BML

[2010] QCAT 260

CITATION:      BML [2010] QCAT 260

PARTIES:   BML

APPLICATION NUMBER:            GAA954-10

MATTER TYPE:   Guardianship and Administration matters

HEARING DATE:   4 June 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, Senior Member

DELIVERED ON:   4 June 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 took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 5 February 2010 the Tribunal continued the appointment of The Public Trustee of Queensland as administrator for BML (the adult).

1. The appointment is being reviewed today on the basis of information on the Tribunal file.  BML is 28 years old and receives support and care to enable her to live independently in the community.   

1. When conducting a review of an appointment of an administrator, 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. 

CAPACITY

1. The Tribunal must consider whether BML has capacity for decision-making about her matters.  The Tribunal has had 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 has considered recent evidence about BML’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 has a report from a doctor dated 10 May 2010.  This doctor stated that BML has Downs Syndrome, she can understand day to day budgeting but not long term planning, she cannot distinguish between $5 and $50 and has no comprehension of legal issues arising from her financial affairs.  The doctor expressed the opinion that BML could not make any complex financial decision due to her intellectual disability. 

1. The evidence from the doctor is unchallenged and is consistent with evidence about BML’s capacity obtained for previous hearings.  The Tribunal is satisfied that BML has an intellectual disability, she cannot distinguish consistently between denominations of money, she cannot undertake future planning and she is vulnerable to experience financial abuse as a result of her intellectual disability. 

1. The Tribunal is satisfied that BML cannot understand the nature and effect of decisions about financial matters.

CONCLUSION

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

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

1. BML has savings that had formerly been held on her behalf by her mother.  In 2007 those funds were placed under the management of The Public Trustee of Queensland when appointed as administrator for BML.  Those funds are used to meet any necessary expenditure that cannot be met from BML’s income either now or in the future.  It is essential that the funds are secured and managed to maintain their value.  BML does not have the skills to manage her funds due to her intellectual disability and the security of the funds will be jeopardised if left under her direct control.  Decisions are needed about ongoing investment and about the control of expenditure from those funds.   

1. The Tribunal considers that there is a need for decisions to be made about the management  of the funds formerly held in trust for BML and that without an appointment her needs will not be adequately met.

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?

1. The Public Trustee of Queensland has sought advice about the investment of the funds managed for BML and has monitored any request for expenditure from those funds.  BML has expressed satisfaction with the manner in which the administrator has carried out its duties. No other person has sought appointment as BML’s administrator. 

2. The Tribunal finds that the current appointee has acted competently in investing the funds of BML and has responded appropriately to any request for expenditure.  The current administrator has the confidence of BML.  

CONCLUSION

1. The Tribunal is satisfied that The Public Trustee of Queensland can make decisions on financial matters that best meet BML’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 BML for five years to make decisions about the management of funds formerly held in trust by the adult’s mother.

2. The administrator must lodge accounts with the Tribunal when requested.