Re FM[2016] QCAT 431

APPEARANCES:

FM represented by

Karen Williams, Queensland Aged and Disability Advocacy (QADA), Tribunal appointed representative for FM

Neil Wilkinson, Applicant

Lucy Salerno, Legal Representative for the Public Trustee of Queensland

Marion Hall, Regional Manager, Public Trustee of Queensland – Sunshine Coast Office with Lucy Salerno, legal representative for the Public Trustee of Queensland

REASONS FOR DECISION

Background

1. [1]
   FM is 49 years old. As a child, FM was educated largely by services in special education. For a large portion of his life he resided with his aunt, who cared for him as his guardian. He lived with her until she was elderly and relocated to an aged care facility.
2. [2]
   In 2001, a community health social worker applied to the Tribunal for the appointment of a guardian and an administrator. The basis of the application was that FM was living alone in his aunt’s home, was vulnerable personally and financially, had no community support and spent his Centrelink benefit soon after receiving it each fortnight. The Tribunal appointed the Adult Guardian (as it then was) as his guardian and the Public Trustee of Queensland (‘PTQ’) as his administrator each for one year.
3. [3]
   On review in 2002, those appointments were continued for three years, though the Adult Guardian’s appointment was limited to service provision decisions. The PTQ made an application to the Tribunal to have the appointment of the Adult Guardian enlarged as FM had been evicted from his aunt’s house. When that application was heard in 2004 along with a declaration about capacity lodged by FM, both appointments were revoked.
4. [4]
   FM’s aunt passed away in May 2011. FM was the beneficiary of her estate. On 25 March 2013, this Tribunal^[1], considering an application for the appointment of an administrator and an application for a declaration of capacity, appointed the PTQ as administrator for FM for managing matters relating to the management of the inheritance under the will of FM’s late aunt, a limited appointment.
5. [5]
   That appointment does not give the PTQ the power to manage all matters concerning FM’s financial affairs. It does not, for example, entitle the PTQ to manage FM’s bank account into which the PTQ pays the amount of $600.00 per week. The PTQ cannot make decisions about how FM spends that money. Further, relevantly to the matter now before me, the PTQ is not the substitute decision maker for signing contracts relating to financial matters such as to purchase a home, to take out a personal loan and the like.
6. [6]
   In managing FM’s inheritance, the PTQ has invested a significant sum, in shares and term investments and other managed funds. As at 17 June 2016, the amount invested was $861,572.00 with an amount of $17,227.00 being held in a direct cash account.

The applications before me

7. [7]
   On 13 May 2016, Mr Wilkinson applied for a review of the appointment of the administrator. On that same date, the PTQ applied for a review of its appointment. In the event that the Tribunal made an order to continue the appointment of the PTQ as administrator for FM, it sought to be appointed for all financial matters.
8. [8]
   I have considered the documentary evidence and submissions filed in the Tribunal together with the oral information provided by those who attended the hearing. The salient parts of the evidence are referred to in these reasons.

The review process

9. [9]
   This proceeding is the review of an appointment of an administrator for an adult under the Guardianship and Administration Act 2000 (Qld) (‘the Act’). The appointment review process is set out in s 31 of the Act.
10. [10]
    Section 31 of the Act provides that the Tribunal may conduct a review of an appointment of an administrator for an adult in the way it considers appropriate. Section 31(2) provides that at the end of the review the Tribunal must revoke its order making the appointment, unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
11. [11]
    Essentially then, the Tribunal must go through the same steps that it would if it were considering whether to make a first appointment.
12. [12]
    If the Tribunal is satisfied that there are appropriate grounds for an appointment to continue it may, either continue its order making the appointment, or change its order making the appointment, including for example, by changing the terms of the appointment, or removing an appointee or making a new appointment^[2].
13. [13]
    However, s 31(4) makes it clear that the Tribunal may make an order removing an appointee only if the Tribunal considers:

    1. The appointee is no longer competent; or
    2. Another person is more appropriate for appointment.
14. [14]
    Section 31(5) sets out examples of when an appointee is no longer competent:

1. (a)
   a relevant interest of the adult has not been, or is not being, adequately protected; or

2. (b)
   the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or

3. (c)
   the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or

4. (d)
   the appointee has otherwise contravened this Act.

15. [15]
    For the Tribunal to appoint a substitute decision maker it is necessary for it to apply s 12 of the Act. The Tribunal may, by order, appoint an administrator for a financial matter for an adult if the Tribunal is satisfied:

1. (a)
   the adult has impaired capacity for the matter; and

2. (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

3. (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.

16. [16]
    The appointment may be on terms considered appropriate by the Tribunal^[3].
17. [17]
    The Act acknowledges certain things, including, that an adult’s right to make decisions is fundamental to the adult’s inherent dignity; the right to make decisions includes the right to make decisions with which others may not agree; the capacity of an adult with impaired capacity to make decisions may differ according to the nature and the extent of the impairment, and the type of decision to be made, including for example, the complexity of the decision to be made and the support available from members of the adult’s existing support network.^[4]
18. [18]
    The Act also acknowledges the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent, and that an adult with impaired capacity has a right to adequate and appropriate support for decision making^[5].
19. [19]
    The Act seeks to strike an appropriate balance between the rights of an adult with impaired capacity to the greatest possible degree of autonomy in decision making, and to the adult’s right to adequate and appropriate support for decision making.^[6]
20. [20]
    The way that that purpose is achieved is that the Act provides, amongst other things, that an adult is presumed to have capacity for a matter. The Act together with the Powers of Attorney Act 1998 (Qld) provides a comprehensive scheme to facilitate the exercise of power for financial matters by or for an adult who needs, or may need, another person to exercise power for the adult, and states principles to be observed by anyone performing a function or exercising a power under the scheme. It also encourages involvement in decision making of the members of the adult’s existing support network and confers jurisdiction on the Tribunal to administer particular aspects of the scheme.^[7]
21. [21]
    In this case, the type of matter to be considered is a financial matter. A financial matter, for an adult, is a matter relating to the adult’s financial or property matters, including a matter relating to, most relevantly here, preserving or improving the adult’s estate, investing for the adult in authorised investments and withdrawing money from or depositing money in the adult’s account with a financial institution.^[8]
22. [22]
    A person or other entity who performs a function or exercises a power under the Act for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in schedule 1. The general principles in schedule 1 include the presumption of capacity, the encouragement of self-reliance, and an adult’s right to participate to the greatest extent practicable in decisions affecting their life.^[9]

