WWB - [2012] QCAT 175

CITATION:

WWB [2012] QCAT 175

PARTIES:

WWB

APPLICATION NUMBER:

GAA767-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

2 February 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. BD is appointed guardian for WWB for the following personal matters only:

(a) accommodation decisions;

(b) health care of WWB;

(c) provision of services for WWB.

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 Public Trustee of Queensland is appointed administrator for WWB for all financial matters.

7. 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.

8. 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.

9. The administrator shall within twenty-eight (28) days:

a) identify, by way of a search of the records held by the Registrar of Titles or other means, any interest in real property registered in the name of WWB (“the adult”).

b) lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order.

c) provide to the tribunal:

(i) a copy of the search of records held by the Registrar of Titles referred to above and;

(ii) a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order.

10. If any change is made in an interest in land held by WWB (“the adult”) which is the subject of this administration order or if there are any further dealings in land on behalf of the adult by the administrator, the administrator shall lodge with the Registrar of Titles within fourteen (14) days of the finalisation of such interest a copy of this order and a notice (in a form prescribed by the Registrar of Titles), concerning such changes or dealings.

11. The administrator shall pay, on behalf of the adult, any fee associated with the above notices.

12. The tribunal notes that any purported enduring power of attorney for WWB 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 appointment(s) have been made.

CATCHWORDS:

GUARDIANSHIP AND ADMINISTRATION – where evidence adult had impaired capacity – where decisions had to be made – where immediate risk of harm established

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

WWB was admitted to hospital on 11 December 2011 with a serious illness. He developed confusion during the course of treatment for that illness. After reduction of medication, he continued to exhibit confusion and delirium.
WWB owns a house and has significant cash assets. He had lived alone prior to hospitalisation and his family live in another State. His mother had come to Queensland around Christmas to be with her son.
An application was made to QCAT by a social worker at the hospital for the appointment of a guardian and administrator for WWB. There was also an application made for an interim appointment of a guardian and administrator. Section 129 of the Guardianship and Administration Act 2000 gives QCAT power to make an interim appointment of a guardian or administrator if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health, welfare or property of an adult.
Appointments of decision makers without a hearing and without notice to an adult should be made only when circumstances compel such action. Section 129 of the Guardianship and Administration Act 2000 seeks to ensure that an adult with impaired capacity is provided with adequate and appropriate support for decision making if there is immediate risk of harm occurring prior to a hearing of an application for the appointment of a substituted decision maker.
QCAT was informed that arrangements had been in place whereby WWB would tell a friend to take money from his bank account to pay his bills. However, while he was in hospital, no one was responsible for monitoring WWB’s mail and he could not oversee his accounts due to his confusion and delirium. The applicant expressed concern that WWB was vulnerable to abuse while he was unable to oversee his affairs as his acquaintances may know his PIN number and could exploit the situation.
The applicant stated that WWB had told medical staff that he did not want his mother and family to manage his money. The applicant was uncertain whether this statement had been made under the influence of his delirium.
The applicant stated that WWB wanted to go home but medical staff were concerned it was not in his best interest to go home as he had displaced his new prosthetic hip on two occasions since surgery in January 2012. He was focussed on going home despite the risks.
The applicant stated that past history of WWB suggests that he could be gullible and that he had been exploited by people in his social network.
On 1 February 2012 the case officer at QCAT received an email from the applicant reporting on a conversation she had had the previous day with WWB. She reported that WWB did not want his mother to be his administrator as he considered that she was starting to suffer from dementia and she was getting on in age. The applicant proposed The Public Trustee of Queensland as an appointee.
The applicant also reported that WWB may have given an Enduring Power of Attorney to his sister but there was no evidence from that person that she was an attorney or willing to act in such a role. The Tribunal had been provided with a copy of a document in which WWB had declared on 4 February 2010 that he had wanted to appoint his sister as his attorney but the document was not a valid Enduring Power of Attorney.
On 1 February 2012 QCAT received an application from BD seeking the appointment of an administrator for WWB and proposing herself for that role.
The Tribunal was satisfied that medical evidence could establish that WWB did not understand the nature and effect of decisions about his personal and financial matters due to his ongoing confusion and lack of insight into the consequences of his actions.
There was evidence that WWB was at immediate risk of harm as his bank account could be accessed by his acquaintances without his supervision and arrangements were not in place for the payment of his bills. WWB was seeking to be discharged from hospital when he was exhibiting confusion and when arrangements for his care had not been made.
It was appropriate to reduce the risk of harm of WWB insisting on being discharged without proper care arrangements by appointing a guardian on an interim basis to make decisions about his accommodation, health care and services provided to him. The proposed appointee was BD. As BD was already involved in discussions with the hospital medical staff, she was aware of the range of decisions that would need to be made. It was appropriate to appoint BD as guardian on an interim basis.
It was appropriate to reduce the risk of harm of unauthorised access to WWB’s property by appointing an administrator on an interim basis to make decisions about his financial affairs. The applicant had proposed the appointment of a decision maker independent of the family in view of WWB’s expressed views against his mother and family handling his financial affairs.
It was appropriate to take the expressed views of WWB into account but with some caution due to his confused state. His views were not the sole determinant of the choice of administrator. The Public Trustee is experienced in handling financial matters for persons with impaired capacity. The Public Trustee has the systems in place to immediately secure the assets of a person against risks of harm. Family members generally need to take time to become familiar with the correct methods to adopt to secure assets at risk.
As the evidence suggested that several of WWB’s acquaintances had the ability to access his bank account, it was considered that the appointment of The Public Trustee would be more likely to provide the protection needed for WWB’s financial affairs than would the appointment of a family member who had not been aware of the details of WWB’s affairs until recently. These factors in conjunction with the twice expressed wishes of WWB against his family’s involvement in his financial affairs resulted in the appointment of The Public Trustee of Queensland until an oral hearing of the applications could take place.