WMJ
[2012] QCAT 595
•24 October 2012
| CITATION: | WMJ [2012] QCAT 595 |
| PARTIES: | WMJ |
| APPLICATION NUMBER: | GAA9006-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 24 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal is satisfied that urgent action is required. 2. The Tribunal, for the purposes of making this Interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Act 2009. 3. The Adult Guardian is appointed guardian for WMJ for the following personal matters only: (a) accommodation decisions; (b) health care of WMJ; (c) provision of services for WMJ; 4. 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. 5. 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. 6. The Tribunal notes that the following enduring power of attorney for WMJ is overtaken by the making of these appointments: (a) The enduring power of attorney dated 8 March 2012 appointing WGG, WGL and BGNJ as attorneys for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP – where attorneys cannot reach agreement about care for adult – where decisions needed for discharge from hospital – where immediate risk of harm 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
WMJ is 81 years of age. She was residing in her daughter’s home when she had a fall on 4 October 2012. She required medical treatment, was frail and was considered to be malnourished and she was admitted to hospital. In order to make arrangements for her discharge from hospital, the hospital discharge staff held a meeting on 15 October 2012 with WMJ’s three children who are her attorneys for personal, health and financial matters.
According to evidence provided by a member of the discharge team, the attorneys could not agree on where WMJ should reside after discharge from hospital. Her daughter, BGNJ, wanted WMJ to return to her home while the other attorneys preferred their mother moving to nursing home care or if she returned home, to have some professional care to meet her care needs. It was stated by the discharge staff that BGNJ had proposed that she, her 16 year old daughter and a friend with an aged care certificate could provide the care WMJ would need at home.
BGNJ had contacted QCAT on 12 October 2012 and had stated that the attorneys could not reach agreement about the care of their mother. She told QCAT that the other attorneys were not listening to her and were ignoring her calls. BGNJ enquired about applying for the appointment of a guardian so a decision could be made about where her mother would live. BGNJ stated that WMJ could not return to her home as the bathroom was not safe but she was arranging for a plumber to come out the next day.
Evidence provided by a physiotherapist stated that WMJ required the use of a rollator walking aid and assistance of two people at all times. WMJ had been assessed as being at a high risk of falls due to her walking pattern. She required constant prompting on step length, foot placement and reverts to a shuffling gait pattern which results in the catching of her feet. She often required steadying of her balance during gait and required the assistance of two people for safe bed to chair transfers. She was reported to be unsteady on turning and walking backwards to a chair or toilet and required assistance from two people to do this safely. It was reported that WMJ has shuffling steps and freezes which increased her risk of falls. WMJ was unsteady and unsafe when using a wheelie walker, even with assistance from two people.
The tribunal was provided with a report from an occupational therapist who had assessed modifications needed for WMJ to reside safely at home. Some major modifications were still to be implemented into BGNJ’s home to meet the needs of WMJ when using the bathroom and toilet.
Members of the hospital discharge team applied to QCAT for the appointment of a guardian and administrator for WMJ on the basis that the attorneys could not agree on decisions about care and financial arrangements about care. There was also an application for an interim appointment in which it was stated that there was an urgent need for decisions to be made to permit WMJ being discharged safely from hospital. It was stated that WMJ remained in hospital because of a lack of agreement on discharge arrangements.
The tribunal can 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. However the Guardianship and Administration Act 2000 does have provisions that permit the tribunal to make appointments on an interim basis without hearing and without deciding the issues in the proceeding.
Section 129 of that Act states that the tribunal can 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.
Evidence had been provided to QCAT that WMJ has been diagnosed with Parkinson’s disease and with moderately impaired cognitive functioning. She is an inpatient in hospital but is ready to be discharged when safe and appropriate arrangements are made for her care. She had appointed her three children as her decision makers but they cannot agree on where she should live after discharge from hospital. Under the terms of the Enduring Power of Attorney, they must make unanimous decisions.
The decision making regime put into place by WMJ is not working. WMJ will have to remain in hospital until a decision maker can make arrangements for her safe discharge. The care needs of WMJ would not be best met in a hospital environment if she no longer requires acute medical treatment and nursing care. I was satisfied that in this case there was an immediate risk of harm to WMJ’s welfare unless a decision was made expeditiously for her discharge from hospital into appropriate care.
Given the gridlock between the attorneys, the only way that such a decision would be made was if a guardian were to be appointed to make an appropriate decision. As a hearing of the applications made by the discharge team would take several more weeks to be held, an interim appointment was appropriate.
I was satisfied that an independent decision maker and not one of the attorneys would be the most appropriate appointee as guardian on an interim basis. The attorneys had entrenched views about care and had manifested an inability to listen to each other’s views. It is essential that the guardian approaches decision making by applying the General Principles and by taking into account the views of WMJ, where possible, the views of her children as well as the views of the treating team at the hospital.
I appoint the Adult Guardian as guardian to make decisions about accommodation, health care and provision of services to WMJ for three months or until further order of the tribunal whichever is sooner.
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