DP [2015] QCAT 519

CITATION: DP [2015] QCAT 519 PARTIES: DP APPLICATION NUMBER: GAA12732-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 23 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Guardian is appointed as guardian for DP for the following personal matters only: (a) accommodation decisions; (b) with whom DP has contact and/or visits; (c) health care of DP; (d) provision of services for DP; (e) legal matters not relating to DP’s financial or property matters. 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 as administrator for DP 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) motnhs or, if the Tribunal makes a further order in this matter, until the date of the further order, -- 1 of 5 -- 2 whichever is the sooner. 7. That before 20 January 2016 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the Registrar of Titles a copy of this order and a notice to the Registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. CATCHWORDS: GUARDIANSHIP – where adult had recurrent admissions to a mental health facility as a voluntary patient – where adult had been subjected to domestic violence from his wife and was fearful of her – where discharge plans to be made INTERIM ORDER – where adult unable to appreciate options for care – where risk that adult would be discharged back to his home due to longstanding dependency on his wife – where adult at risk of further domestic violence at his home – whether interim appointment of decision makers independent of the adult’s family would be required Guardianship and Administration Act 2000 – s129 -- 2 of 5 -- 3 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] DP is 72 years of age. In December 2015 DP was a voluntary patient at Currumbin Clinic where he was being treated for recurrent mental illness. According to the evidence provided to the tribunal, his relationship with his wife was not good. It was stated that he was the subject of domestic violence by his wife, there was a domestic violence order made against his wife and that he is fearful of his wife but he was also highly dependent on her. [2] According to the evidence provided to the tribunal, the treating team at the clinic considered that DP required residential aged care. The treating team were of the view that DP could not make decisions about his health and living conditions and applied to QCAT for the appointment of a guardian and administrator for DP. Evidence was provided that DP was diagnosed with an adjustment disorder with depression and anxiety, schizotypal personality disorder and a mild cognitive impairment. [3] In a report by Dr Ng, it was reported that there were significant longstanding environmental factors that severely compromise DP’s ability to make decisions about his health and living arrangements. These factors were longstanding dependency on his wife, physical violence from her, limited financial independence and limited support from his children. The report referred to one cognitive assessment in which DP had attained a score of 71 out of 100, which was described as highly suggestive of dementia. However, Dr Ng reported that observations of DP’s behaviour were more suggestive of mild cognitive impairment than dementia. [4] Dr Ng reported that DP had a compromised ability to make difficult decisions about his health and had a significantly compromised ability to make decisions about lifestyle and accommodation decisions, as he does not demonstrate an understanding of the options available to him. Dr Ng reported that DP had indicated that he did not want to live in his family home but he failed to generate even simple alternatives as to where he could live. [5] Dr Ng reported that DP had a significantly compromised ability to make financial decisions, as he does not demonstrate an understanding of options available to him. DP had indicated to Dr Ng he has very little understanding of his financial position for many years and he had deferred to his wife, which had placed him in a vulnerable position. [6] Dr Ng expressed the opinion that DP did not have capacity for making any complex decisions nor could he make any simple lifestyle/accommodation decisions and financial decisions due to dementia or related disorders and his diagnosed psychiatric conditions and mild cognitive impairment. [7] QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 if satisfied that the adult in -- 3 of 5 -- 4 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. [8] 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. [9] The applicant applied for an interim order appointing a guardian and administrator. In support of that application, it was stated that DP had been admitted three times to the clinic because of his deteriorating mental health in the context of a domestic violence relationship with his wife. It was stated that there were allegations of continual breaches of the order by his wife who assaults DP. It was stated that DP lacks capacity to make reports to the police and he admits to being afraid of his wife but is intimidated to return home with no one to support him on discharge. It was stated that there was a risk of DP self-harming or physically retaliating against his wife. [10] The applicant stated that DP does not follow up suggestions for in-house support services and he revokes his consent for an ACAT assessment, which is a prerequisite for placement into an aged care facility. The applicant stated that the treating team had not consulted with DP’s wife about the application due to the alleged domestic violence and to her previous unreasonable verbal responses when consulted. The applicant stated that she did not have contact details for the son and daughter of DP and that DP had declined to give permission to contact them as he stated that he did not have a good relationship with them as they were close to his wife. [11] I was satisfied that there were reasonable grounds arising from the evidence to establish that there was an immediate risk of harm to DP’s welfare and financial position. He had been discharged home on two earlier occasions from the clinic and had later reported ongoing domestic violence from his wife. It was a reasonable inference to draw that he was not safe to return to his home but that he required a level of care in some out of home environment. [12] I was satisfied that DP could not appreciate the consequences of not making a decision about his care requirements and that he was likely as a result to be discharged by his wife to his home once again. I was satisfied that DP had expressed fear of his wife but at the same time had a longstanding dependency on her. He was likely to agree to what his wife wanted as far as discharge was concerned and that result may not be in his 1 Guardianship and Administration Act 2000 – section 12 (1) -- 4 of 5 -- 5 interests. DP required urgent support for decision making that was independent of his wife and family so that appropriate discharge plans and associated financial decisions could be made until such time as the substantive applications for substituted decision-makers came on for hearing. [13] I was satisfied that the Public Guardian was appropriate for appointment on an interim basis to make a range of personal decisions for DP to facilitate his discharge from the clinic and to respond to any issues arising from his deteriorating relationship with his wife. I was also satisfied that The Public Trustee of Queensland was an appropriate administrator to make decisions about DP’s financial affairs to support any decision made about his accommodation and care. An independent administrator could also takes steps to protect DP’s legal and financial position in the event that any steps had to be taken for DP to separate from his wife due to her continued breaches of the domestic violence order. -- 5 of 5 --