NHF [2021] QCAT 412

Date: 1 December 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) ss 5, 11, 12, 14, 15, sch 4; Powers of Attorney Act 1998 (Qld) ss 43, 62, 70, 85, 86, 87, 103, 109A, 116; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 46(2)
Keywords: Health, Mental Health, Guardianship

This case concerned an application for the appointment of the Office of the Public Guardian and the Public Trustee of the Queensland as guardian and administrator, respectively, for NHF, revoking a previous Enduring Power of Attorney. In making the guardianship and administration order, the Tribunal held that this was a reasonable limitation on NHF’s human rights and there were no less restrictive means available.

The Tribunal was satisfied that the medical evidence indicated that NHF’s cognitive deficits associated with dementia impaired his capacity to make decisions in respect of financial and personal matters: at [29]. Additionally, they held that the current decision-making scheme was not meeting NHF’s needs nor protecting his interests and should be revoked: [42]-[45]. It was, therefore, appropriate to appoint the Office of the Public Guardian and the Public Trustee of Queensland as guardian and administrator, respectively.

Member Casey recognised that the Tribunal was subject to the Human Rights Act 2019 (Qld) and that NHF’s right to privacy and reputation (section 25), freedom of movement (section 19), and property rights (section 24) were engaged and limited by the Tribunal’s appointment of the Office of the Public Guardian and Public Trustee of Queensland as respective guardian and administrator for NHF: at [55]. The Tribunal accepted that it must interpret statutory provisions as far as possible in a way that is consistent with human rights (section 48).

On the evidence provided by the parties, the Tribunal was satisfied that the benefit of the appointments would be that he would have his finances managed, and that he would therefore be able to access the accommodation and health care that he needed. These benefits were said to justifiably outweigh ‘any limitations imposed on [NHF]’s human rights’ and that it was the ‘least restrictive option given [his] vulnerability’: at [55].

Visit the reported judgment: NHF [2021] QCAT 412