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CDM[2017] QCAT 135

CITATION:

CDM [2017] QCAT 135

PARTIES:

CDM

APPLICATION NUMBER:

GAA587-16 GAA588-16 GAA2014-16 GAA3665-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

14 July 2016 and 8 February 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

26 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The order made on 18 June 2010 is changed and The Public Trustee of Queensland is removed as administrator for CDM and TJ is appointed as administrator for all financial matters for CDM.
  1. TJ must file in the Tribunal a financial management plan within 60 days.
  1. TJ must file in the Tribunal accounts each year, with the first set of accounts  being filed by 31 March 2018 and every year thereafter by 31 March.
  1. The appointment of TJ as administrator for CDM remains current until further order of the Tribunal.  This appointment is reviewable and will be reviewed in five years.
  1. TJ is permitted to use up to $16,000 of the funds of CDM in legal fees to obtain advice as to the viability of potential legal claims for compensation for alleged breaches of his rights.
  1. TJ must obtain prior authorisation from the Tribunal if funds in excess of $16,000 are sought to be used for the purpose identified in paragraph 5.
  1. TJ is appointed as the guardian for CDM for legal matters not relating to CDM's financial or property matters.
  1. The appointment of TJ as guardian for CDM remains current until further order of the Tribunal. This appointment is reviewable and will be reviewed in five years.
  1. The application by The Public Trustee of Queensland for a confidentiality order is dismissed.
  1. The application by TJ for directions that specified documents are produced to CDM and to TJ is dismissed.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where a review of the appointment of an administrator was conducted – where the capacity of the person to make financial decisions was in dispute – where the basis for any impaired decision-making capacity was in dispute – where allegations made that the administrator was not competent – where a family member contended he was more appropriate for appointment – where there had been a lack of effective communication between the person under the administration order and the administrator – where allegations of conflict of interest due to potential legal claims that could be brought against the administrator – whether a change of administrator should be made

GUARDIAN FOR LEGAL MATTERS – where allegations that a person with impaired capacity for financial matters had been unable to appeal the appointment of an administrator – where claims for breach of legal rights might be prevented by a lack of standing – whether guardian should be appointed

CONFIDENTIALITY – where legal advices obtained for the benefit of an adult with impaired capacity sought to be kept confidential – whether change of administrator rendered the need for a confidentiality order unnecessary

PRODUCTION OF DOCUMENTS – where documents created as part of giving instructions to the lawyer advising the administrator and as part of providing advice for the person with impaired capacity – where the change of administrator would make the documents accessible to the new administrator – where a refusal of production of the documents can only occur with a reasonable excuse – where confidentiality or privilege not a reasonable excuse – whether an order for production is necessary

Guardianship and Administration Act 2000 (Qld) s 12, s 15, s 31, s 44, s 47, s 48, schedule 1 and schedule 4

Public Trustee Act 1978 (Qld) ss 16 to 17B

APPEARANCES:

 

ADULT:

Did not attend the hearing

OTHER ACTIVE PARTIES:

TJ

The Public Trustee of Queensland by Clinton Miles, Director of Disability Services and Jay Cross

REPRESENTATIVES:

 

ADULT:

represented by Matthew Jones of Counsel

OTHER ACTIVE PARTIES:

The Public Trustee of Queensland represented by Lucy Salento from the Official Solicitors Office

