KCR[2018] QCAT 185

REASONS FOR DECISION

1. [1]
   KCR was born in April 1938. He has dementia and at the time of the last hearing on 11 September 2017, was placed in temporary nursing home care on the Gold Coast, awaiting a decision about permanent care.
2. [2]
   He came to the attention of the Tribunal as a result of an application from Blaire Grant, a social worker from the Gold Coast University Hospital. Ms Grant was seeking the appointment of the Public Guardian (PG) as guardian for KCR and seeking the appointment of the Public Trustee of Queensland (PTQ) as his administrator.
3. [3]
   Interim orders were made on 22 November 2016 and 12 December 2016. These orders appointed the PG as guardian for decisions about accommodation, health care and contact, and appointed the PTQ as administrator for all financial matters.
4. [4]
   KCR’s partner, NAS, held an Enduring Power of Attorney (EPOA) executed on 27 June 2013. This appointed NAS as attorney for personal, health and financial matters with the power for financial matters to begin immediately. This document also provided for Mr Anthony Delaney, a solicitor, to be the successive attorney to act when NAS was unable to act.
5. [5]
   These applications were heard on 10 February 2017 and orders were made giving the PG and the PTQ the same powers as they had under the interim orders. The appointments were to be reviewed in four months. Oral reasons were given at the conclusion of that hearing.
6. [6]
   The reasons for the review occurring so soon were two-fold.
7. [7]
   Firstly, NAS wanted to obtain further medical reports about KCR’s capacity because she asserted the material on file did not give a complete picture and she wanted a further independent report about KCR’s capacity. Whilst I was satisfied there was sufficient information for me to make a determination about capacity, I granted the request.
8. [8]
   Secondly, as there were allegations about NAS’ inappropriate actions as KCR’s attorney, she had sought to have Mr Delaney represent her at the hearing. I did not grant him leave because he was the successive attorney and had acted on behalf of KCR and NAS in relation to property purchases and sales which were the subject of the allegations against NAS. I considered there was a potential conflict of interest. Ultimately, she agreed with this. I considered that NAS should have an opportunity to seek alternative representation should she wish to.
9. [9]
   I made orders accordingly and made directions that Mr Delaney produce certain documents to the Tribunal and that various health professionals and agencies produce clinical records and reports about KCR to the Tribunal by 31 March 2017.
10. [10]
    The review hearing commenced on 25 May 2017. NAS sought an adjournment on two grounds.
11. [11]
    Firstly, she had briefed a new lawyer, Mr O'Sullivan’ only two days before the hearing and secondly, had inadequate time to obtain the independent assessment because she had received the Gold Coast University Hospital notes in late April. The adjournment was opposed by the PG, the PTQ and the applicant, Blaire Grant.
12. [12]
    I granted the adjournment as Mr O'Sullivan had not had time to prepare and NAS had serious questions to answer regarding her actions as attorney. Additionally, Mr Delaney had not produced all of the documents that he had been directed to produce.
13. [13]
    Further directions were made to Mr Delaney regarding the production of documents and his attendance at the next hearing on 31 August 2017. Additionally, NAS was directed to provide an independent capacity assessment by 17 August 2017 and to provide written explanations about specific actions she took as attorney. The order is replicated below:

ADJOURNMENT

1. The hearing is adjourned to 31 August 2017 at Southport at 2:00pm.

DIRECTIONS

2. Anthony Delaney of Delaney Lawyers is to be served with a notice to produce, by 30 June 2017, a complete copy of his file in relation to the purchase of … Bundall by [KCR] and [NAS].

3. Anthony Delaney of Delaney Lawyers is to be issued a notice to attend a hearing at Southport Courthouse on 31 August 2017 at 2:00pm, reviewing the appointment of the Public Trustee of Queensland and Public Guardian.

4. Anthony Delaney of Delaney Lawyers is to provide a written explanation to the Tribunal as to why he did not comply with a notice to produce issued by the Tribunal on 14 February 2017 in relation to the purchase of … Bundall

by 4:00pm on 15 June 2017.

5. [NAS] is to arrange an occupational therapy assessment of [KCR] and of any accommodation proposed to be utilised for him. The occupational therapist is to provide a report to the Tribunal and to the Public Guardian by 17 August 2017 detailing the daily support needs of [KCR], whether these can be met in the proposed accommodation and if not whether it would be possible to modify the environment and provide adequate personal support. The costs of the assessment and report are to be borne by [NAS].

6. [NAS] is to arrange an independent review of [KCR]’s capacity for decision making and provide a report on this assessment to The Public Trustee of Queensland, Public Guardian and to the Tribunal

by 4:00pm on 17 August 2017.

7. The Attorney, [NAS], is to provide a written explanation to the Public Guardian, The Public Trustee of Queensland and to the Tribunal, that, given the health professional reports of Dr Penny King, psychogeriatrician, the notes of Dr Penny King (GP), the Gold Coast University Hospital notes, the notes of the Bundall Medical Centre and her own observations, why she did not commence acting under the Enduring Power of Attorney dated 27 June 2013

by 4:00pm on 17 August 2017.

8. The Attorney, [NAS], is directed to provide a written explanation of the following:

1. (i)
   Transactions in the Adult’s bank accounts with Bendigo Bank and Westpac, including accounts in joint names with her, including transactions made by her and for what purpose.

2. (ii)
   What records she kept of the above transactions.

3. (iii)
   For each real estate transaction involving her property or the Adult’s property or jointly owned property since January 2013, details of the circumstances of the purchase or sale, any loans associated with the purchase transactions, the source of funding, whether she acted as Attorney for [KCR], how the Adult’s interest in the transaction was protected, how/if the Adult financially benefitted from the transaction, how/if she financially benefitted from the transaction, who provided instructions to Mr Delaney, why [KCR]’s interests in the properties diminished to zero.

4. (iv)
   Why a loan was entered into when the [Benoa] property was purchased and why was a mortgage taken out over the property at … Bundall.

5. (v)
   What records she kept in relation to the real property transactions, mortgages and loans and if these records are able to be provided.

6. (vi)
   What funds she received as a result of the property transactions, when they were received, what has happened to the funds and why did she receive them.

