BMR [2011] QCAT 280

CITATION: BMR [2011] QCAT 280 PARTIES: BMR APPLICATION NUMBER: GAA3879-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 7 June 2011 DELIVERED AT: Brisbane ORDERS MADE: The Adult Guardian is appointed as guardian for accommodation, health care and service decisions for three months. The Public Trustee of Queensland is appointed as administrator for all financial matters for three months. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – where adult at immediate risk of harm – where disagreement within support network over personal decisions to be made – where independent decision makers found to be more appropriate until hearing is held Guardianship and Administration Act 2000, s 129 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 3 -- 2 REASONS FOR DECISION [1] AB and RB lodged an application in the tribunal seeking the appointment of a guardian and administrator for their father, BMR who is in hospital. The applicants proposed that they be appointed as the substitute decision makers for their father in their application. [2] BMR has a partner, AG. The applicants stated in their application that they had discussed the application with AG and she agreed with the application. [3] The tribunal was provided with a medical report which stated that BMR had suffered a stroke on 13 May 2011 and that he was unable to make most decisions because of an acquired brain injury resulting from the stroke. [4] The applicants sought an interim appointment of a guardian and administrator as they were concerned about the impact that non payment of mortgage instalments for his house would have and they were concerned about non payment of his other bills, including business expenses. One of the applicants had taken over his business invoices and she needed access to his bank accounts for this purpose and to pay an employee of her father. [5] On 30 May 2011 the applicants notified the tribunal that they no longer sought appointment as BMR’s administrator but they proposed the appointment of The Public Trustee of Queensland as the administrator for BMR. [6] The tribunal gave notification to AG about the application for the appointment of a guardian and administrator. A tribunal officer spoke to AG to gain her views about the application and about the request for an interim appointment. She stated that she was distraught about the application as BMR’s daughters had taken over arrangements even though she and BMR had been partners for six months and had been together for two and a half years. She stated that BMR’s daughters had had no contact with him for over two years before he became ill and that BMR had told her that there had been fights over money. [7] AG expressed concern about some of the arrangements already made by BMR’s daughters. AG stated that BMR does not want to move to Brisbane when he is released from hospital but he wants to stay with her. AG stated that his daughters are planning to move him to Brisbane. AG stated that she was removed from BMR’s house by his daughters and one of the daughters and BMR’s sister are now living in his house. [8] AG stated that she has had no say in what has happened and she is very upset by the actions of BMR’s daughters. She sees BMR every day. [9] From the information obtained by its enquiries, the tribunal was satisfied that there was evidence that could be accepted as the basis for finding that BMR had impaired decision making capacity for personal and financial matters. The tribunal was satisfied in accordance with section 129 of the Guardianship and Administration Act 2000 that due to his impaired decision capacity there was an immediate risk to BMR’s welfare and -- 2 of 3 -- 3 property. Decisions had to be made about his health care, about his discharge from hospital, about rehabilitation services and about his accommodation after discharge from hospital. Decisions were needed to be made about his financial and business affairs. If personal and financial decisions were not made, BMR would be hindered in accessing appropriate treatment necessary for his recovery and his business interests would be adversely impacted. [10] These decisions are likely to be needed before the tribunal could schedule an oral hearing of the application for the appointment of a guardian and administrator. [11] As there is an informal support network for BMR, the tribunal would not generally make an interim appointment of a guardian. However the information provided to the tribunal revealed that there were serious differences of opinion held by the members of BMR’s informal support network as to the decisions that should be made for him. [12] Health care could be made by his statutory health attorneys who are his daughters and AG. The information provided to the tribunal revealed that BMR’s daughters were not including AG in their decision making as statutory health attorneys. The information suggested that they had put into place or intended to put into place decisions that further excluded her from involvement with her partner. [13] Further, AG’s information suggested that BMR had not been close to his daughters for over two years. There needed to be some examination as to whether in the circumstances it was appropriate for BMR’s daughters to be his guardians or whether AG was more appropriate. [14] The tribunal was not satisfied by the information provided to support the request for an interim appointment that BMR’s daughters understood that a guardian is a substitute decision maker for an adult with impaired capacity and that the decisions made by a guardian must be aligned to what that adult would make if that adult had capacity. A guardian is not appointed to make decisions that the guardian considers is in the best interest of an adult but must make decisions in accordance with the adult’s own views and wishes. [15] The tribunal determined that an independent decision maker should be appointed on an interim basis so that urgent decisions could be made before a final hearing took place about BMR’s affairs. [16] The Adult Guardian was an appropriate appointee on an interim basis. The Adult Guardian would act as a substituted decision maker, would apply the General Principles and would consult with the adult and all relevant parties. The focus of the tribunal was on providing a decision making process for personal matters for BMR until such time as a final hearing could take place. [17] The tribunal considered it was appropriate to appoint The Public Trustee of Queensland as BMR’s administrator until final hearing as an independent decision maker could focus on the decision making needs of BMR and as none of BMR’s support network had sought to be appointed as administrator under an interim appointment. -- 3 of 3 --