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Queensland Judgments
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  • Unreported Judgment

GCS

 

[2020] QCAT 206

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GCS [2020] QCAT 206

PARTIES:

In applications about matters concerning GCS

APPLICATION NO/S:

GAA4539-20; GAA4540-20; GAA4541-20; GAA4911-20; GAA4968-20; GAA5573-20

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

6 May 2020

HEARING DATE:

6 May 2020

HEARD AT:

Brisbane via videoconference

DECISION OF:

Member Casey

DECISIONS:

  1. The Public Guardian is appointed as guardian for GCS for the following personal matters:
  1. (a)
    accommodation; and
  1. (b)
    health care.
  1. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.
  2. The Public Trustee of Queensland is appointed as administrator for GCS for all financial matters.
  3. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  5. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.
  6. Before 6 August 2020 the administrator must:
  1. (a)
    Record the appointment as administrator on any property registered in GCS’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. 
  1. (b)
    Provide confirmation to the Tribunal that this has been completed by providing: 
    1. A copy of the title search conducted identifying GCS’s property; and 
    2. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by her. 
  2. (c)
    If no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 
  1. If the ownership of any property of GCS changes in any way or she acquires an interest in another property the administrator must, within fourteen (14) days of such changes: 
  1. (a)
    Give a copy of this order to the Registrar of Titles and 
  1. (b)
    Give a notice to the Registrar about the changes or GCS’s interest in another property. 
  1. The following Enduring Power of Attorney for GCS is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made:
  1. (a)
    The Enduring Power of Attorney dated 17 July 2018 appointing RFA and JFH successively as attorneys for financial, personal and health matters.
  1. The application for a non-publication order for GCS is dismissed.
  2. The withdrawal of the application by TA for a confidentiality order is approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009.
  3. The withdrawal of the application by JFH for a confidentiality order is approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where any enduring power of attorney is overtaken – where need for the appointment of a guardian and administrator

Guardianship & Administration Act 2000 (Qld) (‘GAA’) Schedule 4, s 12, s 22(2)

Powers of Attorney Act 1998 (Qld) (‘POA’) s 43, s 70,
s 87, s 116

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 46

Human Rights Act 2019 (Qld) (‘HRA’), s 13, s 48

APPEARANCES:

 

Applicants:

LS, social worker

TA, daughter of GCS

JFH, friend of GCS

Others:

GCS (the adult), for part of the hearing

RFA, son of the adult

VRP, social worker

Delegate of the Office of the Public Guardian

Representative of the Public Trustee of Queensland

REASONS FOR DECISION

  1. [1]
    GCS is 89 years old. At the time of the hearing she was receiving interim care in a facility, having been transferred from hospital on 20 April 2020. Prior to her hospitalisation, which began on 27 March 2020, GCS had been living in her own home with RFA, an arrangement that had been in place for over 20 years. In recent years, RFA had become the adult’s primary carer.
  1. [2]
    On 17 July 2018, the adult appointed RFA as her Enduring Power of Attorney for personal, health and financial matters and JFH as successive attorney, should RFA be unwilling or unable to act. The power for financial matters was to begin when the principal had ‘lost mental capacity as certified by one (1) medical practitioner’. RFA and JFH signed the attorney’s acceptance on 17 July 2018 and 23 July 2018, respectively.
  2. [3]
    The above document replaced a previous Enduring Power of Attorney dated 22 April 2005, whereby the adult appointed TA as her attorney for personal, health and financial matters, with the power for financial matters to begin immediately. TA signed the attorney’s acceptance on 22 April 2005.
  3. [4]
    On 17 April 2020, the Tribunal received applications from LS, social worker at the hospital, seeking the appointments of a guardian and administrator for the adult, in addition to the Tribunal making an order about an Enduring Power of Attorney. The applicant was seeking RFA to be appointed ‘jointly with another trusted party rather than solely’, or the appointment of the Public Guardian and Public Trustee of Queensland as guardian and administrator, respectively.
  4. [5]
    Prior to the hearing, the Tribunal received an application from TA, requesting a confidentiality order and a non-publication order, along with an application from JFH requesting a confidentiality order.

