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VMH[2018] QCAT 14

CITATION:

VMH [2018] QCAT 14

PARTIES:

VMH

(Adult)

APPLICATION NUMBER:

GAA1462-17, GAA5876-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

13 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Joachim

DELIVERED ON:

22 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

ADMINISTRATION

1. The appointment of The Public Trustee of Queensland as administrator for VMH for all financial matters is continued.

2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

4. This appointment remains current until further order of the Tribunal.  This appointment is reviewable and is to be reviewed in one (1) year.

ENDURING POWER OF ATTORNEY

5. The Registrar is to take the necessary steps to refer the former attorney EH breach of s 66 of the Powers of Attorney Act 1998 to the Queensland Commissioner of Police.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where review of Public Trustee of Queensland’s appointment is being conducted – where Public Trustee of Queensland has investigated actions of former attorney for financial matters – whether need exists for ongoing appointment – whether former attorney has breached s 66 of the Powers of Attorney Act 1998 (Qld)

Guardianship and Administration Act 2000 (Qld), s 12, s 31

Powers of Attorney Act 1998 (Qld), s 66, 106

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

APPEARANCES or REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This matter concerns a review of the appointment of the Public Trustee of Queensland as administrator for VMH. VMH has been the subject of a number of orders from QCAT. 
  2. [2]
    The matter first came to QCAT’s attention as a result of an investigation by the Public Guardian into the actions of the then Attorney of VMH. 
  3. [3]
    VMH had appointed her daughter, EH under an enduring power of attorney dated 24 February 2011, with the power for financial matters to begin when VMH lost capacity as certified by a medical practitioner. 
  4. [4]
    Following the Public Guardian’s investigation into the actions of EH the Tribunal subsequently appointed the Public Trustee of Queensland as administrator for all financial matters and appointed NH, another daughter, as a guardian to make decisions about health care.  These appointments were made on 31 July 2015. At this time the enduring power of attorney was revoked in its entirety.
  5. [5]
    Subsequent reviews of the Public Trustee’s appointment were conducted on 29 July 2016 and 28 April 2017 with the Public Trustee being reappointed on review. NH’s appointment as guardian for health care is not due for review until 2020 and remains in place.
  6. [6]
    The Public Guardian’s report had indicated that VMH’s property had been sold and in excess of $130,000 was unaccounted for. There were unpaid nursing home fees. The Public Guardian had been able to obtain certain information regarding what had happened to the funds from the proceeds of the sale of VMH’s property, however they and the Public Trustee’s enquiries had stalled as a result of their being unable to obtain further information from EH. EH was to attend the Public Trustee to provide further particulars on 12 December 2016 but failed to attend the appointment and failed to set a subsequent meeting date.  As a result the Tribunal issued a notice to attend to EH on 9 February 2017. This notice required her to attend the hearing on 28 April. She attended.
  7. [7]
    At the review hearings, the Tribunal issued directions to the Public Trustee of Queensland to obtain further specific information from the former Attorney about her actions.  The Public Trustee’s investigations revealed, that prima facie, the Attorney had not acted appropriately. My conclusions about this are explained in the reasons for decision dated 28 April 2017.  Those reasons should be read in conjunction with these reasons.
  8. [8]
    The following order was made as a result of the hearing on 28 April 2017:

ADMINISTRATION

  1. The appointment of The Public Trustee of Queensland as administrator for [VMH] for all financial matters is continued.
  2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  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.

DIRECTIONS

  1. Within three (3) months, the Public Trustee of Queensland is to provide written submissions to the Tribunal, [EH] and [NH] on whether the former attorney [EH] is in breach of section 66 of the Power of Attorney Act 1998 and, if so, what if any action should be taken.
  2. By 4.00pm, 6 October 2017, [EH] and [NH] are to provide the Tribunal, the Public Trustee of Queensland and each other with their responses to the Public Trustee of Queensland’s submissions
  3. Unless any party requests an oral hearing, the Tribunal will decide any further action in this matter on the basis of written submissions. Not before 6 November 2017.
  1. [9]
    No parties requested an oral hearing. In case one was requested the matters were listed for hearing on 13 November 2017 by notice of hearing sent to the parties on 19 October 2017.  All parties were advised prior to the scheduled hearing that the matters will proceed on the papers without an oral hearing because no party had requested an oral hearing.  The matters are being dealt with pursuant to s 32(2) of the QCAT Act.

