SJH
[2010] QCAT 328
•9 July 2010
| CITATION: | SJH [2010] QCAT 328 |
| PARTIES: | SJH |
| APPLICATION NUMBER: | GAA4850-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 9 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 9 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Appointment of The Public Trustee of Queensland as administrator for all financial matters for two years |
| CATCHWORDS : | ADMINISTRATION – where need established for appointment – no family available – definite term as possibility of recovery |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
SJH had been admitted to hospital on 4 March 2010 after being found on the floor of her house. She had sustained a thalamic lesion and had impaired mobility and communication skills.
On 22 June 2010 a social worker at the Princess Alexandra Hospital lodged an application with the Tribunal seeking the appointment of an administrator for SJH.
In considering that application, the Tribunal must be satisfied that SJH does not have capacity to make her own decisions about financial matters, whether there is a need for an administrator and if so, who should be appointed. At law there is a presumption that adults have capacity to make their own decisions. Unless there is sufficient evidence to rebut that presumption, it must stand.
The Guardianship and Administration Act 2000 (the Act) defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
a)understanding the nature and effect of decisions about the matter; and
b)freely and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
The Tribunal was provided with a report by Dr Christoph Krampl dated 18 June 2010 who is a neurosurgical resident. He reported that SJH had sustained a thalamic lesion in March 2010. A Mini Mental State Examination conducted on 3 June 2010 resulted in a score of 20 out of 30. Dr Krampl noted that SJH can be told some information one day but will have forgotten that information by the next day. He considered that she was suggestible, had poor memory and he considered that she was vulnerable to financial abuse.
Dr Krampl stated his opinion that SJH could not make decisions freely and voluntarily. He was of the opinion that SJH could not make simple or complex decisions about her finances due to an acquired brain injury and cognitive disability.
A speech therapist at the Princess Alexandra Hospital conducted an assessment of SJH’s communication skills in June 2010. A report by the speech therapist stated that SJH had moderate to severe receptive and expressive dysphasia and moderate dysarthia. The report noted that SJH could follow simple one stage commands but not complex multi-stage commands. Her spontaneous and conversional speech was the most severely affected.
The Tribunal finds that SJH has an acquired brain injury as a result of sustaining a thalamic lesion in March 2010. She has cognitive impairment and moderate to severe communication deficits. She has poor memory and she cannot follow complex multistage commands.
On the basis of those findings, the Tribunal concludes that SJH cannot understand the nature and effect of decisions as she cannot retain information for a sufficient period of time to appreciate and recall what she has done and she could not use complex information effectively. The Tribunal is satisfied that the evidence has rebutted the presumption of capacity and concludes that SJH has impaired decision making capacity for financial matters.
10. SJH is currently in hospital and according to the applicant, it will be unsafe to discharge SJH to her home. She may require rehabilitation or long term care. In the meantime, SJH has expenses arising from ownership of her home and has significant assets to manage. If SJH is placed into care, decisions about the amount of care fees and consideration of the terms and financial conditions of the care arrangements has to be undertaken.
11. SJH has a friend who has informally supported SJH with decision making since March 2010. That friend is not willing to take on a more formal role in the management of SJH’s financial affairs. SJH has no close family to provide her with informal support in financial decision making.
12. Section 12 of the Act deals with the question of need for an appointment and provides, where relevant, as follows:
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected…..
13. The Tribunal finds that a range of decisions need to be made to secure and manage SJH’s income, expenditure and assets while she is in hospital and subsequent to her discharge. While SJH has impaired capacity, a formal decision maker is the only option to ensure that her needs are met and her interests are adequately protected due to the absence of an effective informal support network.
14. Although the medical information at this stage does not provide a prognosis, it is likely that support with decisions will be required for a prolonged period of time. The Tribunal considers that it is appropriate to appoint an administrator for all financial matters for a period of two years.
15. The proposed appointee is The Public Trustee of Queensland. The Tribunal is confident that The Public Trustee of Queensland will apply the general principles and will make financial decisions for SJH in a way consistent with her proper care and protection. The Public Trustee of Queensland is appointed as administrator for SJH.
16. The administrator is directed to provide a financial management plan to the Tribunal within four months and must provide accounts when requested. As SJH is the registered proprietor of some real property in Queensland, it is ordered that notification of this appointment must be provided to the Titles Office so notice can be lodged over any real property owned by SJH.
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