JSI

[2025] QCAT 113

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JSI [2025] QCAT 113

PARTIES:

In applications about matters concerning JSI

APPLICATION NOS:

GAA7489-23
GAA10517-23
GAA13022-24
GAA13023-24
GAA1759-25
GAA1760-25

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 February 2025 (ex tempore)

HEARING DATE:

17 February 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne, Presiding
Member Lewis

ORDERS:

DECLARATION OF CAPACITY

1.     JSI does not have capacity to make decisions about legal matters involving a claim for compensation for personal injuries sustained on or about 2 May 2015.

APPLICATION FOR LEAVE TO WITHDRAW AS GUARDIAN

2.     The application by ST for leave to withdraw as guardian for JSI is dismissed.

GUARDIANSHIP

3.     The appointment of the Public Guardian as guardian for JSI for the following personal matter is revoked:

(a)     The legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015.

ADMINISTRATION

4.     TD is appointed as administrator for JSI for all financial matters.

5.     The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

6.     The Tribunal directs the administrator to provide accounts of administration to the Tribunal:

(a)     For the initial year of the appointment no later than one (1) month after the anniversary of the appointment;

(b)     For the year in which a review of the appointment will occur, three (3) months prior to a review of the appointment; and

(c)     When requested by the Tribunal.

7.     This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where matter is referred back to the Queensland Civil and Administrative Tribunal by the Queensland Civil and Administrative Appeals Tribunal – where the Tribunal initiated applications regarding a declaration of capacity and the appointment of an administrator – where time was abridged on the basis of special circumstances – whether a decision to appoint a guardian for personal matters should be revoked – whether the adult’s existing informal networks can support the adult – where the Tribunal made a declaration about an adult’s capacity – where the adult may receive a large sum of money from a settlement – whether applicant is a “person under a legal disability” – whether the applicant has an impaired capacity regarding a “financial matter” or a “legal matter” as defined by the Guardianship and Administration Act 2000 (Qld)

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal identified human rights affected by the decision – where the Tribunal considered the decision was compatible with human rights – where the Tribunal considered limits to human rights were reasonable and justified – where the Tribunal considered the right to be recognised as a person who is equal before the law – where the Tribunal considered the right to make decisions – where the Tribunal considered rights to privacy and reputation – where the Tribunal considered the right to a fair hearing

Guardianship and Administration Act 2000 (Qld), s 12, 15, s 31, s 103, s 146, sch 4

Human Rights Act 2009 (Qld), s 13, s 48, s 58

Public Trustees Act 1978 (Qld), s 59

APPEARANCES & REPRESENTATION:

Adult:

TD (Adult’s Mother)

Public Guardian

Public Trustee of Queensland

M Redpath of Shine Lawyers

Self-Represented

MR and FK

SM, LJ and CD

REASONS FOR DECISION

1. Senior Member Browne: The applications to be considered are an application for a declaration of capacity and application for the appointment of an administrator. Both are Tribunal-initiated applications, as per directions made by the Tribunal on 21 November 2024. The Tribunal is also considering an earlier application seeking leave to withdraw as a guardian filed by ST, JSI’s wife, and a review of the appointment of a guardian.

2. By order dated 15 May 2024, the Tribunal changed an existing order by appointing the Public Guardian as guardian for JSI, this was in respect of a discrete area relating to his personal matters, namely a legal matter involving the claim for compensation for personal injury suffered on or about 2 May 2015.

3. After that decision was made the Public Guardian, the appointed guardian, filed an application for leave to appeal or appeal. By order dated 19 November 2024, the Appeal Tribunal stayed the operation of the applications giving rise to the change in the earlier appointment, namely the Public Guardian being appointed and also the application that was before the Tribunal in 2024 filed by ST seeking leave to withdraw.

4. As a result of the Appeal Tribunal’s decision to stay the operation of the earlier decisions before the Tribunal, the Tribunal has initiated applications for a declaration of capacity and for the appointment of an administrator. 

5. Notice of hearing was given in respect of the applications, and today, on the day of the hearing, TD, JSI’s mother, applied to the Tribunal proposing that she be appointed as her son JSI’s guardian and administrator. An amended notice of hearing was issued, and the Tribunal, upon hearing from TD and JSI’s legal representative, Mr Redpath, was satisfied that it was appropriate to abridge time to enable the applications proposing TD be appointed, to proceed today.