The Legislation

  1. [6]
    The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult.
  2. [7]
    GCS is presumed to have capacity in accordance with section 7 of the GAA and general principle 1 of Schedule 1 under the GAA.
  3. [8]
    The GAA defines capacity as follows:[1]

Capacity for a person for a matter, means the person is capable of -

  1. understanding the nature and effect of decisions about a matter; and
  2. freely and voluntarily making decisions about the matter; and
  3. communicating the decisions in some way.
  1. [9]
    The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
  2. [10]
    The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.
  3. [11]
    The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.
  4. [12]
    The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the POA.  If there are attorneys, it is necessary to consider whether they are carrying out their duties in such a way as to protect the adult’s interests and are otherwise acting in accordance with the POA.

Preliminary Matters

  1. [13]
    The Tribunal abridged time[2] to allow the applications in relation to the non-publication and confidentiality orders to proceed, however both applicants sought to withdraw their applications for confidentiality orders at the commencement of the hearing.  The Tribunal approved the withdrawal of the confidentiality applications pursuant to s 46 of the QCAT.[3]
  2. [14]
    TA advised the Tribunal that her application for a non-publication order was made in error.  Consequently, the Tribunal dismissed this application.

Does GCS have capacity to make personal and financial decisions?

  1. [15]
    Written medical evidence before the Tribunal includes a completed assessment form of a Standardised Mini Mental State Examination (SMMSE) administered to GCS on 1 April 2020. The adult attained a score of 17/30, with deficits in orientation (5/10), attention (3/5) and recall (0/3).
  2. [16]
    Also before the Tribunal is a report, dated 16 April 2020, written by Dr YC, a consultant geriatrician. Dr YC provides that the adult was admitted to hospital on 27 March 2020 with a urinary tract infection, and that it became clear during the admission that GCS has significant cognitive impairment, consistent with dementia. The document references the above SMMSE on 1 April 2020. Dr YC provides the opinion that GCS is able to make simple, not complex, personal and financial decisions, and that the adult is influenced by her son, RFA. Dr YC states that ‘it is not clear whether her son is acting in her interests’. She adds that GCS advised her that RFA provides the adult with $500 per fortnight for her own expenses ‘but does not mind if he uses some for himself’. Dr YC concludes that the adult does not seem to understand that such an arrangement ‘may not be appropriate’.
  3. [17]
    In the application to the Tribunal, LS said that the adult expressed concern about RFA’s welfare when she was informed about the treating team’s application for the appointment of independent decision-makers.  In her oral evidence, LS submitted there had been no change in the treating team’s clinical assessment of the adult’s decision-making ability by 20 April 2020, when the adult was transferred to interim care.
  4. [18]
    VRP, a social worker at the interim care facility, told the Tribunal that there had been no opportunity for GCS to demonstrate complex decision-making ability during her current admission. He had observed the adult demonstrating poor short term memory at times, however she has been ‘compliant’ and ‘able to be re-directed’.
  5. [19]
    GCS attended the hearing for a short time, supported by VRP, to express her views. She had been distressed by the application to the Tribunal and believed her daughter, TA, had ‘overstepped her mark’. She stated ‘I just get enough money to live on’ and that she has ‘a nice life’. GCS told the Tribunal that her son, RFA, is her Enduring Power of Attorney, and that she also had appointed ‘a friend who would look after my son’. She said she has no concerns about her son’s appointment as her attorney.  She also stated that he had never been called upon to act in that role. GCS concluded by saying that ‘I have everything tied up with my bank’ and the bank ‘won’t let anyone take anything off me’.
  6. [20]
    RFA provided the opinion that the adult needs assistance with her decisions. He believed that up until five weeks ago GCS had been ‘capable of doing things herself’, for example, paying her own bills at the bank in the same manner as the previous twenty years. He said the adult had become ‘run down’ prior to her hospitalisation, and had been adversely impacted as a result of restrictions to her life due to the coronavirus pandemic, which included not being able to play bingo. He said while she still converses, the adult has been ‘muddled’ at times.
  7. [21]
    TA told the Tribunal that the mental state of the adult had been changing over a period of time, evidenced by mood swings and a ‘dementia pattern’. She stated that she did not believe the adult was able to make decisions. Her submissions were supported by JFH.
  8. [22]
    The Tribunal considered the medical and oral evidence. The Tribunal places much weight on the medical opinion of Dr YC, a geriatrician, which was informed by multi-disciplinary assessment and observation of the adult over a period of more than three weeks.  Dr YC provides the view that the adult may be vulnerable to influence and exploitation and is unable to make complex personal and financial decisions. 
  9. [23]
    The evidence establishes that GCS has cognitive deficits, in the areas of orientation, attention and memory, that are consistent with a dementing process.  Upon consideration of the evidence, the Tribunal is not satisfied that GCS understands the nature and effect of her complex personal and financial decisions, as a consequence of her cognitive deficits.
  10. [24]
    Accordingly, the Tribunal rebuts the presumption of capacity for GCS for complex personal and financial matters. 

