MGM

[2010] QCAT 23

CITATION:      MGM [2010] QCAT 23

PARTIES:   MGM

APPLICATION NUMBER:            GAA10246-09 & GAA10247-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   14 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   14 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointments 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

1. On 15 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for MGM (the adult). The Public Trustee of Queensland had been administrator for MGM since 1980. 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 appointments are being reviewed today on the basis of information on the Tribunal file. On 10 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. MGM is 46 years old and resides in supported accommodation.

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 MGM 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.

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: Dr B reported on 10 December 2008 that MGM had epilepsy and mental retardation since birth.  Dr B was of the opinion that MGM could not understand or act on information about lifestyle, accommodation or financial matters and that MGM could not make decisions freely and voluntarily.  Dr B considered that MGM could make simple health care decisions but no other decisions either of a simple or complex nature. 

1. The Tribunal made findings of fact about capacity as follows: MGM has an intellectual impairment.  He cannot understand or act on information about most personal and financial matters.  He could not appreciate the consequences of his decisions.  He has relied on others for most decision making all his adult life. 

1. The Tribunal finds that the evidence established that MGM cannot understand the nature and effect of decisions about the matter and is not capable of making decisions freely and voluntarily. 

CONCLUSION

1. The Tribunal determines that MGM does not have capacity to make decisions about his personal and financial matters.    

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: The report from the Adult Guardian discloses that MGM resides in 24 hour supported accommodation provided by a service provider.  He relies on the service provider for any community access.  He has a range of health care issues.  He can at times exhibit challenging behaviour that has resulted in some restriction on his access to objects and he is taking medication to manage his behaviours.  Decisions need to be made about continued service delivery and an assessment should be undertaken of the circumstances around any restrictive practice used in relation to MGM and if necessary a Positive Behaviour Support Plan may need to be developed and consent provided by a guardian to the use of such restrictive practices.  A guardian is needed to seek help around this issue and to make representations in the development of a plan.  

1. Based on the information set out above, the Tribunal determines that there is a need for decisions about MGM personal and financial affairs and without an appointment the needs of MGM will not be adequately met or his interests will not be adequately protected. 

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardian: the Adult Guardian has made decisions about MGM’s accommodation, services provided to him and health care.  The Adult Guardian has consulted with persons interested in MGM before making decisions for him.  The Adult Guardian has the skills and resources to input into advocating for and supporting the carrying out of an assessment relating to the use of any restrictive practices and into the development of a Positive Behaviour Support Plan if necessary.    

2. No other person has sought appointment and there was no evidence presented that another person was more appropriate for appointment as MGM’s guardian. 

3. The Tribunal made the following findings about the appropriateness of the current appointee: The Adult Guardian has acted competently as guardian and has the skills and experience necessary to continue in the role.  

CONCLUSION

1. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of MGM.  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

1. The appointment of the Adult Guardian is continued as guardian for MGM for two years to make decisions about the following personal matters: accommodation, health care, service provision and to seek help and make representations about the use of restrictive practices.  

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

1. The evidence in the file is that: MGM has a range of regular expenses arising from his accommodation and support needs for service provision.  He has income that needs to be maintained and managed and he has accumulated significant savings that need to be invested and managed for his future needs.  Decisions need to be made about the use of his income, about the management of his expenses and the investment of his savings.  

1. Based on the information set out above, the Tribunal determines that  there is a need for a decision in relation to MGM’s financial affairs and without an appointment the needs of MGM will not be adequately met or his 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 Public Trustee of Queensland has prepared and implemented budgets to manage MGM’s income and expenditure. Prudent investments have been implemented to secure and grow MGM’s funds.  The administrator has acted competently. The financial management plan prepared by the administrator is satisfactory and has been approved by the Tribunal.   

2. No other person has sought appointment as MGM’s administrator. 

3. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has acted competently and has the skills and resources to continue in the role. 

CONCLUSION

1. 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

1. The appointment of The Public Trustee of Queensland is continued as administrator for MGM until further order of the Tribunal to make decisions about all financial matters.       

2. The administrator must lodge accounts with the Tribunal when directed.