FW [2015] QCAT 528

CITATION: FW [2015] QCAT 528 PARTIES: FW APPLICATION NUMBER: GAA8560-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 28 August 2015 DELIVERED AT: Brisbane ORDERS MADE: The application for an interim order by FD is dismissed. CATCHWORDS: INTERIM ORDER – where an adult was an involuntary patient under the Mental Health Act 2000 – where he was giving away his money to a friend and leaving himself without adequate funds for his own needs – where it was asserted that the adult was at an immediate risk of harm – where the adult had granted decision-making powers to his attorneys under an Enduring Power of Attorney- where the attorneys sought to be appointed as guardians and administrators – whether any need for the appointment of guardians and administrator Guardianship and Administration Act 2000 (Qld) – s12(1), s 129(1) 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] FW is 76 years of age. An application was filed in the Queensland Civil and Administrative Tribunal (Tribunal) by his daughter in August 2015 seeking the appointment of a guardian and administrator for FW. At the time the -- 1 of 4 -- 2 application was made, FW was an involuntary inpatient in a psycho-geriatric ward in a hospital. [2] FW had granted an Enduring Power of Attorney to his three children on 22 August 2014. The attorneys had power to make decisions about personal, health and financial matters when FW was unable to make his own decisions. [3] In the application for the appointment of a guardian and administrator, it was stated that FW was being exploited by a friend, he had not paid his bills for several months and there needed to be some tightening up of access to his funds. It was stated that for some eight to ten months, FW was asked for money by a friend and that he was handing over the bulk of his fortnightly pension. It was stated that the friend has moved into and then out of FW’s house. [4] The outcome being sought in the application was stated to be that FW can live in his own home as long as possible with good care and support, with his bills paid from a bill paying account and he has an allocated amount each fortnight to spend on food, clothing, entertainment and transport. It was stated that his three children wanted to have majority joint decision- making around his care now and into the future as his health needs advance. [5] There was also an application for an interim order. The Tribunal can make appointments of guardians and administrators under the Guardianship and Administration Act 2000 (GAA 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. [6] However, QCAT can make an appointment of a decision-maker on an interim basis for up to three months under s 129(1) of the GAA 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. [7] FD submitted that a three-month interim order should be made while the family submits the guardianship applications. FD submitted that all three children believe that this is the best option to care for him given his risky behaviours. She submitted there was an immediate risk of harm to his finances and possible loss of his residential property. Ongoing financial abuse was said to be occurring leaving him with little to no funds to fund his own basic needs. 1 GAA Act s 12(1). -- 2 of 4 -- 3 [8] It was stated that FW has schizo-affective disorder/bipolar affective disorder and he was placing himself in high risk situations in a variety of ways that impact on his health, welfare and his residential property. Although FW believed that he can manage his bills from his fortnightly pension, it was stated that he has become vulnerable by giving his money away to high risk pursuits, namely mentoring/financing a 29 year old female who asks him for money and who moved into his house and by gambling excessively. It was stated that his insight into his risky behaviours and illness is very limited. [9] FD submitted that FW had agreed to his three children being his attorneys in 2014 and it had been hoped that this may bring further management to support his finances. However FD submitted that the Enduring Power of Attorney was not enough to manage FW and his affairs since his friend was making more financial demands on him. [10] The case manager at the Tribunal called FD but was unable to reach her. The case manager spoke to one of the attorneys who said that there was a difference of opinion between the attorneys about how to manage their father’s affairs. They all wanted to remove the friend from their father’s house. [11] Findings were made on the evidence that FW was an involuntary patient in hospital under the Mental Health Act 2000. According to a health professionals’ report by Dr Khue Tran, treating psychiatrist, dated 11 August 2015, FW had been diagnosed with schizoaffective disorder/bipolar affective disorder and gambling addiction. His decisions about lifestyle and accommodation matters are influenced by chronic mild abnormal mental state and periods of acutely elevated and psychotic mental state. Dr Tran reported that FW has impaired capacity to prioritise the distribution of his income, manage his various bills and plan for the future due to symptoms relating to his chronic mental illness. [12] Dr Tran reported that FW could not make decisions freely and voluntarily and he appears to be influenced by current and past informal social contacts into giving out money and paying for other people’s bills. Dr Tran reported that FW has been and remains vulnerable to financial exploitation by others. Dr Tran expressed the opinion that FW could make both simple and complex health care and lifestyle and accommodation decisions but not complex financial decisions due to his mental illness. [13] The evidence from Dr Tran was accepted. Although it is not necessary to determine FW’s decision-making capacity when considering an application for an interim order, the evidence did establish to my satisfaction that FW was unable to understand the nature and effect of decisions about his financial affairs due to his chronic mental illness. He was prepared to give funds to another person from his limited pension income with no apparent awareness of the consequences this would have on his ability to pay for his own essential financial needs. [14] However the evidence did not satisfy me that there was an immediate risk of harm should a guardian and administrator not be appointed on an interim -- 3 of 4 -- 4 basis for FW. He had already appointed attorneys to make decisions for him when his own capacity to make decisions was found to be impaired. The attorneys are able to make all decisions to resolve the risks that were described in the application made to the Tribunal. The attorneys do not need to be appointed as guardians or administrators to exercise effectively their powers of decision-making. [15] I could not conclude that FW’s needs were not able to be adequately met unless a guardian and administrator were appointed or that his interests would not be adequately protected unless such appointments were made.2 No additional powers would be conferred on the persons who were already FW’s attorneys by their being appointed as guardians and administrators. The precondition to exercise of their powers as attorneys had already arisen i.e. when he is unwell, FW has impaired capacity for financial and accommodation decisions. The appointments were unnecessary on an interim basis. However, the applications would be considered at a final hearing as it is possible that the attorneys may produce evidence that the decision-making regime put in place by FW does not meet his needs after all. [16] The application for an interim order was dismissed. 2 GAA Act s 12(1)(c). -- 4 of 4 --