TAFJ

[2010] QCAT 329

CITATION:      TAFJ [2010] QCAT 329

PARTIES:   TAFJ

APPLICATION NUMBER:            GAA4128-10

MATTER TYPE:   Guardianship and Administration matters for adults

HEARING DATE:   2 July 2010

HEARD AT:   Brisbane

DECISION OF:   Clare Endicott, senior member

DELIVERED ON:   2 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of administrator continued

CATCHWORDS: ADMINISTRATION – REVIEW OF APPOINTMENT – section 31 of Guardianship and Administration Act 2000 – where appointment continued

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 3 July 2008 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for TAFJ (the adult) for the limited purpose of considering and making a claim for family provision out of the estate of her late father and to manage any funds recovered from such a claim.

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal.  Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal.

1. The appointment of the administrator is being reviewed. When conducting a review of an appointment of an administrator, the Tribunal must take into account section 31 of the Guardianship and Administration Act 2000 which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.   

1. There is a presumption at law that all adults have the capacity to make their own decisions.  That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether TAFJ has decision making capacity or not.

1. 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.

1. The Tribunal had been provided with a report from Dr Speed who stated that TAFJ has an intellectual impairment in the moderate to severe range.  Dr Speed expressed an opinion that TAFJ could not manage her financial affairs due to her cognitive impairment.

1. The Tribunal accepts the evidence of Dr Speed and finds that TAFJ has an intellectual impairment in the moderate to severe range and that she has a significant cognitive impairment that would prevent her from understanding the nature and effect of decisions about her financial affairs. 

1. The Tribunal finds that TAFJ does not have capacity to make decisions about financial matters.    

1. Since the appointment under review in 2008 was made, the administrator has been taking steps to finalise a family provision claim brought on behalf of TAFJ.  The Tribunal was informed by correspondence from the administrator that a settlement of the claim was expected in July 2010 and that it would take some three months to obtain a sanction of the settlement of the claim. 

1. Based on that information, the Tribunal determines that there is still a need for decisions to be made about the family provision claim and without an appointment of a administrator that claim cannot proceed to settlement resulting in the interests of TAFJ not being adequately protected.  It is necessary for the appointment to continue to facilitate finalisation of that claim. 

1. The Public Trustee of Queensland has access to experienced and skilled trust officers and legal staff to provide advice about the claim.  The Tribunal is satisfied that the current administrator has been competent in its role. No other person is currently seeking appointment to the role of administrator for TAFJ although that position may change once the family provision claim is finalised. 

1. The Tribunal is satisfied that The Public Trustee of Queensland remains the appropriate appointee as administrator for TAFJ at this point in time. 

1. The appointment of The Public Trustee of Queensland is continued as administrator for TAFJ for one year to make a claim for family provision from the estate of the late father of TAFJ and to manage and invest any funds or assets acquired by TAFJ as a result of the family provision application.     

2. The administrator must provide a financial management plan to the Tribunal within four months of finalisation of the family provision application and must provide accounts to the Tribunal when requested.