TRC

[2014] QCAT 668

CITATION: TRC [2014] QCAT 668

PARTIES: TRC

APPLICATION NUMBER: GAA10113-14; GAA10125-14

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Endicott

DELIVERED ON: 4 December 2014

DELIVERED AT: Brisbane

ORDERS MADE: David Manwaring, lawyer, is appointed as the separate representative for TRC to represent his views, wishes and interests in relation to the applications GAA10113-14 and GAA10125-14 reviewing the appointment of the Public Guardian.

CATCHWORDS:

GUARDIANSHIP – where adult with impaired capacity had guardian appointed – where a decision made by that guardian was objected to by friends of the adult – where a review of the appointment of the guardian will proceed to hearing – where issues as to the competence of the guardian will be considered at the hearing – where the issue of whether another person is more appropriate to be guardian will also be considered

REPRESENTATION – where the views of the adult will be considered – where there are differing opinions about those views – where disinterested advocacy required for the adult to exercise his legal rights in the view – whether current guardian could appropriately represent the views of the adult or whether advocate independent of the decision maker and other parties best placed to communicate views and interests of the adult

Guardianship and Administration Act 2000 s 125

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. TRC has been found to have impaired decision making capacity and the Public Guardian was appointed to make certain personal decisions for him.  A decision was made by the Public Guardian on 13 October 2014 to place TRC into an aged care facility.  

2. A group of friends of TRC objected to the decision to place him into aged care accommodation.  They assert that the placement was not necessary as adequate care could be provided to TRC in his own house where he could remain living in the community and he could continue his usual activities in his local community.  One friend has applied to review the appointment of the guardian and has proposed that the Public Guardian is replaced with a friend of TRC.

3. The tribunal conducted a hearing of a stay application in November 2014.  TRC participated in that hearing and expressed his views about the issues underlying the stay application.  However a finding had been made that he lacked insight into the extent of his dependency on others to meet his care needs.  The views and wishes he expressed coincided with views expressed by his friends.  Evidence had been given to the tribunal that some of the friends had been actively encouraging TRC to leave the aged care facility and return home.

4. The issues central to the review of the appointment of the guardian will be whether the current guardian has been competent in reaching decisions for TRC and whether someone else is more appropriate for appointment. The views and wishes of TRC will be taken into consideration on those issues.  Given the past efforts of other people to influence TRC’s views, it is important that his views on these issues are able to be made directly to the tribunal and not filtered through the evidence from other parties. 

5. Queensland Advocacy Incorporated has been providing legal advice and representation to people with a disability for some years.  This organisation has appeared at QCAT either as a direct representative instructed by a person with a disability or as a separate representative appointed by the tribunal.  The organisation is well placed to provide independent assistance to persons with a disability to exercise their legal rights in proceedings before the tribunal.

6. Given the likely discrepancies in opinion between some of the parties in this review application who may seek to communicate what they believe are TRC’s views, it is important that all reasonable efforts are put in place to ascertain TRC’s views via a person who is disinterested in the outcome of the review application.  That same person can also provide disinterested and independent advocacy about what outcome is in the interests of TRC.

7. TRC was not represented in this review proceeding and the tribunal was concerned that he should be represented in order to fully exercise his rights to be heard. It would not be appropriate to appoint the Public Guardian to be that representative as it is the decision of the Public Guardian that will be under scrutiny in the review. The tribunal considered that Mr Manwaring from Queensland Advocacy Incorporated would be best placed to be a separate representative for TRC under section 125 of the Guardianship and Administration Act 2000.