ADW [2021] QCAT 453

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ADW [2021] QCAT 453 PARTIES: In an application about matters concerning ADW APPLICATION NO/S: GAA10481-21 MATTER TYPE: Guardianship and administration matters for adults REASONS DELIVERED ON: 2 September 2021 HEARING DATE: 16 August 2021 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER MADE ON 16 AUGUST 2021: The application for an interim order by OTQ is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where application made for interim appointment of guardian – whether immediate risk of harm HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where application made for interim appointment of administrator – whether immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 129 APPEARANCES & REPRESENTATION: All parties are self-represented. 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] On 9 August 2021 ‘OTQ’, a Queensland Health occupational therapist, applied to the tribunal for the appointment of a guardian and of an administrator for ‘ADW’. Those applications have not yet been heard. In some months they will proceed to an oral hearing, after all parties have had the opportunity to view the documents that have been filed and to provide evidence and comments. -- 1 of 4 -- 2 [2] Additionally, on 9 August 2021, OTQ applied for an interim order. She sought the appointment of Public Guardian and of Public Trustee of Queensland, as interim guardian and interim administrator respectively, until the substantive applications are heard. [3] On 16 August 2021 I dismissed the application for an interim order. OTQ has requested reasons for that decision, which I now provide. Background [4] ADW is a 63 year-old woman. She has schizophrenia, and she suffered a stroke some years ago. She lives in accommodation provided by a care organisation. She has a National Disability Insurance Scheme package. [5] OTQ provided reports by health professionals with her applications. These include reports by a neuropsychologist who considers that ADW lacks the capacity to make personal and financial decisions. It is not presently necessary to consider the reports in detail, or to make findings about whether ADW lacks capacity. The neuropsychologist’s detailed opinion satisfies me that the minimum threshold requirement for an interim order – that ADW may have impaired capacity for decision-making1 – is met. [6] OTQ acknowledges that she does not have details of ADW’s income and property. However, she understands that ADW cannot independently withdraw cash, and is assisted by carers to do so. Further, ADW often lends money to co-residents. She has been known to hand out $50 notes, but is unable to monitor who owes her money. OTQ considers that ADW is ‘extremely vulnerable’ and at ‘extremely high risk of being exploited’.2 [7] OTQ also says that there are significant concerns about the support being provided by the carers; that there is suspected elder abuse; and it is suspected that ADW’s money is not being managed appropriately. Further, OTQ says that ADW’s current accommodation is unsuitable for her care needs. It is uncertain whether the NDIS- allocated ratio of care is being provided. Carers have previously been obstructive of attempts to complete assessments. [8] OTQ says that ADW is looking at options to move into a share house with co-residents and carers. OTQ has concerns about the safety of such an arrangement. [9] OTQ says there is significant conflicting information supplied by ADW, her carers and the NDIS support coordinator. OTQ adds that ADW does not have the assistance of family members. [10] In the interim order application, OTQ adds that she has significant suspicion that the carers are not acting in ADW’s best interests and are financially taking advantage of her. [11] ‘CEO’, the chief executive officer of the care organisation, made a written response by email on 13 August 2021. CEO says that ADW has successfully managed her own money in the five years she has known her. ADW has never been late with her bills, to CEO’s knowledge. She can always afford the things she wants to buy. She operates 1 Guardianship and Administration Act 2000 (Qld), s 129(1). 2 Form 10 application filed on 9 August 2021, 10. -- 2 of 4 -- 3 a small business selling jewellery to friends and housemates. She has set up an account to save toward an inheritance for her children, according to CEO. [12] CEO acknowledges that there is an inherent risk of financial exploitation by carers. However, she contends that this risk is mitigated through the involvement of several different carers, outside agencies and the community visitor. [13] CEO says that the organisation has a house rule against inter-resident loans, but she acknowledges that residents do not always obey it. She is not aware of a problem of ADW lending money and not having it repaid. She describes ADW as ‘very assertive’. [14] According to CEO, ADW is receiving the level of care determined by NDIS. ADW’s support coordinator is appealing on ADW’s behalf an NDIS decision not to fund supported independent living. CEO describes ADW as a ‘fantastic advocate for herself’. ADW has been looking at accommodation options in the hope that funding will be forthcoming for supported independent living. Why was the interim order dismissed? [15] The tribunal can make an interim order only if satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult in question.3 [16] There is an emphasis in the Guardianship and Administration Act 2000 (Qld) on preserving people’s autonomy in decision-making as far as reasonably possible.4 Similarly, there is an imperative under the Human Rights Act 2019 (Qld) to not restrict rights and freedoms except where that is demonstrably justified.5 Appointing a substitute decision-maker on an interim basis, at an early stage in the proceeding before the adult and other parties have had time to obtain advice and fully express their views, is a serious step. It should not be taken lightly. Nonetheless, of course, where there is immediate risk of harm of sufficient magnitude, an interim order should be made. [17] OTQ has suspicions and concerns about ADW’s present circumstances. Her views should be given considerable weight because of her position as a professional observer, presumably without any personal agenda. On the other hand, the suspicions and concerns, as presently articulated in the documents filed, are quite broadly stated. There are few specific examples. This makes it very hard to gauge the level of any risks. Further, it seems from the available information that ADW has probably been in her present living circumstances for quite some time. It is not evident that she has suffered serious harm to date. Why there might be some need for urgent intervention at this point is therefore not readily apparent. [18] CEO is inevitably in a less neutral position than OTQ. However, she has given a credible response to the concerns, with concrete examples of ways ADW is managing well. [19] Of course, the evidence of both OTQ and CEO is incomplete and untested at this stage. There will be additional evidence from other sources, including ADW, by the time the 3 Guardianship and Administration Act 2000 (Qld), s 129(1)(b). 4 Ibid, s 5. 5 Human Rights Act 2019 (Qld), s 13(1). -- 3 of 4 -- 4 substantive applications are heard. Firm findings are not possible on the current material. [20] Weighing up the currently-available information, however, I am not of the view that any risks of harm to ADW are so serious or imminent as to warrant appointing substitute decision-makers before a full hearing of the substantive applications is held. Conclusion [21] Accordingly, I have dismissed the application for an interim order. -- 4 of 4 --