What decisions are required for the adult?

  1. [25]
    The Tribunal was tasked with obtaining evidence in relation to the personal and financial decisions that are required for the adult.
  2. [26]
    GCS is currently receiving interim care. She has been assessed by multi-disciplinary teams as requiring 24/7 care within a residential aged care facility. An accommodation decision is required in order for the adult to receive appropriate, permanent care commensurate with her increasing needs.
  3. [27]
    The adult has complex health conditions which require a decision-maker to consent, or not consent, to health care treatment, in accordance with the general principles and the health care principle.[4]
  4. [28]
    Details in relation to the adult’s financial circumstances could not be verified at the hearing.  The evidence of RFA, who had been supporting the adult in her financial transactions, was that the adult owns a unit and has savings in a term deposit, cheque account and savings account. She receives a pension from the Department of Veterans’ Affairs (DVA).  Her expenditure is in relation to property and personal/medical matters.  There are no reported liabilities. 
  5. [29]
    The evidence establishes, pursuant to section 12 of the GAA, that there is a need for decisions in relation to the adult’s accommodation, health care and financial matters.  GCS has income, assets and expenses that require management to ensure funds are available for her accommodation and care requirements.  Accordingly, there must be an adequate and effective decision-making regime in place for the adult, as otherwise her needs will not be met and her interests will not be protected.

Is the current decision-making regime meeting the adult’s needs and protecting her interests?

  1. [30]
    The Tribunal’s rebuttal of the presumption of capacity for complex personal and financial matters enlivens the Enduring Power of Attorney dated 17 July 2018 appointing RFA as the first attorney for personal, health and financial decisions.
  2. [31]
    The applications before the Tribunal necessitated the determination of the appropriateness of the adult’s attorneys.