7. (vii)
   To the extent it is not covered in the Attorneys affidavit dated on or about 15 February 2017, the nature of the relationship between her and [KCR] from June 2013 including her care and support for [KCR], the services provided to him, the extent to which she attended medical appointments with him, the times she and the Adult lived together as a couple and where, and when they ceased living together.

8. (viii)
   Why the Adult had no funds or assets when he was admitted to hospital and when this state of affairs commenced.

by 4:00pm on 17 August 2017.

9. The Public Trustee of Queensland, Public Guardian, Mr Delaney and [NAS] are to provide written submissions to the Tribunal and to each other, as to whether it is appropriate for Anthony Delaney to assume his role as successive Attorney if [NAS] is removed as Attorney under the Enduring Power of Attorney dated 26 June 2013

4:00pm on 24 August 2017.

10. [KCR] is not required to attend the hearing on 31 August 2017.

11. The active parties are to file in the Tribunal any further material on which they intend to rely

by 4:00pm on 24 August 2017.

14. [14]
    The PG and PTQ appointments remained in place as the term of the orders of 10 February 2017 were until further order.
15. [15]
    At the resumed review hearing on 31 August 2017 leave was granted for NAS to be represented by Mr J McNab of Counsel instructed by Oden Legal.
16. [16]
    The review takes place under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). This requires that at the end of a review I must revoke an appointment unless I am satisfied that I would make an appointment if a new application was made. This requires me to consider the various elements of s 12 of the GAA Act.
17. [17]
    The matters were not concluded on 31 August 2017 and the evidence was finalised at a subsequent hearing on 11 September 2017. Orders were made following the 11 September 2017 hearing for written submissions as follows:

DIRECTIONS

1. Each active party provide written submissions to the Tribunal and to each active party no later than 4pm on 13 October 2017.

2. Each active party may, if they wish, provide a response to the other parties’ submissions to the Tribunal and to each active party no later than 4pm on 27 October 2017.

18. [18]
    On 13 October 2017 I made a direction that NAS’ new lawyer, Nicholas Radlich and her new Counsel be granted an extension of time to provide submissions by 13 November 2017 and extended the time for other parties to respond to 27 November 2017.

The quality of NAS’ evidence

19. [19]
    NAS’ evidence was crucial to determining these applications.
20. [20]
    I did not find NAS a reliable or satisfactory witness. She was evasive in her answers at times and gave contradictory evidence. Examples are outlined in the paragraphs below. They cause me to doubt her reliability and credibility.
21. [21]
    NAS told me that she did not know whether the matter was going to be heard at the first hearing or not so hadn’t had the opportunity to find a psychiatrist independent of Dr King. When I questioned her about why she did not think the hearing was going ahead, NAS had nothing to offer except that the process was very distressing.
22. [22]
    Early in the second hearing NAS advised me that she was seeking an adjournment partly because she couldn’t find a suitable lawyer on the Gold Coast, notwithstanding that she had had three months to do so. I found this unconvincing.
23. [23]
    In the first hearing NAS advised that she would prefer KCR at home. On earlier occasions with health professionals she had stated she was seeking residential care. When I put it to her that KCR has been carefully assessed in relation to whether he could return home and his care needs have been assessed as being too high, she agreed. The PG representative advised that NAS was aware that the PG was of the view that KCR requires residential aged care placement, and on 18 January during a discussion she had indicated to him that she agreed with that assessment and also indicated that she had been looking at places herself and had suggested Ashmore Treat as a possibility.
24. [24]
    Despite earlier denying that she had never sought permanent residential care, NAS gave evidence at the hearing that during the time she was getting respite care, she was seeking permanent residential care. She advised she could not remember when she started to seek permanent residential care. NAS, at the third hearing advised that she would like to take KCR home and she would ensure that she either has Blue Care or some facility to perhaps come two to three times per week to ensure his safety is still okay and the rest she would look after him. In the event that he reaches a stage that he does ‘really’ need 24 hour care then she would place him in aged care or the alternative is to place him in aged care and have him stay perhaps a weekend at home.
25. [25]
    Further, in the third hearing NAS advised that she had not been seeking permanent residential care for KCR, but respite care. This is not what is recorded in the notes of various health professionals.
26. [26]
    Despite NAS’ comments in the first hearing disagreeing that KCR has poor memory, needs prompting has moderate cognitive impairment, is regularly confused and disorientated, she acknowledged in the second hearing that KCR does become confused. At the third hearing of the matter, NAS accepted that there were times that she had told health professionals about KCR’s poor memory. She did not recall telling Mr Delaney that she was concerned about KCR’s memory. NAS went on to say that she told Mr Delaney that KCR had been diagnosed in 2014 as having dementia.
27. [27]
    During the third hearing NAS advised that she would have done things differently had she known more about dementia knowing what she knows now. When I asked her what she would have done differently she said ‘I believe I would put him into aged care – that I would look at other options. I would have used my EPOA’. When I asked her when she would have done that, she said ‘when I realised he lost capacity’ and then she said he never lost capacity until ‘whenever’. When I pressed her on this, NAS advised that she would have gone to see Mr Delaney about using the EPOA in November 2016. This indicates to me that at no point until November 2016 did she consider KCR required her intervention in terms of decision-making. Notwithstanding the above, she told me she would have done things differently. It just doesn’t make sense, especially when she told me that she had advised Mr Delaney that KCR had been diagnosed with dementia in 2014 and she had told doctors on multiple occasions about his poor memory.
28. [28]
    Despite her assertions that she considered KCR lost capacity in November 2016, she also gave evidence that she came to the view that he had lost capacity when she received Dr Murphy’s report. She would not have received Dr Murphy’s report until late June 2017. Her evidence about KCR’s capacity cannot be relied upon. She was totally inconsistent and contradictory in her evidence, oral and written.
29. [29]
    She also advised that she did not recall Dr King (psychogeriatrician) asking her to take over monitoring of medication, decision-making and prompting for self-care. She asked the question of me ‘what sort of decision-making?’ I found that a most peculiar question given that Dr King asked her to take over decision-making. Decision-making means decision-making. Dr King had not specified a particular type of decision-making.
30. [30]
    In response to a direction as to why NAS did not commence acting under the EPOA, she stated in writing that neither Dr Penny King (GP) or Dr Penny King (psychogeriatrician) provided instructions to her to commence acting under the EPOA. She further stated that KCR had some problems with his memory but no diagnosis of dementia was ever mentioned to her. I reject these submissions as Dr Penny King had told her to take over decision-making for KCR in June 2014 and she had been told that KCR had dementia. NAS subsequently acknowledged the diagnosis in the hearings.
31. [31]
    NAS disagreed with what I had put to her, that when a specialist psychogeriatrician tells her to take over decision-making knowing that KCR had a poor memory, this would have given rise to a question in her mind as to whether she should activate the EPOA. She responded ‘no, absolutely no way’. I put it to NAS that she should have asked Dr King if she was in any doubt about what type of decisions she should be making. NAS agreed with me but said ‘I do recollect asking her how advanced was he and she said moderate.’ She advised me that KCR’s memory wasn’t shocking, it was poor. NAS had earlier advised Dr King in 2014 that KCR had severe impaired memory and severely reduced attention capabilities.
32. [32]
    I totally reject NAS’ submissions that the notes of Dr King (psychogeriatrician) proved that no discussion was ever held with NAS about KCR’s cognitive abilities or his inabilities.
33. [33]
    In the third hearing, NAS advised that Dr King (psychogeriatrician) never sent her a letter. Again this is incorrect and suggests that NAS’ reliability and credibility needs to be questioned. NAS denied during the third hearing that Dr King (psychogeriatrician) had ever asked her to take over monitoring of medication and decision-making, although she did say she did monitor his medication.
34. [34]
    In the fourth hearing, NAS initially denied saying that she had told Mr Delaney that KCR had a diagnosis of dementia. She started to say that what she told Mr Delaney was that Dr Penny King (psychogeriatrician) had suggested that he goes for a test. Again, this shows the unreliability of NAS. She was unable to explain why she told Mr Delaney specifically that KCR had dementia. Subsequently, she recalled that she had told him because KCR was going to Dr King’s memory clinic. Mr Delaney denied any knowledge of the conversation, and certainly denied any knowledge that KCR’s condition was being examined by a psychogeriatrician. Following Dr Penny King’s (psychogeriatrician) evidence NAS accepted that she did get letters from Dr King.
35. [35]
    NAS also stated repeatedly that she had never managed KCR’s finances, although the Gold Coast University Hospital notes record that she advised them that she started managing on 14 November 2016. She said she failed to recollect that.
36. [36]
    In an affidavit dated 10 February 2017, NAS advised that should she pass away before KCR she would have arrangements in place to care for him and indicated that she would make a will in order for this to happen. By the date of the last hearing on 11 September 2017, NAS had nothing put in place and indicated she was suspicious about making wills.
37. [37]
    NAS also indicated at the last hearing that she has had documents prepared to have KCR’s name put on the titles to the property but she can’t do this without the authority as she doesn’t have the EPOA. When I brought it to her attention that the PTQ had this authority and asked her whether she had spoken to them she had not. She had no explanation as to why. Later she went on to say she was more than happy to extend the caveat over her property (placed by the PTQ) and that ‘should it be in my favour that I have [KCR] returned to me, I would want to have [KCR] back on title’. That is not altogether consistent with what she had earlier said.

