Preston - [2016] QCAT 52

CITATION:

Preston [2016] QCAT 52

PARTIES:	John Preston[1]
APPLICATION NUMBER:	GAA1004-16 GAA2696-16

[1]Not the adult’s real name but a pseudonym for de-identification purposes

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

17 February 2016 and 30 March 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

4 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Trustee of Queensland is appointed as administrator for John Preston for all financial matters.

2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

3. The Tribunal directs that the administrator to provide accounts to the Tribunal when requested.

4. This appointment commences when medical certification is provided to The Public Trustee of Queensland that PM is not able to provide support for financial decision-making for John Preston and will then remain in place until further order of the Tribunal.

CATCHWORDS:

GUARDIANSHIP – where an adult has impaired decision-making capacity for financial matters – where decision-making is supported at present by his existing support network – where that support network is likely to be unable to continue to give support in the near future – where a substitute decision-maker is required

REMUNERATION OF ADMINISTRATOR – where persons proposed for appointment as administrators seek to be remunerated in that role – where none of the persons proposed as administrators have been previously appointed for another adult as an administrator – whether the persons proposed carry on a business of and including administrations under the Guardianship and Administration Act 2000

Guardianship and Administration Act 2000 –ss14(1) and 48

JMK v RDC and PTO v WDP [2013] NSWSC 1362

APPEARANCES:

APPLICANT:

OTHER ACTIVE PARTIES:

John Preston
Trevor Neil Spicer
Stephen Thomas Todd
Christopher Paul Kahler
The Public Trustee of Queensland by Clinton Miles
Janet Harney

REASONS FOR DECISION

John Preston lives with his mother, PM in a regional town in north Queensland. PM has been assisting her son with many aspects of his daily life, including money management for some years. PM is unwell and she wants to put into place some other arrangements for the support of her son as she is concerned that she cannot continue to provide adequate support to him into the future.
PM applied to QCAT for the appointment of an administrator for her son. She proposed the appointment of three solicitors as his administrators, Mr Spicer, Mr Todd and Mr Kahler. They were willing to be appointed as administrators for Mr Preston.
Prior to the hearing of the application, a case officer in the tribunal registry wrote to all three proposed appointees and informed them they would be required at the hearing to address the Tribunal on issues arising from sections 37 and 48 of the Guardianship and Administration Act 2000.
QCAT can appoint an administrator, who is a decision-maker for an adult about financial matters, if satisfied that the person in question has impaired decision-making capacity for making decisions about those matters. Capacity for decision-making is defined…

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.

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Details

Case: [2016] QCAT 52
Decision Date: 4 April 2016

CaseChat Overview and Summary

The case of Preston involved a dispute regarding the appointment of a substitute decision-maker for an adult with impaired decision-making capacity in financial matters. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was whether the Public Trustee of Queensland should be appointed as the administrator for John Preston, considering the anticipated inability of his existing support network to continue providing the necessary support. Additionally, the tribunal had to determine the appropriate remuneration for the administrators, given that the proposed individuals sought to be compensated for their role.

The legal issues that QCAT had to address included whether the persons proposed for appointment as administrators could be considered to carry on a business of including administrations under the Guardianship and Administration Act 2000, and if so, whether this would affect their eligibility for remuneration. The tribunal also considered the relevant provisions of the Guardianship and Administration Act 2000, particularly sections 14(1) and 48. The decision required a balance between the need for a substitute decision-maker and the appropriate remuneration for the administrators.

QCAT concluded that the Public Trustee of Queensland should be appointed as the administrator for John Preston, as his existing support network was unlikely to continue providing the necessary support in the near future. The tribunal found that the proposed administrators did not carry on a business of including administrations, and therefore, their eligibility for remuneration was not affected. The tribunal appointed the Public Trustee of Queensland as the administrator for all financial matters, dispensed with the requirement for a financial management plan, and directed that accounts be provided to the tribunal when requested. The appointment would commence when medical certification confirmed that the existing support network could no longer provide support and would remain in place until further order of the tribunal.

Orders

Orders of the court

1. The Public Trustee of Queensland is appointed as administrator for John Preston for all financial matters.

2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

3. The Tribunal directs that the administrator to provide accounts to the Tribunal when requested.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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