WME

[2010] QCAT 602

CITATION: WME [2010] QCAT 602

PARTIES: WME

APPLICATION NUMBER:   GAA2211-10 GAA2212-10

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 place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 18 March 2010 WS lodged in the tribunal applications for the appointment of a guardian and administrator for WME.  The applications were not accompanied by information about WME’s capacity to make decisions.

2. On 22 March 2010 a staff member in the tribunal registry wrote a letter to WS informing her that a report from a health professional about WME’s decision making capacity would be required.  On 7 April 2010 a letter from WS was received which indicated that a report had been requested from WME’s doctor and that the report would be sent directly to the tribunal when it was completed.

3. As no report from a health professional about WME’s capacity had been received by the tribunal, on 28 June 2010 another letter was sent to WS informing her that her applications would not proceed further unless a report from a health professional was received about WME’s decision making capacity.  No response was received and no report from a health professional was lodged with the tribunal.

4. On 19 August 2010 a letter was sent to WS informing her that the applications would not proceed unless information about WME’s decision making capacity was given to the tribunal.  No response was received to this letter and no evidence from a health professional has been received about WME’s decision making capacity. 

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.   Before the tribunal can appoint a decision maker for WME, 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 form the basis of a determination by the tribunal about WME’s decision making capacity.  WS has not provided 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 tribunal considers that the applications lodged by WS are lacking in substance and must be dismissed.