Re HS
[2015] QCAT 536
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- Unreported Judgment
- Re HS[2015] QCAT 536
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Re HS[2015] QCAT 536
Re HS[2015] QCAT 536
CITATION: | HS [2015] QCAT 536 |
PARTIES: | HS |
APPLICATION NUMBER: | GAA7439-15 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 30 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Endicott |
DELIVERED ON: | 30 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Public Guardian is appointed guardian for HS for the following personal matters only: (a) accommodation decisions; (b) health care of HS; (c) provision of services for HS. 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 administrator for HS 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. That before 27 August 2015 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. 9. Any purported enduring power of attorney for HS 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. | ||
CATCHWORDS: | GUARDIANSHIP – where adult diagnosed with Alzheimer’s dementia – where adult had revealed to in home care services that she had been physically abused by her carer – where allegations made of financial abuse by carer and attorney of adult INTERIM ORDER – where care needs not being adequately met – whether immediate risk of harm – whether decision maker required to make decisions about wellbeing of adult and to access to financial funds of adult Guardianship and Administration Act 2000 (Qld), s 12(1), s 22(2), s 129 | ||
APPEARANCES:
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]HS is 85 years of age. She lives with her son, HJ. HS received services from Blue Care to assist with managing her hygiene at home.
- [2]According to evidence from a nurse at Blue Care, initially nurses were attending HS twice a week but due to increased concerns about the care HS was receiving in the home, the visits were increased to five times a week. On 5 March 2015, HS complained of pain and discomfort to her lower abdomen and to her vaginal area. The nurse found on examination a large prolapse to the vagina. HS told the nurse that she had told her son several times about her discomfort. The nurse organised for HJ to have his mother treated for this condition.
- [3]According to the evidence of the nurse from Blue Care, HS informed her on 2 April 2015 that HJ had hit her the previous day. The nurse stated that HS had told her: “you don’t know what he’s like. He’s a mongrel. I told him if he hits me again I will call the police”.
- [4]The nurse further stated that on 3 April 2015 she attended at the house and HJ opened the door in a tee shirt pulled down over his private parts but he was not wearing any shorts. The nurse stated that on the following day HJ again opened the door of the house in a tee shirt but wearing no pants.
- [5]According to the evidence of the nurse, she attended on HS on 22 April 2015 and noticed a bruise on the upper inside area of the arm of HS. The nurse stated that HS told her that HJ had hit her the previous day. HS also told the nurse: “He’s a bloody bastard, he’s crazy”. HS told the nurse that this happens frequently to her.
- [6]At the end of July 2015, an application was filed in QCAT by the Blue Care nurse seeking the appointment of a guardian and administrator for HS. In the application it was alleged that HS was being subjected to financial abuse and that large amounts of the funds of HS were being used inappropriately. It was also alleged that personal abuse was occurring and that her son, as her attorney, was acting inappropriately. The application sought appointment of the Public Guardian and The Public Trustee of Queensland as decision-makers for HS.
- [7]The Tribunal can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) 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] Appointments are made after a hearing by the Tribunal which usually takes place some three or four months after the application is received by the Tribunal.
- [8]However, QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the Act 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.
- [9]The applicant asked for interim orders to be made appointing a guardian and administrator until such time as a hearing could be held.
- [10]Evidence was provided to the Tribunal by Dr Mohammad Sadique who is a general medical practitioner who has known HS for two years. Dr Sadique stated that HS had been diagnosed with Alzheimer’s disease. He referred to a Mini Mental State Examination conducted in July 2014 where the score was 11 out of 30 and a repeat Examination on 20 November 2014 where the score was 9 out of 30. Dr Sadique expressed the opinion that HS had advanced dementia and could not understand and act on information about her own personal, health or financial affairs. Dr Sadique stated that HS had significant memory problems and that she forgot things easily. Dr Sadique expressed an opinion that HS could not make any complex decisions and could not make even simple financial decisions due to her dementia.
