ZAF
[2010] QCAT 15
•4 February 2010
PARTIES: ZAF [2010] QCAT 15
APPLICATION NUMBER: GAA5934-09
MATTER TYPE: Guardianship and administration matters
HEARING DATE: 4 February 2010
HEARD AT: Brisbane
DECISION OF: J Allen
DELIVERED ON: 4 February 2010
DELIVERED AT: Brisbane
CATCHWORDS: Declaration about capacity – section 146 Guardianship and Administration Act 2000; Dismissing application - section 47 of Queensland and Administrative Tribunal Act 2009
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
[1]Mr ZAF is currently subject to orders of the former Guardianship and Administration Tribunal dated 25 July 2005 appointing the Public Trustee of Queensland as his administrator and of 8 June 2007 appointing Mrs WMI as his guardian.
[2]The Guardianship and Administration Tribunal received an application on 17 August 2009 from Mr ZAF for a declaration of capacity under section 146 of the Guardianship and Administration Act 2000 in regard to financial matters. The jurisdiction of that tribunal is now vested in the Queensland Civil and Administrative Tribunal.
[3]Mr ZAF was requested to provided a health professional report to accompany his application and the following reports were provided:
a.Health professional report of Dr R Apel dated 8 October 2009;
b.Letter from Dr Apel dated 13 October 2009;
c.Health professional report from Dr Richard Zimmerman dated 11 November 2009.
[4]Mr ZAF was advised by letter on 3 December 2009 that the material he provided did not appear to support his capacity and that unless further information supporting his capacity was provided within three weeks the Tribunal would consider dismissing the application. That period was then extended to 1 February 2010. Mr ZAF has not provided any further material to the Tribunal in support of his application.
[5]The Guardianship and Administration Act 2000 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.
[6]Dr Zimmermann in his report stated in regard to Mr ZAF’s ability to understand and act on information relevant for making decisions and to what extent does he appreciate consequences of the decision that “all of his decision making processes are swamped by his extreme anxiety, his obsessive compulsive symptoms, and his fear of the unknown. He is a compulsive hoarder, and does not discard anything.”
[7]Dr Zimmerman stated that Mr ZAF had a diagnosis of chronic anxiety, severe OCD and he may have undiagnosed chronic schizophrenia. Dr Zimmerman was of the opinion that Mr ZAF was not particularly influenced by other people and that his communication was impaired secondary to anxiety
[8]While Dr Zimmerman was of the opinion that Mr ZAF understands the matters necessary to make an enduring power of attorney his opinion was that Mr ZAF would not be able to understand and make complex financial decisions though he could make simple financial decisions
[9]Dr Apel In his letter of 13 October 2009 stated that Mr ZAF “had a diagnosis of Autistic Spectrum Disorder in the moderate-mild range and that his condition was stable and stationary and has reached maximal improvement”. He further stated that Mr ZAF’s “decision-making particularly involving people is open to influence and as such should be made in conjunction with a guardian”. Dr Apel also noted that he was a distant relative of the applicant.
In his health professional report Dr Apel opinion was that Mr ZAF was “capable of day to day management but able to be influenced requiring assistance with the management of his capital base as opposed to regular financial maintenance.” Dr Apel opinion was that Mr ZAF could make decisions freely and voluntarily but his communication was impaired by his autism. Dr Apel opinion was that Mr ZAF can understand and make his own simple financial decisions.
The Tribunal notes from MR ZAF’s file that in accordance with an ABN-Amro Morgan statement of financial advice dated 30 June 2005 that Mr ZAF had a portfolio as at that date which was valued at $421,084. While it is not known what the current value of this portfolio is the Tribunal is satisfied that the management of such an investment portfolio would involve complex financial decisions and that from the reports provided by Mr ZAF there is no evidence to support a finding that he has capacity to make complex financial decisions.
The Tribunal may in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009 dismiss a proceeding where amongst other reasons it considers that the proceeding lacks substance. As there is no medical evidence to support Mr ZAF’s application the Tribunal is satisfied that it lacks substance and the application is dismissed.
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