BAB [2016] QCAT 503

CITATION: BAB [2016] QCAT 503 PARTIES: BAB APPLICATION NUMBER: GAA11865-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 15 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Guardian is appointed guardian for BAB for the following personal matters only: (a) accommodation decisions; (b) with whom BAB has contact and/or visits; (c) health care of BAB; (d) provision of services for BAB; 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. 4. The Public Trustee of Queensland is appointed administrator for BAB for all financial matters. 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 -- 1 of 4 -- 2 matter, until the date of the further order, whichever is the sooner. CATCHWORDS: GUARDIANS, COMMITTEES, ADMINISTRATORS, RECIEVERS AND MANAGERS – APPOINTMENT –where ad adult has been assessed as having cognitive impairment that impacts on his capacity to make complex decisions – where allegations of elder abuse and financial exploitation – where discharge arrangements not agreed to by family – whether there was an immediate risk of harm – whether interim appointments of decision- makers should be made Guardianship and Administration Act 2000 (Qld), s129(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). REASONS FOR DECISION [1] BAB is a patient in a hospital near Brisbane. He is 85 years old. A social worker at the hospital had applied to QCAT for the appointment of a guardian and administrator for BAB. Prior to his admission to hospital, BAB had been living with a member of his family. [2] According to the applicant, allegations had been made by members of BAB’s family implying there had been improper use of BAB’s finances. It was also stated by the applicant that there had been conflict amongst family members in respect of care arrangements for BAB. [3] Another social worker later sought interim orders appointing a guardian and administrator for BAB. In support of that application, the social worker stated that BAB had been assessed to be at immediate risk of financial abuse/exploitation from his son, BR, and carer TC. It was stated that rehabilitation staff had assessed BAB as being extremely vulnerable to financial abuse, given his poor cognition, age and poor health status. [4] It was also stated that BAB requires high level of care and has been recommended for nursing home placement. Evidence was given that BAB was displaying complex behavioural issues while in hospital including masturbating in front of staff and patients and urinating and defecating frequently on the floor. It was stated that hospital staff have tried to negotiate with BR and the carer regarding the need for BAB to have nursing home placement but that BR and the carer have advised that they will be taking BAB home despite medical staff recommendations. -- 2 of 4 -- 3 [5] It was also stated that there had been notification given to the hospital of elder abuse concerns from February 2016, including allegations of financial abuse by BAB’s family. In support of the application for an interim order, the social worker provided evidence of an incident that had occurred on 7 November 2016 when BAB had been taken from the rehabilitation ward of the hospital by BR and his carer to withdraw money from the bank. The hospital staff had previously told BR and the carer that they had concerns about BAB being taken from the ward, given a pending QCAT hearing and outstanding capacity assessments. [6] When he returned to the ward, BAB informed medical staff that he had withdrawn $3,000 for his bills but he could not recall what the bills were or how much money he had remaining. BR told the hospital staff that he needed BAB’s money to pay the Foxtell bill and for transport so BR could see his children. BR and the carer informed hospital staff that no bills were currently in BAB’s name. [7] The social worker stated that the hospital staff contacted the bank to advise of the QCAT proceedings and of concerns about BAB’s cognition during his hospital admissions. The bank had informed the hospital staff that someone had fraudulently tried to activate the eftpos card of BAB, resulting in a block being placed on his account. The bank had also informed the hospital staff that when BR and the carer had taken BAB to the bank, they were able to withdraw a large sum of money. [8] The Tribunal had been provided with evidence about the decision-making capacity of BAB. According to a report by Dr Khatry, a geriatric registrar, dated 25 August 2016, BAB had been diagnosed with a cognitive impairment. He demonstrated poor insight into his medical conditions. He could understand simple health information and could make simple decisions but would require more support for complex matters. Dr Khatry reported that BAB was able to identify needs relating to his lifestyle and accommodation but was unable to act on information provided or to appreciate consequences of his decision. He cannot problem solve. Dr Khatry reported that BAB could manage basic financial tasks but due to difficulty in completing tasks that require planning and memory, his ability to manage complex financial tasks is likely to be impaired. [9] Dr Khatry concluded in the report that BAB could make simple decisions about his health, lifestyle and accommodation matters and financial matters but could not make any complex decision about those matters due to dementia or related disorders, probably Alzheimer’s dementia. [10] In a further report by Dr Khatry, it was reported that BAB had a significant cognitive impairment of likely Alzheimer’s type. He had partial insight into his deficits but was resistant to accepting external services to help him. His wife had revealed that BAB had a cognitive decline for the last 1 to 3 years and she was concerned about his ability to look after himself. She had noticed a reduced attention to hygiene, poor short term memory and possible neglect with taking medications. -- 3 of 4 -- 4 [11] A neuropsychological assessment had been conducted and a report written on 9 August 2016. It was stated that a full assessment could not be administered due to agitation but the report concluded that BAB has reduced decision-making capacity for complex financial decisions, for complex everyday personal decisions and for complex health decisions. [12] In order to make an appointment of a guardian and administrator on an interim basis under s129(1) of the Guardianship and Administration Act 2000 (Qld) (GAA), the Tribunal must be satisfied on reasonable grounds that the person in question is at an immediate risk of harm to his welfare or property such that an appointment of a decision-maker should be made. [13] The evidence on which the Tribunal can rely establishes that BAB has a significant cognitive impairment which affects his ability to understand and act on information about complex personal and financial matters. He requires support for decision-making about complex matters involving his discharge from hospital into appropriate accommodation to meet his high level of care needs. He needs support for decision-making about his financial affairs to avoid exploitation and abuse. BR, his son, has not demonstrated the ability to provide that support but has placed the financial resources of BAB at risk by withdrawing a large amount of money from BAB’s bank account to use for BR’s own needs. [14] The evidence satisfied the Tribunal that BAB was at an immediate risk of harm unless appropriate decision-making support could be provided to him. It was established to the satisfaction of the Tribunal that a guardian and an administrator were required to be appointed until such time as a hearing of the applications could be held. Decisions should be made to ensure that BAB could have appropriate care and that his financial resources are only used for his benefit. [15] The application sought the appointment of the Public Guardian and The Public Trustee of Queensland. These statutory entitles are experienced in applying the requirements of the GAA when making decisions for an adult with impaired capacity. The Tribunal was satisfied that any decisions required before the hearing of the substantive applications would be made in accordance with the GAA and would ensure that appropriate decision- making support was in place to eliminate the immediate risk of harm to BAB arising from his impaired capacity to make decisions for himself. -- 4 of 4 --