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DGS[2020] QCAT 138

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DGS [2020] QCAT 138

PARTIES:

In applications about matters concerning DGS

APPLICATION NO/S:

GAA1112-19; GAA5295-19; GAA10401-19; GAA9624-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

14 April 2020

HEARING DATES:

25 July 2019; 10 October 2019; 5 December 2019

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

ORDERS:

In GAA9624-19:

The application for AS to be joined as an active party is dismissed.

In GAA5295-19:

  1. The Tribunal notes the existence of the following Enduring Power of Attorney for DGS:

The Enduring Power of Attorney dated 11 January 2017 appointing TS as attorney for financial, personal and health matters.

  1. Pursuant to s 115 of the Powers of Attorney Act 1998 (Qld), the Tribunal declares that the powers given to the attorney under the Enduring Power Attorney dated 11 January 2017 have begun.

In GAA1112-19:

The application for directions for DGS is dismissed.

In GAA10401-19:

The application by US for the appointment of an administrator for DGS is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY– GUARDIANSHIP AND SIMILAR APPOINTMENTS – conflict between family members – allegations of failure to act honestly and appropriately

Guardianship and Administration Act 2000 (Qld), s 6, s 12

Powers of Attorney Act 1998 (Qld), s 110, s 111

APPEARANCES & REPRESENTATION:

 

 

AS – brother of the adult

 

M Arthur, solicitor of CRH Law for US – sister of the adult

 

K Duff, solicitor of MHR Lawyers for TS – sister of the adult

REASONS FOR DECISION

  1. [1]
    At the dates of the hearing, DGS (‘the Adult’) was a 63-year-old gentleman with a neurodegenerative condition which was suspected to be spinocerebellar ataxia with cognitive decline.
  2. [2]
    The Adult had been cared for until recent times by his parents. Through the ageing process and, in the case of the Adult’s mother, deterioration of cognition, they are no longer able to assist their son. The Adult’s parents did not attend the hearing, as they were formally excused from attendance.
  3. [3]
    The Adult has two sisters, US and TS, and two brothers, AS and HS. The siblings are in dispute, and they have exhibited high levels of distress. As a result, many accusations were made and numerous applications to this Tribunal were considered over three hearing days.

Executive summary of the dispute

Chronology

  1. [4]
    Here is a chronology of the basic facts in this case:
    1. (a)
      the Adult signed an enduring power of attorney appointing his parents and US, jointly and severally, as his attorneys on 24 September 2015 (‘the 2015 EPOA’);
    2. (b)
      as the Adult’s attorney, the Adult’s mother signed a contract for the sale of the Adult’s property for $181,000 (‘the Property Sale’) on 21 September 2016;
    3. (c)
      the Property Sale settled on 19 October 2016;
    4. (d)
      an amount of $21,000 was paid from the net settlement proceeds of the Property Sale into the Adult’s parents’ bank account on 20 October 2016;
    5. (e)
      the Adult revoked the 2015 EPOA on 6 December 2016 (‘the Revocation of the 2015 EPOA’);
    6. (f)
      the Adult signed an enduring power of attorney appointing TS as his attorney on 11 January 2017 (‘the 2017 EPOA’); and
    7. (g)
      representing the Adult, solicitors were instructed to recover money from the Adult’s former attorneys in January 2017.

The disputing parties

  1. (h)
    The principal dispute is between TS and US.
  2. (i)
    TS argues that, even though the Adult did have capacity to make complex financial decisions at that time, the Adult’s former attorneys, individually and collectively:
    1. (i)
       failed to exercise powers honestly and with reasonable diligence by entering into the Property Sale;
    1. (ii)
       sold the Adult’s property for approximately $30,000 less than its true value, for which they should compensate the Adult;
    1. (iii)
       paid the sum of $21,000 to the Adult’s parents without authorisation or justification; and
    1. (iv)
       should pay for certain repairs required to the Adult’s motorised scooter and should pay an amount for ‘unnecessary and stressful stay in respite’ and legal fees.[1]
  3. (j)
    US argues that:
    1. (i)
       the Adult had capacity when he instructed others to sign the Property Sale contract and make the $21,000 payment;
    1. (ii)
       the former attorneys made the $21,000 payment, but did so upon specific authorisation by the Adult, who did have capacity at the time;
    1. (iii)
       if the Tribunal is of the view that the 2017 EPOA was validly signed, then it should be overtaken by the appointment of the Public Trustee of Queensland for financial decision-making for the Adult; and
    1. (iv)
       TS has not acted in the Adult’s best interests, and the Public Trustee of Queensland should replace her, and better assess the viability of pursuing the claims against the Adult’s former attorneys.

