LMC

[2010] QCAT 209

CITATION:      LMC [2010] QCAT 209

PARTIES:   LMC

APPLICATION NUMBER:            GAA2174-10

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   14 April 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   14 April 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 21 April 2005 the Guardianship and Administration Tribunal appointed WR as administrator for LMC (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 17 March 2010 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. LMC is 40 years old and lives in a regional area of Queensland with her partner.

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 LMC 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: LMC has been assessed as having an intellectual impairment since birth.  Dr Malone reported in 2004 that LMC had a very poor ability to carry out tasks involved in managing her finances.  Dr Malone was of the opinion that LMC could not make simple or complex decisions about her financial affairs.

1. The Tribunal made findings of fact about capacity as follows: LMC has an intellectual impairment.  She was not able in 2004 to carry out tasks involved in the management of her financial affairs.  No recent evidence has been provided to the Tribunal to indicate whether LMC has gained that ability. 

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

CONCLUSION

1. The Tribunal determines that LMC does not have capacity to make decisions about her financial affairs. 

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

1. The evidence in the file is that: LMC has regular decisions to make about living expenses to pay and income to manage.  In the past problems with prioritising spending resulted in financial difficulties.  Support from an administrator appears to have avoided ongoing difficulties.  

1. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about LMC’s financial affairs, that she is likely to do something in relation to her financial affairs that involves, or is likely to involve, unreasonable risk to her assets and property and without an appointment the needs of LMC 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 administrators: The bank accounts reveal regular banking of income and regular expenditure for living expenses.  There are no apparent debts accumulated by the adult during the period of administration. Accounts have only recently been lodged by the administrator and were not signed as required by the account form and as a result the statutory declaration about her ongoing appropriateness for appointment was not signed. She was willing to sign the required statutory declaration in 2004 and there is no evidence that the failure to sign was anything but an oversight when lodging the accounts.    

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

3. The Tribunal made the following findings about the appropriateness of the current appointee: The accounts lodged by the administrator cover a five year period.  On preliminary examination of the accounts, it appears that the administrator has acted competently in the role. 

CONCLUSION

1. The Tribunal is satisfied that WR   

   • 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 WR is continued as administrator for LMC for four months to make decisions about all financial matters.  LMC is currently residing with her partner in a house that had belonged to a relative.  It is not clear whether LMC or her partner have views about appointment of an administrator for any further prolonged period of time. 

1. It is appropriate that an oral hearing takes place within the next four months to review this appointment so WR can provide additional information about the financial affairs of LMC, she can sign the statutory declaration about her ongoing appropriateness for appointment as administrator and LMC and her partner can have the opportunity to express their views about an ongoing appointment.   

2. The administrator must lodge any further accounts as required by the Tribunal prior to the review of this appointment.