RRF[2016] QCAT 518

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. [1]
   There are several applications for the appointment of a guardian and an administrator pending in the Tribunal for RRF.  The Tribunal commenced hearing those applications on 2 June 2016 and made an order directing that RRF undergo a full capacity assessment.  The Tribunal adjourned the hearing until that assessment took place and the hearing will resume on 7 February 2017.
2. [2]
   RRF made an Enduring Power of Attorney on 29 July 1994 appointing PP.  Under the law at that time, the Attorney could only make financial decisions for RRF.  RRF lives in his own home and is cared for by CR who is described variously as his de facto partner or friend.  Reports filed in the Tribunal state that RRF has been diagnosed with vascular dementia and demonstrates an impaired understanding of his current circumstances and financial resources.
3. [3]
   There is considerable conflict within the family and support network of RRF as to who should make decisions for him.  The Tribunal will decide who should be the formal decision-makers for RRF after the hearing on 7 February 2017.  In the meantime, some of the family members of RRF have sought appointment as decision-makers for RRF on an interim basis up to the date of the hearing. 
4. [4]
   Interim appointments of a guardian and administrator can be made under   s 129 (1) of the Guardianship and Administration Act 2000 (Qld) (GAA).  The Tribunal must be satisfied on reasonable grounds that the person in question is at an immediate risk of harm to his welfare or property in order for an appointment of a decision-maker on an interim basis to be made. 
5. [5]
   In support of the interim appointment application, the family member who made the interim order application stated that RRF needed constant care and that he did not believe that RC and the attorney, PP were providing this constant care.  The applicant also alleged that mismanagement of the finances of RRF has continued and that the attorney, PP, lives in Switzerland and is unable to directly and constantly manage RRF’s affairs because of geographical limitations. 
6. [6]
   The applicant stated that RRF’s cash assets are insufficient to maintain his care needs, home and real estate portfolio, and that he needs a short and long term budget.  The applicant stated that RRF’s diminishing health means he will require specialist nursing care and hospitalisation in the short term.  The applicant stated that RRF will need assistance to locate to a suitable nursing arrangement when living at home is no longer possible.  The applicant submitted that the budget must allow sufficient funds for these requirements.
7. [7]
   PP informed the Tribunal that he had arranged for electronic access to RRF’s primary bank account for monitoring purposes.  He states that he is actively taking steps to maintain the estate of RRF.  
8. [8]
   Solicitors for RRF’s carer submitted that RRF’s carer, the carer’s daughter, RRF’s sister, and his attorney oppose the application for an interim order.  The solicitors submitted that the medical specialist who had conducted an assessment of RRF in September 2016 did not report that there was an immediate risk of harm to the health, welfare or property of RRF. The solicitors submit that the evidence produced by the applicant did not support the allegation of financial mismanagement nor did the evidence support a finding that PP is not appropriate to continue to act as RRF’s attorney.   
9. [9]
   The applicant did not provide any specific information to support the allegations that RRF is not receiving constant care or that his finances are being currently mismanaged.  The applicant provided information about RRF’s bank accounts and financial resources up to the end of 2015, but did not provide any current information that could be relied on to establish a reasonable satisfaction that his financial affairs were not being appropriately managed by his attorney with assistance from his carer.  There was no evidence to support the allegation that RRF was not currently receiving appropriate care at home.
10. [10]
    The evidence before the Tribunal did not satisfy the Tribunal that RRF was at an immediate risk of harm that, as a response, required the appointment of a guardian and administrator until 7 February 2017 when the hearing of the substantive applications would resume.  No specific evidence had substantiated that RRF needed a formal decision-maker to make decisions about his immediate health or welfare requirements as the evidence relied on by the applicant was about medium to longer term needs of RRF.  The applicant did not establish that RRF’s finances were diminishing at such a rate that immediate action had to be taken before 7 February 2017 to protect his financial position before the Tribunal had an opportunity to finalise the outcome of the substantive applications.
11. [11]
    The making of interim appointments under s 129 of GAA should be made if the statutory preconditions are met.   The applicant failed to prove to the reasonable satisfaction of the Tribunal that interim relief was needed in this case as the applicant had not provided evidence that established the requirements of s 129 of GAA.   The Tribunal dismissed the application for interim orders.