FSC

[2013] QCAT 278

CITATION: FSC [2013] QCAT 278

PARTIES: FCS

APPLICATION NUMBER: GAA4585-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 4 June 2013

DELIVERED AT: Brisbane

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

CATCHWORDS:

GUARDIANSHIP – where interim appointment of administrator sought – where adult sustained some neurological impairment following stroke – where no immediate risk of harm to adult’s property or assets established

Guardianship and Administration Act 2000 section 129

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. FSC suffered from an episode of ischaemic stroke after coronary artery bypass grafting in 2012.  He has permanent neurological deficits and aphasia.  FSC lives in Hong Kong but he has assets in Queensland.  On 31 May 2013 his family applied to QCAT for the appointment of an administrator to make decisions about FSC’s financial affairs in Queensland.

2. 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 and without deciding whether or not a person has impaired decision making capacity.

3. The applicants sought an interim appointment of an administrator so that instructions can be given to banks and other entities on behalf of FSC before the hearing of the application by QCAT. Section 129 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.

4. There is a presumption at law that all adults have the capacity to make their own decisions. An appointment of a substituted decision maker should not be made unless that presumption of capacity has been rebutted. The medical evidence provided by the applicants does not rebut the presumption of capacity in that the extent of any cognitive impairment possibly arising from the neurological deficits subsequent to the stroke has not been established to impair FSC’s decision making capacity. However the tribunal can nevertheless make an interim appointment under section 129(2) if the factors required by section 129(1) are otherwise established to the satisfaction of the tribunal.

5. The applicants must establish that there is an immediate risk of harm to FSC’s welfare or property.  The applicants failed to establish that factor to the satisfaction of the tribunal.  According to the information provided by the applicants, FSC has income in Australia of $1,254 per fortnight and his expenses, including mortgage repayments, are $1,265.50 per fortnight.  The family has been paying expenses on behalf of FSC due to their difficulties in accessing the funds of FSC.  The family did not state that these arrangements were causing any immediate risk of financial harm to FSC, although it is not unlikely that the arrangements are causing inconvenience to the family.

6. The information provided to the tribunal reveals that FSC has several bank accounts in Australia with over $50,000 in funds and that he owns some shares and some real estate in Brisbane.  FSC has a mortgage of about $360,000 on which the current advance repayment arrangements are due to expire at the end of June and re-negotiation of repayment arrangements would be needed.    

7. The tribunal was satisfied that it would be beneficial to FSC and to his family if decision makers were in place as soon as possible to authorise ongoing arrangements about the mortgage and generally about the assets and income of FSC. However that is not enough to justify QCAT making an interim appointment under section 129.

8. The information provided did not convince the tribunal that FSC would be at an immediate risk of harm unless an appointment of an administrator was made at this stage.  A hearing of the application is likely to be arranged within the next three months when the issues of impaired capacity and need for an appointment can be considered and determined by the tribunal.

9. 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.

10. The application for an interim order is dismissed.