DP [2021] QCAT 271

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DP [2021] QCAT 271 PARTIES: In an application about matters concerning DP APPLICATION NO/S: G44256 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 7 July 2021 REASONS DELIVERED: 20 July 2021 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: On 7 July 2021: IT IS THE DECISION OF THE TRIBUNAL THAT: The application by DD for an interim order is dismissed. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – INTERIM ORDER – whether Tribunal satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of the adult Guardianship and Administration Act 2000 (Qld), s 12, s 118, s 129, schedule 4. Human Rights Act 2019 (Qld), s 9(4). PJB v Melbourne Health (2011) 39 VR 373. APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION On 13 May 2021 an application for the appointment of a guardian and administrator for DP was made by DD, DP’s daughter. On 7 July 2021 DD applied for an interim order seeking appointment as guardian and administrator for DP while the application of 13 May 2021 was “being processed”. Although DD seeks appointment as guardian and administrator, in the application DD indicates that the current arrangements whereby DD assists her mother to make -- 1 of 4 -- 2 personal decisions is appropriate and a guardian is not required.1 DD also states that the adult is not in immediate danger.2 In terms of outcome, DD states that she wants to be able to make financial decisions for her mother so she is able to “buy clothes, car maintenance, medication as she is not able to make those decisions”.3 In the application for an interim order, DD states that she wants the interim order because PD is “requiring residential aged care placement [and] her bank account and bill payments need to be sorted out as soon as possible”.4 Before the Tribunal can make an order appointing a guardian for a personal matter or an administrator for a financial matter, the Tribunal must be satisfied of the elements in s 12 of the Guardianship and Administration Act 2000 (Qld) (the GA Act), namely: (a) the adult has impaired capacity for the matter; (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare and property; and (c) without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected. Section 129 of the GA Act gives power to the Tribunal to make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the Act,5 but only if the Tribunal is satisfied, on reasonable grounds, that: (a) the adult concerned in the application has, or may have, impaired capacity for a matter; and (b) there is an immediate risk of harm to the health, welfare or property of the adult, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.6 The maximum period that may be specified in an interim order is 3 months.7 On 7 July 2021 I made a decision to dismiss the application for an interim order. ‘Capacity for a matter’ is defined in schedule 4 of the GA Act to mean the person is capable of: (a) Understanding the nature and effect of decisions about the matter; and (b) Freely and voluntarily making decisions about the matter; and (c) Communicating the decisions in some way. 1 Application for administration/guardianship appointment or review – Guardianship and Administration Act 2000 filed on 13 May 2021, at [6.3]. 2 Ibid at [6.5]. 3 Ibid at [7]. 4 Application for interim order - Guardianship and Administration Act 2000, filed on 7 July 2021, Part D. 5 GA Act, s 129(2). 6 GA Act, s 129(1). 7 GA Act, s 129(5). -- 2 of 4 -- 3 A medical report by Dr Sue See of the Rehabilitation Unit at the Logan Hospital dated 13 January 2021 states that DP has advanced dementia (mixed Alzheimer’s/vascular dementia) and that she does not have the capacity to have an appropriate conversation, retain information and then make an informed decision regarding her lifestyle medical and financial issues.8 The report states that a Mini-Mental State Exam cognitive assessment was conducted in September 2020, and that DP achieved 16/30. I am satisfied, based on Dr Sue See’s report that DP has, or may have, impaired capacity for a matter. However, I am not satisfied there is an immediate risk of harm to DP’s health, welfare or property, as required by s 129(1)(b) of the GA Act. As outlined above, DD states in her application that DP is not at immediate risk of harm. This, in my view, is consistent with the evidence. DP moved from New South Wales to live with her daughter, DD, in 2018 as she was not managing to live by herself. At the time of the application DP was still living with her daughter and DD was assisting her mother with most activities of daily life, including meal preparation, showering, toileting and dressing. Dr Sue See states in her report that DD has been acting as her mother’s statutory health attorney and that she has been making health care decisions for DP in DP’s best interests including appointments with DP’s GP, renal specialist and the Logan Hospital’s geriatric team.9 I am satisfied that DP is being care for by DD and is not at risk of harm to her health or welfare. Further, there was no indication that DP was at any risk of financial abuse or that DP might do something to her detriment financially. Accordingly, in my view, there is no immediate risk of harm to DP’s property. It follows that the pre-conditions to the making of an interim order under s 129 of the GA Act have not been met. The appointment of a guardian or administrator on an interim basis is a serious incursion on a person’s human rights. I accept that the Tribunal is subject to the Human Rights Act 2019 (Qld) when it makes a decision to appoint an administrator or guardian under the GA Act, being, in the course of making that decision, a ‘public entity’ acting in an “administrative capacity”.10 The appointment of an administrator for all financial matters is a serious step to take because it transfers complete and exclusive control of a person’s estate to the administrator. It is particularly so when the appointment is made on an interim basis because the usual legal protections and rights of adults with impaired capacity do not apply. For example, the adult is not required to be given notice of the application under s 118 of the GA Act,11 has no opportunity to be heard, and is not given a fair hearing. Similarly, the appointment of a guardian for, effectively, all personal decision-making is a decision that seriously undermines the personal autonomy of an individual and their right to make decisions which significantly affect their life. Accordingly, the decision to refuse the appointment of an administrator and guardian under s 129 of the GA Act was compatible with DP’s human rights. 8 Report by medical and related health professionals – Guardianship and Administration Act 2000 filed on 13 January 2021, at [3.2]. 9 Ibid, at [5.1]. 10 Human Rights Act 2019 (Qld), s 9(4)(b); PJB v Melbourne Health (2011) 39 VR 373. 11 GA Act, s 129(2). -- 3 of 4 -- 4 For the above reasons, the application for an interim order was refused. -- 4 of 4 --