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GM[2016] QCAT 86

CITATION:

GM [2016] QCAT 86

PARTIES:

GM

APPLICATION NUMBER:

GAA11645-15; GAA12072-15; GAA12073-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

19 February 2016

HEARD AT:

Southport

DECISION OF:

Member McDonald

DELIVERED ON:

25 February 2016

DELIVERED AT:

Southport

ORDERS MADE:

  1. The application for a declaration of capacity is dismissed.
  2. GG is appointed as guardian for GM for decisions about the following personal matters:

a) Provision of services;

  1. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in 5 years.
  2. The Public Trustee of Queensland is appointed as administrator  for GM for managing all financial matters.
  3. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in 6 months.
  4. The administrator is to provide a financial  management plan within 4 months of completion of the building contract.
  5. The administrator is directed to provide accounts when requested.

CATCHWORDS:

APPOINTMENT OF GUARDIAN AND ADMINISTRATOR - Conflict transaction - appropriateness of proposed appointee

Guardianship and Administration Act 2000 (Qld), ss 12, 15, 37, Schedule 1

APPEARANCES:

GM GG GA

REASONS FOR DECISION

  1. [1]
    GM is a 78 year old lady of Italian background. Her daughter in law, GG approached the Tribunal seeking appointment of a guardian and administrator for GM and proposing herself in that role. She had also brought an application for declaration of capacity, but at the hearing, GG indicated that she had not understood the forms and did not mean to bring the application for a declaration of capacity, and sought instead to pursue the applications for guardianship and administration. She explained that GM has suffered dementia for the past three to four years and continues to be cared for by her and her husband. She indicated that she had undertaken to look after GM upon the death of GM’s husband late last year. She explained that GM’s husband had looked after the family financial affairs during the marriage.
  2. [2]
    GM has had a diagnosis of Alzheimer’s Dementia since 2010. GM was provided with an Italian interpreter by phone. GM spoke very quietly and responded in broken English to questions posed to her in Italian. She presented as unwilling to engage in the hearing and was dismissive of questions posed to her. The Tribunal was unable to have a clear discussion with GM given the nature of her condition.
  3. [3]
    In making the appointments sought by this application, the Tribunal must be satisfied under section 12 of the Guardianship and Administration Act 2000 (Qld) that

(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.

  1. [4]
    The Tribunal had before it a report dated 1 September 2015 from Dr K, the adult’s general practitioner since June 2015.This report stated that GM had Alzheimer’s Disease since 2010 and was unable to make decisions about simple health accommodation and finances. In her view she could not participate in a discussion about her decision making capacity. She considered she was unable to handle her financial affairs or make decisions freely and voluntarily.  The report of Dr K indicates that she is unable to understand the nature of personal and financial decisions and unable to make decisions freely and voluntarily. The Tribunal finds GM has impaired capacity for personal and financial matters.
  2. [5]
    The Tribunal considered whether there was a need for a guardian to be appointed. GA gave evidence that he is GM’s only surviving child. The Statutory Health regime is likely to be effective where GA is already the adult’s statutory decision maker for health decisions.
  3. [6]
    The evidence before the Tribunal was that GM is currently living in a rented accommodation with her son and daughter in law. They plan to continue to provide care to GM in a new house being built for the family to live together. GG gave evidence to the Tribunal that both she and her husband GA work daytimes and that GM has in home and out of home respite support, and they are presently able to manage her care needs. She indicated that as her care needs increased further services will be required.
  4. [7]
    The Tribunal finds a need for decisions about services. The Tribunal considers that without an appointment her needs on this basis will not be adequately met.
  5. [8]
    The Tribunal considered whether there was a need for a decision about financial matters. Dr Ks report provides clear evidence that GM is unable to manage her finances. GG and GA informed the Tribunal that GM is party to a building contract to build a house in which they and their children all intend to live and to support GM. The house is at lock up stage in the coming weeks and progress payments need to be made. According to GA the land is owned by GM and the estate of her late husband.  It is GA and GG’s plan that they all live together in this home and provide care to GM. They indicated that this is in accordance with the wishes of GM’s husband who commenced the purchase and building process before his death late last year.
  6. [9]
    The Tribunal raised questions with GG about the potential conflict transaction involved should she be appointed as administrator and what arrangements would be made to ensure that all decisions were made prudently and in the adult’s best financial interest. GG indicated some diffiulties suggesting a proposal around such an arrangement, but indicated that her living costs would be carried by them.  GA indicated that he and GG would make payments for outgoings and food and GM would retain her full pension.
  7. [10]
    GM is presently holding the proceeds of the sale of her house in Sydney in a bank account from which progress payments under the building contract have been drawn.  
  8. [11]
    There are a number of decisions that are likely to be made where the adult is party to a building contract which is drawing to completion. There are also ongoing expenses relating to the land and outgoings upon it.
  9. [12]
    The Tribunal considers that without an appointment of an administrator, her interests will not be adequately protected.
  10. [13]
    The Tribunal must also consider under section 15 of the Guardianship and Administration Act 2000 Qld (the Act) that a proposed appointee is appropriate. Specifically considerations under the legislation are,

(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—

(a) the general principles and whether the person is likely to apply them;

(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;

(c) the extent to which the adult’s and person’s interests are likely to conflict;

(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;

(e) if more than 1 person is to be appointed—whether the persons are compatible;

(f) whether the person would be available and accessible to the adult;

(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.

