TDR

[2009] QCAT 4

CITATION:      TDR [2009] QCAT 4

PARTIES:   TDR

APPLICATION NUMBER:            GAA7682-09

MATTER TYPE:   Guardianship and Administration matters

HEARING DATE:   21 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   21 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Continuation of appointment of administrator

CATCHWORDS: Review – sections 28 and 31 Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 5 January 2005 the Guardianship and Administration Tribunal appointed PMP as administrator for TDR.  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 is being reviewed today on the basis of information on the Tribunal file. On 16 November 2009 notice of this review hearing was sent to the adult and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. TDR is 71 years old and sustained brain injury from strokes in 1998 and 2001.  TDR lives in supported hostel accommodation.

1. When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of the Act 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. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.

1. The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. 

CAPACITY

1. The first matter to be considered by the Tribunal is whether TDR has capacity for decision-making about his matters.  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. 

1. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions. 

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 considered the following evidence about capacity: report of Dr HM dated 14 December 2004 in which it was stated that TDR had sustained an acquired brain injury secondary to strokes in 1998 and 2001.  Dr HM expressed the opinion that TDR could not understand and act on information about his financial affairs and that he could not make simple or complex decisions. 

1. The Tribunal made findings of fact about capacity as follows: TDR has sustained an acquired brain injury secondary to strokes in 1998 and 2001.  He has impaired cognition due to his brain injury.

1. The Tribunal finds that the evidence established that TDR cannot understand the nature and effect of decisions about financial matters.

CONCLUSION

1. The Tribunal determines that TDR does not have capacity to make decisions about the matter 

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?

1. The evidence in the file is that: TDR has funds in excess of $80,000, has an annual income of approximately $21,500 and has regular annual expenses of almost $15,200.  Investment decisions need to be made to secure his funds and regular decisions need to be made to ensure continuance of his accommodation and lifestyle. 

1. Based on the information set out above, the Tribunal determines that there is a need for decisions in relation to TDR’s financial affairs and  without an appointment the needs of TDR will not be adequately met or his interests will not be adequately protected.

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current administrator: PMP has lodged satisfactory accounts over the current term of her appointment.  The funds of TDR have been prudently invested by the administrator and appropriate records have been kept. 

1. No other person has sought appointment as administrator for TDR. 

1. The Tribunal made the following findings about the appropriateness of the current appointee: PMP has acted competently as administrator by lodging annual accounts as directed and by making sound decisions to secure and manage TDR’s financial affairs.   

CONCLUSION

1. The Tribunal is satisfied that PMP   

   • is at least 18 years of age
   • is not a paid carer for the adult
   • is not a health provider for the adult 
   • has signed a statutory declaration as to appropriateness for the role
   • is likely to apply the general principles
   • is not bankrupt or taking advantage of the laws of bankruptcy
   • is an appropriate person to appoint as administrator after taking into consideration the provisions in section 15 of the Act.

APPOINTMENT

1. The appointment of PMP is continued as administrator for TDR for five years to make decisions about all financial matters.  

[20].The administrator is directed to provide annual accounts to the Tribunal about TDR’s financial affairs.