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LER (No 2)[2018] QCAT 431

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LER (No 2) [2018] QCAT 431

PARTIES:

In applications about matters concerning LER

APPLICATION NO/S:

GAA7512-16; GAA1886-17; GAA1887-17; GAA484-18

MATTER TYPE:

Guardianship and Administration matters for adults

DELIVERED ON:

17 December 2018

HEARING DATE:

12, 13 February and 17 May 2018

HEARD AT:

Brisbane 

DECISION OF:

Member Traves

ORDERS:

ADMINISTRATION

  1. The application for review of the appointment of an administrator is dismissed.
  2. The appointment of the Public Trustee of Queensland as administrator for LER for all financial matters is continued.
  3. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  5. This appointment remains current until further order of the Tribunal.  This appointment is reviewable and is to be reviewed in three (3) years.

NOTICE OF INTEREST IN LAND

  1. Before 17 March 2019 the administrator must:
  1. (a)
    Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
  2. (b)
    Provide confirmation to the Tribunal that this has been completed by providing:
  1. A copy of the title search conducted identifying the adult’s property; and
  2. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult.
  1. (c)
    If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.
  1. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
  1. (a)
    Give a copy of this order to the Registrar of Titles; and
  2. (b)
    Give notice to the Registrar about the changes or the adult’s interest in another property.

DIRECTIONS 

  1. The Tribunal directs that:
  1. (a)
    The Public Trustee of Queensland is to advance an amount of up to $75,000 for bathroom and laundry renovations at LER’s place of residence upon production of relevant invoices; and
  2. (b)
    The Public Trustee of Queensland is to advance an amount of up to $150,000 for the purchase of a new motor vehicle payable forthwith upon production of a relevant invoice.

GUARDIANSHIP

  1. The guardianship order made by the Tribunal on 30 October 2014 is changed by appointing the Public Guardian as guardian for LER for decisions about the following personal matters:
  1. (a)
    with whom LER has contact and/or visits;
  2. (b)
    health care; and
  3. (c)
    legal matters not relating to the adult’s financial or property matters.
  1. This appointment remains current until further order of the Tribunal.  This appointment is reviewable and is to be reviewed in three (3) years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – where review of the appointment of an administrator – whether adult has impaired capacity for financial decisions – where applicant proposes new appointee as administrator – whether Public Trustee competent – whether proposed appointee more appropriate than Public Trustee – where review of appointment of a guardian

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – directions to be made authorising expenditure that exceeds terms of previous Tribunal direction

Guardianship and Administration Act 2000(Qld), s 7,

s 11, s 12, s 31, s 48, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46

Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402

APPEARANCES:

 

Adult:

Peter Sheehy for LER

Interested parties:

Mr S Gerber instructed by Mr J Spamer for LSS

Mr R Whiteford for the Public Trustee of Queensland

Mr C Loveday for the Public Guardian

Mr M Liddy instructed by CRH Law for LN and LG

REASONS FOR DECISION

  1. [1]
    There are four applications before me:
    1. (a)
      an application for the review of the appointment of an administrator filed by LER’s (the adult) wife, LSS;[1]
    2. (b)
      an application for directions filed by the Public Trustee seeking the Tribunal’s directions as to the amount, if any, which should be advanced to LER for bathroom renovations;[2] and
    3. (c)
      an application for directions filed by the Public Trustee seeking the Tribunal’s directions as to the amount, if any, which should be advanced to LER for the purchase of a new Range Rover motor vehicle;[3] and
    4. (d)
      an application for the review of the appointment of a guardian.[4]

The review of the appointment of an administrator 

  1. [2]
    The appointment review process is prescribed by s 31 of the Guardianship and Administration Act 2000 (Qld) (GA Act). There it is provided:

31 APPOINTMENT REVIEW PROCESS

  1. (1)
    The tribunal may conduct a review of an appointment of a guardian or administrator (an "appointee") for an adult in the way it considers appropriate.
  1. (2)
    At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
  1. (3)
    If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either:

(a) continue its order making the appointment; or

(b) change its order making the appointment, including, for example, by:

(i) changing the terms of the appointment; or

(ii) removing an appointee; or

(iii) making a new appointment.

(4) However, the tribunal may make an order removing an appointee only if the tribunal considers:

(a) the appointee is no longer competent; or

(b) another person is more appropriate for appointment.

(5) An appointee is no longer competent if, for example:

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

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

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

(d) the appointee has otherwise contravened this Act.

  1. [3]
    The tribunal, after conducting its review, must revoke the appointment unless it is satisfied that it would make an appointment on a new application. In order therefore to continue the appointment of the administrator in this case, the tribunal must be satisfied of the matters in s 12, namely:

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

(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

(c) without an appointment—

(i) the adult’s needs will not be adequately met; or

(ii) the adult’s interests will not be adequately protected.

