QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	HMR [2022] QCAT 293	
PARTIES:	In an application about matters concerning HMR	
APPLICATION NO:	GAA12660-21	
MATTER TYPE:	Guardianship and administration matters for adults	
DELIVERED ON:	21 June 2022	
HEARING DATE:	30 March 2022	
HEARD AT:	Brisbane	
DECISION OF:	Member Kanowski 	
ORDER:	The application by DTA for the appointment of a guardian for HMR is dismissed.	
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – OTHER MATTERS – where joint attorneys were unable to agree on where principal should live – where joint decision eventually reached by acquiescence – whether guardian should be appointed 
Guardianship and Administration Act 2000 (Qld), s 12(1)(b)
Powers of Attorney Act 1998 (Qld), s 34	
APPEARANCES & REPRESENTATION:	

Adult:	
Did not attend	

Applicant; current joint enduring guardian (attorney for personal matters); proposed guardian:	
DTA (daughter of adult)	

Current joint enduring guardian (attorney for personal matters):	
DTB (daughter of adult)	

Current attorney for financial matters:	
Robert Locke (adult’s former solicitor)	

Public Guardian:	
Did not attend	

Public Trustee:	
Did not attend	

REASONS FOR DECISION
Introduction
[1]	This application relates to a 92 year-old man who I will refer to in these reasons as HMR. To protect his privacy, I will also refer to his daughters by pseudonyms:
(a)	DTA for his daughter who lives in Queensland; and
(b)	DTB for his daughter who normally lives overseas.
[2]	HMR has dementia. He was widowed in April 2021. He spent most of his life in Tamworth, New South Wales, and he owns a home there. He has been living in an aged care facility in Queensland, near DTA’s home, since September 2021.
[3]	DTA and DTB are joint enduring guardians for HMR, and Robert Locke, HMR’s former solicitor, is financial attorney for HMR. These appointments are under enduring documents made by HMR in Tamworth in 2010. Although these appointments were made in New South Wales, they are effective in Queensland by virtue of section 34 of the Powers of Attorney Act 1998 (Qld). It should be noted, though, that in Queensland the role of enduring guardian would be termed attorney for personal matters. Accordingly, in these reasons I will refer to the role as enduring guardian (attorney for personal matters). The term ‘guardian’ will be used to refer to a guardian appointed by the tribunal.
[4]	On 13 September 2021 DTA applied to the tribunal for the appointment of a guardian for HMR. She proposed that she be appointed sole guardian. Such an appointment would overtake the appointment of the enduring guardians (attorneys for personal matters) to the extent of inconsistency. The motivation for DTA’s application was that DTA and DTB had been unable to agree about where HMR should live. DTA arranged for HMR to move into aged care. At that time, DTB was unable to visit Australia because of Covid-19 restrictions. When she was finally able to visit in late November 2021, she formed the view that this was not the best placement for HMR. She proposed that HMR move back to the family home in Tamworth to be closer to friends and other relatives. DTB proposed that she would stay in Australia to care for HMR, with assistance from paid carers. DTA did not agree with DTB’s proposal, contending that adequate care cannot be provided in the home environment. 
[5]	Meanwhile, HMR has remained in the aged care facility in Queensland. 
[6]	DTA’s application for the appointment of a guardian proceeded to hearing by telephone on 30 March 2022. The active parties who attended were DTA, DTB and Mr Locke. Other people also attended: HMR’s sister-in-law, some family friends, and a gerontologist engaged by DTB.
[7]	A tribunal-initiated application for an order about an enduring power of attorney was also heard on 30 March 2022. I dismissed that application at the conclusion of the hearing and gave oral reasons for so doing.
[8]	In relation to DTA’s application for the appointment of a guardian, that application was left undecided, to give DTA and DTB more time to see if they could reach agreement. During the hearing it had emerged that DTA and DTB were prepared to explore the option of moving HMR to an aged care facility in Tamworth.
[9]	I made directions for DTA to advise the tribunal by 27 April 2022 whether a joint decision had been reached and, if appropriate, to file an application for leave to withdraw. I made additional directions to the effect that if the application for the appointment of a guardian was not withdrawn, I would proceed to decide it on the available information.
[10]	On 26 April 2022 the tribunal received emails from DTA and DTB. The upshot was that they had not reached a mutual preferred position about HMR’s accommodation. DTA remained of the view, after considering various options, that HMR should remain permanently in his current facility. DTB had advised DTA by email on 25 April 2022 that she agreed to HMR remaining there. Even though this was not DTB’s preferred outcome for HMR’s accommodation, she was making this concession so that she and DTA could remain joint enduring guardians (attorneys for personal matters) rather than run the risk that the tribunal might appoint the Public Guardian to make the accommodation decision. DTA indicated to the tribunal that she would like some time to consider this latest development. 
Should a guardian be appointed?
[11]	Several requirements must be met before the tribunal can appoint a guardian for an adult, but it is necessary to focus on only one in this instance. There must be a need for a decision in relation to a personal matter, or a situation where ‘the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property’.
[12]	The personal matter in question in this case is where HMR lives. There is no suggestion that HMR might do something himself about that matter that involves risk. Further, I find that there is no longer a need for a decision about that personal matter. A decision has been made by the enduring guardians (attorneys for personal matters) that HMR is to remain at his current facility. This is a joint decision, albeit one reached, eventually, by DTB’s acquiescence to the position maintained by DTA. That is not an illegitimate type of decision-making: on some occasions, joint decision-makers are able to reach agreement only by one acquiescing to the other.
[13]	The accommodation decision that has been reached is one that appears reasonable and appropriate, notwithstanding that other options, such as the one preferred by DTB, may also have been reasonable and appropriate. In many instances confronted by substitute decision-makers, there will be no single right option about where a person should live.
[14]	The decision that has been reached will enable Mr Locke as financial attorney to make the contractual and financial arrangements associated with permanent placement at the current facility. 
[15]	It has not been suggested that a guardian is required for other personal matters, though I have considered the possibility that DTA and DTB might be unable to agree in relation to other personal matters. Their relationship is in a state of some fracture, and that may take time to heal. However, it is not obvious that there will be other significant personal decisions to be made into the foreseeable future, except perhaps in relation to health care. However, neither DTA nor DTB appear to be inherently unreasonable. Each had a well-reasoned explanation for their preferred position on accommodation. I consider it likely that they will be able to reach joint decisions on health matters and any other personal matters that might arise.  
[16]	As I have found that there is no need for a decision by a guardian in relation to a personal matter, and no unreasonable risk, I have concluded that the tribunal cannot appoint a guardian for HMR. 
Conclusion
[17]	Accordingly, the application by DTA for the appointment of a guardian for HMR is dismissed.