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Queensland Judgments
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  • Unreported Judgment

HJP

 

[2016] QCAT 277

CITATION:

HJP [2016] QCAT 277

PARTIES:

HJP

APPLICATION NUMBER:

GAA5474-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

1 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by WC for an interim order is dismissed.

CATCHWORDS:

GUARDIANSHIP – where adult was diagnosed with dementia and was hospitalised while waiting for placement into residential aged care – where adult’s son and daughter-in-law had been living in her home providing care – where appointment of a guardian and administrator sought to facilitate placement into care – where two applications filed proposing different appointees for guardian and administrator

INTERIM ORDER – where allegations made that one family member had been physically neglecting and financially exploiting the adult – where allegations that withdrawals had been made from the adult’s bank account that were considerably in excess of her regular expenditure – where explanation provided for the withdrawals – whether the adult’s finances were at an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) 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 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    HJP is 93 years of age.  Until her admission to the Townsville Hospital, she had been living with her son, HR and his wife, HM who had been caring for HJP.  HJP has been diagnosed with dementia and her care needs have increased.  Medical advice was received that she needs to be discharged from hospital into a residential aged care facility in order for her care needs to be adequately met.   
  2. [2]
    HR applied to the Queensland Civil and Administrative Tribunal (QCAT) for the appointment of a guardian and administrator for HJP.  He proposed that he and his wife are appointed as guardians and that he is appointed solely as the administrator for his mother.  WC, who is a daughter of HJP, opposes the appointment of HR and HM as decision-makers for HJP.  
  3. [3]
    WC alleges that HR has been accessing money held in the accounts of HJP and that $8,300 had been withdrawn from her account over a three-month period from January 2016 to April 2016.  WC submitted that the application should be heard urgently.
  4. [4]
    WC lodged an application for the appointment of herself and her husband, WJN, as the guardians and administrators for HJP. QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) (GAA) 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] 
  5. [5]
    WC also sought an interim order for appointment of herself as a decision-maker for financial matters for her mother until such time as the substantive applications could come on for hearing.  QCAT can make an appointment of a decision maker on an interim basis for up to three months under s129(1) of the GAA 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. 
  6. [6]
    WC submitted that HR and his wife had been neglecting HJP physically and had been taking all her money.  It was submitted by WC that HJP had no clothing in hospital and she had been there for three weeks.  WC submitted that HR had resisted her involvement with HJP so he got control of the situation and that he has been intimidating and verbally abusive. 
  7. [7]
    WC also submitted that prior to her hospitalisation, her mother had very few expenses apart from her own personal care, the rates on her house and services.  She was not eating any of the food prepared by HR and HM and she should have been in receipt of Meals on Wheels to supply her with suitable food.  It was submitted by WC that HJP’s condition deteriorated which had resulted in a fall and a massive infection. 
  8. [8]
    In further oral evidence given to QCAT and recorded in a file note by the registry case officer, WC further elaborated on her allegation that HR had been taking all his mother’s money.  She stated that $8,300 had been withdrawn in three months.  In his application to QCAT, HR had stated that his mother’s fortnightly expenses were only $340.   Nothing had been done to the house.  She alleged that her brother had fleeced HJP’s bank account, leaving just enough in the account for her burial.
  9. [9]
    HR responded to these allegations.  He stated that some of the withdrawals from the bank account were for house related expenses, such as $2,300 for insurance and $1,600 for the rates. He stated that HJP had for many years withdrawn $900 per fortnight from her account. 
  10. [10]
    When living at home, she used to smoke two cartons of cigarettes a week that cost about $300 per week.  Her withdrawn money was also spent on medications, medical expenses and personal expenses.  HJP also paid for the household groceries every second week and HR and HM paid for the household groceries the other week.  He stated that the withdrawn money was spent on his mother and he had not exploited his mother’s money.  He stated that since 25 April 2016 when she was admitted to hospital, there had been no withdrawals from her bank account. 
  11. [11]
    HR stated that HJP was not at an immediate risk of harm.  She needs to be placed into a care facility and she is on a waiting list but the care provider will not accept her until he has authority to make decisions for his mother. 
  12. [12]
    WC had not provided sufficient evidence to establish that HJP’s finances were at an immediate risk of harm.  HJP was in hospital awaiting placement in a care facility.  According to a bank statement filed in QCAT, her income was being paid into her bank account and there was evidence from HR that there had been no withdrawals from that account since her admission to hospital on 25 April 2016.  HR had provided an explanation about the withdrawals made from the bank account of HJP prior to 25 April 2016.  While that explanation would be tested at an oral hearing of the application for appointment of a decision-maker for HJP, the explanation was prima facie credible. 
  13. [13]
    The Tribunal was not satisfied there were reasonable grounds to conclude that HJP’s finances were at an immediate risk of harm.  As a result, there was no basis established for an interim appointment of an administrator for HJP.  The application for an interim order was dismissed.     

Footnotes

[1] Guardianship and Administration Act 2000 (Qld) s 12 (1).

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Editorial Notes

  • Published Case Name:

    HJP

  • Shortened Case Name:

    HJP

  • MNC:

    [2016] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Senior Member Endicott

  • Date:

    01 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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