Re: FM - [2013] QCAT 135

CITATION:

Re: FM [2013] QCAT 135

PARTIES:

APPLICATION NUMBER:

GAA1232-12 / GAA10141-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

15 March 2013

HEARD AT:

Maroochydore

DECISION OF:

Professor Adrian Ashman, Member
Jim Allen, Member

DELIVERED ON:

25 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a declaration of capacity about the capacity of FM is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

2. The Public Trustee of Queensland is appointed as administrator for FM for matters relating to the financial management of the heritance under the will of the late YS.

3. The administrator is to provide a financial management plan to the Tribunal with four (4) months.

4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

5. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

CATCHWORDS :

Dismissal of a declaration of capacity - Appointment of an administrator

Guardianship and Administration Act 2000 (Qld), s 12
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

APPEARANCES and REPRESENTATION (if any):
FM
Barrister representing FM
Solicitor representing FM
Former advocate
Psychologist
2 representatives of the Public Trustee of Queensland

REASONS FOR DECISION

FM is 45 years old. The early years of his life were difficult with less than appropriate parental care, and an education gained largely from special education services. When FM’s parent moved from the district, his aunt, YS, took him into her home and cared for him as his guardian. FM lived with his aunt until she was elderly and relocated to an aged care facility.

In 2001, a community health social worker applied to the Tribunal for the appointment of a guardian and administrator on the basis that FM was living alone in his aunt’s home, was vulnerable personally and financially, had no community supports, and spent his Centrelink benefit soon after receiving it each fortnight. At the hearing in June 2001, the Tribunal appointed the Adult Guardian and the Public Trustee of Queensland, each for one year only.

On review in 2002, these appointments were continued for thee years though the Adult Guardians appointment was limited to service provision decisions. The Public Trustee of Queensland made an application to the Tribunal to have the appointment of the Adult Guardian enlarged as FM had been evicted from his Aunts house. When that application was heard with a declaration about capacity lodged by FM in 2004, both appointments were revoked.

YS died in May 2011. FM is a beneficiary of YS’s will. In February 2012, the Public Trustee of Queensland applied to the Tribunal for its appointment to manage FM’s entitlement. Because there was limited evidence about FM’s capacity to make financial decisions, the Tribunal directed him to undergo a neuropsychological assessment.

Through his legal representative, FM appealed the Tribunal’s directions. The appeal was refused in August 2012 and a generous set of reasons was released explaining that decision.

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 Re: FM

Details

AGLC: Re: FM [2013] QCAT 135
Case: [2013] QCAT 135
Decision Date

CaseChat Overview and Summary

In the case of Re: FM, the Queensland Civil and Administrative Tribunal considered an application for a declaration of capacity about FM’s capacity to manage his inheritance and an application for the appointment of an administrator for FM’s financial management. FM is a 45-year-old man with a history of inadequate parental care and special education. His aunt, YS, had been his guardian until she passed away in May 2011, leaving FM as a beneficiary of her will. In February 2012, the Public Trustee of Queensland applied to the Tribunal for its appointment to manage FM’s entitlement. Because there was limited evidence about FM’s capacity to make financial decisions, the Tribunal directed him to undergo a neuropsychological assessment. Through his legal representative, FM appealed the Tribunal’s directions. The appeal was refused in August 2012 and a generous set of reasons was released explaining that decision.

The primary legal issue before the Tribunal was whether FM has the capacity to make decisions about his inheritance. If it were found that he does not, the Tribunal would then consider the need for the appointment of an administrator and if there were such a need, who would be the most appropriate appointee. The Tribunal reviewed several documents, including reports from a psychologist, GPs, and a Special School. The psychologist’s report concluded that FM is capable of understanding the nature and effects of decisions about his financial affairs, is sensible, street smart, capable of sustaining a personally satisfying lifestyle, and appears confident to handle his inheritance. However, the Tribunal found that FM has performed poorly under examination, has not developed grandiose ideas about his inheritance, is not impulsive and that his slow processing speed is unlikely to interfere with his capacity in regard to financial affairs. The Tribunal found that FM is vulnerable to financial exploitation and dismissed the application for a declaration of capacity. The Tribunal also found that there is a need for the appointment of an administrator to manage FM’s inheritance and appointed the Public Trustee of Queensland as the administrator.

In conclusion, the Tribunal dismissed the application for a declaration of capacity, finding that FM is vulnerable to financial exploitation and does not understand the nature and effects of decisions that have been made, or might need to be made, in regard to the discharge and management of the inheritance. The Tribunal appointed the Public Trustee of Queensland as the administrator for FM’s financial management. The Public Trustee of Queensland is to provide a financial management plan to the Tribunal within four months and provide accounts to the Tribunal when requested.

Orders