HHG
[2010] QCAT 545
•4 November 2010
| CITATION: | HHG [2010] QCAT 545 |
| PARTIES: | HHG |
| APPLICATION NUMBER: | GAA8582-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 4 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 4 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for declaration about capacity is dismissed |
| CATCHWORDS : | DECISION MAKING CAPACITY – Guardianship and Administration Act 2000 - no substance to application – section 47 of the Queensland Civil and Administrative Tribunal Act 2009 – early end to proceedings |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
Prior to the commencement of the Queensland Civil and Administrative Tribunal in December 2009, the Guardianship and Administration Tribunal (the former Tribunal) had determined several applications about HHG. On 27 July 2005 the Adult Guardian had been appointed as guardian for HHG to make decisions about accommodation and service provision for a period of 2 years. A declaration had been made at the same time that the powers given to The Public Trustee of Queensland under an Enduring Power of Attorney dated 13 December 2000 for financial matters had commenced.
On 1 July 2007 the former Tribunal reviewed the appointment of the guardian and changed the appointment so that the Adult Guardian was guardian for HHG for health care matters only. The former Tribunal revoked that part of the Enduring Power of Attorney dated 13 December 2000 which had granted power for personal and health matters. On 30 April 2009 the former Tribunal revoked the appointment of the guardian.
On 4 June 2010 HR lodged an application with the current Tribunal seeking a declaration about the capacity of HHG to make personal decisions. In his application HR stated that he did not believe that the nursing home where HHG resides was providing her with adequate care and freedom.
HR had previously by letter to the Tribunal dated 24 March 2010 expressed an intention to apply to the Tribunal for a decision about changing the accommodation for HHG. An officer from the registry of the Tribunal had responded by letter dated 23 April 2010 that there was no current guardian for HHG and enclosed an application form for the appointment of a guardian in the event that HR wanted to apply for the appointment of a guardian.
On 21 July 2010 an officer of the registry of the Tribunal sent a letter to HR informing him that the application for a declaration about capacity would not result in the appointment of a guardian and invited HR to lodge an application for the appointment of a guardian within 3 weeks.
HR was further informed in that letter that his application for a declaration about capacity would be considered for dismissal if an application for the appointment of a guardian was not lodged. No response has been received from HR.
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.
It is not readily apparent what outcome is being sought by the application lodged by HR. Although the document completed by him is an application for a declaration about capacity, HR appears to want the Tribunal to make directions to the nursing home where HHG resides to provide better care and more freedom to her. The Tribunal has no power to make such directions and the appropriate step would be for HR to seek the appointment of a guardian to make decisions about accommodation and service issues relating to HHG.
The Tribunal considers that the application for a declaration about capacity is misguided and in the circumstances of the matter as presented by HR the application is an abuse of process as the outcome being sought cannot be delivered by the Tribunal.
10. HR has been given an opportunity to discontinue his present application but he has not responded to the letters sent to him by the registry staff. It is appropriate that the proceedings are brought to an early end without hearing and the Tribunal dismisses the application for a declaration about capacity under section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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