QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	JPN [2024] QCAT 261	
PARTIES:	In applications about matters concerning JPN	
APPLICATION NO/S:	GAA7489-23; GAA10517-23	
MATTER TYPE:	Guardianship and administration matters for adults	
DELIVERED ON:	18 June 2024	
HEARING DATE:	15 May 2024	
HEARD AT:	Brisbane 	
DECISION OF:	Member Casey	
DECISIONS:	1.	The application by XYT for leave to withdraw as guardian for JPN is dismissed. 
2.	The guardianship order made by the Tribunal on 20 April 2021 is changed by removing XYT as guardian and appointing the Public Guardian as guardian for JPN for the following personal matter:
(a)	the legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015. 
3.	This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.	
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP – where the Tribunal is satisfied the presumption of capacity is rebutted – where need for the appointment of a guardian 
Guardianship & Administration Act 2000 (Qld), Schedule 4, s 7, s 11, s 12, s 14, s 15, s 27, s 31
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
Human Rights Act 2019 (Qld), s 13, s 15, s 25, s 48	
APPEARANCES &
REPRESENTATION:		
Adult:	JPN (by telephone)	
Applicant/s:	XYT, wife (by telephone)	
REASONS FOR DECISION
[1]	JPN (‘the adult’) is 44 years of age.  
[2]	On 16 April 2020 the Tribunal appointed XYT, the adult’s wife, as guardian for the adult for a legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015. The appointment was to remain current until further order of the Tribunal. The appointment was reviewable and was to be reviewed in twelve (12) months. On the same day the Tribunal dismissed an application by XYT for the appointment of an administrator for JPN.
[3]	In a further decision of the Tribunal on 20 April 2021 the Tribunal continued the appointment of XYT as guardian for the adult for the same personal matter. The appointment was to remain current until further order of the Tribunal. The appointment was reviewable and was to be reviewed in two (2) years.
[4]	On 4 September 2023 the Tribunal received an application from XYT seeking leave to withdraw as guardian for the adult.
[5]	The Tribunal heard the application of XYT and conducted a periodic review of the appointment of the guardian on 15 May 2024.
The Legislation 
[6]	The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship & Administration Act 2000 (Qld) (‘GAA’) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian for the adult.
[7]	JPN is presumed to have capacity for personal matters. 
[8]	The GAA defines capacity as follows:
Capacity for a person for a matter, means the person is capable of - 
(a)	understanding the nature and effect of decisions about a matter; and
(b)	freely and voluntarily making decisions about the matter; and
(c)	communicating the decisions in some way.
[9]	The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
[10]	The Tribunal, when considering the appointment of a guardian, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.
[11]	The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing a guardian. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA. The Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
[12]	When conducting a review of an appointment of a guardian or administrator, 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 only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.
[13]	Section 27 of the GAA provides that if the Tribunal gives leave for a guardian to withdraw for a matter the Tribunal may appoint someone else to replace the withdrawing person as guardian for that matter.
[14]	Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’) provides that the Tribunal may dismiss a proceeding or part of a proceeding if the Tribunal considers the proceeding or part of a proceeding to be lacking in substance.
Does the adult have capacity to make personal decisions?
The evidence
[15]	The following information was included within a letter dated 11 October 2019 to the Supreme Court of Queensland, by Dr Joseph Mathew, forensic psychiatrist:
(a)	JPN fell from a roof on 2 May 2015 which caused a traumatic injury of moderate severity and an adjustment disorder with anxious and depressed mood;
(b)	the traumatic brain injury resulted in significant cognitive and functional deficits and a psychotic disorder;
(c)	the cognitive and functional deficits that were sustained by JPN included difficulties with memory (particularly short term), sequencing and the completion of simple daily tasks, along with an inability to manage his finances independently;
(d)	JPN was assessed as not having the capacity to sufficiently understand the personal injury claim or understand the meaning of a potential settlement to his claim;
(e)	JPN did not have the capacity to instruct his solicitors in relation to his personal injury claim.
