SLE
[2010] QCAT 251
•9 June 2010
| CITATION: | SLE [2010] QCAT 251 |
| PARTIES: | SLE |
| APPLICATION NUMBER: | GAA4135-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 9 June 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 9 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Administrator appointed. |
| CATCHWORDS : | Section 12 Guardianship and Administration Act 2000 - need for decisions about financial matters – administrator appointed |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
SLE is 83 years of age. He had been admitted to hospital in March 2010 after living alone in rented accommodation with some community support. He was subsequently discharged from hospital to an aged care facility after having an assessment by the Aged Care Assessment Team which had recommended high care, dementia secure residential care.
An assessment of SLE’s assets was not able to be undertaken to determine whether he was entitled to a concessional rate of care fees and a direct debit arrangement on his bank account was resulting in rental being deducted from his bank account for accommodation he no longer needed.
The manager of the care facility where SLE resides applied to the Tribunal seeking the appointment of an administrator for SLE.
In determining that application, the Tribunal must first consider whether SLE has capacity for decision-making about his financial matters. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption can be rebutted by medical evidence.
The Tribunal was provided with a report from Dr John Morgan dated 30 May 2010. Dr Morgan had diagnosed advanced dementia and an acquired brain injury. Dr Morgan was of the opinion that SLE could not understand and act on information about his financial affairs. Dr Morgan stated an opinion that SLE could not make decisions freely and voluntarily and he could not make any simple or complex decisions due to an acquired brain injury and dementia.
The assessment by the Aged Care Assessment Team on 10 May 2010 reported that SLE had regular short term memory problems, he manifested regular at risk behaviour, he was not always orientated to time, place or person, he had occasional delusions and extreme confusion.
The Tribunal notes that the medical evidence is not contradicted and accepts that evidence. The Tribunal finds that SLE has been diagnosed with advanced dementia and an acquired brain injury, he has short term memory deficits, he is not always orientated to time, place or person and he manifests extreme confusion.
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.
Dr Morgan has expressed an opinion that SLE cannot make decisions freely and voluntarily due to his dementia and acquired brain injury. Based on the findings of fact made in paragraph 7, the Tribunal concludes that SLE cannot understand the nature and effect of decisions about his financial affairs as he could not reliably retain information on which to make decisions and he could not make decisions freely and voluntarily due to the effects of delusional thinking processes. The Tribunal is satisfied that the presumption of capacity has been rebutted and that SLE has impaired decision making capacity about financial matters.
10. The applicant seeks the appointment of an administrator for SLE. Section 12 of the Act deals with the question of need for an appointment of a guardian or administrator 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…..
11. SLE cannot initiate an assessment of his assets for the purpose of calculating his entitlement to any concessional rate for the care provided to him at the aged care facility. He is paying rent on accommodation in which he can no longer reside. His assets are not secured and are not being managed to his current advantage. Decisions have to be made about his income, assets and expenditure and SLE is unable to make those decisions.
12. Until an administrator is appointed, SLE’s income and assets will be diminished by the ongoing unnecessary payment of rent and by incurring a liability for a higher rate of care fees than his assets might otherwise require. The Tribunal is satisfied that without an appointment of an administrator, SLE’s interests will not be adequately protected.
13. The appointment of an administrator would be essential to commence the steps necessary to assess the care fees for SLE’s accommodation and to enter into an agreement to pay the fees as assessed. The Tribunal is satisfied that an administrator should be appointed for SLE.
14. The application proposes the appointment of The Public Trustee of Queensland as the administrator for SLE. In the absence of any family known to be willing to take on that role, the only option for appointment as administrator is The Public Trustee of Queensland.
15. The Tribunal is confident that The Public Trustee of Queensland will apply the general principles and will make financial decisions for SLE in a way consistent with his proper care and protection. The appointment will be for an indefinite period and will remain until further order of the Tribunal.
16. The administrator is to provide a financial management plan to the Tribunal within four months and must provide accounts when requested.
0
0