The applications before the Tribunal

1. The Tribunal is satisfied that it is necessary to proceed in the absence of giving notice to JSI as he is not in attendance today. JSI indicated, through his solicitor, Mr Redpath and his mother that he would not be attending the hearing today due to his secondary psychological symptoms, arising from an earlier incident, resulting in anxiety. This is consistent with the medical evidence provided to the Tribunal.

2. JSI has expressed, through his solicitor and his mother, his support for TD taking on the role as guardian and administrator. The Tribunal is satisfied that, on the basis of special circumstances, it is appropriate to abridge time and proceed.

3. The Tribunal has the power under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) to appoint a guardian or an administrator only if it is satisfied the requirements set out in section 12 have been met. One requirement is that the presumption of capacity is rebutted.

4. Capacity is something we are all presumed to have and it is a necessary finding for section 12. Further, in this matter, is whether JSI has impaired capacity for his personal and financial matters and, amongst other things, that there is a need for a decision to be made in relation to his personal and financial matters and without an appointment his needs will not be adequately met, or his interests will not be adequately protected.

5. The Tribunal, in reviewing the existing appointment of a guardian or an administrator under section 31 of the GA Act, is required to revoke its order making an appointment unless satisfied it would make the appointment if a new application were to be made. This requires the Tribunal to go back to the requirements under section 12.

6. In addition to making necessary findings about capacity, for the purposes of considering whether to appoint a substituted decision-maker or, in reviewing an existing appointment, the Tribunal also has the power under section 146 of the GA Act, to exercise discretion to make a declaration about the capacity of an adult for a matter. The word “adult” is used in the Guardianship and Administration Act, and today we are talking about JSI.

7. ‘Capacity’, as defined under schedule 4 of the GA Act, means: the person is capable of understanding the nature and effect of decisions about the matter and freely and voluntarily making decisions about the matter and communicating the decisions in some way.

Tribunal findings – review of the appointment of a guardian

1. The Tribunal will first consider the review of the existing appointment of the guardian. The information and evidence before the Tribunal is compelling. JSI is supported in all areas of his life by others and, more importantly, this support is informal and comes from his mother, TD. JSI rents his own private property through a private rental. He sometimes lives with his wife, TS, and sometimes lives with his mother. JSI requires prompting and assistance in all activities of daily living, providing instructions to his solicitor and in accessing necessary appointments – for example, medical appointments.

2. The Tribunal accepts the information provided by TD orally in the hearing that, in respect of JSI’s personal matters, the current informal support regime is working, and there is no need for a substituted decision-maker to step into the role of a guardian to make decisions about his personal matters. Should there be a change in JSI’s circumstances, an application for the appointment of a guardian can be made at any time.

Application for the appointment of an administrator

1. In relation to JSI’s financial matters, the Tribunal is assisted by Mr Redpath’s written submissions in the hearing that indicate the following:

   (a)There are ongoing proceedings in relation to injuries sustained from a fall on the 2nd of May 2015;

   (b)There is no person or entity who is currently JSI’s legal administrator, although the Public Guardian is presently appointed as a guardian;

   (c)There is a need for the appointment of a litigation guardian; and

   (d)TD has indicated her availability and willingness to take on the role of litigation guardian.

2. The appointment of an administrator is necessary because the current personal injuries claim or proceeding before the court may at some point be compromised, or there may be a litigation outcome that results in a significant sum of money being payable to JSI. Further, given the current medical evidence, that JSI has an acquired brain injury and other secondary injuries as a result of his fall, JSI will require assistance in managing his financial matters. It is also necessary for the appropriate application to be made under the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) for a litigation guardian to be appointed.

3. This raises the question of whether decisions need to be made about all of JSI’s financial matters. A 'financial matter’ includes a legal matter relating to JSI’s financial or property matters, and a ‘legal matter’ under part 3, schedule 2 of the GA Act includes a matter relating to a number of things, but relevant to this matter is bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding. A ‘legal matter’ includes, for example, a court proceeding started in the adult’s name, relating to a claim for damages. Decisions about a legal matter that involves a claim for compensation for personal injuries therefore falls within the definition of a ‘financial matter’ as defined under the GA Act.

4. If the claim is successful and an award of damages or compensation is payable to JSI, this will impact on his finances or property. Therefore, the Tribunal is satisfied that it is necessary for an administrator to be appointed to make decisions about all of JSI’s financial matters. Presently JSI’s financial matters are relatively straightforward, he receives a disability support pension and does not own any property. However, if there is a compromise or settlement of the pending litigation, there will be a significant change to his financial or property matters.

