Core Principles Preparation for Guardianship and Administration - PDF document

Murphy Schmidt Murphy Schmidt solicitors solicitors Core Principles Preparation for Guardianship and Administration Tribunal Hearings • Capacity • Interests • Need Matthew Holmes Senior Associate MurphySchmidt Solicitors Accredited Specialist, Personal Injuries Murphy Schmidt Murphy Schmidt solicitors solicitors Understand the relevant law Understand the relevant law • Essential: Intimate knowledge of: • Guardianship and Administration Act 2000 • s5 – Acknowledgement • Powers of Attorney Act 1998 • s6 – Purpose to achieve balance • Public Trustee 1978 • s7 – Way purpose achieved • s11 – Principles for adults with impaired capacity • To some extent: • s12 - Appointment • Mental Health Act 1974 (repealed) and 2000 • Schedule 1 – Principles • Intellectually Disabled Citizens Act 1985 (repealed) • Schedule 2 – Types of Matters Murphy Schmidt Murphy Schmidt solicitors solicitors Taking Instructions Taking Instructions Sources of Collateral information include: • Regular Inspection of the Tribunals File • Family members • Presidential Direction 1 of 2005 • Care providers • Health and allied health professionals (see www.justice.qld.gov.au/guardian/gaat.htm) • Accountants • Financial planners • Financial institutions • Government agencies eg. Centrelink, Hospitals, Veteran's Affairs, Disability Services Queensland, ACAT. 1

Murphy Schmidt Murphy Schmidt solicitors solicitors Taking Instructions Apply for leave to represent party • Carefully scrutinise formal instruments for • s.124 Guardianship and Administration validity Act 2000 Murphy Schmidt Murphy Schmidt solicitors solicitors Assess the Adult’s Capacity Assess the Adult’s Capacity Medical Reports: • Presumption of capacity • Treating practitioners; • Substantial task to disprove • Geriatrician; • Rehabilitation Physician; • Neurologist; • Psychiatrists; • Neuropsychologists; • Occupational Therapists. Murphy Schmidt Murphy Schmidt solicitors solicitors Assess the Adult’s Capacity Is there a need? • Whether the adult’s health, welfare or property is Test = Whether the adult: at risk if an appointment is not made; • Has an understanding of the nature and effect of the matter; Consider other informal means of support: • Is capable of freely and voluntarily making • The family members; a decision; and • Social welfare and care organisations; • Adaptive equipment; • Can communicate that decision in some • Modification of their living environment. way. 2

Murphy Schmidt Murphy Schmidt solicitors solicitors Is the person/body seeking Written Submissions appointment appropriate? • s15 Guardianship and Administration Act • Presidential Direction 2 of 2002 2000 • Presidential Direction 2 of 2002 Consider: • I.R.A.C (Issues, Relevant Principles, Application, Conclusion) • Format of Tribunal Decisions (AustLII) Murphy Schmidt solicitors Summary 1. Understand Relevant Law 2. Instructions 3. Leave 4. Capacity 5. Need 6. Appropriateness 7. Submissions 3