CBR [2010] QCAT 95

1 CITATION: CBR [2010] QCAT 95 PARTIES: CBR APPLICATION NUMBER: GAA4016-09 MATTER TYPE: Guardianship and administration matters HEARING DATE: 27 January 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 27 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]. On 4 October 2004 the Supreme Court of Queensland appointed The Public Trustee of Queensland as administrator for CBR (the adult) in relation to damages awarded to CBR. From 1 December 2009 the Queensland Civil and Administrative Tribunal has jurisdiction to review appointments of administrators made by the Supreme Court. [2]. The appointment is being reviewed today on the basis of information on the Tribunal file. On 14 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]. CBR is 26 years old and resides in his own house. [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 CBR 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 (b) freely and voluntarily making decisions about the matter; and -- 2 of 4 -- 3 (c) communicating the decisions in some way. [9]. The Tribunal considered the following evidence about capacity: medical reports obtained for the damages claim disclosed that CBR has a mild intellectual disability and an acquired brain injury from an accident on 16 March 1998. He has poor short term memory, poor concentration and has displayed difficulties handling money. Dr Mohammad Hafiz reported on 17 November 2009 that CBR had a poor ability in his understanding of information about his financial affairs, he had accumulated bills, he is easily influenced and he could not make decisions freely and voluntarily. Dr Hafiz considered that CBR could not make simple or complex financial decisions due to his intellectual disability and acquired brain injury. [10]. The Tribunal made findings of fact about capacity as follows: CBR has a mild intellectual disability and an acquired brain injury. He has poor concentration, poor short term memory and he does not have an understanding of information on which to make decisions about his financial affairs. He is easily influenced and vulnerable. [11]. The Tribunal finds that the evidence established that CBR cannot understand the nature and effect of decisions about his financial matters and he is not capable of making decisions freely and voluntarily about his financial affairs. CONCLUSION [12]. The Tribunal determines that CBR does not have capacity to make decisions about financial matters. IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR? [13]. The evidence in the file is that: CBR recovered a significant amount of damages in 2004. From those funds he has purchased a house which has to be maintained by his income and other resources. He has in excess of $20,000 in invested funds which provide CBR with some security for the future as well as covering expenditure about his current property and other current needs. The administrator has developed a budget to manage CBR’s expenditure and has obtained investment advice to ensure that the invested funds are secure and provide income. [14]. Based on the information set out above, the Tribunal determines that there is a need for decisions to be made about CBR’s assets and expenditure 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? -- 3 of 4 -- 4 [15]. The Tribunal considered the following evidence about the ongoing competence of the current administrator: The Public Trustee has put into place an adequate budget and investment plan approved by the Tribunal to secure and manage CBR’s assets. [16]. No other person has sought appointment as CBR’s administrator. [17]. The Tribunal made the following findings about the appropriateness of the current appointee: The Public Trustee has made appropriate decisions to secure and maintain CBR’s assets arising from the damages award made in 2004. The ongoing plan and strategy has been approved. 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 CBR until further order of the Tribunal to make decisions about managing the award of damages recovered under the order of the Supreme Court of Queensland on 4 October 2004. [20]. The administrator must within 28 days conduct a search of the records held by the Registrar of Titles for any interest in land registered in the name of the adult and lodge with the Registrar of Titles a copy of the interim order. The administrator must then give written notice to the Tribunal of the adult’s interest in land together with written evidence showing lodgement of the order in the records held by the Registrar of Titles. [21]. The administrator must lodge accounts with the Tribunal when requested. -- 4 of 4 --