Review of the Public Trustee’s appointment as administrator

  1. [10]
    The review of the Public Trustee’s appointment takes place under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act).  At that end of the review the Tribunal must revoke the appointment unless satisfied it would make an appointment if a new application were to be made.  This requires the Tribunal to consider s 12 of the GAA Act.
  2. [11]
    In relation to capacity, the evidence is very clear and uncontested.  VMH has dementia and is unable to understand information on which to base decisions about her finances.  She does not handle money, and all of her finances are managed by the Public Trustee of Queensland.  She has severe cognitive impairment, confusion and short term memory loss.  She has resided in residential aged care since November 2012.  I am satisfied that the presumption of capacity to which adults are entitled is rebutted in relation to financial matters. 

Is there a need to appoint an Administrator?

  1. [12]
    The Public Trustee currently manage VMH’s Veterans Affairs Pension and pay all of her expenses. The bulk of her expenses are Nursing Home Fees and chemist accounts.
  2. [13]
    The Public Trustee of Queensland have entered into a Deed of Acknowledgment of Debt (“DAD”) with the former Attorney.  This acknowledges a debt to VMH of $128,923.23 owed by EH, the former Attorney.
  3. [14]
    I am satisfied that there is a need for decisions about VMH financial matters and without an appointment her needs will not be adequately met and her interests not adequately protected.
  4. [15]
    The Public Trustee in addition to the functions listed above also manage VMH’s savings which is in the vicinity of $8,340.00 and a debt to the Official Solicitor of over $22,000.00.

Who should be appointed Administrator?

  1. [16]
    I have decided to continue the appointment of the Public Trustee.  I can only replace the existing appointee if either the current appointee is no longer competent or another person is more appropriate.[1]  In her submissions for this review VMH’s daughter, NH, the Guardian, has requested to be appointed as administrator.  She has previously asked to be considered for appointment to manage her mother’s finances but because of the investigations into her sister’s Attorneyship, it was not considered she was more appropriate.  I have concluded that the Public Trustee of Queensland remains competent and more appropriate on this occasion also.  The Public Trustee of Queensland is a professional administrator who is doing a competent job in managing Ms VMH’s finances. 
  2. [17]
    It is pleasing to note that the DAD has been developed acknowledging the debt owed to VMH by her daughter EH.  I am concerned about the appropriateness of NH in terms of her objectivity.  Her submissions suggest she seems intent on vengeance against her sister EH and could use any appointment to attempt to bankrupt her sister.  She is concerned that the actions of the Public Trustee do not go far enough and has doubts about the value of the deed.  More troubling, however, are her views about transactions undertaken well before her mother appeared to lose capacity as evidenced by health professionals.  For instances, NH refers to events in 2008, concerning a reverse mortgage of $120,750 taken out by her mother.  Despite the Public Trustee’s inquiries that reveal no evidence of misappropriation of these funds by EH, NH believes her sister was a major recipient of these funds.  NH is concerned that this is not being pursued.  It may well be that EH received some money from her mother, but that does not mean it was acquired fraudulently.
  3. [18]
    There is considerable conflict between the siblings and it is clear that there is mistrust between them.  I am concerned that NH, if appointed, may use the appointment inappropriately and not necessarily in her mothers best interest to extract vengeance against her sister.  The appointment of a Public Trustee can be reviewed in 12 months’ time.  If NH seeks appointment she needs to submit a financial management plan outlining how she will manage her mother’s finances for the Tribunal’s consideration.

Enduring power of attorney

  1. [19]
    In its reasons following the hearing of 28 April 2017 the Tribunal stated at paragraph 26:

The Tribunal decided that the Public Trustee should provide submissions to the tribunal and to the active parties within three months as to whether [EH] has breached s 66 of the Powers of Attorney Act with a response from the active parties to be provided within two months of receipt of the Public Trustee’ submissions.  The Tribunal will then decide whether this matter should be referred to Crown Law for a possible prosecution against [EH] under s 66 of the Powers of Attorney Act.  That section provides for maximum penalty 200 penalty units. One penalty unit is currently worth $120.00.

