BDG

[2010] QCAT 112

CITATION:      BDG [2010] QCAT 112

PARTIES:   BDG

APPLICATION NUMBER:            GAA688-10

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   2 March 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   2 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of guardian continued

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

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 4 March 2008 the Guardianship and Administration Tribunal appointed BCD and NJG as guardians for BDG (the adult). 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 appointments are being reviewed today on the basis of information on the Tribunal file. On 28 January 2010 notice of this review hearing was sent to the adult and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

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.

CAPACITY

1. The first matter to be considered by the Tribunal is whether BDG has capacity for decision-making about his matters.  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: report of Dr Laherty of 31 October 2007 in which it was stated that BDG had sustained severe head injuries in a motor vehicle accident in 2007 from which he had made minimal neurological recovery.   An assessment by the Aged Care Assessment Team established that BDG had high level care needs.  The director of nursing at the nursing home facility where BDG resides has stated that BDG is unable to speak and has a cognitive impairment. 

1. The Tribunal made findings of fact about capacity as follows: BDG has a cognitive impairment as a result of sustaining sever head injuries in an accident.  He has made minimal neurological recovery, he cannot speak and he has high care needs being met in a nursing home. 

1. The Tribunal finds that the evidence established that BDG cannot understand the nature and effect of decisions about personal matters and he is not capable of communicating decisions to others. 

CONCLUSION

1. The Tribunal determines that BDG does not have capacity to make decisions about his personal matters. 

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: BDG is fully dependent on care providers.  He has a range of medical needs arising from the effects of his injuries and he is receiving nutrition via percutaneous endoscopic gastrostomy. 

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

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN/S BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardians:  There is no current information about the decisions made by the guardians.  An oral hearing is required to establish what the decisions were made during their appointment and what decisions will need to be made in the future.   An oral hearing has been scheduled for 1 April 2010. 

2. The Tribunal is required by section 31 to continue the appointment of the current guardians if it is satisfied that a guardian is required unless it is established that the appointees are no longer competent or another person is more appropriate for appointment. There is no evidence on which to make a finding that the appointees are no longer competent and no other person has sought appointment as guardian.

APPOINTMENT

1. The appointment of BCD and NJG is continued as joint guardians for BDG for four months to make decisions about accommodation, health care and provision of services.