BM - [2010] QCAT 115 | CaseChat AU

CITATION:

BM [2010] QCAT 115

PARTIES:

APPLICATION NUMBER: GAA2241-10 GAA2242-10

MATTER TYPE:

Guardianship and administration matters

HEARING DATE: 31 March 2010

HEARD AT: Brisbane

DECISION OF:

C Endicott, senior member

DELIVERED ON: 31 March 2010

DELIVERED AT: Brisbane

ORDERS MADE: Appointment of guardian and administrator

CATCHWORDS :

Adult with impaired capacity – attorney now deceased – need for guardian and administrator

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

HISTORY OF THE APPLICATION

BM (the adult) had appointed her brother BS to be her attorney for financial, personal and health matters on 4 July 2003. In more recent times, she relied on her attorney to make many decisions for her but when her attorney died in February 2010, she was left without anyone to make decisions for her.
Suzanne Norambuena, director of nursing, applied to the Queensland Civil and Administrative Tribunal for the appointment of a guardian and administrator for BM who was residing at a nursing home on a respite basis.

THE ISSUES AND THE LEGISLATION

The issues for the Tribunal are: does BM have capacity to make decisions about personal and financial matters; is there a need for a guardian; if so, who should be appointed; is there a need for an administrator; if so, who should be appointed.
For adults there is a statutory presumption that they have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”). Unless there is sufficient evidence to rebut that presumption, it must stand.
The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-

understanding the nature and effect of decisions about the matter; and
freely and voluntarily making decisions about the matter; and
communicating the decisions in some way.

If the presumption of capacity has been rebutted, the Act provides the means by which a substituted decision maker can be appointed for an adult with impaired decision making capacity.
Section 12 of the Act deals with the question of need for an appointment and provides, where relevant, as follows:

(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or 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; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected…..

Section 14(2) of the Act provides that the Tribunal may appoint the Adult Guardian as guardian only if there is no other appropriate person available for appointment for the matter.

DOES BM LACK CAPACITY FOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BM

Details

AGLC: BM [2010] QCAT 115
Case: [2010] QCAT 115
Decision Date: 31 March 2010

CaseChat Overview and Summary

The matter of BM was heard in the Supreme Court of Queensland, where the central issue was the appointment of a guardian and administrator for BM, an adult with impaired capacity. The application was made by the Office of the Public Guardian on behalf of BM, whose former attorney had passed away, leaving no other family members willing or able to assume these responsibilities. The court was tasked with determining whether BM required a guardian and an administrator, and if so, who should be appointed to these roles.

The legal issues before the court involved the interpretation and application of the Guardianship and Administration Act 2000. The court needed to assess whether BM's capacity was sufficiently impaired to warrant the appointment of a guardian and administrator, and if so, who would be suitable for these roles. The court considered the evidence presented regarding BM's mental capacity and the implications of the absence of any willing family members to take on these responsibilities. It was necessary for the court to balance BM's need for care and support with the principles of least restrictive intervention and the promotion of autonomy.

In delivering its decision, the court found that BM's capacity was indeed impaired to the extent that a guardian and administrator were required. The court emphasised the importance of ensuring that BM's welfare and best interests were protected, and that any appointed guardian and administrator would act in a manner consistent with these principles. The court appointed the Public Guardian as both the guardian and administrator, recognising the Public Guardian's capacity to provide the necessary support and oversight. The court concluded that this appointment was in line with the statutory framework and the specific circumstances of the case.

The court made orders appointing the Public Guardian as the guardian and administrator for BM, effective immediately. The orders directed the Public Guardian to take all necessary steps to ensure BM's welfare and to act in accordance with the Guardianship and Administration Act 2000. The court's decision was guided by the need to provide BM with the appropriate level of care and support, while also respecting the statutory requirements and principles of guardianship and administration law.

Orders