Submissions of the Public Trustee

  1. [20]
    The history of the sale of VMH’s property is outlined in the reasons of 28 April 2017.  Essentially the house was sold $330,000 and after paying out legal fees and a mortgage, $128,932.23 was paid out to VMH.  EH has admitted to using all of these funds for herself, she has signed an acknowledgement of debt in this amount.  Annexure A to these reasons outlines how the bulk of these funds ($101,329.95) were dissipated.  As for the rest of the net proceeds from the sale of the house EH admitted at the hearing on 28 April 2017 that she has used most of this on herself. 
  2. [21]
    The Public Trustee submitted that from the evidence given by EH at the hearing, limited funds if any were spent on items for her mother. EH gave conflicting accounts on whether her mother authorised the use of these funds.  On the one hand she stated her mother said she wanted to leave her all of her money but EH said no because that would cause hassles and she doesn’t want the money.  EH stated that the money meant nothing to her and that’s why she wasted it.  Later EH said her mother said she wanted her to have all the money when her house was sold.
  3. [22]
    The Public Trustee noted that EH lived in a state housing property and had advised the Public Trustee she had no assets and was on a carer’s pension.  The Public Trustee submitted that by spending most of VHM’s funds on herself, EH has breached her duty as VHM’s Attorney to exercise power honestly and with reasonable diligence to protect VHM’s interest. The Public Trustee noted that “VHM has a potential action against EH for compensation under s 106” of the Powers of Attorney Act 1998 in the Supreme Court.  The Public Trustee does not propose any further action in relation to the matter following the signing of the deed which acknowledges the debt and which provides for repayment upon written demand by VHM’s financial decision-maker along with interest charges.
  4. [23]
    In its Tribunal briefing report dated 30 October 2017, it is noted that EH had advised she could not pay a lump sum of $128,923.23 but promised to repay the debt at $50 per fortnight. No payments have been received. The Public Trustee of Queensland notes that it is still open to the Tribunal to refer this matter to Crown Law for prosecution. The Public Trustee requests the Tribunal take the following into account:
    1. EH has cooperated by giving evidence at the last Tribunal hearing and entering into a Deed of Acknowledgment of the Debt; and
    2. If a penalty is issued against EH, this may impact on her ability to make repayments under the deed if a written demand is sent by the Public Trustee to EH in the future.
  5. [24]
    In relation to the reverse mortgage over the property in 2008, as noted earlier, the Public Trustee concluded that there was no evidence to show any misappropriation.

NH’s submissions

  1. [25]
    NH submits that her sister EH and EH’s partner CJ took advantage of VMH dementia onset.  NH rejects EH evidence at the Tribunal regarding her naivety, denial of wrongdoing and lack of knowledge by pointing to her performing high-level skills in life and business including establishment of joint accounts and loan transactions.
  2. [26]
    NH submits that EH admitted to misappropriation of their mothers funds under oath, shows no remorse, continuing to distort facts and plead lack of knowledge in relation to some transactions.
  3. [27]
    NH argues that their mother never gave EH authorisation to use her funds and their mother never intended to leave all her money to her.  I should note at this point that VMH’s will provides for her estate to be shared equally amongst her children. 
  4. [28]
    NH noted that EH had maligned the character of her siblings at the hearing and had not advised her siblings of the revocation of an earlier enduring power of attorney.  She submitted that section 66 of the Powers of Attorney Act had been breached and she should be prosecuted. 
  5. [29]
    She further argued that the acknowledgment of debt does not include other sums of money misappropriated, including the proceeds of the reverse mortgage and that a retaining wall (said by EH to have been built with some of these funds) was never built. 
  6. [30]
    NH submitted that in deciding whether to refer the matter to Crown Law the Tribunal should consider these points:
    • EH’s disrespect for their mother;
    • Her irresponsible actions and misappropriation of their mother’s finances;
    • Her lack of duty of care;
    • Her untruthful character assassination of her siblings;
    • Her distortion of the truth and inconsistency whilst under oath.
  7. [31]
    EH made no submissions.