  1. [4]
    In the event, the tribunal finds that the appointment of an administrator is required, LSS seeks to have Mr Scott Whitla of McCullough Robertson appointed in place of the Public Trustee. I note that Mr Spamer, under cross-examination, gave evidence that in his direct interactions with LER on 20 November 2017, LER did not say that he wanted the Public Trustee replaced.[5]
  2. [5]
    The tribunal can only order the removal of the Public Trustee if, in accordance with s 31(4), the tribunal considers the Public Trustee is no longer competent or that Mr Whitla is more appropriate for appointment.[6]
  3. [6]
    I turn now to consider whether the pre-conditions to appointment have been satisfied.[7]

Adult’s capacity

  1. [7]
    Section 7(a) provides that an adult is presumed to have capacity for a matter.[8] The presumption is also incorporated as the first General Principle contained in Schedule 1 of the GA Act which must be complied with in the exercise of a power under the Act.[9]
  2. [8]
    The presumption is rebuttable. This means that an adult is presumed to have capacity unless there is evidence which shows this not to be the case. The standard of proof required to rebut the presumption is the balance of probabilities.[10] The burden of proof is ordinarily on the person who is seeking to rebut the presumption.
  3. [9]
    Although LER was declared not to have capacity in 2013, the presumption must be applied every time the Tribunal is called upon to investigate capacity.[11] This is because a person’s capacity may change over time. It has been held that no “particularly inconvenient consequences would attend a fresh application of the presumption” because the Tribunal is empowered to gather the evidence it needs to make an informed decision and may take into account, if still relevant, evidence adduced in an earlier proceeding when the impaired capacity was declared.[12]
  4. [10]
    “Capacity” is defined in the GA Act in terms of whether a person has capacity for a matter. This means that the issue of whether a person lacks capacity is issue specific, to be judged in relation to the particular decision or type of decision in question and not globally.[13]
  5. [11]
    Schedule 4 of the GA Act provides that:

Capacity, for a person for a matter, means the person is capable of:

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

and

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

c) communicating the decisions in some way.[14]

  1. [12]
    These elements are interdependent. If any of those requirements are missing a person is described as having “impaired capacity” for the matter. This definition has been said to reflect a functional approach to defining decision-making capacity which focuses on a person’s understanding in relation to a particular task.[15]
  2. [13]
    The Act acknowledges that the capacity of an adult with impaired capacity to make decisions may differ depending on:

a) The nature and extent of the impairment;

b) The type of decision to be made, including, for example, the complexity of the decision to be made; and

c) The support available from members of the adult’s existing support network.[16]

