ZDA

[2022] QCAT 167

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ZDA [2022] QCAT 167

PARTIES:

In applications about matters concerning ZDA

APPLICATION NO/S:

GAA4161-22
GAA4162-22

MATTER TYPE:

Guardianship and administration matters for adults

DECISION DATE:

4 May 2022

REASONS DATE:

9 May 2022

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Kanowski

ORDERS:

1.     The application by NPW for the appointment of a guardian for ZDA under an interim order is dismissed.

2.     The application by Robyn Ann Wellner for the appointment of an administrator for ZDA under an interim order is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult has no family in Australia – whether an interim guardian should be appointed so she can move overseas

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult may lack capacity to make financial decisions – whether interim administrator should be appointed

Guardianship and Administration Act 2000 (Qld), s 5(a), s 11(1), s 129(1)

Human Rights Act 2019 (Qld), s 13, s 19, s 24

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

1. Two people are referred to by pseudonyms in these reasons, so as not to identify the adult about whom the applications have been made. The adult is referred to as ZDA. Her nephew is referred to as NPW.

2. Robyn Wellner is a solicitor with Wellners Lawyers. She is administering the deceased estate of ZDA’s husband.

3. On 29 April 2022 NPW and Mrs Wellner, as joint applicants, filed applications in the tribunal for the appointment of a guardian and for the appointment of an administrator for ZDA. They propose that NPW should be appointed as guardian, and that Mrs Wellner should be appointed as administrator. Those applications have not yet been heard and determined. It is likely to be some months before they will be heard.

4. Interim applications were also filed on 29 April 2022. NPW filed an application for the interim appointment of a guardian. Mrs Wellner filed an application for the interim appointment of an administrator. On 4 May 2022 I decided to dismiss those applications. The applicants have requested reasons, which I now provide.

ZDA’s circumstances

1. ZDA is 92 years of age. She is currently a patient at a private hospital in Brisbane. Physician Dr Lokugam Seneviratna, in a report dated 28 April 2022, describes ZDA as having gradually declined in cognitive functioning, due to dementia. Dr Seneviratna considers that ZDA can make simple but not complex decisions.

2. ZDA is originally from Germany. She and her late husband migrated to Australia at some point: 33 years ago, I infer, based on information in the husband’s death certificate. The husband died only recently, on 16 March 2022. It seems that ZDA has no children. Mrs Wellner advises that ZDA and her late husband decided about two and a half years ago to sell their home in Brisbane and to return to Germany. However, the Covid-19 pandemic prevented that from occurring.

3. Dr Seneviratna’s report lists a number of physical ailments suffered by ZDA, but I do not know the reason for her current hospitalisation. However, I infer from other material that ZDA must be medically fit for discharge.

4. The applicants have advised that ZDA has no relatives in Australia. Her only surviving family are NPW and a niece, both of whom live in Germany. NPW and the niece have been in Brisbane visiting ZDA. The applicants advise that it is the wish of ZDA and these relatives that ZDA move back to Germany as soon as possible. The niece recently returned to Germany ‘to prepare a place for [ZDA] to be cared for in her home’.[1] NPW is due to fly home to Germany on 8 May 2022. He wishes to bring ZDA with him. ZDA is not able to travel unaccompanied. If she cannot travel to Germany with NPW on 8 May 2022, the applicants say, it is likely that she will have to move to a nursing home in Brisbane. In a nursing home, they say, ZDA would have no family support. She speaks little English. It is vital to ZDA’s wellbeing, the applicants argue, that she travels to Germany with NPW on 8 May 2022.

   [1]Document H5 on the tribunal’s file.

5. In effect, the applicants submit that the tribunal should appoint NPW as interim guardian and Mrs Wellner as interim administrator, so that the return of ZDA to Germany on 8 May 2022 can be facilitated.

6. Mrs Wellner’s financial management plan indicates that it is intended that guardianship and administration appointments will also be sought in Germany. The plan also indicates that if Mrs Wellner were appointed administrator in Queensland, she would sell ZDA’s home in Brisbane once the title registration has been adjusted to show ZDA as sole owner following her husband’s death. Mrs Wellner as administrator would transfer the proceeds of sale, and ZDA’s other funds, to a German administrator.

Does Mrs Wellner have standing to bring applications?

1. Applications for the appointment of guardians and administrators, and for interim orders, are made under the Guardianship and Administration Act 2000 (Qld) (‘G&A Act’). An application can be made by the adult in question, or by an ‘interested person’.[2] An interested person is ‘a person who has a sufficient and genuine concern for the rights and interests’ of the adult.[3]

   [2]G&A Act, s 115(2).

