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BCC [2021] QCAT 123

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Date: 9 April 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Pennell
Human Rights Act 2019 (Qld) Sections: ss 3, 11, 13 
Rights Considered: N/A
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 6, 11B, 12, 14, 16
Keywords: Health, Mental Health, Guardianship 

This matter concerned an application to appoint a guardian and administrator for BCC because of capacity and mental health concerns. The Tribunal noted that section 13(2)(d) of the Human Rights Act 2019 (Qld) was engaged when considering the need to appoint a decision-maker once the presumption of capacity had been rebutted.

An application for the appointment of a guardian and administrator for BCC was made by the rehabilitation unit that had previously provided BCC with inpatient care. They had identified him as being financially vulnerable and lacking the ability to responsibly manage his finances: at [5]. At the hearing, the applicant’s sister appeared and advocated that she should be considered for the roles: at [8]. BCC’s independent advocate, Ms Hansen, questioned BCC’s sister’s appropriateness: at [17], [21]-[22]. The Tribunal found that those concerns were not supported by the evidence: at [23].

The Tribunal noted that the principle that all adults share the same human rights and fundamental freedoms required that BCC should not be treated as being unable to make his own decisions, and that all practicable steps be taken to provide him with the support and necessary information for him to make and communicate a decision: at [41]. The Tribunal also noted that it had to consider whether there was a ‘less restrictive and reasonably available way’ to achieve their purpose when deciding whether to appoint a decision maker, in accordance with section 13(2)(d) of the Human Rights Act 2019 (Qld): at [43]. The Tribunal did not cite any relevant human rights from the Human Rights Act 2019 (Qld). However, the General Principles in section 11B of the Guardianship and Administration Act 2000 (Qld) were highlighted, particularly BCC’s right to participate in decisions affecting him, and the presumption that BCC’s views, wishes and preferences would be sought before any appointed decision-maker exercised their power: at [43]-[44].

The Tribunal was satisfied that there was a need for the appointment of a guardian and administrator for particular types of decisions and financial matters: at [62].

Orders were made appointing BCC’s sister as both administrator for BCC’s interest held in real estate and guardian for the provision of services, including decisions relating to the NDIS, with a review scheduled after one year: at [62]-[64].

LINK: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/123/pdf