BSB [2010] QCAT 94

1 CITATION: BSB [2010] QCAT 94 PARTIES: BSB APPLICATION NUMBER: GAA10636-09 MATTER TYPE: Guardianship and administration matters HEARING DATE: 29 January 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 29 January 2010 DELIVERED AT: Brisbane ORDERS MADE: Administration appointment 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]. In 1979 The Public Trustee of Queensland was appointed to manage an amount of damages recovered on behalf of BSB (the adult) following a sanction of a damages claim. With the commencement of the Guardianship and Administration Act 2000 the appointment was taken to have been made in accordance with that Act. [2]. The appointment is being reviewed today on the basis of information on the Tribunal file. On 24 December 2009 notice of this review hearing was sent 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]. BSB is 30 years old and resides with his mother in a regional town in Queensland. [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 BSB 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. [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 -- 2 of 4 -- 3 (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: medical reports obtained for the claim for damages reveal that BSB has a global intellectual disability. He failed to develop communicative speech and he is unable to retain more than one item of information at a time in his immediate memory. He is dependent on others for most decisions. [10]. The Tribunal made findings of fact about capacity as follows: BSB has a severe intellectual impairment and his cognitive functioning is at a significantly impaired. [11]. The Tribunal finds that the evidence established that BSB cannot understand the nature and effect of decisions about his financial matters and he is not capable of making decisions freely and voluntarily. CONCLUSION [12]. The Tribunal determines that BSB does not have capacity to make decisions about his financial matters. IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR? [13]. The evidence in the file is that: There are funds of approximately $24,800 under management from the damages recovered on behalf of BSB. Decisions are made regularly about the investment and use of those funds for the current and future benefit of BSB. [14]. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about a financial matter namely managing the remaining funds from the recovered damages and without an appointment the needs of BSB 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 Queensland obtains advice as to the ongoing investment of the funds managed for BSB. Even though more than 10 years has past since the damages were recovered, a significant amount of money is still available for the use and benefit of BSB. [16]. No other person has sought appointment as BSB’s administrator. [17]. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has acted competently in managing -- 3 of 4 -- 4 the funds obtained by way of damages for the personal injuries sustained by BSB. The current administrator has demonstrated experience and skill in ongoing management of the funds. 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 appointment of The Public Trustee of Queensland is continued as administrator for BSB until further order to make decisions about managing the damages sanctioned on 7 September 1999. [20]. The administrator is directed to lodge accounts with the Tribunal when requested. -- 4 of 4 --