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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
WAR v The Public Trustee of Queensland and Ors  QCATA 27
THE PUBLIC TRUSTEE OF QUEENSLAND
THE PUBLIC GUARDIAN
GAA5841-18 Application for authorisation of a conflict transaction
GAA8946-18 Review of the appointment of an administrator
GAA8947-18 Review of the appointment of a guardian
GAA11141-18 Review of the appointment of an administrator
GAA11142-18 Review of the appointment of a guardian
24 February 2020
On the papers
Senior Member Guthrie
APPEAL AND NEW TRIAL–APPEAL–GENERAL PRINCIPLES– RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES– where applicant appealing appointment of the Public Guardian and the Public Trustee of Queensland – where the applicant was previously in a relationship with the adult – where the applicant was previously appointed as attorney for adult under an enduring power of attorney– where there had been a breakdown in the relationship between the applicant and the adult – where the Tribunal previously found that the applicant was not a spouse in a close and continuing relationship with the adult and not a person within any of the categories of the statutory health attorney scheme – where the Appeal Tribunal found that the learned member provided adequate reasons for the decision – where leave to appeal was refused – where the appeal was dismissed
Guardianship and Administration Act 2000 (Qld), s 14 (2), Schedule 1
Powers of Attorney Act 1998 (Qld), s 63, s 116, s 117
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 (3)(b)
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 QDR 388
Johnson v Johnson  HCA 48; (2000) 201 CLR 488.
McIver Bulk Liquid Haulage Pty Ltd Fruehauf Australia Pty Ltd  2 QdR 577
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford  QCATA 203
Official Solicitor to the Public Trustee of Queensland
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 28 September 2018, the Tribunal conducted reviews of the appointments of both a guardian and an administrator for RDJ. The learned member decided to continue the appointment of the Public Guardian as guardian for RDJ, for a reviewable period of three years for the following personal matters:
- (b)With whom RDJ has contact and/or visits.
- The learned member changed the previous administration order made by the Tribunal on 18 February 2018 by removing RJT as administrator and appointing the Public Trustee of Queensland (‘PTQ’) as administrator for RDJ for all financial matters.
- In addition to those orders, the learned member revoked the enduring power of attorney appointing the applicant as attorney for financial, personal and health matters, dismissed an application for authorisation of a conflict transaction and declared that WAR is no longer a spouse in a close and continuing relationship with RDJ and is not a person within any of the categories for a statutory health attorney for RDJ.
- On 1 November 2018, WAR applied for leave to appeal and to appeal those orders. In particular, WAR seeks that the decisions to appoint the Public Guardian as guardian, revoke the enduring power of attorney and the declaration be overturned.
- I have considered the submissions filed by the applicant and the PTQ together with the applicant’s application for leave to appeal and appeal and the supporting material filed with the application. In addition I have considered the transcript of the reasons delivered by the learned member at the conclusion of the hearing. I do not have the written transcript of the evidence in the hearing. The applicant was directed to file and serve the transcript but ultimately informed the Tribunal that she would not be complying with this direction. A direction then issued that the application for leave to appeal or appeal would proceed on the basis of the written submissions filed by the parties.
- The PTQ submits that the applicant’s submissions suggest claims of errors of mixed fact and law so that the applicant requires leave to appeal under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The PTQ submits that he is unaware of the foundations upon which the grounds of appeal are supported and the PTQ had not been provided with a transcript of the proceedings or evidence of error in the Tribunal’s decision making. On that basis, the PTQ submits leave should not be granted.
- The principles to be applied in determining whether to grant leave to appeal are:
- (a)Is there a reasonably arguable case of error in the primary decision;
- (b)Is there a reasonable prospect the applicant will obtain substantive relief;
- (c)Is leave necessary to correct a substantial injustice to the applicant caused by some error;
- (d)Is there a question of general importance upon which further argent and a decision of the appellate court or tribunal would be to the public advantage.
- WAR has filed a range of written material including statements, emails and other written documents which contain both evidence and what might be regarded as submissions. Much of the material is historical information from WAR’s perspective about her relationship with RDJ, his family members and events that occurred over the time leading up to the decision of the learned member. I cannot take into account any new evidence in determining the appeal. I do not have the transcript of the hearing so that I cannot know what evidence was given to the learned member and what was not. Further, there has been no application to adduce new evidence filed by the applicant.