Capacity

38. [38]
    Counsel for NAS righty points out that capacity is decision specific. Capacity for a matter is defined in Schedule 4 of the GAA Act as follows:

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.

39. [39]
    KCR’s personal matters include:

    1. Where he is to live as an accommodation decision is required;
    2. With whom he has contact/visits as serious questions have been raised by the applicant, the PG and the Queensland Health staff member supervising contact about the behaviours of NAS when visiting KCR;
    3. Health care because of his diagnoses of prostate cancer, glaucoma, hypertension, urinary retention, osteoporosis and arthritis.
40. [40]
    KCR’s financial matters include:

    1. Management of his pension;
    2. Decisions about the costs of his future care;
    3. Whether any action, including legal action, is required regarding NAS’ decision-making in relation to his former assets and his finances generally; and
    4. Decisions about how to manage his debts.
41. [41]
    There is considerable material before the Tribunal concerning KCR’s cognition and his decision-making capacity. This material includes NAS’ personal observations about KCR as reported by her to health professionals.
42. [42]
    In September 2013, KCR had a fall at home and suffered a subdural haemorrhage and resultant memory problems.
43. [43]
    In January 2014, his General Practitioner (GP) Dr Penny King referred him to a psychogeriatrician, also named Dr Penny King, who saw KCR on and off for about three years. In the referral Dr King (GP) states ‘[KCR] has little insight and when challenged agrees his memory is terrible but declines intervention’. In her notes of 16 June 2014 she writes ‘memory appalling. [NAS] is frustrated by his inability to do tasks around the home. He can’t remember instructions’. Dr King (GP) also referred KCR to Dr David Stratton a psychiatrist who replied to Dr King (GP) on 12 May 2014 noting:

According to [NAS], [KCR] had a number of problems which predated his fall in September 2013. Specifically his memory is shocking, he has been losing weight, he gets mood swings, is unmotivated, and has poor hygiene. There is a suggestion that he became depressed in a way that preceded Juliette’s death.

44. [44]
    KCR subsequently saw Dr Penny King (psychogeriatrician) at her memory clinic. Prior to one visit, NAS emailed her on 27 May 2014 to give her a brief history about KCR. In this letter NAS states (emphasis original):

I am writing you a ‘brief’ history of [KCR] because [KCR] has past “history” with his consulting doctors of not telling the truth or is in self denial about his medical problems/conditions.

…

Currently his “condition” varies from one day to the next. He has severe depressive moods and mood swings, feelings of guilt about his wife’s death, then anger and aggression, severe impaired memory, severe reduced attention capabilities, lack of motivation and speaks of hopelessness…

…

His hygiene is disgraceful and I have taken his bath towels with urine and poo stains to Dr Penny King as proof of this, but he can’t understand why this [sic] “incidents” happen.

