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MW v The Public Trustee of Queensland[2015] QCATA 25

MW v The Public Trustee of Queensland[2015] QCATA 25

CITATION:

MW v The Public Trustee of Queensland [2015] QCATA 25

PARTIES:

MW

(Appellant)

v

The Public Trustee of Queensland

(Respondent)

APPLICATION NUMBER:

APL166-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Endicott

Member Goodman

DELIVERED ON:

20 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

APPEAL – GUARDIANSHIP – where appointment made of an administrator for all financial matters for adult determined to have impaired decision-making capacity – where the adult disputed the grounds for that appointment

LEAVE TO APPEAL – where no contention of an error of law – where appeal sought on question of mixed law and fact – where no error identified in the decision – whether there was any ground for leave to appeal

Guardianship and Administration Act 2000 (Qld) s 12 and Schedules 1 and 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Re TG [2011] QCATA 97

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 14 March 2014 QCAT appointed The Public Trustee of Queensland as MW’s administrator. MW disagrees with the decision and she seeks to appeal the decision. She submits that she has the capacity to make her own financial decisions and the PTQ should not have been appointed as her administrator.
  2. [2]
    MW submits in her application for leave to appeal that:
    1. a)
      She firmly believes that good communication skills can resolve any issues in life. She has studied and completed a module in communication skills at college;
    2. b)
      She is a good listener and can comprehend everything that is said to her;
    3. c)
      She is not a gambler, alcoholic or drug user and always pays her bills. She has never obtained a credit card;
    4. d)
      She does not have dementia and has all of her faculties;
    5. e)
      Her relatives are against the appointment;
    6. f)
      The appointment is unfair and unnecessary. She is living with her husband and they would like to manage their own finances as they have done for 25 years. 
  3. [3]
    MW provided fresh evidence with her application for leave to appeal.  The evidence does not relate to any purported error made by the learned tribunal member and does not deal with any question relevant to an appeal.  The Appeal Tribunal does not consider that leave should be granted for MW to rely on the fresh evidence in this application for leave to appeal.  
  4. [4]
    QCAT is only able to appoint an administrator in very limited circumstances.[1] The Tribunal must be satisfied that:
    1. a)
      MW does not have capacity to make financial decisions, and
    2. b)
      There is a need for a decision in relation to the management of MW’s finances, or she is likely to do something that involves, or is likely to involve, unreasonable risk to her health, welfare or property, and
    3. c)
      Without an appointment her needs will not be adequately met or her interest will not be adequately protected. 
  5. [5]
    MW is presumed to have capacity for financial matters.[2] That presumption must be rebutted before an administrator is appointed.
  6. [6]
    The Appeal Tribunal was provided with a transcript of the hearing on 14 March 2014, and with the written evidence relied on by the Tribunal at the hearing. It is noted:
      1. a)
        The Tribunal had evidence that MW was diagnosed with schizophrenia and was hospitalised under an Involuntary Treatment Order. Discharge was subject to finding suitable accommodation.
      2. b)
        Treating medical staff provided evidence that MW lacked insight into her medical condition and had a history of becoming noncompliant with her medication unless closely supervised. It was her doctor’s view that MW could not understand and make her own decisions about her financial affairs.
      3. c)
        MW was separated from her husband but no steps had been taken towards property settlement. 
      4. d)
        MW provided oral evidence that she had always been financially responsible and had run the financial side of a business for 15 years, and had managed household expenses.
      5. e)
        MW owed $2,232 rent at the hospital. She stated that she had $2,000 in savings and denied experiencing financial difficulties.
      6. f)
        Hospital staff provided evidence that MW was difficult to engage with and refused advice regarding her finances, despite experiencing financial difficulties. It had taken some months for MW to accept assistance to apply for a disability support pension and had remained in receipt of NewStart Allowance during that time, reducing her income.
      7. g)
        The Tribunal found:
      1. i)
        MW’s responses to questions were tangential, and she did not accept any limitations in her functioning;
      2. ii)
        MW had poor insight into her condition which was likely to lead her to be vulnerable to exploitation.
      3. iii)
        MW had poor planning abilities and would not necessarily be aware of the consequences of decision that she makes.
      4. iv)
        The presumption that MW had capacity for financial matters was rebutted.
      5. v)
        There was a need for decisions about financial matters and without an appointment MW’s need would not be adequately met and her interests not adequately protected.
      6. vi)
        It was necessary to appoint the Public Trustee of Queensland as administrator. 
  7. [7]
    Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought.[3]
  8. [8]
    No error of law is identified or suggested in MW’s submissions. The Appeal Tribunal is unable to identify an error of law. Therefore consideration of the appeal will only proceed if leave to appeal is granted.
  9. [9]
    In deciding whether to grant leave to appeal, the Appeal Tribunal must consider[4]:
    1. a)
      Is there a reasonably arguable case of error in the original decision?
    2. b)
      Is there a reasonable prospect that the applicant will be successful in an appeal?
    3. c)
      Is leave necessary to correct a substantial injustice to the applicant caused by some error?
    4. d)
      Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?
  10. [10]
    The Appeal Tribunal’s focus is on the decision of the Tribunal of 14 March 2014. The question of whether leave to appeal should be granted about that decision is considered in the context of the evidence available to the Tribunal at the time of the original hearing.  MW has not pointed to any particular error in the reasoning of the Tribunal in making findings based on that evidence.  She disagrees with the outcome but that does not mean that the factual findings by the Tribunal were wrong or that the final decision was wrong.
  11. [11]
    The Appeal Tribunal is unable to identify any error in the Tribunal decision. The decision is well reasoned and the relevant law has been properly applied to the evidence produced to the Tribunal. The decision is reasonable and based on the evidence presented to the Tribunal.
  12. [12]
    There is no identified error in the Tribunal’s decision. There is no reasonable prospect an appeal would be successful. There is no question of importance about which a decision of the Appeal Tribunal would be of public advantage.
  13. [13]
    There is no basis on which leave to appeal is warranted. Leave to appeal is therefore refused.   
  14. [14]
    MW states that she, her mother and her doctor all believe that she is very capable of making all financial decisions. If MW’s treating doctor now believes that she does have the capacity to make financial decisions, the Tribunal can consider making a declaration about MW’s decision-making capacity if MW lodges an application and provides medical evidence supporting her capacity for decision-making.

Footnotes

[1] Guardianship and Administration Act 2000 (Qld) s 12.

[2]  Ibid in Schedule 1, Part 1 and Schedule 2 Part 1.

[3]  QCAT Act s 142.

[4] Re TG [2011] QCATA 97.

Close

Editorial Notes

  • Published Case Name:

    MW v The Public Trustee of Queensland

  • Shortened Case Name:

    MW v The Public Trustee of Queensland

  • MNC:

    [2015] QCATA 25

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Endicott

  • Date:

    20 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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