VJM
[2009] QCAT 6
•4 December 2009
| CITATION: | VJM [2009] QCAT 6 |
| PARTIES: | VJM |
APPLICATION NUMBER: G8355
| MATTER TYPE: | Guardianship and administration matters |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | C Endicott, senior member |
DELIVERED ON: 4 December 2009
DELIVERED AT: Brisbane
ORDERS MADE: Appointment of guardian continued
| CATCHWORDS : | Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – appointment continued |
APPEARANCES and REPRESENTATION (if any): On the papers
REASONS FOR DECISION
On 6 December 2004 the Tribunal appointed the Adult Guardian as guardian for VJM (the adult).
The appointment is being reviewed today on the basis of information on the Tribunal file. On 11 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).
VJM is 28 years old and resides with a co-tenant in a house near Brisbane where he receives support from a service provider.
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.
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
The first matter to be considered by the Tribunal is whether the adult has capacity for decision-making about his matters.
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.
The Tribunal considered the following evidence about capacity: CP, psychologist, reported in 2002 that the adult had an intellectual disability with possible autism. The Adult Guardian provided a report about the current circumstances of the adult and stated that there was a diagnosis of intellectual disability, cerebral palsy, epilepsy, autistic tendencies and other medical conditions. The report stated that the adult received one on one support in his residence from a service provider.
The Tribunal made findings of fact about capacity as follows: the adult had an intellectual disability with autistic features. He resides in the community with full support from a service provider and relies of other persons for decision making.
The Tribunal finds that the evidence established that
·the adult cannot understand the nature and effect of decisions about the matter
·the adult is not capable of making decisions freely and voluntarily
CONCLUSION
The Tribunal determines that
·the adult does not have capacity to make decisions about the matter
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN
The evidence in the file is that: the adult receives support from a service provider. The present level of one on one support is not fully funded and the service arrangements must be reviewed. The adult has exhibited aggression towards his co-tenant and his current accommodation arrangements are not suitable. The adult exhibits other challenging behaviour which has resulted in self harm and his behaviour places his co-tenant at risk of harm. The adult is being administered medication to manage his behaviour and his access to certain objects in his residence is restricted. There is some evidence to suggest that the adult may be subject to containment as a restrictive practice. The adult’s health is currently being investigated.
Based on the information set out above, the Tribunal determines that
·there is a need for a decision in relation to the matter
·the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health and welfare
AND
·without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected
SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?
The Tribunal considered the following evidence about the ongoing competence of the current guardian: The Adult Guardian has made a series of decisions about the adult’s accommodation, health care and other personal matters since 2004. The Adult Guardian is working with the service provider to develop a positive behaviour support plan to ensure that the adult’s needs are adequately met. The Adult Guardian has the experience and skills to ensure that proactive steps are taken about the use of medication to manage the adult’s behaviour and about other health issues.
The Tribunal considered the following evidence about whether another person is more appropriate for appointment: No other person has sought appointment as the adult’s guardian.
The Tribunal made the following findings about the appropriateness of the current appointee: The Adult Guardian has acted competently over the past five years. The Adult Guardian has the experience and skills to work towards the development of a positive behaviour support plan to improve the adult’s quality of life and to reduce the use of restrictive practices in his daily life.
CONCLUSION
The Tribunal is of the view that the Adult Guardian is well placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. The Adult Guardian is an independent decision maker and has extensive skills and experience. The Adult Guardian is considered the appropriate appointee as guardian in this case.
APPOINTMENT
The guardianship appointment made on 6 December 2004 is changed by appointing the Adult Guardian as guardian for VJM for all personal matters including to seek help and make representations about the use of restrictive practices for one year.
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