NTV
[2010] QCAT 572
•11 November 2010
| CITATION: | NTV [2010] QCAT 572 |
| PARTIES: | NTV |
| APPLICATION NUMBER: | GAA6618-10 GAA6619-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 11 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Applications for appointment of guardian and administrator dismissed |
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – presumption of capacity not rebutted - section 47 of the Queensland Civil and Administrative Tribunal Act 2009 – early end to proceedings – applications lack substance |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 18 August 2010 an application was lodged with the Tribunal seeking the appointment of a guardian and administrator for NTV by her son, NJ. The application did not contain information about NTV’s capacity to make decisions.
On 26 August 2010 a staff member from the Tribunal registry wrote a letter to NJ informing him that a report from a health professional about NTV’s decision making capacity would be required and if a report was not received within three weeks of the date of the letter, the application may not proceed further.
The Tribunal was subsequently provided with the name and contact address of the treating doctor of NTV and on 30 August 2010 the doctor was sent a letter by the Tribunal registry asking for a report about NTV’s decision making capacity.
On 9 September 2010 the Tribunal received a report from Dr Ron McDonald stating that he has known NTV for 20 years and he has not noted any memory impairment, that she has a full understanding of her personal and financial circumstances and that she can make all her own decisions.
On 9 September 2010 a staff member from the Tribunal registry wrote to NJ informing him that evidence had been received from a medical professional stating an opinion that NTV can make all her own decisions. NJ was informed that he should provide additional information about NTV’s decision making capacity within three weeks, failing which his applications would be considered for dismissal.
No further information about NTV’s decision making capacity has been received from NJ.
General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. Before the Tribunal can 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.
The evidence provided in the report by Dr McDonald does not rebut the presumption of capacity but rather supports a finding that NTV has capacity to make all her own decisions. NJ has failed to provide evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so. His applications for the appointment of a guardian and administrator for NTV lack substance.
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 must be dismissed as they lack substance.
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