CJI [2012] QCAT 200

CITATION: CJI [2012] QCAT 200 PARTIES: CJI APPLICATION NUMBER: GAA2895-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 14 May 2012 DELIVERED AT: Brisbane ORDERS MADE: The application for the appointment of an administrator is dismissed. CATCHWORDS: GUARDIANSHIP – attorney seeking appointment of an administrator for legal matters – where no evidence to rebut the presumption of capacity – where lawyer has accepted instructions to act for adult in legal dispute – where no substance to application Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] CJI appointed his brother CR to be his attorney under an Enduring Power of Attorney for personal, health and financial matters dated 12 December 2006. CR has commenced legal proceedings against a company in which CJI is the sole director. CR has applied to QCAT seeking the appointment of The Public Trustee of Queensland as administrator for CJI to make decisions about legal matters, in particular the litigation in which the brothers are involved. -- 1 of 3 -- 2 [2] The applicant did not provide any information from a medical professional about the capacity of CJI to make his own decisions about legal matters. In his application CR stated that CJI has been diagnosed with schizophrenia with paranoid delusions. [3] CR applied to the court for summary judgement on the basis that the defence filed on behalf of the respondent company by CJI was defective and did not disclose any reasonable prospect of successfully defending the claim. The court adjourned the hearing of the summary judgement application and made directions that the solicitor for CR contact the Adult Guardian or The Public Trustee with details of the claim. [4] The solicitor for CR informed the registry staff of the tribunal that CJI was being treated by a Mental Health Unit at a regional hospital but the treating doctor had refused to provide a medical report for use in the application. [5] The registry staff at the tribunal made enquiries with the relevant Community Mental Health Service to ask for some information about the decision making capacity of CJI. No report or information was able to be obtained from that Service. [6] On 20 April 2012 a member of the tribunal registry staff spoke to CJI. CJI told the staff member that he had instructed a lawyer to act in the litigation and that the lawyer had had no difficulties in accepting his instructions. CJI was able to describe what the dispute was over, the amount of money involved in the claim and what stage the proceeding had reached. He stated that the summary judgement application was to be opposed. [7] The registry staff member spoke to the lawyer instructed by CJI on behalf of the respondent company. The lawyer confirmed that he was acting for the respondent company and that he considered that he had no difficulty in accepting the instructions of CJI. [8] The registry staff member wrote to the solicitor for CR on 23 April 2012 with the information that it was the responsibility of the applicant in this proceeding at QCAT to provide evidence to rebut the presumption of capacity for decision making. The letter informed the solicitor for CR that unless information about capacity was provided to QCAT within 3 weeks, the application for the appointment of an administrator would be referred to the tribunal to be considered for dismissal under section 47 of the QCAT Act. [9] By letter dated 1 May 2012 the solicitor for CR confirmed that he had no means to obtain a medical report. He further stated that QCAT was on notice that the application has been made for valid reasons and that the file should not be closed. [10] Section 47 of the QCAT Act gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The exercise of this power to bring an early end to -- 2 of 3 -- 3 proceedings in an appropriate case is consistent with the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. [11] In this case, the tribunal gave the applicant an opportunity to set out reasons why the application should not be brought to an end under section 47 of the QCAT Act. The applicant has conceded that he cannot provide evidence that would be needed to rebut the presumption of capacity. On the other hand CJI and his solicitor both state that CJI has capacity to make decisions about the legal matters in which he is involved. The solicitor is already acting on CJI’s instructions to defend the claim brought against the company in which CJI is the sole director. [12] When considering an application for the appointment of a substituted decision maker under the Guardianship and Administration Act 2000, QCAT commences its task on the basis that an adult is presumed to have capacity to make decisions. Evidence can rebut that presumption but until the presumption is rebutted, the tribunal must proceed on the basis that an appointment of a substituted decision maker is not to be made. [13] The tribunal has the role of determining capacity of an adult for decision making. The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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. [14] A finding that an adult had capacity is not determined by a medical diagnosis but rather QCAT looks to the functional process involved in decision making. Even if the applicant’s statement was accurate that CJI had been diagnosed with schizophrenia with paranoid delusions, that fact in itself does not rebut the presumption that CJI can at the present time make his own decisions about legal matters. His mental illness may be adequately managed by medical treatment and it may not impact on his present ability to understand the nature and effect of decisions about legal matters or prevent him from making decisions freely and voluntarily about legal matters. [15] Even though the application may have been made for valid reasons as contended by the solicitor for CR, that does not mean that the application for the appointment of an administrator has substance. I am satisfied that the evidence before the tribunal does not rebut the presumption of capacity, and as a result the application lacks substance. Applying the objects set out in section 3(b) of the QCAT Act, the tribunal considers that it is appropriate to bring an early end to the proceedings and I dismiss the application under section 47 of that Act. -- 3 of 3 --