WSF

[2010] QCAT 12

CITATION:      WSF [2010] QCAT 12

PARTIES:   WSF

APPLICATION NUMBER:            GAA10615-09 GAA10616-09

MATTER TYPE:   Guardianship and Administration matters

HEARING DATE:   22 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   22 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Appointment of guardian and administrator continued

CATCHWORDS: Review of appointment of guardian and administrator – section 31 of Guardianship and Administration Act 2000 – appointments continued

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 30 January 2009 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for WSF (the adult). 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 appointments are being reviewed today on the basis of information on the Tribunal file. On 8 January 2010 notice of this review hearing was sent to the adult. On 23 December 2009 notice of this review hearing was sent to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 

1. WSF is 60 years old and lived until recently in his own home supported by community help but in about December 2009 his needs became too high for home based care and he moved in an aged care facility.

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 WSF 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 but the Tribunal must consider afresh in this review whether the adult has decision making capacity or not.

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: WSF has advanced Huntington’s disease.  He has symptoms of cognitive impairment and dementia.  He has impaired judgement, lacks insight into the extent of his deteriorated functioning.  He is unable to care for himself due to his neurological condition which is progressive in nature.  He had relied on others for decisions about service delivery when living at home.   He had demonstrated an inability to manage his finances resulting in debts and giving rise to a vulnerability about maintaining his assets. 

1. The Tribunal made findings of fact about capacity as follows: WSF has a neurological disorder that has caused a deterioration in his cognitive functioning.  That condition is progressive and results in dementia.  He has been unable to make decisions about how to meet his personal and financial needs and he relied on others to provide support for decision making.  He cannot appreciate the consequences of his actions due to the impact of his cognitive impairment. 

1. The Tribunal finds that the evidence established that WSF cannot understand the nature and effect of decisions about his personal and financial matters and that he is not capable of making decisions freely and voluntarily. 

CONCLUSION

1. The Tribunal determines that WSF does not have capacity to make decisions about his personal and financial matters.    

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN

1. The evidence in the file is that: the Adult Guardian has made a series of decisions about WSF’s accommodation which had allowed him to remain residing in his home, despite his deteriorating medical condition, until about December 2009.   WSF is now living in care but may be relocated if a suitable aged care facility has a placement for him closer to his usual community.  WSF may be eligible for further support and funding under various government initiatives and support from service providers to access those initiates is needed. 

1. Based on the information set out above, the Tribunal determines that here is a need for decisions in relation to WSF’s accommodation and service delivery and without an appointment his needs will not be adequately met or his interests will not be adequately protected. 

SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current guardian: the Adult Guardian has consulted before making decisions about WSF.  The decisions have allowed WSF to continue residing in his choice of accommodation until he could no longer safely remain at home.  The Adult Guardian has been proactive in considering the ways in which WSF’s needs could be best met by maximising his access to funding and support services. 

2. No other person has sought appointment as WSF’s guardian.  He is estranged from his family. 

3. The Tribunal made the following findings about the appropriateness of the current appointees: the Adult Guardian has acted competently in making decisions for WSF.  The continued appointment of the Adult Guardian is supported by WSF’s former wife who continues to have an interest in his welfare. 

CONCLUSION

1. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of WSF.  The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as guardian in this case.

APPOINTMENT

1. The appointment of the Adult Guardian is continued as guardian for WSF for two years to make accommodation and service provision decisions.

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

1. The evidence in the file is that: WSF is unlikely to return to his home and decisions must be made about the sale or other disposition of the home. His income and expenses must be managed to ensure his current and future needs are met. 

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

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR/S BE CONTINUED?

1. The Tribunal considered the following evidence about the ongoing competence of the current administrator: The Public Trustee has prepared budgets to ensure that WSF’s income covers his regular financial needs and outgoings.  The Public Trustee will have the skills and experience to realise WSF’s house and invest the proceeds to secure his future. 

2. No other person has sought appointment as WSF’s administrator.

3. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has acted competently and has the experience to ensure that WSF’s financial position is secured and managed to meet his needs.

CONCLUSION

1. The Tribunal is satisfied that The Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs.  The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience.  The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.

APPOINTMENT

1. The appointment of The Public Trustee of Queensland is continued as administrator for WSF until further order of the Tribunal to make decisions about all his financial matters. 

2. The administrator must within 28 days conduct a search of the records held by the Registrar of Titles for any interest in land registered in the name of the adult and lodge with the Registrar of Titles a copy of the interim order. The administrator must then give written notice to the Tribunal of the adult’s interest in land together with written evidence showing lodgement of the order in the records held by the Registrar of Titles.  

1. The administrator must lodge accounts with the Tribunal when requested.