5. Relevant to a claim for injuries is section 59 of the Public Trustees Act 1978 (Qld), which applies where a person is under a legal disability. Section 59(1) requires that settlement or compromise, ‘In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties… must be sanctioned by the court or by the Public Trustee.’

   The issue of capacity

6. A person ‘under a legal disability’ as described in section 59 means, “a child or a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000.” Also relevant to this matter is the UCPR, it will be necessary, as heard today from Mr Redpath, for a litigation guardian to be appointed by the court, and presently, this person is proposed to be TD.

7. The issue of capacity, as it relates to the application for the appointment of an administrator, is a necessary finding for section 12 of the GA Act. The Tribunal also has the power to make a standalone declaration of capacity. This issue requires identification of the matter, and today the matter includes all financial matters and whether the resolution of any litigation, including the money that will be received through JSI’s bank account should be invested or should be utilised to purchase real property.

8. This may require consideration of financial advice from a suitable financial advisor, engaging with legal advisors, or real estate agents. They are all complex decisions, and in referring to the definition of capacity, based on the medical evidence, JSI will require assistance, and without the appointment of an administrator his financial interests will not be protected, and, his other interests will not be protected because the pending litigation would be, effectively, held in abeyance and would be unable to be resolved.

9. The information filed in the Tribunal includes medical reports obtained in relation to JSI’s personal injuries claim and a forensic psychiatrist report of Dr Matthew dated 21 August 2023. There is also an earlier report dated 17 February 2021 of Dr Kodoth Uraku, a report of Dr Todman, neurologist, dated 23 May 2019, and reports completed by a general practitioner, clinical psychiatrist and a psychiatrist dating back to 2019.

10. At the commencement of the hearing, the Tribunal was provided with a recent occupational therapist report completed by Mark Scalia dated 26 July 2024. Mr Redpath summarised that report as identifying physical limitations, in relation to JSI’s injuries sustained as a result of his fall. They are described as being broad, resulting in extensive care and treatment, modifications are necessary, and JSI’s work prospects are limited. There are also psychological limitations which are secondary psychological injuries. Although not addressed specifically in the recent report of Mark Scalia, they [psychological limitations] are referred to in the earlier reports, in particular the forensic psychiatrist report of Dr Matthew dated 21 August 2023.

Tribunal Findings – application for the appointment of an administrator and for a declaration of capacity

1. JSI is a 45-year-old man, and the Tribunal, in accepting the medical evidence, finds that he sustained a traumatic brain injury and physical injuries as a result of a fall from a roof on or about 2 May 2015.  JSI has associated memory difficulties and secondary psychological injuries as a result of the fall and cognitive deficits. He relies on others to assist him in all areas of his life, including in managing his financial matters. As reported by Dr Matthew on 21 August 2023, due to his memory difficulties, JSI is unable to organise his finances.

2. The Tribunal accepts the information from TD that her son, JSI, relies on her in providing informal support to him, in particular in assisting with his finances, although simple, because he only has income in the form of a disability support pension, but she will be assisting him in applying for other supports and, if appropriate, through the National Disability Insurance Scheme.

3. For the presumption of capacity for financial matters, and in relation to providing instructions to his solicitor about his pending litigation, the Tribunal finds that JSI does not have capacity to make decisions about his legal matters involving the claim for compensation for personal injuries sustained on or about 2 May 2015. The presumption of capacity is rebutted.

4. It is also desirable to make a declaration of capacity today under section 146 of the GA Act. This is because it will give the court some comfort in respect of the outcome of the guardianship proceeding today and, indeed, his instructing solicitors, who can then pursue the appropriate path with the courts under the UCPR in applying for a litigation guardian. As I have said, TD has indicated a willingness and availability to step into that role.

5. In relation to the application for the appointment of an administrator, the Tribunal is satisfied there is a need for decisions to be made about all financial matters, and without the appointment of an administrator, JSI’s financial interests will not be protected, and his financial interests may, in fact, be at risk because he may be in receipt of a significant sum of money resulting in a change to his current financial position.