Evidence

  1. [32]
    In her written and oral evidence, LS provided that the applications to the Tribunal were driven by a number of factors: the observations of clinical staff of significant carer stress at the time of the adult’s admission to hospital; RFA’s identification of his struggle with his own long-standing mental health conditions; his disclosure that he had suffered a ‘mental breakdown’ due to significant stress whilst the adult had been in hospital; RFA’s candidness about being unable to look after the adult in her home if she could not mobilise independently.  The applicant described RFA’s behaviour as ‘volatile’ when engaging with social work and health professionals, and that on 9 April 2020 he was apologetic in relation to his self-described ‘nervous breakdown’ during a telephone conversation with the treating team the previous day.  On 9 April 2020, the applicant had provided reassurance and encouraged RFA to seek a mental health care plan from his general practitioner for ongoing support.  The treating team had concerns that the adult would not be able to receive appropriate 24/7 care if RFA were to be a decision-maker, as he was ambivalent in following the recommendation of the treating team in relation to the adult’s increasing care and accommodation requirements.
  2. [33]
    In addition to the treating team’s concerns over their interactions with RFA, the applicant also noted a history of conflict between RFA and TA.  TA had advised the social worker that RFA had a history of gambling, alleging the adult sold her home in New South Wales, over 20 years ago, to pay RFA’s debt of $120,000. TA also had told the applicant that RFA utilised the adult’s funds to support his lifestyle and that she was concerned RFA would renege on his verbal agreement to relocate the adult to a residential aged care facility so as to continue to receive his carer’s pension.  The treating team was persuaded by the information provided by TA, and stated concern about the adult being at risk of financial abuse without an appointment of an alternative decision-maker.
  3. [34]
    In her application to the Tribunal, LS provided evidence which included her social work report dated 16 April 2020 and her contemporaneous entries into the adult’s hospital records.   The social work and medical chart entries identify that TA and RFA denied the existence of any Enduring Power of Attorney document for the first two weeks of the adult’s hospitalisation.  On 9 April 2020, they were agreeable to the adult proceeding on the residential aged care pathway and were aware of the treating team’s plan to submit an application to the Tribunal for the appointment of the Public Trustee of Queensland as administrator for the adult.
  4. [35]
    On 14 April 2020, the first working day after 9 April 2020 as a result of the Easter break, TA presented the applicant with the 2005 Enduring Power of Attorney. On 15 April 2020, RFA presented the social work department with the Enduring Power of Attorney of 2018, and said he had advised TA of same. Hospital progress notes reveal that TA required reassurance and emotional support from the applicant during a phone call later on 15 April 2020, as she did not believe RFA was an appropriate decision-maker for the adult.
  5. [36]
    TA and RFA provided submissions to the Tribunal in relation to their actions.  At the hearing, TA stated she ‘had forgotten’ she had been appointed as attorney for the adult and that she ‘only thought about’ the adult’s advanced health directive.  She said she had been a signatory on the adult’s bank accounts for some time, and was aware of the adult sharing her money with RFA. She described her relationship with the adult as ‘on and off’, and that the adult had previously disclosed to her that she was ‘very stressed’ as a result of allegedly receiving verbal abuse from RFA.  TA further alleged that the adult was ‘in a completely abusive relationship’. TA said she ‘didn’t realise the powers’ of an Enduring Power of Attorney and submitted she is supportive of the application before the Tribunal for the appointment of an independent guardian and administrator for the adult.
  6. [37]
    In his evidence to the Tribunal, RFA submitted that the adult advised him of the existence and location of the 2018 Enduring Power of Attorney document. He then provided a copy to the hospital and to the bank branch where the adult’s accounts are held.  He said he had also provided copies of the document to three aged care facilities and signed documents as the adult’s attorney at five residential aged care facilities in order for ‘the nursing home to take the pension out of the bank account’ and to enable the adult to be waitlisted at those facilities.
  7. [38]
    RFA told the Tribunal he had commenced acting as the adult’s Enduring Power of Attorney after locating the document. He said he thought he commenced acting on or about 24 April 2020.  He reported that when he went to the bank, the bank staff spent an hour with him, explaining to him his duties and responsibilities as an attorney.  In his evidence to the Tribunal, RFA explained he and the adult were known to the bank, as he would accompany the adult every pension day. He said that there were occasions when the adult was not physically able to leave the vehicle to attend the bank, and at these times staff would assist her with her financial transactions while she remained in the vehicle.
  8. [39]