  1. [14]
    The Act categorises matters as follows:
    1. (a)
      personal matter;
    2. (b)
      special personal matter;
    3. (c)
      special health matter; and
    4. (d)
      financial matter.
  2. [15]
    The relevant matter here is financial matter which is defined in Schedule 2 Part 1.
  3. [16]
    This matter was case managed by a Member experienced in the guardianship jurisdiction. That Member made directions on 20 November 2017 and 15 January 2018 prior to the Hearing requiring LER attend a medical examination for the purposes of assessing his capacity. The directions were not complied with.[17]
  4. [17]
    At the commencement of the Hearing, Mr Whiteford, counsel for the Public Trustee, applied to have the application for review dismissed on the basis that the failure by LSS to put evidence as to capacity before the Tribunal in circumstances where she had applied for review of an administrator’s appointment was an abuse of process within the meaning of s 47(1)(c) of the QCAT Act or, alternatively, that LSS had materially and manifestly disadvantaged interested parties to the proceeding within s 48(1)(a) of the QCAT Act.[18] Mr Liddy, counsel for LER’s daughters, LN and LG and Mr Sheehy, LER’s personal representative,[19] supported the application to dismiss but, if not granted, asked that the Tribunal consider adjourning the Hearing to enable capacity evidence and the views of LER to be obtained.
  5. [18]
    I decided against dismissing the application or adjourning the Hearing and instead made directions requiring that a capacity assessment be undertaken. LSS, when asked to confirm a date when she could take LER to have the assessment with Dr King, nominated 27 February 2018. LER was, accordingly, directed to undergo a full capacity assessment by Dr King on 27 February 2018.[20]
  6. [19]
    An Adult Evidence Order was also made at that time which required LER to attend a meeting with myself and his psychologist before the resumed Hearing date. LSS had said that LER had not attended the Hearing because he did not wish to see his daughters and that it would make him anxious. The purpose of the Adult Evidence Order was to provide LER with an opportunity to express his views regarding the issues before the Tribunal without the need to attend the Hearing. The meeting would also have enabled me to see LER and to interact with and observe him in a place where he felt comfortable and supported.
  7. [20]
    LER was also ordered to attend the resumed Hearing, with Dr Stewart, his treating psychologist, if he preferred.
  8. [21]
    None of those directions were complied with. To summarise:
    1. (a)
      Pre-hearing direction that LER undergo a medical assessment: not complied with.
    2. (b)
      Direction that LER undergo capacity assessment at a pre-arranged time: not complied with.
    3. (c)
      Direction that LER attend a meeting with Member Traves and his psychologist present: not complied with.
    4. (d)
      Direction that LER attend the Hearing: not complied with.
    5. (e)
      It is also noted that LSS informed the Tribunal at the Hearing that LER would not see or take telephone calls from Mr Sheehy, his personal representative. Mr Sheehy confirmed that, despite numerous attempts, he had been unable to contact LER.
  9. [22]
    LSS states that she did take LER to the appointment arranged with Dr King on
    27 February 2018 but that when she got there realised it was an initial consultation with a mental health nurse who was to conduct an interview, cognitive testing, arrange for blood tests and brain imaging as requested by Dr King. LSS states that LER did not wish to take part in these processes to be conducted by a nurse rather than Dr King.[21] This contradicts what LSS said in the Hearing when she said that the reason LER would not undertake a capacity assessment on 27 February was because he did not like Dr King.
  10. [23]
    I did not find LSS credible in her explanations as to why so many directions relating to the examination of LER had not been complied with. The Tribunal went to extensive effort to provide an opportunity to have LER examined by a person qualified and competent to assess his capacity and also, by way of a meeting with LER and the appointment of a separate representative, to enable LER’s views to be ascertained. The extent of the non-compliance not only in refusing to participate in medical assessments but also in a refusal to engage at any level with Mr Sheehy, leads me to the view that deliberate attempts were being made to keep him from being examined or consulted. I am prepared to infer that the steps taken to prevent him being examined or consulted were taken because LSS was concerned as to what those examinations or consultations might reveal: she did not wish those examinations or consultations to take place.
  11. [24]
    The Tribunal is therefore placed in the difficult situation where a statutory presumption of capacity exists and yet, LSS, the applicant for review, has not filed any current evidence as to LER’s capacity and is either unwilling or unable to assist the Tribunal in obtaining any. Although, as observed in Bucknall, the Tribunal has the ability to acquire capacity evidence, all of the Tribunal’s attempts have largely proved futile.
  12. [25]
    Some medical records in the possession of LSS were provided in response to a direction by the Tribunal on 29 March 2018.[22] It is noted that some of the records provided post-dated the direction.
  13. [26]
    Further to this, the Tribunal directed that LER’s Medicare Records be obtained. From these records, Notices to Produce pursuant to s 130 of the GA Act were issued to 12 medical practitioners. In response to the Notices, medical records were obtained from Dr David Straton, Dr Phyo Thandar of Hope Island General Practice, Dr Venu Kondamudi, Dr Vithanage Perera, Dr Neeraj Khanna, Dr Nelson Suegang, Dr Uchenna Nweze of the Highlands Medical Centre, Highland Park, Dr Abdul Khan, Dr Marc Hempling of the Classic Way Family Practice, Burleigh Waters, Dr Phong Le, Dr Penny King and Dr Ea Stewart.
  14. [27]
    The Tribunal has considered the issue of capacity in all of the circumstances and in view of the medical records provided and has determined that LER lacks capacity for financial matters.
  15. [28]
    In arriving at this conclusion the Tribunal has relied on the 2014 capacity assessment undertaken by Dr King. The Tribunal has not been provided with any medical evidence since then which challenges the findings made by Dr King. There is also no reasonable basis to assume LER’s condition has improved given its etymology. The only reference to Dr King’s report is by Dr Jeffrey Adams, a psychiatrist recently seen by LER, who concedes that Dr King “may be right” that the adult lacks capacity for complex decision-making. The letter by Dr Adams is dated 15 March 2018 (obtained after the first day of the Hearing) and does not purport to be a capacity assessment. Dr Adams seems to be principally concerned with advocating for LER’s right to instruct lawyers of his choice and yet does not appear to have undertaken any testing to determine whether, in fact, LER has the necessary capacity to instruct lawyers. Dr Adams does not appear to appreciate that LER had in place a Tribunal-appointed separate representative and that the separate representative had been appointed because the Tribunal had already determined that LER lacked capacity to engage and instruct legal representation. Dr Adams then proceeds to say, remarkably, that QCAT should instruct the Public Trustee to make funds available for such representation. I am not sure what purpose Dr Adams’s letter serves other than to repeat LSS’s claims. It is noted that these sentiments about LER being “able to consult legal [council] (sic)” are repeated by Dr Stewart, who also has not undertaken any form of capacity assessment.[23]
  16. [29]
    Dr Stewart, the psychologist treating LER for anxiety and who provided a letter stating that he was unable to attend the Hearing due to anxiety, states that LER still presents with “memory difficulties resulting from alcoholism”. It is clear when reading the patient records provided by Dr Stewart that LER becomes inarticulate due to anxiety when under stress. Dr Stewart also provided a letter to the Tribunal refusing to meet with the Tribunal and LER. Dr Stewart also initially refused to provide any relevant medical records to the Tribunal. I found Dr Stewart’s general approach to these proceedings to be unhelpful.
  17. [30]
    LSS conceded at the Hearing that LER has short term memory issues due to long term alcohol abuse. Through her counsel, she admitted that LER lacked capacity to make financial decisions.[24]
  18. [31]
    The Tribunal has also had regard to the medical records received by the Tribunal in response to the Tribunal’s Notices to Produce. Dr Anne Berquier provided a letter dated 20 November 2016 which states that LER has a long history of anxiety and panic disorder symptoms and that it was observed during their sessions that he experienced anxiety and panic in unfamiliar situations and environments. Dr Berquier stated:

These symptoms were severe on initial presentation and only slightly abated with frequent sessions. The anxiety and panic symptoms also exacerbate his memory problems, especially access to short and long term memory and results in severe communication difficulties.

  1. [32]
    Professor Morris, consultant psychiatrist, examined LER in December 2012[25] and observed then that he had a “mild cognitive impairment of amnesic type” which could be related to underlying Alzheimer’s disease or the effects of long-term alcohol-related cognitive impairment”. LER’s score on the St Louis Mental State Examination was at that time 22/30 and his main problems were in delayed recall of verbally presented material and in verbal fluency.
  2. [33]
    On 23 January 2013, Dr Venu Kondamudi, Highlands Health Care, Nerang completed a Health Professional Report. There it was stated that LER had a low MMSE of 20/30 and that he had been referred to a neurologist, Dr John Corbett. Dr Kondamudi also states that LER had difficulty with memory. Although a request to produce was made to Dr Corbett’s rooms, they had no record of LER having attended there.
  3. [34]
    Dr Straton, psychiatrist states in a letter to Dr Hempling dated 16 January 2014:

I did see results of an MRI brain scan (16/04/14) which suggested multifocal white matter change consistent with chronic small vessel ischemia, as well as a CT and PET scan of the brain (23/04/14) which described moderate cerebral atrophy suggestive of Alzheimer’s Disease.