…

He can’t cook, clean, wash or iron and needs to be given “instructions” to complete the most simple tasks…

Today he finished his dinner whilst I was in my study, when I came down to the kitchen he asked me what he should do with the leftover bones of the chicken he had eaten.

45. [45]
    Dr King (psychogeriatrician) replied the same day (27 May 2014) after seeing KCR and advised ‘I am most concerned about [KCR]’s memory and feel he will need more support and care at home’.
46. [46]
    Dr King (psychogeriatrician) subsequently saw KCR at her memory clinic on 12 June 2014 and concluded as follows:

Diagnosis Shared With Patient and Carer:

1. Dementia Syndrome of Mixed Etiology following head injury in 2013. Moderate degree of impairment identified.

Management Plan

It was recommended that [KCR] is not in a functional state to be able to continue to drive and a notification has been made regarding revocation of his license and he is aware of this.

Monitoring of his medication compliance is necessary and his partner [NAS] is going to undertake this task.

A referral has been made to ACAT for further assessment and support in terms of [KCR]’s homecare needs.

…

It was apparent that [NAS] as Carer requires some degree of support and further advice and education regarding [KCR]’s needs and in saying so an assessment and admission to Currumbin Clinic to further identify his functional capacity and to explore further treatment options will occur in August and this may include cognitive enhancing medication.

…

He has been residing with [NAS] for approximately 12 months and he presents with a history of decline in his memory function particularly in the last 12 months perhaps even prior to that 12-18 months in duration… He seems to be apathetic and withdrawn in his behaviour lacking initiation. He denies disorientation. He is struggling to organise tasks even if they are set and fairly directed. He struggles with managing money and finances and struggles organising his medications day to day.

47. [47]
    The assessment results indicated a moderate level of impairment. Dr King’s (psychogeriatrician) report of this assessment noted that she had asked NAS to take over monitoring of medication, decision-making and prompting for self-care. She also wrote to Queensland Transport to have KCR’s license cancelled. NAS received a copy of this letter.
48. [48]
    In March 2016, NAS took KCR to see Dr Penny King (psychogeriatrician) and Dr King noted the following in a letter to Dr Penny King (GP):

He has come to an outpatient appointment today accompanied by [NAS] his partner with her desperate plea to consider placing [KCR] in residential care. It would appear that she has allowed [KCR] to administer his own medications despite his incapacities and she is seeking urgent placement for him also noting that his memory has declined…

I am concerned for his medical health given non compliance because he has a past medical history of glaucoma, vitamin D deficiency, gastro oesophageal disease, hypertension and the previous subdural in 2013.

I feel that the best way forward in terms of managing risks for [KCR] and the best outcome for him is to proceed with the residential placement as the degree of incapacity in his carer [NAS] is very apparent today.

49. [49]
    NAS obtained the independent assessment from Dr Lucas Murphy, a consultant and forensic psychiatrist. He saw KCR on 22 June 2017, and reviewed a number of documents including case notes from Woodlands, Dr Penny King’s (GP) file, Dr Penny King’s (psychogeriatrician) report of 16 January 2017, correspondence from her dated 18 June 2014, September 2014, 10 December 2014, 1 March 2016, correspondence from Dr Stratton, psychiatrist dated 12 May 2014, and a memory clinic assessment summary dated 12 June 2014. He also conducted his own assessment.
50. [50]
    Dr Murphy concluded that KCR is totally unable to understand the nature and effect of any financial decision, that he has genuine warmth towards NAS and trusts her more than anyone and would like to spend time with her. Dr Murphy stated that KCR’s verbal fluency is relatively intact, although he has problems with organisation and problems with maintaining a train of thought.
51. [51]
    Having reviewed all the material he states:

The weight of medical evidence is that [KCR] lost the capacity to understand financial decisions by 12 June 2014, although he may have regained capacity to make limited financial decisions for a period after being treated in 2014 for depression.

52. [52]
    He is most definite that KCR would not have been capable of executing a mortgage over property he owned by June 2014. Similarly, he is definite that KCR could not have entered into contracts in April 2016.
53. [53]
    He states that KCR needs full nursing care and NAS could not reasonably provide for his needs. By way of contrast, Dr Penny King (psychogeriatrician) wrote to the PTQ on 16 January 2017, after reviewing her notes, and concluded that:

It would be reasonable to surmise that [KCR] has had significant impaired cognition and decision making since his head injury in September 2013. That is he lacked capacity for complex decision making in all domains and this would include the ability to understand the intention and possible consequences of making financial gifts noting that KCR was very passive and tended to defer any decision making to his partner.

54. [54]
    A detailed neuropsychological assessment by the Melanie Sauer of Gold Coast University Hospital was conducted on 5 June 2017. The assessment was whether KCR could make informed decisions about accommodation, medical matters and financial management. She found KCR confused with poor memory with very limited knowledge and insight of his current situation and poor problem solving ability.
55. [55]
    Ms Sauer concluded that KCR had impairments in attention, working memory, learning and executive function with marked deficits in planning, organisation and verbal reactions. She stated KCR did not have capacity to make informed decisions around his accommodation, medical issues or financial management.
56. [56]
    NAS obtained an assessment from Jacqui Leggett an occupational therapist on KCR’s cognitive status, his skills in regard to activities of daily living and his accommodation needs. Ms Leggett’s assessment took place on 15 August 2017.
57. [57]
    Ms Leggett recorded that KCR’s memory and cognition appears to have steadily declined since his fall in 2013. Ms Leggett concluded as follows:

[KCR] has cognitive impairment. He requires assistance in personal care, organising his daily routine and is in dependent in medication taking. He would be able to live in his home with a package of Level 4.

He would also require respite in a Nursing Home at specific times throughout the year.

[KCR] has indicated that he would prefer to live with [NAS], who he is engaged to, in his own home.

58. [58]
    Ms Leggett’s report findings do not agree with Dr Murphy’s about where KCR should live.
59. [59]
    Further, a report from another occupational therapist, Georgina Alle of Gold Coast Hospital dated 11 August 2017 can also be contrasted with Ms Leggett’s report. Ms Alle found as follows:

Based on formal and informal cognitive assessments completed during this admission [and relevant previous admissions], it appears that [KCR]’s cognition is impaired across a number of areas including memory, problem solving, safety and judgment and attention.

