NM

[2010] QCAT 16

CITATION:      NM [2010] QCAT 16

PARTIES:   NM

APPLICATION NUMBER:            GAA7783-09

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   4 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   4 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of administrator continued

CATCHWORDS: Sections 28 and 31 of Guardianship and Administration Act 2000 – current administrator competent – appointment continued

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of parties

REASONS FOR DECISION

1. On 5 January 2005 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland (The Public Trustee) as administrator for NM. 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 appointment is being reviewed today on the basis of information on the Tribunal file. On 19 November 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. NM is 43 years old and is under treatment for a mental illness.  He is subject to an involuntary treatment order under the Mental Health Act.  

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 NM has capacity for decision-making about his financial 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: a report by Dr MK, psychiatric registrar, dated 7 December 2009.  Dr MK referred to a diagnosis of schizophrenia which is treatment resistant.  Dr MK stated that NM has poor budgeting and future planning skills. He has a history of non compliance with his medication and substance abuse results in a deterioration of his mental state.  He lacks insight into his mental illness, is vulnerable to influence by others and is under an involuntary treatment order.  Dr MK expressed the opinion that NM cannot make complex financial decisions due to his mental illness.  A report in similar terms was provided by PM, social worker.  PM stated that NM spends the allowance paid by The Public Trustee on purchasing marijuana and on other people. 

1. The Tribunal made findings of fact about capacity as follows: NM has been diagnosed with, and is being treated for, a mental illness identified as schizophrenia.  He lacks insight into his mental illness, he is non compliance with his medication and he is under an involuntary treatment order.  He has a history of polysubstance abuse and continued use of marijuana results in deterioration of his mental state.  He is easily influenced by others.  He has poor budgeting and planning skills and spends money inappropriately. 

1. The Tribunal finds that the evidence established that NM cannot understand the nature and effect of decisions about complex financial matters due to his mental illness.

CONCLUSION

1. The Tribunal determines that NM does not have capacity to make decisions about his financial affairs.    

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

1. The evidence in the file is that: NM has an annual income of about $19,000 and his regular expenditure is almost $18,000.  He has expenses to pay for his accommodation and board, chemist accounts, clothing needs, gifts and spending on special occasions such as birthdays and Christmas.  Fines have been paid off under the current administration and modest savings accumulated and invested for NM.  His income and assets need to be secured for NM’s current and future needs.  His accommodation is stable due to management of his lifestyle costs under a budget that takes into account his needs and interests.

1. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about the ongoing management of NM’s financial affairs in circumstances where NM is likely to do something in relation to his financial affairs that involves, or is likely to involve, unreasonable risk to his property and without an appointment the needs of NM 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 has prepared a budget of income and expenditure that has resulted in a surplus of income of about $998 over regular expenditure.  Fines have been paid off and modest savings accumulated and invested. 

2. No other person has sought appointment as administrator for NM. 

3. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has acted competently as administrator and has the skills and experience to manage NM’s financial affairs. 

4. 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 NM to make decisions about all financial matters.  The appointment will continue indefinitely until further order of the Tribunal as on the evidence the Tribunal is satisfied that there is no present likelihood that NM will regain decision making capacity about his financial affairs in the foreseeable future.    

[20].The administrator is required to provide accounts to the Tribunal when requested.