  1. [35]
    The Tribunal has also seen photographs of messages/instructions posted by LSS in the house which, for example, state “If door knocks do not open, call [LSS]” and notes reminding him not to speak to his daughters. In my view, these messages and LER’s seeming compliance also suggest that he may have impaired capacity. A person with capacity does not normally need to be reminded of how to respond to family members, particularly one’s own daughters, nor to be instructed as to what to do if someone knocks on the door.
  2. [36]
    I also formed the impression at the Hearing that LER was highly dependent on LSS. She had left him in the care of mutual friends while she attended the Hearing but when Mr Sheehy suggested contacting LER by telephone LSS said that he did not have a mobile telephone. It was also clear from a perusal of the medical records and from the Hearing that LSS almost always accompanies him to any medical appointments and that she does the talking. It is also the case that LER goes into the examination room with LSS when she is undergoing a gynaecological exam. This suggests that LER either cannot be left alone or that he is under the influence of LSS. In either case, it suggests LER may have impaired capacity in the sense that his will may be easily overborne.
  3. [37]
    Apart from not having his own telephone, any emails are sent from a joint email address. LN refers to an “obvious pattern” since 2012 of LSS writing documents, sending texts and emails “in the guise that Dad is doing so”.[26] I have had regard to the transcript from the hearing in 2014[27] where LER’s accountant gave evidence of instances when emails or texts purportedly sent by LER requesting details of personal financial information were in fact sent by LSS impersonating LER. I accept LN’s evidence that LSS has a habit of authoring emails and texts purportedly on behalf of LER. I was also persuaded by Mr Whiteford’s cross examination of LSS that it was she who in fact had prepared all the Tribunal applications and submissions, although the documents had been written as though they had been written by LER.
  4. [38]
    It is an element of capacity that a person “is capable of freely and voluntarily” making decisions about the matter.[28] I have set out above in some detail the medical evidence concerning LER and other evidence concerning aspects of his day to day life. In addition I note also the change in LER’s approach to his daughters since marrying LSS. I have seen texts which indicate a normal loving relationship between LER and his daughters which stopped when LER’s phone number was changed (unknown to LER). LSS maintains that he doesn’t want to see his daughters because they want to put him in a home. LSS also alleges, which she repeated in the Hearing, that his daughters, in effect, were responsible for his third daughter committing suicide. There was no evidence of this whatsoever.
  5. [39]
    More recently, Dr Penny King states in her letter to Mr Sheehy, LER’s personal representative, of 28 February 2018 that “LER tended to defer questions to his wife and look to her for prompting before giving brief, simple comments to questions.” Dr King also states, in the context of discussing proposed psychological therapies that “psychological therapies can certainly be effective in helping people with dementia and their families manage their anxiety”. She also states “My opinion as to his diagnosis and decision-making capacity, as per his memory clinic assessment in April 2014, is unchanged”.
  6. [40]
    Interestingly, Dr Stewart records on 10 January 2018, at her first appointment with LER:

NOTE: [LER] turned to me in session at various times to say “yes” to agree with what [LSS] was saying.

Goals

  • distance from his two daughters
  • learn to manage anxiety in order to express himself better;
  • be able to show functioning despite memory problems.
  1. [41]
    Further, on 25 January 2018, Dr Stewart records that LER was getting visibly agitated listening to LSS discussing all the financial stress associated with the government being in charge of his money and that when Dr Stewart asked him how stressful it was for him, he stated “the same as..” and pointed to [LSS].
  2. [42]
    I am satisfied that LER would not, in all the circumstances, be able to freely and voluntarily make decisions. I am also satisfied that LER would not understand the nature and effect of financial decisions.
  3. [43]
    Accordingly, I am satisfied that LER lacks capacity for financial decision-making. I am also satisfied that there is a need for decisions to be made and that without an appointment LER’s interests would not be adequately met or his interests adequately protected. LER has assets of over $13 million.[29] The complexity of the financial circumstances involved in LER’s family arrangements and the management and investment decisions that need to be made, necessitate the making of an appointment.

Is the Public Trustee competent?

