AAM

[2010] QCAT 30

CITATION:      AAM [2010] QCAT 30

PARTIES:   AAM

APPLICATION NUMBER:            GAA7756-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   5 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   5 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of administrator continued

CATCHWORDS: Review of appointment of administrator – section 31 of Guardianship and Administration Act 2000 – appointment continued

APPEARANCES and REPRESENTATION (if any):

The hearing was conducted on the papers in the absence of parties.

REASONS FOR DECISION

1. On 16 December 2004 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland (The Public Trustee) as administrator for AAM (the adult) for a period of five years from his eighteenth birthday on 8 January 2005. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal.

1. The appointment is being reviewed today on the basis of information on the Tribunal file. On 4 December 2009 notice of this review hearing was sent to the adult and on 18 November 2009 to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. AAM is 22 years old and resides in supported accommodation provided by a service provider.

1. When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.

1. The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. 

CAPACITY

1. The first matter to be considered by the Tribunal is whether AAM has capacity for decision-making about his financial affairs.  There is a presumption at law that all adults have the capacity to make their own decisions.  That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether the adult has decision making capacity or not.

1. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions. 

1. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-

   (a)understanding the nature and effect of decisions about the matter; and

   (b)freely and voluntarily making decisions about the matter; and

   (c)communicating the decisions in some way.

1. The Tribunal considered the following evidence about capacity: AAM has been diagnosed with autism, developmental delay and has a severe level of intellectual disability.  Dr Loxton in 2004 reported that AAM had no understanding of finances.  AAM only has a few words of speech.  No new information was provided to the Tribunal to dispute the evidence on decision making capacity that had been current in 2004.  

1. The Tribunal made findings of fact about capacity as follows: AAM has autism, developmental delay and a severe level of intellectual disability.  He has very limited speech and he cannot understand information about his finances. 

1. The Tribunal finds that the evidence established that AAM cannot understand the nature and effect of decisions about financial matters, is not capable of making decisions freely and voluntarily and is not capable of communicating decisions. 

CONCLUSION

1. The Tribunal determines that AAM does not have capacity to make decisions about financial matters. 

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?

1. The evidence in the file is that: AAM resides in supported accommodation resulting in a level of expenditure that he has to meet regularly.  He is in receipt of a disability support pension from Centrelink and a mobility allowance. There are decisions that need to be made to manage his income and expenditure.  AAM has accumulated considerable savings that must be secured, invested and managed to meet future needs.  

1. Based on the information set out above, the Tribunal determines that there is a need for decisions about AAM’s financial affairs and without an appointment the needs of AAM will not be adequately met or his interests will not be adequately protected.

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current administrator: The Public Trustee has prepared a budget of income and expenditure that covers the anticipated needs of AAM. The administrator has invested surplus income in a conservative investment which provides funds for the future needs of AAM.  The parents of AAM support the ongoing appointment of The Public Trustee as their son’s administrator. 

2. No other person has sought to be appointed as AAM’s administrator.

3. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has acted competently as administrator.  A budget, prepared by the administrator, was approved by the Guardianship and Administration Tribunal and a recent briefing report confirmed the appropriateness of the actions being undertaken by the administrator in managing the financial affairs of AAM.   

CONCLUSION

1. The Tribunal is satisfied that The Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs.  The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience.  The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.

APPOINTMENT

1. The appointment of The Public Trustee of Queensland is continued as administrator for AAM to make decisions about all financial matters.  The appointment will continue indefinitely until further order of the Tribunal as on the evidence the Tribunal is satisfied that there is no present likelihood that AAM will develop decision making capacity about his financial affairs in the foreseeable future.    

2. The administrator must provide accounts to the Tribunal when requested.