BDF [2015] QCAT 516

CITATION: BDF [2015] QCAT 516 PARTIES: BDF APPLICATION NUMBER: GAA10167-15 GAA10301 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 20 October 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. DP and DS are appointed jointly and severally as guardians for BDF for the following personal matters only: (a) accommodation decisions; (b) health care of BDF; (c) provision of services for BDF. 2. The Tribunal directs the guardians 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. DP and DS are appointed jointly and severally as administrators for BDF for all financial matters. 5. The Tribunal directs the administrators 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 matter, until the date of the further order, whichever is the sooner. -- 1 of 6 -- 2 7. That before 17 November 2015 the administrators 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. The following enduring power of attorney for BDF is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made: (a) The enduring power of attorney dated 24 September 2015 appointing DP and DS as attorneys for financial, personal and health matters. CATCHWORDS: GUARDIANSHIP – where adult left the care of one family member and made a new Enduring Power of Attorney – where allegations that the adult did not have capacity to grant power under the Enduring Power of Attorney – where adult admitted to hospital and medical treatment team did not recognise the authority of the attorneys to make decisions – where appointment of independent decision-makers sought by hospital and other family members INTERIM ORDER – where decisions required to discharge adult from hospital – where attorneys prepared to act as decision-makers – whether immediate risk of harm – whether attorneys appropriate for appointment as guardians and administrators until hearing of the substantive applications -- 2 of 6 -- 3 Guardianship and Administration Act 2000 – ss14(2) 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] BDF is 81 years old. Her daughters DP and DS had been providing care and support for BDF but in June 2015, BDF was hospitalised and could not live safely by herself at home. It was arranged that another daughter, DH, would provide full time care for her. [2] According to evidence provided to QCAT, DH had sent a text message to DP on 19 September 2015 telling DP to come as soon as possible as BDF was packing her bags to leave. When DP arrived at the house where BDF was living, she saw DH being driven away in a car and she was not able to speak to her. DP found BDF inside the house, visibly upset and sobbing. BDF had packed all her belongings and told DP that she wanted to get out of the house and away from DH. She told DP of things that DH had done and said that had upset BDF. [3] According to the evidence of DP, she stayed with BDF that night and the next morning, DP took BDF to DP’s house because BDF was frightened that DH would return. DP took BDF to a local doctor as the skin around her eyes had flared up from crying and BDF told the doctor about the same things that she had revealed to DP. [4] DP stated that the doctor had asked if BDF wanted to make a statement to the police and when she declined, the doctor gave her some contact details about an elder abuse hotline. DP contacted the elder abuse hotline the following day. [5] BDF returned to see the doctor on 22 September 2015 for a longer check- up. He also conducted an assessment of the cognitive capacity of BDF and gave her a letter that she had capacity. [6] DP stated that on 24 September 2015, BDF had stated that she did not want DH to care for her or to control her finances. BDF was taken to a firm of solicitors and she instructed them that she wanted to remove DH as her attorney. BDF had appointed DH and DP as her attorneys in 2006 but DP had resigned as an attorney at the end of August 2015. [7] BDF signed a new Enduring Power of Attorney appointing DP and DS as her attorneys for financial, personal and health matters on 24 September 2015. The following day arrangements were made for BDF to be placed into Seabrook Retirement Facility at Deception Bay on a respite basis while a decision was made about her longer term care. The rest of the family were informed of the respite placement and the new Enduring Power of Attorney on 26 September 2015. -- 3 of 6 -- 4 [8] DH and a niece of BDF, NM, applied to QCAT for the appointment of a guardian and administrator for BDF. They argued that BDF did not have capacity to grant an Enduring Power of Attorney and they sought the appointment of the Public Guardian and The Public Trustee of Queensland as decision-makers for BDF. They also stated that DP had failed to return BDF to her home on 20 September 2015 after taking her out for breakfast. [9] They also sought an interim appointment of decision-makers until a hearing of the substantive applications could be held. 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 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. [10] DH stated that BDF had not been taken to her regular doctor for important diagnostic tests and that DP had opposed BDF taking certain medication that had been prescribed by her former doctor and heart specialist. DH was reported to be very concerned about health care decisions that may be made by DP. [11] Information was provided by the lawyers for DH that the respite facility had no record of any medical problems about BDF’s hip despite her former GP arranging further tests in conjunction with giving her a cortisone injection into the hip. It was stated that DH was very concerned that if BDF was taken off medication to control her blood pressure, then she was at a real risk of having a stroke. Further, it was stated that the respite arrangements cease after 15 October 2015 and the facility did not have a permanent placement for BDF. [12] QCAT was contacted by a hospital on 15 October 2015. BDF had