CER

[2010] QCAT 36

CITATION:      CER [2010] QCAT 36

PARTIES:   CER

APPLICATION NUMBER:            GAA6126-09 GAA6127-09

MATTER TYPE:    Guardianship and administration matters

HEARING DATE:   5 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   5 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Applications dismissed

CATCHWORDS: Early end to proceedings – section 47 Queensland Civil and Administrative Tribunal Act 2009 – applications lacking substance

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. Applications were made to the Guardianship and Administration Tribunal on 16 September 2009 by CS (the applicant) seeking the appointment of a guardian and administrator for CER (the adult).   

2. The applications were scheduled for hearing on 22 October 2009 but the hearing date was vacated on 16 October 2009 due to a lack of information supporting the applications. 

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Guardianship and Administration Tribunal. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the Tribunal power to bring a proceeding to an early end if the Tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.

2. When considering the appointment of a guardian or an administrator, the Tribunal is required by section 12 of the Guardianship and Administration Act 2000 to determine whether the adult has impaired decision making capacity about the matter before it can consider appointing a guardian or administrator for the adult.    

3. Section 5 of the Guardianship and Administration Act 2000 acknowledges that the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions and General Principle 7 requires the Tribunal to take into account the importance of preserving, to the greatest extent possible, an adult’s right to make his or her own decisions.

EVIDENCE

6. The applicant did not provide medical evidence about CER’s decision making capacity when she lodged her applications. A staff member from the registry of the Guardianship and Administration Tribunal wrote to the applicant by letter dated 17 September 2009 informing her that it was her responsibility to provide evidence about the adult’s decision making capacity.
7. On 24 September 2009 the Guardianship and Administration Tribunal received a letter jointly signed by WT, occupational therapist and case manager and Dr SP, consultant psychiatrist, from the treating team at a clinic at a Brisbane hospital about CER.  In the letter it was stated that CER does not lack the capacity to make decisions, he was managing his own finances without assistance and was adhering to medical advice and treatment.
8. WT had prepared and signed a report dated 22 September 2009 stating that she was CER’s case manager, she referred to a diagnosis of depression, that CER’s mental state was stable, he had the ability to understand and act on information relevant for making decisions and he could understand the consequences of his decisions.   WT expressed the opinion that CER could make decisions freely and voluntarily and that he could make all simple and complex decisions for himself.  WT disclosed that she had based her opinions on her own knowledge as well as on information supplied by Dr SP. 
9. By letter dated 12 October 2009 the applicant informed the Guardianship and Administration Tribunal that she would rather not be involved in the proceeding as it caused her anxiety and depression to be reminded of CER’s predicament but she would become involved in any future action if she was needed. 
10. The applicant was informed by letter from the Guardianship and Administration Tribunal dated 16 October 2009 that the applications would not go ahead and would be considered for dismissal unless additional information supporting the need or a guardian or administrator for CER was provided.  
11. No further information has been provided by the applicant. 

CONCLUSION

12. Evidence about CER’s decision making capacity has been provided by his treating mental health team.  That evidence has not been challenged by any other medical evidence about CER’s decision making capacity.  The Tribunal accepts the evidence provided by WT and Dr SP.
13. The Tribunal finds that on the evidence the presumption of capacity has not been rebutted and is satisfied that CER has the capacity to make his own decisions. 
14. In view of those findings, the Tribunal considers that the applications for the appointment of a guardian or administrator for CER are lacking in substance and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the applications must be dismissed.