REASONS FOR DECISION

  1. [1]
    CDM is 35 years of age.  He lives with his mother and stepfather.  The Public Trustee of Queensland is his administrator for all financial matters.  The Tribunal held a hearing over two days to review this appointment and to consider whether a guardian should be appointed for CDM.  A hearing of two applications for directions was held at the same time.
  2. [2]
    There has been a great deal of antagonism directed towards The Public Trustee from CDM’s family and TJ, his stepfather, is seeking appointment as the administrator for CDM if the Tribunals decides that an appointment of an administrator is necessary.  TJ is also seeking appointment as a guardian for CDM.  The Tribunal appointed a representative for CDM for the hearing of these applications so that the views, wishes, and interests of CDM could be represented at the hearing. 
  3. [3]
    When considering a review of the appointment of a decision-maker, the Tribunal must revoke the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.[1]  Due to that requirement, the Tribunal must, on review in this case, be satisfied that the grounds set out in the appointment sections of the Guardianship and Administration Act 2000 (Qld) (GAA Act) do support an appointment of an administrator; otherwise, the appointment must be revoked. 
  4. [4]
    Section 12 of the GAA Act sets out the relevant grounds if an appointment of an administrator is to remain in place.  The Tribunal must be satisfied that CDM has impaired capacity to make decisions about financial matters. The Tribunal must also be satisfied that there is a need for a decision in relation to financial matters or that CDM is likely to do something in relation to his financial matters that involves, or is likely to involve, unreasonable risk to his financial affairs.  The Tribunal must also be satisfied that, if an administrator is not appointed, CDM’s needs for financial decision-making will not be adequately met or that CDM’s interests will not be adequately protected.[2]  
  5. [5]
    The Tribunal has in evidence a large number of medical reports about medical issues affecting CDM’s functioning, including his cognitive functioning.  The presence of a number of reports from when CDM was still a child results from the fact that CDM was injured in a motor vehicle accident in 1986 at a time when he had not yet started his formal schooling.  The impact of the accident caused him to be thrown out of the car in which he had been travelling, despite the fact that he had been wearing a seatbelt.  He sustained serious physical injuries, particularly to his legs and to one of his arms.  He underwent several major orthopaedic surgical procedures and skin grafting which left areas of scarring.  A claim for damages was brought on his behalf and the early reports on the Tribunal’s file were obtained in the damages claim.
  6. [6]
    A report reveals that CDM did not lose consciousness in the accident.[3]  According to that report from a psychologist, CDM had missed a lot of schooling in the first two years of school due to the effects of the injuries sustained in the accident and had fallen behind as a result.  However, the report stated that CDM showed that he was involved, working well, and enjoyed his work.  His progress was reported to be “fair” despite some gaps in his education due to his prolonged absences.  Reports in his middle primary school years noted issues with motivation and being easily distracted along with more positive comments about his neat writing skills and the capacity to articulate himself eloquently. 
  7. [7]
    In 1991, CDM was assessed to be functioning in the average range of intelligence.[4]  The assessment revealed that CDM’s verbal cognition was functioning at a lower level than his non-verbal performance type cognition.  The assessment found that CDM’s skills at auditory memory, visual memory, and learning ability were performing less efficiently than other cognitive skills. He presented with concentration lapses and high distractibility. 
  8. [8]
    A further neuropsychological assessment was conducted in 1993. CDM was assessed as functioning in the average range of intelligence and again he showed impairment in the verbal area.[5]  His reading and comprehension of material was below average as was his arithmetic abilities.  The 1993 assessment concluded that CDM had a developmental reading disorder, characterised by impaired ability to recognise words, slow and inaccurate reading, and poor comprehension in the absence of low intelligence. 
  9. [9]
    A psychiatric assessment in 1998, when CDM was 16 years of age, revealed that CDM had left school after a period of serious disruptiveness and disinterest.[6]  This disruptive behaviour had been increasing since mid-primary school years.  The psychiatric assessment concluded that CDM was an immature adolescent and that his personality adjustment problems would be severe enough to amount to a personality disorder that was severe enough to seriously impede CDM’s ability to establish any reasonable degree of harmony in his relationships or his ability to achieve a degree of gratification for his personal needs.  No other psychiatric disorder was diagnosed.
  10. [10]
    An updated report by this psychiatrist, Dr Les Ding, was prepared on 30 October 2000 after CDM had turned 18 years of age.  Dr Ding had been given the results of an updated neuropsychological assessment which had revealed that CDM demonstrated very significant difficulties with even basic arithmetic. Dr Ding concluded that, given CDM’s personality difficulties, his impulsiveness, and his marked lack of monetary values, CDM’s competence to manage his financial affairs was significantly impaired.  Dr Ding noted that CDM’s emotional maturity was well behind his chronological age, and with the additional risk of excessive alcohol intake, CDM would be distinctly vulnerable to either exploitation or irresponsible spending. 
  11. [11]
    A psychiatric assessment was conducted by Dr Peter Mulholland on 20 May 2002.  During that interview, CDM was noted as appearing extremely shy.[7]  Dr Mulholland stated that it was extremely difficult to get CDM to say anything.  It was noted that when CDM spoke, he spoke in monosyllables or one-word answers only.  Dr Mulholland noted that CDM did not know who was managing his estate (following the conclusion of the damages claim) and did not appear to have any idea of how much his estate was.  He could not accurately estimate how much a house or car would cost to buy.  CDM could not tell Dr Mulholland how much his personal expenses were each week.  He did not appear to have any idea of what was meant by financial planning.
  12. [12]
    Dr Mulholland expressed the opinion that CDM did not have the capacity to administer his estate.  Dr Mulholland concluded that CDM did not have the ability to understand the nature and effects of decisions about managing any substantial sums of money.  Dr Mulholland concluded that CDM was not capable of making decisions about his estate freely and voluntarily and suspected that CDM would be subject to outside pressure. Dr Mulholland concluded that CDM’s ability to communicate verbally was impaired although he thought that CDM would be capable of communicating his decisions reasonably satisfactorily, although it would be a difficult process. 
  13. [13]
    CDM underwent an assessment by Dr Dilprasan De Silva, psychiatrist, from the Homeless Health Outreach Team in January 2007.  Dr De Silva reported that CDM had sustained a head injury in the 1986 accident.  That statement is not supported by other medical reports and diagnostic documents and is considered by the Tribunal to be an error.  TJ objects to Dr De Silva’s report being in evidence due to that error.  However, the report of Dr De Silva is of some value insofar as it records what had happened in CDM’s life since the previous medical report before the Tribunal which had been written in 2002. 
  14. [14]
    Dr De Silva recorded that CDM had a history of polysubstance abuse involving alcohol, solvents, and cannabis.  CDM had been assessed at the Princess Alexandra Hospital in September 2002 as his mother and his stepfather were concerned about his safety. The assessment had resulted in the polysubstance abuse diagnosis and also a possible alcohol-induced mood disorder.  CDM had been in prison and released in November 2002.  CDM had disclosed that he had been sexually abused in prison. He had experienced periods of estrangement from some of his family and in 2006 he had been living on the streets.  Apart from the factual history and the accounts of assessments performed by other clinicians, the Tribunal will not take the diagnostic opinions of Dr De Silva into account in these reasons due to his fundamental error that CDM had sustained a severe head injury.
  15. [15]
    The most recent report from a medical clinician was filed in the Tribunal in November 2016 after directions were made by the Tribunal for a report to be obtained from CDM’s treating doctor.[8]  Dr Leo Ryan is a psychiatrist who visits at an Aboriginal and Torres Strait Islander Community Health Service.  Dr Ryan first saw CDM in August 2013 and on about 10 other occasions between August 2013 and October 2016.  Dr Ryan noted that CDM had been diagnosed with schizophrenia in 2009.  Dr Ryan reported that in May 2015, CDM had consulted him with TJ who was concerned about deterioration in CDM’s behaviour characterised by aggression, agitation, vandalism of property at home, paranoid ideation, and auditory hallucinations in the context of daily cannabis use.  
