HB
[2010] QCAT 661
•24 December 2010
| CITATION: | HB [2010] QCAT 661 |
| PARTIES: | HB |
| APPLICATION NUMBER: | GAA8590-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 24 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 24 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Applications for the appointment of a guardian and administrator are dismissed |
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – where presumption of capacity is not rebutted –applications lack substance - early end to proceedings – section 47 of the Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 18 October 2010 HM lodged an application with the tribunal for the appointment of a guardian and administrator for his mother, HB. In the application it was stated that there was a second applicant, WJ, but the application was signed by HM solely. For the purposes of these reasons, the tribunal will refer to the applicant as HM solely as WJ has not to date provided an application signed by her to the tribunal.
On 22 October 2010 a staff member from the tribunal registry wrote to the applicant informing him that he had not provided a heath professionals report as to the decision making capacity of HB. The applicant was informed that the tribunal would be unable to proceed further with the application until information about the decision making capacity of HB was provided to the tribunal.
On 25 October 2010 the applicant telephoned the tribunal registry and explained that he did not have a report as to his mother’s capacity and he did not know the name of her doctor. On 25 October 2010 HM applied for an interim order appointing The Public Trustee of Queensland as administrator of HB and for directions to permit him to have contact with his mother.
On 28 October 2010 the applicant provided a statutory declaration to the tribunal containing an explanation as to why he was unable to provide any medical evidence about the decision making capacity of HB to the tribunal. He deposed that he had been denied physical access to his mother for the last three months. He deposed that any family member who communicates with WJ is automatically ostracised from all contact with HB by WT.
The applicant deposed that his mother is elderly and easily confused and he had witnessed occasions when WT has yelled at HB or raised her voice at her.
On 17 November 2010 HB and WT jointly applied to the tribunal for on order dismissing the applications lodged by HM. Lawyers acting for HB and WT stated that HB was distressed and upset by the proceedings initiated by her son and she would like the proceedings to be brought to an end as soon as possible.
Part of the documentation provided by HB to the tribunal was a copy of a Mini Mental State Examination carried out by her doctor on 1 November 2010. HB had scored 26 out of 30 in that assessment with scores missed in the part of the assessment dealing with recall, orientation and attention.
On 3 December 2010 HM filed a response to the strike out application. He set out submissions alleging that HB does not have capacity to freely and voluntarily make decisions as a result of undue influence being applied by WT and her husband.
In response the solicitors for HB informed the tribunal that the proceedings before the tribunal and the dispute between her family members had adversely affected her health and she was not able to enjoy her usual lifestyle as a result.
10. HB provided a statement to the tribunal in which she rejected the allegations of HM that she had not provided instructions to strike out the proceedings of her own free will. She stated that she had personally attended her solicitor for this purpose.
11. HB also rejected the allegations that she was unduly influenced by WT and her husband and stated that she seeks assistance from them but her decisions are her own. A statement by BM, another daughter of HB, corroborated the statement of HB on this point. BM stated that she is close to her mother and HB has never complained that she is unable to make her own decisions. BM stated that HB says only positive things about WT and her husband.
12. The tribunal has been provided with a report from Dr Maha Hanna who has been HB’s general medical practitioner since 16 March 2009. Dr Hanna confirmed that she had conducted a Mini Mental State Examination on 1 November 2010 and attached a copy of the assessment sheet in which HB had scored 26 out of 30. Dr Hanna reported that she had not noticed HB being subjected to any undue influence from her two daughters and stated a belief that HB was capable of deciding her own issues independently.
13. Dr Hanna reported that HB had complained of feeling depressed on 22 November 2010 and complained that she had suffered from insomnia since the family conflict had started. Dr Hanna had prescribed antidepressant medication to treat HB’s insomnia and depression.
14. The tribunal called for any final submissions from the parties about the strike out application on 22 December 2010. Submissions were received from the solicitors for HM supplying information about the making of telephone calls by WJ to HB from 2007 to 2010 and alleging further acts of undue influence by WT against other members of the family.
15. When considering the appointment of a guardian or an administrator, the Tribunal is required by section 12 of the Guardianship and Administration Act 2000 to determine whether the adult has impaired decision making capacity about the matter before it can consider appointing a guardian or administrator for the adult. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. That presumption must be rebutted by evidence before an appointment of a guardian or administrator can be made.
16. The applicant has not provided medical evidence about the decision making capacity of HB. He has alleged that HB is being subjected to undue influence by WT and her husband and as a result alleges she is unable to make decisions freely and voluntarily. HB has denied that allegation and had provided evidence from her doctor and from another daughter to deny the allegation of undue influence.
17. It is quite apparent that HB is at the centre of a bitter conflict within her family which is causing her distress and which is having an adverse impact on her health. Family members have resorted to a variety of legal actions to support their positions in the conflict and the proceedings brought in this tribunal appear to be part of the legal route chosen by one section of the conflicting parties.
18. The relief being sought by HM in his application is: “an adult guardian to maintain my mother’s affairs, to be informed of my mother’s medical conditions, and any financial stress she may endure. To have access by phone without prejudice and be able to visit with my mother in her own dwelling and have free access to my mother without myself or her being subjected to screaming and abuse from my sisters. To ensure full access to my mother if and when she becomes incapacitated. To have the freedom to welfare checks on my mother when deemed necessary. To ensure my mother’s emotional needs and physical needs are being met.”
19. The relief being sought appears designed to meet the needs of HM in the ongoing conflict with his family rather than addressing any apparent decision making needs of HB. This tribunal cannot grant the relief sought by HM beyond appointing a guardian and administrator for HB if and only if the factors supporting the appointment of substitute decision makers are established. However it is likely that even should an appointment of a guardian for all personal matters be made, he will not achieve the outcomes he has enunciated.
20. After considering the evidence from the applicant and from HB, the tribunal is not satisfied that the presumption of capacity has been rebutted in this case. The medical evidence supports a finding that HB can understand the nature and effect of decisions and the allegations of undue influence preventing HB from making decisions freely and voluntarily are not credible. The allegations have been denied by HB and have not been corroborated by any cogent evidence.
21. In view of the finding that HB has the capacity to make decisions, the applications have no substance as a guardian and administrator can only be appointed for an adult with impaired decision making capacity.
22. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.
23. The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal concludes that the applications for the appointment of a guardian and administrator should be brought to an early end in view of the finding that the applications are without substance.
24. The tribunal considers that under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the applications for the appointment of a guardian and administrator for HB should be dismissed.
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