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- Unreported Judgment
LK QCAT 149
LK  QCAT 149
GAA035-16 / GAA036-15
Guardianship and administration matters for adults
15 April 2016
20 April 2016
Application for Guardian and Administrator - Informal Administrator acting in breach of the Statutory obligations on Administrator
Guardianship and Administration Act 2000 (Qld), s 12, s 15, s 118, Schedule 1 General Principals, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62.
REASONS FOR DECISION
- LS, wife of LK brought an application for the appointment of an administrator and guardian for LK. She informed the Tribunal at the hearing that LK had been in a nursing home as a result of his dementia since early 2015 and that she had been managing his affairs through accessing his bank account since February 2015. The Tribunal accepts that LS has been acting as informal administrator. She informed the Tribunal that although she and LK had been married for 62 years, LK had kept knowledge of the family finances from her and they had maintained separate bank accounts.
- LS informed the Tribunal that LK is no longer able to function to manage his financial affairs and she seeks formally appointment as administrator. She has also made application for appointment as Guardian.
- On 4 November 2015, DL, the adult’s son, lodged an incomplete interim application for the urgent appointment of an administrator, alleging that BL, the adult’s youngest son, had taken money from his father’s account. He claimed that $65,000 had been taken out in a five month period. The Tribunal registry attempted to pursue LK seeking a completed application and address for notice of hearing to be sent but these attempts were unsuccessful. The registry referred the concerns to the Public Guardian for investigation. The Public Guardian corresponded with the Tribunal on 6 April 2016 advising that they attempted but failed to obtain capacity evidence, and therefore had not completed an investigation and had nothing to offer the Tribunal at hearing. The Public Guardian did not attend the hearing.
- DL did not attend the hearing and it seems that a notice of hearing was not sent to him because his address was not available to the Tribunal registry. Pursuant to sections 118(5) of the Guardianship and Administration Act 2000 (Qld) and section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal made directions to dispense with notice of the hearing to DK and proceeded in his absence.
- SL attended the hearing and indicated that she was the LK term partner of BL, and that she and BK lived with LK and LS for 16 years and continued to do so. She noted however, that BL was in currently in prison and unable to attend the hearing.
- The Tribunal considered the application under section 12, 15 and the General Principles of the Guardianship and Administration Act (hereafter “the Act”). Under section 12 of the Act, the Tribunal must satisfy itself of the following before an appointment can be made:
- (a)the adult has impaired capacity for the matter; and
- (b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
- (c)without an appointment—
- (i)the adult’s needs will not be adequately met; or
- (ii)the adult’s interests will not be adequately protected
- The evidence before the Tribunal indicates that LK has a diagnosis of dementia, as well as ischaemic heart disease. Dr DA, Rehabilitation Registrar, provided a health professional report to the Tribunal dated 20 August 2015. He noted that LK had demonstrated progressive cognitive decline related to his dementia and now has significant difficulties making decisions regarding his personal care lifestyle and financial matters. He considered LK was not capable of simple decisions in these domains. LK was unable to attend to self-care without significant prompting or identify correct medications and dosages or self-administer these. He considered LK did not have a good understanding of how to manage accommodation issues and lacks insight into how to use appliances and equipment, including a phone. He considered that LK was unable to perform basic calculations or perform tasks such as paying bills and managing his financial affairs. He was able to identify currency. He considered LK was unable to make decisions freely and voluntarily.
- LS indicated that LK is unable to do much at all with regard to his decision making due to the progression of the dementia.
- The Tribunal is satisfied that this evidence indicates that LK is unable to understand the nature and consequences of decisions and cannot make decisions freely and voluntarily. The presumption of capacity in terms of its definition at Schedule 4 of the Guardianship and Administration Act 2000 is rebutted.
- The Tribunal considered whether there was a need for personal decisions to be made on LK’s behalf. The evidence before the Tribunal is that LK is in stable accommodation in a nursing home placement and that this is unlikely to change. There remain health decisions that need to be made on his behalf, but LS is already empowered as LK’s statutory health attorney and may already make substituted decisions of a health nature. There are no apparent concerns about her undertaking this role that have been expressed to the Tribunal. The Tribunal finds that since the statutory health attorney regime is effective for making health decisions, a formal appointment is unnecessary. The application for the appointment of a Guardian is dismissed on this basis.