    RFA submitted that the bank staff told him that no money could be taken out of the adult’s term deposit.  He said this was because the account was an interest-bearing account.  He provided inconsistent evidence to the Tribunal in stating the interest from the adult’s term deposit, which was sometimes referred to as a funeral account, was paid into a previously not mentioned Christmas club account.  RFA said he was told by the bank staff that he could consolidate the adult’s accounts into a single account on 10 July 2020, when the term deposit matured. He also advised he had utilised the adult’s funds to pay the adult’s credit card debt in full and closed the account. He added that he had also utilised the adult’s funds to pay ‘two lots of rates and our body corporate [fees]’ when he attended the bank.
  9. [40]
    RFA consistently told the Tribunal he sought to act as the adult’s attorney and that he was capable of same.  He said that the adult would want him to remain in that role and the Public Trustee of Queensland would not know what his mother would have wanted.  In relation to his proposed future actions as the adult’s attorney, he said he had ‘no intention’ of selling the adult’s home as the terms of the adult’s will include that ‘I can live here until I die’. He had obtained advice from a DVA officer that, as he had lived in the adult’s home for more than five years, the residence would be exempt from an assets test should the adult receive care in a residential aged care facility.
  10. [41]
    The Tribunal took evidence from RFA in relation to the informal assistance he provided the adult prior to her hospitalisation.   In relation to financial matters, he said that he supported the adult to withdraw $500 every fortnight, using a withdrawal form and passbook.  He said that the adult’s fortnightly DVA pension was $1,210 per fortnight – after contents insurance had been direct debited. The adult’s credit card was used to pay for items such as televisions, a washing machine, air conditioning and a fridge. He submitted the cheque account was utilised to pay the credit card bill and that there were always sufficient savings in the adult’s account to pay the credit card bill.  RFA said the adult’s funds were utilised to pay water and rates bills and body corporate fees, while he used his own resources to pay for the phone, electricity and Foxtel.  He said neither he nor the adult cooked meals, so they either ate out or bought take-away food, with either himself or the adult paying ‘on different weeks’. 
  11. [42]
    He disclosed he had difficulty caring for the adult in the days preceding her hospitalisation.  He stated that GCS had been ill with a urinary tract infection, and had been bed-bound while doubly incontinent.  He said after about four or five days he had to call an ambulance.   He said that historically, there had been difficulties in his interactions with the adult.  He submitted that, on many occasions, ‘I lost my cool with my mother – I have had the police here so many times because my mother has had delusions for over ten years’.  RFA further provided information in relation to his interactions with the treating team.  He said ‘I lost my temper’ – ‘in front of two nurses’ when the adult’s ‘tooth broke off’ and ‘no one did anything’. He added he arranged for the adult to have leave from the hospital and that he had transported the adult to a dental appointment to receive treatment, in order to remedy the situation.
  12. [43]
    In a file note report, dated 17 April 2020, RFA advised a Tribunal case officer, via telephone, that he had recently obtained a $4,000 bed for the adult through DVA funding.  The Tribunal observes this interaction occurred after he had agreed to the treating team’s recommendation for the adult to receive 24/7 care in an aged care facility, and after he had located the enduring power of attorney of 2018.  RFA advised the case officer that he was having difficulty finding a nurse who could care for the adult at home, due to the coronavirus pandemic. He was contemplating an alternative arrangement of finding other persons who would be able to reside in the adult’s home and help him care for the adult.  At the hearing, RFA stated he had since changed his mind and was agreeable to the adult receiving care in a residential aged care facility.
  13. [44]
    The Tribunal sought evidence from VRP, the social worker at the facility where the adult was receiving interim care, in relation to the current treating team’s interactions with and observations of RFA. He submitted that since the adult had been transferred to that facility, RFA had followed the recommendations of the treating team by sourcing suitable residential aged care facilities for the adult.  He added that nursing staff had observed RFA being loving and attentive to the adult.
  14. [45]
    The Tribunal sought the opinion of JFH in relation to the appropriateness of the current decision-making regime under the terms of the Enduring Power of Attorney dated 17 July 2018 whereby she is the successive attorney.  JFH expressed concern that RFA’s mental health fluctuates which may, in turn, adversely affect his ability to look after the adult.  She added he continues to change his mind in relation to aged care for the adult.  JFH is not seeking to act as an attorney, submitting she supports the proposed appointments of the Public Guardian and Public Trustee of Queensland.
  15. [46]
    The delegate of the Office of the Public Guardian also submitted that independent and objective decision-makers were required for personal and financial matters, to ensure consistency of decision-making.