6. The evidence about the appropriateness of the proposed appointees – the Public Trustee of Queensland is obviously available to step into the role of an administrator. It is always preferable to have family members step into this role, and TD has applied. She has completed the relevant appropriateness and competence advice dated 17 February 2025. The Tribunal also took TD through her duties as an administrator and had the opportunity of hearing from her in the hearing today. TD was able to clearly explain what she would do in the event that JSI was to receive a large sum of money. TD referred to seeking financial advice, keeping the money safe, potentially buying a property, obtaining the advice of solicitors and from a real estate agent. More importantly, TD talked about including JSI in those discussions, so I am satisfied TD is well-placed to apply the general principles. I have applied section 15, and I find that TD is suitable and appropriate to take on the role and that it is unlikely that there will be a change in JSI’s circumstances in the foreseeable future, so it is therefore appropriate to appoint an administrator, TD, to be reviewed in five years.

7. The Tribunal, in exercising the powers under the GA Act, is acting in an administrative capacity and is a public entity for the purposes of section 58 of the Human Rights Act 2009 (Qld) (‘Human Rights Act’). Therefore, I am required to make a decision in a way that is compatible with human rights and in making a decision must give proper consideration to relevant human rights. The human rights considered under the Human Rights Act, as stated in section 48, requires all statutory provisions be interpreted, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.

8. The following human rights are limited and engaged by the making of the Tribunal’s order. JSI’s right to be recognised as a person who is equal before the law will be engaged because today the Tribunal is appointing a substituted decision-maker, such as an administrator, and the administrator will make decisions about all of JSI’s financial matters that would otherwise have been made by him. JSI’s right to privacy and not to have his reputation unlawfully attacked will be impacted because personal and sensitive information about him has been shared with others and will continue to be shared with others as a result of the appointment of an administrator. JSI’s right to make decisions about his own property and, more broadly, financial matters will be limited and engaged by the appointment of an administrator who will be making decisions about all of JSI’s financial matters.

9. JSI’s right to a fair hearing is engaged and limited because JSI was not able to tell the Tribunal in his own words today whether he supports the appointment. However, the Tribunal has taken into account the views of his instructing solicitor and his mother, TD, the proposed appointee, and is satisfied that JSI would support TD’s appointment because she is his mother and has been informally supporting him and understands his needs. 

1. The rights identified are limited by the operation of the GA Act, which provides for the appointment of substituted decision-makers to make decisions for a person who is found to have impaired decision-making capacity for a relevant matter. The GA Act seeks to strike a balance between the right of an adult, with impaired capacity, to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. The GA Act acknowledges the right of a person, with impaired capacity to make decisions, should be restricted and interfered with to the least possible extent.

2. Further, the general principles that reflect relevant rights of a person with impaired decision-making capacity must be applied by a person or other entity that performs a function or exercises a power under the GA Act. I am satisfied the limits imposed on JSI’s human rights by the making of the orders today, which are for the appointment of an administrator and to make a declaration of capacity, are reasonable and justified in accordance with section 13 of the Human Rights Act. I have applied the GA Act and the general principles, and I am satisfied that the orders made are necessary and the least restrictive based on the information before the Tribunal.

Orders

1. The orders are that:

   1.JSI does not have capacity to make decisions about legal matters involving a claim for compensation for personal injuries sustained on or about 2 May 2015.

   2.The application by ST for leave to withdraw as guardian for JSI is dismissed.

   3.The appointment of the Public Guardian as guardian for JSI for the following personal matter is revoked:

   (a)The legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015.

   4.TD is appointed as administrator for JSI for all financial matters.

   5.The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

   6.The Tribunal directs the administrator to provide accounts of administration to the Tribunal:

   (a)   For the initial year of the appointment no later than one (1) month after the anniversary of the appointment;

   (b)   For the year in which a review of the appointment will occur, three (3) months prior to a review of the appointment; and

   (c)   When requested by the Tribunal.

   7.This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.

1. The following documents were considered by me to be credible, relevant and significant to an issue in the proceeding in accordance with section 103 of the GA Act: the Notice of Hearing (H25); the Tribunal’s order of 21 November 2024 (H19); the Tribunal’s decision of 15 May 2024 (H17); the guardian’s report filed 15 April 2024 (H13); medical reports (MED1 to MED6 inclusive); certificate of advice of hearing (H27); written submissions filed by Shine Lawyers, 17 February 2025 (H26); application filed by TD on 17 February 2025; the amended notice of hearing; and the occupational therapist report of Mark Scalia.