PSB

[2013] QCAT 17

CITATION: PSB [2013] QCAT 17

PARTIES: PSB

APPLICATION NUMBER: GAA5390-12

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	3 December 2012

HEARD AT: Hervey Bay

DECISION OF: Aaron Suthers, Member

DELIVERED ON: 17 January 2013

DELIVERED AT: Hervey Bay

ORDERS MADE:

1.    The guardianship order made by the Tribunal on 11 October, 2011 is changed by removing BFJ and CLB as guardians and appointing the Adult Guardian as guardian for PSB for decisions about the following personal matters:

a.    Accommodation; and

b.   Health care.

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

3. The following enduring power of attorney for PSB is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made:

a.     The enduring power of attorney dated 12 October, 1998 appointing MNR, BFJ and CLK as attorneys for financial, personal and health matters.

CATCHWORDS:

Review – capacity of adult – need for guardian – appropriateness of appointees – conflict within family

Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

MNR	Applicant and daughter
BFJ	Daughter and appointed guardian

CLK   Daughter and appointed guardian
CK   Son in law

REASONS FOR DECISION

History of the Application

1. PSB is a 95 year old woman who resides in a residential aged care facility.

1. On 11 October 2011 the Tribunal appointed two of her daughters, CLK and BFJ as guardians for PSB, to make decisions about health care matters.  The appointment was until further order of the Tribunal.  The appointment was reviewable and was to be reviewed in five (5) years.

1. PSB’s three daughters were present at the hearing in 2011.

1. MNR disagreed with the outcome of the 2011 hearing and sought a stay of the decision, but did not appeal.

2. MNR now seeks to review the appointment of her sisters as her mother’s guardians, and proposes that she be appointed in their stead.

3. The Tribunal will only continue orders for guardianship if satisfied that PSB still lacks capacity for a relevant personal matter, and if it would make an appointment, in the circumstances, if determining a new application afresh.

4. The Tribunal may only remove or replace a current appointee where an appointment is still required, if satisfied that the current appointee is no longer competent or another appointee is more appropriate for appointment.

Does PSB have capacity for all personal matters?

1. Every person who is the subject of an application in this jurisdiction is presumed to have capacity each time the appointment of a guardian is sought or reviewed.

2. Despite seeking appointment as her mother’s guardian, which presupposes that PSB has impaired capacity, MNR is of the view that her mother has capacity for all personal matters.

3. She says that PSB could understand the nature and effect of decisions in these areas of her life if she…