BAC [2015] QCAT 533

CITATION: BAC [2015] QCAT 533 PARTIES: BAC APPLICATION NUMBER: GAA5399-15 / GAA6827-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 25 August 2015 HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 25 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for the appointment of a guardian by AB is dismissed. 2. The application for the appointment of an administrator by AB is dismissed. CATCHWORDS: GUARDIANSHIP – where appointment of substituted decision-makers sought – where medical evidence did not rebut the presumption of capacity – where applicant given an opportunity to provide evidence of impaired decision-making capacity – whether applications lacked substance – whether an early end should be brought to the applications Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 47 Guardianship and Administration Act 2000 (Qld), s 5(b), s 11, s 12(1), Schedule 1 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] AB filed an application in the Tribunal on 21 April 2015 seeking the appointment of a guardian and an administrator for BAC. The application was not accompanied by adequate evidence of impaired decision-making -- 1 of 3 -- 2 capacity. The registry of the Tribunal wrote to the applicant and requested she file some capacity information from a health professional. In addition, as the applicant referred to an Enduring Power of Attorney, the registry asked the applicant to file a copy of the document. [2] Documents were subsequently sent to the Tribunal including a copy of an Enduring Power of Attorney dated 12 May 2014 and a copy of the revocation dated 27 March 2015 of that Enduring Power of Attorney. The documents also included a report from Dr Bruce Hands dated 24 March 2015 which stated that BAC was competent to handle her own affairs including matters of health and money. [3] The Tribunal registry wrote to Dr Hands on 20 May 2015 requesting a report about the decision-making capacity of BAC. Dr Hands did not provide a detailed report but sent a letter which appeared to confirm his earlier opinion that BAC had capacity to make her own decisions. [4] The registry wrote to the applicant on 10 June 2015 informing her that the evidence provided to the Tribunal stated that BAC was competent to handle her own affairs. The applicant was informed that unless information is provided to the Tribunal which states that BAC does not have decision- making capacity by 26 June 2015, her applications for the appointment of a guardian and administrator would be considered for dismissal. [5] No further information was provided to the Tribunal that directly would support a finding that BAC had impaired decision-making capacity. The applicant filed some further information about what tasks she had carried out for BAC over a considerable period of time but the information was not of itself capable of determining decision-making capacity. [6] When considering applications for the appointment of substituted decision makers under the Guardianship and Administration Act 2000 (Qld), the Tribunal must commence from the position that an adult is presumed to have capacity to make decisions.1 Evidence can rebut that presumption but until the presumption is rebutted, the Tribunal must proceed on the basis that an appointment of a substituted decision maker is not to be made.2 [7] Evidence from medical witnesses is used to inform the outcome of the Tribunal’s deliberations about capacity but is not necessarily determinative of the issue of capacity. The Tribunal is responsible for determining capacity of an adult. The Guardianship and Administration Act 2000 (Qld) provides that a person has capacity for decision making if the person is capable of understanding the nature and effect of decisions about the matter, and of freely and voluntarily making decisions about the matter, and of communicating the decisions in some way. [8] The evidence provide by Dr Hands was limited but stated that BAC had capacity. Evidence from the applicant suggested that BAC relied on others 1 Guardianship and Administration Act 2000 (Qld), s 11, Schedule 1. 2 Ibid, s 12(1). -- 2 of 3 -- 3 to carry out a range of tasks and to handle many aspects of her affairs. However, considered in the context of the opinion by Dr Hands, the evidence of AB did not tend to rebut the presumption of capacity. The Guardianship and Administration Act 2000 (Qld) acknowledges that an adult has the right to make decisions with which other people may not agree but in doing so, an adult does not necessarily demonstrate impaired decision- making capacity.3 [9] The Tribunal considered that the case presented for the appointment of a guardian and administrator lacked substance. AB was given an opportunity to supplement the evidence which might rebut the presumption of capacity but her response did not provide satisfactory evidence to do so. [10] Even though the applications may have been well meaning, the Tribunal concluded that the applications for the appointment of a guardian and administrator lacked substance and that it was unnecessary to proceed to a hearing. Applying the objects set out in s 3(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal considered that it was appropriate to bring an early end to the proceedings and dismissed the applications under s 47 of that Act. 3 Ibid, s 5(b). -- 3 of 3 --