ZRA
[2024] QCAT 572
•18 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
ZRA [2024] QCAT 572
PARTIES:
In an application about matters concerning ZRA
APPLICATION NO: GAA12808-24 MATTER TYPE:
Guardianship and administration matters for adults
DECISION DATE:
18 November 2024
REASONS DATE:
10 December 2024
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
The application for an interim order by Beth Ford is dismissed.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult in hospital – whether interim guardian should be appointed
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult paying rent on a property she may not return to – where adult has insurance matters to attend to – whether interim administrator should be appointed
Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 129(1)
Human Rights Act 2019 (Qld), s 13, s 19, s 25, s 31(1)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
Introduction
This application relates to a woman aged 88 who is in hospital. For privacy reasons, she will be referred to only as ZRA.
On 14 November 2024, hospital social worker Beth Ford filed applications in the tribunal:
(a)for the appointment of a guardian for ZRA – proposing that the Public Guardian be appointed;
(b)for the appointment of an administrator for ZRA – proposing that the Public Trustee be appointed; and
(c)for an interim order – seeking interim appointments of the Public Guardian and the Public Trustee until the substantive applications are heard.
On 18 November 2024 I dismissed the application for an interim order. Miss Ford has requested reasons, which I now provide.
Background
In a report dated 12 November 2024, Dr Taylor Chieza expressed the opinion that ZRA has dementia and has lost the capacity to make her own decisions.
According to information on the tribunal’s file:
(a)ZRA was admitted to hospital after a vehicle collision;
(b)ZRA has a residential lease but the house is being sold and she will not be able to keep living there;
(c)according to a social work assessment by Miss Ford, ZRA ‘will require a Residential Aged Care Facility to meet her supervisory needs’;[1]
(d)ZRA has acknowledged that she does not feel capable of deciding where to go when she is discharged from hospital; and
(e)ZRA does not wish to move to a residential aged care facility.
[1]Document H3 on the tribunal’s file.
Miss Ford said in her application for an interim order:
(a)a guardian is required to make decisions about accommodation because ZRA is ‘at immediate risk of experiencing homelessness’;[2]
(b)a guardian is also required ‘to make arrangements for personal belongings which [ZRA] is worried about’;[3]
(c)ZRA ‘requires an administrator to support with imminent financial decisions and legal matters as [ZRA] was admitted following a car accident to which she was at fault’ and she requires an administrator ‘to support with navigating insurance claims, licence matters and finances etc.’;[4] and
(d)an administrator could terminate the lease to avoid ZRA paying rent on the property ‘which she is not returning to’.[5]
[2]Document H2 on the tribunal’s file, 4.
[3]Ibid.
[4]Ibid.
[5]Ibid.
Statutory framework
The tribunal may appoint an interim guardian and/or an interim administrator if satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned.[6] Even if the tribunal is satisfied of such risk, whether to make an appointment is a matter of discretion. Relevant considerations would include the magnitude of the risk and the impact upon the adult’s autonomy and rights. I also take into account that the tribunal has not yet conducted an oral hearing, as it will for the substantive applications, where ZRA and other active parties have had the opportunity to consider and respond to the material filed.
[6]Guardianship and Administration Act 2000 (Qld), s 129(1).
The Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) acknowledges that an adult’s right to make their own decisions is fundamental to their dignity, and that this right should be restricted to the least possible extent.[7] The Act seeks to strike a balance between the adult’s right to autonomy, and the right of the adult to adequate and appropriate support for decision-making.[8] Rights that would be impacted by the appointment of an interim guardian or administrator include the right of a person to choose for themselves where to live,[9] the right to a fair hearing,[10] and the right to privacy.[11] Parliament has envisaged, though, that human rights may be limited under law in some circumstances.[12]
[7]Guardianship and Administration Act, s 5(a), (d).
[8]Ibid, s 6.
[9]Human Rights Act 2019 (Qld), s 19.
[10]Ibid, s 31(1).
[11]Ibid, s 25.
[12]Ibid, s 13.
Why were interim appointments not made?
I was not satisfied that there was an immediate risk of harm to the health, welfare or property of ZRA sufficient to warrant the interim appointment of a guardian or an administrator.
In relation to accommodation, there would be detriment to ZRA in continuing to pay rent on a property to which she will not return. However, it is not apparent that ZRA would necessarily have a ground to terminate the lease. No decision has yet been made about where ZRA will go when she is discharged from hospital. In any event, it appears that the owner of the property is moving to terminate the lease. If that occurs, and the owner is not prepared to make reasonable arrangements with ZRA about her possessions, and if she is unable to find assistance to pack and store her possessions, there may be a basis at that time for concluding that an immediate risk of harm exists in respect of ZRA’s possessions. If so, that can be the subject of a fresh interim application.
It is not suggested that the hospital intends to discharge ZRA if she has nowhere to go, or to discharge her to her home if the hospital regards that as unsafe.
In relation to issues arising from the vehicle collision, there is no suggestion that ZRA has been charged with an offence. There will probably be steps required in relation to insurance, but it is unlikely that these would be urgent. Whether ZRA should retain her driver licence may require consideration, but no urgency is apparent. Presumably she is not seeking to drive while she is a hospital patient.
Conclusion
Accordingly, I dismissed the application for an interim order.
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