SB

[2010] QCAT 53

CITATION:      SB [2010] QCAT 53

PARTIES:   SB

APPLICATION NUMBER:            G19240

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   8 February 2010 - Decision on the papers

HEARD AT:   Brisbane

DECISION OF:   Kerrie O’Callaghan - Senior Member

DELIVERED ON:   8 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application dismissed

CATCHWORDS: Early end to proceedings – section 47 Queensland Civil and Administrative Tribunal Act 2009 – application lacking substance

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Tribunal on 13 August 2009 by SB seeking the appointment of an administrator for himself.

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Guardianship and Administration Tribunal. 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.

1. When considering the appointment of a guardian or an administrator, the Tribunal is required by section 12 of the Guardianship and Administration Act 2000 to determine whether the adult has impaired decision making capacity about the matter before it can consider appointing a guardian or administrator for the adult.    

2. Section 5 of the Guardianship and Administration Act 2000 acknowledges that the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. 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 and General Principle 7 requires the Tribunal to take into account the importance of preserving, to the greatest extent possible, an adult’s right to make his or her own decisions.

EVIDENCE

5. The applicant provided medical evidence about his decision making capacity when he lodged the application for appointment of a substituted decision maker for himself.  The medical evidence was to the effect that although SB may lack capacity for complex financial decisions, he had the capacity to execute an Enduring Power of Attorney. 
6. The applicant was informed by letter from the Tribunal dated 23 December 2009 that the application would be considered for dismissal unless medical evidence stating an opinion that he had impaired decision making capacity was provided.  
7. No further information has been provided by the applicant. 

CONCLUSION

8. In those circumstances, SB has not provided acceptable evidence about his decision making capacity.
9. The Tribunal finds that the presumption of capacity has not been rebutted and is not satisfied that SB cannot make his own decisions. 
10. In view of those findings, the Tribunal considers that the application for the appointment of an administrator for SB is lacking in substance and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application should be dismissed.