KR

[2010] QCAT 19

CITATION:      KR [2010] QCAT 19

PARTIES:   KR

APPLICATION NUMBER:            GAA10267-09

MATTER TYPE:   Guardianship matters for adults

HEARING DATE:   14 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   14 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of guardian

CATCHWORDS: Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – appointment changed

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 16 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for KR (the adult). 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.

1. The appointment is being reviewed today on the basis of information on the Tribunal file. On 11 December 2009 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). 

1. KR is 45 years old and resides in supported accommodation.

1. When conducting a review of an appointment of a guardian or 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.

1. The Tribunal when considering the appointment of a guardian or an administrator 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

1. The first matter to be considered by the Tribunal is whether KR has capacity for decision-making about his 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.

1. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been 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. 

1. 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.

1. The Tribunal considered the following evidence about capacity: Dr M in a report dated 21 November 2008 stated that KR had been diagnosed with cerebral palsy, an intellectual impairment and microcephaly. He is dependant on others to complete most activities of daily living.  Dr M was of the opinion that KR could not make decisions freely and voluntarily and could only make simple health care decisions but no other simple or complex decisions.

1. The Tribunal made findings of fact about capacity as follows: KR has an intellectual disability and he relies on other persons for most decision making due to his intellectual disability. 

1. The Tribunal finds that the evidence established that KR cannot understand the nature and effect of decisions about personal matters and he is not capable of making decisions freely and voluntarily.

CONCLUSION

1. The Tribunal determines that KR does not have capacity to make decisions about his personal matters.    

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: KR resides in supported accommodation and relies on service delivery for his residential and community needs.  KR’s accommodation is stable and there no longer is any current need for decisions about his accommodation.  He has a range of medical conditions for which he receives treatment.  He has a past diagnosis of schizophrenia and he does display some challenging behaviours. There has been no recent assessment undertaken of the reasons for his challenging behaviour or for the need to take medication to manage that behaviour.  KR is possibly being subject to chemical restraint and if so, proper consent is required and a Positive Behaviour Support Plan is needed.    

1. Based on the information set out above, the Tribunal determines that there is a need for decisions in relation to KR’s personal affairs and without an appointment his needs will not be adequately met or his interests will not be adequately protected.

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardians: The Adult Guardian has consulted with persons interested in KR before making decisions for him.  The guardian has acted competently and has the skills and experience needed to arrange measures to support KR in the use of chemical restraint, if an assessment reveals that medication being administered is for the management of his challenging behaviours.  

2. No other person has sought appointment as guardian for KR.

3. The Tribunal made the following findings about the appropriateness of the current appointee: the Adult Guardian has been competent in the role as guardian and is best placed to support KR with advocacy and help around the use of restrictive practices. 

CONCLUSION

1. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of KR.  The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as guardian in this case.

APPOINTMENT

1. The guardianship appointment made on 16 January 2009 is changed by appointing the Adult Guardian as guardian for KR for decisions about health care, service provision and to seek help and make representations about the use of restrictive practices for two years.