MJL
[2011] QCAT 217
•17 May 2011
| CITATION: | MJL [2011] QCAT 217 |
| PARTIES: | MJL |
| APPLICATION NUMBER: | GAA1882-11 GAA1883-11 GAA1884-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 17 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for a declaration about capacity is dismissed. 2. Applications for the appointment of a guardian and an administrator are dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – where evidence did not rebut the presumption of capacity – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
MAJ applied to the tribunal for a declaration about the capacity of MJL and for the appointment of a guardian and administrator for MJL. The applications for appointment of decision makers are opposed by MJL.
The tribunal received a report from Dr Leong, consultant in General and Old Age Psychiatry and who specialises in dementia and Alzheimer’s Disease. Dr Leong examined MJL on 23 February 2011.
Dr Leong reported that MJL presented as a somewhat untidily groomed male who was anxious and guarded, circumstantial and a vague historian. Dr Leong reported that MJL was possibly mildly paranoid with limited insight but was cognitively reasonably intact with a Mini Mental State Examination score of 29 out of 30, a Mental State Questionnaire score of 10 out of 10.
Dr Leong expressed the opinion that there did not appear to be anything wrong with MJL except he is rather eccentric and cantankerous and at loggerheads with his children about his lifestyle. Dr Leong expressed the opinion that MJL may be vulnerable to exploitation and may be suffering from senile squalor syndrome often associated with frontal lobe dementia.
Dr Leong was unable to conclude that MJL lacks mental capacity to make lifestyle and financial decisions for himself without clear clinical evidence that he is cognitively or mentally impaired. He stated that he would err on the side of protecting and respecting MJL’s privacy and freedom to make lifestyle decisions unless there is compelling evidence to the contrary.
In a separate health practitioner’s report provided to the tribunal, Dr Leong did not list dementia or any cognitive impairment as part of MJL’s current medical conditions. Dr Leong stated that he could not detect any factors that would affect MJL’s ability to make decisions except that he appears to be in conflict with his children.
Dr Leong noted in his report the allegations made by MAJ: that MJL neglects his personal care, he does not eat properly, that food in his house is out of date, that MJL has lost a lot of weight, that he lives in squalid conditions, his house is cluttered with rubbish and infested with cockroaches and mice, his balcony is broken, he is vulnerable to financial exploitation by a female friend and he is being pressured to sell his house.
Taking those allegations into consideration, Dr Leong was not able to form an opinion about MJL’s ability to make decisions freely and voluntarily. He noted that MJL may possibly be influenced by a female friend and also by his children. Dr Leong expressed the opinion that MJL could make simple decisions but was uncertain about his ability to make complex decisions. Dr Leong stated that he did not believe it ethical to subject MJL to the onerous and intrusive process of Competency Assessment unless substantial evidence can be provided that MJL is at risk.
In his final comments, Dr Leong stated that MJL had possible senile squalor syndrome and noted deteriorating self care in the last four years, increasing forgetfulness and paranoia about people breaking into his house and stealing things.
[10] On 15 March 2011 a staff member from the tribunal registry wrote to MAJ informing her that the medical evidence did not support her applications. She was asked to provide further evidence as to MJL’s lack of capacity such as not being able to make decisions freely and voluntarily. MAJ was advised that if further evidence was not received by the tribunal within 21 days, her applications would be considered for dismissal. No further evidence has been received from MAJ.
[11] MJL filed a document with the tribunal in which he responded to the applications lodged by MAJ. He stated that he finds living alone a little depressing, that he is a social person and that loves companionship at home and the company of friends. He stated that he finds it depressing that his children insist that he continues to live alone and not have a relationship with another woman after his wife died in 2005. He stated that his children were wrong in believing that another woman would coerce him into squandering his money or property and so spend their inheritance.
[12] He denied living in squalor and stated that his personal appearance was all right. He agreed that he had lost weight but that was a deliberate goal. He denied making any decisions that were inappropriate. He objected to the efforts of his children to control his life and to limit his activities. He denied that his female friend was manipulating him or taking advantage of him.
[13] General Principle 1 in Schedule 1 of the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. Before the tribunal can consider whether to appoint a decision maker for an adult, the tribunal must be satisfied that the presumption of capacity has been rebutted by evidence satisfactory to the tribunal.
[14] The Guardianship and Administration Act 2000 defines capacity as an adult being 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]
[1] Schedule 4 of the Guardianship and Administration Act 2000.
[15] In the absence of one or more of those stated abilities, the tribunal can conclude that an adult has impaired decision making for a matter. Dr Leong’s reports did not establish that MJL was unable to understand the nature and effect of decisions or that he was unable to communicate decisions. The reports were uncertain about whether MJL could make decisions freely and voluntarily as the allegations made by MAJ were inconclusive.
[16] The tribunal has had the opportunity of considering the information provided by MJL in response to MAJ’s allegations. MAJ was given an opportunity to provide substance to her allegations but she has not done do. The allegations that MJL is being prevented from making his own decisions remain mere allegations and have not been particularised.
[17] The evidence before the tribunal establishes that MJL is cognitively intact. Satisfactory evidence that he cannot freely make his own decisions has not been provided. MAJ has failed to provide any details of how MJL is allegedly being prevented from freely making his own decisions and in the absence of satisfactory evidence, there is no basis on which the presumption of capacity can be rebutted.
[18] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The Tribunal considers that the applications for appointment of decision makers lodged by MAJ are lacking in substance and should be dismissed at this stage. It is not necessary to make a declaration about MJL’s capacity as the presumption of capacity has not been rebutted. That application should also be dismissed.
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