enduring power of attorney, or some other order by the Tribunal to prevent it being acted upon. These are my reasons for making the orders.
[1]The interim appointments are for a period of three months, by which time a hearing of the substantive applications will take place.
WJH is 78 years old. On 28 February 2018, WJH’s son, RKW who is also her informal carer filed an application for the appointment of a guardian and the appointment of an administrator for his mother. In his application, he sought joint and several appointment with his two siblings.
On 28 February 2018, RKW also filed an application for an interim order for the appointment of a guardian and the appointment of an administrator for WJH. In that application, he proposes himself as administrator and guardian for accommodation and services, jointly and severally with his two siblings.
In his application for an interim order, RKW said he wanted the following order:
My mother is now physically and mentally unable to stay at her dwelling and is ready to be placed in an aged care facility. This cannot be done without the appointment of a guardian and/or administrator.
On 2 March 2018, the Office of the Public Guardian completed an investigation into the management of WJH’s personal and financial affairs in response to allegations in February 2017. The allegations were that WJH’s finances were being mismanaged and the RKW was not providing the adult with adequate funds from her pension to satisfy her needs. Likewise, her accommodation situation was not satisfactory. WJH’s dwelling was not structurally sound according reports from service providers who attempted to enter the home. The Office of the Public Guardian found the allegations to be substantiated.
On 2 March 2018, the Public Guardian filed an application seeking she be appointed for decisions about accommodation and provision of services and the Public Trustee of Queensland be appointed administrator for WJH for all financial decisions. The basis of the applications for the appointment of a guardian is that the adult’s access to services is currently impeded by the unkempt state of the adult’ residence. The basis of the applications for the appointment of an administrator is the adult’s pension is currently being mismanaged placing the adult at ongoing financial risk.
Appointments of guardians and administrators are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the relevant matter; that there are decisions that need to be made; and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process.
On 2 March 2018, the Public Guardian also applied for an interim order for the appointment of an administrator and a guardian for accommodation and service provision. The application states that RKW is agreeable to the arrangement proposed by the Public Guardian.
Section 129(1) of the Act provides that the Tribunal may make an interim order in a proceeding if the Tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of or self-neglect by the adult. Section 129(2) provides that the Tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the Act, including s 118.[2]
[2]Section 118 of the Act sets out the requirements for notifying the adult and others of the hearing.
I considered medical reports provided by both RKW and the Public Guardian. A geriatrician has reported that WJH almost certainly has dementia although relatively mild. I considered there was sufficient evidence that WJH has impaired capacity for personal and financial decision making for the purposes of making the interim orders. At the hearing of the substantive applications, the presiding member is required to consider the evidence and make findings about whether the presumption of capacity is rebutted.
Based on the material that was before me, there were reasonable grounds on which I could be satisfied that there was an immediate risk of harm to the health and welfare of WJH. Both the Public Guardian, following an investigation, and RKW raised concerns about the state of WJH’s home. The Public Guardian reported that the state of WJH’s home was such that it may not be structurally sound and the electrical and plumbing services may be a safety hazard. There is clearly a need for decisions to be made regarding WJH’s accommodation arrangements and the services she might require.
In his applications to the Tribunal, RKW proposed himself and his brother and sister be appointed jointly and severally. I am mindful of s 14(2) of the Act which provides that the tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
When considering an interim application, due to the urgency of such applications, detailed information from proposed appointees is often not available. In her investigation, the Public Guardian found the allegation that RKW was not providing sufficient and appropriate accommodation for WJH’s needs substantiated. In his application, RKW has not proposed the appointment of any other family member on their own. The Public Guardian proposes the appointment of the Public Guardian. Further, and in any event, neither RKW’s brother nor his sister had signed the statutory declarations set out in the applications for appointment of a guardian and administrator filed by RKW. Therefore, I could not conclude that they were willing to act, nor did I have advice from them about their appropriateness and competence in terms of s 16 of the Act.
For those reasons and cognisant that the Public Guardian, in making any decisions for WJH in the interim period of appointment is required to adhere to the general principles in Schedule 1 of the Act which include the presumption of capacity, the maximum participation of the adult in decision making and maintaining WJH’s existing supportive relationships, I concluded, at the time of making the interim appointment, there was no other appropriate person available for appointment.[3] Further, I considered the Public Guardian the most appropriate appointment for the interim period pending the hearing of the substantive applications before the Tribunal.
[3]General Principles 1, 7 and 8.
I also found reasonable grounds on which I could be satisfied that there is an immediate risk of harm to the finances of WJH. In her investigation, the Public Guardian concluded that there had been inappropriate spending of WJH’s pension by RJW. Further, the decisions that need to be made in relation to WJH’s personal matters will likely require the expenditure of her financial resources. Therefore, decisions will have to be made regarding her financial matters. For the same reasons as those I expressed for concluding that the Public Guardian was the most appropriate appointment as guardian, I concluded that the Public Trustee of Queensland was most appropriate for appointment as administrator for WJH, on an interim basis, pending the hearing of the substantive applications before the Tribunal.
As previously stated, due to the likelihood that WJH had appointed an attorney under an enduring power of attorney and the likelihood that the appointed attorney was RKW, I also made an order that any purported enduring power of attorney for WJH is overtaken by the making of these appointments. In accordance with s 22(2) of the Act any purported enduring power of attorney for WJH can no longer be acted upon to the extent that these appointments have been made.
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