[16]	In a further letter dated 21 August 2023 to the Supreme Court of Queensland, Dr Joseph Mathew, forensic psychiatrist, provided his opinion in relation to the sole matter of the adult’s current capacity to instruct his solicitors in the personal injury claim. In the letter Dr Mathew stated that, as a result of JPN’s ongoing cognitive deficits, the adult is deprived of the capacity to instruct his solicitors in the matter of his personal injury claim. Dr Mathew provided the opinion that it is more probable than not that JPN was deprived of the capacity to instruct solicitors from the date of the 2015 fall and this persisted up to his assessment in October 2019. Dr Mathew provided a list of factors he defined as a ‘psychiatric perspective’ which the ‘Decision Maker’ could consider when determining this matter. They are outlined below.
(a)	JPN understands that he has deficits and is agreeable with the idea of delegating responsibility for these matters;
(b)	The ‘Decision Maker’ could continue to involve a litigation guardian;
(c)	Consideration could be undertaken to giving the adult’s mother a major role in decision making as the adult trusts his mother and believes that she is capable of performing this role and has his interests at heart;
(d)	Strong consideration should be given to excluding the adult’s wife from participating in legal decisions. At this time there are possible risks in involving the adult’s wife. The adult disclosed that he has been relying on his mother because he is concerned that his marriage is failing. A decision regarding the possible involvement of a family law solicitor is a matter for the adult’s solicitors and/or the Decision Maker.
[17]	In oral evidence to the Tribunal JPN submitted that he does not understand his personal injury claim and that he experiences memory difficulties at times.
Determination 
[18]	The medical evidence establishes that JPN experiences persistent cognitive deficits that preclude him from: sufficiently understanding the personal injury claim; understanding the meaning of a potential settlement to his claim; and instructing his solicitor in the matter of his personal injury claim.  
[19]	Upon consideration of the evidence, the Tribunal is not satisfied that JPN understands the nature and effect of decisions pertaining to the legal matter involving his claim for compensation for personal injuries suffered on or about 2 May 2015. 
[20]	Accordingly, the Tribunal rebuts the presumption of capacity for JPN for the legal matter of his personal injury claim.
Is there a need for the appointment of a guardian for the adult? 
The evidence
[21]	XYT told the Tribunal that the adult’s personal injury claim is ongoing. In her submissions XYT stated that a single day of mediation had already taken place and that a date for mediation to resume was set down for late 2024. XYT stated that she had been advised by JPN’s solicitor that, should mediation be unsuccessful, the matter would not likely be finalised for a further twelve (12) months.
Determination
[22]	The undisputed evidence is that JPN has an ongoing legal matter involving his claim for compensation for personal injuries suffered on or about 2 May 2015, against a background of the adult’s treating psychiatrist’s consistently expressed view that the adult does not have the requisite capacity to instruct his lawyer in the matter of his personal injury claim.
[23]	Pursuant to section 12 of the GAA, the evidence establishes that there remains a need for the appointment of a guardian for JPN in relation to the legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015.
Should the Tribunal grant the guardian leave to withdraw?
Evidence
[24]	In her application to the Tribunal dated 2 September 2023, XYT stated that she sought the Tribunal’s leave to withdraw as guardian for JPN due to her own personal medical conditions. XYT wrote that she and JPN had separated and that JPN, who had relocated to the home of his mother, was in support of her application to withdraw. 
[25]	Further to her written application, XYT expressed a view to a registry officer of the Tribunal on 4 September 2023 that it was her understanding that the adult’s mother may apply for appointment as guardian for JPN.
[26]	At the hearing, in contrast to her application, XYT submitted that she sought the continuation of her appointment as guardian for JPN for the legal matter pertaining to his claim for compensation for personal injuries. XYT stated that she and JPN remained separated, but were considering reuniting at a time in the future. She stated that she continued to provide care and support to JPN, who remained domiciled in the home of his mother.  
[27]	At the hearing, the adult submitted that he supported a continuation of the guardian’s appointment for the legal matter.
Determination
[28]	As a consequence of the oral submissions of the applicant/guardian and the adult, the Tribunal dismisses the application of the guardian for leave to withdraw, as the matter is determined to be lacking in substance.  
[29]	The Tribunal continued the hearing by undertaking the periodic review of the guardian to determine whether XYT remained competent as guardian for the adult or if someone else was more appropriate for appointment.
Is the current guardian no longer competent or is someone else more appropriate for appointment?