These difficulties may impact on [KCR]’s decision-making process. Difficulties observed include:

Based on above review of [KCR]’s current level of function and cognition, [KCR] currently requires 24 hour supervision and support with all activities of daily living due to significant cognitive decline.

60. [60]
    As a result of the above I am satisfied that KCR does not have capacity to make decisions about his personal or financial matters as a result of poor memory, reasoning, judgement and problem solving. He could not understand the nature and effect of decisions that are required to be made for his personal or financial matters.
61. [61]
    Further, I have concluded that KCR’s capacity to make decisions about his financial matters was likely to have been impaired from September 2013 but am in no doubt from the medical evidence that he lacked capacity for any of his financial matters from June 2014. I accept Mr Bowden’s submission that there is no substantial evidence of any mental incapacity prior to the fall.
62. [62]
    In relation to NAS’ knowledge of KCR’s capacity I make the following observations:

    1. By April 2014, she knew KCR’s memory was very poor as she had described it to the doctors. She knew he couldn’t follow instructions to do tasks around the home because she told the doctors;
    2. Dr Penny King (psychogeriatrician) had told NAS in June 2014 to take over his decision making and to supervise his medication. Dr King had also told NAS she was very concerned about his memory;
    3. NAS was aware a diagnosis of dementia was made but made no attempt to have the implications explained to her by the doctors she was taking KCR to, but claimed she was unaware what the diagnosis meant;
    4. Despite all of this, she did not seek to operationalise the Enduring Power of Attorney. She says KCR continued to make decisions and she spoke to him about decisions, never using the EPA or taking over decision-making.
63. [63]
    I find it difficult to accept that NAS did not realise or know that KCR could not make complex decisions because he could not retain the information necessary to make them. She herself had commented in an email dated 27 May 2014 that KCR needed instructions to complete the most simple tasks and could not remember his medication.
64. [64]
    NAS advised that she had not kept any specific records as the transactions related to jointly held property and transactions about which NAS did not utilise the EPOA document. She stated she has never at any time acted as attorney in any property transactions and the EPOA has never been registered with the Department of Natural Resources and Mines.
65. [65]
    In these circumstances it is difficult to conceive how NAS thought KCR could understand the nature and effect of decisions about purchasing property, taking out bridging loans, granting a mortgage to a purchaser, determining mortgage conditions, totally running down his assets in order to obtain a pension, and spending hundreds of thousands of dollars on lifestyle in 20 months.
66. [66]
    The PTQ submitted that:

… [NAS] made a significant number of transactions with [KCR]’s funds for her own benefit and no benefit to [KCR].

The various property, mortgage and money transactions left [KCR] with no assets…

The Public Trustee submits that [NAS] knew or ought to have known that [KCR] did not have capacity at the time of various property, mortgage and money transactions.

67. [67]
    Whilst I accept Mr Bowden’s submissions that to the casual observer, KCR was capable of giving the impression of normalcy (referring to Mr Delaney’s observations), I do not for one moment consider NAS to be a casual observer, as he was inferring.
68. [68]
    I also do not accept his submission that Dr King (psychogeriatrician) ‘did not consider that [KCR] needed urgent help of the nature here under consideration’. In this regard, I refer to what Dr King (psychogeriatrician) advised NAS on 27 May 2014 and that following her assessment on 12 June 2014. She told NAS to take over monitoring of medication, decision-making and prompting for self-care.
69. [69]
    I reject his submissions that the evidence before the Tribunal ‘is deficient in these areas’ whereby he submits that there has not been identification of particular matters requiring decisions. The evidence from the health professionals is clear in this regard.

History of Property Transactions

70. [70]
    KCR owned a home at Cocos Crescent Broadbeach Waters which he owned with his wife of around 50 years.
71. [71]
    NAS was living at Southport in property she owned.
72. [72]
    After his wife passed away KCR met NAS and after a brief period they decided to get engaged and live together.
73. [73]
    A house was purchased at Bundall and settled on 1 August 2013 for $960,000.00. According to NAS, KCR purchased the house with his funds and the property was bought in joint names. Both the Broadbeach Waters property and the Southport properties were sold, the Broadbeach property settling the earlier, on 4 July 2013 for $920,000.
74. [74]
    After a fall on the stairs about one month after settlement, KCR was hospitalised for a head injury and eventually returned to the Bundall house, which was to be renovated. This renovation took 14 months according to an affidavit of NAS dated 10 February 2017.
75. [75]
    According to her affidavit, in mid-2014, she suggested they part but this did not eventuate. Instead, NAS looked for another property for them to live in which would not have stairs. She found a place in Benowa Waters which required extensive renovations. This was purchased for $920,000.00 using KCR’s funds and settled in September 2014 with NAS as the sole owner. A bridging loan was taken out over the Bundall property for $798,000 (approved on 26 August 2015) until it could be sold to fund the Benowa Waters property. This was paid out on the settlement of the sale of Bundall property on 3 May 2016.
76. [76]
    A mortgage was given to the purchasers by NAS when it settled on 3 May 2016 for $1,230,000.00, although the contract price was $1,000,000.00. This mortgage was for $230,000, interest free for 17 months payable to NAS only at $2,000 a week until September 2017 with the balance of the principal due in September 2017. At the hearing on 31 August 2017 NAS gave evidence that KCR was not involved in any discussions with the lawyer about these arrangements and couldn’t or wouldn’t explain why. NAS gave the instructions to the lawyer. She said she discussed with KCR and he agreed. This contradicts an earlier statement dated 17 August 2017 which NAS provided to the Tribunal in which she stated that on 4 April 2016 instructions were provided by her and KCR to solicitor Chris Henaghan to prepare the documents to secure a mortgage from the purchasers. This is yet another example of NAS’ unreliability.
77. [77]
    NAS gave unverified evidence that she spent $200,000 of her own funds on the renovation and furnishings for the Benowa property.
78. [78]
    During the renovations of Campbell St and Benowa properties, KCR lived apart from NAS with or nearby her stepfather, Harry, firstly in a rental property at Biggera Waters and then in a rental property in Southport. He was still living there in November 2016.
79. [79]
    At settlement of the Bundall property, NAS received almost $165,000. KCR received nothing.
80. [80]
    In the light of the above, I need to consider s 87 of the Powers of Attorney Act 1998 (Qld). Section 87 provides:

87 Presumption of undue influence

The fact that a transaction is between a principal and 1 or more of the following—

1. (a)
   an attorney under an enduring power of attorney or advance health directive;

2. (b)
   a relation, business associate or close friend of the attorney;

gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.