been admitted and there was a history of extreme conflict within the family. The social worker at the hospital said that she was starting to receive abusive telephone calls from family. The social worker was aware there was a recent Enduring Power of Attorney but she believed that the document was not valid due to a lack of capacity of BDF. The social worker said that the hospital could not get consent about health care issues due to the conflict within the family. The social worker lodged an application for an interim order with QCAT. [13] The social worker provided a copy of notes from a family meeting conducted on 15 October 2015. It was recorded that DH had relinquished the care of BDF on 19 September 2015 after an episode of extreme aggression from her mother and carer stress. DH had stated that this change in care was only to have effect for a day or so. [14] The notes record that the treating doctor at the hospital explained that it would be extremely difficult to care for BDF in the community due to her increasing cognitive and physical decline. The hospital intended to apply to QCAT for the appointment of an independent decision-maker to decide on -- 4 of 6 -- 5 an appropriate discharge destination and for care decisions. The doctor explained that BDF would remain in the hospital until appropriate care and a discharge destination is decided. [15] An application for an interim order was filed by the hospital seeking the appointment of the Public Guardian and The Public Trustee of Queensland on an inteim basis until the hearing. [16] Comments were sought on the applications for interim orders from the attorneys, DP and DS. It was stated to the Tribunal registry staff that Seabrook Retirement Facility would be prepared to accept BDF back into care if there was an appointed decision-maker who could guarantee that family members did not repeat the disruptive issues that had been caused by DH. DS stated that the appointment of the Public Guardian would be good in association with DP and herself. [17] DP informed the Tribunal that she would like to be considered with DS as decision-makers under an interim appointment. She stated that the reason that the hospital sought an interim appointment was because DH had been very abusive to the hospital social worker. [18] The Tribunal was satisfied on the evidence that BDF was at an immediate risk of harm. The care arrangements in place since June 2015 had broken down when DH relinquished care of BDF on 19 September 2015 due to carer stress. Although other family members took BDF into their care, they had to arrange residential respite care to meet the needs of BDF. She had been hospitalised in October 2015 and discharge plans could not be made due to the conflict in the family about post discharge care arrangements. [19] Although BDF had granted a new Enduring Power of Attorney on 24 September 2015, the health care providers at the hospital would not recognise the validity of the decision-making arrangements set out in that Enduring Power of Attorney as they were of the view that BDF did not have capacity to grant the Enduring Power of Attorney. It was essential that adequate support was provided to BDF so that decisions about her care and other associated matters could be made and implemented. Her welfare would suffer as a result of the decision-making uncertainty as no one could take the required steps towards discharge, towards arranging the provision of appropriate aged care and no one could make payment for the care required for BDF. [20] The major issue to be determined was who should be appointed on an interim basis to make decisions for BDF. BDF had indicated a great deal of distress about the actions of DH on 19 September 2015. DP and DS had been asked by their mother to provide her with decision-making support, although the extent of her understanding of an Enduring Power of Attorney is not clear. Both DP and DS were prepared to be appointed on an interim basis. Neither DH nor NM was not seeking to be appointed as a decision- maker. -- 5 of 6 -- 6 [21] The main objection raised by DH against DP and DS being decision-makers for BDF arose from her concern about the ceasing of medication and her failure to continue with medical treatment that had been arranged by DH. However I was not satisfied that the decisions of DP had been contrary to the interests of BDF. There was no evidence that the decisions made by DP had resulted in any adverse health impact on BDF. [22] The appointment of the Public Guardian should only be made when there is no other appropriate person available for appointment.1 I was satisfied that DP and DS were available to be decision-makers until such time as the final hearing of the application for appointment of a guardian and administrator could be held. They were appropriate for interim appointment as they knew the needs of BDF, they had been involved in her care for some years prior to June 2015 and they were family and had the interests of BDF at heart. I was not satisfied that there were sufficient grounds to appoint the Public Guardian in view of the requirements of section 14(2) of the Act. [23] There was no evidence that DP and DS would be inappropriate to make financial decisions for BDF. DP had been managing the financial affairs of BDF for some time before she resigned as attorney at the end of August 2015. It would be appropriate for decision-making about financial matters to be made by the same persons who were appointed to make personal decisions for BDF. [24] If aged care were to be arranged to enable discharge from hospital, then a person would need to be appointed as an administrator to sign the entry documents, arrange for the calculation of the aged care fees and arrange payment of those fees. I found DP and DS were the appropriate persons to appoint as administrators. 1 Section 14(2) of the Guardianship and Administration Act 2000 -- 6 of 6 --