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Queensland Judgments
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  • Unreported Judgment

HFR

 

[2016] QCAT 335

CITATION:

HFR [2016] QCAT 335

PARTIES:

HFR

APPLICATION NUMBER:

GAA8301-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

12 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Guardian is appointed as guardian for HFR for the following personal matters only:

(a) Accommodation decisions;

(b) With whom HFR has contact and/or visits;

(c) Health care of HFR; and

(d) Provision of services for HFR.

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 as administrator for HFR 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 matter, until the date of the further order, whichever is the sooner.

7. The following enduring power of attorney for HFR 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 appointments have been made:

(a) The enduring power of attorney dated 11 July 2016 appointing SB as attorney for personal, health and financial matters.

CATCHWORDS:

GUARDIANS AND ADMINISTRATORS – APPOINTMENT PROCEDURE – STATE AND TERRITORY COURTS – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN: JURISDICTION AND POWERS – where an adult assessed to have some cognitive impairment and partial judgement skills – where attorney appointed for personal, health and financial matters – where adult moved away from supports with attorney as carer – where allegations that carer had diverted the adult’s income into her account – where adult had been left alone for two weeks without access to funds – where attorney had disclaimed responsibility for the care of the adult -  whether the adult was at an immediate risk of harm unless adequate decision-making support put into place

Guardianship and Administration Act 2000 (Qld) s 129(1)

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]
    HFR lives in a regional town.  He had sustained a head injury in about 1985 and had some prior accidents in 1977, 1980 and in 1982.  He had been assessed as displaying evidence of cognitive impairment and there were concerns that he was placing himself at risk by his decisions.  The assessment carried out on 19 July 2016 revealed that there were no mental health issues but he showed only partial insight into his functional and cognitive difficulties and his judgement was partly impaired.
  2. [2]
    HFR had moved away from his former disability supports with a carer whom he had appointed as his attorney under an Enduring Power of Attorney dated 11 July 2016.   The carer had told the assessment team that she was handing over his care and that she had taken HFR to a local GP.  She had stated that she was helping HFR only as a “Good Samaritan” and that he was not her responsibility.
  3. [3]
    Robyn-Ann Shaw, a senior service advisor from the Department of Communities, Child Safety and Disability Services, applied to QCAT for the appointment of a guardian and administrator for HFR. She stated in the application that HFR’s attorney was abusing her power and had control of all of HFR’s finances.  Ms Shaw stated that the attorney had left HFR alone for two weeks with no money, no food and no credit on his mobile phone.   
  4. [4]
    Ms Shaw also applied for an interim appointment of a guardian and administrator for HFR.   She stated that HFR was currently in immediate risk of harm.  Ms Shaw stated that HFR had only know his carer and attorney for about eight weeks and that he took her into his home because she was homeless.  Since the carer moved in with HFR, it was stated that she had caused a complete breakdown in services and supports that HFR had been receiving.  Ms Shaw stated that the carer had moved HFR to a town where he had no supports in place and no family or friends.  Ms Shaw stated that all of the money that HFR receives goes into the account of the carer.
  5. [5]
    QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129 (1) of the Guardianship and Administration Act 2000 (Qld) 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]
    HFR has an attorney who can make decisions immediately for financial matters and who can make personal decisions when HFR has impaired decision-making capacity to make his own personal decisions.  However, the evidence given to QCAT was that the attorney was not making decisions for the benefit of HFR: the attorney was having funds of HFR put into her own account, she had left him without funds when she was away for two weeks, she had moved him away from his supports and then she had indicated that she was not responsible for his care.  The evidence established that HFR’s welfare and financial support needs were not being met by decisions being made by his attorney.
  7. [7]
    HFR had moved away, and possibly had been encouraged by his carer to move away, from an area where he had support for his needs.  His impaired judgement resulted in him placing his care needs and management of his finances into the hands of a person who had claimed that he was not her responsibility.  The evidence satisfied the Tribunal that HFR had a cognitive impairment, he had partial insight and judgement skills into his needs and circumstances and he was vulnerable to abuse and neglect.   The Tribunal was satisfied that he was at an immediate risk of harm unless adequate decision-making support was available to him pending the hearing of the applications for the appointment of a guardian and administrator.   The attorney had not demonstrated she was providing adequate and proper decision-making for HFR resulting in harm being caused to him on an ongoing basis.  
  8. [8]
    A guardian was required to make decisions for HFR about where he lived, what services he had to support him in the community, who he had contact with and about his health care.    The Public Guardian would be best placed to give adequate support for decision-making to HFR about these matters in conjunction with the case work that would be provided by disability advisors from Disability Services.  
  9. [9]
    The Public Trustee of Queensland would be best placed to secure the financial resources of HFR and to ensure that his financial needs and obligations are met.  The decision-making regime in the Enduring Power of Attorney is overtaken to the extent that these interim appointments of a guardian and administrator are in place. 
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Editorial Notes

  • Published Case Name:

    HFR

  • Shortened Case Name:

    HFR

  • MNC:

    [2016] QCAT 335

  • Court:

    QCAT

  • Judge(s):

    Senior Member Endicott

  • Date:

    12 Aug 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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