HMC
[2009] QCAT 10
•9 December 2009
CITATION: HMC [2009] QCAT 10
PARTIES: HMC
APPLICATION NUMBER: GAA7731-09
MATTER TYPE: Guardianship and administration matters
HEARING DATE: 9 December 2009
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 9 December 2009
DELIVERED AT: Brisbane
ORDERS MADE: Appointment of a guardian
CATCHWORDS: Review of appointment – section 31 of Guardianship and Administration Act 2000 – where current appointee not consenting to continued appointment
APPEARANCES and REPRESENTATION (if any):
Application was heard on the papers in the absence of parties.
REASONS FOR DECISION
On 11 December 2008 the Guardianship and Administration Tribunal appointed PAW as guardian for HMC (the adult) for decisions about the provision of services for 1 year. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal.
The appointment is being reviewed today on the basis of information on the Tribunal file. On 18 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).
HMC is 78 years old and resides with her daughter in her own home.
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.
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
The first matter to be considered by the Tribunal is whether the adult has capacity for decision-making about her matters.
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.
The Tribunal considered the following evidence about capacity: Dr BP stated that he had no new information about HMC’s capacity for decision making. In 2008 there was evidence presented to the previous tribunal by friends of HMC that she had short term memory deficits and she could not understand the consequences of her actions. An assessment by the Age Care Assessment team in 2008 confirmed that HMC had short term memory problems and that occasionally she exhibited confusion and was not always orientated as to time. Witnesses stated that HMC relied on others to make decisions for her. A mini mental state examination conducted in 2008 found that HMC scored 24 out of 30 which is consistent with some impairment of her cognitive functioning.
The Tribunal made findings of fact about capacity as follows: HMC has deficits in short term memory functioning, she has occasion periods of confusion and is not always orientated in time. She has impaired cognitive functioning. She is reliant on others for decision making. She cannot understand the consequences of her actions.
The Tribunal finds that the evidence established that
- the adult cannot understand the nature and effect of decisions about the matter
- the adult is not capable of making decisions freely and voluntarily
CONCLUSION
The Tribunal determines that the adult does not have capacity to make decisions about the matter
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN
The evidence in the file is that: the guardian provided a report which confirmed that he has been assisting HMC with personal decisions. He confirmed that there have been no change in circumstances since the appointment of a guardian was made in 2008. Unfortunately the form sent to the guardian did not ask him to report on the actual decisions he has made in the past 12 months nor to express any views about whether any further decisions need to be made. On the basis that HMC’s circumstances are relatively unchanged, the previous evidence of HMC not seeking out services and not leaving her home to access medical assistance is accepted as still relevant.
Based on the information set out above, the Tribunal determines that the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health and welfare, and, without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected
SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current guardian: the guardian has been assisting HMC with decisions since his appointment on 11 December 2008. HMC has written to the Tribunal to support the continuation of the appointment of PAW as her guardian. However PAW does not consent to continuing as guardian.
The Tribunal considered the following evidence about whether another person is more appropriate for appointment: Although no other person has sought to be appointed as guardian, the current appointee will not consent to be re-appointed. The Adult Guardian is the only option for appointment.
The Tribunal made the following findings about the appropriateness of the proposed appointee: The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the adult’s needs. The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as administrator in this case.
CONCLUSION
The guardianship appointment made on 11 December 2008 is changed by removing PAW as guardian and appointing the Adult Guardian as guardian for HMC for decisions about the provision of services for six months.
The Tribunal is not prepared to appoint the guardian for an extended period until more up to date information is obtained to confirm the current need for a substituted decision maker about personal matters for HMC. The Tribunal considers it is appropriate to make the appointment for a short period to enable more information about the current circumstances of HMC to be obtained.
The guardian will be expected to lodge with the Tribunal a written guardian’s report no later than 14 days prior to the expiration of this current appointment with details of decisions made and details of any further decisions that are anticipated to have to be made for HMC.
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