  1. [44]
    The Tribunal has been unable to obtain the views of LER about the competency of the Public Trustee. LSS states that they both have a “complete lack of trust and confidence in the Public Trustee”.[30] LSS says that the Public Trustee appears “incapable of exercising any independent discretion” and is “focused only on preserving the maximum amount in LER’s estate rather than allowing him to live comfortably and enjoy his remaining life”.[31] LSS refers by way of example to the position of the Public Trustee to proposed bathroom renovations and a new car, both of which are the subject of the application for directions in this proceeding.
  2. [45]
    LSS also refers to a number of specific issues she has with the way the Public Trustee has managed LER’s finances: namely, failing to properly pay the fortnightly budget, failing to account properly to the adult and failing to lodge tax returns.
  3. [46]
    Many of these concerns raised by LSS are answered by the directions made by the Tribunal on 3 May 2016. These directions put in place a budget for fortnightly expenses (of up to $5,500) and for annual capital expenditure (of up to $50,000). The directions also outlined categories of expenses the Public Trustee would pay or, if paid by LSS, would be reimbursed by it, and a list of expenses LSS would pay which would be reimbursed by the Public Trustee upon production of invoices, receipts and a copy of the relevant credit card statement. The directions were made by consent at a compulsory conference between the Public Trustee and LSS.
  4. [47]
    The issues raised with respect to the refusal of the Public Trustee to advance funds for the bathroom renovations and the car can be dealt with together. In each case the Public Trustee could not pay the amounts required because those amounts exceeded LER’s budget for capital expenditure of $50,000 per annum.[32] The Public Trustee accordingly applied for directions in respect of both items of proposed capital expenditure. Although LSS may be frustrated by the process and associated delay, compliance with the directions cannot constitute incompetence by the Public Trustee.
  5. [48]
    LSS also claims that the Public Trustee did not properly pay the fortnightly amount of $5,500 as directed by the Tribunal on 3 May 2016. This reflects a misconception by LSS as to the effect of the directions. The directions do not require payment of $5,500 every fortnight but instead require the Public Trustee to pay an amount of up to $5,500 subject to proof of payment.[33] The approach of the Public Trustee has been to pay the first fortnightly payment at the beginning of the month without the need to provide justifying invoices at the time but to pay the second fortnightly payment in an amount which is justified by the invoices produced in respect of the entire month.[34] For example on 6 August 2016 the amount of $5,500 was paid and on 25 August 2016 the amount of $6,931.51 was paid by way of reimbursement of living expenses. On 6 September 2016 $5,500 was paid and then on 27 September 2016 an amount of $8,355.48 was paid by way of reimbursement of living expenses.[35] It is not the case that LSS is receiving a short payment, in fact the reverse seems to be the case. LSS did not produce any evidence of short payments.
  6. [49]
    There is no evidence that the Public Trustee has not accounted properly to LER. LER receives a reconciliation each month based on receipts and credit card statements provided by LER and LSS. Every three months LER is provided with a statement of transactions on his accounts.[36]
  7. [50]
    There are no longer any outstanding tax returns, although there was a delay with respect to the 2017 return. No tax is outstanding.[37]
  8. [51]
    The proceedings commenced against LSS to recover costs awarded in favour of LER against her by the Supreme Court was appropriate in the circumstances. 
  9. [52]
    In all the circumstances, I am not satisfied that the Public Trustee is not competent.

Is the applicant’s proposed appointee more appropriate than the Public Trustee?

  1. [53]
    LSS proposes Mr Scott Whitla, a solicitor at McCullough Robertson, to replace the Public Trustee.
  2. [54]
    Mr Whitla consents to act as administrator but only if:
    1. (a)
      The Tribunal authorises him to charge for his time in acting as administrator on the Supreme Court Scale on the indemnity basis; and
    2. (b)
      The Tribunal authorises Mr Whitla engaging McCullough Robertson, a firm of which he is a partner, on the adult’s behalf to carry out legal and administrative work for the adult, with that firm charging for their work on the Supreme Court Scale on the indemnity basis.
  3. [55]
    Mr Whitla states that if the Tribunal is unwilling or unable to approve such remuneration, then his consent to act is withdrawn.[38]
  4. [56]
    In relation to the first condition, s 48 of the GA Act provides that the Tribunal has the power to order that an administrator be entitled to remuneration but only if the administrator “carries on a business of or including administration under [the Guardianship and Administration Act]”.
  5. [57]
    I am satisfied that Mr Whitla does not carry on such a business. He has not previously acted as administrator under the GA Act and has never advertised that he does.[39]
  6. [58]
    It follows that the Tribunal has no jurisdiction to order that Mr Whitla be remunerated.
  7. [59]
    In relation to the second condition, this would require the Tribunal to authorise what would be a conflict transaction, that is that Mr Whitla is entitled to engage McCullough Robertson, a firm of which he is a partner, on the adult’s behalf to carry out legal and administrative work for the adult, with that firm charging for their work on the Supreme Court scale on the indemnity basis.
  8. [60]
    The Public Trustee submit that this conflict transaction should not be authorised by the Tribunal. They submit that the transaction puts Mr Whitla in an insoluble position of conflict because as a partner of McCullough Robertson his duty is to maximise the firm’s income while as administrator, his duty is to minimise the amount the adult pays McCullough Robertson. Moreover, Mr Whitla would stand to gain from work referred by him to the firm beyond the remuneration which he might otherwise receive as administrator.
  9. [61]
    Mr Whitla’s response to the issue of fees was that, if a dispute arose, he would get the fees assessed by an independent costs assessor. The Public Trustee asked Mr Whitla what he would do in the event a dispute arose about the assessment by the costs assessor. Mr Whitla’s response was that he would “go with the cost assessor’s opinion”. The Public Trustee argue that this is an abdication of his duty as an administrator.
  10. [62]
    Finally, it is submitted by the Public Trustee that even assuming the Tribunal has jurisdiction to order remuneration as requested and to authorise the conflict transaction, the Tribunal cannot be satisfied Mr Whitla is more appropriate than the Public Trustee. This is, they submit, because his experience lies in acting as administrator of deceased estates and he has no experience acting as financial administrator for an adult and LSS has not shown that Mr Whitla’s costs will be less than the Public Trustee’s. The Public Trustee point to the fact that Mr Whitla proposes to charge for legal and non-legal work by him as administrator at the lawyer’s rate under the Supreme Court Scale. For example, perusal of an account by Mr Whitla which requires no legal skill would be charged at a lawyer’s rate and the time spent by Mr Whitla seeking legal advice and for the legal advice provided will be charged to the adult at a lawyer’s rate.
  11. [63]
    LN and LG argue against replacing the Public Trustee with Mr Whitla. They argue that the blanket pre-approval of remuneration at a fixed rate would “fundamentally misapprehend the specific criteria by which the Tribunal awards remuneration to professional administrators under s 48(2) of the GA Act.” They also argue that Mr Whitla misunderstood his role as administrator in at least one respect in that he did not consider it likely that he would consult LER’s children for any input on decisions made on behalf of LER. This contradicts the General Principles in the GA Act. They support the continuation of the appointment of the Public Trustee as they consider the experience and resources of an entity such as the Public Trustee is necessary to protect the financial interests of LER where he is “liable to be exploited by LSS”.
  12. [64]
    In all of the circumstances I find that the appointment of Mr Whitla on the conditions proposed would be to place Mr Whitla in a position of conflict which I am not prepared to authorise.
  13. [65]
    Accordingly, I find there is no basis to remove the Public Trustee as administrator for LER for all financial matters in order to replace the Public Trustee with Mr Whitla. I am not satisfied the Public Trustee is no longer competent and I am not satisfied that Mr Whitla would be more appropriate, in particular where he would only agree to the appointment if his firm was remunerated and where to authorise that would go beyond s 48 and result in Mr Whitla being in a position of conflict that the Tribunal is not prepared to countenance. In these circumstances the Tribunal is satisfied that, in this case, the Public Trustee is the more appropriate appointee.

