BRH [2017] QCAT 414

CITATION: BRH [2017] QCAT414 PARTIES: BRH (Adult) APPLICATION NUMBER: GAA11982-17; GAA11986-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Goodman DELIVERED ON: 30 November 2017 DELIVERED AT: Brisbane ORDERS MADE: GUARDIANSHIP 1. The Public Guardian is appointed guardian for BRH for the following personal matters only: (a) accommodation decisions; (b) with whom BRH has contact and/or visits; (c) health care of BRH; (d) provision of services for BRH; (e) legal matters not relating to BRH’s financial or property matters. 2. 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. 3. 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. ADMINISTRATION 4. The Public Trustee of Queensland is appointed administrator for BRH for all financial matters. -- 1 of 5 -- 2 5. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 6. This administration 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. NOTICE OF INTEREST IN LAND 7. Before 30 November 2017 the administrator must: (a) Record the appointment as administrator on any property registered in the adults name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: i) A copy of the title search conducted identifying the adult’s property; and ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. (c) If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) Give a copy of this order to the Registrar of Titles and (b) Give a notice to the Registrar about the changes or the adult’s interest in another property. -- 2 of 5 -- 3 ENDURING POWERS OF ATTORNEY 9. Any purported enduring power of attorney for BRH is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made. CATCHWORDS: GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where adult in hospital – where adult cannot make complex decisions – where there are allegations that the adult had been physically abused – where adult is vulnerable to financial abuse – where interim appointment of decision-makers sought – whether the adult was at an immediate risk of harm APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] BRH is a 59-year-old man diagnosed with Korsakoff’s syndrome, liver disease, and alcohol abuse. He was admitted to hospital on 13 October 2017 and his treating doctor provided a report dated 24 October 2017 as evidence that he did not have the capacity to make complex decisions. [2] BRH is married to BZJ. [3] The following applications have been filed in the Tribunal: a) 25/10/17 BSJ, the adult’s sister, filed an application seeking appointment as BRH’s administrator and guardian; b) 30/10/17 BZJ filed an application seeking appointment as BRH’s administrator and guardian. [4] Those applications are yet to be determined. This Tribunal appoints guardians and administrators after a hearing has been held and only if the Tribunal is satisfied that the requirements of s 12(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) have been met. The Tribunal must be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made, and that appointing a decision-maker is necessary to ensure that the adult’s -- 3 of 5 -- 4 needs are adequately met or their interests adequately protected. The applications will be considered in due course. [5] On 25 October 2017, BSJ applied for an interim appointment of a guardian and administrator for BRH for personal and financial decisions. On 30 October 2017, BZJ applied for an interim appointment as administrator for BRH for financial decisions. [6] Appointments of a decision-maker can be made on an interim basis, and prior to determination of the substantive applications, if the Tribunal is satisfied that the requirements of s 129 of the GAA are met. [7] Section 129 provides that if the Tribunal is satisfied, on reasonable grounds, there is an immediate risk to the health, welfare or property of the adult, the Tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the Act, including the notice requirements. The interim order is for a maximum of three months. [8] At the time of the applications for interim orders, the adult remained in hospital. [9] BSJ alleged that: a) BRH had met BZJ 10 weeks previously, and they were married three weeks later. b) There was a DVO in place after police noted incidents of physical abuse. c) BRH appeared to be subject to financial exploitation having recently bought a new car for BZJ, and had relinquished his bank cards to BZJ. d) BZJ was seeking to influence BRH to discontinue his application for a DVO naming her as the respondent. [10] BZJ alleged that: a) She required access to BRH’s accounts to pay urgent and overdue accounts. [11] The Tribunal was provided with a report from the hospital social worker dated 24 October 2017. The social worker stated: a) At the time of his admission, BRH advised staff that his wife had hit him over the head with a frying pan, that he met his wife 10 weeks ago and married after a “whirlwind romance”, and that there was physical abuse in his home; b) A current temporary DVO listed BZJ as the respondent. It was set for hearing on 26 October 2017; -- 4 of 5 -- 5 c) BRH advised hospital staff that he had purchased a penthouse apartment eight weeks ago, and that he owned property in NSW. BRH had advised staff that he wished to have BZJ removed from the apartment but police advised that he would need to vary the DVO if he wished that to happen; d) BZJ had advised that she had met BRH 10 months ago, and married two months later, and that recently BRH had been drinking heavily. She denied physically abusing BRH but indicated that she could not cope with him at home and needed help; e) There was a warrant out for BRH’s arrest on drink driving charges; f) BRH advised he was frightened to return home to BZJ. [12] For the purposes of the interim order, I accepted the medical evidence that BRH demonstrated impaired cognitive functioning. [13] In relation to the application for the interim appointment of a guardian, I was satisfied that there was sufficient evidence of immediate risk to BRH’s health and welfare. BRH’s sister and the hospital social worker had raised significant concerns regarding the relationship between BRH and BZJ. BZJ denied physically abusing BRH. Decisions needed to be made about ongoing contact between them. Concerns were raised about whether it was safe for BRH to return home, and what support services he would require. There was evidence of current legal matters to be addressed – the DVO and the drink driving charges. Ongoing health care decisions would be needed, given BRH’s health conditions. [14] There was a clear dispute amongst the family, and allegations of abuse. I was satisfied that an independent decision-maker was required to ensure that BRH’s needs were met. I appointed the Public Guardian to make decisions about accommodation, legal matters not relating to financial or property matters, health care and the provision of services pending the hearing of the substantive applications. [15] In relation to the application for the interim appointment of an administrator, I was satisfied that there was sufficient evidence of immediate risk to BRH’s finances. BRH was unable to access his funds to pay for his costs of living. Financial abuse was alleged. BZJ stated that she was unable to access sufficient funds to pay for BRH’s bills. A financial decision-maker was needed pending the hearing of the substantive applications. For the reasons discussed above, an independent decision-maker was preferred. -- 5 of 5 --