LJE
[2010] QCAT 21
•15 January 2010
CITATION: LJE [2010] QCAT 21
PARTIES: LJE
APPLICATION NUMBER: GAA423-09, GAA7413-909, GAA10475-09
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 15 January 2010
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 15 January 2010
DELIVERED AT: Brisbane
ORDERS MADE: Guardian and administrator continued
CATCHWORDS: Review of appointment of guardian and administrator – section 31 of Guardianship and Administration Act 2000 – appointments continued
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 15 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for LJE (the adult). The Public Trustee of Queensland had been appointed administrator for LJE in 1991. 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.
The appointments are being reviewed today on the basis of information on the Tribunal file. On 15 January 2010 notice of this review hearing was sent to the adult. On 18 December 2009 notice of this review hearing had been sent to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act).
LJE is 41 years old and resides in supported accommodation.
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.
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
The first matter to be considered by the Tribunal is whether LJE has capacity for decision-making about her 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.
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.
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.
The Tribunal considered the following evidence about capacity: Dr M had provided a report to the Tribunal in which she had stated that LJE had been diagnosed with cerebral palsy and an intellectual impairment. Dr M expressed the opinion that LJE had no understanding of financial affairs and she could not make decisions freely and voluntarily. Dr M stated that LJE could not make any decisions apart from simple health care decisions. LJE has been dependent on her carer’s to make most of her every day decisions about activities of daily living.
The Tribunal made findings of fact about capacity as follows: LJE has an intellectual impairment. She has no understanding of her financial affairs and she relies on others for most decisions. The impact on her cognitive functioning from her intellectual impairment is unchanged since 2009.
The Tribunal finds that the evidence established that LJE cannot understand the nature and effect of decisions about personal and financial matters and she is not capable of making decisions freely and voluntarily.
CONCLUSION
The Tribunal determines that LJE does not have capacity to make decisions about her personal and financial matters.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN
The evidence in the file is that LJE resides in supported accommodation with services from a service provider. That accommodation is stable and is unlikely to be changed in the foreseeable future. She has ongoing health care needs particularly around catheter maintenance. Satisfactory arrangements have been made by the service provider to supervise visits by LJE’s family as a result of a past history of vulnerability to abuse. LJE has limited community access and decisions may be needed about increased service provision to increase her opportunities for community access.
Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to personal matters and without an appointment the needs of LJE will not be adequately met or her interests will not be adequately protected.
SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current guardian: the Adult Guardian has acted competently in making decision for LJE over the past year. The continued appointment of the Adult Guardian is supported by LJE’s service provider.
No other person has sought appointment as LJE’s guardian.
The Tribunal made the following findings about the appropriateness of the current appointee: the Adult Guardian has acted competently in making decisions about service provision and health care. There is no other person more appropriate to make decisions as guardian than the Adult Guardian in this case.
CONCLUSION
The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of LJE. 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
The guardianship appointment made on 15 January 2009 is changed by appointing the Adult Guardian as guardian for LJE for health care decisions and service provision decisions for two years.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?
The evidence in the file is that: LJE has income and regular expenditure that needs to be managed by a person independent from her service provider to ensure that her lifestyle is maintained. She has accumulated savings that have been invested for her future needs.
Based on the information set out above, the Tribunal determines that there is a need for ongoing decisions in relation to LJE’s financial affairs and without an appointment her needs will not be adequately met or her interests will not be adequately protected.
SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current administrator: an annual budget is prepared to manage LJE’s income and regular expenditure. The administrator has sought and implemented professional advice about the investment of her accumulated savings. Her financial affairs have been secured for her current and future needs.
No other person has sought appointment as LJE’s administrator.
The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee of Queensland has managed LJE’s financial affairs competently. Appropriate budgets meet her current needs and investments made of her savings for her future needs. Her finances are secured from exploitation.
CONCLUSION
The Tribunal is satisfied that The Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs. The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.
APPOINTMENT
The appointment of The Public Trustee of Queensalnd is continued as administrator for LJE until further order of the Tribunal to make decisions about all her financial matters.
The administrator must lodge accounts with the Tribunal when requested.
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