81. [81]
    That NAS claimed not to use the Enduring Power of Attorney does not necessarily give her relief under this section. The relevant transactions were between KCR and NAS, his attorney, close friend and fiancée.
82. [82]
    In the matter of Smith v Glegg^[1] in the Queensland Supreme Court, His Honour McMurdo J had this to say (footnotes omitted):^[2]

The doctrine of undue influence operate according to the nature and content of a relationship between the parties. Certain types of relationships are assumed to be ones in which there is such a level of trust and confidence and likelihood of the exercise of authority by the one party over the other, that any substantial gift should be justified by the recipient.

83. [83]
    In this case, KCR was highly dependent on NAS for his housing, his personal support, health care and finances. As in Smith v Glegg, ‘there was a very high level of dependence and trust in this relationship which makes the case for a presumption of influence a compelling one’.
84. [84]
    As McMurdo J stated:^[3]

There is no expressed limitation in s 87 that the transaction must involve an exercise of the attorney’s power. Indeed, by presuming that the principal was induced to enter the transaction by the attorney’s influence, the section operates in a context where the principal does not enter the transaction simply by the attorney’s doing so on his behalf… In my view, s 87 is engaged where the transaction is between the principal and the attorney or another person within (b), whether or not the transaction was effected by the exercise of the powers under the enduring power of attorney.

85. [85]
    The presumption of undue influence is rebuttable. There is nothing advanced by NAS regarding this. There is no evidence that KCR received and understood independent legal or accounting advice about the transactions, especially those occurring past June 2014. Indeed, the evidence is that he did not, and on the occasion of the last mortgages was not involved in decisions other than with NAS and other than signing.
86. [86]
    It is not a question of whether KCR understood the consequences of what he was doing. The medical evidence says he did not.
87. [87]
    The attorney argues that she and KCR came to a view that he would run down his assets so that he would get a pension. The evidence suggests that no advice was sought or received about this. Given KCR’s memory problems about which NAS was aware, she should have initiated such advice. Further, she was the one receiving substantial benefits from the transactions and she was the one upon who KCR depended.
88. [88]
    In all the circumstances, I consider that the presumption of undue influence is not rebutted.

History of Cash Transactions / Bank Accounts

89. [89]
    On 4 April 2014 a joint Bendigo Bank account was opened in the names of NAS and KCR. $491,250.00 was deposited. By 14 December 2015 virtually all of these funds had been depleted, with some significant withdrawals in the tens of thousands of dollars, including one for $340,000.00 on 28 April 2015. This date does not seem to relate to any property transactions described above.
90. [90]
    NAS advised that she and KCR lived a lavish lifestyle.
91. [91]
    A second Bendigo account running from 1 February 2016 to 14 November 2016 showed both income and expenditure, both in excess of $56,000.00.
92. [92]
    KCR held two bank accounts in his name after his wife’s passing. One was closed on 7 November 2013 and almost $32,000.00 withdrawn.
93. [93]
    In relation to the question as to transactions in KCR’s bank accounts, including accounts in joint names, NAS states she had never performed any transaction using KCR’s personal bank accounts and has only transacted by the joint Bendigo Bank account and the Westpac credit card that KCR provided her.

History of Westpac Credit Card

94. [94]
    The PTQ provided the Tribunal with Westpac statements for various Altitude Black Credit Card in the name of KCR.
95. [95]
    These statements covered the period from February 2014 until August 2016. The cards were extensively used by NAS during this period and by 10 May 2017 the debt was $29,799.83.
96. [96]
    NAS continued to use KCR’s credit card which she says he gave her, well after the PTQ were appointed administrators and in the knowledge that the PTQ were administrators.
97. [97]
    She stated that over the period 9 April 2014 to 27 March 2017, NAS made 35 payments to KCR’s Westpac credit card totalling over $200,000. Of these, she says, over $133,000 were transactions from cheques drawn from the joint account, and the remaining almost $67,000 were transacted by cheques from NAS’ personal bank account.

History of Term Deposits

98. [98]
    KCR held the following term deposits with Westpac bank at various times:

    1. $30,990.00 lodged on 4 April 2015 for maturity on 10 December 2015 (originally lodged as $30,000.00 on 4 April 2014 and rolled over);
    2. $500,000.00 lodged on 4 April 2013 for maturity on 4 April 2015;

These funds are gone and matured after KCR lost capacity. NAS could not explain this apart from saying they lived a lavish lifestyle.

Is there a need for an administrator?

