JC
[2012] QCAT 609
| CITATION: | JC [2012] QCAT 609 |
| PARTIES: | JC |
| APPLICATION NUMBER: | GAA7677-12 / GAA7678-12 / GAA10198-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 30 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 30 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The guardianship order made by the New South Wales Guardianship Tribunal on 15 November 2012 is recognised in Queensland for the term of that order. 2. The review of the appointment of a guardian for JC is dismissed. 3. The review of the appointment of an administrator for JC is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – whether tribunal has jurisdiction to make an appointment – whether adult has the capacity to change his domicile – where orders made under another law have been recognised – where appointment had lapsed prior to review being finalised – where appropriate to continue with recognition of orders made under another law Guardianship and Administration Act 2000, s 169 FDN [2011] QCAT 325 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
JC has been diagnosed with schizophrenia. The evidence provided to QCAT is that JC has manifested paranoid ideation, thought disorder, agitation, and disorganisation for over two years. He has also been diagnosed with polysubstance dependence which exacerbates his mental illness.
His mother, HJ, was appointed on 16 November 2011 by the Guardianship Tribunal in New South Wales to be his guardian to make decisions about accommodation, advocacy, health care, legal services and to give medical and dental consents. That appointment was for a period of 12 months. HJ was also appointed on that same day as the financial manager for JC until further order of the tribunal.
The appointments of the Guardianship Tribunal were recognised in Queensland on 6 December 2011 under section 169 of the Guardianship and Administration Act 2000 (GAA Act) and as a result the New South Wales orders are treated as if they were orders made by QCAT. Appointments of guardians and administrators (called financial managers in New South Wales) are reviewed by QCAT prior to the date of the expiry of the appointments and as is the case with Queensland appointments, QCAT’s registry commenced a review of the appointment of HJ as the guardian and administrator for JC.
In the meantime, the New South Wales Guardianship Tribunal commenced its own review of the appointment of the guardian and on 15 November 2012 continued that appointment for 12 months. JC is currently resident in New South Wales and is therefore subject to the jurisdiction of the New South Wales Guardianship Tribunal by virtue of his current location in that State.
HJ has asked QCAT to reach an outcome in its review which continues her appointment as a guardian in Queensland. QCAT started its hearing of the review on 6 November 2012 but adjourned the hearing due to uncertainty as to its jurisdiction to make an order to continue the appointment of a guardian in Queensland for JC.
The issue giving rise to that uncertainty is whether QCAT can make an appointment of a guardian in circumstances where the person about whom the appointment is to be made lives outside of Queensland. The GAA Act does not have extra-territoriality provisions so QCAT cannot ordinarily make orders about a person residing outside Queensland unless there is some relevant connection between that person and Queensland.
The tribunal had in a case in 2011 considered some issues relevant to jurisdiction. In FDN[1] the tribunal applied long settled legal principles about domicile when deciding in that case that QCAT had jurisdiction to make an appointment for an adult who was said to be living outside of Queensland. A person’s place of domicile may be quite different from that person’s current place of residence. If a person’s domicile is Queensland, then there would be a sufficient connection to Queensland so that QCAT would have jurisdiction to make orders about that person under the GAA Act.
[1] [2011] QCAT 325.
The relevant legal principle was described in terms that every independent person can displace a domicile of origin by acquiring a domicile of choice in another jurisdiction. The person evidences and implements this decision by ceasing to reside in the former jurisdiction, and by taking up residence elsewhere with the intention of doing so permanently or indefinitely.[2]
[2] [2011] QCAT 325.
It was acknowledged that an adult can change their domicile by making a choice to live at a place other than their domicile of origin. JC had been domiciled in Queensland but he then moved to New South Wales. According to the evidence of HJ, JC had been resident in Queensland for only 6 weeks in the year up to the date when the review was commenced by QCAT. The question to determine was whether JC had changed his domicile of choice to New South Wales.
As explained in FDN, the general rule is that a person with a decision-making impairment cannot acquire a domicile of choice by his own actions, but retains his existing domicile for so long as he has impaired capacity.[3] The rationale is that acquisition and abandonment of a domicile of choice require the exercise of will and a person with impaired capacity may be "unable to exercise any will".[4] In the case of JC, did he have the capacity to change his domicile?
[3] Hepburn v Skirving (1861) 9 WR 764.
[4] Uruqhart v Butterfield (1887) 37 Ch D 357 at 382.
JC had been found to have impaired decision making capacity for personal matters, including decisions about where he lived. His guardian has been granted the power to make decisions about his accommodation. JC cannot change his domicile by his own actions. His guardian can change JC’s domicile by making an accommodation decision that results in JC living indefinitely outside of Queensland.
According to the evidence of HJ, she has not made such a decision. She has facilitated JC residing for various periods of time in accommodation in New South Wales but it is her intention that JC will return to live in Queensland on an indefinite basis. His current accommodation is under a four month lease and it is not clear where JC will live after the expiry of that lease.
I am satisfied that the evidence establishes that JC is actually domiciled in Queensland and that there is a sufficient connection with Queensland to provide QCAT with jurisdiction to make an order about JC under the GAA Act.
Having resolved that preliminary issue, the next question is whether QCAT should make its own order to continue the appointment of HJ as a guardian and as an administrator after conducting a review of those appointments. The appointments under review were the recognised appointments made on 16 November 2011. The recognition of the appointment of the guardian had in fact lapsed in Queensland by the date of the adjourned hearing on 30 November 2012 as that initial appointment of the guardian was for only a period of 12 months. The subsequent appointment of HJ as guardian made by the New South Wales Guardianship Tribunal on 15 November 2012 had not been recognised in Queensland prior to QCAT’s adjourned review hearing.
I cannot review an appointment that has lapsed. I can however have QCAT recognise the current order made by the New South Wales Guardianship Tribunal on 15 November 2012 appointing HJ as guardian for JC. I consider that it is appropriate for QCAT to recognise that order as ongoing decisions must be made about a range of personal matters for JC and I accept the evidence from HJ that she is likely at some time to make a decision to have JC return to Queensland to live so appropriate arrangements can be made for treatment of his mental illness and for his general care and well-being.
QCAT was also reviewing the appointment of HJ as the administrator of JC. That appointment has not lapsed as it is for a period in excess of 12 months. However I am not satisfied that QCAT needs to review that appointment at the present time as HJ is in place as the decision maker for financial matters and already has reporting obligations under the New South Wales order. It is my view that the current arrangements in place under the New South Wales order should regulate the decision making regime for financial matters for JC until such time as he returns to live indefinitely in Queensland.
In summary, QCAT recognises the order made by the New South Wales Guardianship Tribunal on 15 November 2012 appointing HJ as guardian for JC for the term of that order. QCAT’s recognition of the order made by the New South Wales Guardianship Tribunal on 16 November 2011 appointing HJ as administrator for JC had not lapsed and remains current.
The recognition by QCAT of those orders means that during the currency of those orders HJ has the same authority to make decisions in Queensland for JC about the personal and financial matters specified in the orders as if those orders had been made by QCAT. As a consequence I will dismiss the applications to review the appointment of HJ as guardian and administrator in Queensland as it is not necessary to review those appointments at this time.