FLP

[2009] QCAT 21

CITATION:      FLP [2009] QCAT 21

PARTIES:   FLP

APPLICATION NUMBER:            GAA7776-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   11 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   11 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Continuation of guardian

CATCHWORDS: Review - section 31 Guardianship and Administration Act 2000 – where current appointee appropriate

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of parties

REASONS FOR DECISION

1. On 12 December 2007 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for FLP (the adult). From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. 

1. The appointment is being reviewed today on the basis of information on the Tribunal file. On 18 November 2009 notice of this review hearing was sent to the adult and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. FLP is 53 years old and resides with his brother and his brother’s family.

1. When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of 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. The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. 

CAPACITY

1. The first matter to be considered by the Tribunal is whether the adult has capacity for decision-making about his matters.

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 considered the following evidence about capacity: A psychiatrist reported on 15 November 2007 that FLP had an intellectual handicap and he could not answer question put to him to assess his cognitive functioning.  The psychiatrist was of the opinion that FLP could not make decisions freely and voluntarily and could not make simple or complex decisions.  Documents on the Tribunal’s file revealed that FLP relies on other people for decision making and has done so for most of his life.  He is vulnerable to influence. 

1. The Tribunal made findings of fact about capacity as follows: FLP has an intellectual disability.  He relies on others for decision making.  He is vulnerable to influence. 

1. The Tribunal finds that the evidence established that FLP cannot understand the nature and effect of decisions about the matter and that he is not capable of making decisions freely and voluntarily.    

CONCLUSION

1. The Tribunal determines that FLP does not have capacity to make decisions about the matter. 

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: FLP resides with his brother in the house that had been their family home.  FLP’s brother is the executor of the estate of their late father and FLP has the right to reside in the house under his father’s will.  FLP has been recently admitted to hospital and there is likelihood that he may need alternative accommodation. FLP’s brother is in a conflict of interest position as he can make a decision as executor that may restrict the ongoing right of FLP to continue residing in his home.  FLP had attended respite activities before his admission to hospital and decisions may be needed about the level of service provision he requires after his discharge from hospital.   

1. Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to the matter and without an appointment FLP’s needs will not be adequately met or his interests will not be adequately protected.   

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardian: The Adult Guardian had consulted before making decisions and has complied with the General Principles. 

2. The Tribunal considered the following evidence about whether another person is more appropriate for appointment: FLP’s brother, FP, had lodged with the Tribunal on 1 December 2009 an application seeking to be appointed as guardian and administrator for FLP.  That application will be scheduled for an oral hearing in the near future but there was insufficient time to arrange the hearing before the current appointments were due to expire.   

3. The Tribunal made the following findings about the appropriateness of the current appointee: the Adult Guardian has acted competently since appointed as FLP’s guardian in 2007. It was appropriate for the current appointment to be continued until such time as an oral hearing can be arranged of the application made by FP. 

CONCLUSION

1. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the adult’s needs at the preset time until an oral hearing can be arranged of the application made by FP.  The Adult Guardian is an independent decision maker and has extensive skills and experience.

APPOINTMENT

1. The appointment of the Adult Guardian is continued as guardian for FLP for three months to make decisions about accommodation and service provision.