IHC [2021] QCAT 141

Date: 17 May 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Casey
Human Rights Act 2019 (Qld) Sections: ss 13, 19, 24, 25, 48
Rights Considered: Freedom of movement; Property rights; Right to privacy and reputation
Other Legislation: Guardianship and Administration Act 2000 (Qld) (‘GAA’) ss 12, 14, 15, 22(2), 82(2), Schedule 4; Powers of Attorney Act 1998 (Qld) (‘POAA’) ss 41(2), 44, 62, 113(2).
Keywords: Health, Mental Health, Guardianship

This case concerned several applications by IHC’s sons SHM and BHJ to be appointed as Guardian, Administrator and Enduring power of attorney. Member Casey ordered that the Public Guardian be appointed as guardian for IHC regarding accommodation and healthcare, and the Public Trustee appointed as administrator for all financial matters. In doing so, Member Casey held that this was a reasonable limitation on IHC’s human rights.

In August 2020, IHC appointed her son, SHM, her Enduring Power of Attorney for personal and health matters. In November 2020, the Tribunal received an application from IHC’s second son BHJ seeking sole appointment as guardian, joint appointment with SHM as administrator for the adult, and an interim order. The interim order was dismissed. In January 2021, an interim order appointed the Public Trustee as administrator for the adult for all financial matters. Further applications were received that month by BHJ, who sought sole appointment as guardian and administrator, along with an application for an order about the Enduring Power of Attorney.

Relevantly, there is an established pattern of negative communications between SHM and BHJ: at [50]. At the Tribunal hearing they were not able to engage in productive discussions. They submitted various affidavits alleging the unsuitability of each other.

IHC has a diagnosis of mixed (Alzheimer’s and vascular) dementia. IHC has progressive cognitive defecits across a number of domains such as orientation, concentration, executive function and recall. Clinical evidence shows IHC’s decision-making ability is limited to communicating simple day-to-day choices: at [29]. The Tribunal was concerned with whether the current decision-making regime was effectively meeting IHC’s needs and protecting her interests. The tribunal was not satisfied that IHC understood the nature and effect of her financial decisions (both simple and complex) or complex personal decisions: at [31].

There was concern regarding the appropriate accommodation — the Public Trustee had IHC (SHM agreeing) in a residential aged care facility, however BHJ was not convinced IHC needed 24/7 care on a permanent basis in a dementia unit: at [43]. The conflictual relationship results in SHM’s appointment as Power of Attorney being not in the best interests of the adult: at [51]. There is no other appropriate person available, and so the Tribunal appointed the Public Guardian: at [55].

SHM withdrew his application to be administrator. The Tribunal was not satisfied BHJ would be able to liaise effectively with all stakeholders and thus appointed the Public Trustee of Queensland as administrator for IHC in all financial matters: at [70].

Member Casey recognised the Tribunal was subject to the Human Rights Act 2019 (Qld) and that any limitation placed on IHC’s rights, such as IHC’s ‘rights to privacy, freedom of movement, and property’ are inherently limited by these appointments: at [71]. However, Member Casey was of the opinion that taking into account the facts of the circumstances, the benefits of the decision outweigh the limitations placed on IHC’s human rights: at [71]. The limitations are thus reasonable and demonstrably justified in accordance with section 13 of the HRA.

Visit the judgment: IHC [2021] QCAT 141