KD
[2010] QCAT 660
•23 December 2010
| CITATION: | KD [2010] QCAT 660 |
| PARTIES: | KD |
| APPLICATION NUMBER: | GAA9469-10 GAA9470-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 23 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Applications for the appointment of a guardian and administrator are dismissed |
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – where presumption of capacity not rebutted – applications lack substance – early end to proceedings – section 47 of the Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 18 November 2010 PG lodged an application for the appointment of a guardian and administrator for KD. The applicant is a welfare officer at a community organisation. The application was not accompanied by any evidence as to the decision making capacity of KD.
On 25 November 2010 a staff member from the tribunal registry wrote a letter to the applicant requiring him to provide evidence about KD’s decision making capacity. On 29 November 2010 the applicant telephoned the tribunal registry and informed a staff member that KD had a referral to see a medical specialist and he would make an appointment for her shortly. The applicant was informed that the applications would not proceed unless information was received by the tribunal about KD’s decision making capacity.
On 10 December 2010 the tribunal received a letter from solicitors instructed by KD informing the tribunal that KD did not want to pursue the applications and providing a copy of an Enduring Power of Attorney that she had made on 5 July 2010 appointing her daughter as her attorney for financial, personal and health matters.
On 14 December 2010 a staff member from the tribunal registry spoke to the applicant and was informed that he would provide a copy of a hospital discharge summary to the tribunal. The document provided to the tribunal did not contain any information about KD’s decision making capacity.
On 15 December 2010 a staff member from the tribunal registry wrote to the applicant and informed him that the applications would be considered for dismissal on 23 December 2010 unless medical evidence about KD’s decision making capacity was received by the tribunal.
On 23 December 2010 the applicant spoke to a staff member from the tribunal registry and stated that solicitors for the attorney had obtained a report about KD’s decision making capacity but he was unable to provide a copy of that report to the tribunal.
When considering the appointment of a guardian and administrator for an adult, the tribunal is required by section 12 of the Guardianship and Administration Act 2000 to be satisfied that the adult has impaired decision making capacity. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. That presumption must be rebutted by evidence before an appointment of a guardian or administrator can be made.
The applicant has not provided medical evidence about the decision making capacity of KD and he had been informed that the tribunal was unable to proceed with the applications until medical evidence capable of supporting a finding that KD had impaired decision making capacity was provided.
The tribunal considers that the applications for the appointment of a guardian and administrator for KD are without substance on the basis of the information lodged with the tribunal. There has been no evidence presented to rebut the presumption of capacity.
10. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.
11. The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. The tribunal concludes that the applications for the appointment of a guardian and administrator should be brought to an early end in view of the failure of the applicant to provide the information that the tribunal has requested and in view of the finding that the application is without substance.
12. The tribunal considers that under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the applications for the appointment of a guardian and administrator for KD should be dismissed.
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