- The Tribunal considered whether there was a need for financial decisions requiring an appointment. LK’s bank statements indicate that he is in receipt of an income stream into his bank account from an identified private investment. LS was unable to clarify which entity this was with because she indicated that she had not been informed about his financial affairs throughout the marriage LS thought AMP or Perpetual may be the entity but she could not be certain. She agreed it may be an annuity as one possibility suggested but could not confirm. She believed that there was approximately $62,000 in his bank account as a result of this income. She was aware that more money had come in the previous 12 months, although from where she was not sure.
- The Tribunal has been informed that LK is in receipt of a pension. There does appear to be an alternate source of income being received into his account. This appears to be at least $50,000 in the previous year.
- The Tribunal notes the concerns identified in the interim application about LK’s financial affairs, and explored these with LS. The Tribunal was provided with a bank statement from 8 June 2015 to 28 August and a further account from 29 September 2015 to 23 October 2015. This notes credits from AMP and an unidentified source as well as pension.
- The account statement indicates that from balance of $28,923 on 8 June 2015, the account was depleted by a very high rate of daily ATM withdrawals, to a balance of $119.75 on 3 August 2015. There is a high activity of ATM withdrawals of amounts of several hundred or $1000 at a time on almost a daily basis across the periods in the bank statement. On 15 August 2015, a deposit identified as “mature term deposit” of $19,148.24 was made. On 17 August 2015, the pattern of high level ATM withdrawal recommenced. Between 18 August 2015 – 25 August 2015 $1000 was withdrawn each day. The bank statement for September has not been provided, but it is evident from the October statements that a large deposit has been made in September. A high rate of large ATM withdrawals is also evident in the October statement.
- The Tribunal questioned LS about the nature of these withdrawals. She stated that she made the decision to give BL, her youngest son, the money as he had asked for funds to purchase a car collection for both of them. She stated that she considered that she had had no access to money throughout the marriage, and she was in a position to gift the funds that her son requested. She said that she had gifted funds to grandchildren and paid funds following her daughter’s death last year. She said that BL had not done anything wrong, but she had made the decision to give the funds to family members as the funds were her money also, although she noted that both she and LK had separate bank accounts.
- The Tribunal raised concerns about the frequency, nature and amount of withdrawals which had depleted the funds in a very short period.
- The Tribunal notes that there are nine different Eftpos transactions in October 2015, from a Gamestronic Pty Ltd in Kippa Ring in sums between $399.90 and $50 totalling $1,328, which have not been accounted for.
- The Tribunal is concerned about the preservation and investment of LK’s funds. There appears to be income received from some source which needs to be managed and protected, and applied to meet LK’s future needs. There is also a real property which is jointly owned which needs to be managed. The current pattern of use of his funds suggests there is a need for decisions to be made to manage and protect LK’s income and assets, as well as the day to day management of his affairs. It is the Tribunals view that without an appointment LK’s interests may not be protected.
- Under section 15, the Tribunal must consider whether LS is appropriate and competent to act as LKs’ administrator. LS advised that she has “did not understand the finances” and was “doing her best”. She was asked how she would go about finding out about the nature of LK’s investments so she could take action to protect them. She indicated that she was not aware of how to do this and had no proposal around this. No financial management plan was provided with the application, and LS indicated that she was not aware that she had to provide this, despite two requests from the Tribunal registry for this document. SW stated that she had not provided this financial management plan. The Tribunal queried why she would be doing this given this was not her application. She remarked that she had not posted it. This was an unclear response given LS’s evidence was that the document had not been prepared.
- The evidence suggests that LS has acted as informal administrator since February 2015, while operating LK’s bank account. In this period, his investment has been significantly depleted in a short period and applied to funds which are of no benefit to the adult. In circumstances where LS had no proposal to protect and invest LK’s funds, the Tribunal considers LS is not appropriate or competent to be appointed as administrator. The Tribunal appoints the Public Trustee as administrator, until further order, to be reviewed in two years.
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- Shortened Case Name:
 QCAT 149
20 Apr 2016