DA

[2011] QCAT 219

CITATION: DA [2011] QCAT 219

PARTIES: DA

APPLICATION NUMBER:   GAA3628-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 16 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Application for a declaration about capacity is dismissed.

CATCHWORDS : 

DECLARATION ABOUT CAPACITY – where testamentary trust – where adult sought to manage funds from estate – misconceived application – early end to proceedings

Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. CT from an advocacy organisation lodged an application in the tribunal seeking a declaration that DA has capacity to make his own financial decisions.  In the application form, CT set out the following as the action she sought from the tribunal: DA is seeking a more appropriate management of the funds left to him in his mother’s will.  His mother appointed executors /trustees to manage the money.  DA does not believe that they are distributing the money as his mother had intended which was to take care of his living and medical expenses.  Executors are not allowing DA access to the money to cover expenses.  DA has not received any statements etc regarding money.    

2. A copy of the will of DA’s late mother accompanied the application.  It appears from a reading of the will that executors and trustees had been appointed under the will and the proceeds of sale of property owned by the deceased were placed in trust for the benefit of DA. 

3. The functions of this tribunal under the Guardianship and Administration Act 2000 are set out in section 81 of that Act.  The tribunal has the power to make declarations abut the capacity of an adult to make decisions.  The tribunal commences its consideration of applications about adults from the standpoint that all adults are presumed to have capacity to make their own decisions.  That presumption can be rebutted by satisfactory evidence.

4. The tribunal was provided with a medical report that contained an opinion that DA could manage his own financial affairs.  However even if the tribunal were to make a declaration that DA has capacity to make his own decisions, the outcome being sought by CT could not be provided by the tribunal.  That outcome could only be achieved by either the testamentary trust being wound up or by a direction being made to the trustees.  Only the court can deliver those outcomes.  

5. On 1 April 2011 a staff member from the tribunal registry wrote to CT and informed her that the tribunal could not provide the outcomes being sought.  CT was informed that her application would be considered for dismissal.  No further information has been received from CT.   

6. 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.

7. The tribunal concludes that this application should be brought to an early end as it is misconceived as the outcomes sought cannot be delivered by the tribunal. Under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application must be dismissed.