WLB
[2016] QCAT 87
•25 February 2016
| CITATION: | WLB [2016] QCAT 87 |
| PARTIES: | WLB |
| APPLICATION NUMBER: | GAA1844-16 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 25 February 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. WM is appointed as guardian for WLB for the following personal matters only: (a) accommodation decisions; (b) health care of WLB; and (c) provision of services for WLB. 2. 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. 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. | ||
| CATCHWORDS: | GUARDIANSHIP – where adult had a severe acquired brain injury – where adult reliant on 24-hour care – where personal decisions made informally by his parents – where the adult’s parents had divorced and their relationship was not amicable – where father of the adult foreshadowed a change in the accommodation and care of the adult - where the adult’s mother did not agree to such a change being made – where a care professional did not support the change with reduced care arrangements – where appointment of formal guardian sought INTERIM ORDER - where assertion made that adult would be at risk if his care were to be reduced and accommodation changed – whether there was an immediate risk of harm to the adult Guardianship and Administration Act 2000 (Qld) –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
WLB is 25 years of age. He sustained a severe acquired brain injury in 2010. His parents had been his appointed decision makers for personal decisions but in 2013 that appointment was revoked and personal decisions for WLB have been made informally since then. His parents remain jointly appointed to make financial decisions for WLB.
His mother applied to the Tribunal for appointment as the guardian for WLB and also sought to review the appointment of the administrators for him. She is seeking to be the sole administrator for her son.
QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) (‘the Act’) if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an appointment, that the decision making needs of the adult will not be adequately met.[1] Appointments are made after a hearing by the Tribunal, which usually takes place some three, or four months after the application is received by the Tribunal.
[1]Guardianship and Administration Act 2000 (Qld) – s 12 (1).
WM also sought an interim order for appointment as the guardian for her son. QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the Act 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 because of the risk of abuse, exploitation or neglect of the adult.
WM submitted that decisions needed to be made about accommodation, service provision and health care for WLB. She submitted that on 18 February 2016 WF, the father of WLB had told her that WLB would be staying with him for an extended period of time without his usual care and support which placed WLB at risk. WM submitted that WLB requires 24-hour care which she stated that WF could not provide due to his own health concerns.
Evidence was filed in the Tribunal from Brooke Kooymans, a case manager from Rehability which provides services to WLB. Ms Kooymans stated that she had been advised that WF intended to have WLB stay at his rental unit for an extended period of time with less than half of the 24-hour support being provided by his engaged support agency, Open Minds. Ms Kooymans stated that this was of concern as WLB would not be provided with adequate specialist care and support, particularly given his need for continence and personal hygiene management.
Ms Kooymans stated that even in his own home where he normally resides with his mother, WLB is provided with 24-hour care and support from a specialist support agency. Ms Kooymans stated that until a specialist assessment found that the level of need for care had changed, WLB would continue to require this 24-hour level of care and support. Ms Kooymans stated that she was aware that there was conflict between WLB’s parents and differing opinions as to what is in WLB’s best health care interest. She supported the appointment of a formal guardian and given the recent change of circumstances and the potential risk to WLB’s health and well-being, she supported the making of an interim order.
Ms Kooymans provided evidence that WLB required hands on assistance with all personal, domestic and community activities of daily living which was provided by a team of care staff and his family. His care staff are employed on a 24-hour basis with 16 hours of direct active care and an 8 hour in-active sleepover. He requires a primary carer to co-ordinate, plan and execute his weekly care program and to undertake all of the administrative roles associated with provision of this care, including facilitation of medical appointments, managing stock control, staff planning, weekly programming for appointment and therapy, meal planning and being responsible for all communications relating to meeting the needs of WLB. Ms Kooymans stated that this role has been performed by WM.
WM provided evidence that she and WF had divorced and their relationship is not amicable. She stated that there was often a difference in opinions and it was difficult to make joint decisions for their son.
The evidence before the Tribunal established that the existing care arrangements for WLB were to be unilaterally changed by WF. This change was not supported by WM or by the care and support professional, Ms Kooymans. The evidence established that WLB required 24-hour care supplied by paid carers and that this level of care would be reduced as a result of the change in accommodation and support that WF intended to implement.
I was satisfied that WLB would be at an immediate risk of harm if his care level were to be reduced without an assessment by a specialist professional. The proposed change in care and accommodation arrangements highlighted that the existing informal decision-making regime was not providing adequate decision-making support to WLB in relation to decisions about his accommodation, services and health. I am satisfied that without an interim appointment of a guardian WLB’s interests would not be adequately protected given the differing views of his informal decision-makers.
WM had been providing direct support to her son with a range of care co-ordination and she had the support of the care professional, Ms Kooymans. She would be an appropriate decision-maker for WLB and could protect his interests with decision-making until such time as the Tribunal could determine the substantive application for the appointment of a guardian for WLB.
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