Evidence
[30]	In her guardian’s report to the Tribunal dated 12 April 2024, XYT wrote that in the period under review she had supported the adult in attending legal appointments and that she had engaged in legal correspondence with lawyers, including providing all requested documentation. XYT wrote that, despite their separation, she had visited the adult five (5) days per week and had daily contact with him via phone calls, text, social media or email. The guardian stated that she had experienced difficulties with her communication with JPN in relation to the legal matter and that such included disagreements or misunderstandings. XYT wrote that she had chronic and personal medical conditions which prevented her from fully attending to matters and coping with the adult who had demonstrated agitation, frustration, outbursts of anger, anxiety and depression. The guardian stated that the difficulties in performing her duties as guardian included the requirement to prioritise her time due to immediate and extended family issues.
[31]	The guardian’s report included that XYT sought to continue her roles as carer and support person for JPN. XYT wrote that the adult may require support for future decisions pertaining to service provision (including in relation to the National Disability Insurance Scheme) and health care. XYT submitted that the adult’s mother has inconsistently assisted the adult ‘with communication while decision making’ however there had been no communication with the adult’s mother since a ‘family separation and misunderstanding’. XYT wrote that her uncle helps ‘guide’ the adult, as he regularly spends time with JPN and accompanies him on annual camping trips.
[32]	In her oral evidence to the Tribunal, XYT confirmed that she continues to provide care to JPN and has contact with him 5-7 days per week. She stated that she and JPN are ‘looking at reconciling in a year’s time’.
[33]	XYT submitted that she has reservations about her appropriateness to continue as guardian for the adult for two reasons: 
(a)	the opinion of Dr Mathew as stated in his letter to the Supreme Court of Queensland dated 21 August 2023 that, due to possible risks to JPN, strong consideration should be given by the ‘Decision Maker’ to excluding XYT from participating in legal decisions for JPN in the context of marital disharmony; and
(b)	JPN is the respondent and XYT is the aggrieved in a current domestic violence order following an application submitted by the Queensland Police Service.
[34]	XYT told the Tribunal that she and JPN have ‘been struggling to find someone else’ to seek appointment as guardian for the adult for his personal injury claim. XYT said that she and JPN had contemplated supporting their adult son in applying, but decided against such action due to the mental health and full-time work commitments of their son.
[35]	XYT submitted that the adult’s mother is not seeking to be appointed as guardian for the adult in his personal injury claim.
Determination
[36]	The Tribunal accepts the evidence of XYT that she has been formally supporting the adult with decision making in relation to his personal injury claim. Such decisions have been made in the context of a change in the nature of the relationship between XYT and JPN. XYT has submitted that she has experienced difficulty coping with JPN’s behaviours and emotions including anxiety, depression, agitation, frustration and outbursts of anger. In the period under review JPN and XYT have entered a marital separation and, according to oral evidence obtained at the hearing, a domestic violence order has been instigated by the Queensland Police Service whereby XYT is the aggrieved and JPN is the respondent. XYT has provided evidence that she has her own reservations about continuing as guardian for JPN and that she and the adult had been unsuccessful in identifying an alternative family member to apply for appointment.
[37]	In these circumstances, and with consideration given to written evidence of the adult’s psychiatrist, Dr Mathew, in relation to the risks posed to the adult should XYT continue as his guardian for the legal matter, the Tribunal is not satisfied that XYT would be able to discharge effective decision-making for the adult in a way that would be consistent with the general principles. As such, the Tribunal is not satisfied that XYT remains competent as guardian for the adult.
[38]	The Tribunal considered whether there was any other person who was more appropriate for appointment as guardian for the adult for his legal matter. The Tribunal accepts that JPN receives support from his mother, with whom he resides, and the uncle of XYT. However, neither individual submitted an application to be considered for appointment or attended the hearing. As such, there is no evidence before the Tribunal that either of these two support persons is seeking formal appointment as a guardian for the adult. 
[39]	The evidence establishes there is no other appropriate person available for appointment for the matter.  
[40]	The Tribunal therefore determines that the only option for appointment as guardian for the matter is the Public Guardian. The Public Guardian, as an independent and experienced guardian, would be able to consult with all parties and make decisions in accordance with the general principles. 
[41]	Accordingly, the Tribunal appoints the Public Guardian as guardian for JPN for the legal matter involving the claim for compensation for personal injuries suffered on or about 2 May 2015. The appointment of the guardian is to remain in place until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two years.  
[42]	The Tribunal gave consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. JPN’s rights to recognition and equality before the law and privacy are likely engaged and limited by the guardianship appointment. Taking into account the findings above in relation to the criteria set out in the GAA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA.