DJP [2009] QCAT 24

1 CITATION: DJP [2009] QCAT 24 PARTIES: DJP APPLICATION NUMBER: GAA7764-09 MATTER TYPE: Guardianship and administration matters HEARING DATE: 10 December 2009 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 10 December 2009 DELIVERED AT: Brisbane ORDERS MADE: Continuation of appointment of guardian CATCHWORDS: Review of appointment of guardian – section 31 Guardianship and Administration Act 2000 – need for guardian APPEARANCES and REPRESENTATION (if any): Hearing on the papers in the absence of parties -- 1 of 4 -- 2 REASONS FOR DECISION [1]. On 11 December 2007 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for DJP (the adult). From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. [2]. The appointment is being reviewed today on the basis of information on the Tribunal file. On 18 November 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]. DJP is 56 years old and resides with co-tenants in accommodation in Toowoomba. He has been supported by the Endeavour Foundation since 1971. [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 the adult has capacity for decision-making about his/her matters. [7]. 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. [8]. The Tribunal considered the following evidence about capacity: A psychologist reported on 1 April 2007 that he had assessed DJP as having a full scale IQ of 54 which is considered to establish a moderate intellectual impairment. DJP’s doctor reported on 22 August 2007 that DJP had had a CVA some time previously and he was of the opinion that -- 2 of 4 -- 3 DJP was unable to make any complex decisions. DJP had been assessed in 1969 as having an intellectual disability and has been supported by Endeavour Foundation since 1971. [9]. The Tribunal made findings of fact about capacity as follows: DJP has a moderate intellectual disability. He has relied on service providers for support in many areas of daily life and decision making since 1971. [10]. The Tribunal finds that the evidence established that the adult cannot understand the nature and effect of decisions about the matter CONCLUSION [11]. The Tribunal determines that the adult does not have capacity to make decisions about the matter IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN [12]. The evidence in the file is that: there is a history of conflict between DJP and his sister who had wanted him to relocate away from Toowoomba. Endeavour Foundation provides support for 2 hours per day from Monday to Friday. DJP has some supported community access. There have been recurrent problems with contact between DJP and his sister. DJP has some health concerns that will need consents for treatment in the future. [13]. Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to the matter, and without an appointment the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED? [14]. The Tribunal considered the following evidence about the ongoing competence of the current guardian: The Adult Guardian has consulted appropriately before making decisions for DJP. The re-appointment of the Adult Guardian is supported by DJP, his sister and service providers who work with DJP. [15]. The Tribunal considered the following evidence about whether another person is more appropriate for appointment: no other person has sought appointment as guardian for DJP. [16]. The Tribunal made the following findings about the appropriateness of the current appointee: No family member has sought appointment. The Adult Guardian has acted competently and has the support of DJP and his support network. -- 3 of 4 -- 4 CONCLUSION [17]. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the adult’s needs. The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as administrator in this case. APPOINTMENT [18]. The appointment of the Adult Guardian is continued as guardian for DJP one year to make decisions about the following personal matters: • accommodation decisions, • contact decisions, • health care decisions, and • provision of services [19]. The appointment of the guardian has been made for a short period as the Tribunal noted that the conflict which had existed between DJP and his sister had resolved to some degree since the last hearing in 2007. In the expectation that relations will continue to improve, the Tribunal considers that it is appropriate to review the need for a guardian in a year’s time at an oral hearing when DJP and all persons interested in him could have an opportunity to be heard about the ongoing need for a guardian. -- 4 of 4 --