BW [2015] QCAT 517

CITATION: BW [2015] QCAT 517 PARTIES: BW APPLICATION NUMBER: GAA12322-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 14 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. FA is appointed guardian for BW for all personal 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. CATCHWORDS: GUARDIANSHIP – where adult is 50 years old and has an active social life in the community – where his father was about to be placed into aged care – where a decision had been made to place adult into aged care with his father – where decision maker had no formal authority – where part of support network opposed the placement of adult into aged care and sought appointment of a guardian INTERIM ORDER – where placement was to be made the following day – where appointment sought of guardian on an interim -- 1 of 4 -- 2 basis – whether there was an immediate risk of harm to the welfare of the adult Guardianship and Administration Act 2000 – s129 and General Principles 4 and 5 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] BW is 50 years old. BW has Down Syndrome. He resides with FA and FB and has been attending regular day services near Brisbane for about 15 years. He has friends and other contacts in his local community and engages in a wide range of social activities. [2] Prior to moving in with FA, BW had been residing with his father, BF who is 92 years old. According to the evidence of FA, a decision had been made by the attorney for BF to place BW into a nursing home where BF had been placed. The placement of BW was to take place on 15 December 2015. [3] FA filed an application for the appointment of a guardian for BW. An earlier application for the appointment of a guardian for BW had been considered by QCAT on 2 September 2014 but had been dismissed on the basis there was no need at that time for a guardian to make personal decisions for BW. He could rely on his considerable support network for support with personal decision-making. The Public Trustee of Queensland was appointed as his administrator for financial matters on 2 September 2014. [4] FA also applied for an interim order appointing her as guardian for BW. QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129(1) of the Guardianship and Administration Act 2000 (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. [5] FA submitted that BW was at immediate risk of harm to his health and welfare due to his father’s attorney purporting to make decisions about where BW was to live and what care was provided to him. In particular she submitted there was immediate risk due to the decision made to place BW, at 50 years of age, into an aged care facility with his 92 year old father from 15 December 2015. FA submitted that BW would not be able to attend his regular day services if that decision were to be implemented. [6] FA gave evidence that she had spoken to BF to argue against the proposed placement of BW into aged care but he had not agreed with her arguments. She stated that BF did not respect his son as an independent man who has a community of people who are his friends and on whom BW relies for his quality of life. -- 2 of 4 -- 3 [7] FA stated that she had consulted with a case manager at the Department of Disability Services and with the manager of the Adult Day Service where BW attends day services. Both agreed with the application for the interim appointment of a guardian. [8] FA stated that she was only told on 11 December 2015 that BW’s placement into aged care would be made the following Tuesday. She had not been consulted earlier about his future accommodation and care arrangements despite being part of the support network for BW and despite being one of the persons identified by both BF and BW as future decision-makers for BW at the 2014 QCAT hearing. Decisions about BW’s accommodation and care were instead being made by a person who had no apparent authority to so do. An attorney for BF has no formal authority in that role to make any decisions about BW. [9] I was satisfied that there was urgency in putting into place adequate decision-making support for personal decisions for BW. I was satisfied that BW has an intellectual disability associated with Down Syndrome. I was satisfied that due to his intellectual disability he would not be able to understand more complex information about accommodation and care options nor could he evaluate those options and appreciate the consequences if he were to make a choice between options to live with his father in a nursing home or to continue to live in the community with friends. I was concerned that due to his intellectual disability he would not be able to make decisions about complex issues such as his future accommodation and care on a free and voluntary basis as he relies on others for a wide range of decisions. [10] I was satisfied that the evidence disclosed decision-making being made for BW that did not appear to take into account the General Principles set out in the Act nor the provisions of the Act itself. The evidence disclosed that contrary to General Principle 4, BW’s right to be a valued member of society was not being recognised and taken into account in the decision-making being made for him. Contrary to General Principle 5, the evidence satisfied me that the persons responsible for placing an actively social 50 year old man into aged care had not taken into account the importance of encouraging and supporting BW to live a life in the general community and to take part in activities enjoyed by the general community. [11] According to FA, personal decision-making power for BF was being exercised by his attorney. The exercise of any personal decision-making powers by an attorney cannot commence until such time as their principal has lost capacity to make those decisions for himself. Presumably then BF has impaired decision-making capacity for personal decisions. [12] As such, BF would not be able to effectively exercise informal decision- making about complex matters for his son, William as well as being unable to make decisions for himself. While his attorney can make personal decisions for BF, that person has no authority to make decisions for BW. The evidence satisfied me that his support network was unable to effectively give decision-making support to BW due to the actions of BF and his -- 3 of 4 -- 4 attorney and that a guardian would be required on an interim basis to provide immediate support for BW. [13] I was satisfied that there was an immediate risk of harm to the welfare of BW. He was about to be paced into aged care on 15 December 2015. This environment would not provide him with a proper opportunity to take part in day services that he had enjoyed for some 15 years and would remove him from the social and active life in the community that he has enjoyed for many years. The known boundaries of his life would immediately contract and his companions would be substantially older persons with few interests in common with him. [14] In 2014 FA was one of the persons who were identified as being potential persons to make decisions for BW by BF. I considered that on an interim basis she would be appropriate for appointment as a guardian to make personal decisions until the hearing of the substantive application given her earlier endorsement by the family and her ongoing close contact with BW as a housemate of his. [15] At the final hearing of the guardianship application, all persons with an interest in taking on a decision-making role could then put their case at an oral hearing of QCAT. FA does not gain any benefit for acting as a guardian on an interim basis. Indeed, she may jeopardise her potential for appointment on an ongoing basis if she fails to exercise her powers in accordance with the law. [16] As it appeared that a range of personal decisions would be required to be made up to the hearing (accommodation, services, health care, day to day issues, contact) and the lack of an effective informal support network, it was appropriate to give the guardian authority to make all personal decisions so that support could be given to BW for decision-making in all circumstances up until the hearing. -- 4 of 4 --