Findings of fact, undisputed matters

23. [23]
    Essentially, the applications before me were prompted by certain events relating to FM’s desire to purchase a particular house. The subject property was special to FM for reasons that will be explored later. The following facts are not in dispute and I make findings of fact accordingly.
24. [24]
    FM signed a contract to purchase the property on 10 November 2015. In the contract, the Public Trustee is stated to be the buyer’s solicitor. The finance date was stated to be “14 days after Date of Contract”. Building and/or pest inspection date is stated to be “21 days after Date of Contract”. Reference is made in the contract to two “boarders” residing at the property, the term of their tenancy being referred to as “periodic”. The settlement date is stated to be 40 days after the date of contract. The following special condition formed part of the contract:

This contract is further subject to and conditional upon the approval of the Public Trustee within 14 days of the date hereof.

25. [25]
    I also accept and find that the following relevant events occurred after the contract was signed. On 13 November 2015, the PTQ sent the real estate agency a letter stating, amongst other things, that the PTQ would have to obtain a valuation of the property and subsequently prepare a new contract of sale.
26. [26]
    On 10 December 2015, the PTQ received a hand written letter from FM stating he wished to purchase the property and wanted to live there with the present tenants to remain as boarders.
27. [27]
    On 19 January 2016, the PTQ met with FM and Mr Wilkinson to discuss the contract of sale and the PTQ’s requirements to obtain a recent medical report as well as a report from an occupational therapist to determine FM’s accommodation and health needs. At that meeting, FM advised he opposed that process.
28. [28]
    At the request of the PTQ, a building inspection was carried out on 3 March 2016. The summary of findings in the report included:

The overall condition of the house is in poor condition

The internal floor coverings are in average condition

The internal curtains are in average condition

The internal paintwork and wall surface is in poor condition

The kitchen is in below average condition

…

The external walls are in poor condition.

…

The property and garage was in poor condition, budget for a major maintenance program, recommend seeking further advice from a licensed & practising carpenter & joiner.

29. [29]
    The PTQ’s ‘Property Services’ Department carried out a review of the building condition report and made its own assessment and recommendations on 7 March 2016. The recommendation stated:

Overall condition of the dwelling is considered to be poor with suspected asbestos sheeting to the external cladding.

…

Timber fascia’s and soffit and cladding battens have signs of decay/weathering, repair/replace where required. Off Panel Carpenter – Quotes to be obtained – Priority 4

Various damaged stumps detected. Recommended a suitable, experienced restumping contractor to further investigate and give probable cost of replacement/rectification. Off Panel Builder – Quotes to be obtained – Priority 2

Repair/replace damaged timber stairs & handrails. Off Panel Carpenter – quotes to be obtained – Priority 3

Garage was in poor condition, damaged exterior fc sheeting, decay to fascia’s etc, budget for a major maintenance program, recommend seeking further advice from a licensed off panel builder. Priority 3

Recommend connecting downpipes to a legal point of discharge. Off Panel Plumber – Quotes to be obtained – Priority 4

30. [30]
    For the purposes of that report, ‘priority 2’ works are matters requiring urgent repair or that are unserviceable. ‘Priority 3’ includes defective works or where repairs are strongly recommended. ‘Priority 4’ are general maintenance/routine normal ongoing maintenance recommended to prevent further deterioration.
31. [31]
    FM still wished to proceed with the purchase after receiving the pest and building inspection reports.
32. [32]
    A ‘Notice to Complete’ requiring completion of the contract on 26 April 2016 was served on FM care of the PTQ.^[10]
33. [33]
    On 27 May 2016, this Tribunal (differently constituted) dismissed an application by the PTQ to appoint a guardian for FM for health and accommodation decisions. From the application form, it appears that the basis of the application was that FM intended to purchase the home but there was no medical information regarding his ability to live in and maintain a residence. The PTQ had concerns then about releasing funds for the purchase of the house without those matters being assessed. The Tribunal does not have before it the transcript of that proceeding.
34. [34]
    The PTQ obtained a quote dated 10 June 2016 for repair work required to be carried out at the property which estimated the cost at $18,843.00.
35. [35]
    On 17 June 2016, the PTQ obtained financial advice which considered the alternative investment strategy of purchasing the house. The essence of the financial advice was that a better financial outcome would be provided to FM over a 20 year period if the property were not purchased.
36. [36]
    The PTQ informed the vendors that it had not consented to the transaction. Ultimately, FM’s purchase of the house did not proceed.
37. [37]
    The property has since been sold to a third party.

Does FM have impaired capacity for a financial matter?

38. [38]
    I must determine whether the presumption of capacity is rebutted for a financial matter.
39. [39]
    ‘Capacity’ is defined in schedule 4 of the Act:

capacity, for a person for a matter, means the person is capable of—

(a) understanding the nature and effect of decisions about the matter; and

(b) freely and voluntarily making decisions about the matter; and

(c) communicating the decisions in some way.