   [3]Ibid, Schedule 4, definition of ‘interested person’.

2. It can be assumed that NPW meets that definition, but it is not obvious that Mrs Wellner does. She is administering ZDA’s late husband’s estate, but the material does not indicate whether she has any other relationship with ZDA. However, it is not necessary to resolve at this point whether Mrs Wellner has standing to bring applications in respect of ZDA. This is because I consider that her application for an interim order should be dismissed on a different basis.

Legislative framework for interim orders

1. An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[4]

   [4]Ibid, s 129(1).

2. Clearly, then, an interim order cannot be made simply for convenience. Nor can it be made just because it might produce an outcome that appears, on the papers, to be a beneficial one for the adult.

3. Even where risk exists, the making of an interim order is discretionary. The degree of risk will be relevant. An interim order should not be too readily made, for a number of reasons. These include the presumption of capacity in the G&A Act,[5] and the acknowledgement in the G&A Act that an adult’s right to make their own decisions is fundamental to their dignity.[6] Significantly, an interim order usually must be decided without the adult and other parties having had an opportunity to present evidence, test evidence, and make submissions at an oral hearing.

   [5]Ibid, s 11(1).

   [6]Ibid, s 5(a).

4. A decision to appoint a substitute decision-maker will affect the adult’s human rights, such as their freedom to choose where to live[7] and their property rights[8] (by restricting their control of their property). Human rights may be limited only in particular circumstances.[9]

   [7]Human Rights Act 2019 (Qld) (‘Human Rights Act’), s 19.

   [8]Ibid, s 24.

   [9]Human Rights Act, s 13.

5. Similarly, the G&A Act requires a least-restrictive approach.[10] General principles to be applied under the G&A Act involve respect for individual autonomy and for the role of families; acknowledgement of the importance of maintaining existing supportive relationships and of maintaining the adult’s cultural and linguistic environment; taking into account the views, wishes and preferences of the adult; and so on.[11]

   [10]G&A Act, s 5.

   [11]Ibid, s 11B.

6. Having said that, of course if there is an immediate risk of harm of sufficient magnitude to require an interim order, the tribunal should make such an order.

Why were the applications for interim orders dismissed?

1. There is evidence from a physician that ZDA has impaired capacity for personal and financial decision-making. Although this evidence is untested, it affords reasonable grounds for me to be satisfied that ZDA may have impaired capacity. Accordingly, I can make interim appointments if I am satisfied that there is an immediate risk of harm to the health, welfare or property of ZDA.

2. It is implicit in the interim applications that ZDA will be unable to travel to Germany on 8 May 2022 unless interim appointments are made. I am not convinced that she would be unable to travel, at least from a practical perspective. However, the applicants may be of the view that, in light of Dr Seneviratna’s opinion about capacity, it would not be proper to relocate ZDA to another country without official sanction. In any event, I will proceed on the assumption, without deciding, that ZDA is unable to travel to Germany without an interim guardian, at least, being appointed.

3. ZDA is currently in hospital, and if she needs to leave hospital she can go to a nursing home in Brisbane. There is no suggestion that her funds are inaccessible for this purpose.

4. If in due course ZDA or a guardian decides that she should move to Germany, she will be able to do so on a later date. She has substantial assets. She will be in a position to pay for a chaperone to accompany her, whether that be a paid companion or a relative who travels over from Germany for the purpose.

5. On the available material, it appears that it may be beneficial for ZDA to travel sooner rather than later to Germany. However, that material may be incomplete. For example, ZDA may have supportive friends in Brisbane. There is no detail about the suitability of the proposed care in Germany, other than that ZDA would be living with her niece.

6. In any event, the relevant test is not the balance of convenience, but whether there is an immediate risk of harm to ZDA’s health, welfare or property.

7. It is arguable that there is an immediate risk of some harm to ZDA’s welfare if she has to stay in a nursing home in Brisbane, perhaps for just a few months, rather than living with family in Germany. However, such a risk is not one of sufficient magnitude to justify interim appointments. This is particularly so in circumstances where the tribunal would be enabling, by way of a decision at a preliminary stage, a change of residence across the globe. Relocation would not be readily reversible. It would occur without ZDA having had an opportunity to obtain other medical opinions about her decision-making capacity, if she wishes to contest Dr Seneviratna’s opinion. It would occur without the tribunal having had an opportunity to explore whether the proposed decision-makers are likely, if appointed, to apply the general principles in reaching decisions, and whether other persons would be more suitable for appointment if a guardian and/or an administrator is required.

Conclusion

1. For these reasons, I decided to dismiss the applications for interim orders.