FJ [2014] QCAT 394

CITATION: FJ [2014] QCAT 394 PARTIES: FJ APPLICATION NUMBER: GAA5889-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 26 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adult Guardian is appointed guardian for FJ for the following personal matters only: (a) accommodation decisions; (b) with whom FJ has contact and/or visits; (c) health care of FJ; (d) provision of services for FJ. 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 administrator for FJ 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) months or, if the Tribunal makes a further order in this -- 1 of 4 -- 2 matter, until the date of the further order, whichever is the sooner. 7. That before 24 July 2014 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. The Tribunal notes that the following enduring power of attorney for FJ 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 appointment(s) have been made: (a) The enduring power of attorney dated 17 November 2010 appointing FD and FG as attorneys for Application for financial, personal and health matters. CATCHWORDS: GUARDIANSHIP – where adult had appointed joint attorneys – where attorneys in conflict – where one attorney is carer of adult – where appointment of guardian and administrator sought – where carer is subject to a domestic violence order – whether adult is safe from harm INTERIM ORDER – where satisfied immediate risk of harm – whether independent decision makers required until hearing Guardianship and Administration Act 2000 s 129 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 2 of 4 -- 3 REASONS FOR DECISION [1] FJ is 80 years of age. She lives with her son, FG, who is her carer. FJ had appointed her sons FG and FD to be her joint attorneys for personal, health and financial matters when she no longer has capacity to make her own decisions by an Enduring Power of Attorney dated 17 November 2010. [2] FD applied to QCAT for an order to change the Enduring Power of Attorney to remove FG as an attorney on the grounds that the attorneys cannot work together to make decisions for FJ. A hearing of the application for an order about the Enduring Power of Attorney was held on 3 June 2014 but no final orders were made and a direction was made that FD was to file an application for the appointment of a guardian and administrator for FJ. The hearing was adjourned to 27 August 2014. [3] An application for the appointment of a guardian and administrator was filed by FD on 12 June 2014. In that application he sought the appointment of the Adult Guardian and The Public Trustee of Queensland. [4] On 20 June 2014 FG telephoned a tribunal registry officer and told her that he intended to kill himself. The registry officer informed FG that she would be obliged to call an ambulance because of his threat of self harm. FG informed the registry officer that he would not harm himself as he did not want an ambulance called for him. [5] FD then informed the tribunal by letter dated 22 June 2014 that an incident had occurred on 16 June 2014 involving FG acting in a threatening and intimidating manner towards FJ. According to FD, FJ had been verbally abused by FG through that day and in the afternoon she had been pushed over by FG and she had landed on her bed. [6] FD reported that FJ had telephoned him and stated that she was very worried about FG’s actions and that he was out of control. FJ then left her house and went to FD’s house nearby. FG had followed FJ and had attempted to gain entry to FD’s house but he had been refused entry. The police arrived and had to threaten to use a taser before FG calmed down. [7] The following day a protection order was taken out against FG for two years. He is required to be of good behaviour and not commit domestic violence against FJ, FD and his wife. [8] FD applied for an interim order to appoint decision makers for FJ until the hearing of the applications on 27 August 2014. He stated that FJ was not safe and that she was under stress. FD submitted that FJ should be moved to an aged care facility for her safety as FG had a violent temper and displayed fits of rage in which he threatens the family and his mother. FD submitted that FG was totally unpredictable. -- 3 of 4 -- 4 [9] The tribunal has the power to appoint guardians and administrators to make decisions for adults with impaired decision making capacity. Before making such appointments, the tribunal must be satisfied as a result of evidence being produced at a hearing that the person in question has impaired decision making capacity and that there is a need for a decision maker. [10] The tribunal can make an appointment of a decision maker on an interim basis for up to three months under section 129 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. [11] According to the evidence produced to the tribunal, FJ had been recently verbally abused and assaulted by her carer, FG. Medical evidence produced to the tribunal by Dr Yates revealed that FJ has been diagnosed with dementia and that her ability to understand and act on information about her own affairs was moderately impaired by her dementia. Her ability to make decisions about where she lived and what support she had to meet her needs was likely to be impaired and she had been totally dependant on her son FG for care at home for some time. [12] I was satisfied that FJ was at an immediate risk of harm while she remained dependant on FG for care. He had been physically and emotionally abusive towards her and he had been under a great deal of stress as a result of the pending tribunal proceedings. This was apparent from his telephone call to the registry a couple of days after the domestic violence incident when he threatened self harm. There was evidence that he had been refusing to allow other members of the family to come to the house to see their mother. The social isolation of FJ from her family would give rise to the risk of further harm to her, both emotionally and physically. [13] I was satisfied that decision makers independent of the family should be in place on an interim basis for FJ while the outcome of the applications was pending. The family had demonstrated a lack of ability to put safe arrangements in place for FJ due to the conflict between the attorneys, FG and FD. If necessary decisions could be made in the interim for the safe care and accommodation of FJ if the risk of harm increased to an unacceptable level. [14] Appointments of the Adult Guardian and The Public Trustee of Queensland were made for three months and the Enduring Power of Attorney was overtaken by the appointments. -- 4 of 4 --