CDM - [2010] QCAT 317

CITATION: CDM [2010] QCAT 317

PARTIES: CDM

APPLICATION NUMBERS: GAA7317-09; GAA714-10

MATTER TYPE: Guardianship and administration matters

HEARING DATES: 3 December 2009
29 January 2010
18 June 2010

HEARD AT: Brisbane

DECISION OF:   Professor A Ashman
  Ms B Bayne
  Ms L Johannessen

DELIVERED ON: 9 July 2010

DELIVERED AT: Brisbane

ORDERS MADE:

The Tribunal orders that pursuant to s106 of the Guardianship and
Administration Act 2000 relevant information may be obtained from
CDM in the absence of other persons.

The appointment of TPJ as guardian for CDM for the following personal matters is revoked:

(a)Accommodation
(b)Health care
(c)Provision of services
(d)Legal mattes not relating to the adult’s financial or property matters.

The appointment of TPJ as administrator for CDM for managing the following financial matters:

(a)Centrelink payments

is revoked.

The administration order made by the Tribunal on 18 August 2009 is changed by appointing The Public Trustee of Queensland as administrator for CDM for all financial matters.

The administrator is to provide a financial management plan to the Tribunal within four (4) months.

The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

This appointment remains current until further order of the Tribunal.

CATCHWORDS: Review of guardianship; Review of administration; conflict; failure to mediate; outstanding needs; appropriateness of administrator

RECONSTITUTION OF THE TRIBUNAL

Pursuant to s 168 of the Queensland Civil and Administrative Tribunal Act 2009, the President changed the constitution of the Tribunal that would sit on 18 June 2010. Ms Morriss was replaced by Ms Johannessen.

REASONS FOR DECISION

HISTORY OF THE PROCEEDING

On 21 December 2000, the Supreme Court of Queensland awarded a damages amount of $500,000 ($430,000 net) to CDM as a result of a claim emanating from the injuries sustained by CDM in the motor vehicle accident and ordered The Public Trustee of Queensland appointed as administrator pursuant to the Guardianship and Administration Act 2000.

The Queensland Civil and Administrative Tribunal files covering the period 2001 to 2009 indicate a long and complicated involvement of The Public Trustee of Queensland, the Adult Guardian, and various members of CDM’s family in the management of his personal and financial affairs. The files also reflect a long history of conflict between representatives of the statutory bodies and members of CDM’s family, notably TPJ and CT.

At a hearing on 18 August 2009 on applications from TPJ, the Guardianship and Administration Tribunal appointed him as administrator to manage CDM’s Centrelink payments and The Public Trustee of Queensland to manage CDM’s financial matters other than his Centrelink entitlements. Both appointments were for one year and both administrators were directed to lodge financial management plans with the Tribunal. The Tribunal also appointed TPJ as CDM’s guardian for decisions relating to accommodation, health care, the provision of services, and legal matters not relating to the adult’s financial or property matters.

The Guardianship and Administration Tribunal considered that its order of 18 August 2009 provided security for CDM’s substantive asset (then in the vicinity of $240,000) while at the…

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.

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Details

Case: [2010] QCAT 317
Decision Date: 9 July 2010

CaseChat Overview and Summary

In this case, the Queensland Civil and Administrative Tribunal (QCAT) was asked to review the appointment of TPJ as both the guardian and administrator for CDM, who sustained injuries in a motor vehicle accident at the age of 4. The case involved a long history of conflict between TPJ and The Public Trustee of Queensland, and various members of CDM's family in managing his personal and financial affairs. The Guardianship and Administration Tribunal had previously appointed TPJ as the administrator to manage CDM's Centrelink payments and The Public Trustee of Queensland to manage his other financial matters. The Tribunal also appointed TPJ as CDM's guardian for decisions relating to accommodation, health care, the provision of services, and legal matters not relating to the adult's financial or property matters.

The QCAT considered the evidence presented to them, which included health professional reports, social-cultural reports, and testimonies from TPJ, CT, and The Adult Guardian. The Tribunal found that CDM has impaired capacity for personal and financial matters and is dependent on others for decisions in these areas. However, the Tribunal also found that CDM's current residential circumstances are stable and that there are no outstanding health care or legal matters.

Regarding guardianship, the Tribunal found that TPJ's role in supporting CDM without the need for a formal appointment as guardian would be sufficient. The Tribunal revoked the appointment of TPJ as guardian for making decisions relating to accommodation, health care, the provision of services, and legal matters not relating to the adult's financial or property matters.

In terms of administration, the Tribunal found that there is a need for the appointment of an administrator for CDM. The Tribunal found no evidence of financial mismanagement by The Public Trustee of Queensland and that CDM's assets have been depleted as a result of expenditure sought by family members and the impact of the global financial crisis. The Tribunal also found that TPJ's reluctance to recognise the specific and limited responsibilities of each appointee has played a major part in the current impasse. The Tribunal found that TPJ is not a competent administrator and revoked his appointment. The Public Trustee of Queensland was appointed as CDM's administrator having a plenary appointment until further order of the Tribunal.

Orders