  16. [16]
    Dr Ryan reported that with counselling about the need for abstinence from cannabis and with an increase in antipsychotic medication, CDM settled without the need for inpatient care. Dr Ryan reported that in both January and April 2016, he saw CDM and on those occasions CDM’s mental state was quite stable and there were no obvious psychotic symptoms.  
  17. [17]
    Dr Ryan examined CDM on 24 October 2016 for the purposes of preparing a report.  Dr Ryan reported that CDM’s mental health is a complex issue.  CDM has experienced psychotic symptoms in the past with these being in the context of consumption of cannabis and other illicit substances.  Dr Ryan reported that this history raises a possibility of a psychotic disorder such as schizophrenia or chronic, recurrent psychotic episodes of a drug-induced kind, or a combination of these factors. 
  18. [18]
    CDM takes antipsychotic medication in both fixed dose and PRN forms.  PRN doses of Quetiapine are rarely administered, on only two or three occasions over a six-month period.  Dr Ryan reports that CDM’s mental state is characterised by extremely poor verbal communication.  He has been mute for an entire consultation or said a few words of greeting, or answered some questions with “yes” or “no”, or mostly usually responds to direct questions with a brief nod or shake of the head.  Dr Ryan reports that at other times, CDM has ignored his questions and his stepfather, TJ, has had to answer for him. 
  19. [19]
    Dr Ryan reported that on 24 October 2016, CDM used a few basic sentences, lacking in detail, to tell Dr Ryan that he had recently stayed in hospital for breathing problems.  When Dr Ryan tried to ask a few clarifying questions, CDM was unable to explain anything about the diagnosis or treatment or give any estimate of the duration or timing of his admission.
  20. [20]
    Dr Ryan was unable to assess mood, the presence of any formal thought disorder, and intelligence due to CDM’s lack of spontaneous speech and meaningful interaction.  Dr Ryan reported that TJ gives a history of CDM being more verbally communicative at home and that CDM has a longstanding reluctance to communicate with professionals and other persons in authority.  Dr Ryan reported that TJ is of the opinion that CDM does have permanent schizophrenia and acknowledged the need for CDM to take antipsychotic medication.
  21. [21]
    Dr Ryan had considered the earlier medical reports that had been filed in the Tribunal.  He noted the opinion of Dr De Silva that the main problem involved an acquired brain injury with subsequent behavioural disturbance, together with polysubstance dependence at that time in remission.  Dr Ryan noted that TJ had pointed out quite strongly that there was no evidence of a brain injury resulting from the accident when CDM was a young child.
  22. [22]
    Dr Ryan expressed his opinions about two specific areas of CDM’s capacity. As to the ability of CDM to give instructions to a lawyer to investigate legal claims about financial and non-financial matters, Dr Ryan’s view is that CDM lacks capacity.  Dr Ryan expressed the opinion that CDM would have great difficulty in understanding and recalling advice about various options and their advantages and disadvantages, in weighing up the relative merits of various courses of action, to communicate a choice with accompanying reasons, and to carry out that choice.  As to the ability of CDM to manage his finances, Dr Ryan was of the view that CDM lacks the capacity to manage more substantial sums of money himself, apart from small day-to-day amounts. 
  23. [23]
    Dr Ryan also reported that CDM’s reluctance to communicate appears to go beyond a matter of social anxiety or shyness, nor could it be explained on cultural grounds.  Dr Ryan expressly stated that he accepted that CDM had not experienced any brain injury in the accident in the sense of a traumatic or mechanical brain injury.  However, Dr Ryan was of the opinion that CDM had probably undergone some chemical insult to his brain as a result of smoking cannabis, the inhalation of volatile substances such as paint, and other illicit substances use. Dr Ryan stated that the result of this chemical trauma appears to include cognitive and memory deficits. 
  24. [24]
    At the hearing, TJ submitted that the opinions of Dr Ryan were legally corrupted.  This submission arose from the fact that the Tribunal had provided Dr Ryan with copies of the filed medical reports, including the report of Dr De Silva, and that Dr Ryan relied on the false information in his evidence to the Tribunal.  The Tribunal does not agree with the submission that the opinions of Dr Ryan were legally corrupted.   
  25. [25]
    Dr Ryan was aware that the statement by Dr De Silva that CDM had sustained a brain injury in his accident in 1986 had been objected to by TJ.  Dr Ryan did not make a finding that CDM had sustained a brain injury in the accident nor did he express an opinion that CDM had sustained an acquired brain injury in 1986.  Nowhere in Dr Ryan’s report does it appear that he took Dr De Silva’s erroneous opinion on that point into account.  Rather, he took into account the observed and assessed evidence of other clinicians that correlated with his own observations and clinical assessments. 
  26. [26]
    Dr Ryan had set out the clinical history he had obtained during his examinations of CDM augmented by the earlier history of cognitive and psychological assessments conducted by other clinicians.  He set out the definition of capacity and applied that definition to the clinical findings that either he had made or he had interpreted from the assessments in the reports of the other clinicians.  He had also made a finding that had not been expressed in the earlier assessments that CDM had probably sustained some chemical insult to his brain as a result of smoking cannabis, inhaling paint, and in using other illicit substances.   Dr Ryan identified that chemical trauma to the brain as being responsible for some cognitive and memory deficits that were observed during his clinical examinations of CDM.
  27. [27]
    The report of Dr Ryan with its clinical observations, clinical findings, and opinions is the most recent medical evidence available to the Tribunal.  This evidence is from a treating doctor who has firsthand knowledge of the matters he analyses to form his opinion.  It is the best evidence of a medical nature due to its recent preparation and due to the evidence being directly related to the issue of CDM’s decision-making capacity.  The opinions of Dr Ryan are soundly based and are not legally corrupted or otherwise able to be ignored for the purpose of the Tribunal determining capacity of CDM to make his own financial or other decisions.
  28. [28]
    Apart from the opinion of Dr De Silva that CDM sustained a head injury in his accident and developed as a result an acquired brain injury, which is not accepted, the Tribunal accepts the evidence in the medical reports filed in the Tribunal and set out in the earlier paragraphs in these reasons.  The following findings of fact are made:
  1. a.
    CDM missed significant periods of time from his schooling in his first few years of his primary school education due to receiving treatment for the injuries sustained in an accident in 1986;
  2. b.
    Despite having an average range of intellectual functioning, CDM fell gradually behind in his schooling and by mid primary school was having difficulties keeping up;
  3. c.
    CDM started to exhibit a lack of concentration and a lack of interest in his schooling, was assessed with a learning disorder, and exhibited behavioural problems after mid primary school;
  4. d.
    By 16, CDM was assessed with a personality disorder;
  5. e.
    CDM had left school before year 12 and had commenced using alcohol, cannabis, and other illicit substances, and inhaling paint;
  6. f.
    CDM had periods of homelessness and imprisonment and was subjected to sexual assault in prison;
  7. g.
    By 2002, CDM had demonstrated a lack of understanding of the extent of his financial estate, who was managing that estate, how much his usual expenditure was, and could not accurately estimate the cost of a house and car;
  8. h.
    In or around 2009, CDM was diagnosed with schizophrenia and was continuously treated with antipsychotic medication;
  9. i.
    By October 2016, CDM no longer exhibited psychotic symptoms while on medication;
  10. j.
    CDM had demonstrated poor verbal communication and memory skills since at least 2002 with significant absence of spontaneous communication with medical examiners;
  11. k.
    The verbal communication and memory difficulties arise from a cognitive impairment rather than from shyness or cultural factors.
  1. [29]
    The definition of capacity in the GAA Act is as follows[9]:  capacity, for a person for a matter, means the person is capable of-