40. [40]
    Due to the manner in which his significant inheritance has been invested and also the amount of that inheritance, I find that FM’s financial affairs are complex. Therefore, management of them requires the capacity for making complex financial decisions.
41. [41]
    I have considered the medical evidence held on the file. On 17 April 2001, Dr Wendy Welsh stated that FM had impaired decision-making ability as a result of an intellectual disability. It was noted that he had been in receipt of a pension since 1990 and had attended special school. However, at the time of providing the report, Dr Welsh had not seen FM since 1997, so that she was unsure of the extent of any impairment at the time of her report.
42. [42]
    In a report dated 31 March 2004, Dr Louise Phillips stated that FM could make his own decisions, that he budgeted $20 per day and was living on the streets of a particular town. Those reports pre-dated FM’s receipt of his inheritance.
43. [43]
    On 18 October 2012, Dr Maureen Field, a clinical psychologist, assessed  FM. She stated that he had been on a pension since 21 June 1990, that he was at that time receiving a pension of $637.70 per fortnight. She reports that FM said he spent his pension mostly on food and did not gamble, and preferred to live outside. His IQ was recorded at 72. It was stated to be full-scale borderline, the subsets were borderline to low-average. It was stated that it was unlikely that he had psychological distress or a mental disorder. She stated that his memory for stories and learning of words were average. She said that his working memory was at an extremely low level, but his digit span sequencing was low-average. His math computation was borderline, but it was sufficient for day-to-day transactions.
44. [44]
    Dr Field stated that FM was cognisant of his limitations and could seek professional advice in respect of the management of his inheritance if necessary. She expressed the opinion that FM had the capacity for decision making in relation to his financial matters. She gave evidence before the Tribunal that ultimately appointed the PTQ.^[11]
45. [45]
    No updated medical reports have been provided to the Tribunal.
46. [46]
    The Tribunal in Re FM considered the same medical evidence. and stated that several issues emerged during the Tribunal’s conversation with FM that cast a cloud of doubt over Dr Field’s evidence and FM’s lawyers’ submissions^[12]:

[FM] is a poor historian. He could not (or would not) provide details of his life and the timing of important events; he responded that he could not remember. While he pays no rent (he sleeps on a bench outside the Nambour post office), has no assets of note, and purchase of food appears to be his primary fortnightly expenditure, he has accumulated about $2,500 only in savings over nine years.

He reported no friends but acknowledged his vulnerability to others when he was living with his aunt prior to his conviction. There was also a suggestion that he was influenced by a male around the time the Tribunal issued directions in regard to a neuro-psychological assessment.

[FM] has literacy and arithmetic limitations and does not keep any documents. He reported that he destroys bank documents and revealed the destruction of documents from his legal representatives including the fee agreement. He reported no understanding of his agreement with his legal representatives, was not sure on what basis they were charging fees, or of their current costs. He could not explain how the Tribunal appeal came about or why, other than his belief that he did not need an assessment.

[FM] could not speculate about what he might to do with his inheritance if the Tribunal found that he had capacity. He was prompted about term deposits, buying and then putting a house on the rental market as he was not inclined to change his current lifestyle but these conversations revealed no clear process. He mentioned that he would seek financial advice but was unable to explain what advice he might seek. Several times he stated that he had not given any thought to the inheritance or what he might do with it, and would wait until he had it, put it in the bank and then decide. Apparently, this has been his position since first learning of his entitlement some 22 months ago.

47. [47]
    The Tribunal went on:

[FM] stated that he has kept his inheritance quiet and has told no one about it. When questioned further, he was less sure about such revelations but did not elaborate. Ms Burton however informed the Tribunal that his significant inheritance is common knowledge in Nambour.

48. [48]
    The Tribunal concluded:^[13]

On the basis of the written and oral evidence summarised immediately above, the Tribunal is not satisfied [FM] understands the nature and effect of decisions that have been made, or might need to be made in regard to the discharge and management of the inheritance.

49. [49]
    The Tribunal further stated:^[14]

The Tribunal is satisfied that [FM] is vulnerable to financial exploitation. There is a history, albeit somewhat unclear, of susceptibility to the influence of others and while [FM] might not act impulsively, the passive way in which he deals with others and the revelations which he has already made public suggests a degree of jeopardy if no constraints exist about access to his inheritance.

