CDJ [2016] QCAT 509

CITATION: CDJ [2016] QCAT 509 PARTIES: CDJ APPLICATION NUMBER: GAA11327-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 29 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by CMD for an interim order is dismissed CATCHWORDS: GUARDIANS – COMMITTEES – ADMINISTRATORS - RECEIVERS AND MANAGERS – APPOINTMENT – where an adult has been largely itinerant and has poor insight into her choice of a homeless lifestyle – where adult has an intellectual disability and gambling addiction – where family has not been able to provide adequate support for accommodation and financial decisions as adult would leave town if restrictions applied to her – where more formal support sought INTERIM APPOINTMENT - whether the adult is at an immediate risk of harm – whether an interim appointment of decision-makers is required Guardianship and Administration Act 2000 (Qld), s 12(1), s 129(1) 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] CDJ is 29 years of age. Until she moved to Brisbane in about September 2016, CDJ had many changes of accommodation over a short period of time and had lived in Proserpine, Mt Isa, Rockhampton, Mackay, Cannonvale, Airlie Beach and Bowen. Her mother, CMD, applied to QCAT for the appointment of a guardian and administrator for CDJ. [2] CMD stated that CDJ had been making inappropriate choices, had been spending her disability pension on gambling and hitchhiking to meet up with men she had found via the internet. CMD stated that CDJ had been stealing from her family and had been lying to them so that it had taken a long time to realise how physically and mentally disabled she was. She had at one stage stolen her uncle’s car and had been charged about that incident. [3] When CDJ moved to Brisbane, she found help from a community organisation. The applicant stated that the family and care providers had been working towards helping CDJ to find independence, dignity and self- respect so she could live in a safe and happy environment. CMD wanted The Public Trustee appointed to help CDJ to understand how to use the disability pension to live healthily and safely. She also sought the appointment of the Public Guardian to make most personal decisions for CDJ. [4] QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) (GAA) if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an appointment, that the decision making needs of the adult will not be adequately met.1 [5] CMD had not filed adequate and up to date information about CDJ’s capacity for making decisions at the time she filed the applications for the appointment of a guardian and administrator for CDJ. QCAT wrote to a doctor who had previously examined CDJ but that doctor could not provide any up to date information as CDJ had last seen the doctor in 2009. [6] QCAT finally was provided with current evidence as the CDJ’s decision- making capacity on 25 November 2016. Dr Kangru reported that CDJ had very poor insight and had accepted homelessness as an appropriate lifestyle choice. Dr Kangru reported that CDJ was unable to manage her financial affairs and that she had a gambling addiction. Dr Kangru was of the opinion that CDJ could not make any complex decisions due to an intellectual disability. [7] CMD also applied for an interim order to appoint a guardian and administrator. She had stated that some intervention for financial management was needed. The family had tried to help with her finances but CDJ would remove all her pension from her bank account before bills could be paid. It was stated that CDJ had a negative attitude to authority 1 Guardianship and Administration Act 2000 (Qld), s 12 (1). -- 2 of 3 -- 3 figures and if the family tried to give her advice, CDJ used to pack up and leave town. [8] QCAT can make an appointment of a decision maker on an interim basis for up to three months under s129(1) of the GAA without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult. [9] The evidence before the Tribunal had established that CDJ lacked insight into the impact of decisions she makes about the use of her disability pension and her lifestyle. She had lived an itinerant lifestyle for many months before the QCAT applications were filed and even after moving to Brisbane, it appeared that she chose to continue to live in a manner that prioritised the use of funds for purposes other than paying for appropriate accommodation. [10] However, the Tribunal was not satisfied that an interim appointment of a guardian and administrator would result in CDJ accepting safer and more appropriate accommodation in the short term. In order to understand the type of support that could be available to her, CDJ should be given the opportunity to attend a hearing and participate in the Tribunal process about the level of support she needs. [11] A guardian cannot force a person to live in accommodation that the guardian decides is appropriate for that person. A guardian does not have coercive powers. There was a history over many months of CDJ living in less than ideal living arrangements but CDJ moves frequently if she decides that restrictions are placed on her. She could continue to do this even after a guardian was appointed and the best chance to reduce that likelihood is to involve CDJ in the Tribunal appointment process as much as possible. [12] The Tribunal considered on the evidence available that an interim appointment of a guardian would likely be futile. In addition, restricting CDJ’s access to her pension by way of an interim appointment of an administrator and without notice to her may result in unintended harm if she had made plans to rely on her income within the bounds of her current itinerant lifestyle. There was inadequate evidence of ongoing gambling and a reasonable assumption could be made that at least some of the pension was being spent on food and other necessities of life. [13] According to the evidence given by CMD to the Tribunal, CDJ was receiving some support from a community organisation. Whether that support was adequate would have to be determined at a hearing. There was an absence of satisfactory evidence that CDJ was at an immediate risk of harm due to abuse or neglect. The Tribunal was not satisfied that an appointment should be made without giving prior notice to CD. The Tribunal could not reasonably find a basis to make an interim appointment to provide decision- makers for CDJ. The application for an interim order was dismissed. -- 3 of 3 --