  1. a.
    Understanding the nature and effect of decisions about the matter; and
  2. b.
    Freely and voluntarily making decisions about the matter; and
  3. c.
    Communicating the decisions in some way.
  1. [30]
    When the issues to be determined by the Tribunal include whether a person has capacity to make decisions about a specific matter, the Tribunal must apply the General Principles and, in doing so, starts the hearing with the presumption that CDM has capacity to make all his own decisions.  That presumption is rebuttable by the evidence before the Tribunal.  The Tribunal must apply the definition of capacity to the evidence to determine whether the presumption of capacity has been rebutted in each case. 
  2. [31]
    From the findings of fact made from the evidence, the Tribunal can conclude that CDM at the present time exhibits cognitive, memory, and communication deficits that limit and interfere with his ability to understand and process new information about financial matters.  CDM exhibits difficulties with recall of information that would give context to, and be relevant to, processing of new information.  His very limited verbal communication exacerbates his poor ability to understand how to analyse information to formulate options for decision making.  His long standing concentration difficulties, his lack of analytical skills from an interrupted and foreshortened education, and his poor verbal expressive skills would prevent CDM from evaluating the strengths and weaknesses of options for decisions about issues that do not arise from a familiar context or do not arise on a daily basis.  He could not analyse how the options would have an impact for good or for bad on his financial position.  Using the wording of the capacity definition, CDM could not understand the nature and the effect of decisions about his financial matters.
  3. [32]
    The Tribunal concludes that the presumption that CDM has capacity to make his own financial decisions is rebutted by the evidence.  The Tribunal concludes that CDM has impaired decision-making capacity for financial matters. 
  4. [33]
    CDM has considerable financial assets.  As of 8 February 2017, he is paid a Disability Support Pension and Rent Assistance.  He has cash funds invested with The Public Trustee of $87,000.  He owns a car and some household goods.  Decisions need to be made about the appropriate level of expenditure from CDM’s financial resources and the appropriate types of ongoing investment of those resources to ensure that the resources are available for both short-term and longer-term needs of CDM.  There is evidence before the Tribunal that decisions are needed about some legal claims that arise from past dealings with CDM’s financial assets that may have caused loss to him.  TJ has raised possible investigation of other legal claims that may result in the recovery of compensation for CDM. 
  5. [34]
    The Tribunal is satisfied that there is sufficient evidence that decisions are needed to be made about CDM’s financial matters.  Some of those decisions are of an ongoing nature to ensure that CDM’s funds are available to him and used for his benefit and for his proper care and protection.  Other decisions are about legal matters involving CDM’s affairs.  Due to the finding that CDM has impaired capacity for making financial decisions, it is necessary to consider if CDM’s needs would be adequately met or if his interests would not be adequately protected if an administrator is not in place to make decisions for CDM.
  6. [35]
    TJ has submitted that the Tribunal does not have jurisdiction to make any appointment that will remove or limit CDM’s statutory and common law rights to supported decision-making.  TJ relies on the impact of the United Nations Convention on the Rights of Persons with Disabilities as the basis for his submission on this point.  His submissions are not sound.
  7. [36]
    The United Nations Convention, although ratified by Australia, is not part of the domestic law in Queensland.  The Convention does not place any direct obligations on the Tribunal in the manner in which it discharges the jurisdiction reposed in the Tribunal by the GAA Act.  The provisions in the Convention requiring what is described as supported decision-making does not supplant the provisions of the GAA Act which restore legal rights to a person who is under a legal disability by appointing a substituted decision-maker to exercise the rights of a person with impaired decision-making capacity. 
  8. [37]
    However, such a statement of the law does not in itself preclude the use of supported decision-making in some contexts.  The GAA Act acknowledges that the capacity (italics added) of a person with impaired capacity to make decisions may differ according to the nature and extent of the impairment, the type of decision to be made, and the support available from members of the person’s existing support network.[10]   It is likely that the proper interpretation of the word “capacity” in italics in the previous sentence is ability or capability, rather than capacity as defined in the GAA Act, given that the meaning of impaired capacity is defined to mean that a person does not have capacity for the matter.[11]  Section 5 acknowledges that decisions can be made informally in which a person with impaired capacity can be fully involved right up to the point of making a choice and implementing that choice.  However, at law, while a finding of impaired decision-making capacity is in place for a person, the legal responsibility for the decision remains with the substituted decision maker, whether formally appointed or part of the support network for a person while that person remains under a legal disability.
  9. [38]
    If CDM had few financial resources, or had no legal claims to be made or to be resolved, the Tribunal may have decided that a formal appointment of an administrator was not needed.  The evidence is clear that CDM has an existing support network constituting of his mother and stepfather.  However, the evidence before the Tribunal leads to a reasonable inference to be drawn that more complex decisions about expenditure, investments, and legal claims would not be able to be made for CDM with informal support only.  It is a reasonable inference to make that opening or closing bank accounts or investments, conducting transactions on bank accounts, and instructing legal personnel for CDM will require a level of formal decision-making authority that only is possible by having an administrator in place.  There are ethical obligations on lawyers to ensure that they receive valid instructions when their client has been declared as having impaired decision-making capacity for financial matters, which includes legal matters involving recovery of compensation. 
  10. [39]
    The Tribunal concludes that CDM’s needs will not be adequately met nor will his interests be adequately met unless an appointment of an administrator remains in place for financial matters.
  11. [40]
    Being satisfied that there are appropriate grounds for an appointment of an administrator to continue, the Tribunal under s 31(3) of the GAA Act may either continue the order that appointed The Public Trustee as the appointed administrator or change the order to make a new appointment.  TJ has sought to be appointed as the administrator for CDM and seeks the removal of The Public Trustee from that role.
  12. [41]
    The representative for CDM submitted that CDM had told him that he wanted TJ to make decisions for him.  CDM's primary concern was that his money would run out soon. CDM had handed a letter to the representative which stated that CDM wanted JT to be his administrator and guardian and that he wanted to take legal action for compensation for the denial of his human rights, his separation from his mother, and the loss of his property.  The letter stated that he agreed to pay up to $30,000 for that purpose.
  13. [42]
    The representative told the Tribunal in his submissions that he had asked CDM why he wanted JT to be his administrator.  CDM had told the representative that he wanted more money which was taken as a reference to TJ acting as a guardian in future legal matters.  CDM had said that he considered TJ to be trustworthy and that TJ would look after his best interests.  CDM could not think of anyone else he would like to be his administrator.
  14. [43]
    When the representative asked CDM about the nature of the possible legal claims for compensation, CDM revealed he had a superficial understanding of the claims.  He was aware that some of the claims would be against his father and The Public Trustee. 
  15. [44]
    The representative reported that his impression of TJ when meeting him in person was overall positive.  The representative reported that his impression was that TJ genuinely has CDM's best interests at heart.  The representative reported that CDM appeared to be well cared for by TJ and CDM's mother. 
  16. [45]
