LER
[2013] QCAT 404
| CITATION: | LER [2013] QCAT 404 |
| PARTIES: | LER |
| APPLICATION NUMBER: | GAA4734-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 6 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to dismiss the application for a declaration as to capacity and the applications for the appointment of a guardian and an administrator is refused |
| CATCHWORDS: | GUARDIANSHIP – where Adult Guardian applied for declaration about capacity – where divergent evidence about capacity for decision making – where proceedings found to have substance Queensland Civil and Administrative Tribunal Act 2009 s 47 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
LER married on 22 December 2012. LER’s daughters from a previous marriage and other members of LER’s family do not appear to have welcomed this new marriage to a person who has been described as a long term partner of LER.
A complaint had been made in November 2012 to the Adult Guardian to investigate the actions of LER’s attorney, who was the person he subsequently married in December 2012. It was alleged that LER’s attorney was restricting contact between LER and his family and that LER was subjected to financial and verbal abuse from his attorney.
An application was brought to QCAT by the Adult Guardian seeking orders about LER’s capacity for personal, health and financial matters and including his capacity to enter into a marriage. The Tribunal initiated applications for the appointment of a guardian and an administrator for LER.
LER applied to QCAT to dismiss those applications prior to hearing under section 47 of the QCAT Act. LER provided extensive written submissions to the tribunal contended that he had capacity to enter into his marriage and contending that QCAT lacked jurisdiction to make a declaration about that issue. His submissions also addressed the medical evidence about LER’s decision making capacity and argued that the presumption of capacity had not been rebutted by the evidence provided to the tribunal. In essence he submitted that the proceedings lacked substance and were in part an abuse of process.
Submissions were made to the tribunal by the Adult Guardian that there was variance of opinion in the medical evidence about LER’s capacity. It was submitted that the effect of the medical evidence was neither to rebut nor confirm the presumption of capacity and that the most appropriate course would be for the application to proceed to a hearing before the tribunal.
Some of the members of LER’s family were opposed to the dismissal of the applications under section 47 of the QCAT Act. They supported the appointment of formal decision makers for LER and they wanted the Enduring Power of Attorney granted to his wife to be revoked.
Submissions made on behalf of LER’s daughters contended that the proceedings did not lack substance and that it would be inappropriate to dismiss any part of the proceedings without an opportunity for the evidence to be fully explored and tested by the tribunal. They submitted that the role of the tribunal was both protective and inquisitorial in nature and the quality and quantity of evidence in relation to LER’s capacity did not warrant dismissal before a full hearing took place.
The submissions analysed the medical and lay evidence as to LER’s decision making capacity. The daughters’ submissions contended that not only could it be found that LER was unable to understand the nature and effect of decisions but that it could also be found that he was unable to make decisions freely and voluntarily as his will was overborne by his wife. It was submitted that the tribunal needed an opportunity to hear from witnesses on the issue of capacity.
Lastly the submissions from LER’s daughters contended that the proceedings were not an abuse of process as the tribunal has the power to make a decision about the capacity of LER to enter into a marriage. Although the Family Court or Federal Circuit Court has authority to make a decision as to the validity of that marriage, it would be open to the court to take any declaration made by QCAT into account. The daughters also submitted that the tribunal would be asked to make declarations about the capacity of LER to grant an Enduring Power of Attorney and to enter into certain complex financial transactions in 2013.
It was clear from the submissions provided to the tribunal that several issues arose from the applications: whether LER had capacity to enter into his marriage, whether he had capacity to grant an Enduring Power of Attorney, whether he has capacity on an ongoing basis to make decisions about personal, health and financial matters. There was evidence from both medical experts and from persons who know LER expressing differing facts about his functioning and decision making capacity.
The evidence was capable of rebutting the presumption of capacity. It would be necessary for the tribunal to make its own findings on what weight to give to the evidence and what findings to make when the evidence was divergent in nature.
Section 47 of the QCAT Act 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. The exercise of such a power in an appropriate case is consistent with the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
The tribunal has the role of determining capacity of an adult. The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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]
[1] Schedule 4 of the Guardianship and Administration Act 2000.
It can be seen that the definition of capacity is not purely dependant on a medical diagnosis but looks to the functional process involved in decision making. For that reason, evidence as to how other people have observed LER’s functioning is relevant and indeed essential in this case to a determination as to his capacity. Some evidence as to his functioning has been provided but will no doubt be contested by LER. I am satisfied that the tribunal must provide an opportunity to LER and to his family to challenge or support the evidence already provided about his capacity.
I am convinced that an early dismissal of the proceedings in this case would not achieve the objects of the tribunal to deal with matters in a way that is accessible, fair and just. An early dismissal would not discharge the protective role of the tribunal to persons found to have impaired decision making capacity.
I am unable to conclude that the applications are lacking in substance or are otherwise an abuse of process. There is clear substance in the issues to be determined about LER’s capacity. He has, at a time when it is alleged that he had impaired capacity, entered into a marriage, granted powers to someone else to make decisions for him and he has entered into financial transactions that are alleged to be to his detriment.
It would be unjust to him and to his family to bring an early end to the proceedings designed to clarify his rights to make decisions, and if necessary to make those decisions with adequate and appropriate support. No abuse of process has been established but rather the proceedings in this case demonstrate the necessity for an independent determinative body to be available to clarify the rights of persons to make decisions when those decisions have been reasonably subject to challenge.
The application to dismiss is refused.
0
0