FMJ [2016] QCAT 65

CITATION: FMJ [2016] QCAT 65 PARTIES: FMJ APPLICATION NUMBER: GAA3905-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 18 April 2016 DELIVERED AT: Brisbane ORDERS MADE: The application by FW for an interim order is dismissed. CATCHWORDS: GUARDIANSHIP – where adult cannot act on information to make decisions – where appointment of a guardian and administrator sought – where offer of placement into aged care facility made – where aged care provider had requested a formal appointment of an administrator before offer could be accepted INTERIM ORDER – where interim appointments sought – whether there was an immediate risk of harm Guardianship and Administration Act 2000 (Qld) ss 12 and 129 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] FMJ is 80 years old. He is a patient in a Brisbane hospital. He has been diagnosed with long-standing delirium with elements of vascular dementia. According to a health professional report, FMJ cannot understand and act on information relevant for decision-making about personal and financial matters. -- 1 of 2 -- 2 [2] His wife, FW, applied to the Tribunal for the appointment of a guardian and administrator for FMJ. She seeks to be appointed to those decision-making roles for her husband. He is unable to return home after discharge from hospital and will require accommodation and care in a residential aged care facility. [3] QCAT can make appointments of guardians and administrators under the Guardianship and Administration Act 2000 (Qld) (the Act) 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 Appointments are made after a hearing by the Tribunal, which usually takes place some three, or four months after the application is received by the Tribunal. [4] FW sought an interim order for appointment as guardian and administrator as an offer of a placement into a residential aged care facility had been made and the aged care provider had requested that a formal appointment of an administrator was made before they would allow FW to accept the offer on behalf of her husband. If a formal appointment was not made, FW submitted that the offer was at risk of being withdrawn. [5] QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the Act 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. [6] The basis on which FW submits that there is an immediate risk of harm to the welfare of her husband is that the offer of a placement in an aged care facility may be withdrawn. If that should occur, FMJ may have to stay in hospital until a hearing of the applications for the appointment of a guardian and administrator. [7] There is no evidence that FMJ is currently at an immediate risk of harm in hospital. In fact, FW stated in her application that her husband was not in immediate danger. Although it would be preferable that FMJ is discharged from hospital once he is no longer in need of acute medical care, the evidence does not lead to a conclusion that he is at an immediate risk of harm. To the contrary, he is safe and well cared for. [8] The Act does not permit interim orders to be made for the sake of convenience or because it would be preferable for the appointment process to be hurried along. If the Tribunal is not satisfied on reasonable grounds that a person is at immediate risk of harm, an interim order cannot be made. The application was dismissed. 1 Guardianship and Administration Act 2000 (Qld) s12 (1). -- 2 of 2 --