Determination

  1. [47]
    The Tribunal considered the oral and written evidence. 
  2. [48]
    The application to the Tribunal was prompted by the treating team becoming concerned about RFA’s willingness and ability to follow the recommendations of the treating team and enable the adult to obtain placement at a residential aged care facility that would provide for her increasing care requirements.  The treating team were not advised the adult had appointed an attorney, and sought the appointment of an administrator to ensure the adult’s admission and ongoing tenure at a care facility.  The Tribunal observes that RFA appeared to agree with the treating team’s recommendation according to the social work notes of 9 April 2020.
  3. [49]
    It is a concern to the Tribunal that RFA did not remember or realise he had been appointed the adult’s attorney until the adult reminded him after his conversation with the applicant on 9 April 2020.  It is of further concern that upon learning of his appointment, RFA planned for the adult’s return to her home, demonstrated by obtaining a recliner chair through DVA and attempting to arrange for carers to assist him in caring for the adult.
  4. [50]
    RFA is seeking to act as the adult’s attorney for personal, health and financial matters. Significantly, he has told the Tribunal about verbal abuse he directed toward the adult, and that there were numerous occasions the Queensland Police Service attended their home in response to domestic disturbances. RFA has described his difficulty meeting the adult’s increasing care needs in the period preceding her hospitalisation, and that his own mental health has been adversely affected both before and during the adult’s admission to hospital.  He described to the Tribunal that he has become emotionally dysregulated when speaking with the hospital treating team during discussions about the adult’s care requirements and discharge planning.  The evidence of the applicant is that RFA had been volatile when called upon to discuss the adult with the treating team, resulting in the applicant advising him to seek a mental health care plan from his general practitioner, for his own wellbeing.
  5. [51]
    By the date of the hearing, RFA explained that he had formed the view the adult should receive care in a residential aged care facility, and that he had placed her name on waiting lists at five facilities.  The evidence is that he had been following the recommendations of the treating team at the interim care facility and had been engaging with VRP, the social worker, to identify potential aged care accommodation for the adult. RFA submitted he had also signed some documentation as the adult’s attorney in three such facilities.  Based on RFA’s ambivalence to following the recommendations of the treating team in relation to an appropriate discharge destination for the adult, the Tribunal is not persuaded that RFA would not change his mind again.  Consequently, the Tribunal is not convinced RFA would be able to apply the general principles and the health care principle if he were to determine, as attorney for personal and health matters, where GCS would reside and the nature and extent of the health care she would receive.
  6. [52]
    The Tribunal then contemplated RFA’s appropriateness as the adult’s enduring power of attorney for financial matters.  By his evidence to the Tribunal, RFA was extensively advised of his financial obligations as an attorney by staff at the bank branch where he and the adult were well known.  RFA has described to the Tribunal a pattern of sharing the adult’s income and assets for a period of over 20 years.  His evidence included enabling the adult to withdraw $500 every fortnight for her own personal expenses, while the majority of household purchases were paid using the adult’s credit card, which was in turn paid down by her cheque account.  RFA described the purchase of white goods and televisions as household expenses paid for by the adult.  In further evidence to the Tribunal, RFA advised he had discussions with the bank, as the adult’s financial attorney, in relation to closing the adult’s term deposit account (which he sometimes referred to as a funeral account) and consolidating all of her accounts into a single accessible account.  There was no evidence before the Tribunal that RFA would cease utilising the adult’s funds for his own purposes after a period of 20 years in the context of being advised of his obligations as financial attorney by bank staff. As the adult’s attorney, this would give rise to the presumption that the adult was induced to enter into such transactions by the attorney’s undue influence.[5]
  7. [53]