Application for Directions   

  1. [66]
    The Public Trustee has applied for directions regarding bathroom renovation expenses and the cost of purchasing a new car. Both items are capital expenses.
  2. [67]
    The Public Trustee seeks directions due to the Tribunal’s directions by consent of
    3 May 2016 which relevantly, provide:

Capital expenses in any one financial year will be limited to $50, 000.00 subject to approval by the Public Trustee. This payment of capital expenses is in addition to the budgeted amount of $5, 500.00 per fortnight referred to in Direction 4.[40]

Bathroom renovations

  1. [68]
    LER and LSS would like the cost of proposed renovation work to the bathrooms and laundry at their home to be paid for using LER’s funds under administration with the Public Trustee and so that the funds do not come out of or affect LER’s normal monthly living expenses budget or his yearly capital budget as set down by the Tribunal. They say that the objective is that, once the quote and the builder’s contract are approved, the Public Trustee will be or must be committed to fully pay for the bathroom renovation project using LER’s funds under administration as per the Hawkins’ quote (such payments which will be required to be made as per the terms of the builder’s contract at each payment stage and subject to the staged work being done satisfactorily by Hawkins Constructions).[41]
  2. [69]
    The bathroom renovation work is for work to be done to the wet areas of the property where LER and LSS reside (which LER and LSS own as tenants in common). LSS seeks renovation work be approved because the bathrooms are worn, faulty and no longer provide adequate amenity.[42] LER and LSS have provided a quote from Mr Michael Hawkins of Hawkins Constructions dated 14 September 2017.[43] Mr Hawkins is a licensed builder. The scope of work is described in the Hawkins quote to cover renovation of the ensuite, bathroom, toilet and laundry. The job requires a number of different trades, namely a carpenter, plasterer, termite contractor, water proofer, tiler, electrician, plumber, glazer and painter. The quote is itemised and totals $72,860. This includes $23,016.89 in fixtures from a bathroom supplier and $4,672.59 for tiles. The quote also covers an alteration to the floorplan in the main bathroom which involves moving the location of the toilet to make the space safer by permitting the door to be opened from the outside, replacing tiles to reduce risk of slippage and to replace defective plumbing.[44]
  3. [70]
    The Public Trustee appeared to have had early advice from its building supervisor that the renovations may over-capitalise the property.[45] A Building Inspection Report by Premier Building Reports[46] concludes that, although there is no risk to the health of the occupants, the bathrooms are dated and that the shower screen, tiles, sealants, cabinet drawers and bath base need renovating.
  4. [71]
    The Public Trustee makes no submissions regarding whether the Tribunal should approve the bathroom renovation expenditure other than to say it will abide by the Tribunal’s directions.[47] LN, LER’s daughter, said at the Hearing she was not prepared to expressly consent to the funds being available for the new car and bathroom renovation until other orders, relating to the contact between her and her sister and LER, were complied with. Although I understand LER’s daughters would be frustrated by the complete disregard of the order made in favour of contact with them, this is not a valid reason for refusing the request.
  5. [72]
    I am satisfied that the bathroom renovations should be approved. For that purpose I sanction the expenditure of up to $75,000 for renovation work to be completed which falls within the scope of the Hawkins quote. There is no condition imposed that the work be completed by Hawkins however the work must be completed by a registered builder.

New Range Rover

  1. [73]
    LER has a 2013 Range Rover 3.0 SDV6 MY12. Its estimated value as at June 2017 was $56,850.00.[48] LSS was unhappy that they were being told by the Public Trustee that any car repairs were to be paid for from their expense account rather than from LER’s capital budget allowance of $50,000 per year. LSS states in a letter to the Public Trustee:

PTQ actions of forcing us to utilise our budget funds when there are ample capital funds is cruel and inhuman behaviour. It is restricting [LER] and I funds for food and essentials. The very items that the budget is meant for.

