DMJ [2013] QCAT 325

CITATION: DMJ [2013] QCAT 325 PARTIES: DMJ APPLICATION NUMBER: GAA177-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 8 March 2013 DELIVERED AT: Brisbane ORDERS MADE: The application for a declaration about the capacity of DMJ is dismissed pursuant to s47 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: GUARDIANSHIP – where declaration sought as to capacity – where evidence did not support declaration being made – where application lacked substance – where early end brought to proceedings Queensland Civil and Administrative Tribunal Act 2009 s 47 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] DMJ wants to make his own decisions about his finances. He had been found by the Guardianship and Administration Tribunal to have impaired decision making capacity for making financial decisions and his father was appointed his administrator on 4 August 2008. However in November 2009 DMJ’s father applied to the tribunal to seek the appointment of The Public Trustee of Queensland as the administrator for DMJ. -- 1 of 4 -- 2 [2] QCAT came into operation as from 1 December 2009 and QCAT made an order on 16 March 2010 appointing The Public Trustee of Queensland as the administrator for DMJ for all financial matters until further order. [3] In July 2012 DMJ applied for a declaration about capacity. His application was accompanied by a report from his general medical practitioner, Dr Cruickshank, who stated that DMJ has an acquired brain injury, Attention Deficit and Hyperactivity Disorder and an intellectual impairment. The doctor expressed an opinion that DMJ had no knowledge of financial affairs and that he could not make complex financial decisions due to his acquired brain injury, cognitive disability and psychiatric disability. [4] In a telephone call with the tribunal registry on 24 August 2012 DMJ discussed the application and stated that he no longer wanted to proceed with his application but less than two weeks later he changed his mind and told the registry he wanted the application to proceed. [5] The application was heard on 15 October 2012. The tribunal was told that DMJ contacted The Public Trustee office almost daily asking for money, he entered into mobile phone contracts without consulting The Public Trustee and had incurred significant debt as a result. DMJ told the tribunal that he was being charged $500 per day by The Public Trustee but he could not demonstrate how he arrived at that belief. The application for a declaration that he had capacity to make his own financial decisions was dismissed and as a consequence, the appointment of The Public Trustee continued. [6] DMJ filed another application seeking a declaration that he had capacity to make his own financial decisions on 13 December 2012. A report by Dr Catherine Curson, a psychiatrist, was subsequently filed. Dr Curson stated that DMJ had been diagnosed with an acquired brain injury, Attention Deficit and Hyperactivity Disorder, organic personality disorder and generalised anxiety disorder. She expressed the opinion that DMJ would have a moderate impairment in his ability to understand and act on information relevant for decision making about his financial affairs. Dr Curson also referred to DMJ being impulsive, having poor decision making skills and being unable to make complex financial decisions due to an acquired brain injury, cognitive impairment and an intellectual disability. [7] DMJ was sent a letter from the tribunal registry informing him that the report of Dr Curson did not support his application that he had capacity to resume management of his financial decisions. He was informed that the tribunal would not proceed with his application until he provided further medical information. DMJ was also informed that the tribunal would consider dismissing his application if this further information was not received by the tribunal. [8] DMJ later telephoned the tribunal registry on 13 February 2013 and was told that a hearing of his application would not be scheduled until he provided evidence in support of that application. The registry sent another letter to DMJ on 21 February 2013 informing him that the tribunal would -- 2 of 4 -- 3 consider dismissing his application unless he provided evidence in support by 7 March 2013. [9] The following day DMJ telephoned the tribunal registry and provided details of another doctor he was consulting. The registry wrote to that doctor asking for a report as to DMJ’s capacity for decision making. Dr McEniery provided a report in which he stated that DMJ has an intellectual disability as the result of an acquired brain injury. The doctor reported that DMJ can at times be aggressive and impulsive with outbursts of anger and rage with some violent behaviour. The report stated that DMJ is unreliable, inconsistent, unpredictable and not compliant with his medications. Dr McEniery stated his opinion that DMJ requires close supervision in managing his financial affairs. [10] DMJ had attended at the tribunal registry on 27 February 2013 to make an enquiry about the progress of his application. DMJ stated that he had about $79,000 with The Public Trustee and if he could get these funds back, he would spend them on pokies. DMJ reported that he had been diagnosed with schizophrenia. [11] Then on 4 March 2013 DMJ again came into the tribunal to enquire as to progress of his application. DMJ asked if his father could be appointed his administrator and he was provided with the relevant application form for a review of the appointment. During the discussion with the registry staff DMJ indicated that he did not want to go ahead with his application. [12] No medical or other evidence was provided to the tribunal by the end of 7 March 2013 that supported the application for a declaration that DMJ had capacity to make his own financial decisions. The evidence provided by Dr Cruickshank and Dr Curson was consistent with each other in stating that DMJ had an acquired brain injury and an intellectual disability which impaired his ability to understand and act on information about his financial affairs. Dr McEniery expressed similar views and referred to DMJ as being impulsive and in need of close supervision about his financial affairs. All three doctors had known DMJ for some time and did not provide a report after just a single consultation. [13] The tribunal had conducted an oral hearing of an application for a declaration about capacity on 15 October 2012. DMJ had attended that hearing. All the information provided by DMJ was considered at that hearing and the end result was his application was dismissed. Less than nine weeks later, DMJ filed an application again seeking a declaration about his capacity. The new medical reports obtained about that application did not support a declaration being made. [14] There was no evidence provided by DMJ to support the declaration he sought. Under s 47 of the QCAT Act a proceeding can be brought to an early end if the proceeding lacks substance. In the absence of any evidence supporting the application and given the recent hearing in October 2012 of an application about DMJ’s capacity, I determined that this was a case where an early end should be brought to this application. -- 3 of 4 -- 4 DMJ had been provided with ample opportunities to provide supporting evidence but he had failed to do so. [15] The application was dismissed. -- 4 of 4 --