50. [50]
    Mr Wilkinson sought to challenge the reasoning of the Tribunal particularly in regard to what is stated about whether FM had disclosed that he had a significant inheritance to others in his local community. The reasons of the previous Tribunal are not evidence. However, based on FM’s evidence and presentation at the hearing, I share similar concerns in relation to FM’s ability to manage the large investments he currently holds.
51. [51]
    FM told the Tribunal that $600.00 is paid into his account each week to which he has access via a key card. I asked him what he spends that money on and he indicated ‘whatever I need to buy – shopping and everyday stuff’. I asked him how much money he currently held in that account. He said ‘almost $500.00’. He does not pay any rent. He said he lives all over Nambour, nowhere in particular, at the current time. It is concerning that with his main expense being food from his $600 per week, FM has just $500 in his account.
52. [52]
    He goes to the Nambour post office every day to collect his mail. I asked him if he keeps his letters, and he said that he does. I asked him where he puts them and he said that they were in a cupboard in Nambour. He would not disclose where the cupboard was, but said that he did read them before putting them in the cupboard.
53. [53]
    I asked him about whether he was aware of his investments and whether he was happy with the investments that he had. He said he was not happy with how the PTQ had invested his money. He said that was because he wanted to buy a house and they said no. He said that he wanted to keep the house to keep the boarders there that he would say hello to every day. From FM’s responses to my questions, it is clear he now rarely sees the two boarders that were living at the house.
54. [54]
    In relation to the purchase of the house, he indicated that he had seen the sale sign and spoken to “Boss”^[15] (Mr Wilkinson) about it. He could not at first recall the contract amount. He said that a deposit was not paid as there was no money in his account for the deposit. He was unable to recall who had written the special condition into the contract, although he was able to say that Mr Wilkinson was with him when he attended the real estate agent’s office. At one point FM said he might have written the special condition but then said it did not look like his writing. He said that the real estate agent explained the contract to him and that Boss explained it as well. He said that no one else but Boss knew about how much money he had. He agreed he had not talked to the PTQ before signing the contract on the house, but he thought that they would agree. He said he signed the contract.
55. [55]
    I asked him whether he had read the building inspection report in relation to the house. He said that he had read it. I asked him what he thought about it. He said that there were little bits here and there that had to be fixed that could have been fixed, but it was alright. I asked him whether he would have lived there. He said that he could maybe have lived there.
56. [56]
    He did not consider that he needed any help to manage his finances. I asked FM what he would do with his money if the PTQ were not involved. He said “shares and maybe a house”. In response to my questioning, he said that he was not looking for a house at the moment. He said he was undecided about whether he needed a house.
57. [57]
    While FM did not sleep at the property he wanted to buy, he visited the home daily. FM told me that he did so to visit the two people at the property. Mr Wilkinson said that FM also stored his mowing gear at the property. FM had carried out this routine of visiting the property each day for a number of years.
58. [58]
    FM said he met Mr Wilkinson when Mr Wilkinson was driving cabs and they had known each other quite a while, but he could not recall exactly how long. In response to my questions, FM said that he trusted Mr Wilkinson because he was a good bloke and he liked him. He said he had not given Mr Wilkinson any money.
59. [59]
    FM has little understanding of the nature of his current investments, other than that they are in shares. He was unable to articulate any alternative investment strategy, despite expressing the view that he did not like the way the PTQ was investing his money. In his response to my questions about how he would invest his money, he reflected the type of investments that have already been made, or that he had wanted to make (in terms of the house) as the appropriate investment strategy. He could not recall who had put the special condition in the contract. Mr Wilkinson told the Tribunal that he had done so.
60. [60]
    It is clear that FM was unable to arrange the purchase or signing of the contract without considerable assistance from Mr Wilkinson. Mr Wilkinson said he had investigated, on FM’s behalf, comparative sales in the area. He had negotiated the purchase price that was ultimately placed in the contract, He had written in the information nominating the PTQ as FM’s solicitor in the purchase and also added the special condition in the contract.
61. [61]
    FM has relied considerably and significantly upon Mr Wilkinson in arranging the purchase of the house. FM’s simplistic answers do not support a finding that he had any proper understanding of his contractual obligations upon signing the contract. Mr Wilkinson said that he told FM that he would not get the house if the PTQ said no. However, from his evidence I consider that FM had an expectation that the PTQ would ‘say yes’. I am concerned that he did not understand the potential ramifications if in fact the PTQ ‘said no’.
62. [62]
    In my view, his reason for wanting to purchase the house was to ensure he could continue to see the two boarders. That is what he clearly articulated to me. When he wrote the letter to the PTQ in December he also referred to the boarders. I accept that the visits to the property were part of his usual routine and he stored some things there. However, in the absence of the boarders, I do not consider that FM would have regarded the house as such a significant part of his life or routine. Now that their circumstances have changed, he rarely sees the boarders. Purchasing a house is a significant investment. His reason for wanting to purchase the property does not reflect any consideration of the purchase being a prudent long term or even short term investment strategy.
63. [63]
    What transpired after the signing of the contract was correspondence from the lawyers for the vendors, notices to complete and the like. The correspondence and the legal implications for FM were in my view outside FM’s capacity to fully comprehend even with the informal support he was obtaining from Mr Wilkinson.
64. [64]
    Despite receiving $600 per week from the PTQ, and having limited disclosed expenditure other than the purchase of food, FM says he has only $500.00 in his bank account. I am concerned that FM is vulnerable to the influence of stronger personalities. I consider that he is susceptible to the influence of those who earn his trust.
65. [65]
    For those reasons, and relying upon Ms Field’s report in terms of the deficits in FM’s working memory and his overall IQ, I makes the following findings of fact.
66. [66]
    FM has an intellectual impairment. He has deficits in working memory and a full scale IQ of 72. His financial affairs are complex. FM does not know the detail of his investments. He does not understand the ramifications of failing to comply with legal obligations.
67. [67]
    Applying the law to those facts I conclude that as a result of his intellectual impairment FM does not understand the nature and effect of decisions about more complex financial matters. I conclude that the presumption of capacity for financial matters is rebutted.

Is there a need for a decision in relation to financial matters?