- [11]Dr Sadique also expressed what appeared to be a tentative opinion that HJ had some influence over HS and Dr Sadique mentioned, with apparent endorsement, that Blue Care had observed that HJ was not providing enough care for his mother.
- [12]There was also evidence about decision-making capacity in a report by Dr Subakumar dated 21 November 2014. Dr Subakumar is a physician for aged care. He reported that HS had demonstrated poor memory including forgetting names, forgetting how to cook, leaving pots on the stove unattended, forgetting her address and some word finding difficulties. Dr Subakumar noted there was no confusion, hallucinations or behavioural issues. Dr Subakumar diagnosed Alzheimer’s dementia in a fairly advanced stage.
- [13]For the purposes of the interim order application, I accepted the evidence of Dr Sadique and Dr Subakumar that HS had been diagnosed with Alzheimer’s disease and her condition was considered to be at the stage of advanced dementia. The cognitive screening tools had revealed a worsening of her cognitive performance over the last months of 2014. I found that HS could not understand, recall, evaluate, and use information on which decisions would be based; she could not as a result devise options for decision-making that responded to the needs she had; she could not appreciate the consequences of decisions she needed to make and she would not be able to recall within a reasonably short period of time what actual decisions she had made.
- [14]I was satisfied that HS could not understand the nature and effect of decisions due to cognitive impairment associated with dementia and concluded that she has impaired decision-making capacity for personal, health and financial matters.
- [15]I accepted the evidence from the applicant that HS had complained that she had been the subject of physical abuse from her son, HJ. According to the evidence of that nurse, HJ had not responded in a timely manner to complaints of abdominal discomfort made by HS. I was satisfied that HJ was not providing adequate care to his mother and that she was at an immediate risk of harm due to her care needs not being adequately met. I was also satisfied that HS was at an immediate risk of harm due to her apprehension that her son would cause her physical harm, reinforced by the discovery of bruising on HS which was allegedly caused by HJ.
- [16]I was satisfied that decisions were required to be made to ensure that HS was safely and adequately cared for and that her health needs were met. On the evidence, there was a real risk that her attorney was not meeting the decision-making needs of HS appropriately. A guardian was required to make appropriate decisions about where HS should be living, what services she requires to remain safe and to ensure her well-being was catered for and to make appropriate and timely health care decisions for her. The Public Guardian was appropriate for the role until a hearing could be held of the substantive application for appointment of a guardian.
- [17]The applicant had alleged that financial abuse was happening. In particular, it was alleged that funds of HS were being used inappropriately by her son, HJ. There was reference to HJ using the funds to build a swimming pool at the house where HS lives.
- [18]There was no documentary evidence produced such as banking records to support this allegation. However, I was satisfied that a guardian would need to be able to arrange access to funds belonging to HS in order to pay for services and for any change to accommodation and care. There was evidence before the Tribunal that HJ had not considered residential aged care for HS and he had not taken the initiative to increase in home care support for his mother as increased services eventuated at the initiative of Blue Care. I was satisfied that the attorney for HS had not been proactive in ensuring that the funds of HS were being used to pay for increased care and support of her.
- [19]HS would be placed at a risk of harm if financial decisions were not promptly made to support care and service delivery decisions to be made by her guardian. I was satisfied that for decisions to be made for the overall wellbeing of HS, reliable access to her funds would be required. Due to the allegations of financial abuse made by the applicant, I was satisfied that there was an immediate risk of harm if financial decisions could not be made to support decisions made by the guardian for HS.
- [20]I appointed The Public Trustee of Queensland on an interim basis to make all financial decisions for HS until the hearing of the substantive application for the appointment of an administrator.
- [21]As a result of making these interim appointments, the Enduring Power of Attorney granted to HJ and to his brother HR was overtaken to the extent that the interim appointments were made. The Act sets out a decision-making hierarchy in which an appointed guardian and administrator have authority to make decisions but an attorney granted authority, under a previously made Enduring Power of Attorney, can only exercise power to the extent authorised by the Tribunal.[2]