DCR [2010] QCAT 113

1 CITATION: DCR [2010] QCAT 113 PARTIES: DCR APPLICATION NUMBER: GAA2533-10 MATTER TYPE: Guardianship and administration matters HEARING DATE: 31 March 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 31 March 2010 DELIVERED AT: Brisbane ORDERS MADE: Appointment of administrator continued CATCHWORDS: Review of appointment of administrator – section 31 of Guardianship and Administration Act 2000 – appointment continued APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 4 -- 2 REASONS FOR DECISION [1]. On 31 March 2009 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for DCR (the adult). 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. [2]. The appointment is being reviewed today on the basis of information on the Tribunal file. Notice of this review hearing was given to the adult 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]. DCR is 53 years old and lives in Mackay with his wife. DCR does volunteer work at a hospital and at Community Health. He is an senior officer holder in a service organisation supporting persons with injuries. [4]. When conducting a review of an appointment of a guardian or administrator, 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 may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment. [5]. The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. CAPACITY [6]. The first matter to be considered by the Tribunal is whether DCR has capacity for decision-making about his matters. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted 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 or not. [7]. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions. -- 2 of 4 -- 3 [8]. The Act 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. [9]. The Tribunal considered the following evidence about capacity: DCR sustained a severe head injury in an accident on 10 May 2005. Assessments carried out found that he had an acquired brain injury manifested by problems with executive functioning, reasoning, problem solving, planning, self monitoring and a lack of cognitive flexibility. [10]. The Tribunal made findings of fact about capacity as follows: DCR sustained a severe head injury resulting in an acquired brain injury. He has impaired cognitive functioning resulting in deficits in executive functioning, problem solving, planning and reasoning. [11]. The Tribunal finds that the evidence established that DCR cannot understand the nature and effect of decisions about complex financial matters. CONCLUSION [12]. The Tribunal determines that DCR does not have capacity to make decisions about complex financial matters. IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR? [13]. The evidence in the file is that: DCR received damages to compensate him for his personal injuries sustained in an accident on 10 May 2005. These funds are required to contribute to his support as he is unlikely to be able to return to full time employment due to his injuries. There is a need to budget his expenses to meet the income earned from these funds and a prudent investment strategy is needed to ensure that the funds are secured and provide income and growth to meet DCR’s present and future needs. [14]. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about DCR’s financial affairs and without an appointment his needs will not be adequately met or his interests will not be adequately protected. SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED? [15]. The Tribunal considered the following evidence about the ongoing competence of the current administrator: The Public Trustee of -- 3 of 4 -- 4 Queensland has prepared a budget of income and expenditure and has put into place a strategy for the investment of DCR’s funds. The Public Trustee has staff who are experienced and skilled in managing funds of persons with impaired capacity and have prudential measures in place to comply with the requirements of the law and with industry practice. [16]. No other person has sought appointment as administrator for DCR. [17]. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee of Queensland has acted competently in managing the financial affairs of DCR since appointment. The funds under management are being prudently managed and the administrator has staff with the appropriate skills and experience to carry out the role of administrator for DCR. CONCLUSION [18]. The Tribunal is satisfied that The Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs. The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case. APPOINTMENT [19]. The administration appointment made on 31 March 2009 is changed by appointing The Public Trustee of Queensland as administrator for DCR to manage the award of damages recovered under a court order 14 May 2009 for six months. [20]. The short term of appointment is appropriate as evidence was given to the Tribunal that DCR wants to purchase a house in New South Wales and relocate to that State in the near future. If the administrator supports that proposal and a house is purchased, it is likely that few funds would remain for management and the need for a formal decision maker would then have to be re-considered. [21]. The administrator is directed to provide accounts to the Tribunal when requested. -- 4 of 4 --