68. [68]
    I must then consider whether or not there is a need for a decision in relation to financial matters 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.
69. [69]
    I find that FM, relied heavily on Mr Wilkinson in an effort to purchase the house. He signed the contract of sale without consulting the administrator appointed to make decisions about the funds that would enable him to pay for the house. That occurred even with the informal support from Mr Wilkinson.
70. [70]
    The result was that the PTQ was placed in a position, after the contract of sale was signed with all its legal obligations, including whether to give approval within 14 days and the nominated settlement date, to make a decision about whether to make funds available for the purchase. As FM said, he assumed that the PTQ would agree, even when Mr Wilkinson says he told him that he would not get the house if the PTQ “said no”. As he did not speak to the PTQ first, FM could have had no clear understanding of the process the PTQ would go through to make its decision about whether to make the necessary funds available to purchase the house. As the contract, with its terms referring specifically to the PTQ, was already signed when the PTQ became aware of FM’s desire to purchase the property, the PTQ had to engage with the real estate agent and the solicitors for the vendors regarding the contract.
71. [71]
    The PTQ submits that a broader appointment is necessary to properly protect FM. The vendor in issuing a notice to complete, alleged that he had acted in good faith, entered into the contract for fair market value and without knowledge that FM was or could be incapacitated.^[16]
72. [72]
    Mr Wilkinson takes issue with the PTQ’s submission that, without a broader appointment, FM “would be able to walk into a car yard, enter into a contract to buy a new vehicle and the contract would be enforceable against him, provided the vendor acted in good faith and the transaction was for adequate consideration, in the absence of knowledge of any incapacity”.
73. [73]
    Mr Wilkinson relies on s 83 of the Public Trustee Act 1978 (Qld) which he says is directly applicable. The Tribunal accepts the PTQ’s submission that s 83 does not apply in this case as FM is over 18 years of age.^[17]
74. [74]
    I accept the PTQ’s submission that its limited power did not enable it to assert that FM was not able to sign the contract to purchase the property. I accept the PTQ’s submission in relation to the reasoning in Bergmann v DAW^[18] The PTQ submits that that case is the leading authority in Queensland for the proposition that notwithstanding a person may have decision making capability, where an order of the Tribunal has determined the person lacks capacity for a matter and an administrator is appointed for an adult in relation to that matter, the adult lacks capacity and the power to make decisions in respect of that matter is entrusted to the administrator. That power in relation to financial matters stands solely with the administrator and any contract entered into by an adult has no legal force or effect. I accept that the PTQ could not rely on its administration order limited to the management of the inheritance as a basis to argue that any contracts signed by FM had no legal force or effect^[19]. That meant that the PTQ had to rely on the special condition in the contract to end the contract.
75. [75]
    I am concerned that FM may sign contracts without fully comprehending the obligations therein or be persuaded by others to commit to contracts that may be enforceable against him in the absence of the appointment of an administrator for such matters.
76. [76]
    I accept Ms Williams’ submission that there is no evidence that FM “has a history of running around putting contracts on houses or other expensive items”.^[20] However, FM’s actions in relation to the signing of the contract even with informal support and the findings I have already made support my conclusion that without a broader appointment, FM’s interests will not be adequately protected. FM could take out a personal loan or sign contracts for significant assets in the future and his inability to properly comprehend the legal implications may put his finances at risk. He has already done so once.
77. [77]
    It does not follow that if I appoint an administrator for all financial matters that FM will be unable to withdraw funds from his bank account and purchase items with those funds as he sees fit. 
78. [78]
    Further, at the current time and into the future there is an ongoing need to manage FM’s substantial financial investments to ensure that FM is financially supported for as long as possible.
79. [79]
    I conclude that there is a need for decisions to be made in relation to financial matters. Further, I consider that FM is likely to do something in relation to his financial matters that involves, or is likely to involve, unreasonable risk to his property.
80. [80]
    I am further satisfied that without an appointment, FM’s needs will not be adequately met, or his interests will not be adequately protected.

Conclusion in relation to whether the appointment of an administrator should continue

81. [81]
    Being satisfied of the matters set out in s 12 of the Act, I am satisfied that I would make an appointment if a new application for an appointment were made.^[21] I am therefore satisfied there are appropriate grounds for the appointment to continue under s 31(3) of the Act.
82. [82]
    Therefore, I can go on to consider whether or not it is necessary to change the order appointing the PTQ by changing the terms of the appointment, removing an appointee, or making a new appointment.
83. [83]
    The PTQ argues that I should make an order appointing the PTQ for all financial matters.
84. [84]
    For reasons previously given, I am of the view that an administrator should be appointed for all financial matters.

Who should be appointed as administrator?

