MCP
[2010] QCAT 17
•12 January 2010
CITATION: MCP [2010] QCAT 17
PARTIES: MCP
APPLICATION NUMBER: GAA10350-09
MATTER TYPE: Guardianship and administration matters
HEARING DATE: 12 January 2010
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 12 January 2010
DELIVERED AT: Brisbane
ORDERS MADE: Appointment of Adult Guardian revoked and appointment of MP as guardian for health care matters continued
CATCHWORDS: Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 - whether need for decision maker
APPEARANCES and REPRESENTATION (if any):
The hearing was conducted on the papers in the absence of parties.
REASONS FOR DECISION
On 19 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for MCP (the adult) for accommodation and service provision matters and appointed MP as guardian for the adult for health care matters. 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 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).
MCP is 61 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 MCP has capacity for decision-making about his 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: an assessment by the Aged Care Assessment Team dated 8 January 2009 which referred to medical conditions of intellectual impairment, epilepsy and cerebro-vascular disease. The assessment notes constant short term memory problems, regular long term memory problems, disorientation as to time, place and other persons, and occasional confusion and at risk behaviour. The assessment noted that MCP needed prompting to undertake hygiene tasks. A report by Professor HR dated 12 April 2007 stated that MCP had manifested cognitive degeneration over the past few years, he exhibited short term memory loss, lack of insight into his deficits, and behavioural problems. Professor HR noted possible vascular dementia and noted that a CT scan revealed generalised cerebral and cerebellar atrophy. MP stated that there has been no detectable change in the adult’s cognitive functioning since the 2009 appointments were made.
The Tribunal made findings of fact about capacity as follows: In 2007 and 2009 medical assessments had found cognitive impairment with possible connection to cerebro-vascular disease or dementia. MCP has poor short term memory and regularly exhibits long term memory problems, disorientation as to time, place and other persons and is unable to complete some common activities of daily living without prompting. His memory deficits impair his ability to retain and use information on which decisions about his personal affairs are made.
The Tribunal finds that the evidence established that MCP cannot understand the nature and effect of decisions about personal matters.
CONCLUSION
The Tribunal determines that MCP does not have capacity to make decisions about his personal matters.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN
The evidence in the file is that: since the appointment of guardians in 2009, a decision has been made for MCP to reside permanently at a nursing home in a regional town. MCP receives ongoing support with activities of daily living from staff at the nursing home. There is no discernible need for any further decision to be made for MCP about his accommodation or service provision.
His guardian, MP has made decisions around medical checkups, but no major health care decisions have had to be made in the last 12 months. MCP does have some serious and chronic ill health conditions that require medical monitoring and care. Due to past conflict in his family, the appointment of a guardian for health care matters provides certainty as to the decision making arrangements for MCP and ensures proactive support for his chronic ill health conditions. MP is willing and available to make other personal decisions for the adult on an informal basis.
Based on the information set out above, the Tribunal determines that there is no longer a need for decisions in relation to MCP’s accommodation and provision of services but there is a need for a decision in relation to MCP’s health care matters and without an appointment the health care needs of MCP will not be adequately met or his interests will not be adequately protected.
SHOULD THE APPOINTMENT OF THE CURRENT GUARDIANS BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current guardians: The need for further decisions by the Adult Guardian about accommodation or service delivery is not discernible. MP has been proactive in monitoring the health care needs of the adult. He maintains regular contact with MCP and staff at the nursing home so he is kept informed about the adult’s health care needs and he can respond to those health care needs in the best interests of the adult.
No other person has sought appointment as MCP’s guardian.
The Tribunal made the following findings about the appropriateness of the current appointees:
CONCLUSION
The Tribunal is satisfied that MP
· 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 and health care principle (if relevant)
· is an appropriate person to appoint as guardian after taking into consideration the provisions in section 15 of the Act.
APPOINTMENT
The appointment of MP is continued as guardian for MCP for three years to make decisions about health care matters. The appointment of the Adult Guardian as guardian for MCP for accommodation and service provision matters is revoked as there is no need for a decision maker for accommodation and service provision.
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