CGL

[2010] QCAT 31

CITATION:      CGL [2010] QCAT 31

PARTIES:   CGL

APPLICATION NUMBER:            GAA8064-09 GAA8065-09

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 27 November 2009 by WG (the applicant) seeking the appointment of a guardian and administrator for CGL (the adult).   

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

5. The applicant did not provide medical evidence about CGL’s decision making capacity when she lodged her applications. A staff member from the registry of the Tribunal wrote to the applicant by letter dated 2 December 2009 informing her that her applications were not accompanied by a report by a medical health professional. 
6. The letter informed the applicant that information and documentation had been obtained from the Office of the Adult Guardian about the adult’s decision making capacity.   
7. Dr Jennifer Blomeley had prepared a report for the Adult Guardian dated 18 November 2009 stating that she was CGL’s general medical practitioner, she had known the adult for three years and she had last seen the adult on 16 November 2009.  Dr Blomeley reported that CGL does not have a condition which impairs her cognitive ability, that she can understand and act on information relevant for making decisions about her personal and financial affairs and that she could understand the consequences of her decisions. Dr Blomeley expressed the opinion that CGL could make decisions freely and voluntarily and that she could make all simple and complex decisions for herself, apart from complex accommodation choices.    
8. The applicant was informed by letter from the Tribunal dated 2 December 2009 that the applications would be considered for dismissal unless medical evidence stating an opinion that CGL had impaired decision making capacity was provided within 21 days.  
9. No further information has been provided by the applicant. 

CONCLUSION

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