BI
[2012] QCAT 444
•21 August 2012
| CITATION: | BI [2012] QCAT 444 |
| PARTIES: | BI |
| APPLICATION NUMBER: | GAA6585-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 21 August 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | Diane Turner, Member |
| DELIVERED ON: | 21 August 2012 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The application for the appointment of an administrator for BI is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where application made for declaration about capacity by manager of hostel – adult vulnerable to financial abuse – no evidence of impaired incapacity – bad judgments not sufficient Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| BI | Adult |
| WG | Applicant (Manager Residential Hostel) |
| SS | Support Worker |
REASONS FOR DECISION
History of the Application:
BI (“the Adult”) is a 48 year old Caucasian gentleman who is, tragically, paraplegic and bilateral amputee (above the knee).
The Adult resides at the Wotton Lodge Hostel where WG, the Applicant, is the manager.
WG lodged an application seeking the appointment of an administrator for the Adult on 15 June 2012.
WG made application for an order to be made urgently on an interim basis as he believes the Adult is vulnerable and is being exploited by an international organization who scam vulnerable people from Nigeria.
The urgent application was dismissed and the matter set down for hearing on 21 August 2012 in Townsville.
The Issues and Legislation:
The issues for the Tribunal are:
a. Does the Adult have capacity for financial matters?
b. Is there a need for an Administrator?
c. If there is a need for an Administrator, who should be appointed?
The Tribunal is required to determine capacity as at the date of hearing in accordance with s 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before considering the appointment of an administrator for the adult.
The Adult is presumed to have capacity in accordance with s 7 of the Guardianship and Administration Act 2000 and general principle 1 of the Schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the written evidence and submissions from the attendees to determine if the presumption of capacity has been rebutted for the adult.
The Guardianship and Administration Act 2000 defines capacity as follows:
“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.”
The Tribunal, when considering the appointment of a guardian or an administrator, must be satisfied not only in regard to capacity, but also all of the other matters set out in s 12 of the Guardianship and Administration Act 2000.
If the Tribunal determines that there is a need for the appointment of an administrator for BI, the Tribunal in deciding who to appoint in that role, will in accordance with subsection 14(1)(c) of the Guardianship and Administration Act2000 have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000.
The Evidence
In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below.
Written Evidence
The Tribunal had the benefit of the following written evidence:
a.A Medical Health Report by Ms OS, a Registered Nurse.
Ms OS provided the following evidence:
“The Adult is a long term user of illicit drugs. He currently is sending his money overseas? A scam, and consequently has a larger than usual pharmacy bill and if unable to pay his rent is in danger of being homeless.”
“BI appears to be the victim of a scam which he absolutely denies – he has sent large sums of money overseas.”
“Unless reminded BI has very poor personal hygiene – he has a long standing wound on hip which is adversely affected by poor nutrition to promote healing.”
“BI’s long term substance abuse has affected his cognitive abilities. He often relates stories of his past which are not founded on truth.”
Oral Evidence
WG provided the following oral evidence:
a.That for approximately the last 3 years, since the Adult was discharged from hospital, following his amputations, he – WG – has had control of the Adult’s finances.
b.This arrangement was made by agreement between the Adult, the hospital and WG because of the Adult’s drug dependency at that time.
c.The Adult’s rent is paid directly by Centrelink (the Adult receives a Disabilty Support Pension) and WG would pay all bills and give the Adult his spending money.
d.WG provided further evidence that on discharge from hospital the Adult had been addicted to Soboxone and was on a program to wean him off. He was spending $130.00 per month for drugs to assist him on the program.
e.The Adult successfully weaned himself off drugs approximately 2 years ago, which resulted in an extra $130.00 per month in income which WG put into savings.
f.Over the past 2 years WG managed to save, on the Adult’s behalf, $2,600.00 and the Adult was debt free.
g.In March this year, the Adult informed WG that he now wanted to take control of his own finances and WG returned the Adult’s bank card to the Adult.
h.WG also provided oral evidence, but no written evidence, that the Adult also obtained a $1,000.00 credit from Centrelink.
i.WG alleges that all of this money has gone, and the Adult now has a debt of several hundred dollars to the pharmacy.
j.WG provided evidence that on questioning the Adult, he admitted that he had sent some money via Western Union to Nigeria.
k.WG contacted the Police who said there was nothing they could do, but if monies were being sent via Western Union then it was almost definitely a scam.
l.WG was concerned that the Adult had a third share in a house and that when the house was sold (although there seemed to be no immediate plans to sell the house) there was a fear that the Adult would be exploited into giving away the proceeds of sale which would probably be in the region of $90,000.00.
m.WG also gave evidence that the Adult “lives in a dream world.”
WG was unable to provide any bank statements or receipts to prove how the Adult’s money had been dispersed.
The Adult provided the following oral evidence:
a.He had indeed spent all his money but most of it had been spent paying back friends from whom he had borrowed money.
b.He had sent $300.00 to a lady friend, named Sandra, who used to live on Magnetic Island but was now working for Guinness in Scotland and Guinness have a base in Nigeria.
c.He should be allowed to spend his money in any way he wanted.
Conclusion
The Adult suffers severe physical impairment, and is in consistent pain.
The Adult has disposed of a large some of money – some $3,600.00 in a relatively short space of time – 3 months.
There is no adequate explanation of how the monies have been disposed of.
No written evidence by way of bank statements or receipts were produced by any of the parties.
Findings of Fact about Capacity
The medical evidence regarding the Adult’s capacity is very limited.
Whilst the Adult was unable to provide adequate explanation about how his money has been disposed of, or any written proof, he was articulate and coherent.
Indeed WG agreed verbally during the proceedings that the Adult did not have impaired capacity.
The conclusion therefore is that the concern expressed by WG and OS is that the Adult is making bad judgments.
Bad judgments do not constitute impaired capacity.
Capacity is demonstrated by being able to understand the nature and effect of decisions, to make decisions freely and voluntarily and to communicate the decision in some way.
The Adult was able to communicate clearly, and denied being the subject of a scam.
Taking all of these circumstances into account, and in the absence of any substantial evidence about the Adult’s mental health or substantial evidence regarding the dispersal of the Adult’s funds, the Tribunal is not satisfied that the presumption that the Adult has capacity is rebutted; accordingly, the application for a declaration about capacity for financial matters is dismissed.
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