WJS

[2010] QCAT 603

CITATION: WJS [2010] QCAT 603

PARTIES: WJS

APPLICATION NUMBER:   GAA1900-10 GAA1901-10

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE:     19 November 2010

HEARD AT:  Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 19 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Applications for appointment of guardian and administrator 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 pace on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 9 March 2010 JLH lodged an application with the tribunal seeking the appointment of a guardian and administrator for WJS. The application was not accompanied by information about WJS’s capacity to make decisions.

2. On 19 March 2010 a staff member in the tribunal registry wrote a letter to JLH informing her that a report from a health professional about WJS’s decision making capacity would be required.  As no response was received from JLH, a further letter was written to her on 18 May 2010 informing her that her applications would not proceed further unless a report from a health professional was received about WJS’s decision making capacity.

3. As no response was received to this second letter, a further letter on 19 August 2010 was sent to JLH informing her that her applications may be dismissed unless information abut WJS’s capacity for decision making was lodged with the tribunal.  No response has been received from JLH.

4. 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.   Before the tribunal can appoint a decision maker for WJS, the tribunal must be satisfied that the presumption of capacity has been rebutted by evidence satisfactory to the Tribunal. 

5. No evidence has been received that can form the basis of a determination by the tribunal about WJS’s decision making capacity.  JLH has not provided any evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so.

6. 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 tribunal considers that the applications lodged by JLH are lacking in substance and must be dismissed.