We are left with no other option now to trade in the Range Rover as it is failing to meet our needs and we have no confidence in driving a car that may break down at anytime and the expense will not be met when the PTQ are withholding 80% of [LER’s] income and assets. The Range Rover is an ageing motor vehicle. [LER] has the right to live to his station in life. …We require urgent approval to trade in the Range Rover with at least three years new car warranty. The comparable new model to ours is $190, 000, (like for like model) less with the trade in of our existing Range Rover.[49]

  1. [74]
    LSS estimates that the changeover price after trade in will be about $140,000.[50]  As this exceeded the capital budget established by the Directions of 3 May 2016, the Public Trustee could not agree to the request and applied for directions.
  2. [75]
    LSS says that they need a new vehicle because the Public Trustee will not pay for repairs to their current vehicle from capital, it is becoming too expensive to maintain their current vehicle and that both LER and LSS like Range Rovers.[51] Although LER no longer drives, LSS says that he will enjoy being driven around by her in a new car.
  3. [76]
    I am satisfied that the purchase of the new Range Rover is appropriate. The current Range Rover is now five years old and it is not uncommon for people to trade in cars after five years. This is particularly so when the car has required repairs for ongoing mechanical and now electrical issues. I accordingly approve the advance of funds to cover the changeover price for a new motor vehicle, in an amount up to $150,000.

Review of the appointment of a Guardian

  1. [77]
    The Tribunal was informed at the Hearing that LSS no longer wished to pursue her application to review the appointment of the Public Guardian.  Leave is required to withdraw an application made under the GA Act.  As the appointment of the Public Guardian had the potential to be affected by information to be provided by the parties and, in particular, by any further medical evidence concerning LER’s capacity, the application was treated as remaining on foot. 
  2. [78]
    On the final day of the hearing, the Tribunal provided an opportunity to the parties to make oral submissions in relation to the review of the appointment of the guardian. Both the counsel for LER’s daughters and the counsel for LSS conceded that the Public Guardian should remain. Counsel for the Public Trustee made no submissions regarding the issue. An alternative guardian has not been proposed, Mr Whitla having withdrawn his consent to act in that capacity since the application was made.
  3. [79]
    The Public Guardian was first appointed on 23 September 2013. A declaration was made at that time that LER did not have capacity for all financial and personal matters. The terms upon which the Public Guardian was appointed were changed on 30 October 2014 so that the Public Guardian was appointed for decisions about the following personal matters: accommodation; with whom LER has contact and/or visits; health care; provision of services; and legal matters not relating to the adult’s financial or property matters. Although leave was granted to appeal this decision on 11 February 2016[52] the application to appeal was dismissed on 22 March 2018.
  4. [80]
    I am satisfied that, had a new application been made, I would appoint a guardian.[53]  In particular, I am satisfied that the presumption of capacity for personal matters has been rebutted and that appropriate grounds otherwise exist for the appointment of the Public Guardian to continue. In arriving at that view, I have relied on the evidence for capacity in relation to the review of the appointment of an administrator which I have discussed above. While capacity is “matter specific” in the sense that a person with impaired capacity for financial decisions may have capacity for personal matters, I am satisfied that LER also has impaired capacity for decisions about certain personal matters.
  5. [81]
    In addition to the matters that have led me to conclude that LER has impaired capacity for financial matters, I have also taken into account the concessions made on behalf of LSS by her counsel, that LER needs a guardian and that the appointment of the public guardian is not contested. A person with capacity does not need a guardian. Further, it is clear that LER does not attend medical appointments independently and that he needs “prompting” by LSS in the form of notes taped to the wall and door reminding him not to talk to his daughters and to contact LSS by telephone if anyone comes to the door.
  6. [82]
    I also have some doubt as to whether LSS’s approach to LER’s health care is in his best interests. I note that, for no apparent reason, LSS has taken LER to doctors in Banyo, Hawthorne and Murrarie in Brisbane as well as in Nambour, Nerang, Cooroy, Benowa, Hope Island, Tugan, Southport, Highland Park, Burleigh Waters and Robina. As Mr Sheehy observed in oral submissions, from the time of the directions made in February, LER was also taken to numerous doctors, again, for no obvious purpose. I am also struck by the incongruity between the tone and language used in submissions in these proceedings, purportedly made by LER and other evidence about LER in medical records and in the course of the hearing. For example, Mr Spamer, LSS’s solicitor, when being cross-examined as to his views as to what he observed about LER’s capacity to provide instructions on 20 November 2017 said: “LER is a man of few words”.[54]
  7. [83]
    This is also borne out in the medical records where it is recorded that LER looks at his wife when asked a question, rather than answering it himself or gives “yes”, “no” answers. I agree with the submissions made by Mr Whiteford on behalf of the Public Trustee that LSS conflates her views with that of her husband’s and that the Tribunal, in fact, has, in effect, no evidence from LER at all as to what he wants. Indeed, Mr Spamer conceded in cross-examination that LER had never said to him that he wanted a different administrator.[55] In these respects, namely with whom he has contact, health care and legal matters I am of the view that LER’s will is susceptible to being overborne. For this reason, in addition to the evidence generally regarding capacity, in my view LER has impaired capacity for decisions regarding personal matters.
  8. [84]
    The Public Guardian submitted that its appointment had so far been fruitless.  The last visit to LER’s home was in March 2017 and emails have been sent accusing the Public Guardian of trespassing. The Public Guardian has not been asked to consent to any of the numerous medical appointments LER has had and LER has refused to have contact with his daughters despite numerous requests (although the Public Guardian concedes this may be because he has impaired capacity or is being unduly influenced). Despite the inability of the Public Guardian to engage with LER regarding his health care and in relation to contact with his daughters and grandchildren, this is not a reason to discontinue the appointment. I therefore continue the appointment for decisions relating to health care and contact. I also continue the appointment with respect to legal matters not relating to property or finances. Given the present level of hostility, at least between LSS and LER’s daughters, and of the number of applications that have been made to the Tribunal and the Supreme Court in recent years, I am of the view that without an appointment in respect of any such decisions there would be an unreasonable risk to LER’s health, welfare or property.
  9. [85]
    In relation to the other personal matters in respect of which the Public Guardian has previously been appointed:
    1. (a)
      Accommodation: LER lives in his home with LSS and as they are planning renovations, it does not appear that there is a need for any decision regarding accommodation to be made or that without a decision there would be an unreasonable risk to LER’s health, welfare or property.
    2. (b)
      The provision of services: There is no evidence that LER requires or uses any outside support services. The Public Guardian reports that LSS has refused all attempts to engage LER with supports and has said that they engage in lots of activities outside the house. In view of this I am not satisfied that there is a need for a decision to be made or that without a decision there would be an unreasonable risk to LER’s health, welfare or property.
  10. [86]
    Accordingly, I make an appointment continuing the appointment of the Public Guardian but change the terms of that appointment so that the Public Guardian is appointed guardian for decisions relating only to health care, with whom LER has contact or visits and legal matters not relating to property or finances.

