GJD

[2010] QCAT 33

CITATION:      GJD [2010] QCAT 33

PARTIES:   GJD

APPLICATION NUMBER:            GAA10302-09

MATTER TYPE:    Guardianship and administration matters

HEARING DATE:   15 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   15 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment continued

CATCHWORDS: Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – appointment continued

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 16 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for GJD (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. The appointment is being reviewed today on the basis of information on the Tribunal file. On 15 January 2010 notice of this review hearing was sent to the adult. On 14 December 2009 notice of the review hearing had been sent to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. GJD is 25 years old and resides in supported accommodation.

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 GJD has capacity for decision-making about his matters.  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. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions. 

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: in a report dated 1 August 2007, a doctor stated that GJD had a mild intellectual disability, that he was vulnerable and easily influenced. And that he needed some prompting to complete some activities of daily living.   The doctor was of the opinion that GJD cannot make complex decisions and is supported to make simple every day decisions. 

1. The Tribunal made findings of fact about capacity as follows: GJD has an intellectual impairment, he needs prompting to complete some every day tasks and he relies on others for most decisions. 

1. The Tribunal finds that the evidence established that GJD cannot understand the nature and effect of decisions about her personal matters. 

CONCLUSION

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

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: GJD lives in stable accommodation with 24 hour service provision.  There is unlikely to be any need to change his accommodation in the foreseeable future.  The service providers have been changed in the last 12 months and further decisions may have to be in relation to the service delivery.  GJD has ongoing health concerns and an assessment needs to be carried out as to whether the medication he is taking is appropriate.  GJD may be subject to chemical restraint and if so, decisions are necessary about the restrictive practices in place and about the development of positive support to improve his quality of life. 

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

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIANS BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardian: the Adult Guardian has acted competently in making decisions about accommodation, service provision and health care over the past 12 months. 

2. No other person has sought appointment as GJD’s guardian. 

3. The Tribunal made the following findings about the appropriateness of the current appointee: the Adult Guardian has acted competently and has identified that investigation into GJD’s health care must be undertaken to ensure that his medication is appropriate.  If it is ascertained that GJD is subject to a restrictive practice, the Adult Guardian is well placed with skills and experience to have valid input into the development of a positive behaviour support plan to enable appropriate consent to the use of chemical restraint in accordance with the law. 

CONCLUSION

1. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of GJD.  The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as guardian in this case.

APPOINTMENT

1. The guardianship appointment made on 16 January 2009 is changed by appointing the Adult Guardian as guardian for GJD for decisions about health care and service provision and to seek help and make representations about the use of restrictive practices for two years.