- In the paragraphs that follow, I have attempted to summarise WAR’s material and identify the errors she claims were made by the learned member. As already stated WAR has focussed on the decisions made by the Tribunal in relation to how RDJ’s personal decisions will be made.
- In summary WAR’s statement describes her relationship with RDJ, the deterioration in RDJ’s cognition, the deterioration in her relationship with RDJ’s adult children and her inability to remain in contact with RDJ. WAR refers to her acceptance that she will not see RDJ again but she also expresses her view that the relationship was not broken voluntarily by either her or RDJ. She acknowledges that the nature of her relationship with RDJ changed. She indicates that she would like to continue to play a role in RDJ’s well-being ‘as his partner though not in the traditional sense’. WAR proposes options for changing his accommodation and reintegrating herself into his life. WAR criticises the Public Guardian’s decision-making for RDJ. WAR also criticises the Tribunal’s processes and various proceedings concerning RDJ.
- WAR submits that the Tribunal ‘made an error in stating that WAR is not committed to a loving relationship with RDJ’ claiming there is ‘no iota of evidence of this’. Further WAR submits that ‘the tribunal has no authority to make a statement about WAR and the way she feels towards RDJ’. WAR submits that the Tribunal had a responsibility to ensure the best interests for RDJ and that would involve both his children and WAR being in his life.
- I have taken these statements to mean that WAR submits that the learned member erred in determining as a fact that WAR was not in a committed and loving relationship with RDJ. Further that WAR submits that the learned member has made an error of law in concluding that WAR is no longer in a close and continuing relationship with RDJ.
- I have carefully considered the reasons of the learned member. The learned member referred to the evidence regarding RDJ’s personal affairs. The learned member stated that RDJ has been permanently accommodated in an aged care setting. The learned member acknowledged that there may well be other settings that may meet his care needs but at the present time he appears to be settled and happy in that environment.
- The learned member then goes on to say that the other major personal decision to be made is who comes into contact with RDJ. The learned member makes it clear that the contact decision is addressed only to WAR.
- The learned member is forthright in her reasons about the need for a decision-maker to make decisions for RDJ about having contact with WAR. The learned member says:
Now, the need arises in a way that is regrettable, but I do not think it can be ignored. It arises possibly as a result of the ideation that has arisen during the last 18 months of the illness that RDJ has, that he is – that he appears to, according to the geriatrician, perhaps laid down – and the psychiatrist as well – laid down some ideas that have been implanted, not necessarily by anyone else, but they have been implanted, that he is fearful that there is something in the past that has caused him to become anxious about his relationship with WAR.
Now I am not here to decide whether that is accurate or not. It appears to be that even as recently as July, when he has been asked about that by a professional who should understand the ways to approach those sorts of delicate questions, he made it clear that he – he – he did not want to have contact with WAR. So there is the ongoing need to review that scenario to see whether or not that is a concern and a view and wish and preference expressed by RDJ in the forthcoming future. So they are complex issues of a personal nature.
- In terms of how these complex decisions could be made when RDJ was unable to make them for himself and with the knowledge that there existed an enduring power of attorney appointing WAR as RDJ’s attorney for financial, personal and health matters, the learned member said:
Now, I have heard evidence and I accept that RDJ does have complex financial issues. Through a lifetime of working very hard, he has built up significant superannuation assets; they are the source of his income and, realistically, will be the source of his income for the rest of his life. He has ongoing litigation that has been started during this process when he has not had capacity, and when those appointed to make decisions on his behalf have decided to commence proceedings in the Family Court in relation to a property settlement to try to clarify what exactly is the extent of his financial resources in relation to his relationship or former relationship with WAR. So they are also all complicated financial decisions that have to be made quite apart from unravelling what should be paid and how – how the aged care fees should be paid on an ongoing basis.
