TJR
[2011] QCAT 527
•20 October 2011
| CITATION: | TJR [2011] QCAT 527 |
| PARTIES: | TJR |
| APPLICATION NUMBER: | GAA6154-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 October 2011 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Michelle Howard, A/Senior Member |
| DELIVERED ON: | 20 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for TJR for decisions about the following personal matters: (a) Accommodation; (b) With whom TJR has contact and/or visits; (c) Health care; (d) Provision of services; (f) Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – capacity for decision-making – where complex decisions required – where Adult Guardian nominated for appointment – where no other appropriate person available for appointment Guardianship and Administration Act 2000, ss 11, 12, 14, 15, 16, Schedule 1, Schedule 4 |
APPEARANCES and REPRESENTATION (if any):
| TJR TL WD CD | The adult The applicant and sister of the adult Sister-in-law of the adult Case manager, Mental Health Services |
REASONS FOR DECISION
TJR is fifty years of age and residing in his own home. The Public Trustee of Queensland is administrator for TJR for all of his financial matters. TL, sister of TJR, made application for the appointment of a guardian for TJR, namely the Adult Guardian.
Essentially, the tribunal can appoint a guardian for personal matters if it is satisfied as follows:
a)the adult concerned has impaired decision-making capacity for those matters;
b)there is a need for a decision about the matters or the adult is likely to do something relating to the matter involving unreasonable risk to his or her health or welfare; and
c)without an appointment the adult’s needs will not be adequately met or interests adequately protected.[1]
[1] Guardianship and Administration Act 2000, s 12.
In making its decision, the tribunal must apply the principles set out in the Guardianship and Administration Act 2000 (the Act).[2] The principles include a rebuttable presumption that the adult concerned has capacity for a matter.[3]
[2] Guardianship and Administration Act 2000, s 11, Schedule 1.
[3] Guardianship and Administration Act 2000, Schedule 1, Section1.
Impaired capacity is not defined in the Act. However, a person has capacity for a matter if he or she is capable of understanding the nature and effect of decisions about it; freely and voluntarily making decisions about it; and communicating the decisions in some way.[4]
[4] Guardianship and Administration Act 2000, Schedule 4.
The matters which must be considered in determining whether a person is appropriate for appointment as a guardian are set out in the Act.[5]
[5] Guardianship and Administration Act 2000, ss 14, 15, 16.
Is TJR able to make decisions about personal matters?
Dr MC who is adult’s treating psychiatrist of some four years, provided a written report to the tribunal dated May 2011. He refers to TJR as having a diagnosis of bipolar affective disorder, and an intellectual disability, and a past history of irregular compliance with medication and frequent relapses of mental illness. Currently, he has depot injections of medication and some oral medication. At times, TJR has been subject to involuntary treatment orders under the Mental Health Act 2000.
Dr MC concluded that although TJR’s mental health was relatively stable at the time of his report, he had the capacity to make only simple decisions about personal health care and lifestyle and accommodation choices, but not complex decisions.
The attendees at the hearing, other than TJR, agree with Dr MC’s report. CD indicated that in his opinion TJR’s mental health has deteriorated since Dr MC’s report. TJR considers he is able to manage his own affairs. Although he spoke of ‘clearance’ from a doctor, he did not provide a report from the doctor concerned.
I accept the un-contradicted evidence of Dr MC, with which those at the hearing, except TJR agreed. TJR’s assertions were unsupported. I am satisfied that the presumption of capacity has been rebutted and that TJR has impaired capacity for decisions about complex personal matters.
Is there a need for a decision/s about personal matters for TJR and will his needs and interests be adequately met or protected if an appointment is not made?
[10] The application asserts that decisions are required for TJR about accommodation, contact with other persons, health, service provision, day-to-day matters, and legal matters.
[11] TL explained that although it is her wish for TJR to remain in his own home, the Public Trustee has contacted her with concerns that the home may have to be sold because of liabilities being incurred by TJR. If this occurs, decisions will be required about accommodation for TJR.
[12] The tribunal heard that in the past, TJR has received some services through Auscare and from meals on wheels, but TJR cancelled them. He may require service provision decisions made for him to improve his quality of life. Also, the tribunal heard that TJR’s relationship with some family members was strained and difficult and that contact may be required about who TJR has contact with. Further, there are health decisions which may be required for him which involve complexity in the context of his mental health.
[13] Finally, TJR has serious criminal charges pending against him which are next before a court in November 2011. These have not been referred to the Mental Health Court.
[14] On the evidence, I am satisfied that there are a variety of personal decisions which are anticipated to be required for TJR about accommodation, service provision, contact, health and legal matters not relating to property. The decisions required about these matters are complex decisions, for which TJR does not have capacity. I am satisfied that the least restrictive way to ensure that TJR’s needs are met and interests protected is to appoint a guardian in respect of those limited matters.
Who should be appointed as guardian?
[15] The application seeks the appointment of the Adult Guardian. There is no other person nominated for appointment. I am satisfied that there is no other appropriate person available for appointment for TJR’s personal matters and that the Adult Guardian as an experienced statutory guardian is appropriate for appointment.
[16] I make orders appointing the Adult Guardian as guardian for TJR for decisions about accommodation, contact, health care and legal matters not relating to property or finances. This appointment is current until further order of the Tribunal. It is reviewable and is to be reviewed in two years.
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