DMK - [2013] QCAT 460

CITATION:

DMK [2013] QCAT 460

PARTIES:

DMK

APPLICATION NUMBER:

GAA3412-13
GAA4059-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

25 July 2013

HEARD AT:

Southport

DECISION OF:

R Joachim, Presiding Member
P Feil, Member

DELIVERED ON:

22 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to withdraw is refused.

2. The Public Trustee of Queensland is appointed as administrator for all financial matters.

3. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

5. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

6. That before 22 November 2013 the administrator must:

(a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name.

(b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order.

(c) Give to the Tribunal:

(i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and

(ii) a copy of the current title searches.

7. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:

(a) give a copy of this order to the Registrar of Titles and

(b) give a notice to the Registrar about the changes or the adult’s interest in another property.

CATCHWORDS:

LEAVE TO WITHDRAW AS GUARDIAN – ADMINISTRATION APPLICATION - where adult has a mental illness - where proceedings are on foot in the Family Court in respect of property settlement and parenting matters - where the Adult Guardian is appointed as guardian for legal matters not related to finance or property - where Adult Guardian seeks leave to withdraw as guardian - where no litigation guardian or case guardian appointed - where judgment is currently reserved in Family Court matters - whether proceeding in Family Court is a legal matter - whether the Adult Guardian can give instructions about non financial matters to a lawyer representing the adult.

Guardianship and Administration Act 2000 section 27, 239, Schedule 2, part 3, section 18

APPEARANCES and REPRESENTATION (if any):

Mr K Martin, the Adult Guardian
Ms K Terrance, solicitor, separate representative for DMK’s children
Mr M Martin, solicitor, represented the Adult Guardian
Mr D Hallam, solicitor, representing DMK
Mr S McPherson representing the Public Trustee of Queensland

REASONS FOR DECISION

DMK is 46 years old and has a history of drug induced psychosis and persecutory delusions. She lives a transient life style.
The Adult Guardian was appointed as her guardian on 4/11/11 until further order:
(a)with a review in 2 years
(b)to make decisions for DMK in relation to legal matters not relating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DMK

Details

AGLC: DMK [2013] QCAT 460
Case: [2013] QCAT 460
Decision Date

CaseChat Overview and Summary

The case involved DMK, who has a history of drug-induced psychosis and persecutory delusions, and the Adult Guardian, who was appointed as her guardian for legal matters not relating to finance or property. The Adult Guardian applied for leave to withdraw from the guardianship, and an application for the appointment of an administrator for DMK's financial matters was also made. The Queensland Civil and Administrative Tribunal (QCAT) was required to decide whether to grant leave for the Adult Guardian to withdraw as a guardian and whether to appoint an administrator for DMK's financial matters.

The Tribunal found that DMK had impaired insight into her illness and an inability to recognize the consequences of non-compliance, which impacted her ability to make legal and financial decisions. The Tribunal also found that a property settlement was ongoing in the Family Court, which would require action by DMK to implement its terms. The Tribunal was satisfied that a need for an administrator existed and appointed the Public Trustee of Queensland as the administrator for DMK's financial matters.

Regarding the leave to withdraw application, the Tribunal found that the Adult Guardian's role extended beyond merely arranging legal representation and that the Adult Guardian could give instructions to a lawyer in the Family Court jurisdiction. The Tribunal considered the current Family Court proceedings to be a legal matter relating to bringing or defending a proceeding and that until the Family Court had handed down its decision and the terms of that decision had been carried out, the proceedings remained on foot and so until any appeal period had elapsed. The Tribunal found that the Adult Guardian should remain in place as a decision-maker for legal matters not relating to finance or property until the appeal period had elapsed in respect of the matters before the Family Court.

The Tribunal refused the application for leave to withdraw and appointed the Public Trustee of Queensland as the administrator for DMK's financial matters. The Tribunal also directed the administrator to provide a financial management plan to the Tribunal within four months and to provide accounts to the Tribunal when requested. The Tribunal further directed the administrator to search the records of the Registrar of Titles to identify any property registered in the adult's name, give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order, and give to the Tribunal a copy of the "Lodgement Summary Form" from the Titles registry confirming the notice has been lodged for each property held by the adult and a copy of the current title searches.

In summary, the Tribunal refused the application for leave to withdraw as guardian and appointed the Public Trustee of Queensland as the administrator for DMK's financial matters. The Tribunal also directed the administrator to provide a financial management plan and accounts to the Tribunal and to search the records of the Registrar of Titles to identify any property registered in the adult's name and to give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order.

Orders