LRD
[2009] QCAT 18
•4 December 2009
| CITATION: | LRD [2009] QCAT 18 |
| PARTIES: | LRD |
APPLICATION NUMBER: GAA7483-09
| MATTER TYPE: | Guardianship and administration matters |
HEARING DATE: 4 December 2009
HEARD AT: Brisbane
| DECISION OF: | C Endicott, senior member |
DELIVERED ON: 4 December 2009
DELIVERED AT: Brisbane
ORDERS MADE: The appointment of the administrator is continued
| CATCHWORDS : | Review of appointment of administrator, s.31 of the Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any): heard on the papers
REASONS FOR DECISION
On 5 December 2007 the Tribunal appointed The Public Trustee of Queensland as administrator for LRD (the adult).
The appointment is being reviewed today on the basis of information on the Tribunal file. On 26 November 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).
LRD is 81 years old and lives in a retirement resort at the North Coast.
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 the adult has capacity for decision-making about her matters.
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: a report by Dr GD dated 18 May 2006 in which he made a diagnosis of dementia. He stated that this condition impairs the adult’s cognitive ability. He stated that the dementia was progressive and severe. Dr GD was of the opinion that the adult had no ability to make decisions freely or voluntarily and could not make any simple or complex decisions. He stated that a Mimi Mental State Examination conducted on 5 May 2005 resulted in a score of 16 out of 30 and a repeat test conducted on 6 April 2006 scored 11 out of 30.
The Tribunal made findings of fact about capacity as follows: the adult has been diagnosed with dementia since at least 2006. Her cognitive impairment in 2006 was described as severe and progressive. Assessments conducted in 2005 and 2006 confirmed that the adult had significant cognitive impairment.
The Tribunal finds that the evidence established that the adult cannot understand the nature and effect of decisions about the matter and the adult is not capable of making decisions freely and voluntarily.
CONCLUSION
The Tribunal determines that the adult does not have capacity to make decisions about the matter.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?
The evidence in the file is that: the adult has an annual income of $30,703 and annual expenditure of $17,702. The adult has a 99/100 share of a house at the North Coast which is currently being sold. That house is subject to a mortgage of $386,000. The adult has a one third interest in a house in North Queensland and her interest is valued at $93,333. The adult has a debt for nursing home fees of $103,109 which will be partly discharged on completion of the sale of her North Coast house. The adult has another outstanding debt of $13,053. The adult’s administrator is seeking legal advice as to the prospects of recovering money from the adult’s former attorney.
Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to the matter and without an appointment the adult’s needs will not be adequately met or the adult’s 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: The Public Trustee of Queensland has compiled a budget of income and expenditure that meets the needs of the adult. Steps have been taken to sell the house at the North Coast so funds can be available to reduce the debt to the nursing home. Steps have been taken to increase the adult’s income by securing regular payment of a life interest from her father’s estate. Legal advice is being sought about the prospects of recovering money taken from the adult’s bank account by her former attorney.
The Tribunal considered the following evidence about whether another person is more appropriate for appointment: no other person has sought to be appointed as the adult’s administrator.
The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee of Queensland has acted competently in taking steps to increase the adult’s income, to reduce her debts and to seek advice about the recovery of funds taken from her account.
CONCLUSION
[17].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 Queensland is continued as administrator for LRD until further order to make decisions about all financial matters.
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