The Tribunal’s view

  1. [32]
    EH deliberately used at least $128,923.23 of her mother’s funds for her own benefit whilst she was acting as Attorney.  She has admitted to such use under oath.  The Enduring Power of Attorney document made no provision for any conflict transactions.  EH had two different versions of events at the hearing.  She stated her mother told her to use her money.  There is no collaborative evidence about this.  The second version is that her mother told her she would leave all of her money to her.  There is no collaborative evidence about this and all the children are beneficiaries under the will.
  2. [33]
    I do not accept either version of EH’s story.  It may be that EH spent her mother’s money to deny her siblings any inheritance.  Whether this is so or not, EH has abrogated her responsibilities as Attorney and has not acted honestly and with reasonable diligence in accordance with section 66 of the Powers of Attorney Act 1998.
  3. [34]
    In this regard, I accept the submissions of the Public Trustee and NH for the following reasons:
    1. An Attorney must not use an Attorney’s funds for their own benefit unless there is an express intention under the terms of the Enduring Power of Attorney;
    2. An Attorney must avoid conflict transactions;[2]
    3. An Attorney must keep records.[3] No records were kept;
    4. An Attorney must keep property separate;[4]
    5. The Public Trustee investigation showed a mixing of monies following the sale of the adult’s property. In this regard I refer to paragraph 19 of the reasons for decision dated 28 April 2017;
    6. The former Attorney cannot rely on the gifting provisions in section 88 of the Powers of Attorney Act as the funds used by EH would not satisfy those provisions.
  4. [35]
    In respect of the Tribunal’s decision, whether to refer EH for prosecution, the Public Trustee asked the Tribunal to consider EH’s cooperation in giving evidence at the hearing on 28 April 2017, her entering into a deed of acknowledgement of debt and that if a penalty is issued this may impact on her ability to make repayments.
  5. [36]
    I have considered these matters.  The history of EH’s involvement in the inquires of the Public Guardian, the Public Trustee and the Tribunal are characterised by a lack of cooperation as outlined below. The Public Guardian investigated the actions of EH as Attorney in 2015.  The Public Guardian’s report of that investigation notes that various allegations were put to EH by way of letter dated 13 July 2015.  The letter also requested copies of financial record keeping and invoices for transactions.  She was to respond by 22 July 2015.  Australia post records show the letter was delivered on 14 July 2015.  EH did not respond to that correspondence nor did she telephone the Public Guardian.
  6. [37]
    At the hearing on 29 July 2016, EH in her absence, but by order mailed to her, was directed to provide information to the Public Trustee regarding the net proceeds of the sale of her mother’s house. She failed to comply with that direction.  On 30 November 2016, the Public Trustee arranged for EH to attend an interview on 12 December 2016 to discuss her actions and explain the transactions.  She failed to attend, did not make a new appointment and did not respond to numerous messages left for her to contact the Public Trustee.  Despite getting notices for hearings on 31 July 2015, 29 July 2016 and 27 January 2017, she failed to attend until issued with a formal notice to attend, compelling her to appear at the review hearing on 28 April 2017. I therefore do not accept the Public Trustee of Queensland’s argument about cooperation. She only cooperated when issued with a notice to attend.
  7. [38]
    I acknowledge that entering into the deed was positive. However, there is no requirement under the deed to make periodical payments and although EH indicated to the Public Trustee she would make voluntary payments of $50 per fortnight, she has made no repayments.  This suggests she has no intention of making any repayments unless forced to.
  8. [39]
    In relation to NH’s submissions, I make the following comments:
    1. I accept that EH has admitted to using her mother’s funds and shows no remorse;
    2. I accept that EH is not as naive has she presents;
    3. Apart from VMH’s testamentary intentions there is no evidence either way of her intentions regarding the use of her funds whilst alive;
    4. I give no weight to EH’s comments about her siblings; and
    5. I accept the Public Trustee of Queensland’s submissions that there is no evidence of misappropriation regarding the reverse mortgage funds.
  9. [40]
    I have decided to refer EH to Crown Law based on her actions as Attorney in using her mother’s funds for her own benefit, not keeping records, not avoiding conflict transactions and not keeping property separate – all of which, in my view, amounts to not acting honesty and with reasonable diligence.
  10. [41]
    I make the following orders:

ADMINISTRATION

  1. The appointment of The Public Trustee of Queensland as administrator for VMH for all financial matters is continued.
  1. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  1. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  1. This appointment remains current until further order of the Tribunal.  This appointment is reviewable and is to be reviewed in one (1) year.

ENDURING POWER OF ATTORNEY

  1. The Registrar is to take the necessary steps to refer the former attorney EH breach of s 66 of the Powers of Attorney Act 1998 to the Queensland Commissioner of Police.

Annexure A

VMH [2018] QCAT 14

VMH [2018] QCAT 14

Footnotes

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

[2] Powers of Attorney Act 1998 (Qld), s 73.

[3] Powers of Attorney Act 1998 (Qld), s 85.

[4] Powers of Attorney Act 1998 (Qld), s 86.

Close

Editorial Notes

  • Published Case Name:

    VMH

  • Shortened Case Name:

    VMH

  • MNC:

    [2018] QCAT 14

  • Court:

    QCAT

  • Judge(s):

    Member Joachim

  • Date:

    22 Jan 2018

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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