Footnotes

[1] Application for review of the appointment of an administrator (GAA7512 of 2016).

[2] Application for Directions (GAA1887 of 2017).

[3] Application for Directions (GAA1886 of 2017).

[4] Application for review of the appointment of a guardian (GAA484-18).

[5] Submissions on behalf of LG and LN, [14].

[6] GA Act, s 31(4), s 31(5).

[7] GA Act, s 12.

[8] Re Bridges [2011] 1 Qd R 574.

[9] GA Act, s 146(2).

[10] Re Bridges [2001] 1 Qd R 574, 583.

[11] Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402.

[12] Ibid, [29].

[13] Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, [24]; Gregory v Nominal Defendant [2005] QSC 308; Fehily v Atkinson [2016] EWHC 3069 (Ch).

[14] GA Act, Schedule 4.

[15] Shaping Queensland’s Guardianship Legislation: Principles and Capacity, Discussion Paper, Queensland Law Reform Commission, WP No 64, September 2008, 109.             

[16] GA Act, s 5(c).

[17] See discussion in LER [2018] QCAT 40.

[18] Transcript, 1-13.

[19] Appointed by order of the Tribunal on 14 February 2018: LER [2018] QCAT 40.

[20] Directions dated 14 February 2018.

[21] LSS’s submissions, 17 May 2018, [11].

[22] Letter from Mr Spamer to the Tribunal dated 13 April 2018.

[23] LSS’s submissions, 17 May 2018, [23].

[24] Transcript 1-6, lines 22-25; Transcript 1-53, lines 36-40.

[25] Letter from Dr Philip Morris to Gina Do, Office of Adult Guardian of 26 March 2013.

[26] LN Statement, [12].

[27] The parties were advised in the hearing that I would be relying on the transcript of the 2014 hearing: Transcript 3-24. There was no objection.

[28] GA Act, Schedule 4.

[29] Statement Te’Ua, [7].

[30] Ibid, [29].

[31] Ibid.

[32] Order of 3 May 2016, para 2(c).

[33] Directions 3 May 2016, items 3 and 4.

[34] Transcript, 2-16.

[35] See Annexure NTU-3 to Mr Te’ua’s statement dated 15 December 2017.

[36] Statement Te’ua, [11].

[37] Statement Te’Ua, [16].

[38] Exhibit 15, Letter of Scott Whitla, McCullough Robertson to Mr J Spamer dated 30 January 2018.

[39] Transcript, 2-35, lines 45-47.

[40] Directions dated 3 May 2016, direction 2.

[41] Letter Jacobus Spamer to Public Trust dated 20 September 2017.

[42] Letter Jacobus Spamer to Public Trust dated 20 September 2017.

[43] Exhibit 6, Quote from Hawkins Constructions for the bathroom renovation project dated 14 September 2017.

[44] Other quotes obtained include that from Holmesco Pty Ltd valid until 6 August 2016 for $33,033.00 and from Tony Cikarouski dated 7 June 2016 for $36, 060.20.

[45] Statement Te’Ua filed 15 December 2017, [28]-[29].

[46] Exhibit 7, Building Inspection Report, 1 September 2016.

[47] Public Trustee’s Submissions, 10.

[48] Exhibit 9, Statement of Assets and Liabilities from 18 May 2017 to 24 August 2017.

[49] Email from LSS to Public Trustee of 17 January 2017.

[50] Transcript, 2-33, lines 20-21.

[51] Transcript, 2-32.

[52] LSS v LN, LG & Public Guardian [2016] QCATA 133.

[53] GA Act, s 31(2).

[54] Transcript, 1-77.

[55] Transcript, 1-82.

Close

Editorial Notes

  • Published Case Name:

    LER (No 2)

  • Shortened Case Name:

    LER (No 2)

  • MNC:

    [2018] QCAT 431

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    17 Dec 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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