JF[2020] QCAT 419

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 20 May 2019 the Tribunal, differently constituted, made an order appointing the Public Trustee of Queensland as administrator for JF for all financial matters. The appointment was to be reviewed in one year. On 18 June 2020, at the review of the appointment of the administrator, the Tribunal revoked the appointment.
2. [2]
   On 13 October 2020 an application for the appointment of a guardian (Public Guardian) and administrator (Public Trustee) for JF was made by DS, a social worker with the Gold Coast Hospital and Health Service. At that same time, DS applied for an interim order seeking the appointment of the Public Trustee as administrator for JF for all financial matters. The application for the appointment of an administrator and guardian has been listed for hearing in the Tribunal on 16 November 2020.
3. [3]
   Before the Tribunal can make an order appointing a guardian for a personal matter or an administrator for a financial matter, the Tribunal must be satisfied of the elements in s 12 of the Guardianship and Administration Act 2000 (Qld) (the Act), namely:

   1. (a)
      the adult has impaired capacity for the matter;
   2. (b)
      there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
   3. (c)
      without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.
4. [4]
   Section 129 of the Act gives power to the Tribunal to make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the Act, but only if the Tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult. The maximum period that may be specified in an interim order is three months.
5. [5]
   On 14 October 2020 I dismissed the application for an interim order. DS has requested reasons for that decision. These are my reasons.
6. [6]
   I am not satisfied that there is an immediate risk of harm to the health, welfare or property of the adult concerned.
7. [7]
   JF is a 76 year old former pilot/electronics engineer who is currently an inpatient in the Acute Care of the Elderly (ACE) Ward at Robina Hospital on the Gold Coast. JF has long standing issues with alcohol and now has relatively widespread cognitive impairment as a result.^[1] 
8. [8]
   The application for an interim order states that:

social work is unable to locate the adult’s bank cards and social work has concerns that the adult’s bank account may be compromised. The adult’s personal effects are currently being held by his previous landlady who is refusing to return them to him unless she is reimbursed money allegedly owed to her by the adult.

9. [9]
   No other reason or evidence is provided as to the basis for the application for the interim order.

10. [10]
    JF is currently an inpatient at the Robina Hospital. His sister, A, has agreed to be a temporary informal decision-maker for JF for lifestyle and accommodation decisions and urgent medical decisions^[2] until a formal appointment of the Public Guardian is made.
11. [11]
    Although it may be that the Tribunal, at a hearing, will find that the elements of s 12 of the Act are satisfied, I am not satisfied under s 129 of the Act, on the evidence before me, that JF’s health, welfare or property is, at this point in time, at immediate risk of harm. He is safe and his sister, as informal decision-maker, has agreed to support him with certain personal decision-making until formal appointments are made.
12. [12]
    JF is in a safe environment. Although the hospital cannot locate his bank cards that does not necessarily mean that his bank accounts are being or are able to be accessed. There was no evidence that that was the case. There is no evidence that JF is unable to locate his cards or to make a decision to cancel his bank or credit cards, should he think that necessary. It is said that JF’s former landlady has refused to return his belongings until he pays what she claims she is owed. However, there is no suggestion that the landlady is threatening to dispose of his property and, if she did, he would have recourse against her.
13. [13]
    The hearing for the appointment of a guardian and administrator is on 16 November 2020.
14. [14]
    The appointment of an administrator on an interim basis is a serious incursion on a person’s human rights. I accept that the Tribunal is subject to the Human Rights Act 2019 (Qld) when it makes a decision to appoint an administrator or guardian under the Act, being, in the course of making that decision, a ‘public entity’ acting in an ‘administrative capacity’.^[3] The appointment of an administrator with unlimited powers is a serious step to take because it transfers complete and exclusive control of a person’s estate to the administrator. It is particularly so when the appointment is made on an interim basis because the usual legal protections and rights of adults with impaired capacity do not apply. For example, the adult is not required to be given notice of the application, has no opportunity to be heard, and is not given a fair hearing.
15. [15]
    For the above reasons, I am not satisfied that reasonable grounds exist for the making of an interim order under s 129 of the Act. Accordingly, the application for an interim order seeking the appointment of the Public Trustee for all financial matters is dismissed.