85. [85]
    As this is a review of the appointment of an administrator, the PTQ being the current appointee, the Tribunal may make an order removing the PTQ only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.
86. [86]
    Ms Williams does not submit that the PTQ is not longer competent but submits that Mr Wilkinson is more appropriate.
87. [87]
    Ms Williams submits that while the PTQ has obligations to ensure it abides by its duties as a ‘fiduciary’ in this case “in what seems like a belated attempt to respond as an ‘informed decision-maker’ seeking reports, this seems to have resulted in a breakdown of relations with FM”. She says that the PTQ did not respond in a respectful or dignified way. They continued she says to act in a restrictive way including seeking to extend their appointment to “all financial matters”. She says FM does not have a history of entering into contracts to purchase houses not purchasing other expensive items, and fully understands that his moneys are controlled by the PTQ. He thought the belated requirement to submit to medical reports was unfair.
88. [88]
    She says that the PTQ has not been inclusive nor encouraging of FM’s independence or respecting his choices and abilities. Ms Williams also submits that the PTQ did not tailor their approach to decision making to FM as an individual. She submits that the PTQ did not seek to clarify FM’s views and wishes to understand his reasons for acquiring the property.^[22]
89. [89]
    In response, Ms Hall said that the PTQ did take into account FM’s desire to purchase the house.
90. [90]
    Clearly, meetings were held with FM regarding the purchase and his plans for the house. I accept that the PTQ was mindful that FM wanted to purchase the house when it took the steps it did. The PTQ was also familiar with FM’s history in terms of his living arrangements and his previous eviction from a property.
91. [91]
    I have examined the PTQ’s records of its meetings with FM and Mr Wilkinson regarding the purchase of the house and its ‘protocols’ in relation to deciding whether to make the funds available for the purchase. I consider that the records reflect that the PTQ has been respectful of FM’s views and wishes and that it has, both in meetings and correspondence, attempted to explain to FM, in Mr Wilkinson’s presence, the PTQ’s reasons for following the protocols and requiring certain steps to be taken before it could commit to providing the funds to purchase the house. For example, it was explained that an occupational therapist assessment was considered necessary to ascertain whether FM can live in and maintain a property and mitigate any risk in buying a property.
92. [92]
    Mr Wilkinson sought to rely on statements apparently made by the learned member who dismissed the PTQ’s application for the appointment of a guardian to the effect that there was no compelling reason for the PTQ to seek the occupational therapist assessment. As I have already stated I do not have the transcript of that hearing. I place no weight on the hearsay evidence of Mr Wilkinson in that regard. Further, and in any event, it is a matter for me to determine the applications now before me. What another member might have said at a hearing on another application is not evidence upon which I can make findings of fact.
93. [93]
    I consider that the PTQ by seeking to change its appointment is not seeking to restrict FM from making large purchases but rather to protect FM from entering into complex legal documents without fully understanding the obligations they impose. I have already found that the appointment of an administrator should be for all financial matters.
94. [94]
    I do not consider that there is sufficient evidence that the PTQ has not treated FM with dignity and respect. FM is very unhappy and perhaps even angry with the PTQ for preventing the purchase of the house. However, the fact that the PTQ did not provide the funds to purchase the house does not establish that the PTQ was not respectful of FM’s views and wishes. 
95. [95]
    Mr Wilkinson’s application, on the hand, does assert that the PTQ has been incompetent. He referred to the ‘gross negligence’ of the PTQ in matters relating to the contract of sale. His written submissions take issue with much of the PTQ’s written submissions. Mr Wilkinson is a retired lawyer. While he no longer practises, I consider that he should possess the skill to read and interpret legislation and understand basic legal principles. From the email exchanges between Mr Wilkinson and the PTQ and from the submissions from both Mr Wilkinson and the PTQ, I conclude that once FM approached Mr Wilkinson about purchasing the property, Mr Wilkinson effectively acted as his agent or advocate in FM’s interactions with the PTQ. His emails to the PTQ became increasingly adversarial.
96. [96]
    He refers to the PTQ having never advised FM or himself in respect of particular matters. He makes accusations that the PTQ did not provide any advice to the vendor concerning the special condition and thus ‘lost to itself by its own default negligence or incompetence the advantage of that clause’.^[23]
97. [97]
    However, it is clear from the PTQ’s correspondence that it did seek to rely on the condition to end the contract.^[24] Mr Wilkinson’s submission goes on, ‘It is incorrect to say that the Public Trustee is limited to the management of the inheritance and that it did not extend to the contract’. Mr Wilkinson claims that the PTQ had ‘absolute control of that contract by the very clause I have just referred to’.^[25] With respect, Mr Wilkinson’s submission in that regard misses the point of the PTQ’s submissions. As I have already found, the terms of the PTQ’s appointment did not extend to entering into contracts to purchase a house.
98. [98]
    Mr Wilkinson also submits that the special condition was inserted by FM. He states ‘that is why [FM] had that clause inserted in the contract. I was present when it was being drawn by the agent’. The Tribunal does not accept that FM put that clause in the contract. Mr Wilkinson said he wrote the special condition. I consider that Mr Wilkinson takes certain action or assists or advises FM to take certain action and then defends it on the basis that it was the action of FM. I do not consider that FM has the capacity to understand that that is what Mr Wilkinson has done or is doing. While I accept that FM trusts Mr Wilkinson, I consider that FM perceives Mr Wilkinson as someone who very assertively stands up for him and has supported what he wants. It is therefore of no surprise that FM would prefer Mr Wilkinson to be his administrator.
99. [99]
    Mr Wilkinson has also claimed that the PTQ has misconstrued what FM’s intention was in respect of the house. He says that FM wanted to reside or live there, just as he had for a great deal of time prior to 10 November 2015. He goes on ‘it was his centre, his world on a daily basis. For all intents and purposes he lived there. He did not sleep there. His possessions were stored there, he socialised there daily. It was his base to which he returned every day’.^[26] Again, the Tribunal considers that Mr Wilkinson’s submissions miss the point of the PTQ’s concerns.
100. [100]
     The intentions of FM in respect of the house necessarily required clarification. If FM intended to use the property as an investment property then it would necessitate lease agreements with the tenants. There would also be requirements in terms of the house being fit for tenants. On the other hand, if he intended to live there, then there would be concerns regarding the status of the boarders. There were also concerns about FM’s ability to maintain the property. All of those matters would necessarily impact the funds held by the PTQ. FM’s financial investments would be affected by the purchase of the house.
101. [101]
     Further, as I have already found, FM’s desire to purchase the property was clearly linked to the presence of the two boarders. I consider that in the event that either one of the boarders moved out, FM’s interest in the property would have likely dissipated. It is one thing to visit a home but it is quite another to own it and be responsible for all repairs, rates and other outgoings, tenants, and lease agreements. Selling the property in the short term would also likely have an adverse impact on FM’s financial position.
102. [102]
     Mr Wilkinson also relies on the fact that the contract appoints the PTQ to act on FM’s behalf in the purchase. He states ‘at no time did the PT ever decline that appointment or repudiate the authority.’ Relying on that clause he submits that the PTQ’s assertion that it had no authority to act for FM in relation to the contract, because the administration order did not extend to contracts FM may sign, is false.^[27]
103. [103]
     I accept Ms Hall’s evidence that the PTQ cannot act as a solicitor for FM in the purchase. Further, I accept Ms Hall’s submission that it was not necessary for it to “repudiate that authority” in any way. It simply did not take up that appointment as it could not do so. I am concerned that Mr Wilkinson given his legal background would not have known that.
104. [104]
     Mr Wilkinson has, in my view, exerted considerable authority over FM. He has in my view advised FM in negotiating the contract of sale, formulating the terms of the contract and in FM’s dealings with the PTQ.
105. [105]
     It is of concern that Mr Wilkinson did not see the need, given his considerable involvement in the negotiation of the contract, to contact the PTQ in advance of the signing of the contract so that proper discussions could have been had with FM about the plans he had for the property. Mr Wilkinson submits that unless the PTQ is dismissed, FM’s hands are tied and his ability to acquire anything is limited to his weekly take of $600.00. I do not accept that that is the case. It is not appropriate to draw the conclusion, based on what occurred with the contract to purchase a particular property, that FM would not be able to make any purchases of a significant nature using his investment funds at any future time. 
106. [106]
     I consider there is a significant difference between a person who advocates on behalf of an adult and a decision maker. Whilst the Act clearly states that the adult should be involved in decision making, the adult, in circumstances where an administrator is appointed, does not make the decision. I asked Mr Wilkinson how he would have gone about making the decision in relation to the purchase of the house. Mr Wilkinson said, based on his knowledge of FM, he would have weighed FM’s wishes and investments, and ultimately probably decided to purchase the house. His actions in relation to assisting FM to sign the contract to purchase the house and his subsequent exchanges with the PTQ and his application to this Tribunal all support a finding that he supported the decision to purchase the house. His submissions in response to those of the PTQ and his criticism of their actions after the contract was signed cause me concern about Mr Wilkinson’s ability to bring an objective mind to decision making concerning FM.
107. [107]
     I also have concerns regarding the correspondence Mr Wilkinson sent to the PTQ. As an example, his email of 19 January 2016, where he criticises as ‘imprudent’ the decision of the PTQ not to purchase the house, states:

