MDR

[2011] QCAT 2

CITATION: MDR [2011] QCAT 2

PARTIES: MDR

APPLICATION NUMBER:   GAA7359-10 GAA7360-10

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE:     4 January 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 4 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Applications for appointment of a guardian and administrator are dismissed

CATCHWORDS :  GUARDIANSHIP AND ADMINISTRATION – presumption of capacity not rebutted - section 47 of the Queensland Civil and Administrative Tribunal Act 2009 – early end to proceedings – applications lack substance

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 14 September 2010 MI lodged in the tribunal an application for the appointment of a guardian and an administrator for MDR.  The applicant did not lodge evidence from a health professional about the decision making capacity of MDR. 

2. On 16 September 2010 a staff member from the tribunal registry wrote to a Medical Centre requesting a report about the decision making capacity of MDR.  On 27 September 2010 the tribunal received a report from that Medical Centre which did not state that MDR had any relevant impairment of his decision making capacity.  

3. By letter dated 11 November 2010 a staff member from the tribunal registry informed the applicant that unless she could provide evidence that MDR had impaired decision making capacity, her application would be considered for dismissal. 

4. By letter dated 22 November 2010 the applicant stated that she was unable to provide any further evidence about the decision making capacity of MDR.   On 9 December 2010 a staff member from the tribunal registry wrote to the applicant to inform her that her application would be considered for dismissal unless evidence of impaired decision making capacity was provided to the tribunal.   No further information about the decision making capacity of MDR has been provided to the tribunal.

5. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions.   In order for the tribunal to appoint a decision maker for an adult, the tribunal must be satisfied that the presumption of capacity has been rebutted by evidence satisfactory to the tribunal. 

6. No evidence has been received that can satisfactorily form the basis of a determination by the tribunal about the decision making capacity of MDR. The applicant has failed to provide evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so.

7. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 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 applications lodged by MI are lacking in substance as the presumption of capacity has not been rebutted and the applications must be dismissed.