So I am satisfied that decisions of a complex personal nature as well as financial nature need to be made for RDJ, that he cannot make those decisions himself. The most difficult part of this procedure, as I said at the very start of the hearing is who should make those decisions; who should be given the role of having or giving formal support for decision-making to RDJ. There is, as I mentioned, the attorney in place. Now, WAR has, upon reflection, indicated that she would not necessarily want the ongoing role of financial decision-maker as the attorney for RDJ. There are too many conflicts that are currently existing that would make her decision-making role a little bit like a piece of Swiss cheese; there are some decisions she could make, but others she could not because of those conflicts. So, therefore, it is a rational decision that the current – or the decision-making process put in place in 2012 for financial decisions probably would not meet the adequate decision-making needs of RDJ on an ongoing basis.
In relation to the personal decision making that is another question. The law recognises that how we give support is on a substituted decision-making regime, that is, substituted in the sense that a decision-maker makes the decisions as best as possible that they believe RDJ would have made if he had retained capacity; they are really just stepping into his shoes, making decisions. It is also described in a more updated fashion as supportive decision-making; supporting him so that decisions can be made. But there comes a degree where the ability for RDJ to input in that decision making process gets less and less as his illness deteriorates his cognitive functioning. So, therefore, the big issue, as far as I am concerned is how best to act on the views and wishes of RDJ in relation to his decision making support.
What he had expressed in 2010, has been submitted to me, may not be a reflection of what his views and wishes are at the current time in 2018. There is evidence, as well as those submissions, that there have been significant changes in those particular circumstances relating to RDJ, particularly in relation to personal decision making. I referred to Dr Mickley once before and I accept that her evidence that the current views in which it is expressed by RDJ is that he does not want to have contact with WAR. Now, that is a difficulty if she is to perform the role of ongoing substituted decision maker because if he is uncomfortable, if he does not wish to have that type of contact with her, it makes her ability to effectively function as a substituted decision-maker a – in a very difficult position.
I find that WAR acknowledges these difficulties, but she is a positive person – she comes across as an eminently positive person – who wants to work through those difficulties as much as possible to understand what RDJ wants and to put into place things that are in his best interests. I accept that, but at the same time I believe that position, by having WAR in as a substituted decision-maker would place an intolerable strain on how to balance the views and wishes currently expressed by RDJ with what is overall in his interests.
It is not a matter of picking and choosing what views and wishes should be taken account of. The Act is quite clear; it is the current views and wishes that have to be taken into account. At the same time trying to somehow use the historic attitudes expressed by RDJ in trying to work out in a more complete way what would be decisions he would make if he had capacity. But you can’t overlook his current views and wishes. They are ones that I accept are expressed that may well be that they arise as part of his dementia process, but they are certainly matters that I cannot ignore.
I find that it would be intolerable for a decision maker to try to, in the position of WAR to try to make decisions respecting the views and wishes of RDJ when those views and wishes are saying, at the present time, he does not want to have contact with the – I find that the circumstances in 2018 are totally different from the circumstances that were in place in 2010 when RDJ clearly and voluntarily came up with the grant of power of decision-making at that time to WAR. That was a valid making of those powers in 2010, granting of those powers, but it does not mean that it has to be an ongoing appropriate decision-making process when there is a significant change in circumstances.
I find that on the evidence – and, again, it is contested – but I find, as best as possible, that the only inference that I can draw from the experiences of last year is that RDJ wanted to leave the relationship. Now, whether that is something that if he did not have dementia would have happened – I cannot comment on – but I find that he wanted to leave the relationship, he was fearful and anxious. He wanted to stay with his family. He made no effort of a [indistinct] nature to return to living in the relationship with WAR. And he is now expressing views which seem consistent with that attitude about the middle of last year, if not slightly earlier.
Therefore I cannot be satisfied that appropriate decision-making support, at this time, would be achieved by leaving personal decision making in the hands of his attorney for personal matters. I consider that that whole decision-making process set out in 2010 – is no longer an appropriate decision-making method for RDJ to be subjected to.
So that leaves a vacancy. I accept, and I have already found, that there are complex personal decisions to be made. I consider that those decisions cannot be made in a timely fashion by leaving it to informal decision-making support. Family would be the children and, perhaps, the sister of RDJ and his mother – could give informal decision making support but that would ignore the fact there is another person, now, WAR, who has had historical close relationship with RDJ and her views and wishes should be taken into account.
