HAC [2022] QCAT 104 - HAC [2022] QCAT 116

Date: 3 February 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: A/Senior Member Traves
Human Rights Act 2019 (Qld) Sections: s 9
Rights Considered: N/A
Other Legislation: Guardianship and Administration Act 2000 (Qld) s 129; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Keywords: Health, Mental Health, Guardianship; Public Law Considerations: Public Entity

This case concerned an application for the appointment of a guardian and administrator for HAC: at [1]. On the same day the application was made, an application was also made for an interim order seeking the appointment of an administrator and guardian for HAC on the basis of allegations of neglet of HAC’s care and exploitation of her property, though no evidence was tendered in support of these allegations: at [4]–[5].
In refusing to make the interim order, A/Senior Member Traves held that the appointment of a guardian and administrator on an interim basis was a serious incursion on HAC’s human rights, and that there were no reasonable grounds for making the order: at [14]–[15].

This case concerned an application for the appointment of guardians and administrators for HAC made by her son, WC. Mr C was proposed as both administrator and guardian; he would act jointly in the latter role with another proposed guardian who was not named in the application: at [1].

On the same day the application was made, Mr C made an application for an interim order seeking the appointment of an administrator and guardian for HAC: at [4]. Mr C indicated in his application that the order was necessary on the basis of allegations of neglect of HAC’s care and exploitation of her property, though he did not provide evidence of this to the Tribunal, nor was it clear who these allegations were levelled at: at [4]–[5].

A/Senior Member Traves made an order dismissing the application for an interim order for the reason that she was not satisfied that there was an “immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult,” as required under s 129 of the Guardianship and Administration Act 2000 (Qld): at [7], [9]. She found that there was no evidence that HAC was in any immediate risk of harm at her Nursing Home, nor that her attorneys (Mr C (HAC’s son), and BG (HAC’s niece)) who were appointed through an enduring power of attorney were either invalidly appointed or acting inappropriately: at [10]–[11].

A/Senior Member Traves recognised that the Tribunal was subject to the Human Rights Act 2019 (Qld) in making a decision to appoint an administrator or guardian under the Guardianship and Administration Act 2000 (Qld), due to it being, in the course of making such a decision, a ‘public entity’ acting in an ‘administrative capacity’: at [14]. A/Senior Member Traves cited s 9(4)(b) in this regard. She also recognised that such an appointment of an administrator or guardian is a serious incursion on a person’s human rights as it transfers exclusive control of a person’s capacities to another. This was particularly so when it was done on an interim basis, whereby the usual legal protections and rights of adults with impaired capacity do not apply: at [14].

For this reason, she was not satisfied that reasonable grounds existed for the making of an interim order and the application for an interim order was dismissed: at [15].

Visit the judgment: HAC [2022] QCAT 104