Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

LDR[2022] QCAT 274

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LDR [2022] QCAT 274

PARTIES:

In an application about matters concerning LDR

APPLICATION NO/S:

GAA6636-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

19 July 2022

HEARING DATE:

27 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. The application by [social worker] for the appointment of a guardian for LDR under an interim order is dismissed.
  2. The Public Trustee of Queensland is appointed administrator for LDR for all financial matters.
  3. The tribunal directs the administrator to provide a written account of their actions as administrator to the tribunal no later than three working days prior to the hearing.
  4. This administration appointment remains current for three months or, if the tribunal makes a further order in this matter, until the date of the further order, whichever is sooner.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult in hospital – whether interim guardian should be appointed 

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult at risk of financial abuse – whether interim administrator should be appointed

Guardianship and Administration Act 2000 (Qld), s 5, s11(1), s 11B, s 12(1), s 129(1), Schedule 2 s 2, s 3(a)

Human Rights Act 2019 (Qld), s 13, s 19, s 22(2), s 24

Powers of Attorney Act 1998 (Qld), s 63(2).

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    On 24 June 2022, a hospital social worker filed three applications in the tribunal in respect of an elderly woman referred to in these reasons as LDR. The applications were:
    1. (a)
      for the appointment of a guardian for LDR – the social worker proposed that the Public Guardian be appointed;
    2. (b)
      for the appointment of an administrator for LDR – the social worker proposed that the Public Trustee of Queensland be appointed;
    3. (c)
      and for an interim order – seeking interim appointments of a guardian and an administrator until the substantive applications have been decided.
  2. [2]
    On 27 June 2022 I decided to dismiss the application for the interim appointment of a guardian. I appointed an interim administrator, namely the Public Trustee of Queensland. The social worker has requested reasons, which I now provide.

Background

  1. [3]
    The tribunal has received a report from a specialist in rehabilitation medicine dated 21 June 2022. The report indicates that LDR has a number of conditions, including dementia. In the specialist’s opinion, LDR is able to make simple decisions but not complex ones. She has difficulty weighing up options and problem-solving. She is vulnerable to pressure from others.
  2. [4]
    LDR has been in hospital since mid-May 2022. Hospital staff have become aware that she has considerable funds from the recent sale of a jointly-owned home. Hospital staff have observed that LDR has appeared to be pressured by a family member (Relation A) into signing financial documents. These may be related to a proposed joint purchase of a new home. It has also been reported to hospital staff that Relation A has unsuccessfully sought access to funds belonging to LDR. These include funds held in a conveyancer’s trust account and funds held in a bank account. Hospital staff have also observed a different family member (Relation B) repeatedly questioning LDR about whether she is going to alter her will to benefit Relation B.
  3. [5]
    The social worker is concerned that LDR may lack capacity to make long-term financial decisions and testamentary decisions. The social worker is also concerned that future attempts by Relation A to access funds belonging to LDR might be successful.
  4. [6]
    The hospital is undertaking assessments of whether LDR can safely be discharged into the community, or whether she may need residential aged care. Accordingly, the commitment of substantial funds to purchasing another home may be imprudent at this time.
  5. [7]
    Hospital staff have also become aware of a temporary domestic violence protection order made in the Magistrates Court to protect LDR from Relation A. The order prohibits contact by Relation A with LDR, subject to certain exceptions. One exception is where LDR has given consent in writing, including by text or email. The social worker understands that police have been unable so far to locate Relation A, so the order has not yet been served on Relation A. The social worker is concerned that LDR could be pressured by Relation A into authorising contact.

Statutory framework

  1. [8]
    An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[1]
  2. [9]
    Even when risk exists, the making of an interim order is discretionary. The degree of risk will be relevant. An interim order should not be too readily made, for a number of reasons. These include the presumption of capacity in the Guardianship and Administration Act 2000 (Qld),[2] and the acknowledgement in the Act that an adult’s right to make their own decisions is fundamental to their dignity.[3] Significantly, an interim application usually must be decided without the adult and other parties having had an opportunity to present evidence, test evidence, and make submissions at an oral hearing.
  3. [10]
    A decision to appoint an interim substitute decision-maker limits an adult’s human rights. The rights affected will depend on the area or areas of appointment. For example, the interim appointment of a guardian to make accommodation decisions affects the adult’s freedom to choose where to live.[4] The interim appointment of a guardian for contact decisions affects the adult’s freedom of association.[5] The interim appointment of an administrator affects the adult’s property rights.[6] While such an appointment does not deprive the adult of their ownership of property, it impedes their freedom to deal with their property as they choose. Human rights may be limited only where that is demonstrably justified having regard to a range of factors.[7]
  4. [11]
    The Guardianship and Administration Act 2000 (Qld) also requires a least-restrictive approach.[8] General principles to be applied under the Act relate to matters such as individual autonomy, the role of families, the maintenance of existing supportive relationships, social participation, and liberty.[9]
  5. [12]
    Having said that, of course if there is an immediate risk of harm that is of a sufficient magnitude to require an interim order, the tribunal should make such an order.