    TJ submitted that the appointment of The Public Trustee has been unlawful since 2008 after Australia's ratification of the United Nations Convention.  TJ also submitted that The Public Trustee has never been competent in acting as the administrator for CDM.  TJ submitted that The Public Trustee is in a position of conflict with CDM in a legal sense as it is a potential respondent to recovery and litigation actions to be brought by CDM.  TJ submitted that The Public Trustee is conflicted as a substituted decision-maker because it has statutory obligations to the interests of the State of Queensland over and above its obligations to CDM's needs, will, and interests. 
  17. [46]
    TJ submitted that The Public Trustee is conflicted as a substituted decision-maker because it is a retailer of financial products that it sells to CDM who is an involuntary consumer with no market choice.  TJ submitted that the capacity of The Public Trustee as administrator to extract money from CDM’s funds for its own legal fees defending its own interests against allegations by CDM is a disincentive for seeking justice.
  18. [47]
    TJ submitted that The Public Trustee has a toxic relationship with CDM and his family.  TJ submitted that in 2002 the former Tribunal determined that The Public Trustee was not compatible with CDM and his family, and things have deteriorated significantly since then.  TJ submitted that The Public Trustee lacks insight into CDM's needs and will, has not spoken to CDM since 2001, and has consistently resisted mediated negotiation of a budget and financial plan with CDM's family.  TJ submitted that The Public Trustee has no knowledge or record of CDM's disability and is unable to provide appropriate support in decision-making, taking into account his disability or to ascertain any needs of his disability as relevant to budget and financial planning. 
  19. [48]
    TJ submitted that The Public Trustee has no trained staff, policies, or protocols for engaging with Aboriginal families or making substituted decisions relevant to Aboriginal cultural values and expectations. 
  20. [49]
    TJ submitted that in 2000, the Supreme Court awarded CDM $450,000 to support him for the rest of his life.  TJ submitted that CDM has less than $100,000 with a large deficit financial plan and no real estate.  TJ submitted that it is no longer reasonable to consider that this rapidly diminishing remnant could support CDM for the rest of his life.  TJ submitted that the money would receive a greater return in a term deposit on the open market than CDM currently receives from The Public Trustee’s financial products. 
  21. [50]
    TJ submitted that in 2000, The Public Trustee was appointed the administrator of the insurance payout.  This decision was made because the Supreme Court considered that CDM was an immature, homeless teenager with emerging mental illness.  TJ submitted that today CDM is a mature, 34-year-old man who has had mental health treatment for over six years, has had stable accommodation for over six years, has had family access and support for over six years, and has attained TAFE certificates for basic literacy and numeracy. 
  22. [51]
    In a second set of submissions, TJ submitted that The Public Trustee has not, does not, and cannot involve CDM in decision-making to the maximum of his capacity or at all.  TJ also submitted that the Tribunal cannot authorise conflict transactions by The Public Trustee that breach [common law fiduciary duties including investing CDM's funds in The Public Trustee's own financial products.  TJ submitted that the Tribunal has no jurisdiction to authorise illegal dealing in terms of s 47 of the Commonwealth Competition and Consumer Act 2010 on the basis that The Public Trustee provides fiduciary trust management services with the compulsory condition of investing in Queensland Government financial products which TJ describes as illegal third line forcing.
  23. [52]
    The Public Trustee submitted that it remains a competent administrator for CDM.  It submitted that in addition to standard financial management services, such as legal, taxation, property and funds management, The Public Trustee has a comprehensive understanding and appreciation of an administrator's fiduciary obligations under the GAA Act and entrenches those principles in training and the procedures followed by staff.  The Public Trustee submitted that it had protected and preserved CDM's assets and maintains a management plan supported by professional advice and The Public Trustee's experience and objectivity.
  24. [53]
    The Public Trustee responded to the allegations made by TJ.  It submitted that the Tribunal has already determined in decisions in 2010 and 2011 that various allegations of mismanagement and breach of its statutory duties were unfounded and that The Public Trustee had acted prudently in its dealings with CDM and his family.  However, these general submissions do not directly nor comprehensively respond to the more recent specific allegations raised by TJ, such as The Public Trustee having a lack of knowledge of CDM's needs and will and a history of failing to consult with CDM in making decisions about him. 
  25. [54]
    The Public Trustee submitted that it had attempted to engage impartial facilitation with a member of the Aboriginal community but those attempts were unsuccessful.  The Public Trustee submitted that its officers had not been able to contact CDM personally from November 2011 to March 2016.  It was submitted that The Public Trustee had been hampered by the inability to contact CDM which had arose due to his whereabouts being unknown at times as well as difficulties experienced in engaging with CDM's support network.
  26. [55]
    The Public Trustee submitted that CDM's annual budget of income and expenditure is currently some $23,000 in deficit: that is, expenses exceed income by that amount.  It is estimated that all the funds under management will be exhausted by 2020 if a deficit budget of that amount continues.  The Public Trustee told the Tribunal that it would take steps to revise the budget if its appointment were to be continued so that the deficit is reduced and the funds can last longer than 2020.
  27. [56]
    The evidence and submissions of TJ and The Public Trustee are difficult to fully reconcile.  Some findings are open on the evidence: CDM has been living with his mother and stepfather for over six years in stable accommodation and in a caring environment, he has received appropriate and ongoing treatment for schizophrenia, his mental state is reasonably stable with this treatment, his funds recovered in 2000 from a damages claim are likely to be exhausted in three years unless expenditure is reduced, the relationship between CDM and his family with The Public Trustee is highly conflictual and marked by mistrust, there has been almost a total lack of direct contact between CDM and his trust officers at The Public Trustee, CDM and his family hold strong views that legal claims should be investigated into whether CDM's rights have been breached, and that a portion of CDM's funds should be used to obtain legal advice about the viability of such claims.
  28. [57]
    Based on these findings of fact, it is open to determine that decisions about financial and legal matters have been made by The Public Trustee without obtaining, and without taking into account, the views and wishes of CDM.  The Public Trustee places great importance in acting within the scope of its fiduciary obligations, and acting in accordance with the prudent person rules and ensuring that the person's proper care and protection is upheld by the decisions made by the substituted decision-maker.
  29. [58]
    However, such an approach must be balanced with the use of practices that also strive to implement the involvement of the person with impaired capacity in decision-making to the greatest extent possible.  The GAA Act acknowledges that an adult's right to make decisions is fundamental to the adult's inherent dignity and that an adult has the right to make decisions with which other people may not agree. 
  30. [59]
    The evidence from TJ and from the conversation that CDM's representative had with CDM reveals that CDM holds the view that his rights have been breached by actions of various public entitles and individuals over the years.  He wants to take action to seek legal redress for what he considers to have been wrongs occasioned to him.  The Public Trustee is one of the potential litigants in the claims that CDM believes he can make to seek redress.  It is difficult to see how any such claims can be investigated, let alone brought into a court, while one of the potential adversaries is the formal decision-maker for CDM.
  31. [60]
    Protecting the human rights of a person is often a task involving successfully managing the delicate balance between competing rights and obligations.  CDM may have valid claims about the impact of past actions on his rights.  It is also possible that none of those claims have a basis in law that could result in the recovery of compensation for CDM.  That is a matter for legal advice and ultimately for determination by the courts.  However, CDM must be given an opportunity to exercise his legal rights in having the claims investigated and, if viable, litigated. 
  32. [61]
