BJR [2010] QCAT 487

CITATION: BJR [2010] QCAT 487 PARTIES: BJR APPLICATION NUMBER: GAA7543-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 5 October 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 5 October 2010 DELIVERED AT: Brisbane ORDERS MADE: Appointment of guardians is revoked CATCHWORDS : Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – no decisions needed about accommodation and services - health care decisions able to be made by statutory health attorneys -appointment revoked APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 4 -- REASONS FOR DECISION 1. On 5 October 2005 the Guardianship and Administration Tribunal appointed CWFB and DVB as guardians for BJR. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal (the Tribunal). 2. The appointment was for a period of 5 years. A review of the appointment was conducted by the Tribunal on the basis of information on the Tribunal’s file. On 23 September 2010 notice of this review hearing was sent to BJR and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 3. When conducting a review of an appointment of a guardian, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. The Tribunal must be satisfied that the adult in question has impaired decision making capacity for the matter and that there is a need for appointment of a guardian as set out in section 12 of the Act. 4. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted in 2005 at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether the adult has decision making capacity for personal decisions. 5. The Tribunal has considered the evidence about BJR’s decision making capacity that had been on the Tribunal’s file from 2005 and as well has considered some recent evidence about his capacity to make decisions about his personal affairs. Evidence from a medical practitioner in 2005 revealed that BJR has an intellectual disability and in the opinion of that doctor, BJR could not make decisions freely and voluntarily and could not simple or complex decisions about his personal and financial matters. 6. CWB provided a written report to the Tribunal dated 26 September 2010 in which he stated an opinion that BJR’s capacity for decision making had not changed from 2005 and that BJR was unable to make decisions freely and voluntarily because of his intellectual disability and he needs help with all his decisions. 7. The Act defines capacity for a matter as a person being capable of understanding the nature and effect of decisions about the matter, being capable of freely and voluntarily making decisions about the matter and being capable of communicating the decisions in some way. 8. The Tribunal accepts the evidence from 2005 and the more recent evidence about capacity and finds that BJR has an intellectual disability and he relies on other people to provide him with support in all areas of decision making. The Tribunal finds that BJR cannot make decisions freely and voluntarily due to his intellectual disability. The Tribunal determines that the presumption of capacity for decision making has been rebutted by the evidence before the Tribunal and determines BJR has -- 2 of 4 -- impaired decision making capacity for personal matters. 9. The guardians were appointed in 2005 to make decisions about accommodation, health care and service issues: they were not appointed to make all personal decisions for BJR. According to the report from CWFB, no decisions have been made by the guardians since 2005 about accommodation or services. BJR has resided in the same hostel since at least 2003 and there is no evidence that any change of accommodation is anticipated. The evidence reveals that BJR is settled and well cared for and no increased level of services is anticipated for him at the present time. 10. If the appointment of the guardians is to be continued in this case, the Tribunal must be satisfied that there is a need for decisions to be made and that without the appointment of guardians the needs of the adult will not be adequately met. Alternatively the Tribunal must be satisfied that BJR is likely to do something that involves, or is likely to involve, unreasonable risk to his health or welfare and that without the appointment of guardians his interests will not be adequately protected. There is no evidence that BJR is at risk because of his own likely actions. 11. In looking at the decisions that have needed to be made over the last five years, the Tribunal can discern what decisions are still needed to be made for BJR from 2010 onwards. CWFB reported that he has made decisions to enable BJR to go on holidays to Victoria and Tasmania. CWFB also reported that he had been advised when BJR had required any medical procedures and although his report was not clear on this point, the Tribunal has interpreted his report as stating that his consent was sought and given on each occasion that a medical procedure was undertaken. 12. While there may be an argument that decisions about holidays might possibly have come within the accommodation power, it is more likely that CWFB was in fact acting as an informal decision maker when making decisions about holidays for BJR and not in his role as guardian as he was not appointed to make decisions about BJR’s holidays. 13. Section 9 of the Act authorises decision making for an adult with impaired capacity on an informal basis by members of an adult’s existing support network. A support network can include members of the adult’s family and close friends of the adult. Decisions made informally by members of the support network are valid when there is no guardian appointed by the Tribunal to make decisions for an adult about the matter in question. 14. The evidence reveals that no accommodation or service decisions were made by the guardians over a five year period from 2005. There is no evidence that decisions are needed to be made on a continuing basis about BJR’s accommodation or about the level of services provided to him. 15. While the Tribunal can anticipate that a need for a decision about a personal matter may arise from time to time, any such decision can be made informally by members of BJR’s support network and will be as validly made on his behalf as decisions made by a formally appointed guardian. The Tribunal is not satisfied that in 2010 there is a need for a guardian to make decisions about accommodation and services for BJR. 16. That leaves health care decisions to be considered. Under the Powers of -- 3 of 4 -- Attorney Act 1998, a statutory health attorney is authorised to make any decision about a health matter that an adult could lawfully make if the adult had capacity for the matter. Members of an adult’s family are statutory health attorneys by virtue of that Act as long as they are not paid carers for the adult. 17. CWFB and DVB are already statutory health attorneys for BJR as they are not his paid carers. They have valid authority to make decisions about health care for BJR without the need of any appointment by this Tribunal. They can give consent to medical treatment for BJR. 18. BJR’s need to have consent given on his behalf for health care can be adequately met by his statutory health attorneys providing that consent when necessary. The Tribunal is not satisfied that in 2010 there is a need for a guardian to make decisions about health care for BJR. 19. In view of the findings made by the Tribunal that there is no need for the appointment of a guardian for BJR, the Tribunal revokes the appointment of CWFB and DVB as guardians for BJR. -- 4 of 4 --