| CITATION: | JMS v Adult Guardian & Anor [2013] QCATA 135 |
| PARTIES: | JMS (Applicant/appellant) |
| v | |
| MAJ Adult Guardian (Respondents) |
| APPLICATION NUMBER: | APL402-11 / APL037-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Leslie Clarkson, Member |
| DELIVERED ON: | 30 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – GUARDIANSHIP – whether error of law occurred – whether Tribunal failed to take material consideration into account on issue of capacity – whether there was a need for guardian – whether Tribunal failed to consider another appropriate person available for appointment – whether appointees incompetent Guardianship and Administration Act 2000 (Qld), s 12, s 14(2), s 15, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Adult Guardian v Hunt [2003] QSC 297, cited |
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.
REASONS FOR DECISION
RR (‘the adult’) is an 88 year old widow who resides in an aged care facility in Brisbane
In 2011 the Nurse Unit Manager at the Noosa Hospital made applications to the Tribunal seeking the appointment of the Adult Guardian and The Public Trustee of Queensland as the adult’s guardian and administrator respectively.
At that time, the adult and her spouse, JR, were inpatients at the Noosa Hospital, and applications were also made for similar appointments in relation to JR.
Applications were also made by their daughter, JMS, seeking her appointment as guardian and the Public Trustee as administrator.
In the result, by orders made on 29 September 2011 (‘the first decision’) the Tribunal appointed the Adult Guardian for decisions about the personal matters of health care, accommodation, and the provision of services. MAJ (a daughter of the adult and her spouse) was appointed as administrator for all financial matters for the adult and her spouse.
JMS (‘the applicant’) sought leave to appeal and is appealing the first decision in relation to the guardianship appointments for her parents.
In the interim, TS, a granddaughter, brought applications for a review of the guardianship and administration appointments, and sought the appointments of the applicant as guardian and the Public Trustee as administrator. The appeal process was placed on hold, pending the outcome of those applications.
Prior to the hearing of the review applications, JR passed away, and the appeals are now referable to the adult only.
The review application was heard on 23 November 2012, and by orders made on that day (‘the second decision’) the Tribunal continued the appointments of the guardian and administrator, with the Adult Guardian’s powers broadened to include decisions about with whom the adult has contact and/or visits.
The applicant also sought leave to appeal and…
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- Case
- [2013] QCATA 135
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on whether the Tribunal had erred in law by failing to take into account relevant factors in assessing JMS's capacity and the necessity of appointing a guardian. Additionally, the court had to determine whether the Tribunal had erred by not considering another proposed guardian who was available for appointment, and if the appointed guardians were competent to act in that capacity. The court had to examine the Tribunal’s process and findings to ensure they were conducted lawfully and with due regard to the relevant statutory provisions.
In assessing the appeal, the court found that the Tribunal had properly considered the relevant statutory criteria and had not made an error of law. The court was satisfied that the Tribunal had appropriately evaluated JMS's capacity and the necessity of appointing a guardian, taking into account all relevant material considerations. Furthermore, the court concluded that the Tribunal had considered the availability of another proposed guardian but found the appointed guardians to be suitable. The court found no basis to interfere with the Tribunal’s decision and dismissed the appeal.
The court refused leave to appeal, upholding the original decision of the Tribunal. The appointed guardians remained in their roles, and the Tribunal’s findings regarding JMS's capacity and the need for a guardian were affirmed.
Orders
Orders of the court
Leave to appeal refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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