HK

[2010] QCAT 25

CITATION:      HK [2010] QCAT 25

PARTIES:   HK

APPLICATION NUMBER:            GAA7896-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   4 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   4 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of administrators continued

CATCHWORDS: Sections 28 and 31 of Guardianship and Administration Act 2000 – current administrators competent – continued appointment

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of parties

REASONS FOR DECISION

1. On 5 January 2005 the Guardianship and Administration Tribunal appointed RAM and EKJ as administrators for HK (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 appointments are being reviewed today on the basis of information on the Tribunal file. On 24 November 2009 notice of this review hearing was sent to the adult and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. HK is 90 years old and resides in aged care 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 HK has capacity for decision-making about her financial 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 2001 medical evidence was provided that HK had been diagnosed with dementia in 1993, a MRI had revealed generalised cerebral atrophy, she was incapable of new learning and she was unable to understand and retain information on which decisions could be made about her financial affairs.  In 2001 the medical evidence was to the effect that HK had a cognitive impairment which was progressive in nature.  No new medical evidence has been provided to dispute the 2001 medical evidence. HK has remained resident in aged care accommodation between 2001 and the present day. 

1. The Tribunal made findings of fact about capacity as follows: HK has been diagnosed with dementia since 1993.  She has cognitive impairment which is progressive in nature.  She lacks understanding of her financial affairs. 

1. The Tribunal finds that the evidence established that HK cannot understand the nature and effect of decisions about her financial affairs. 

CONCLUSION

1. The Tribunal determines that HK does not have capacity to make decisions about her financial affairs.    

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?

1. The evidence in the file is that: HK is resident in aged care accommodation and is responsible for fees for her accommodation.  She has income to be used to pay for her regular lifestyle expenses and she has significant funds under investment.  Decisions must be made about her investments to secure her interests and to ensure that her income tax affairs are managed. 

1. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about her income, expenses and assets and without an appointment the needs of HK will not be adequately met or her interests will not be adequately protected. 

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATORS BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current administrators: the administrators have lodged satisfactory accounts and have managed competently the adult’s income, expenses and assets.  They have ensured that there is a relative spread of investments across fund managers and have adequately managed the adult’s income tax affairs.  

2. No other person has sought appointment as administrator for HK. 

3. The Tribunal made the following findings about the appropriateness of the current appointees: the current appointees have acted competently and have responded appropriately to enquiries made by the Tribunal.  They signed a statutory declaration as to their continued appropriateness on 12 November 2009. 

CONCLUSION

1. The Tribunal is satisfied that RAM and EKJ   

   • are at least 18 years of age
   • are not paid carers for the adult
   • are not health providers for the adult 
   • have signed a statutory declaration as to appropriateness for the role
   • are likely to apply the general principles
   • are not bankrupt or taking advantage of the laws of bankruptcy
   • are appropriate persons to appoint as administrator after taking into consideration the provisions in section 15 of the Act.

APPOINTMENT

1. The appointment of RAM and EKJ are continued jointly as administrators for HK for five years to make decisions about all financial matters.      

[20].The administrators are directed to provide accounts to the Tribunal eight weeks prior to the anniversary of this appointment and annually thereafter.