MV
[2011] QCAT 408
•23 August 2011
| CITATION: | MV [2011] QCAT 408 |
| PARTIES: | MV |
| APPLICATION NUMBER: | GAA2348-11 / GAA2349-11 / GAA5154-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 23 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for appointment of a guardian is dismissed. 2. The application for the appointment of an administrator is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – applications for appointment of guardian and administrator – where adult purchased real property when under an involuntary treatment order – whether least restrictive – application to bring an 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 under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
MV is a 43 year old man who in common with many other Australians invested his modest cash funds in the share market on the advice of a broker in 2004 and again in 2006. He had been paid good earnings on his shares but the capital value has decreased by about one third since 2006 due in part to the general equities market decline.
In 2011 he was looking to purchase some real property both as a future source of accommodation and as a more secure asset than the share market. MV saw an advertisement for a block of land for $115,000 consisting of three acres near Gympie. He made enquiries with the developer and he sent his parents to inspect the property who supported his opinion that it was a good buy.
After about two weeks, the developer visited MV and discussed the purchase with him. MV signed a contract to purchase the land and his parents were present during these discussions. MV contacted his broker to arrange the sale of his shares, gave instructions for the deposit of the share sale proceeds into his bank account, gave his mother written authority to deal with his bank about arranging cheques to purchase the land and instructed lawyers to act for him in the conveyance.
The purchase of the land settled in March 2011 without any problems. At the end of the various transactions, MV had converted $70,000 in shares and $50,000 in cash savings into land worth $115,000 and $10,000 in savings. He plans to build a house on the land in the future.
MV was at the time of these various transactions under treatment for schizophrenia and under an involuntary treatment order under the Mental Health Act 2000 and an inpatient in hospital. A member of his mental health treatment team applied for the appointment of a guardian and administrator triggered by a concern that MV did not have capacity to enter into the purchase of property in excess of $100,000.
MV objected to the proposed appointment of substitute decision makers. He arranged for Queensland Advocacy Incorporated to represent him in this proceeding. QAI sought to bring an early end to the proceeding on the grounds that the applications were misconceived and lacked substance.
The applicant from the mental health treating team did not respond to the strike out application brought by QAI.
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 misconceived or is lacking in substance. The use of that power in an appropriate case can achieve the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
Whether applications lack substance?
When considering applications for the appointment of substituted decision makers under the Guardianship and Administration Act 2000, the tribunal commences its task on the basis that an adult is presumed to have capacity to make decisions. Evidence can rebut that presumption but until such time as the presumption has been rebutted, the tribunal must proceed on the basis that an appointment of a substituted decision maker for an adult should not be made.
[10] The tribunal had been provided with a health professional report from Dr S but the report had not been properly signed, was not dated and had obviously been completed by at least two authors as two handwriting styles were used throughout the form. The report in the name of Dr S stated a diagnosis of chronic schizophrenia, an opinion MV was able to make his own personal decisions but that due to his psychiatric illness, his ability for decision making about financial affairs was risky. An opinion was stated that MV would have been influenced about a financial deal by his parents.
[11] The tribunal was provided with an affidavit by MV setting out the details of his background before he was diagnosed with schizophrenia, the details of the various transactions that had taken place in February and March 2011 and details of his current financial position.
[12] Evidence from medical witnesses can inform the tribunal’s deliberations about capacity but is not necessarily determinative of the issue of capacity. The tribunal is responsible for determining capacity of an adult. The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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.
[13] It can be seen from that definition that capacity is not dependant on a medical diagnosis but is based on a functional process involved in decision making. An adult must have the ability to gather information about their affairs, to sort out what is relevant and what is not, to retain access to relevant information long enough to analyse the information to address a decision making need, to formulate options for action, to appreciate the consequences arising from each of the options, to choose what action to take to best meet the decision making need, to persevere long enough to implement that action and to recall that action has been taken to meet the decision making need.
[14] The evidence from MV satisfied the tribunal that he could understand the nature and effect of decisions about his financial affairs. He could express clear details about his past and current financial position, he had analysed his options for asset holding, he evaluated the consequences of the options available to him and he could implement the choice he had made to conclude the transactions.
[15] The evidence from Dr S on the other hand was not particularly helpful to the tribunal’s assessment of capacity. The medical opinion was stated no higher than MV’s ability was risky due to his psychiatric illness. It did not provide any information that would tend to rebut the presumption that MV’s functional decision making process for the recent property transaction was intact despite the diagnosis of schizophrenia.
[16] The applicant, who is part of MV’s mental health treating team, was directed to respond to the strike out application but did not do so. The total scope of the evidence available to the tribunal has been discussed. The applicant did not attempt to support her position with further evidence nor did she provide submissions against the strike out application. The tribunal was left in the position where it considered that the evidence would be unlikely to rebut the presumption of capacity.
[17] It was clear that MV objected to the proposed appointment of substituted decision makers for him. The applications may have been well meaning but the tribunal is bound by law to act in such a manner that the right of an adult to make decisions is interfered with to the least possible extent.[1] It is a fundamental right for an adult to make decisions and indeed to make decisions that others may not agree with. It is only when an adult has impaired capacity that the tribunal can put into place mechanisms to provide adequate support for decision making for that adult.
[1] See sections 5 and 7 of the Guardianship and Administration Act 2000.
[18] The tribunal reached the conclusion after considering the evidence that the applications lacked substance and that it was unnecessary to proceed to a hearing as to do so would be likely to cause undue distress to MV and his family. Applying the objects set out in section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009, the tribunal considered that it was appropriate to bring an early end to the proceedings and dismissed the applications under section 47 of that Act.
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