HTN

[2009] QCAT 22

CITATION:      HTN [2009] QCAT 22

PARTIES: HTN

APPLICATION NUMBER:            GAA10300-09

MATTER TYPE:    Guardianship and administration matters

HEARING DATE:   21 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   21 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of administrator

CATCHWORDS: Appointment of an administrator – ratification of decisions by informal decision maker – section 154 Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of parties.

REASONS FOR DECISION

1. On 21 November 2008 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for HTN (also known as BTN) for one year to take effect from 6 December 2008 when HTN turned 18 years of age.  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 appointment was due to be reviewed by 6 December 2009 but a review of the appointment did not take place by that date. On 18 December 2009 notice of hearing of an application for the appointment of an administrator on the initiative of the Tribunal 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).  The hearing was scheduled on the papers in the absence of parties. 

1. The Tribunal when considering the appointment of 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 HTN has capacity for decision-making about his matters.  There is a presumption at law that all adults have the capacity to make their own decisions.    

1. In considering the application, the Tribunal had regard to the evidence about capacity that had been on the Tribunal’s file at the time of the original appointment of an administrator and as well considered more 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: report of Dr WG dated 7 April 2009.  Dr WG diagnosed an intellectual impairment, frontal lobe dysfunction and obsessive compulsive disorder.  Dr WG expressed the opinion that HTN could not understand or act on information about his financial affairs and could not make decisions freely and voluntarily.  Dr WG stated his opinion that HTN could not make simple or complex financial decisions due to his intellectual disability.  The Tribunal noted a report on its file from the Adult Guardian dated 14 April 2009 in which it was stated that HTN lives with paid carers and he requires assistance with decision making

1. The Tribunal made findings of fact about capacity as follows: HTN has an intellectual impairment.  He has relied on others for decision making on most aspects of his daily life for at least the last twelve months.  He does not make complex decisions about his financial affairs. 

1. The Tribunal finds that the evidence established that HTN cannot understand the nature and effect of decisions about financial matters and that he is not capable of making decisions freely and voluntarily due to his intellectual impairment and his reliance on others for most aspects of decision making. 

CONCLUSION

1. The Tribunal determines that HTN does not have capacity to make decisions about financial matters.    

IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

1. The evidence in the file is that: HTN has significant savings to manage and has income to secure and expenditure to manage.  He has no personal bank account as his income had been paid to The Public Trustee of Queensland (The Public Trustee) up until 6 December 2009 and his savings are held in investment accounts with The Public Trustee.  Centrelink has ceased payment of a disability support pension to HTN as a result of the expiry of the appointment of an administrator for HTN. 

1. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about HTN’s financial affairs and without an appointment the needs of HTN will not be adequately met or his interests will not be adequately protected. His Centrelink pension must be recommenced and managed and HTN would not be able to make arrangements to secure his financial affairs without an administrator.

WHO SHOULD BE APPOINTED AS HIS ADMINISTRATOR?

1. The Tribunal considered the following evidence about the appropriateness of the proposed appointee: The Public Trustee prepared a financial management plan on 15 May 2009 which set out a fortnightly budget for HTN’s income and expenditure.  Under that budget, a surplus of about $180 per fortnight was planned of income over regular expenditure.  HTN had accumulated savings in excess of $33,000 which were invested into a higher growth fund with The Public Trustee.  The financial management plan had been approved by the Guardianship and Administration Tribunal on 28 July 2009. 

2. The Tribunal made the following findings about the appropriateness of the proposed appointee: The Public Trustee has competently managed the financial affairs of HTN since 6 December 2008.  A satisfactory budget has been prepared and HTN’s savings have been appropriately invested.  The Public Trustee has experience in managing the financial affairs of adults with impaired decision making capacity and has the resources to carry out that role adequately. 

CONCLUSION

1. The Tribunal is satisfied that The Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs.  The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience.  The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.

APPOINTMENT

1. The Public Trustee of Queensland is appointed as administrator for HTN (also known as BTN) until further order to make decisions about all financial matters.          

2. The administrator is directed to lodge accounts with the Tribunal when requested.

1. During the period from 6 December 2009 until this appointment was made on 21 December 2009 some decisions may have been required to be made about HTN’s financial affairs by The Public Trustee in order to protect his interests. Under section 154 of the Act the Tribunal can ratify the exercise of power by an informal decision maker in cases when the informal decision maker has acted honestly and with reasonable diligence.

1. The Tribunal is satisfied that in this case The Public Trustee should be given the benefit of ratification of any decisions made during the period from 6 December 2009 to the date of this new appointment and the Tribunal so orders.