DMN [2016] QCAT 43

CITATION: DMN [2016] QCAT 43 PARTIES: DMN APPLICATION NUMBER: GAA1270-16 GAA1271-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 10 February 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by DD and DS for leave to withdraw as administrators for DMN is granted. 2. The Public Trustee of Queensland is appointed administrator for DMN for all financial matters. 3. 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. 4. 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. CATCHWORDS: GUARDIANSHIP – where adult had family appointed as guardians and administrators under an interim order – where family sought to resign from the interim appointments as they could not make effective decisions for the safety and financial security of the adult INTERIM ORDER – where the adult was living in unsafe and unhygienic conditions and refusing to go to hospital – whether the adult was at an immediate risk of harm - whether -- 1 of 4 -- 2 leave to resign should be given and new appointments should be made so there was proper decision-making support for the adult 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] DMN is 78 years of age. She had a stroke in 2014 and subsequently was diagnosed with a dementia type illness with paranoid ideation. Her daughter, DD, had been her carer for about three years but as a result of her paranoid ideation, DMN has turned against her daughter and has accused her of wrongdoing. [2] DD made an application to QCAT seeking the appointment of a guardian and administrator. She stated that her mother had stopped paying bills but continued to buy expensive items. DMN gave internet access to her bank account to her grandson who has a drug problem and he had withdrawn all her pension from her account. [3] DD also stated that DMN had little insight into her care needs and she had cancelled some in-home services which she believed she no longer needed. It was also stated that DMN had become aggressive to her daughter and son and refuses help from them. [4] DS applied for an interim order appointing guardians and administrators for DMN. QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 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. [5] However, QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 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 evidence provided to the Tribunal established that DMN had refused services in her home, she was aggressive towards her son and daughter and had placed her trust in her grandson who has a drug problem and who had recently taken all her fortnightly pension from her bank account. The medical evidence established that DMN has limited ability to understand and act on information about her lifestyle, accommodation and financial 1 Guardianship and Administration Act 2000 – section 12 (1) -- 2 of 4 -- 3 decisions and that she could not make any complex decisions due to her dementia. [7] I was satisfied that there was sufficient evidence that DMN was at an immediate risk of harm to her welfare and to her financial position. She had cancelled services that had enabled her to live safely at home and without those services, she was likely to neglect her health and her wellbeing. She had placed her trust in her grandson and given him access to her bank accounts with the result that he had withdrawn all her pension shortly after pension payment day. She was likely to continue to place herself at harm as she lacked insight into her functioning deficits. [8] DD and DS were appointed as guardians and administrators for DMN on an interim basis for three months by order made on 6 January 2016. [9] On 12 January 2016 the Tribunal was informed that DMN was quite unwell and she was refusing to go into hospital. The Tribunal was informed that the guardians were having difficulty fulfilling their role. It was reported that DMN was incontinent and that her soiled clothes were placed in cupboards as DMN could not deal adequately with them. A neighbour had reported that DMN’s kitchen was very dirty and that DMN kept food in the microwave for hours before eating it. [10] It was also reported that DMN had taken out a $16,000 loan for her grandson to buy a car. As the interim administrator had frozen dealings on DMN’s bank accounts, and had set up a new account into which her pension was paid, concerns were raised about a potential threat to DMN’s safety that could emanate from DMN’s grandson once he became aware of the new financial arrangements. [11] DD and DS applied to QCAT seeking leave to resign as guardians for DMN as they had been unable to make effective personal decisions for her. It was stated that her living conditions in her home were squalid and that she needed hospitalisation to provide adequate medical care for her. DMN refused to go to hospital and the guardians believed they had exhausted all avenues open to them to arrange proper care for DMN. [12] DD stated that DMN was very angry towards her family and was being unreasonable. DD stated that there are concerns that DMN had infections, was malnourished and was in danger of food poisoning but she had refused any help. DD sought the appointment of the Public Guardian following the lack of success that the guardians had achieved in making effective personal decisions for DMN. DS supported the appointment of the Public Guardian. [13] The evidence established that DMN was still at an immediate risk of harm as she was living in unsafe and unhygienic circumstances and she continued to refuse to go to hospital and to allow support services into her home. I was satisfied that the appointed guardians had not been able to make decisions that could ensure the proper care and safety for DMN. Leave was granted on 13 January 2016 for the appointed guardians to -- 3 of 4 -- 4 resign and the Public Guardian was appointed on an interim basis to make decisions about accommodation, contact, services and health care for DMN. [14] On 9 February 2016 DD and DS applied to resign as the administrators for DMN and sought the appointment of The Public Trustee of Queensland as her administrator on an interim basis. In support of that latest application, DD stated that DMN’s grandson is addicted to ICE and had been charged with supply of drugs. He had arranged for DMN to take a personal loan of $16,000 to buy a car which was registered in the name of DMN. DD stated that the grandson had refused to register the car in his name and he had incurred unpaid toll charges in excess of $400 that were a liability of DMN. He had also incurred speeding fines and Driveway Run Off fines for non- payment of fuel. [15] DD stated that handling the financial affairs of DMN was beyond the current ability of the appointed administrators to carry out. She described the situation with DMN’s grandson as too volatile for the family to deal with. [16] I was satisfied that the persons appointed on an interim basis were not able to protect adequately the financial position of DMN. While the car, registered in her name, was being used by her grandson, it was likely that DMN would continue to incur liability for fines and toll charges and she may lose the value of the asset entirely if it was to be damaged or confiscated by the police. It was unclear whether the loan liability had been completely waived or was still in existence in some form although DD had stated that the bank had acknowledged that the loan should not have been made and had waived the debt. [17] I was satisfied that the evidence had established that DMN was still at an immediate risk of harm to her financial position while her grandson was in possession of the car and incurring legal liabilities in the name of DMN. The appointed administrators from the family were unable or unwilling to take steps to prevent further liability from being incurred by DMN. It was appropriate that an administrator was appointed who could take measures to reduce the risk of harm by making the appropriate decisions with the Department of Transport and the police to ensure that DMN was protected from the consequences of the reckless and unlawful behaviour of her grandson. [18] The Public Trustee of Queensland was appointed under an interim order to make all financial decisions for DMN. In this way the administrator could take steps to set aside fines and tolls incurred in the name of DMN and could initiate action to either secure the car as an asset of DMN or could transfer the car out of her name, if the loan had been fully waived. The Public Trustee could also start the process of investigating and assessing the financial position of DMN so that aged care arrangements could be readily put into place if DMN could not continue to live safety at home. -- 4 of 4 --