Why was an interim administrator appointed?

  1. [13]
    There is sound evidence that LDR may have impaired capacity for financial decision-making. There is also evidence which causes me to be reasonably satisfied of an immediate risk of harm to LDR’s property. This risk emanates from Relation A, as outlined above. There is a real likelihood that Relation A will persist in efforts to access LDR’s funds and to pressure LDR into long-term financial decisions that may not be in her interests. The protection order may not remove the risk, because LDR might be pressured into authorising contact by Relation A. The mitigation of risk by the appointment of an interim administrator is justified, even though this limits LDR’s property rights. I am satisfied that the limitation, being one that is of a relatively short duration, is demonstrably justified after considering factors such as those set out in section 13(2) of the Human Rights Act 2019 (Qld).

Why was an interim guardian not appointed?

  1. [14]
    There is sound evidence that LDR may have impaired capacity for personal decision-making, so it is open to the tribunal to appoint an interim guardian if other criteria are satisfied.
  2. [15]
    A report filed by the social worker identifies accommodation, service provision and contact as areas of personal decision-making for which a guardian may be required. The substantive application also identifies health care as an additional area. However, the social worker has not explained why the statutory health attorney system in the Powers of Attorney Act 1998 (Qld) is insufficient. If there are health care options about which LDR lacks capacity to make decisions, and if there is no relation or close friend available and culturally appropriate to act as her statutory health attorney, then Public Guardian can act in that role.[10]
  3. [16]
    The social worker argues that the appointment of a guardian for contact decisions is urgently required because LDR may be coerced into authorising contact by Relation A. This would in turn expose LDR to probable emotional and financial abuse, the social worker contends.
  4. [17]
    In my view, the appointment of an interim administrator will protect LDR from the risk of financial abuse by Relation A. It would be over-reach, in my view, to appoint a decision-maker for contact at this point. Relations A and B are close relations of LDR. The tribunal does not know their views about the allegations against them. It is unknown at this stage whether Relation A will attempt to visit LDR despite the protection order, or whether Relation A will pressure LDR into authorising contact under the terms of the protection order. If it transpires that LDR authorises contact, and may inflict emotional or other harm on LDR, that can be dealt with at that time. That may involve a further interim application to the tribunal, or an application to the Magistrates Court to vary the terms of the protection order. I am not satisfied that there is presently a sufficient risk of harm to LDR in relation to contact by Relation A to warrant an interim order.
  5. [18]
    So far as contact by Relation B is concerned, the identified risk involves pressure upon LDR to change her will. The making or revoking of an adult’s will, as a ‘special personal matter’,[11] is not a matter for which a guardian (whether interim or ongoing) can be appointed.[12] It would, nonetheless, be open to the tribunal to appoint a guardian for contact decisions, who might prohibit visits by a person who could place undue testamentary pressure on an adult. However, the risk in LDR’s case is not sufficiently high, in my view, to justify the appointment of an interim guardian. Such a decision would be a significant limitation on LDR’s freedom of association, and it may serve to constrain what might generally be a supportive relationship. The likelihood of LDR changing her will while in hospital is presumably low. If LDR instructs a solicitor to prepare a new will or a codicil, it can be assumed that the solicitor would make appropriate enquiries about testamentary capacity given that the adult is in hospital.
  6. [19]
    Doubtless, an accommodation decision will need to be made by LDR or, if necessary, by a guardian on her behalf, in due course. Her home has recently been sold. A decision will need to be made about where LDR goes when she leaves hospital. Meanwhile, however, LDR is being cared for in hospital. There is not an immediate risk of harm to her if an accommodation decision is not made until later. Similarly, any service provision decisions can be made in due course, once it is known where LDR will be living.

Conclusion

  1. [20]
    For the above reasons, I decide to appoint an interim administrator but not an interim guardian.

Footnotes

[1]Guardianship and Administration Act 2000 (Qld), s 129(1).

[2]Ibid, s 11(1).

[3]Ibid, s 5(a).

[4]Human Rights Act 2019 (Qld), s 19.

[5]Ibid, s 22(2).

[6]Ibid, s 24.

[7]Ibid, s 13.

[8]Guardianship and Administration Act 2000 (Qld), s 5.

[9]Ibid, s 11B.

[10]Powers of Attorney Act 1998 (Qld), s 63(2).

[11]Guardianship and Administration Act 2000 (Qld), Schedule 2, s 2, s 3(a).

[12]Ibid, s 12(1).

Close

Editorial Notes

  • Published Case Name:

    LDR

  • Shortened Case Name:

    LDR

  • MNC:

    [2022] QCAT 274

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    19 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.