JFG
[2010] QCAT 182
•23 March 2010
CITATION: JFG [2010] QCAT 182
PARTIES: JFG
APPLICATION NUMBER: GAA1494-10
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 23 March 2010
HEARD AT: Brisbane
DECISION OF: M Howard, Member
DELIVERED ON: 23 March 2010
DELIVERED AT: Brisbane
ORDERS MADE:
That the appointment of JLK as administrator for JFG for all financial matters is continued.
The administrator is to provide an updated financial management plan to the Tribunal within two (2) months, such plan to show how the compensation payment is to be spent or invested.
The Tribunal directs the administrator to provide accounts to the Tribunal eight (8) weeks prior to the anniversary of this appointment and annually thereafter.
Unless the Tribunal orders otherwise, this appointment remains current for three (3) years.
CATCHWORDS: Review of appointment of administrator - section 31 of Guardianship and Administration Act 2000 - appointment continued
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 24 March 2009 the Guardianship and Administration Tribunal appointed JLK as administrator for JFG. 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.
The appointment is being reviewed today 23 March 2010 on the basis of information on the Tribunal file. On 25 February 2010 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).
JFG is 65 years old and resides with JLK, his daughter, in private accommodation.
When conducting a review of an appointment of an 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.
When considering the appointment of an administrator, the Tribunal 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 JFG has capacity for decision-making about his 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.
In conducting a review, the Tribunal can have regard to the evidence about capacity that was 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.
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:
Reports available at the time of the initial appointment of the administrator indicate that the adult had a cerebrovascular accident in December 2007, which resulted in right hemiplegia and dysphasia. There is evidence that although he could produce a few words he was unable to communicate verbally. It appears that cognitive assessments were not done because of difficulty in determining what the adult understood. Although it was considered that he could make some of his preferences known, his general practitioner was of the opinion that he could not deal with financial matters. A rehabilitation specialist considered that his comprehension was difficult to assess given his limited ability to respond verbally. However, she considered his comprehension was better than his expression, but that he could not follow more than a two-step command. His daughter agreed that the adult had expressive difficulty despite some improvement.
A recent report from the adult’s general practitioner indicates that the adult has an ongoing inability to communicate and considers he is unable to make complex decisions about financial matters.
10. The Tribunal made findings of fact about capacity as follows: JFG had a left cerebrovascular accident in December 2007 which resulted in expressive dysphasia. The adult is unable to reliably and accurately communicate his views and ideas.
11. The Tribunal finds that the evidence established that: JFG is not capable of communicating decisions about financial matters.
CONCLUSION
12. The Tribunal determines that JFG does not have capacity to make decisions about financial matters.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?
13. The evidence in the file is that:
· The adult receives a disability support pension from Centrelink.
· During the period of the administration the adult received a small compensation payment.
· The adult currently has some funds remaining from the compensation payout.
· The adult’s has regular living expenses and expenses for the cost of respite.
· The adult reimbursed to the administrator, funds paid by her to meet the adult’s expenses prior to her appointment as administrator relating to the purchase of a disabled car hoist and rent.
· The adult has a credit card debt and the administrator has been negotiating with the financial institution regarding a write off of the debt. This matter is not yet finalised.
· The adult’s funds require management, and the administrator has indicated that he has some further expenses to be met from them.
14. Based on the evidence, the Tribunal determines that there is a need for decisions in relation to the adult’s financial matters; and without an appointment the needs of JFG will not be adequately met or his interests will not be adequately protected
SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?
15. The Tribunal considered the following evidence about the ongoing competence of the current administrator:
· The administrator has been managing the adult’s finances for one year and she has provided annual accounts and additional information which satisfied the Tribunal’s financial assessment officer that it was probable the administrator was appropriately managing the adult’s finances.
· She has a close and continuing relationship with the adult.
16. No other person has sought appointment as administrator.
17. The Tribunal made the following findings about the appropriateness of the current or proposed appointee: The administrator has been managing the adult’s financial matters in his interests and in accordance with the Guardianship and Administration Act 2000. The administrator has a close relationship with the adult and knows his preferences well.
The Tribunal is satisfied that JLK
· is at least 18 years of age
· is not a paid carer for the adult
· is not a health provider for the adult
· has signed a statutory declaration as to appropriateness for the role
· is likely to apply the general principles
· is not bankrupt or taking advantage of the laws of bankruptcy
· is an appropriate person to appoint as administrator after taking into consideration the provisions in section 15 of the Act.
APPOINTMENT
18. The appointment of JLK is continued as administrator for JFG for 3 years to make decisions about all financial matters.
19. The administrator is directed to lodge accounts with the Tribunal 8 weeks prior to the anniversary of this order and annually thereafter. Further, the administrator is directed to provide an updated financial management plan to the Tribunal within 2 months, such plan to show how the balance of the compensation payment is to be spent or invested.
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