DG

[2010] QCAT 330

CITATION:      DG [2010] QCAT 330

PARTIES:   DG

APPLICATION NUMBER:            GAA4096-10

MATTER TYPE:   Guardianship and Administration matters

HEARING DATE:   30 June 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   30 June 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of guardian for accommodation and services decisions and for decisions about legal matters not relating to financial or property matters

CATCHWORDS: Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – appointment changed to include additional area of decision making

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 30 June 2008 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for DG (the adult). From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal.

1. When conducting a review of an appointment of a guardian, the Tribunal must take into account section 31 of the Guardianship and Administration Act 2000 (the Act) which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.  The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.

1. There is a presumption at law that all adults have the capacity to make their own decisions.  That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether the adult has decision making capacity or not.

1. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-

   (a)understanding the nature and effect of decisions about the matter; and

   (b)freely and voluntarily making decisions about the matter; and

   (c)communicating the decisions in some way.

1. The Tribunal was provided with a report from Christine Mulligan, registered nurse and director of nursing at a aged care facility, who stated that DG has a diagnosis of dementia and schizophrenia.  A Mini Mental State Examination conducted in October 2009 revealed a scoring of 15 out of 30 which was consistent with a significant cognitive impairment.  Ms Mulligan expressed an opinion that DG was unable to make decisions to ensure her wellbeing and safety and that DG could not make decisions freely and voluntarily. 

1. The Tribunal accepts the evidence of Ms Mulligan which is unchallenged.  The Tribunal finds that DG has been diagnosed with dementia and schizophrenia.  She has a significant cognitive impairment and she cannot understand the nature and consequences of decisions about her wellbeing and safety. 

1. The Tribunal determines that DG does not have capacity to make decisions about personal matters. 

1. DG is in residential aged care accommodation which is presently stable.  In the past DG had been subject to conflict in her family over what accommodation was appropriate for her.  It is uncertain whether that conflict is currently present in the family as the Adult Guardian was not able to consult with all members of the family at the time of completing a guardian’s report for this review.  Some of the family members support the need for the ongoing appointment of a guardian.

1. The Adult Guardian has in the past needed to ensure that DG was being provided with appropriate and adequate services for her needs.  The ongoing monitoring of service provision levels results in the need at times to share information about DG with care organisations.  As the guardian was not appointed for health care decisions, a specific power may be needed to facilitate the sharing of information about health matters and care needs and delivery. The guardian has requested that an additional power in the area of legal matters not relating to financial or property matters be included in the authority of the guardian for decision making.       

1. The Tribunal finds that there is a need for decisions to be made about DG and her accommodation and service provision and as she lacks capacity to make those decisions for herself, her needs will not be adequately met without the appointment of a guardian. 

1. The appointment of the Adult Guardian has provided stability to the personal affairs of DG.  Family conflict has been avoided by the presence of an independent decision maker who consults with the family before making decisions for DG. No other person has sought appointment as guardian.  The Tribunal is satisfied that decisions have been made for the proper care and protection of DG by the Adult Guardian and that appointment of an independent decision maker is still required due to the risk of unresolved family conflict over care decisions.  

2. The Tribunal is satisfied that the Adult Guardian has been competent in the role of guardian for DG.  The Adult Guardian has extensive skills and experience and is considered the appropriate appointee as guardian in this case.

1. The Tribunal is satisfied that it is desirable to vary the terms of appointment of the guardian to include an additional power so that the guardian can disclose confidential information to parties providing or proposing to provide support or other services to DG.  In that case the guardianship appointment made on 30 June 2008 is changed by appointing the Adult Guardian as guardian for DG for the following personal matters: accommodation decisions, service provision and legal matters not relating to financial or property matters for one year.