CAN [2010] QCAT 617

CITATION: CAN [2010] QCAT 617 PARTIES: CAN APPLICATION NUMBER: GAA6573-10 GAA6574-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 12 November 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 12 November 2010 DELIVERED AT: Brisbane ORDERS MADE: Applications for appointment of a guardian and an administrator dismissed CATCHWORDS : GUARDIANSHIP AND ADMINISTRATION – presumption of capacity not rebutted - section 47 of the Queensland Civil and Administrative Tribunal Act 2009 – early end to proceedings – applications lack substance APPEARANCES and REPRESENTATION (if any): The hearing took pace on the papers in the absence of the parties. -- 1 of 2 -- REASONS FOR DECISION 1. On 17 August 2010 applications were lodged with the Tribunal by JW, EW and WW seeking the appointment of a guardian and administrators for CAN. The applications were not accompanied by information about CAN’s capacity to make decisions. 2. On 24 August 2010 a staff member from the Tribunal registry sent letters to the applicants informing them that a report from a health professional about CAN’s decision making capacity would be required. On 31 August 2010 a letter was written by a staff member from the Tribunal registry to the facility manager of the nursing home where CAN resides asking for information about the decision making capacity of CAN and asking that a health professional’s report is provided to the Tribunal. 3. On 5 October 2010 a staff member from the Tribunal registry spoke with the facility manager who stated that the health professional’s report had not been completed and who also stated that CAN may not have significant cognitive impairment. 4. On 22 October 2010 a staff member from the Tribunal registry sent letters to the applicants reminding them that a report from a health professional was required to support their applications. The applicants were informed that in the absence of such a report, their applications could be dismissed. 5. On 2 November 2010 JaW, a nephew of CAN, spoke to a member of the Tribunal registry and informed him that the applicants considered that CAN may have capacity to make an Enduring Power of Attorney. JaW was told by the registry officer that the applications would be considered for dismissal unless information about CAN’s decision making capacity was provided to the Tribunal. 6. No health professional’s report or other information about CAN’s decision making capacity has been provided to the Tribunal. 7. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. Before the Tribunal can appoint a decision maker for CAN, the Tribunal must be satisfied that the presumption of capacity has been rebutted by evidence satisfactory to the Tribunal. 8. No evidence has been received that can form the basis of a determination by the Tribunal about CAN’s decision making capacity. The applicants have failed to provide evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so. 9. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the Tribunal power to bring a proceeding to an early end if the Tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The Tribunal considers that the applications lodged by JW, EW and WW are lacking in substance and must be dismissed. -- 2 of 2 --