PDC
[2011] QCAT 136
•19 April 2011
| CITATION: | PDC [2011] QCAT 136 |
| PARTIES: | PDC |
| APPLICATION NUMBER: | GAA1687-11 GAA1688-11 GAA1689-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 19 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Applications for the appointment of a guardian and administrator are dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – presumption of capacity not rebutted by the evidence – early end to proceedings –applications lack substance Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 18 February 2011 AB lodged an application for the appointment of a guardian and an administrator for PDC. On 23 February 2011 a health professional report by Dr Stephen Walsh from a Queensland Hospital was lodged with the tribunal.
Dr Walsh reported that PDC had been diagnosed with Parkinson’s Disease. Dr Walsh reported an opinion that PDC could make her own personal and financial decisions.
On 7 March 2011 a letter was sent to PDC’s general medical practitioner from the tribunal registry asking for a report about PDC’s decision-making capacity. On 15 March 2011 a health professional report was received by the tribunal from that doctor who confirmed the diagnosis of Parkinson’s Disease.
He reported that PDC had not shown any impaired capacity or cognitive disability in her consultations with him. The doctor reported an opinion that PDC could make all her own personal decisions but he was unable to comment on her capacity to make financial decisions.
On 28 March 2011 the tribunal received a health professional report from a social worker at a Community Health Centre. The social worker stated that PDC’s family situation was quite complicated as she and her husband are the primary carers of two adult children with disabilities. The social worker stated an opinion that there was a lack of real options for the ongoing care of PDC’s children given her decreasing ability to provide primary care for them due to her own health issues. This factor was the obstacle to progress rather than an inability in PDC to make decisions.
The social worker reported that PDC presents with some apparent cognitive deficits but despite that, she is usually able to understand even the most complex conversations provided she feels respected and supported. The social worker stated an opinion that PDC could make her own personal decisions and simple financial decisions.
An occupational therapist at a health service conducted a cognitive screening assessment on 17 March 2011. In his report dated 28 March 2011, the occupational therapist concluded that PDC demonstrated some mild to moderate impairments with some aspects of her cognition. In particular the assessment revealed mild impairment in attention and memory and moderate impairment in comprehension, repetition and construction. The occupational therapist reported that functionally PDC was able to follow most instructions given during the assessment.
The occupational therapist reported that other staff indicated that PDC could follow instructions and could discuss complex issues appropriately. The occupational therapist noted that PDC performed well on the assessment items relating to abstract reasoning and judgement which are important aspects of decision-making capacity.
On 31 March 2011 a letter was sent to AB from the tribunal registry informing him that the medical reports did not rebut the presumption of capacity. AB was informed that his applications would be considered for dismissal within 14 days unless further information about capacity supporting the applications was provided to the tribunal. No further information about capacity has been received from AB.
[10] 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.[1]
[1] Section 12 of the Guardianship and Administration Act 2000.
[11] The evidence that has been received by the tribunal is relatively consistent and supports the existence of decision-making capacity for PDC. AB has been informed that the evidence before the tribunal has failed to rebut the presumption of capacity and he has been given an adequate opportunity to provide further evidence about capacity.
[12] 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 lodged by AB are lacking in substance and must be dismissed.
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