WT

[2009] QCAT 27

CITATION:  WT [2009] QCAT 27

PARTIES: WT

APPLICATION NUMBER:            G5849           

MATTER TYPE: Guardianship and administration matters

HEARING DATE:   22 December 2009

HEARD AT:   Brisbane

DECISION OF: C Endicott, senior member and L Clarkson member

DELIVERED ON:   22 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:  Appointment of guardian revoked and appointment of administrator changed

CATCHWORDS :  Review of appointment of guardian and administrator – section 31 Guardianship and Administration Act 2000  - whether need for appointment  - whether person more appropriate than current appointee

APPEARANCES and REPRESENTATION (if any):

REASONS FOR DECISION

1. An application has been received by the Tribunal from WY to review the appointment of a guardian and administrator for WT. In 2006 the former Tribunal made an appointment of a guardian and administrator when WT was highly dependent on service providers and had a somewhat strained relationship with his family.

1. It was decided in 2006 that a guardian was needed to make decisions about accommodation and service provision to minimize the ongoing strains that some of those issues had caused with his support network and his family. Since then WT has commenced a relationship with WY whom he subsequently married in 2008.

1. To all appearances today they are a close and loving couple and have a stable relationship. Significant change in circumstances of an adult is one reason why this Tribunal has the power and the opportunity to consider a review of appointments previously made before the end of those appointments.

1. Section 31 of the Guardianship and Administration Act 2000 sets out the law to be applied when the Tribunal considers a review of its earlier appointments. In essence the Tribunal has to be satisfied that there is an ongoing need for an appointment and has to be satisfied that if there is an ongoing need, that it would continue the appointment of the current appointee unless the appointee is no longer competent or another person is more appropriate for appointment.

1. So looking at those issues, the Tribunal has received evidence both from medical witnesses and also from lay persons taking part in the hearing today. As far as the medical evidence is concerned the Tribunal is satisfied that the evidence establishes that WT sustained an acquired brain injury which has affected his cognitive ability and functioning, he has impulsive behaviour which places his finances at risk and he does not have a full understanding of the consequences of his behaviour.

1. All those taking part in the hearing today have agreed with the medical evidence that had been produced and confirmed their views that WT was impulsive and needed considerable support for decision making. The Tribunal finds that WT has a cognitive impairment due to sustaining his acquired brain injury. The impairment has resulted in impulsivity and a lack of understanding of the consequences of his actions.

1. The Tribunal finds WT has impaired capacity for decision making about personal and financial matters and that the presumption of capacity has been rebutted.

1. As to the appointment of a guardian the Tribunal needs to look at the question whether there is an ongoing need for an appointment. The Tribunal has heard evidence from the current guardian and also from those persons involved in WT’s life.  There has not been any formal decision made by a guardian for some WT. WT is happy to rely on WY in supporting his personal decision making and WY is more than happy to provide that support to WT.

1. All those present acknowledge WY is taking good care of WT and meets his current needs as far as personal decision making is concerned. As a result the Tribunal is not satisfied that WT is likely to take any action that places his health or welfare at risk and the Tribunal is not satisfied that an appointment of a guardian is necessary in WT’s case.

1. As a result of those findings the Tribunal finds that WY and WT can and do make appropriate personal decisions informally and that there is no need for a formal appointment of a guardian to continue. The Tribunal revokes the appointment of the Adult Guardian in relation to WT.

1. As to the question of the appointment of an administrator the Tribunal notes that WT has funds of approximately $259,000 under management. He has considerable expenses that have to be met from his income stream from a Centrelink pension and from earnings from his investments.

1. During the hearing, evidence was given as to WT’s difficulties with purchasing and budgeting without involvement from WY. The Tribunal has also heard considerable evidence that WT particularly wants to purchase a house and this has been his desire and dream for many years. Purchasing a property such as a house comes within the realm of a complex financial decision.  Decisions that flow from such a concept include whether a particular property is affordable, what price range is appropriate prior to purchasing a property, how to use the available funds and resources to best purchase such a property.

1. The Tribunal finds that there are decisions to be made about WT’s financial affairs which due to his impaired capacity WT cannot make by himself. Without an administrator the Tribunal finds that his finances would be at considerable risk. The Tribunal is satisfied that in all of the circumstances the ongoing appointment of an administrator is appropriate. Section 31 of the Act requires the Tribunal, in those circumstances, to consider on a review whether the current appointee should be continued or whether another person is more appropriate.

1. There was some evidence given or some submissions made which amounted to criticism of some of the actions of The Public Trustee of Queensland and the representative of The Public Trustee acknowledged that there were some minor problems in relation to the preparation of consistent budgets in the last couple of months but this has now been rectified. The Tribunal does not accept that the matters raised in the submissions to date amount to a position where the Tribunal can safely find that The Public Trustee of Queensland is no longer competent.

1. The Tribunal recognises that The Public Trustee of Queensland is a skilled and experienced organisation and also recognises that it is a bureaucracy. It operates by its Trust Officers and other personnel and those people can change quite frequently, they would have differing communication styles, it is quite possible that it could lead to misinterpretation of communications and their personal knowledge of WT and his needs could be significantly limited. Those are factors that the Tribunal does take into account while considering the criteria under Section 31 of the Act.

1. The Tribunal acknowledges that WT does have a loving spouse.  She presented as a sensible and prudent person to the Tribunal during the course of the hearing. She is experienced to some extent in business and seems to have a good grasp of budgeting and financial matters. She gave evidence that she is competent, that she could discuss financial issues with WT and she is not concerned that any strained discussions would lead to any adverse impact on their relationship. The Tribunal accepts her evidence of her willingness and ability to carry out the role of administrator and she has just conceded that she is aware of her responsibilities should she be appointed as administrator and is willing to take on those responsibilities.

1. The Tribunal is satisfied that a spouse is generally in a better position than The Public Trustee of Queensland in these circumstances to be aware of WT’s wishes and needs and to be able to carry out the general principles efficiently. The Tribunal is satisfied that WY would carry out the general principles. A married couple is a natural social unit and this unit is one that is well placed to make decisions pertaining to their own lives and interests. There is no evidence to suggest that WY could not make decisions in WT’s interest as part of that marital unit. Her appointment is generally supported by the friends of WT and people taking part in the hearings today and by WT’s family.

1. The Tribunal finds in all the circumstances that it is more appropriate for WT’s spouse to be appointed as his administrator rather than The Public Trustee of Queensland in this case.