DP [2009] QCAT 16

CITATION: DP [2009] QCAT 16 PARTIES: DP APPLICATION NUMBER: GAA 10063-09 MATTER TYPE: Guardianship and administration matters HEARING DATE: 3 December 2009 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 3 December 2009 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed CATCHWORDS : Interim Order, need for the appointment of an administrator not established, s.129 of the Guardianship and Administration Act 2000 APPEARANCES and REPRESENTATION (if any): heard on the papers REASONS FOR DECISION [1] On 3 December 2009 an application about DP (the adult) for an interim order was lodged by the Adult Guardian seeking the appointment of an administrator DOES THE ADULT LACK CAPACITY FOR THE MATTER? [2] The Guardianship and Administration Act 2000 (the Act) defines capacity as: “capacity”, for a person for a matter, means the person is capable of- (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [3] The Tribunal considered the following evidence about the adult’s capacity: (i) health professionals reports: Report by PJ, registered nurse dated 20 November 2009. PJ stated that the adult has a diagnosis of dementia. She considered that he had mild cognitive impairment of a fluctuating -- 1 of 3 -- ` 2 nature. PJ stated that the adult was not capable of managing his financial affairs effectively due to a lack of insight. She considered that the adult could make decisions freely and voluntarily and could make simple financial decisions but not complex financial decisions. (ii) other documents: An assessment was conducted of the adult by an Aged Care Assessment team on 2 December 2009. That assessment disclosed that the adult regularly had short term and long term memory problems, exhibited occasionally at risk behaviour and verbal aggression, occasional hallucinations/delusions, disturbed sleep, depressive symptoms and confusion but was orientated to time, place and persons. The assessment noted an MSQ result of 10/10, decreasing comprehension and insight and periods of confusion and anxiety. A MMSE had been conducted on 23 October 2009 with a score of 15 out of 29. An informal assessment by BC, occupational therapist on 1 December 2009 noted that the adult had demonstrated limited ability to process new information, to learn new skills and was unable to have insight into future needs or implications of his actions. [4] The Tribunal made the following findings of fact about the capacity of the adult: The adult has been diagnosed with dementia. He has cognitive impairment of a fluctuating nature. He has short term memory deficits, lacks insight into his needs and into the implications of his actions. A MMSE conducted on 23 October 2009 scored 15 out of 29 which is consistent with a significant level of cognitive impairment. CONCLUSION [5] The Tribunal determines that the adult does not have capacity to make decisions about financial matters. LEGAL REQUIREMENTS FOR APPOINTMENT OF DECISION MAKER [6] Section 12 of the Act provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision making capacity the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the Tribunal determines that the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected. [7] The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. [8] Section 129 of the Act provides for the making of interim orders if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including -- 2 of 3 -- ` 3 because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult. [9] The tribunal may make an interim order in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the Act. The maximum period that may be specified in an interim order is 3 months. IS THERE A NEED FOR AN INTERIM APPOINTMENT OF AN ADMINISTRATOR? [10] The following issues were raised as the basis for the interim order application: • there is nobody in the adult’s life to assist adequately with financial decisions; • a contract needs signing or a financial or legal matter needs to be transacted [11] The Tribunal made the following findings of fact: The tenancy of the Queensland Housing unit where the adult and his wife formerly lived is in the sole name of the adult. The adult has only partly cancelled the tenancy and steps need to be taken to clean the unit and vacate the unit to stop ongoing responsibility for rent from accruing. The adult and his wife are currently living in a nursing home but the adult’s wife can only stay in the nursing home on respite arrangements which are due to expire on 10 December 2009. The adult’s wife has been assessed as having capacity to make her own decisions and she is receiving assistance from Disability Services about her future needs. The adult’s fees for the nursing home are being paid by direct debit from his account. Steps have yet to be taken to cancel utilities accounts at his former residence. The adult has some modest savings to cover some of his outstanding financial responsibilities. [12] The Tribunal determines that: • there is a need for a decision in relation to the matter • the adult is not likely to do something in relation to the matter that involves, or is likely to involve, immediate risk of harm to the adult’s health, welfare or property AND • the adult’s needs will be adequately met or the adult’s interests will be adequately protected without an interim appointment. CONCLUSION [13] The Tribunal determines that the need for an interim appointment of an administrator has not been established. [14] The Tribunal dismisses the application for an interim order. -- 3 of 3 --