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MIJ[2016] QCAT 276


MIJ [2016] QCAT 276






Guardianship and administration matters for adults


On the papers




Senior Member Endicott


13 May 2016




The application by MS for an interim order is dismissed.


GUARDIANSHIP - where adult changed her Enduring Power of Attorney and appointed her husband as her attorney – where house of the adult was sold to enable the adult and her husband to move into a retirement unit – where adult’s family raised concerns about the sale of the house and new financial obligations being incurred

INTERIM ORDER – where interim orders sought to prevent sale of the house and to appoint other decision-makers for the adult – where evidence about her decision-making capacity did not set out the basis for concerns about capacity for decision-making – whether the presumption of capacity had been rebutted – whether the adult was at an immediate risk of harm

Guardianship and Administration Act 2000 (Qld) s 129


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).


  1. [1]
    MIJ is 86 years of age.  She lives with her husband who was recently appointed as her attorney under an Enduring Power of Attorney dated 8 April 2016.
  2. [2]
    Plans were made for MIJ and her husband to move into an independent living unit.  Family members of MIJ were concerned that she did not have an adequate understanding of the consequences of selling the house in which she and her husband had been living and moving into independent living accommodation associated with an aged care provider.  On the evidence provided to the Queensland Civil and Administrative Tribunal (‘QCAT’), the associated facilities for providing a higher level of care would not be available at the site until 2017.   
  3. [3]
    The family members of MIJ were also concerned that the sale of the house, which was in the sole name of MIJ, had proceeded in a rushed manner by her husband, possibly acting as the attorney for MIJ.  They wanted to stop the sale until a proper assessment of the affordability and appropriateness of this accommodation change could be undertaken.  However, the evidence indicated that a contract for the sale of the house had been entered into and was due to settle on 16 May 2016. 
  4. [4]
    MS, who is the son of MIJ, applied to QCAT for the appointment of a guardian and administrator for MIJ.  He also applied for an interim appointment of substituted decision-makers until the substantive applications could be determined and for an interim order that the sale of the house be stopped.
  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) (‘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]
    Generally before any appointment of a decision-maker for an adult can be made, QCAT must find that the adult in question has impaired decision-making capacity.  The Tribunal must start consideration of applications from the position that an adult has capacity to make all decisions and the Tribunal can only depart from that position if satisfied that the presumption of capacity has been rebutted by the evidence.
  7. [7]
    The applicant, MS, has not produced sufficient evidence to rebut that presumption of capacity.  There was evidence from Dr Robinson, a geriatric registrar, that MIJ had attended a memory clinic on 19 April 2016 for a capacity assessment.  She was able to give a history of recent relevant events in her life including being helped by a family member to move house and of the attempt to sell their house to move to a retirement village. The history included information about a recent change of MIJ’s Enduring Power of Attorney.  Dr Robinson‘s report set out some results of cognitive screening and noted that MIJ’s speech was difficult to understand but had been for some time.   
  8. [8]
    Dr Robinson did not give any opinion about MIJ’s capacity for decision-making but did report that she obviously needed a full neuropsychiatric assessment for capacity.  However, Dr Robinson did not identify any areas of MIJ’s functioning that would reveal any relevant impairment of her understanding of information or consequences relating to decisions that she had made or were likely to be made by her. 
  9. [9]
    In a health professional report by Dr Judith Tucker dated 12 May 2016, Dr Tucker did not answer the question as to whether MIJ could understand and act on information about her financial affairs. She did express an opinion that MIJ could make decisions freely and voluntarily, although she noted that MIJ had been influenced by her husband.
  10. [10]
    Dr Tucker reported that MIJ lacked insight into her disability and care needs and into the multiple comorbidities present with her husband.  In a summary at the end of the report, Dr Tucker states that MIJ cannot make complex financial decisions due to dementia but no diagnosis of dementia has been reported either by Dr Tucker or by Dr Robinson. 
  11. [11]
    I was unable to conclude from the evidence of Dr Robinson and Dr Tucker that MIJ could not understand the nature and consequences of decisions about her financial affairs.  I was unable to conclude from that evidence that she could not make decisions freely and voluntarily.   I was not satisfied that the presumption of capacity had been rebutted by the evidence given to the Tribunal.   The evidence from the applicant suggested that MIJ’s husband had engaged in imprudent financial decisions in the past, however, it was the capacity of MIJ that was in issue in this application.
  12. [12]
    Section 129(2) of the GAA does permit interim orders being made when the evidence about capacity is not conclusive.  The Tribunal may make an order without hearing and deciding the proceeding.  As such, if the Tribunal is satisfied that there is an immediate risk of harm, an interim order can be made to protect the interests and well-being of the adult even though the Tribunal cannot at that time conclusively decide that the adult has impaired decision-making capacity. 
  13. [13]
    In the case of MIJ, the evidence did not rebut the presumption of capacity.   The evidence did not establish that she was at an immediate risk of harm.  The evidence did establish that she had changed her Enduring Power of Attorney to make her husband her primary attorney and she had sold her house in preparation of moving into a form of retirement living. 
  14. [14]
    Although there were concerns expressed by the applicant about the circumstances of the sale and the financial obligations being incurred in the new accommodation, the Tribunal was not satisfied that MIJ was therefore at an immediate risk of harm.  Indeed, MIJ would likely to be at a risk of harm if an order were to be made that had the effect of stopping the settlement of the sale.  She would face legal consequences of not completing her contractual obligations. 
  15. [15]
    The application for an interim order was dismissed as the Tribunal was not satisfied on the evidence that the conditions in s 129 of the GAA had been established.

Editorial Notes

  • Published Case Name:


  • Shortened Case Name:


  • MNC:

    [2016] QCAT 276

  • Court:


  • Judge(s):

    Senior Member Endicott

  • Date:

    13 May 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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