HGE
[2011] QCAT 180
•25 January 2011
| CITATION: | HGE [2011] QCAT 180 |
| PARTIES: | HGE |
| APPLICATION NUMBER: | GAA9542-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 25 January 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for a review of the appointment of an administrator is dismissed. |
| CATCHWORDS: | ADMINISTRATION FOR ADULTS – review of appointment lodged just over three months after appointment was made – no relevant new or changed information – tribunal not satisfied that appointee is no longer competent – review application lacks substance – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 13 August 2010 the tribunal appointed The Public Trustee of Queensland as administrator for HGE for all financial matters until further order of the tribunal. The appointment came about following the purported revocation of an Enduring Power of Attorney in favour of AB and the purported making of a new Enduring Power of Attorney on 18 May 2010 appointing CD and EF as attorneys for HGE.
At the hearing the tribunal declared the revocation of the Enduring Power of Attorney on 18 May 2010 and the making of a new Enduring Power of Attorney on 18 May 2010 as invalid. AB attended the hearing on 13 August 2010 as did HGE and CD and EF. All present at the hearing had supported the appointment of an independent decision maker for financial matters.
On 17 November 2010 AB lodged an application for a review of the appointment of the administrator on the grounds that the appointment was to be for a short period of time and that the arrangement had failed. On 22 November 2010 a letter was sent to AB by the tribunal registry providing him with a copy of Practice Direction 8 of 2010. AB’s response to that letter was received by the tribunal registry on 26 November 2010. He submitted that the administrator had failed in its duty but he was happy for The Public Trustee of Queensland to continue in preparing a financial management plan for HGE but he asserted that the administrator was no longer competent and that another person was more appropriate for appointment.
On 23 December 2010 a letter was sent to AB by the tribunal registry informing him that the tribunal was not satisfied that he had met the requirements of Practice Direction 8 of 2010 to enable the review of the appointment to occur. AB was informed that he had until 7 January 2011 to provide any additional information he had that may demonstrate why he considered The Public Trustee of Queensland was no longer competent. AB was informed that the tribunal would consider his application for a review and would make a determination after 7 January 2011 as to whether that application should proceed to a hearing or whether it should be dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
On 17 January 2011 AB was informed via an email sent from the tribunal registry that an extension of time had been granted by the tribunal and that he had until 21 January 2011 in which to provide information to satisfy Practice Direction 8 of 2010.
On 20 January 2011 submissions were received from AB. The submissions included copies of letters he had written to The Public Trustee of Queensland in October 2010 raising issues about action that he considered needed to be taken about possible misuse of HGE’s bank accounts between 18 May 2010 and 13 August 2010 and about access to a shed on her property. His letters made complaints about the lack of action being taken by the administrator about ensuring the security of HGE’s house and the upkeep of her yard.
The appointment of The Public Trustee of Queensland on 13 August 2010 was for an indefinite period of time under section 28(1) of the Guardianship and Administration Act 2000. The administrator was directed to provide a financial management plan to the tribunal within three months of the date of appointment. The tribunal had allowed an extension of time for the lodgement of that plan which was received on 24 January 2011. That plan should contain an annual budget for income and expenditure of HGE and should set the strategy for the management of the income and property of HGE. The plan indicated that the strategy for management of the real property owned by HGE could not be finalised until a decision was made about her accommodation.
Appointments of substituted decision makers are rarely made for short terms of less than one year. It is recognised by the tribunal that appointed decision makers should be provided with a reasonable amount of time to gather information and material needed to inform their decisions. While appointments can be reviewed at any time under section 29 of the Guardianship and Administration Act 2000, the tribunal has the power to conduct a review in the way it considers appropriate.[1]
[1] Section 31(1) of the Guardianship and Administration Act 2009.
Under this power, the tribunal has promulgated Practice Direction 8 of 2010 in the following terms, where relevant:
4. A review of an appointment of a guardian and/or an administrator made by the Tribunal will be conducted at the end of the period of the appointment as ordered by the Tribunal except in cases where:
(i) New and relevant information has become available since the hearing; or
(ii) A relevant change in circumstances has occurred since the hearing; or
(iii) Relevant information that was not presented to the Tribunal at the hearing has become available;
And in accordance with s.31 Guardianship and Administration Act 2000:
(iv) The current appointee is no longer competent; or
(v) another person is more appropriate for appointment.
5. The Tribunal may hear and dismiss on the papers an application requesting a review of appointment of a guardian and/or administrator which the Tribunal determines does not disclose the information required in paragraph 4 of this practice direction.
[10] The period of appointment under the order of 13 August 2010 of the administrator was for an indefinite period. Nothing was present on the face of the order to support the assertion made by AB that the tribunal had intended that the period of appointment was for a limited or short period of time. The tribunal conducts reviews of indefinite appointments on a random basis which generally results in reviews being conducted about every five years or so.
[11] AB has not satisfied the tribunal that it ought to conduct a review of this indefinite appointment within six months of the making of that appointment. The information he relied on when seeking a review related to the action or lack of action of the administrator in the first two months of appointment. The tribunal was not satisfied that AB had established grounds on which the tribunal could reasonably base a finding that the appointee was no longer competent. The appointee had not had sufficient time to establish the extent of its ability to conduct its duties competently.
[12] The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.[2] The tribunal is not required inevitably to take all applications through to a final oral hearing if the objects of the Queensland Civil and Administrative Tribunal Act 2009 of fairness and expedition can be achieved in other ways.
[2] Section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009.
[13] 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.
[14] The tribunal concluded that the review application lodged by AB should be brought to an early end in view of his failure to satisfy the tribunal that new and relevant circumstances had arisen since the appointment to warrant a review of the appointment at that stage. He had not satisfied the tribunal that the appointee was no longer competent after less than six months in the role.
[15] Without relevant new information, changed circumstances or evidence that the appointee was not competent to carry out the role, the review application should not proceed to a hearing for determination on its merits and in the opinion of the tribunal the application is lacking in substance. The appointment of the administrator should continue unless the tribunal is satisfied that there is evidence to warrant an earlier review than would generally take place under the usual random review process. Such circumstances have not yet been established.
[16] The tribunal considers that under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application for review of the appointment of the administrator for HGE must be dismissed.
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