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- Unreported Judgment
TWD QCAT 300
TWD  QCAT 300
Guardianship and administration matters for adults
On the papers
Senior Member Endicott
16 August 2016
GUARDIANS AND ADMINISTRATORS – APPOINTMENT PROCEDURE – STATE AND TERRITORY COURTS – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN: JURISDICTION AND POWERS – where appointment of substituted decision – makers sought for person in homeless shelter – where interim appointment sought to assist with placement into residential care facility – whether immediate risk of harm
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
- TWD is 74 years of age. He is living in a homeless shelter. A case worker working with TWD has reported that this environment is insufficient to ensure that his care needs are attended to. A recommendation was made that TWD enter permanent residential care and he is agreeable to that recommendation. It was stated that the drug, alcohol and mental health issues of other residents in the shelter pose a potential risk to TWD and that he has become agitated within this setting and has tried to leave. However, his attempts have been responded to by intervention from staff to ensure his safety and wellbeing.
- An application was made to QCAT by Naje Jacobsen, a caseworker, for the appointment of a guardian and administrator for TWD under the Guardianship and Administration Act 2000 (Qld) (GAA 2000). Appointments of substituted decision-makers under the GAA 2000 are usually made after a hearing has been conducted and the Tribunal is satisfied that the person in question has some relevant impaired decision-making capacity, that there are decisions that need to be made and that only adequate support can be given for decision-making by the appointment of a substituted decision-maker.
- A social worker, Tanya Rogers, applied for an interim order to appoint decision-makers for TWD for lifestyle and health decisions and for financial decisions. QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129 (1) of the GAA 2000 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.
- Ms Rogers stated that TWD was at risk due to his cognitive impairment. She stated that his care needs surpass what is able to be managed within the community. She stated that TWD is unable to attend to certain activities of daily living without support and that he neglects his personal care, nutrition and safety. She stated that TWD is vulnerable and at risk of ill intentions of others within his current setting.
- Ms Rogers stated that it is recommended that TWD enters permanent residential care and that he is agreeable to this. It was stated that TWD requires a financial administrator to assist with financial considerations relating to placement and a guardian for placement. It was stated that TWD is unable to continue in his current accommodation setting and will need assistance to move into care.
- The evidence provided by Ms Rogers in support of her application for an interim order did not establish that TWD was at an immediate risk of harm to his welfare. He did not have to move out of his current accommodation immediately which would likely result in him having to live on the streets. A reasonable inference was drawn from the evidence in the application that his personal care needs were being supported in the homeless shelter to some extent and that overall his safety and wellbeing were being ensured by the actions of staff at the shelter. Ms Rogers gave no examples of how TWD was at risk from other people when living at the homeless shelter.
- The basis for making an interim order under s 129 of the GAA 2000 was not established. Interim orders cannot be made merely out of convenience. There must be satisfactory evidence of an immediate risk of harm.
- While it would be preferable that hearings for all applications for the appointment of substituted decision-makers were held within a few weeks of the applications being filed in QCAT, that outcome is rarely possible to achieve due to the high number of applications that are filed in QCAT each year. Most hearings of guardianship applications are held within 12 weeks of filing and earlier hearings can be sought if circumstances warrant. However, interim appointments are not made merely because an applicant would prefer not to wait for the hearing of the application to take place.
- Evidence that an offer has been made of permanent placement in a specific aged care facility and that the offer will be withdrawn if not able to be accepted promptly is not generally considered to be evidence that a person is at an immediate risk of harm. It is reasonable to expect that other offers will be made of suitable permanent care after the hearing of the application takes place.
- As Ms Rogers did not provide satisfactory evidence that TWD was at an immediate risk of harm, the application for an interim order was dismissed.
- Published Case Name:
- Shortened Case Name:
 QCAT 300
Senior Member Endicott
16 Aug 2016