HAM
[2010] QCAT 544
•1 November 2010
| CITATION: | HAM [2010] QCAT 544 |
| PARTIES: | HAM |
| APPLICATION NUMBER: | GAA8714-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 1 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 1 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of guardian continued for four months |
| CATCHWORDS : | GUARDIANSHIP - review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – where no guardian’s report - appointment continued for short term |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 2 November 2009 the Guardianship and Administration Tribunal appointed DJS as the guardian for HAM. 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 (the Tribunal).
The appointment of the guardian was for a period of 1 year. A review of the appointment has been conducted by the Tribunal on the basis of information on the Tribunal’s file. Notice of the review hearing was sent to HAM and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act) but due to the short period of notice, an abridgement of time was made to enable the hearing to take place on 1 November 2010.
When conducting a review of an appointment of a guardian, 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.
No new evidence was provided to the Tribunal for this review and reliance was made on the medical evidence available to the former Tribunal in 2009. Dr Oliveira had diagnosed that HAM had a history of alcohol dependence and lacked insight into the effects of that dependence. Dr Oliveira expressed an opinion that HAM could not make any health care or personal decisions due to the effects of her dependence on alcohol. Evidence was provided by HAM’s family that she cannot follow through on decisions that she makes, she is impulsive in her actions due to her alcohol dependence, she has impaired insight into her health care needs and as a result her health has been neglected. She needs prompting and supervision to complete some daily care activities.
The Act defines capacity for a matter as a person being capable of understanding the nature and effect of decisions about the matter, being capable of freely and voluntarily making decisions about the matter and being capable of communicating the decisions in some way.
The Tribunal finds that HAM has a history of alcohol dependence, she lacks insight into the effects of that dependence on her functioning and she has impaired cognitive functioning due to the ongoing effects of a long stranding alcohol dependency condition. The Tribunal concludes that HAM does not have the ability to understand the nature of decisions that may be needed about her health care and that she does not have the ability to understand the effects of making or of not making decisions about health care due to her impaired cognition.
The Tribunal determines that the presumption of capacity for decision making has been rebutted by the evidence before the Tribunal and determines HAM has impaired decision making capacity for personal matters.
DJS was appointed in 2009 to make decisions about health care for HAM. The guardian was not asked to provide a guardian’s report before the review of her appointment was commenced in 2010. The Tribunal is unable to ascertain what decisions have been made by the guardian and whether any comprehensive health care assessment has been conducted.
If the appointment of a guardian is to be continued in this case, the Tribunal must be satisfied that there is a need for health care decisions to be made and that without the appointment of a guardian the needs of HAM will not be adequately met. If there is no need for a guardian to make health care decisions, the appointment must be revoked under section 31 of the Act.
10. There is an alternative to the continuation of the appointment of a guardian in this case. Under the Powers of Attorney Act 1998, a statutory health attorney is authorised to make any decision about a health matter that an adult could lawfully make if the adult had capacity for the matter. Members of an adult’s family are statutory health attorneys by virtue of that Act as long as they are not paid carers for the adult. Statutory health attorneys generally are called on to give consent for health care treatment and they do not generally play a proactive role in ensuring the ongoing health care needs of an adult are addressed and met.
11. DJS would be a statutory health attorney for HAM as she is not the paid carer of HAM. She would have valid authority to make decisions about health care for HAM without the need of a continued appointment as a guardian by this Tribunal. Her siblings and other family members would also be able to act as statutory health attorneys if there was no guardian appointed for health care decisions.
12. Due to the absence of a guardian’s report, the Tribunal is not presently in a position to conclude whether there is a need for decisions to be made on a proactive basis about health care for HAM or whether health care decisions can be adequately made by family members who would be statutory health attorneys for HAM. If proactive decisions are needed, a guardian formally appointed by the Tribunal may be more appropriate to make those decisions than reliance on the statutory health care provisions in the Powers of Attorney Act 1998.
13. The Tribunal concluded that it would be appropriate to continue the appointment of DJS as guardian for health care decisions for a period of four months until further information is obtained. The Tribunal directs the guardian to provide a report in writing to the Tribunal about the decisions she has made since 2 November 2009 as guardian for health care matters. DJS is also directed to provide in writing information about the range of decisions that she anticipates will have to be made about health care issues for HAM over the next five years. The information should also address whether a guardian would be required to make those decisions or whether a statutory health attorney could make the decisions whenever necessary.
14. The appointment of the guardian will be reviewed at the end of this short term appointment and a hearing conducted on the papers unless the Tribunal considers it more appropriate to conduct an oral hearing.
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