  1. [14]
    GG, as proposed administrator, was asked what financial decisions needed to be made for GM. She said that no decisions needed to be made but those about the house being built. The Tribunal was not satisfied that this response represented the range of decisions that needed to made. Her response did not attend to accommodating GM’s future needs or the range of ongoing costs related to the house, nor investment of the balance of funds in the adult’s account following completion of the building contract.
  2. [15]
    GG was questioned about the financial management plan she signed on 2 November 2015 and had submitted to the Tribunal to support her application.  There was substantial discrepancy in the figures in the plan in December 2015 and the oral evidence given. The financial management plan records $820,589.86 in GM‘s Westpac account and allocated for home construction and furnishings. At hearing, the evidence of GA was that there was no longer funds held in the Westpac account but funds had been transferred to St George and stood at $580,000, the balance having been applied to construction costs. He noted that progress payments and a further sum of $200,000 falls due in the coming weeks as the building contract heads toward lock up stage of construction.  The Tribunal notes that no amendments have been made to the financial management plan which identifies these changes, and the Tribunal has not been provided with documentation by the proposed administrator to transparently clarify the reduction in the balance of this account and the application of these funds.
  3. [16]
    At hearing GG was unable to speak to the expenses the insurance costs or food costs that she had outlined in the financial management plan.  She indicated that she did not recall submitting these costs. That she was unable to speak to the financial management plan at the hearing raised concerns about her appreciation of the adult’s financial position and needs and considerations under section 15(1)(g) of the Act.
  4. [17]
    GG indicated that she was able to access the funds in GM’s bank account and establish the new St George account because it was a joint account. The Tribunal was told that the proceeds of the sale of the house were transferred to the St George account. Initially she indicated she held the account in joint names and then later considered that it was more likely that she was a signatory to the account only, and that she had misunderstood the question. Her responses left the Tribunal in doubt about her understanding of the difference between these two financial arrangements. The Tribunal has not been provided with documents to ensure transparency in decisions made as informal decision maker. Given the uncertain explanation given by the proposed administrator, the Tribunal has some concerns around making the appointment in the terms requested.  There are also some questions around the adult’s capacity to open a new account in that time where she had a pre-existing dementia.
  5. [18]
    The proposed administrator and her family including children intend to live in the home being built by the adult and owned solely by her. The Tribunal notes there is a direct conflict of interest where the proposed administrator will take the benefit of living in the premises owned by the adult without paying a rental. GG ’s evidence is that GM’s household expenses would be carried by herself and her husband such that her full pension could be saved. This was inconsistent with the proposal in the financial management plan that indicated at least half would be saved, and did not clearly outline expenses that would be met in full by the adult. 
  6. [19]
    The Tribunal was not satisfied that the proposed administrator had considered the potential costs of future care needs and the difficulties created by a conflict where she and her family resides in the home owned by the adult. The financial management plan submitted by the proposed administrator did not contemplate the adult’s future needs.
  7. [20]
    GA noted that the concept of a conflict of interest was culturally unfamiliar to an Italian family that are intending to live together and look after his mother. The Tribunal accepts that there may be a clash between cultural values and the strict obligations of a protective jurisdiction, but must apply the law.
  8. [21]
    Administrators have an obligation under section 37 of the Act to avoid conflicts of duty and interest. An administrator may only enter into conflict transactions that are approved by the Tribunal. If the Tribunal appointed GG as administrator she would need to bring an application for approval of a conflict transaction, however, the Tribunal is not minded on the evidence to appoint GG in this role at this point given the difficulties she portrayed in her discussion of the financial management plan and no clear proposal to manage the conflict of duty and interest in a way which adequately benefitted the adult and attended to her future financial needs.
  9. [22]
    Given this, the Tribunal considers that a short term appointment of the Public Trustee which may establish arrangements around contributions is the most appropriate appointment until parties have moved into the constructed dwelling.  At that point the Tribunal should review the appointment.
Close

Editorial Notes

  • Published Case Name:

    GM

  • Shortened Case Name:

    GM

  • MNC:

    [2016] QCAT 86

  • Court:

    QCAT

  • Judge(s):

    Member McDonald

  • Date:

    25 Feb 2016

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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