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NA[2016] QCAT 323


NA [2016] QCAT 323






Guardianship and administration matters for adults


On the papers




Senior Member Endicott


14 July 2016




1. NG is appointed guardian for NA for the following personal matters only:

(a) accommodation decisions;

(b) health care of NA;

(c) provision of services for NA.

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.


GUARDIANS AND ADMINISTRATORS – APPOINTMENT  PROCEDURE – STATE AND TERRITORY COURTS – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN: JURISDICTION AND POWERS – where adult in hospital and recommendation made for residential aged care – where husband and carer wants to discharge adult back to her home – where domiciliary care services have been terminated – where the adult is at risk of being discharged home without adequate care services – where no formal decision maker in place – whether immediate risk of harm requiring interim appointment of guardian

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


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]
    NA is a patient at a Brisbane hospital.  She had been admitted to hospital following a fall at home that resulted in a fracture to her hip.  According to medical reports, NA has a background of significant dementia and had been cared for by her husband in their home.  It was reported by a social worker at the hospital that NA’s husband was her attorney but that he had been assessed as lacking adequate cognitive capacity. 
  2. [2]
    NA had been assessed as requiring two people to assist her with all mobility tasks and as requiring a hoist for transfers in and out of bed.  The treating team in the hospital had recommended full nursing care for all of NA’s personal needs and that this level of care would be most appropriately managed in permanent residential care.  The treating team had considered that it would be unsafe for NA to return home to the care of her husband, even with the assistance of domiciliary services.
  3. [3]
    The social worker reported that NA’s husband had declined this recommendation and as a result, the hospital engaged a domiciliary service to provide care to NA and the hospital organised the provision of a hospital bed and pressure mattress for use at NA’s home.  NA was discharged home on 17 June 2016.   She was re-admitted to hospital on 21 June 2016 with a urinary tract infection. 
  4. [4]
    The domiciliary service reported that NA’s husband did not use the equipment prescribed for the care of NA and that he had refused care from the domiciliary service. The social worker reported that service providers she had contacted after this second hospital admission had refused to agree to supply in home services due to NA’s high care needs. The social worker reported that despite informing NA’s husband of this, he continued to state an intention of taking his wife home and to care for her without services or equipment.
  5. [5]
    The social worker stated that another family member was in agreement with the recommendation that NA’s care needs would best be met in a residential aged care facility.  The social worker applied to QCAT for the appointment of a guardian for NA as it was alleged that the attorney was not acting in the best interests of NA.
  6. [6]
    The social worker also applied for an interim appointment of a guardian pending the hearing of the application for the appointment of a guardian.  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.  
  7. [7]
    The reason for NA’s admission to hospital on 21 June 2016 was an infection.  However, there is a dispute about where she can be safely accommodated and what level of care she would need when she is discharged from hospital.  The evidence from the social worker at the hospital is that NA would be at a risk of harm after discharge without adequate equipment and support services in place.  It was stated that NA’s husband had previously refused services, that subsequently NA had been re-admitted to hospital and that her husband is still refusing to adopt the recommendations being made for her care. 
  8. [8]
    The evidence provided to QCAT was that family members had made several attempts to support NA at home but that her husband had refused this assistance.  It was stated that NA had had admissions to other hospitals in the past when recommendations about her care had been made and had been refused by NA’s husband. It was submitted that NA was at an immediate risk of harm as there was a risk that NA’s husband would discharge NA from hospital without adequate supports in place.
  9. [9]
    Evidence was also provided from the domiciliary service which had been engaged to provide care service at NA’s home after her discharge in June 2016. Lia Pires from Arcare Aged Care reported on 21 June 2016 that her organisation would terminate their services on 5 July 2016. Ms Pires stated that NA cannot be cared for in the community with the resources available to Arcare.  Ms Pires stated that NA was at risk with the choices her husband had been making, such as refusing to use the electrical hospital bed rented for NA and refusing recommendations made by an occupational therapist to make the home safer for NA. 
  10. [10]
    Ms Pires stated that NA’s husband had discharged NA from hospital against medical advice and as he then refused to follow the advice given for care at home, her organisation would no longer provide a service to NA.  Ms Pires stated that the home care package can no longer meet the care needs of NA and she provided details of options for transitioning to a more suitable care service. 
  11. [11]
    Evidence was also provided of an occupational assessment that had been conducted at NA’s home dated 21 June 2016.  The assessment identified risks at the home.  The report revealed that NA slips out of chairs and if a table is placed in front of her to support her to stay seated, she will try to push the table away causing her to fall to the floor.   The report revealed that NA’s husband uses his own body weight to push/pull NA in bed or for all transfers as there is no transfer equipment in place.  This practice was described as unsafe for both NA and her husband.  A recommendation that a fully adjustable bed which lowers to the ground be obtained but this recommendation was refused by NA’s husband. 
  12. [12]
    The Enduring Power of Attorney dated 20 August 1991 appointed NA’s husband as the financial attorney for his wife.   It could not appoint him as attorney for health and personal matters as it predated the Powers of Attorney Act 1998 (Qld) which for the first time provided a means for persons to appoint attorneys for personal matters.  As a result, there was no formal decision-maker in place for NA to make decisions about her accommodation and care.   At best, her husband was acting as an informal decision-maker about personal issues. 
  13. [13]
    The Tribunal was satisfied that the evidence established that NA was at an immediate risk of harm.  Her husband had not been able to safely care for her at home.  His belief that he can care safely for his wife is misguided and inconsistent with the evidence from the hospital medical team and from the domiciliary service provider whose opinions and recommendations are objectively and professionally based and preferred to the personal views of NA’s husband.  He refused to use equipment and services needed for her proper care when NA was at home. Domiciliary services are no longer available to provide assistance with care for NA at home.  She would be at risk to her welfare if she were to return home to be cared for by her husband.
  14. [14]
    NA’s husband has indicated his intention to discharge his wife back to their home without adequate services in place.  He refused to follow recommendations that residential aged care is required in order to meet the high level of care needed by his wife.  NA needs a decision-maker who can properly assess her options for a timely discharge from hospital.  She is without such a decision-maker unless a guardian is appointed for her to make decisions in her interest.
  15. [15]
    Her son, NG, is willing to be a guardian for his mother. He is an appropriate person to make personal decisions on an interim basis to avoid the risk of an inappropriate discharge from hospital.                     

Editorial Notes

  • Published Case Name:


  • Shortened Case Name:


  • MNC:

    [2016] QCAT 323

  • Court:


  • Judge(s):

    Senior Member Endicott

  • Date:

    14 Jul 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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