99. [99]
    In his final submissions, the PTQ submitted that there was a need for an independent administrator and there was a need for a decision in relation to KCR’s legal matters relating to his financial and property matters including whether to commence proceedings against NAS. The PTQ submitted it has undertaken extensive investigations in that regard and before commencing proceedings would first make a demand of NAS.
100. [100]
     The PTQ is concerned that, without the appointment of an administrator, NAS’ conflict of interest in relation to any cause of action against her, means that KCR’s interest will not be adequately protected in relation to his legal matters.
101. [101]
     In an earlier submission the PTQ noted that NAS continued to use KCR’s credit card after the PTQ’s appointment. The PTQ has requested NAS repay KCR for these transactions. I note that at the time of the last hearing the repayments had not been made. The PTQ submits, and I agree, that at all relevant times NAS has been aware of the PTQ’s appointment as administrator for all financial matters. She should not have been using the card without the PTQ’s approval.
102. [102]
     The PTQ had advised that it had been successful with a Centrelink aged pension claim for KCR, being approved on 19 May 2017 with an arrears back payment of $6,866.00 for the period 17 January 2017 to 5 May 2017.
103. [103]
     Mr Bowden outlines an explanation of events from mid-2016 through to the hospital admissions, and suggests that Ms Grant acted in a precipitant manner and should have tried to assist NAS. I am not concerned about Ms Grant’s motives or whether she had a full picture. I consider Ms Grant made the application in good faith, dealt with by way of an interim order and I subsequently dealt with it by making short-term orders at the first hearing on 10 February 2017.
104. [104]
     In the submissions from KCR’s Counsel, it is stated at paragraph [20] that NAS says that KCR decided at some point and she agreed that he would try to get the pension if possible, and if that meant divesting himself of some of his assets then so be it. I note that this was not the case when Bundall property was purchased jointly in July 2013.
105. [105]
     Mr Bowden submitted that the purchase of the Benowa property in NAS’ name was consistent with the plan she and KCR had devised to divest himself of his assets. He also submitted that consistent with the plan, NAS did in fact apply for Centrelink benefits on KCR’s behalf. There is evidence, however, from NAS at the third hearing that she did not complete the application process in November 2016 because of the gifting to her.
106. [106]
     NAS, in response to a question as to why KCR had no funds or assets when he was admitted to hospital and when this state of affairs commenced, stated that KCR had always planned to apply to Centrelink for an aged pension and to do this he proceeded to divest his assets. KCR always had funds available to him via the joint account with NAS. This is partially accurate. That account, however, had almost a zero balance by 14 December 2015. From that time KCR had no income and had a joint ownership of the Bundall property, which was being sold. The evidence from NAS is that she did not commence applying for a Centrelink pension until around the last quarter of 2016. This is a serious indictment of NAS, as is her not seeking any advice about the impact of his “gifting”.
107. [107]
     Mr Bowden submits that whilst there is evidence that KCR’s ability to understand complex financial documents was diminished at the time of the sale of the Bundall property, there is no reason to think he did not understand the transfer of that property. The problem with this submission is that Bundall property did not sell immediately and bridging finance was required in respect of the purchase of the Benowa property and a mortgage was required over the Bundall property. Moreover, when the Bundall property did sell a mortgage was given to the purchasers. This mortgage provided for a loan of $230,000.00 which was to be paid in instalments of $2,000.00 per month for a period with the balance being paid in September 2017. The evidence is clear that KCR would not have understood those arrangements at the time.
108. [108]
     Mr Bowden’s submissions, ‘address the question as to whether the orders made on 10 February ought to be reviewed’. The legislation demands that appointments of guardians be reviewed (GAA, s 28) and that the Tribunal may review appointments of the PTQ (GAA, s 29). Mr Bowden concludes that the case for the relevant appointments has not been made out and they should be terminated. It is open to me to revoke the appointments under s 31 of the GAA Act. However, I have found that KCR does have impaired capacity for his personal and financial matters and I have found that a need exists for the appointment of a guardian (explained later in these reasons) and administrator and will be making the appropriate appointments. By not making an appointment of an administrator, NAS would become attorney again. This would not be appropriate.
109. [109]
     As noted earlier, I cannot conceive that NAS was ignorant of KCR’s impaired capacity for decision-making.
110. [110]
     In my view, whilst she may have discussed matters with KCR he would not have understood the nature and effect of the decisions.  She should have acted as his attorney under the Enduring Power of Attorney dated 27 June 2013 when she was advised by Dr Penny King (psychogeriatrician) to take over decision-making. She did not.
111. [111]
     NAS has encouraged KCR to sign documents about which he would not have understood the consequences, she has effectively stripped KCR of his assets and placed him in a perilous financial position. She has benefitted from all of the decisions made about property and savings. She has been negligent in not protecting his assets. Not only does he not have property but his substantial bank savings have all gone.
112. [112]
     KCR was a vulnerable man who was willing to please his new partner. When he lost capacity in mid 2014, he was unable to exercise proper judgment and understanding. He relied on NAS to do the right thing about his finances. In my view, she did not. A number of significant withdrawals from the joint account need investigating.
113. [113]
     KCR’s solicitor, Mr Anthony Delaney, was appointed by KCR to be his successive appointee when NAS is no longer able to act. Mr Delaney’s firm was acting for KCR and NAS in the various property transactions referred to earlier. In evidence he has advised the Tribunal if NAS is removed as attorney due to allegations of adult abuse and these being substantiated he would find himself in a conflict. I have found that there is a prima facie case of undue influence.
114. [114]
     I agree with Mr Delaney, that given the findings I have made, I do not consider it appropriate that he act as attorney, given he and his firm’s role in the transactions. I accept his evidence that as far as he understood, NAS had not been acting as attorney and he was not aware of any difficulties with KCR.
115. [115]
     I am satisfied that there is a need for decisions about all of KCR’s financial matters and without an appointment his needs and interests will not be adequately protected.
116. [116]
     The appointment of the Public Trustee of Queensland will continue until further order as KCR’s administrator for all financial affairs.

Is there a need for a guardian?

