FH [2020] QCAT 482

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FH [2020] QCAT 482 PARTIES: In an application about matters concerning FH APPLICATION NO/S: G21904 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 7 December 2020 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: On 11 November 2020: The Public Guardian is appointed as guardian for Frederick William Hicklin for the following personal matters only: (a) Legal matters not relating to financial or property matters. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing. This guardianship 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. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – 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 129, Schedule 2 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) -- 1 of 4 -- 2 REASONS FOR DECISION On 5 November 2020 an application for the appointment of a guardian (Public Guardian) for legal matters for FH was made by TS, a case manager with Direct Care Resources (DCR). The application was prompted by a letter from a law firm attaching a notice of claim form pursuant to s 9(3) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). DCR provide care services to FH, in his home. A response from FN was required by 22 November 2020. The Public Trustee who have been appointed administrators advised DCR that there was no need for DCR to obtain legal representation. However, DCR subsequently contacted their own solicitors who “strongly advised” an urgent need for an application to be made to the Tribunal for an interim order appointing a guardian for legal matters. 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 or 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, but only if the Tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult. The maximum period that may be specified in an interim order is three months. On 11 November 2020 I granted an interim order appointing the Public Guardian for legal matters not relating to financial or property matters. These are my reasons. The GA Act categorises matters according to whether, relevantly, they are personal or financial matters.1 “Financial matters is defined in Schedule 2, part 1 as follows: A "financial matter" , for an adult, is a matter relating to the adult’s financial or property matters, including, for example, a matter relating to 1 or more of the following— (a) paying maintenance and accommodation expenses for the adult and the adult’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult; (b) paying the adult’s debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law; (c) receiving and recovering money payable to the adult; 1 GA Act, s 10. -- 2 of 4 -- 3 (d) carrying on a trade or business of the adult; (e) performing contracts entered into by the adult; (f) discharging a mortgage over the adult’s property; (g) paying rates, taxes, insurance premiums or other outgoings for the adult’s property; (h) insuring the adult or the adult’s property; (i) otherwise preserving or improving the adult’s estate; (j) investing for the adult in authorised investments; (k) continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding; (l) undertaking a real estate transaction for the adult; (m) dealing with land for the adult under the Land Act 1994 or Land Title Act 1994 ; (n) undertaking a transaction for the adult involving the use of the adult’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult; (o) a legal matter relating to the adult’s financial or property matters; (p) withdrawing money from, or depositing money into, the adult’s account with a financial institution. “Personal matters” for an adult is defined in Schedule 2, Part 2 to mean: A "personal matter" , for an adult, is a matter, other than a special personal matter or special health matter, relating to the adult’s care, including the adult’s health care, or welfare, including, for example, a matter relating to 1 or more of the following— (a) where the adult lives; (b) with whom the adult lives; (ba) services provided to the adult; (c) whether the adult works and, if so, the kind and place of work and the employer; (d) what education or training the adult undertakes; (e) whether the adult applies for a licence or permit; (f) day-to-day issues, including, for example, diet and dress; (g) health care of the adult; (h) whether to consent to a forensic examination of the adult; Note— See also section 248A (Protection for person carrying out forensic examination with consent). (i) a legal matter not relating to the adult’s financial or property matter; -- 3 of 4 -- 4 (j) a restrictive practice matter under chapter 5B; (k) seeking help and making representations about the use of restrictive practices for an adult who is the subject of a containment or seclusion approval under chapter 5B. The decision to appoint the public guardian is necessary if litigation under the PIPA legislation, to which he is a party, can be categorised as a “legal matter not relating to the adult’s financial or property matters”. If it is a legal matter relating to the adult’s financial or property matters then the personal injuries proceedings can be dealt with by the Public Trustee. The proceedings under the PIPA legislation arise out of an injury sustained to a DCR employee while he was engaged to look after FH at FH’s property. The injury occurred when the employee slipped on a tiled sloped area outside the house, in the rain. FH is potentially liable as the owner and occupier of the place where the injury occurred. The notice of claim against FH states that he owed the employee a duty of care given he had ownership and possession of the property where the accident occurred, the employee was a lawful entrant, the home is used as a care home and the employee was at the property to provide services to the residents of the property. The Public Trustee assists FH to make decisions with respect to his property, which may include decisions paying rates, taxes, insurance premiums or other outgoings for the adult’s property or otherwise “preserving or improving” the adult’s estate. In my view, the matter concerns FH’s liability as owner and occupier under PIPA. It is not a legal matter about FH’s property matters which, in my view, would extend to, for example, contracts for the sale or purchase of real estate by the adult or taking out an insurance policy in respect of the adult’s property. Clearly, it is important that FH be properly represented in the PIPA proceedings. FH has been considered to not have capacity to make advanced or complex decisions regarding legal matters, by his general practitioner of 7 years, Dr AA. Accordingly, I am satisfied there will be an immediate risk of harm to FH if such an appointment is not made. In making that appointment I have taken into account the Human Rights Act 2019 (Qld) (HRA). I accept that the Tribunal is subject to the HRA when it makes a decision to appoint an administrator or guardian under the Act, being, in the course of making that decision, a ‘public entity’ acting in an ‘administrative capacity’.2 While I acknowledge that the appointment of a guardian on an interim basis means that the usual legal protections and rights of adults with impaired capacity do not apply, for example in relation to notice of the application, the opportunity to be heard, and the right to a fair hearing, I am satisfied, that in this instance, there is an urgent need for a guardian for legal matters to be appointed and that this need justifies the compromise to FH’s rights otherwise under the HRA. For the above reasons, I am satisfied that reasonable grounds exist for the making of an interim order under s 129 of the Act. Accordingly, the application for an interim order seeking the appointment of the Public Guardian for legal matters not relating to financial or property matters is allowed. 2 Human Rights Act 2019 (Qld), s 9(4)(b); PJB v Melbourne Health (2011) 39 VR 373. -- 4 of 4 --