CMM v The Public Trustee of Queensland and the Public Guardian

In the case of CMM v The Public Trustee of Queensland and the Public Guardian, the appellant, CMM, appealed against the decision of the Tribunal, which had declined to appoint the appellant as the enduring guardian of her mother, [Name]. The Tribunal had considered two proposed appointees for the role, the appellant and a professional guardian, but ultimately decided in favour of the professional guardian. The matter was heard by the Court of Appeal, which was required to determine whether the Tribunal had exercised its discretion in accordance with the law. The central legal issue was whether the Tribunal had erred in its application of the statutory criteria for assessing the appropriateness of proposed appointees as enduring guardians. Specifically, the court had to consider whether the Tribunal had correctly applied the statutory requirements in determining the suitability of the proposed appointees.

The Court of Appeal found that the Tribunal had indeed erred in its exercise of discretion. The court held that the Tribunal had failed to properly consider the statutory criteria for determining the appropriateness of the proposed appointees. Instead, the Tribunal had relied on an incorrect principle to prevent the appointment of a family member. The court emphasised that the Tribunal should have assessed the suitability of the proposed appointees based on the statutory criteria, which included considerations such as the wishes of the person for whom the enduring guardian is appointed and the capacity of the proposed appointee to act in the best interests of that person. The court concluded that the Tribunal's failure to apply the correct legal principles meant that the decision was flawed and should be set aside.

Consequently, the appeal was allowed, and the decision made on 29 October 2015 was set aside. The Court of Appeal ordered that the applications be returned to the Tribunal for reconsideration by a differently constituted Tribunal. The court provided detailed directions to the Tribunal regarding the matters that must be considered when assessing the appropriateness of the proposed appointees, ensuring that the Tribunal would apply the correct legal principles in making its decision.