The Taylor Street Community Legal Service has recently assisted a client to overcome a decision made by QCAT that suspended his decision-making rights despite having decision-making capacity.
The client is a 41 year old married man. He and his wife have been together for 4 ½ years and married for 2 ½ years.
The client has Aspergers Syndrome and at times has suffered depression, stress and anxiety. He is on a disability pension.
In the past, the client’s finances and, to some extent his life, have been controlled by his mother and father.
In about mid 2017 the client received a payout of a considerable sum from a superannuation policy. At the time his mother was accusing his wife of taking financial advantage of him and in order to avoid further deterioration of the family relationships, the client and his wife agreed to the mother’s ‘suggestion’ that they place the funds received in the control of his mother and father.
The funds were used to purchase a property in the names of the client and his wife. There was a balance remaining which the client wished to utilise for repairs of the roof of the property. The parents refused to release the balance. The Taylor Street Community Legal Service then became involved, and wrote to the parents requesting a release of the funds to the client.
By this time, the relationship between the parents and the client and his wife had totally broken down.
The response to the letter was an application to QCAT for interim and final orders appointing the mother as administrator and the mother and father as guardians for the client. A further application for a Declaration about Capacity was also filed.
The applications were filed on the 1/11/17 and on 3/11/17 the interim application was determined on the papers and without notification to any party.
The law presumes capacity. Despite there being very limited medical evidence (mainly relating to the client’s application for a Disability Pension) and there being no report by a medical or related health professional as to lack of capacity, orders were made appointing the Public Trustee as administrator and the Public Guardian as guardian.
Subsequently, the Tribunal sought and received a report from a Consultant Psychiatrist who had been the client’s treating psychiatrist for over 3 years. The report was unequivocal and says in short, ‘He therefore meets the clinical criteria for capacity’.
A further hearing was scheduled for 23/1/18. A Notice of hearing was given to all parties. However, the parties were not required to attend and in fact it was impossible to attend as no time or place was given for the hearing.
Notwithstanding the psychiatrist’s report, the Tribunal proceeded to hear the Applications for Appointment of Guardian and Appointment of Administrator and made further orders confirming the appointment of the Public Trustee and the Public Guardian, each for a period of 2 months. It is unclear whether these were intended to be further interim orders or final orders for a very short period.
Significantly, there was no reference to and no consideration of the Application for a Declaration about Capacity.
A request was made for the reasons for this decision, but was only complied with after the final hearing.
Meanwhile this service wrote to the president of QCAT pointing out the gross miscarriage of justice that had occurred and which resulted in the client being denied his Human Rights. More than a month later no acknowledgement or response has been received.
The matter again came before the Tribunal on 26th March 2018 and finally, reason prevailed.
The Taylor Street Community Legal Service appeared on behalf of the client.
With little urging, the Tribunal acknowledged that the Application for a Declaration about Capacity needed to be determined at the outset.
After a thorough review of the material and after speaking at length to the client, the Tribunal reached the inescapable conclusion that he had capacity and discharged all previous orders.
The result of this process has been that the client’s finances have been under the control of the Public Trustee for almost 5 months unnecessarily. Potentially the Public Guardian could have interfered with all other personal/health aspects of his life. Fortunately they did not.
The client is relieved to have his Human Rights restored but has unnecessarily endured significant trauma in the interim as a result of the QCAT process and decisions.