    On this point, the representative for CDM made some cogent submissions.  He submitted that justice must be done and must be seen to be done.  He submitted that CDM and his support network, principally TJ, should not be shut out of investigating or advancing legitimate legal proceedings or from having a fair ventilation of their concerns in an appropriate way.  At the same time, the representative noted that CDM's funds are rapidly diminishing and cannot tolerate substantial legal expenditure on claims with uncertain legal or commercial merit.
  33. [62]
    The representative submitted that it would be imprudent to use a substantial portion of CDM's remaining funds to pursue a speculative retainer given the exposure to disbursements and adverse costs orders.  The representative submitted a compromise position: appointing TJ as CDM's administrator with conditions placed on the appointment about expenditure for legal proceedings.  He submitted that a lesser sum than the sum proposed by TJ could be authorised by the appointment conditions.  Such a proposal would remove the conflict issues inherent in having an administrator who is also an adversary, either potential or actual, and would bring to an end ongoing concerns that the views and wishes of CDM are not being taken into account due to lack of effective communication between the decision-maker and CDM. 
  34. [63]
    At the hearing on 8 February 2017, the representative of The Public Trustee submitted that there was likely to be a great deal of work involved in investigating the viability of any of the potential claims that CDM could want to raise.  It was submitted that using $10,000 would not likely be enough to get to the stage where the prospects of success of the claims are able to be revealed. 
  35. [64]
    The representative for CDM explained at the hearing that his suggested proposal was based on determining how any of the potential causes of action could cost-effectively translate into a monetary award.  He explained his intention behind the proposal was that there was a benefit of some modest amount being advanced so that professional advice could be sought on what steps might be required to convert any of the claims into a monetary award of damages. He explained that with proper advice, CDM and his administrator might conclude which causes of action could not be cost-effectively pursued. 
  36. [65]
    TJ conceded at the hearing that his estimate of $30,000 as needed for the legal costs of investigating CDM's claims was an arbitrary figure as a more accurate estimate would be difficult to make.  The estimate was based on earlier estimates in applications determined by the Tribunal.  TJ explained that, if he were to be CDM's administrator, he would act to reduce expenditure: he would try to arrange public housing for CDM, he would continue to teach CDM how to manage on a pension, and he would explore setting up a business to employ CDM.  TJ told the Tribunal that CDM had made good progress over the past few years and he has been attending community access opportunities with a carer. 
  37. [66]
    The submissions from CDM's representative were compelling.  The Tribunal concludes that in this case TJ is more appropriate for appointment as the administrator for CDM than The Public Trustee.  The Tribunal has reached this conclusion by applying the appropriateness considerations set out in s 15 of the GAA Act.  TJ is part of the current support network for CDM.  He is his stepfather and has been CDM's carer for over six years.  TJ has satisfied the Tribunal that he understands and will apply the General Principles when making decisions as a substituted decision-maker for CDM.  He has encouraged CDM to exercise his rights and to participate in the community as a valued person.  He has been giving support to CDM to strive to reach his potential and to become as self-reliant as possible into the future.  TJ understands the importance of maintaining CDM's existing supportive relationships within his extended family. TJ is also able to take steps to maintain CDM's cultural background and interests.
  38. [67]
    While there is a possibility that TJ may have expectations or an agenda that may not always be shared by CDM, the evidence before the Tribunal does not lead to such a conclusion as a decided matter.  TJ is no doubt very passionate about righting of wrongs that he perceives were occasioned to CDM over the years.  The Tribunal does not find that the likelihood of conflict of interest between CDM and TJ is significant as CDM appears to hold similar passionate views. 
  39. [68]
    It is the case that an administrator must consider whether to take recovery action against CDM's mother, who is the wife of TJ, for decisions she made as administrator for CDM which may have resulted in a loss to CDM.  The Public Trustee has told the Tribunal that it has made a decision not to proceed with such an action based on legal advice.  It is a reasonable inference to make that TJ would make a similar decision if he were to be an administrator for CDM.  It is also a reasonable inference to make that CDM would not want to take legal action against his mother and his views and wishes must be taken into account by a substituted decision-maker. 
  40. [69]
    While the appropriateness considerations require the Tribunal to consider the extent to which the adult's and the proposed administrator's interests are likely to conflict, the presence of some conflict of interest is not of itself a prerequisite that would disentitle that person to appointment.  The current administrator has a significant conflict of interest about making decisions to investigate the prospects of success of claims against itself. The Public Trustee responded to that conflict of interest by having the Tribunal resolve the conflict by deciding what, if any, funds under management should be made available for possible legal action against itself.  TJ, if appointed, could seek a similar manner in which to resolve conflicts of interest.  
  41. [70]
    TJ has demonstrated from his evidence that he is compatible with CDM in that he can communicate with CDM, and he can appreciate the cultural and social knowledge needed in order to take the views and wishes of CDM into account for decision-making.  TJ is available and accessible to CDM.  Even should CDM move into a more independent lifestyle, his family, including TJ as his stepfather, could be on hand as much as possible to provide support.
  42. [71]
    TJ has demonstrated that he is the choice of CDM as his decision-maker.  It is appropriate to appoint someone who matches the views and wishes of the adult with impaired capacity as much as possible under the GAA Act.  TJ is more appropriate than The Public Trustee as the decision-maker for CDM based on an analysis and application of the appropriateness considerations to the facts of this case.  TJ is not a potential adversary of CD, the extent of any conflict between the interest of CDM and those of his administrator is less should TJ be appointed as administrator than if The Public Trustee were to continue in the role, TJ has a level of compatibility with CDM that is not present in his relationship with The Public Trustee, and there is a level of communication and knowledge of CDM that The Public Trustee does not have.  It is also of significance that CDM's representative is not adverse to a change of administrator after taking into account how best to facilitate the exercise of CDM's will and preference balanced with his proper care and protection.
  43. [72]
    The Tribunal accepts the submissions of CDM's representative that some limitations be placed on the use of CDM's funds for pursuing the claims outlined by TJ.  Such limitations are not intended to deter the investigation of any claims but seek to impose a measured approach to the use of CDM's funds.  The representative submitted that a limit of $10,000 could be used for legal advice as to what, if any, claims CDM may have against third parties arising from the historical administration of his funds.  That proposed limit equated to the use of about 11% of the then remaining funds. The representative submitted that the Tribunal should make a direction that TJ could not expend any further amount from CDM's funds on that issue without first making an application to the Tribunal. 
  44. [73]
    Given that the evidence at the resumed hearing on 8 February 2017 was that the funds left at that time were about $87,000, it is likely that the funds as at the date of this decision would be closer to $80,000, taking into account a deficit budget of about $2,000 per month.  The Tribunal considers that it would be reasonable to limit the expenditure for legal advice and investigation to a figure which is about 20% of the existing funds of CDM, which is a figure of $16,000.  That would permit CDM through his administrator to obtain advice for what will be complex legal matters across several proposed claims.
  45. [74]
    The Tribunal is aware that by using 20% of his funds in this manner, the time when all the funds will be exhausted could be brought forward by almost a year.  The funds are likely to last for a longer period of time if the suggestion of the representative is adopted as to the limit that should be imposed on the use of the funds for investigation of the legal claims.  However, the Tribunal must balance the fact that the funds will be depleted within only a few years against the likelihood that a proper investigation into whether there is a viable basis for the claims outlined by TJ will require significant expenditure of legal fees, even if some of the legal work is done on a pro bono basis. 
