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DLD [2020] QCAT 237

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Date: 2 July 2020
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Allen
Human Rights Act 2019 (Qld) Sections: ss 9, 13, 15, 19, 24, 25, 26, 29, 30, 31, 37
Rights Considered: Right to recognition and equality before the law; Freedom of movement; Property rights; Right to privacy and reputation; Right to protection of families and children; Right to liberty and security of person; Right to humane treatment when deprived of liberty; Right to a fair hearing; Right to health services
Other Legislation: Guardianship and Administration Act 2000 (Qld), s 12, Schedule 2; Powers of Attorney Act 1998 (Qld), ss 66, 84, 116, General Principles

Keywords: Guardianship; Interpretation

The Tribunal considered the appointment of a suitable guardian and administrator for a woman experiencing impaired decision making as a result of  dementia. The Tribunal noted several rights under the Human Rights Act 2019 (Qld) were engaged by its decision, including the right to recognition and equality before the law (section 15), freedom of movement (section 19), property rights (section 24), the right to privacy and reputation (section 25), the right to protection of families and children (section 26), the right to liberty and security of person (section 29), the right to humane treatment when deprived of liberty (section 30), the right to a fair hearing (section 31), and the right to health services (section 37). The Tribunal considered the options for DLD and found that there was ‘no less restrictive way’ to ensure appropriate decisions could be made than revoking the pre-existing Enduring Power of Attorney and appointing the Public Guardian and the Public Trustee to manage their affairs.

This case concerned the appointment of a suitable guardian and administrator for DLD, an 89-year-old woman suffering from dementia who, in 2019, was placed in an aged care facility. DLD had five children. At various times several of her children had provided support to her as attorney pursuant to an Enduring Power of Attorney but there was conflict between them. DLM, DLD’s eldest son, made an application to the tribunal for the appointment of a guardian and administrator due to concerns about DLD’s welfare in an aged care facility and the conduct of his siblings who had power of attorney for their mother.

The Tribunal was satisfied that DLD had impaired capacity and that pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld), it should determine if DLD’s needs could be met ‘without the appointment of a formal decision-maker,’ taking into account whether ‘DLD is able to make any necessary decisions with informal support’ or if the current arrangement with DJK and DJC was ‘suitable to meet her needs’: at [11]-[12]. To this end, the Tribunal examined medical evidence and held that DLD had ‘impaired capacity for personal and financial decisions’: at [20].

The Tribunal noted several rights under the Human Rights Act 2019 (Qld) that were relevant to its decision, including: recognition and equality before the law (section 15), freedom of movement, including choosing where to live (section 19), property rights (section 24), privacy and reputation, including not to have the person’s family interfered with (section 25), protection of families and children (section 26), right to liberty and security of person (section 29), humane treatment when deprived of liberty (section 30), fair hearing (section 31), and the right to health services (section 37): at [14].

The Tribunal held that the role of an attorney includes exercising powers ‘honestly and with reasonable diligence to protect the principal’s interests,’ including DLD’s care and welfare. As such, in response to DLD’s distress, the attorneys were ‘required to do whatever is necessary to ensure that she is able to return to a state of comfort as much as she can having regard to her general condition’ and their decision to restrict family visitations was not effective in this regard: at [54].

Furthermore, due to the family’s disagreements regarding DLD’s care, the Tribunal found it appropriate to appoint the Public Guardian, instead of a family member, to ensure ‘DLD’s best interests can be met’: at [60]. It was noted that in relation to the requirements of the Human Rights Act 2019 (Qld), DLD did not have the capacity to make personal and financial decisions as her care and welfare were ‘not being adequately met’ and there was no ‘less restrictive way of ensuring this without the appointment of a guardian so that the decisions are made appropriately’: at [61]. The Tribunal also appointed the Public Trustee to manage DLD’s finances determined it would review the appointment in five years: at [62], [72]-[76]. The existing enduring power of attorney was revoked: at [77].

Visit the reported judgement: DLD [2020] QCAT 237