Now, I find that – my findings are that if family were to be the informal decision-making supports for those complex matters about where RDJ lives, what sort of people he sees, what sort of ongoing contact he has, there is a danger that the informal support would not be adequate. There need to be no hesitation in acknowledging the lawfulness and the appropriateness of decisions to be made about these complex matters. I am satisfied there has to be, in this case, a guardian in place to have legal authority to make those complex personal decisions for RDJ.
- The Tribunal may revoke an enduring power of attorney under s 116 of the Powers of Attorney Act 1991 (Qld) (‘POA’). Section 117 of the POA provides that the court may make the order if the court considers the principal’s circumstances or other circumstances have changed to the extent that 1 or more terms of the document are inappropriate. In my view, the learned member clearly articulated in her reasons the changed circumstances that let her to conclude that the enduring power of attorney made in 2012 appointing WAR as RDJ’s attorney was no longer an appropriate decision-making process for RDJ both in relation to financial and personal decision making. The learned member made a clear finding that the relationship between RDJ and WAR had broken down and outlined the other conflicts in relation to WAR making some financial decisions for RDJ.
- In relation to who should make the accommodation decisions and contact decisions for RDJ, the learned member considered whether informal decision making arrangements would be sufficient but concludes that the complexity of the matters are such that there was danger that the informal support would not be adequate. The learned member clearly articulates in line with s 14(2) of the Guardianship and Administration Act 2000 (Qld) as to which family members are not appropriate for appointment and why WAR is not appropriate for appointment as a guardian to make accommodation and contact decisions. 
- In relation to health care decisions for RDJ, the learned member said:
I have, of course, given serious consideration as to whether or not there should be a decision maker in the role of a guardian for health care matters. It is clear that RDJ does have the immediate support of family who are closely involved in making arrangements already for healthcare decisions for assisting him to reach those appointments and to think of ways in which healthcare can be provided to RDJ in an effective way.
I have discussed, during the course of the hearing, my reservations about the statutory health attorney regime in this particular circumstance. I believe that it is not necessary to appoint a guardian but I do believe – and I will make a finding – that due to the relationship between RDJ and WAR seemingly now broken down, regardless of how that occurred, that WAR is no longer a person who comes within the category of a statutory health attorney.
Under the definition, it is a spouse who has a close and ongoing relationship with the adult in question. Due to the breakdown of that relationship, I cannot find that WAR falls into that category and so therefore I will make a finding that WAR is not a person within the category of a statutory health attorney. That means that health care decisions can be made by those persons who do fall within the category of a statutory health attorney and if for some reason timely and appropriate health care cannot be made using that line of decision-making, then the Public Guardian is what we colloquially call the statutory health attorney of last resort and can be accessed by health care providers if there is any need to access that form of decision-making support for health-care decision making.
- Section 63 of the POA clearly provides, in listed order, the people who if readily available and culturally appropriate may exercise the power for making health care decisions as statutory health attorney. First in the list is ‘a spouse of the adult if the relationship between the adult and the spouse is close and continuing’.
- Based on the evidence relied upon by the learned member as reflected in her reasons for decision, I can find no error in her finding that WAR, at the time of the hearing, was not in a close and continuing relationship with RDJ. The learned member did not make a finding about how the relationship had broken down only that there had been a breakdown in the relationship. She did not make any finding that WAR did not care for RDJ. The learned member’s findings appear to be supported by the evidence she relied upon at the hearing. WAR acknowledges in her submissions in this appeal that her relationship with RDJ has changed and that she has not seen him for quite some time.
- As clearly referred to in the learned member’s reasons, any substituted decision-maker is required to adhere to the general principles in making decisions for the adult including taking into account the adult’s views and wishes. While it remains RDJ’s view and wish that he not see WAR that must be taken into account in any decisions made by the Public Guardian during the course of their appointment. The learned member, in determining the applications before the tribunal, was concerned with the appropriate decision-making process for RDJ who was found to have impaired decision making capacity. The learned member focused on that. I find no error in the reasons.
