WWJ
[2012] QCAT 708
•26 November 2012
| CITATION: | WWJ [2012] QCAT 708 |
| PARTIES: | WWJ |
| APPLICATION NUMBER: | GAA9998-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 26 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. WJS is appointed as administrator for WWJ for all financial matters. 2. 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. 3. 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. 4. Within 28 days of the date of order the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the Registrar of Titles a notice on their prescribed form and a copy of this decision advising the Registrar that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 5. 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 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. 6. The Tribunal notes that the following enduring power of attorney for WWJ is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made: (a) The enduring power of attorney dated 1 November 2000 appointing WRJ as attorney for financial matters. |
| CATCHWORDS: | GUARDIANSHIP – where attorney engaged in a matrimonial dispute that involved property interests of her principal – where attorney indicated an intention to walk away from that dispute – where the adult’s property was at an 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
WWJ is 79 years of age and lives in an aged care facility. He has been diagnosed with Lewy Body dementia. According to a report of Dr Frans Badenhorst, WWJ is unable to make informed decisions or understand the consequences of decisions due to dementia.
WWJ appointed his daughter, WRJ (now Mrs G) as his attorney for financial matters in 2000. According to an application made to the tribunal by WJS, some years before he was diagnosed with dementia, WWJ agreed to lend funds from the sale of his home in Sydney to Mrs G and her husband to enable them to build a house. Mr and Mrs G had agreed to transfer a house property they owned at Cannonvale to WWJ in satisfaction of the loan. This transfer did not occur and the Cannonvale property remained in the ownership of Mr and Mrs G.
Mrs G and her husband are currently engaged in matrimonial proceedings which will have the result of dividing their property between them. One of the assets in the property settlement proceedings is the house at Cannonvale. According to WJS, there is now a dispute about what liability Mr and Mrs G owe to WWJ.
As the attorney for WWJ, Mrs G would have the obligation to act to protect his interests in the matrimonial proceedings. Mrs G had informed WJS that she intended to walk away from the matrimonial dispute and permit her husband to take everything from the marriage. WJS then applied to QCAT to be appointed as the guardian and administrator for WWJ and he also applied for an interim appointment as administrator so he could intervene in the matrimonial proceedings to protect the financial interests of WWJ.
QCAT can appoint a guardian and an administrator to make personal and financial decisions for an adult with impaired decision making capacity. Appointments of decision makers are made after a hearing and when the presumption of capacity has been rebutted. However the Guardianship and Administration Act 2000 does have provisions that permit QCAT 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. In this case WJS submitted that the property of WWJ was at an immediate risk of harm due to the matrimonial proceedings between Mr and Mrs G. He submitted that his father’s interests required someone to intervene in those proceedings to ensure that his assets were not given to either of the parties in those proceedings as part of the property settlement.
WJS submitted that the matrimonial proceedings would be decided before a hearing of his applications for the appointment of a guardian and administrator could be scheduled at QCAT.
I was satisfied that there was evidence that WWJ may have some interest in property held in the name of Mr and Mrs G. I was satisfied that there was a dispute over that property and that property settlement proceedings were pending in which orders could be made that could have an adverse impact on WWJ’s property interests. I was satisfied that the attorney for WWJ had indicated an intention to walk away from the dispute without taking action to protect the financial interests of her principal. I was satisfied that property of WWJ was at an immediate risk of harm.
I was satisfied that it was appropriate to appoint an administrator for WWJ so that effective and immediate steps could be taken to intervene in the matrimonial dispute on his behalf to seek protection of WWJ’s interests. WJS with his knowledge of the material facts and his willingness to become involved on behalf of his father would be an appropriate person to appoint on an interim basis before the applications for guardianship and administration could be listed for hearing at QCAT.
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