  46. [75]
    Some of the claims, if viable, will be likely to be leading authorities on how substituted decision-making should be conducted and deserve to be properly investigated by competent and experienced legal practitioners.  That will require that adequate funds are made available to CDM for that purpose.  Otherwise, the opportunity to obtain proper advice would be little more than illusory if adequate funding were to be withheld. 
  47. [76]
    TJ has also applied to be appointed as the guardian for CDM for legal matters not relating to CDM's financial or property matters.  Much discussion was held at the hearings as to the specific purpose for which appointment of TJ as a guardian was being sought.  It is axiomatic that decisions that involve financial outcomes cannot be made by a guardian. Decisions to instruct legal practitioners about claims involving a breach of CDM's rights can only be made by an administrator if the outcome being sought is monetary compensation. 
  48. [77]
    If any such claims are commenced in a court, they can only proceed with a litigation guardian appointed under the court rules.  This Tribunal does not appoint litigation guardians for actions in the courts.  An administrator is required in the pre-court process to instruct lawyers and to make decisions on the progress of a claim; but when a claim translates into a court proceeding, the litigation guardian takes on the role of decision-maker for giving instructions and, if appropriate, to compromise and settle the claim before hearing. 
  49. [78]
    However, TJ was insistent that he needed to be appointed as a guardian for legal matters if all of the proposed legal claims were to be advanced.  He referred in particular to the decision of the Appeal Tribunal that CDM lacked the standing to appeal against a decision of the Tribunal as he lacked capacity for legal matters which included the capacity to bring an appeal.  TJ submitted that CDM needed a guardian because of the Tribunal's historic and routine refusal to presume, acknowledge, or respect CDM's statutory and common law capacity and rights. 
  50. [79]
    That submission is not accepted as it is based on a misinterpretation of the law.  The Tribunal's decisions have consistently determined that CDM has impaired capacity for financial matters.  Under the GAA Act, impaired capacity means the person does not have capacity for the matter.  As such, CDM has been under a legal disability as far as making decisions about financial matters is concerned.  The presumption of capacity for that matter had been rebutted at each hearing when CDM's capacity for financial matters was in issue. 
  51. [80]
    The common law presumption of capacity was rebutted and the statutory provisions for countermanding the effects of legal disability are exclusively contained in the GAA Act.  Reliance on other provisions, such as the United Nations Convention, as the legal basis for asserting CDM has the right to make his own decisions about his financial affairs is wrong.  While he is under a legal disability, his decision-making rights are exercised via a substituted decision-maker and in accordance with the GAA Act and the General Principles set out in that Act.
  52. [81]
    The Tribunal can appoint a guardian if satisfied that there is a need for a decision about a personal matter and that, without such an appointment, CDM's needs will not be adequately met or his interests will not be adequately protected.  In all of the submissions of TJ, the Tribunal could identify only one issue that may in actuality give rise to the need for the appointment of a guardian for legal matters.  That issue involved whether CDM could himself bring an appeal against a decision of the Tribunal when he has been found to have impaired decision-making capacity for the matters in that proposed appeal. 
  53. [82]
    One view might be that such an issue is not a standalone issue but is inherently related to the type of appointments sought to be appealed. However, a second view may be as cogent and open when approached from the accepted position that capacity is matter specific.  It is possible that the question of capacity for bringing an appeal is a personal matter about standing before the Tribunal in a general sense and not wholly encompassed in the underlying matter which might be the appointment of a financial decision-maker. 
  54. [83]
    TJ submitted that CDM has or will be prevented from appealing a decision of the Tribunal as a result of a finding of incapacity for a financial matter.  This is not an academic issue as CDM may want to appeal this current decision of the Tribunal.  It is in the interests of justice that CDM should not be prevented from seeking to overturn errors made by the Tribunal.  The Tribunal is satisfied that the appointment of a guardian for legal matters may provide CDM with a more certain pathway to seek to correct errors in legal decisions about him even though most of the legal claims he wishes to make can be brought by his administrator. 
  55. [84]
    TJ and CDM's mother are already providing support to CDM for making decisions about personal matters.  TJ has sought appointment as  a guardian for CDM.  Applying the appropriateness considerations already discussed in relation to the appointment of an administrator, the Tribunal is satisfied that TJ would be appropriate to appoint as the guardian for legal matters for CDM. 
  56. [85]
    There are two other applications for determination.  The Public Trustee has applied for a confidentiality order in respect of any advices from counsel and or the Official Solicitor obtained by The Public Trustee and provided to the Tribunal in support of the further application for directions about a claim for compensation against CDM's former administrators (his mother and his aunt) about recovery action of a loan of $20,000 made to CDM's father in 2006. 
  57. [86]
    Copies of the advices were not filed in the Tribunal.  In a letter that accompanied the application for a confidentiality order, The Public Trustee submitted that further information will be provided to the Tribunal which might include the advices over which a confidentiality order was sought.  The Public Trustee submitted that CDM would suffer an injustice if the advices were not kept confidential.  It was submitted that the dominant purpose of the advices was to consider whether or not CDM's mother and aunt should be pursued in the compensation matter and whether or not CDM's father should be pursued for the recovery of the loan made to him. It was submitted that a waiver of privilege in the advices would mean that the proposed litigants could access the advices and benefit from the information contained in the advices.  It was submitted that such an outcome would damage the prospects of success CDM had in any potential actions against these persons.
  58. [87]
    However, The Public Trustee had already made a decision that it, as administrator for CDM, would not take action in these matters and had sought a direction to this effect from the Tribunal.  While the application for a confidentiality order may have had some prospects of success at the time it was filed in the Tribunal, there is no sensible basis for making a confidentiality order now that the review of the appointment of the administrator has resulted in The Public Trustee being replaced as administrator by TJ. 
  59. [88]
    The legal advices were obtained for CDM and paid for by his funds.  Due to his impaired capacity about financial matters, including legal matters about his finances, CDM cannot himself make a decision about the release of the legal advices obtained for his benefit.  His administrator must make such a decision.  His administrator must be provided with documents and advices that will enable the administrator to make ongoing decisions about CDM's legal and financial affairs. 
  60. [89]
    With the change of administrator, there is no basis for the Tribunal to give directions to the former administrator about taking or not taking legal action and, therefore, no basis for that former administrator to keep, as confidential, documents about those actions, being documents that were obtained for the adult and paid for by his funds. There is no injustice in providing the legal advices about CDM's prospects of success in a legal claim to his current administrator as those very documents will be required to be considered and taken into account by the administrator when deciding what, if any, action to take on behalf of CDM.  Viewed from that vantage point, the application for a confidentiality order is now not able to be sustained and must be dismissed.
  61. [90]
