CB

[2013] QCAT 421

CITATION: CB [2013] QCAT 421

PARTIES: CB

APPLICATION NUMBER: GAA3472-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 29 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   The application for an interim order is dismissed

CATCHWORDS:

GUARDIANSHIP – where attorneys in dispute – where evidence did not disclose an immediate risk of harm

Guardianship and Administration Act 2000 s 129

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. CB is 85 years of age.  She appointed three attorneys to make decisions about personal, health and financial matters on 15 October 1999.  One of the attorneys has pre-deceased CB and the other two attorneys continue in that role. 

2. A dispute has arisen between the attorneys as to decisions about CB’s property.  In particular one attorney wants the house owned by CB to be immediately sold but the other attorney has taken steps to have the house tenanted out.  Allegations of mis-management have been raised.  There is also some dispute over care issues for CB.

3. One of the attorneys, CE, applied to QCAT seeking the appointment of a guardian and administrator for CB.  In addition CE sought interim orders with a view to having decisions made about health and care issues and to having a decision made about the sale of the house before a new tenancy agreement was entered into. The application for the appointment for the appointment of a guardian and an administrator was opposed by the other attorney, OA, and by another member of CB’s family.  They also opposed the making of the interim orders sought by CE.

4. QCAT has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are made after a hearing of the application and when the presumption of capacity has been rebutted. However QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of the Guardianship and Administration Act 2000 without a hearing.

5. Section 129 of that Act permits the tribunal to make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.

6. The information provided to QCAT has established that there are some disputes between the attorneys.  However it is clear that the major dispute arises from a difference of opinion as to how best to manage the financial affairs of CB.  CE contends that CB is at risk of financial loss due to the actions of OA but that contention is denied by the other attorney.  Both attorneys have provided information supporting the basis on which they have arrived at their respective opinions. 

7. The evidence provided to the tribunal did not satisfy me that there is an immediate risk of harm to the welfare and property or assets of CB.   She is in care and being provided with services.  Her property and assets are being managed and if any losses have arisen due to a breach of the obligations of the attorneys, steps are available to make good any such loss.   It was not submitted that CB was at risk of losing her assets in the immediate future.  A hearing of the application is likely to be arranged within the next three months when the issues of the need for an appointment and who should be appointed can be considered and determined by the tribunal.

8. Orders made under section 129 are discretionary in nature. An interim appointment should only be made when a relevant risk of harm is established on the evidence. An interim appointment should not be made merely because it would be more convenient than waiting for a hearing in the normal course of events.

9. The application for interim orders under section 129 of the Guardianship and Administration Act 2000 is dismissed.