PGV - [2023] QCAT 130

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

PGV [2023] QCAT 130

PARTIES:

In applications about matters concerning PGV

APPLICATION NOS:

GAA13877-22; GAA13878-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

22 March 2023

HEARING DATE:

14 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

REPRESENTATION

1.     PGV has leave to be represented in the proceedings.

DECLARATION ABOUT CAPACITY

2.     The application for a declaration about the capacity of PGV is dismissed.

GUARDIANSHIP

3.     The guardianship order made by the Tribunal on 8 September 2021 is changed by appointing WFA and DTA jointly and severally as guardians for PGV for the following personal matters:

(a)     accommodation; and

(b)     provision of services including in relation to the National Disability Insurance Scheme.

4.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – REVIEW, REVOCATION ETC. – where guardians are appointed for an adult – where adult seeks declaration of capacity for personal and financial decision-making – whether presumption of capacity rebutted – whether guardianship appointment should be revoked or changed

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11B, s 12, s 31, s 34, s 35

Human Rights Act 2019 (Qld), s 13, s 17(b), s 19

Powers of Attorney Act 1998 (Qld), s 41, s 47(1)

Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170

Hewitt v Bayntun & Allianz Australia Insurance Ltd [2015] QSC 250

APPEARANCES & REPRESENTATION:

Adult:

Aejis Legal

Guardians and current financial attorney:

Self-represented

REASONS FOR DECISION

Introduction

These proceedings relate to a man aged in his mid-sixties. For privacy reasons, he will be referred to only as PGV; his wife will be referred to as WFA; and their daughter as DTA.
On 8 September 2021, the tribunal (differently constituted) appointed WFA and DTA, jointly and severally, as PGV’s guardians for all personal matters.
On 12 December 2022, PGV applied to the tribunal for a declaration about his capacity, and for a review of the appointment of the guardians. Those applications were heard on 14 March 2023. PGV’s solicitor, Mr Scott Argles of Aejis Legal, explained that PGV seeks a declaration that he has capacity for all personal and financial matters, and the revocation of the guardianship appointment.
It is also relevant to note that PGV made enduring powers of attorney on 4 February 2016: one in the Queensland form, and the other in the New South Wales form. In each enduring document, he appointed WFA as his primary attorney for financial matters, with DTA and then a corporation as successive attorneys. Each appointment of WFA as financial attorney was expressed to have immediate effect. PGV did not appoint attorneys for personal, as distinct from financial, decision-making.
At the hearing on 14 March 2023, the tribunal heard oral evidence from PGV, WFA, DTA, Dr Rachell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PGV

Details

AGLC: PGV [2023] QCAT 130
Case: [2023] QCAT 130
Decision Date

CaseChat Overview and Summary

In PGV, the Queensland Civil and Administrative Tribunal dismissed an application by PGV for a declaration about his capacity, and for a review of the appointment of guardians for his personal matters. The tribunal considered that PGV had impaired capacity in relation to personal decision-making matters of accommodation and services including NDIS. However, it found that there was no utility in making a declaration of capacity in relation to PGV’s personal decision-making. The tribunal decided to continue the appointment of PGV’s wife and daughter as guardians, while narrowing their responsibilities to encompass only the areas of accommodation and services including NDIS. It considered that the likelihood of PGV rapidly declining into an abject state in the absence of adequate accommodation, supervision and care is high. Overall, PGV’s dignity and wellbeing, including his opportunities for work and other social participation, will be more enhanced while living in appropriate accommodation with a high level of carer support than if PGV were to make his own decisions about accommodation and services. The tribunal also granted leave for PGV to be represented in the proceedings.

Orders