CMR [2014] QCAT 154

CITATION: CMR [2014] QCAT 154 PARTIES: CMR APPLICATION NUMBER: GAA1743-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 25 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adult Guardian is appointed guardian for CMR for the following personal matters only: (a) accommodation decisions; (b) with whom CMR has contact and/or visits; (c) health care of CMR; (d) provision of services for CMR. 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. CATCHWORDS: GUARDIANSHIP – where application for appointment of guardian – where allegations that person with impaired decision making capacity at risk of harm – where allegations that supportive family relationship had been strained INTERIM ORDER – where appointment of guardian sought on an interim basis – where evidence of immediate risk of harm -- 1 of 4 -- 2 APPROPRIATENESS OF APPOINTEE – where family members sought appointment as guardian – where family members would not be appropriate for appointment at present due to strained relationship – where family members would not be likely to apply General Principles when making decisions – where guardian from outside the family would be appropriate on an interim basis Guardianship and Administration Act 2000 (Qld) ss 15, 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 (Qld) (QCAT Act). REASONS FOR DECISION [1] CMR is 22 years of age. She has an intellectual disability and she had also been diagnosed with some psychiatric conditions. She had been living with her family but in November 2013 she chose to commence living with her boyfriend, MS. According to evidence from her mother, CMR took steps to restrict telephone contact with her family and she refused to come to the door when members of her family had visited her at her boyfriend’s residence. [2] Despite members of her family being appointed her administrator, CMR managed to withdraw significant funds from her bank account which her family believes she had spent on her boyfriend and his family. [3] Her mother and her aunt applied to QCAT for appointment as guardians for CMR. They stated that CMR needed protection from her boyfriend and his family, she needed to live in suitable accommodation with appropriate support and guidance. They stated that informal decision making arrangements for personal matters had been adequate until November 2013 when CMR had allowed MS to direct her decisions. [4] The applicants stated that CMR was living in an environment where she has been financially abused and where her mental health had been placed at risk by not taking her medication and by not wanting to attend her appointments with her psychiatrist. The applicants stated a concern that CMR was being influenced by MS in all her decisions. [5] A report from the treating psychiatrist of CMR confirmed that CMR was being treated for a psychotic illness and an anxiety disorder. The report also confirmed that CMR has intellectual, social and emotional developmental deficits. Dr Robertson reported that CMR lacks insight into the subtleties of her illnesses and that she can make poor decisions. Dr Robertson reported that CMR lacks the ability to weigh the pros and -- 2 of 4 -- 3 cons of lifestyle and accommodation choices and that she is not capable of making decisions freely and voluntarily. [6] Dr Robertson reported that CMR’s boyfriend and his family are negative influences in her decision making and their influence has strained the relationship between CMR and her parents. Dr Robertson reported that CMR had relied heavily on her mother to navigate and advocate for her in financial, occupational and interpersonal arenas and the influence of MS and his family have made it harder for CMR to access her mother. [7] QCAT has the power to appoint a guardian to make personal decisions for adults with impaired decision making capacity. Such an appointment is more commonly made after a hearing when the tribunal is satisfied that the presumption of capacity has been rebutted by satisfactory evidence and the tribunal is satisfied by the evidence that there is a need for a decision maker. However QCAT 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. [8] The applicants sought an interim order for the appointment of a guardian for CMR. In such a case, before an interim order is 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. [9] There was evidence that CMR was at some immediate risk of harm. The tribunal was told that CMR’s mental health was at risk of destabilising due to her not taking her medication and not attending appointments with her psychiatrist. There was evidence that she had manifested a significant change in her behaviour in that she cut off contact with her family and had withdrawn a large amount of money without the consent of her administrators. CMR had formerly relied on her family for support for decision making and her actions over the past few months have resulted in a strain of the supportive relationship that had been in place all her life. Evidence had been given that CMR was being influenced to make decisions in a manner that did not appear to be consistent with her former practices or wishes. [10] When considering an interim appointment, I am not required to be satisfied that CMR has impaired capacity to make her own personal decisions but I was satisfied that there was evidence capable of supporting such a finding. I was however satisfied that the evidence set out in the preceding paragraph supported a conclusion that CMR was at immediate risk of harm unless formal decision making support for personal decisions was implemented by an interim appointment of a guardian. [11] However I was not satisfied that CMR’s mother and her aunt were the appropriate persons to appoint on an interim basis as guardians. Interim appointments are made without an oral hearing and the parties, in particular CMR, do not have a full opportunity to express their views about the application for an interim order or the appropriateness of the proposed guardian. It is essential that a person appointed, even for a temporary -- 3 of 4 -- 4 period, to make decisions must be able to make decisions in accordance with the General Principles. [12] The evidence given to the tribunal established that there was a strained relationship between CMR and her family. CMR’s mother had stated in the application for an interim appointment that she wanted to have CMR live (or at least, sleep) at the family home, that she wanted CMR not to have any contact with the mother of CMR’s boyfriend, that she wanted all belongings of CMR returned to the family home and that she have contact with her boyfriend only at work and on limited times on a weekend. [13] As CMR had chosen to leave home in November 2013 to move in with her boyfriend and has distanced herself from the influence of her family, it was a reasonable inference to draw that CMR would not agree to move back home immediately or to agree to the outcomes sought by her mother. It was also a reasonable inference to draw that at the moment CMR and her mother would not be compatible, that CMR’s mother would not consult with all persons interested in CMR (including MS and his family) about decisions to be made and that the interests of CMR and her mother are likely to conflict. It is a requirement under section 15 of the Guardianship and Administration Act 2000 that the tribunal consider these issues and the ability of any proposed appointee to apply the General Principles when determining who should be appointed as a guardian for an adult with impaired decision making capacity. [14] I determined that it would not be appropriate to appoint family members as guardians on an interim basis for CMR. At this time, the strain in the relationship between CMR and her family should be given time to heal and imposing a formal decision making role on family members is unlikely to provide a proper opportunity for healing in the shorter term. The appropriateness of family members to perform the role of guardian should be fully explored at an oral hearing. [15] In the meantime, the Adult Guardian is an appropriate appointee as guardian to make any decision necessary before the final hearing about accommodation, contact, health care and services for CMR. The Adult Guardian has no interests that are likely to conflict with the interests of CMR and the Adult Guardian will consult and gain the views of CMR and those persons interested in her before a decision is made. The Adult Guardian can be relied on to apply the General Principles when making decisions for CMR. -- 4 of 4 --