117. [117]
     The Public Guardian (PG) was appointed under interim orders dated 22 November 2016 and 12 December 2016. The PG was given powers to make decisions about accommodation, health care and contact.
118. [118]
     During the course of these orders and the subsequent order of the Tribunal at hearing, the PG has had numerous contact with NAS and the Gold Coast University Hospital.
119. [119]
     The PG had not been required to make any decisions other than contact decisions prior to the last hearing. In the final submission dated 12 October 2017, the PG advised that a decision was made on 29 September 2017 consenting to permanent aged residential care being sourced.
120. [120]
     The PG has submitted that KCR needs full nursing home care and that NAS is unable to provide for his needs. NAS has been approved only to have supervised contact as a result of what the PG describes as inappropriate discussions with KCR, abuse of staff by her and a lack of recognition of KCR’s needs.
121. [121]
     NAS fundamentally disagrees with the PG’s views about her behaviour with the relationship between NAS and the PG soured from the start. In my view, this was because NAS resented the PG’s involvement.
122. [122]
     However, contact was supervised by Queensland Health as the Woodlands facility is affiliated with Queensland Health and KCR occupied one of the Queensland Health beds there. Reports of contact provided by the supervisor of most of the contact, Ms Kidd, were essentially negative. NAS was scathing in her criticism of Ms Kidd and strongly disagreed with Ms Kidd‘s observations.
123. [123]
     The documentation provided to the Tribunal about the contact was comprehensive and the notes made were contemporaneous. I could not rely on NAS’ evidence at the hearing regarding KCR. I therefore place reliance on what Queensland Health and the PG say and do not accept NAS’ version of events about contact.
124. [124]
     The PG wrote to NAS advising that Queensland Health will no longer supervise visits because of her abusive communication towards staff, staff safety and the impact visits have on KCR.
125. [125]
     The PG has provided a number of reports to the Tribunal during the course of the PG’s appointment. In the last submission, the PG notes that on 20 December 2016 KCR was approved under an ACAT assessment for permanent residential care. The PG provided consent on 29 September 2017 for permanent aged care placements to be sourced for KCR.
126. [126]
     The PG has made a number of decisions in relation to contact for KCR. In earlier reports, the PG advised that it had been necessary to initiate a review of contact decisions made during the term of the previous order such that NAS had supervised contact. KCR was residing temporarily at Blue Care Woodland’s lodge at Arundel and his ongoing care was being monitored by Gold Coast University Hospital in association with Blue Care staff. According to the PG, NAS was aware that KCR requires residential aged care placement and despite this she consistently was informing KCR that he would be returning to live with her.
127. [127]
     The PG undertook to meet with NAS to discuss the concerns about her contact. NAS proved uncooperative in making these arrangements. The issues of concern in relation to the supervised contact are as follows:

     1. The PG had written to NAS reminding her not to discuss future accommodation options with KCR. NAS responded that she disagreed with the conditions that the PG put on her;
     2. NAS had been reported to have been aggressive and argumentative with the Gold Coast University Hospital staff who had been supervising her;
     3. NAS had been observed to tell KCR that he must remember that he loves her and that he must tell the truth at an upcoming QCAT hearing;
     4. NAS was observed to tell KCR he must talk to the people there and tell them that ‘you want to go home to me who has been so good to you’ and that ‘we are going away on a holiday to Asia as soon as they let you come home’;
     5. In April, NAS had been reported to tell KCR that he would be returning home with her in five weeks;
     6. On occasions there was an inappropriate sexual innuendo in the conversations.
128. [128]
     The supervisor of most of the visits, Ms Kidd a social worker with Queensland Health, provided information to the Tribunal about her concerns with the themes of the supervised visits. She noted NAS visits approximately once a week or fortnightly for about 30 minutes and will often request visitation time with little knowledge or regard for what KCR is doing at that time. In her opinion, NAS remains very concerned with herself rather than showing empathy or concern for KCR.
129. [129]
     Ms Kidd noted that the visits follow a similar pattern. On first meeting KCR she tells him how scruffy and untidy he looks and nobody is looking after him, displaying little insight into how these comments will affect KCR. Secondly, she checks KCR’s legs for cellulitis and tells him his legs are looking terrible, swollen and he is being neglected. Thirdly, she shows KCR pictures of her having lunch with her friends and talks about how much money it costs her. She asks KCR if staff are taking him out for drives and when he says no she again tells him that he should be allowed to go out and not be locked up. Next, she shows KCR pictures of a house and the bungalow that he would live in. She encourages KCR to speak up and tell everyone he wants to leave and be with her.
130. [130]
     Ms Kidd says she has asked NAS on numerous occasions to refrain from saying what she does as it affects KCR emotionally and could have an impact on his adjustment if he does not return to home. NAS also displays persistent hostility towards staff. Usually, after a few minutes of small talk she then says she has to leave, talks about how people are treating her regarding QCAT and how busy she is.
131. [131]
     In summary, Ms Kidd states that the visits with KCR are mainly focussed on NAS’ issues, rather than spending quality time with KCR. Ms Kidd considers that NAS has no insight into how her behaviour could be impacting on KCR or his needs. NAS totally rejects these assertions and the assertions of the Public Guardian.
132. [132]
     These matters were canvassed at the last hearing of the matter on 11 September 2017. There were some occasions when Woodlands staff appear to have supervised the visits and no issues were raised on those occasions, although the PG does not have specific documentation in relation to those occasions.
133. [133]
     Ms Kidd advised that she considers that KCR likes having NAS come to visit him. Ms Kidd also gave evidence that NAS advised staff of the Emergency Department of the Gold Coast University Hospital that originally she and KCR were romantically involved but split when his dementia began to advance, but that she remains good friends with KCR and became his carer. Ms Kidd also advised that NAS has told her a few times that the engagement ended after KCR had a fall at home. NAS rejects this.
134. [134]
     NAS advised that she was more than happy for someone to supervise contact with KCR, but she had problems with Ms Kidd and only had problems when Ms Kidd arrived.
135. [135]
     In relation to accommodation, health care and contact I make the following observations:

     1. NAS did not properly identify KCR’s needs for support prior to hospitalisation;
     2. NAS has no consistent view about what level/type of care KCR needs;
     3. NAS failed to supervise KCR’s medication regime despite being told to do so by health professionals;
     4. NAS continues to assert she can care for KCR despite evidence to the contrary, and despite not having done so in the immediate past 12 to 18 months, when they were living apart due to her property renovations;
     5. NAS fails to acknowledge or address concerns raised with her about contact.

I prefer the evidence of Ms Kidd and the Public Guardian to that of NAS because NAS’ evidence in these hearings was evasive, inconsistent and unreliable.

136. [136]
     I have come to the conclusion that there is a need for decisions about where KCR lives, his health care and with whom he has visits or contact and without an appointment his needs will not be adequately met nor his interests adequately protected.
137. [137]
     The Public Guardian will be appointed until further order with a review in two years.
138. [138]
     Having made the appointments and having come to the view that NAS should have acted under the Enduring Power of Attorney document for both personal and financial matters and didn’t, I have decided to revoke the Enduring Power of Attorney executed on 27 June 2013 which appointed NAS as attorney for financial, personal and health matters for KCR, and appointed Mr Delaney as successive appointee.