LKP

[2010] QCAT 27

CITATION:      LKP [2010] QCAT 27

PARTIES:   LKP

APPLICATION NUMBER:            GAA10426-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   20 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   20 January 2010

DELIVERED AT:   Brisbane  

ORDERS MADE:   Appointment of administrator continued

CATCHWORDS: Review of appointment of administrator – section 31 of Guardianship and Administration Act 2000 – appointment continued

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 22 January 2009 the Guardianship and Administration Tribunal appointed LG as administrator for LKP (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 16 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. LKP is 84 years old and resides in an aged care home.

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 LKP 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.

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: Evidence obtained for previous hearings revealed that LKP had been diagnosed with Alzheimer’s Disease and had manifested poor memory and confusion and required assistance with many activities due to her deteriorating cognitive condition.  The Tribunal was not provided with any evidence about any improvement in her cognitive functioning. 

1. The Tribunal made findings of fact about capacity as follows: LKP has dementia and can not understand, retain, recall and act on information about her financial affairs. 

1. The Tribunal finds that the evidence established that LKP cannot understand the nature and effect of decisions about her financial affairs. 

CONCLUSION

1. The Tribunal determines that LKP does not have capacity to make decisions about financial matters.   

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?

1. The evidence in the file is that: LKP has significant funds under management.  She resides permanently in an aged care facility and she has expenses that must be met from her income and assets.  Decisions are made about investment of her assets and the use of her income for her present and future needs.

1. Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to LKP’s financial matters 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?

1. The Tribunal considered the following evidence about the ongoing competence of the current administrator: The annual accounts lodged by the administrator were not found to be satisfactory by the financial assessment manager of the Tribunal.  Details of LKP’s income were not adequately disclosed and the disclosed assets did not tally with previous information on the Tribunal’s files.  The accounts did not necessarily indicate that the duties of the administrator were not competently performed but raised queries about his record keeping and the understanding of the obligations in his role.    

2. No other person has sought appointment as administrator for LKP.

3. The Tribunal made the following findings about the appropriateness of the current appointee: LG has lodged accounts as required by the terms of his appointment but some aspects of the accounts are not satisfactory due to a lack of information.  The Tribunal considers that the current administrator should provide information that will be sought by the financial assessment manager of the Tribunal to explain the accounts lodged with the Tribunal.  Until such time as an examination of the accounts is completed, the Tribunal considers that the current administrator has not demonstrated any reasons why he cannot continue in the role.   

CONCLUSION

1. The Tribunal is satisfied that LG   

   • is at least 18 years of age
   • is not a paid carer for the adult
   • is not a health provider for the adult 
   • has signed or is willing to sign a statutory declaration as to appropriateness for the role
   • is likely to apply the general principles
   • is not bankrupt or taking advantage of the laws of bankruptcy
   • is an appropriate person to appoint as administrator after taking into consideration the provisions in section 15 of the Act.

APPOINTMENT

1. The appointment of LG is continued as administrator for LKP for four months to make decisions about all financial matters.   

2. The administrator is directed by 20 March 2010 to respond in writing to the financial assessment report of the Tribunal dated 18 January 2010 and to provide such further information about the adult’s financial affairs as is required by the Financial Assessment manager of the Tribunal.