I do not know what [FM] is going to do. I have asked him to consider all the circumstances and then decide if he wants to continue given the conditions “you” have imposed – his choice is either comply with what “you” want or just walk away. If he walks away you will have to accept all the responsibility for any causally related consequence if he suffers in anyway, living without the home he wanted to buy. You have made many comments that you support his acquisition of this property and the only condition you were concerned about until today was that the property was worth what [FM] has agreed to pay. You then ordered a valuation at [FM]’s expense and that proved it was a financially sound purchase on his part without any part from you. After the meeting [FM] showed me your letter of 4 January 2016 and it might surprise you as it does not surprise me that he understood that your current investment strategy means all of his money will be gone by the year 2032. He highlighted that part of the report before I read it. He also made the obvious point that it would not all be gone if he bought his house he wants. It also inspired him to think that it may be better to use all his money now in some other way than leave it in your hands when your advisors confess it will all be gone in 16 years!

108. [108]
     I questioned Mr Wilkinson about whether he was asserting that the PTQ’s decision not to provide the funds for the purchase was an imprudent decision, or whether he was saying that the PTQ simply should have allowed FM to purchase the property because that is what he wanted.
109. [109]
     Mr Wilkinson said he would have purchased the property. He also acknowledged the tone in the email but said he was upset on FM’s behalf.
110. [110]
     Ultimately, the PTQ obtained financial advice in which the strategy of purchasing the property was compared with the current investment strategy being used by the PTQ and the purchase of the property was found to be the least recommended strategy.^[28] The PTQ has responsibilities as any administrator to invest an adult’s funds prudently.
111. [111]
     Mr Wilkinson has raised concerns that the PTQ breached FM’s confidence on two occasions. The first is in relation to a form that was provided to FM from the PTQ via the gentleman who operates the local newsagency. The PTQ explained that FM attends the newsagency every day, and as the document was urgent it was provided in a sealed envelope and the newsagent agreed to hand it on to FM with instructions.
112. [112]
     Mr Wilkinson argues that the PTQ has essentially discussed FM’s private and personal financial or tax matters with an unauthorised person. Ms Williams also says that FM ‘found the disclosure of his affairs through the local newsagent to be humiliating’.^[29] I am not satisfied that there is compelling evidence that that occurred. The delivery of a letter by a person is not sufficient evidence of disclosure of personal information. There is no evidence before me as to specifically what information was disclosed to the newsagent.
113. [113]
     Mr Wilkinson says that the newsagent was given FM’s Tribunal reference number on another occasion. The PTQ admits it provided the reference number and a printout of the QCAT website to the newsagent as he expressed some interest in providing information to QCAT regarding FM. I do not know the extent of the information the newsagent knows about FM, but given that FM attends the newsagency daily as do other members of the community, including persons who may also be PTQ officers, I am not  satisfied that the PTQ has disclosed to the newsagent any information that was not already within his knowledge. The Tribunal is not satisfied, based on the evidence, that any knowledge on the part of newsagent concerning FM’s involvement with the PTQ was not provided to the newsagent by FM himself.
114. [114]
     The PTQ’s accounts have been examined. It was concluded on 9 August 2016 that it is probable the PTQ has managed FM’s accounts in his best interests.
115. [115]
     For all of those reasons, the Tribunal concludes that the PTQ remains competent.
116. [116]
     I must also consider whether another person is more appropriate for appointment. Mr Wilkinson said that he proposed himself for appointment as administrator. He said this was not originally his idea, but Ms Williams had asked him to consider it. He said he had thought about it, and decided that he would do so to assist FM. Ms Williams supports the appointment of Mr Wilkinson. Mr Wilkinson has not signed the statutory declaration in relation to s 16(1) of the Act. However, the Tribunal asked him the relevant questions under oath at the hearing. His evidence was that none of the matters set out in s 16(1) or s 16(2) were present in his circumstances. I accept his evidence.
117. [117]
     I have considered the appropriateness considerations in s 15(1) of the Act. I consider that Mr Wilkinson is not more appropriate than the PTQ in terms of having appropriate communication skills, or appropriate cultural or social knowledge or experience to be compatible with FM. The local PTQ office has had considerable dealings with FM over an extended period of time.
118. [118]
     Mr Wilkinson said that he relies upon FM to contact him. FM indicated that he was not frequently in contact with Mr Wilkinson, although I note that he also rarely contacts the PTQ. I do not consider that Mr Wilkinson is more available and accessible to FM.
119. [119]
     I have considered the general principles in schedule 1 of the Act. I do not consider that Mr Wilkinson is more likely than the PTQ to apply the general principles. I consider that the PTQ is open to discussing with FM any matters that he may wish to discuss at any time. It is not FM’s practice to consult either the PTQ or Mr Wilkinson concerning managing his weekly spending money of $600.00. He has done so without assistance. The PTQ has not prevented that from occurring.
120. [120]