    In similar terms, the application by TJ for directions is unnecessary.  TJ had applied for a direction by the Tribunal that The Public Trustee provide to CDM and TJ all written communications between the Official Solicitor and The Public Trustee including any legal advice obtained or produced by the Official Solicitor and The Public Trustee in relation to the claims against CDM's mother and aunt and his father.  The application appears to be based on a request for a notice to produce to be issued under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  62. [91]
    A party in a proceeding can request an order that will result in documents in the possession of another party being provided to the Tribunal and ultimately released to the requesting party.  The Public Trustee had submitted that the request made by TJ was very wide and potentially oppressive.  The Public Trustee relied on the existence of legal professional privilege in resisting the direction being sought by TJ for the production of documents of a type specified in his application. 
  63. [92]
    Those bases for resisting the production of documents are no longer relevant.  The Public Trustee has, by the orders set out in these reasons, been replaced as the administrator for CDM and TJ is now his administrator for all financial matters.  Legal professional privilege in the documents had belonged to The Public Trustee as administrator for CDM and not in its own right.  It was not contended that the requested documents came into existence for the benefit of The Public Trustee; rather, it was contended that the documents came into existence to provide advice about the legal rights of CDM which he could only exercise through his appointed substituted decision-maker. 
  64. [93]
    CDM still has a range of legal matters that are undetermined.  His administrator is entitled to access documents that will assist in ongoing decision-making by the administrator.  However, there should be no need for the Tribunal to give The Public Trustee a direction to release documents to TJ.  Under s 44 of the GAA Act, an administrator who has power for a matter has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.  It was not contended by The Public Trustee that CDM would not have had an entitlement to documents relating to his legal affairs.  Those documents would include what could be called the file of the lawyers instructed by his administrator about those affairs.  The documents on the file of the Official Solicitor should be available to CDM's administrator before he can make an informed decision about CDM's legal affairs.  To do so, TJ will need to access the advices provided on behalf of CDM as well as the documents which provided instructions to the lawyers. 
  65. [94]
    The Public Trustee is required to give the information in the form of the documents sought by TJ unless under s 44(2) there is a reasonable excuse.  If the Public Trustee does not provide the documents which have been requested by TJ, the Tribunal can make an order requiring the production of the documents.  Section 44(6) expressly states that the person in whose possession the documents are held cannot rely as a reasonable excuse on a claim of confidentiality, privilege, statutory restriction, or the common law. 
  66. [95]
    The application by TJ for a direction that the documents he specified be produced to him by The Public Trustee is dismissed on the basis that it is unnecessary to make the direction given the provisions in s 44.   
  67. [96]
    Although the hearing conducted by the Tribunal related to four applications, TJ had also sought orders that The Public Trustee must not charge CDM for any legal fees incurred by The Public Trustee in the applications.  TJ submitted that The Public Trustee is a conflicted party and potential respondent in recovery and litigation action that may be brought by CDM.  TJ submitted that The Public Trustee should not use the funds of CDM for its own legal costs defending its own interests against allegations made by CDM.  TJ submitted that the power of The Public Trustee to use clients' money to defend itself is a special privilege of a monopoly with non-voluntary clients.  TJ submitted that this special power is discrimination on the basis of disability. 
  68. [97]
    The Public Trustee replied to those assertions by TJ.  The Public Trustee submitted that it has a statutory right to recover reasonable costs, including legal costs, from CDM's funds, referring to s 48 of the GAA Act and ss 16 to 17B of the Public Trustee Act 1978 (Qld).  The Public Trustee submitted that costs have been incurred in relation to the matters involving claims against CDM's mother, aunt, and father and also in relation to responding to TJ's applications to the Tribunal.  The Public Trustee submitted that it will take CDM's circumstances and the outcome of the hearing into account when determining what portion of the costs will be passed on to CDM. 
  69. [98]
    TJ made further submissions on this point in January 2017.  TJ submitted that the GAA Act provides that parties must bear their own costs.  Although not specifically referring to s 47 of the GAA Act, TJ submitted that the Act permits reimbursement of reasonable costs by an administrator.  TJ submitted that The Public Trustee was not representing CDM in the matters heard by the Tribunal.  TJ submitted that the actions of The Public Trustee in bringing an application for confidentiality and by responding to TJ's applications were done without consultation with CDM.  TJ submitted that he had exhausted the internal complaint process of The Public Trustee without being able to obtain basic information about the legal claims that The Public Trustee was considering. 
  70. [99]
    TJ submitted that it would be unreasonable for The Public Trustee to recover its legal fees incurred in these applications from the funds of CDM.  TJ referred to an error that The Public Trustee acknowledges it made in recovering costs from CDM's funds in an earlier application but that the error was not picked up and rectified until TJ made his current applications to the Tribunal.  TJ submitted that CDM should not have to pay for the legal fees of The Public Trustee for matters that come to the Tribunal due to the failure to consult, failure to provide basic information, disregard of its own internal complaints process, failure to correct error, and failure to pursue debts owed to CDM.  TJ submitted that The Public Trustee was not providing a reasonable service to CDM and it was unreasonable for CDM to pay for it.
  71. [100]
    The Tribunal does not entirely accept the submissions of TJ.  The Public Trustee has a statutory right to be reimbursed by CDM for reasonable expenses incurred in acting as CDM's administrator.  Legal fees incurred by an administrator in bringing an application to the Tribunal or indeed in responding to another person's application are normally able to be reimbursed from the funds of the adult if the fees are reasonable.  TJ has made allegations that The Public Trustee has not been competent in discharging the role of administrator.  The Tribunal has not had to make findings on those assertions in this case as an alternate finding was made on review that TJ was more appropriate to be CDM's administrator than The Public Trustee.  However, the Tribunal had in earlier decisions found that the actions of The Public Trustee were appropriate and competent. 
  72. [101]
    However, the evidence from The Public Trustee establishes that there has been considerable delay in coming to a conclusion not to pursue recovery action against CDM's mother, aunt, and father.  There was a lack of effective consultation with CDM about these matters and a reasonable inference could be drawn that better consultation and communication could have avoided the need to obtain legal advice at all.  The views and wishes of the person with impaired capacity appeared to be given less weight than factors involving what the administrator considered to be the proper care and protection of that person.  It is possible that the obligation on the administrator set out in General Principle 7(5) was given preference over the obligation set out in General Principle 7(4). 
  73. [102]
    The Tribunal will not direct The Public Trustee not to reimburse the legal costs incurred in these applications from the funds of CDM.  However, the Tribunal will make a recommendation that the reasons of the Tribunal are taken into consideration when The Public Trustee comes to decide what, if any, reimbursement is reasonable in this case.  The legal power to reimburse is available but the extent of reimbursement is discretionary.

Footnotes

[1]Guardianship and Administration Act 2000 (Qld) – s 31(2).

[2]Ibid s 12(1).

[3]Report of Robert Walkley, psychologist dated 2 December 1991.

[4]Ibid at pages 3 and 4.

[5]Report of Maureen Field dated 17 February 1994.

[6]Report of Dr Les Ding dated 12 May 1998.

[7]Report of Dr Peter Mulholland dated 20 May 2002.

[8]Report of Dr Leo Ryan dated 7 November 2016.

[9]GAA Act, op cit schedule 4.

[10]GAA Act op cit s 5(c).

[11]GAA Act op cit schedule 4.

Close

Editorial Notes

  • Published Case Name:

    CDM

  • Shortened Case Name:

    CDM

  • MNC:

    [2017] QCAT 135

  • Court:

    QCAT

  • Judge(s):

    Senior Member Endicott

  • Date:

    26 Apr 2017

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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