Date: 5 November 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Case
HRA Sections: ss 13, 24, 25, 48
Rights Considered: Property rights; Right to privacy and reputation
Other Legislation: Guardianship and Administration Act 2000 (Qld), ss 12, 14, 15, 82(2), 100, 103, 104, 109, 110, 111, 119, Schedule 4; Powers of Attorney Act 1998 (Qld) ss 44, 62, 113(2)
Keywords: Health, Mental Health and Guardianship; Privacy and Confidentiality

The Tribunal heard an application for the Public Guardian to be appointed as guardian for DKM. The Tribunal further initiated an application for the appointment of an administrator. The Tribunal considered DKM’s property rights (section 24) and right to privacy and reputation (section 25) under the Human Rights Act 2019 (Qld).

DKM was 79 years of age, and was living with and being cared for by her daughter, DR. DKM also received in-home care from a non-governmental organisation.

An application was made by the director of the non-governmental organisation providing nursing care to DKM, for the Public Guardian to be appointed as guardian for DKM. The Tribunal initiated applications for the appointment of an administrator and an order about an Enduring Power of Attorney.

The Tribunal was not satisfied that DKM understood the ‘nature and effect of her financial and complex personal decisions’: at [19] and [20]. An Enduring Power of Attorney dated 20 June 2017, appointing DR as attorney for financial personal and health matters, was declared invalid as the witness did not ascertain DKM’s understanding of the nature and effect of the document: at [26]-[29]. 

The application for the appointment of a guardian was dismissed on the basis that DKM’s needs would be met by her family and her interests would be protected by the Statutory Health Attorney: at [41-42]. The Tribunal noted the family’s ‘deep Hindu faith’: at [37]. The Tribunal concluded that DKM’s accommodation and care arrangement were ‘culturally and religiously significant’ to DKM and her family, and that her current accommodation was ‘both stable and appropriate’: at [37]-[39].

In respect of the application for an administrator, the Tribunal found that DKM required assistance with respect to financial decisions to ensure her financial needs were met and her financial interests protected: at [45] and [46]. In deciding whether DR or the Public Trustee of Queensland was the appropriate administrator for DKM, the Tribunal stated that it ‘gave consideration’ to the Human Rights Act 2019 (Qld): at [52]. The Tribunal recognised that pursuant to section 48 of the Act, it was required to ‘interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights’: at [52]. The Tribunal considered that DR had knowledge of DKM’s ‘holistic circumstances’ and had ‘informally managed the adult’s income so that funds have been available for the adult’s requirements having regard to her accommodation, care, religious and cultural considerations’: at [49]

The Tribunal appointed DR as administrator for DKM for all financial matters. In doing so, it considered that DKM’s property rights (section 24) and right to privacy and reputation (section 25) were engaged and limited by the appointment of an administrator, but that these limits were ‘reasonable and demonstrably justified in accordance with section 13’ of the Human Rights Act 2019 (Qld): at [52].

Visit the judgement: DKM [2020] QCAT 443