    Furthermore, as the adult’s financial attorney, RFA would be required to make funds available for the adult to receive accommodation and care commensurate with her increasing needs.  The Tribunal is not satisfied RFA would be consistent in such decision-making, as he has demonstrated ambivalence in following the medical and multi-disciplinary advice in relation to the adult’s care requirements post-discharge.  
  8. [54]
    Additionally, as the adult’s attorney, RFA would have to consult with stakeholders, including TA (as the adult’s daughter) and JFH (as the successive attorney). RFA, TA and JFH provided evidence to the Tribunal about the negative and ineffective communication processes they have experienced in relation to attempted discussions about the adult’s care and wellbeing.  The Tribunal is not convinced, should RFA continue to act in the current circumstances, that there would be adequate consultation to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.
  9. [55]
    Accordingly, the Tribunal determines that RFA would not discharge effective decision making as an Enduring Power of Attorney for GCS for personal, health and financial matters, in a way that was consistent with the legislative requirements, including the general principles and the health care principle.
  10. [56]
    The Tribunal gave consideration to removing RFA as the adult’s attorney, under the provisions of s 116 of the POA and empowering JFH as the successive attorney to act as the adult’s attorney for personal, health and financial matters.  This course of action was not open to the Tribunal as JFH provided oral evidence that she supported the application for the appointment of the Public Guardian and Public Trustee of Queensland as guardian and administrator for the adult, respectively, in the current circumstances.
  11. [57]
    Section 14(2) of the GAA provides that the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. The Public Guardian is an appropriate and independent decision maker with extensive knowledge, skills and experience in applying the general principles and the health care principle to decision-making.
  12. [58]
    Accordingly, the Tribunal appoints the Public Guardian as guardian for GCS for the matters of accommodation and health care.
  13. [59]
    In relation to financial decision-making, the Tribunal is of the view that the Public Trustee of Queensland, as an independent, skilful and experienced administrator, would be able to make financial decisions that best meet the adult’s needs, in accordance with the general principles. The Public Trustee of Queensland is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA.
  14. [60]
    Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for GCS for all financial matters.
  15. [61]
    While the Tribunal determines that the current circumstances require independent decision-makers for the adult, the Tribunal is also mindful of the decision the adult made appointing the two attorneys, on 17 July 2018, when the adult is presumed to have had the requisite capacity.  There is no evidence before the Tribunal to rebut that presumption of capacity. 
  16. [62]
    The Tribunal determined that the appointments of the guardian and administrator should be reviewable until further order of the Tribunal, and that the review should occur in two years.  It is anticipated that the review of the appointments of the guardian and administrator appointments would include the Tribunal’s consideration as to the appropriateness and willingness of both RFA and JFH to act as the adult’s attorneys for personal, health and financial matters.
  17. [63]
    For these reasons the Enduring Power of Attorney for GCS dated 17 July 2018 is overtaken by the making of the appointments of a guardian and administrator and, in accordance with s 22(2) of the GAA, can no longer be acted upon to the extent that these appointments have been made.
  18. [64]
    The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.  GCS’s rights to property, freedom of movement, privacy and protection from being subject to medical treatment without her full, free and informed consent are engaged and limited by the guardianship and administration appointments. Taking into account the findings above in relation to the criteria set out in the GAA and POA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA.

Footnotes

[1] GAA, Schedule 4 (definition of ‘capacity’).

[2] QCAT Act, Section 61; GAA, Section 118.

[3] QCAT Act, Section 46.

[4] GAA, Schedule 1.

[5] POA, Section 87.

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Editorial Notes

  • Published Case Name:

    GCS

  • Shortened Case Name:

    GCS

  • MNC:

    [2020] QCAT 206

  • Court:

    QCAT

  • Judge(s):

    Member Casey

  • Date:

    06 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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