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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
RJC  QCAT 174
In an application about matters concerning RJC
Guardianship and administration matters for adults
14 February 2020
NOTICE OF INTEREST IN LAND
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – requirement to lodge accounts – exemption from the requirement – relevance to appropriateness
Guardianship and Administration Act 2000 (Qld), s 5(e), s 7(c), s 15(g), s 36
RLN – wife of adult
REASONS FOR DECISION
- On 10 October 2017 the Tribunal appointed RLN as administrator of RJC. The appointment was reviewed on 18 November 2019. The Tribunal on review was asked by section 31 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) to determine if this was a fresh hearing and whether the Tribunal would make an appointment pursuant to section 12.
Does RJC have capacity to make his own financial decisions?
- Dr GR provided a Health Professional Report in which he stated that the adult suffered cognitive decline due to Alzheimer’s disease. RLN stated that her husband’s health had deteriorated further since Dr GR’s report and he was now in a nursing home receiving a higher level of support.
- The Tribunal finds that RJ C is suffering from dementia and this has severely affected his cognitive abilities.
- The presumption of capacity for financial matters is rebutted.
Does RJC need the appointment of an administrator?
- RLN told the Tribunal that her husband was not able to manage his financial affairs and she saw a need for the appointment of an administrator.
- The Tribunal accepts this evidence and finds that RJC needs support with his financial affairs.
- The Tribunal concludes that:
- (a)There was a need because without an appointment there would be unreasonable risk to the adult’s finances or property; and
- (b)Without an appointment the adult’s needs would not be adequately met or interests adequately protected.
Does RLN meet the appropriateness considerations set out in section 15(1) of the Act?
- RLN stated that she was busy and saw no reason why accounts should be provided. RLN told the Tribunal that her husband had executed an Enduring Power of Attorney which had been lost or destroyed in the Brisbane flood. This necessitated the need to be appointed as administrator.
- The Tribunal asked RLN if she understood the requirements of the role of a Tribunal-appointed administrator. RLN told the Tribunal that she was fully aware of the requirements of a Tribunal-appointed administrator and was of the view in her circumstances that she should not be required to provide accounts.
- RLN told the Tribunal that the assets of her husband and herself were jointly owned. They have been in a long-term positive and supportive relationship. The Tribunal is of the view that this speaks to the appropriateness of RLN.
- The legislation that guides the appointment of administrators provides a protective and supportive background. The Tribunal when appointing an administrator gives that person the ability to stand in the shoes of the adult and do anything that the adult might do with his financial affairs. The Tribunal in exchange requires an administrator to report to the Tribunal. The reason for this is that many people take advantage of vulnerable adults and the Tribunal has a role in preventing such abuses of vulnerable adults. One of the ways this is done is to require an administrator to lodge accounts. This provides transparency and protects both administrators and adults. The Tribunal can mitigate the requirements on an administrator to make it easier for the administrator to report; that is, lessen the administrative burden. The Tribunal can lessen the requirements of an administrator by granting a partial exemption from the requirements to lodge full accounts. The Tribunal on 10 October 2017 granted a partial exemption and required the administrator to provide:
- (a)copies of the adult bank statements/passbooks/term deposits for the past year;
- (b)a list of the adult’s current assets and liabilities;
- (c)a current fortnightly budget of income and expenditure; and
- (d)a signed and witnessed Declaration as to continuing appropriateness for appointment.
- RLN conceded that these requirements were not onerous. She stated that her and her husband’s affairs were completely private and had ‘nothing to do with the Tribunal’. She sees no role for the Tribunal and wants to keep her husband’s affairs private.
- The administrator understands the requirement of the role but is not prepared to comply with the requirements. RLN repeated that she did not believe that it was the Tribunal’s responsibility.
- The Tribunal offered RLN more time to put submissions to the Tribunal but she declined the opportunity.
- The Tribunal is of the view that RLN is the most appropriate person to be appointed provided that she understands the obligations and responsibilities of the role like any other appointed administrator. The Tribunal has granted a partial exemption so that the imposition on RLN is small.
The law regarding the requirements of administrators
- The Act in section 7 sets out the way in which the Act is to be administered. Subparagraph (c) of section 7 provides that the Tribunal can set the principles to be observed by anyone performing a power under the Act. Section 36 of the Act provides that an administrator when exercising the power must exercise it as required by the terms of the order of the Tribunal. Section 15 of the Act deals with appropriateness. Subparagraph (g) provides that the Tribunal must assess a person’s appropriateness to perform the function under the order.
- The Tribunal is of the view that to appoint an administrator without the administrator being held responsible is wrong in principle. Where a party is given extensive powers over another adult it is a prudent balance of the human rights of RJC to involve some form of reporting requirement. The Tribunal does not accept RLN’s argument that she was not required to keep records and report under the Enduring Power of Attorney. This is wrong as an attorney is required to keep records in relation to the adult’s financial affairs and can be asked to report on their stewardship in relation to the adult’s finances.
- The Tribunal does not accept RLN’s argument that the Tribunal has no role. The Tribunal decides who is most appropriate and the terms of the appointment. The Tribunal would obviate its role if it were to appoint an administrator having no reporting requirements.
- The Tribunal also notes that it is the Financial Assessment Team that is responsible for overseeing the annual reports. This is done in a professional capacity and there is no disclosure of the material that has been provided. This limited disclosure protects the adult’s privacy.
- The Tribunal is not stating that it cannot completely dispense with the requirements but that it should only do so in very limited circumstances. The Tribunal is not satisfied that these are those circumstances. The requirements of the administrator are not onerous and if the administrator is unwilling to meet those requirements then this would be a matter that goes to appropriateness in the future.
- The Tribunal is of the view that RLN has not established a case for full exemption. The facts are that RLN has been granted a significant partial exemption, the reporting requirements are not onerous, and the protection that transparency affords is protective of the adult’s rights.
- The Tribunal repeats the orders made on 10 October 2017 which are very simple and straightforward. The Tribunal will make the appointment for one (1) year and the administrator will be required to meet the requirements of the terms of the order.
- The Tribunal accepts that RLN has a very positive and supportive relationship with RJC.
- The Tribunal is of the view that transparency is provided by the reporting requirements and this is protective of the adult’s rights. This protection outweighs the right to privacy. The limited disclosure is a small price to pay compared with the damage that can be done to a vulnerable adult’s finances where there is no transparency. The fact is that attorneys regularly take advantage of vulnerable adults because there is no transparency in relation to their actions. The Public Guardian often only becomes involved after serious damage has been done to an adult’s financial position. This is a matter of balancing rights and obligations and the Tribunal is of the view that transparency supports vulnerable adults and administrators.
- Published Case Name:
In an application about matters concerning RJC
- Shortened Case Name:
 QCAT 174
14 Feb 2020