CB [2017] QCAT 208

CITATION: CB [2017] QCAT 208 PARTIES: CB APPLICATION NUMBER: GAA4337-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 2 May 2017 HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 2 May 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by CJR for an interim order is dismissed CATCHWORDS: GUARDIANS, COMMITTEES, ADMIINSTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where one adult’s daughter acting as attorney for adult under an enduring power of attorney – where application for guardianship and administration made by adult’s son – concern about accommodation decisions and financial transactions raised by applicant. INTERIM APPOINTMENT – whether there is immediate risk of harm to the health, welfare or property of the adult. Guardianship and Administration Act 2000 (Qld) s12 and s129 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] CB is 88 years old and has recently been placed in an aged care facility. Her daughter, TM is her attorney under an enduring power of attorney. CB’s son CR has concerns about his mother’s placement in the aged care facility. He has also made allegations that TM has taken funds from CB’s bank -- 1 of 3 -- 2 account for her own use or that of other family members and that the contents of CB’s unit may have been stripped of valuables. [2] TM has made an application to the Tribunal to have a guardian and administrator appointed for CB and also has made application for an interim order. [3] The Tribunal may if it is satisfied that there is an immediate risk of harm to the health, welfare or property of an adult make an interim order in the proceeding without hearing or deciding the proceeding or complying with the requirements of the Act in accordance with s129 of the Guardianship and Administration Act 2000 (Qld) (GA Act). An interim has effect for a maximum period of 3 months1. [4] The tribunal may appoint a guardian to make decisions about personal matters or an administrator to make decisions about financial matters in accordance with s12 of GA Act under an interim order. By its nature, an interim order is made before the matters that need to be finally considered for those appointments can be decided on at a Tribunal hearing. That is whether the Adult, CB has impaired capacity to make decisions about personal and financial matters2; whether there is a need for decisions in relation to the matter3 and whether without appointment the adults needs will not be adequately met or interests adequately protected4. [5] CR has raised the following issues in the application for an interim order. He would like the financial matters of his mother investigated as CB has told him that her granddaughter has taken $20,000 from her savings and that there have been regular drawdowns on her savings when all of her expenses are direct debited. He believes that it is TM’s daughter and her husband who are making decisions for CB. He was not informed about his mother going to hospital and has been unable to contact TM. CR stated that he was at first told that no decision had been made about care arrangements for his mother and then that a decision had been made to put her in an aged care facility. He stated that he would have been happy to have his mother reside with him and his wife. [6] I note that CB was an inpatient at the time the decision was made for her to transition to aged care. The hospital social worker made the following comments when she forwarded the health professional report to the Tribunal “Please note that BC has an EPOA (enduring power of attorney) and from our point of view, EPOA is acting in CB’s best interests at this time. CB and her daughter, TM who is EPOA have both consented to nursing home placement at, the aged care facility, as this is a familiar environment to CB. 1 GA Act, s 129(4) and s129(5). 2 GA Act, s 12(1)(a). 3 GA Act, s 12(1)(b). 4 GA Act, s 12(1)(c). -- 2 of 3 -- 3 THE QCAT applicant CR has been advised of discharge plan and is agreeable to it.” [7] TM was contacted by the Tribunal registry for her views in regard to the application for an interim order and confirmed that she was the power of attorney. She confirmed that CB was currently being transferred to the aged care facility. She said she totally disagreed with the application that she did not know what he was talking about in relation to the financial allegations and that she did not like the idea of CB living with him. [8] There is a health professional report from CB’s treating doctor stating that she has a diagnosis of dementia and that she is not able to make any decisions. Therefore, without decision-making support she may be at risk of harm. [9] Firstly, in regard to personal matters, there has been a recent accommodation decision made by CB’s attorney with CB’s support and it would appear the support of RC accordingly to the social worker. I am not satisfied that there is any immediate risk of harm in relation to the health or welfare of CB. [10] Secondly, while RC has made some allegations about misuse of CB’s finances those allegations and asked that they be investigated those matters can be tested at a hearing of the application. CB’s finances are currently being attended to by TM as attorney and she is accountable for her actions in that role. If TM has not acted appropriately in her role then the Tribunal will make the appropriate order to protect CB’s interest. I am not satisfied that BC is at risk of immediate harm in relation to her property. [11] I am not able to make an interim order where I am not satisfied that CB is not at immediate risk of harm. Order [12] The application by CR for an interim order is dismissed. -- 3 of 3 --