- WAR refers to what she says are untrue statements made in the hearing such as that her complaint to the Public Guardian had been resolved. WAR refers to family members keeping her and RDJ apart. Based on the material before me including the transcript of the reasons, I am unable to find that any such statements or claimed actions impacted the decisions. The learned member did not appoint family members to make contact decisions or accommodation decisions. The learned member weighed the evidence before her acknowledging it was contested and placed reliance on the evidence of a health professional in relation to the views expressed by RDJ about contact with WAR which supported the other evidence she took into account regarding the actions of the previous year leading up to the hearing. The learned member was required to weigh the evidence before her and make findings of fact as the learned member did. WAR indicates in her submissions that her complaints about the Public Guardian are being investigated.
- WAR refers to the impact on her of being separated from RDJ and attempts to connect that impact with the declaration made by the tribunal that she is not in a close and continuing relationship with RDJ for the purposes of the statutory health attorney regime. As I have previously stated, the learned member was concerned with making decisions about who ought make decisions for RDJ at the relevant time. On appeal I must focus on whether there are any errors of fact or law affecting the decision made by the Tribunal. The impact on WAR of any contact decision that might be made by the Public Guardian during the term of any appointment as guardian for RDJ was not a relevant consideration for the learned member in determining the appropriate decision-making process for RDJ.
- WAR claims that the learned member was biased towards the views of the family. WAR refers to mismanagement of RDJ’s finances by family members and says that despite that, the evidence of family members was accepted by the tribunal. WAR relies upon this as evidence of bias.
- I am not satisfied that WAR has established a basis for a reasonable apprehension of bias or actual bias. The test in relation to bias is as laid down in Johnson v Johnsonthat no “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question” which the learned member had to determine.
- I have set out the learned member’s reasons. There is nothing in the reasons to indicate that the learned member did not approach the hearing with an open mind or that she did not have RDJ as the focus of her consideration of the applications before her.
- The Tribunal did not appoint a family member or members, as administrator for RDJ for all financial matters. Further, family members were not appointed to make decisions about contact between RDJ and WAR or accommodation decisions. In terms of health care decisions, s 63 of the POA is clear that family members can fulfil that role. The learned member accepted evidence provided at the hearing that family members had supported RDJ in relation to health care at the time of the hearing. The learned member explained the Public Guardian’s role as statutory health attorney in the event that no other person as listed in s 63(1) was readily available and culturally appropriate to make health care decisions. Further, the learned member recognised the role WAR had played in RDJ’s life and that her views ought be taken into account when decisions were made for RDJ.
- In determining an application for leave to appeal and appeal, I have no jurisdiction to review any decisions that may be made from time to time by the Public Guardian while the Public Guardian remains appointed as guardian for RDJ for the particular personal decisions. I cannot, on appeal, deal with any complaint WAR may have about the way in which the Public Guardian makes decisions. WAR is also clearly dissatisfied with the Tribunal’s processes. Again, those matters are not relevant to the determination of WAR’s application for leave to appeal and appeal.
- There being no reasonably arguable case of error, leave to appeal is refused. In the event that leave is not required, as I can find no error in the reasons of the learned member, I will dismiss the appeal.
Directions made 26 February 2019, 19 December 2018, 27 November 2018 and email from WAR dated 27 February 2019.
Directions made 7 August 2019.
Written submissions of the Official Solicitor to the Public Trustee of Queensland dated 26 April 2019.
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford  QCATA 203,  following Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 QDR 388, 389; McIver Bulk Liquid Haulage Pty Ltd Fruehauf Australia Pty Ltd  2 QdR 577, 578.
‘Summary Statement from [WAR], [RDJ’s wife], added November 2017’.
Transcript of oral reasons (‘Transcript’) 1-4, lines 8 - 11.
Ibid, lines 14-19.
Ibid 1-4, lines 21- 35.
Transcript 1-4, 1-5, 1-6, 1-7 to line 4.
Transcript, T1-6, 45-48 1-7, 1-21.
Ibid 1-7, lines 6-21.
Ibid 1-7, lines 23-46.
GAA, Schedule 1 Principle 7.
 HCA 48 at ; (2000) 201 CLR 488 at p.492.
- Published Case Name:
WAR v The Public Trustee of Queensland and Ors
- Shortened Case Name:
WAR v The Public Trustee of Queensland
 QCATA 27
24 Feb 2020