MLK
[2013] QCAT 536
| CITATION: | MLK [2013] QCAT 536 |
| PARTIES: | MLK |
| APPLICATION NUMBER: | GAA3817-13, GAA3818-13 |
| 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 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for the appointment of a guardian by KMR is dismissed. 2. The application for the appointment of an administrator by KMR is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where current contact address of adult not known – where inadequate information provided about appropriateness considerations – where inadequate information about current need for decision making Guardianship and Administration Act 2000 ss 12, 14, 15 and 118 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
KMR applied to QCAT to be appointed as the guardian and administrator for MLK. KMR describes himself as MLK’s partner and carer. However MLK left KMR is December 2012 and he had not seen her again by the time he lodged the application for the appointment of a guardian and administrator in April 2013. Mail sent in May 2013 by the tribunal registry to the last known address of MLK was returned unclaimed.
The tribunal registry wrote to KMR on 19 June 2013 informing him that his applications could not proceed unless a current address for MLK or for her family was given to the tribunal. KMR was also asked to provide information as to why he would be appropriate for appointment as a guardian and administrator when he had not had any contact with MLK for a number of months. KMR was informed that the tribunal would make a determination whether to dismiss the applications or whether to proceed to a hearing based on the information provided to the tribunal by 12 July 2013.
KMR told the tribunal registry staff on or about 26 June 2013 that he did not know the current contact address for MLK and that the police did not know her address as well.
Under the Guardianship and Administration Act 2000 (Guardianship Act) the tribunal has the power to appoint decision makers for adults with impaired capacity. The appointments are generally made after the tribunal has conducted a hearing and is satisfied that the adult has impaired decision making capacity, that there are decisions that need to be made or that the adult is likely to do something that involves unreasonable risk of harm to the adult’s health, welfare or property and that without an appointment the needs of the adult will not be adequately met or the adult’s interests will not be adequately protected.[1]
[1] Guardianship Act s 12.
QCAT is required to give the adult notice of these types of applications and of its hearings but can proceed to hearing without giving notice if, among other reasons, the adult is unable to be located after the tribunal has made reasonable inquiries into the adult’s whereabouts.[2] The tribunal may only appoint a person as a guardian or administrator if the tribunal considers the person to be appropriate for appointment.[3] The tribunal must consider the matters set out in section 15 of the Guardianship Act when deciding an appointment.
[2] Guardianship Act s 118(2)(c)(ii).
[3] Guardianship Act s 14(1)(c).
It would be quite unusual for QCAT to proceed to a hearing of the applications for the appointment of a guardian and administrator for MLK when she had not been informed of the applications or of the hearing. In such a case, the tribunal would need to be satisfied by specific and cogent evidence that MLK had impaired capacity to make decisions actually arising in her current circumstances and that there was a need for a substituted decision maker because of a reasonable likelihood that she would do something involving an unreasonable risk of harm. I was not satisfied that there was cogent and acceptable evidence in this case of a need for an appointment for MLK.
MLK appears to have left KMR in December 2012. I was not satisfied that KMR should still be regarded as the partner of MLK some seven months after he last saw her and after having no contact with her in that time. KMR could not provide any contact address for MLK and despite being requested, he did not provide any contact details for her family so that the tribunal could make its own enquiries about her whereabouts.
There was inadequate information to satisfy me that KMR was currently an appropriate person for appointment as a decision maker for MLK in terms of section 15 of the Guardianship Act or indeed whether he even had standing to bring the applications at all. An applicant must be a person who had a sufficient and continuing interest in MLK.
There would be no utility appointing a decision maker for MLK when the tribunal could not be satisfied that decisions to be made by a substituted decision maker would provide in the circumstances adequate and appropriate decision making support to her. MLK has the right to make decisions that others may not agree with and she appeared to have made a decision to leave KMR and to reside elsewhere. There is no acceptable evidence that she is struggling at present with decision making. Her lifestyle may be different to the lifestyle approved of by KMR but that does not meant inevitably that MLK needs support from a guardian or administrator.
QCAT has the power to bring an early end to proceedings without a hearing under section 47 of the QCAT Act if the tribunal considers the proceeding is misconceived, lacking in substance or otherwise an abuse of process. The applications by KMR lack substance because he could not provide details of the current contact address of MLK so that the applications could be brought to her attention or sufficient information to satisfy the appropriateness considerations in section 15 of the Guardianship Act. It is appropriate to dismiss the applications under the provisions of section 47.
0
0
0