TL
[2011] QCAT 253
•2 June 2011
| CITATION: | TL [2011] QCAT 253 |
| PARTIES: | TL |
| APPLICATION NUMBER: | GAA721-11 GAA722-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 2 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for the appointment of a guardian is dismissed. 2. Application for the appointment of an administrator is dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – allegations of abuse and financial mismanagement – where it was alleged that decision maker was needed – presumption of capacity not rebutted by evidence – where applicant has fallen out with the adult’s family – where applications lack substance – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Numerous applications have been made to the tribunal and to the former tribunal, the Guardianship and Administration Tribunal, since 2004 about TL. Prior to 2004, the Supreme Court had in 2001 appointed Perpetual Trustees Queensland Limited as her administrators of an award of damages compensating TL for the serious effects of injuries sustained in an accident.
After a lengthy review process of the appointment of that administrator commenced in 2004 and finalised in 2008, Perpetual continued as TL’s administrator for the limited purpose of managing the award of damages. An application for the appointment of a guardian had been heard in February 2008 and the application had been dismissed as no need was ascertained for a guardian at that time.
TL lives with her daughter and grandchildren in a house that is owned by TL. TL’s daughter, who provides care to TL, separated from her former partner in 2009. From some years before that separation, the parents of her daughter’s former partner, Mr and Mrs C, lived on the property owned by TL and assisted around the property and with some aspects of TL’s care. Some time after the separation, Mr and Mrs C ceased to reside on TL’s property.
According to the evidence from the administrator, it was then that Mr C started to raise complaints about the care provided to TL by her daughter and to make allegations about the misuse of the funds made available to TL from her administrator. The administrator stated that the complaints and allegations were looked into but were found not to have substance.
The complaints and allegations were discussed directly with TL in 2010 and she described them as “utter rubbish”.
Mr C lodged an application in the tribunal for the appointment of a guardian and administrator for TL on 24 November 2010. He proposed himself as guardian and administrator for TL but he also suggested in the application that The Public Trustee of Queensland could be appointed.
Medical evidence provided to the tribunal from Dr P dated 2 February 2011 stated that TL had sustained a brain injury in 1998. A Mini Mental State Examination conducted on 24 January 2011 resulted in TL scoring 29 out of 30. Dr P expressed the opinion that TL could understand and act on information relating to her health care, lifestyle and accommodation matters as well as her financial affairs. Dr P expressed the opinion that TL could make decisions freely and voluntary. He considered that TL at times did not understand the impact of her medical condition and that she sometimes let health problems progress before she sought medical attention.
In a letter received by the tribunal on 8 February 2011 Mr C stated that he did not want to manage TL’s financial affairs but he thought The Public Trustee of Queensland would do better as an administrator than Perpetual. Mr C raised a complaint that he was owed money by TL which Perpetual had not yet paid.
Further medical evidence was received by the tribunal about TL’s decision making capacity. Dr A from a regional hospital reported that TL can understand her health problems but he could not comment on her understanding of other personal matters or financial matters as he had not discussed these matters with her. Dr A expressed the opinion that TL could make decisions freely and voluntarily.
[10] Mr C subsequently provided to the tribunal extracts from a range of documents that appeared to be relevant to litigation between TL’s daughter and her former partner about their children.
[11] A report from Perpetual in March 2011 stated that TL had taken out an apprehended violence order against Mr C. The report confirmed that TL refuted the allegations made by Mr C that she was subject to personal and financial abuse from her daughter.
[12] On 13 April 2011 a letter was sent to Mr C from the tribunal registry informing him that the medical reports from Dr P and Dr A did not rebut the presumption that TL had capacity to make her own personal decisions. The letter also stated that the information provided by Mr C had not established that Perpetual was no longer competent as administrator or that another person was more appropriate for appointment as TL’s administrator. The letter informed Mr C that his applications would be considered for dismissal and he had until 20 April 2011 to provide any further information.
[13] On 19 April 2011 the tribunal received a letter from Mr C stating that Perpetual knew he was out of pocket for moneys owed to him. Mr C indicated that he would be in contact with the tribunal by mail soon. No further information has been provided by Mr C to the tribunal about his applications since the letter received on 19 April 2011.
[14] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The exercise of such a power in an appropriate case is consistent with the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[15] In this case, the tribunal gave Mr C an opportunity to provide further information after informing him that the evidence had not rebutted the presumption of capacity for personal decisions. He did not provide further evidence about TL’s decision making capacity for personal matters or further reasons as to why the current administrator should be removed.
[16] When considering applications for the appointment of a guardian under the Guardianship and Administration Act 2000, the tribunal commences its task on the basis that an adult is presumed to have capacity to make personal decisions. Evidence can rebut that presumption but until the presumption is rebutted, the tribunal must proceed on the basis that an appointment of a guardian cannot be made.
[17] There was evidence from Dr P and Dr A about TL’s capacity to make personal decisions. Evidence from medical witnesses is used to inform the outcome of the tribunal’s deliberations about capacity but is not the only factor taken into account to determine the issue of capacity. The tribunal is responsible for determining the decision making capacity of an adult. The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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.
[18] The tribunal finds on the evidence that TL has exhibited the ability to understand the nature and effect of decisions about her personal affairs. She has discussed her health care matters with her doctors and they have not expressed concerns about her understanding of those matters. She may not always act promptly to seek medical treatment but there is no credible evidence that such delays arise from a deficient understanding of the nature and effect of her health conditions.
[19] There was a suggestion made by Mr C that TL was being negatively influenced by her daughter. If that is the case, there may be grounds for finding that TL could not make decisions freely and voluntarily. However no cogent evidence has been provided to back up this suggestion and TL has exhibited a general ability to balance her independence in decision making with an acceptance that she must rely on her daughter for many of her care needs. The tribunal considers that the evidence does not rebut the presumption of capacity for personal decisions.
[20] However, a finding on capacity is only one element in the process used by the tribunal when appointing substituted decision makers. Section 12 of the Guardianship and Administration Act 2000 sets out the other criteria to be considered by the tribunal when determining if there is a need for appointment of a guardian. There must be evidence that decisions about personal matters have to be made or about whether TL is likely to act in a way that involves, or is likely to involve, unreasonable risk to her welfare. There would not be a need for an appointment by the tribunal if her decision making needs can be adequately met by support given informally.
[21] The evidence does not support a need for a formal decision maker for personal matters. TL makes her own decisions. She has support from her daughter and from service providers. Appointment of a guardian at this time and on the evidence provided to the tribunal would not be in accordance with the General Principles which must be followed by this tribunal.
[22] The tribunal finds that the case presented by Mr C for the appointment of a guardian and for the appointment of some other administrator than Perpetual lacked substance. TL continues to support Perpetual as her administrator. Non payment of moneys claimed by Mr C is an issue that he must take up with Perpetual. It does not provide a sufficient ground to consider removing the administrator.
[23] TL was opposed to the appointments sought by Mr C and her views must be taken into account and respected.
[24] The tribunal concluded that the applications lacked substance and that it was unnecessary to proceed to a hearing as to do so would be likely to cause distress to TL. Applying the objects set out in section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009, the tribunal considered that it was appropriate to bring an early end to the proceedings and dismissed the applications under section 47 of that Act.
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