     I accept that FM turned to Mr Wilkinson regarding the purchase of the house rather than speak with the PTQ. However, I consider that Mr Wilkinson, in the knowledge that the funds required to purchase the house were held by the PTQ and being legally trained did not act in a prudent manner by assisting FM to draw and sign a contract to purchase a house before speaking to the PTQ about FM’s desire to purchase the house.
121. [121]
     According to the PTQ there had been no significant problems in its relationship with FM until the issue with the house. Mr Wilkinson raised a matter regarding the PTQ refusing to purchase lawn mowing equipment for FM’s business but I have no detailed evidence around those matters. I do not consider that there is sufficient evidence to find that the PTQ is less likely than Mr Wilkinson to apply the general principles set out in Schedule 1 of the Act.
122. [122]
     In this case, it is clear that FM’s trust in the PTQ has been eroded. FM made it clear at the hearing that he did not want the PTQ to be his decision maker but trusted Mr Wilkinson.
123. [123]
     However, I consider that FM’s lack of faith in the PTQ is due in no small part to the manner in which Mr Wilkinson has interacted with the PTQ in FM’s presence. This same style of advocacy was apparent at the hearing.
124. [124]
     Mr Wilkinson was concerned to address material held on the Tribunal’s file in which a person involved in a previous application concerning FM claimed that Mr Wilkinson had threatened him with physical harm if he continued to engage with FM. Mr Wilkinson acknowledged that he may have had a frank discussion with the person. I have not placed any weight on the claimed threats of physical harm in determining the review.
125. [125]
     I have considered Mr Wilkinson’s appropriateness and competence to perform functions and exercise powers under an appointment order. I have material before me concerning findings made by the Royal Commission into The Building and Construction Industry in February 2003 (‘the Royal Commission’). The Royal Commission found that Mr Wilkinson, when an employee of Sunshine Coast Regional Group, engaged in unlawful conduct. The Royal Commission found that he used his position for the financial benefit of another, by authorising the use of Sunshine Coast Regional Group Apprentices Ltd’s assets to pay tax that should have been paid by an individual, and not recovering that amount from that individual who was a long time chairperson of the company and Mayor of the Maroochy Shire Council.^[30]
126. [126]
     Mr Wilkinson signed the cheques to loan money to the individual. It was found, on the balance of probabilities, that Mr Wilkinson had signed cheques loaning money to the other person because that person had agreed to lend Mr Wilkinson the sum of $25,000.00. Findings were also made against his credibility. It was noted that Mr Wilkinson prior to becoming an employee of the company had legally represented the company and the individual managing director in the sale of a property.
127. [127]
     Those matters were put to Mr Wilkinson at the hearing. He maintained that he had been denied procedural fairness by the Royal Commission, as the findings had not been directly put to him. He conceded that he had signed the relevant cheques but such transactions were, he said, common practice within the company. He said that no charges were ever laid arising out of the findings.
128. [128]
     He said that the Queensland Law Society had carried out its own investigation and had not taken any action against him. There being no evidence to the contrary, I accept that Mr Wilkinson continued to work as a solicitor after the Royal Commission’s findings were published. Mr Wilkinson said he retired in 2005, but his submission states that he retired in 2004^[31]. While I note that he retired not long after the Royal Commission’s findings there is insufficient evidence to draw any inferences that there was a connection between the circumstances of Mr Wilkinson’s retirement and the findings of the Royal Commission. I have not done so.
129. [129]
     However, whether or not his conduct in signing the cheques was common practice, he held a position of responsibility and had obligations to the company employing him to act properly and in the best interests of the company. Mr Wilkinson’s response to the findings of the Royal Commission leaves me with concerns about his ability to properly manage the money of another to which he has access. It raises concerns about his ability to maintain appropriate boundaries when dealing with the money of another.
130. [130]
     Mr Wilkinson staunchly defends FM’s involvement in the execution of the contract to purchase the house and his dealings with the PTQ as the actions of FM himself.^[32] He fails to take any responsibility for his involvement in the purchase, his dealings with the PTQ and in relation to the findings of the Royal Commission.
131. [131]
     For those reasons, I have concerns about Mr Wilkinson’s competence and appropriateness for appointment as an administrator to make decisions about FM’s considerable financial assets.
132. [132]
     Balancing all of the matters I have considered, I am unable to conclude that Mr Wilkinson is more appropriate than the PTQ to be appointed as administrator.

Term of the appointment

133. [133]
     There has been no change to the medical evidence for some time. It is clear from material provided to the Tribunal that FM is unlikely to present himself for medical assessments as to his capacity. Further, there is a need to manage FM’s significant financial investments well into the future. In those circumstances, I consider a long term order is appropriate. 
134. [134]
     It is the decision of the Tribunal that:

     1. The administration order made by the Tribunal on 15 March 2013 is changed by appointing the Public Trustee of Queensland as administrator for FM for all financial matters.
     2. The administrator is to provide a financial management plan to the Tribunal within four months.
     3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
     4. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.