Application to be joined as an active party

  1. [5]
    AS sought to be joined as an active party. During the hearing, the application was not pursued.

Capacity

  1. [6]
    Given the matters before the Tribunal, the Tribunal must determine the Adult’s capacity now, and between September 2016 and January 2017.
  2. [7]
    Every Adult is presumed to be capable of making their own decisions.

The Adult’s capacity now

  1. [8]
    The Tribunal considered a report from Dr Johan Kuyler, consultant neurologist, dated 28 March 2019 advising that he consulted with the Adult on 30 June 2018. Dr Kuyler stated that the Adult has a neurodegenerative condition that is suspected to be spinocerebellar ataxia, which includes cognitive decline. The doctor referred to a Mini-Mental State Examination (‘MMSE’) administered in September 2017, where the Adult attained a score of 19/30. The doctor did not repeat the MMSE process during his consultation as the Adult had severe apraxia and struggled to follow his command. The result of the MMSE dating back to 2017 was sufficient for Dr Kuyler to state that the Adult is not cognitively able to manage his own affairs.
  2. [9]
    Dr Fiona Hadden, general practitioner of Millbank Medical Practice, signed a letter dated 1 November 2017 that deals with the Adult’s capacity. Dr Hadden said that she does not believe that the Adult has capacity. She had seen the Adult as his general practitioner since 10 January 2017. He suffers from disorders that affect sound mind and memory and understanding, and these disorders impact on his legal capacity. The doctor referred to the MMSE conducted in September 2017. The doctor stated that this score indicates moderate cognitive impairment. The doctor referred to a CT scan of the Adult’s brain on 4 May 2017 which revealed diffuse cerebral, cerebellar and mid-brainstem atrophy.
  3. [10]
    The Tribunal heard from the Adult’s siblings and all expressed a view that he is no longer capable of making complex decisions. Essentially all agreed with the medical conclusions.
  4. [11]
    Despite the absence of the Adult at the hearing, the Tribunal determines that, based on the evidence, the Adult would struggle to make decisions freely and voluntarily. The Tribunal does accept that the Adult could communicate verbally.
  5. [12]
    The Tribunal arrives at the following findings of fact in relation to the capacity of the Adult as at the hearing:
    1. (a)
      the Adult cannot understand the nature and effect of decision-making;
    2. (b)
      the Adult is not able to make decisions about matters freely and voluntarily; 
    3. (c)
      the Adult’s communication skills are limited by cognitive decline; and
    4. (d)
      the Tribunal determines that the Adult does not have capacity to make decisions about complex guardianship and administration matters. 
  6. [13]
    Although the law presumes an Adult to have capacity for complex administration matters, the Tribunal determines that the Adult does not have capacity to make decisions about complex financial matters.

The Adult’s capacity between September 2016 and January 2017

  1. [14]
    Dr Kuyler made no comment about the Adult’s capacity between September 2016 and January 2017. Neither did Dr Hadden.
  2. [15]
    During the Tribunal hearing, there was consistency of opinion between the Adult’s siblings that the Adult did have capacity between September 2016 and January 2017.
  3. [16]
    The Tribunal issued a notice to produce documents on 10 May 2019, addressed to the Bundaberg Base Hospital. The produced documents included handwritten progress notes, that included medication information and comments by social workers from 4 October 2016 to 31 October 2016. The produced documents were made available for inspection by the parties on 23 July 2019 at Bundaberg, two days prior to the commencement of the first day of the hearing. The Tribunal determined that it was appropriate for a redacted version of the produced documents to form part of the record of the proceedings. Transparency is an important issue.
  4. [17]
    From the disclosed material, the Tribunal noted the following information:
    1. (a)
      nursing comments on 4 October 2016, that:
      1. (i)
         upon admission the Adult was very agitated;
      1. (ii)
         the Adult was now settled;
    2. (b)
      social work comments on 7 October 2016, that:
      1. (i)
         the Adult lives with his mother and father who are both elderly and his mother has early onset dementia;
      1. (ii)
         the Adult’s home is in the process of being sold;
      1. (iii)
         according to the Adult’s (unnamed) brother, Disability Support Queensland (‘DSQ’) has supported accommodation available for the Adult, but it will not be available until January 2017;
      1. (iv)
         as the Adult is under 65 years, he is not (automatically) able to have an Aged Care Assessment Team (‘ACAT’) assessment, but DSQ will look into obtaining a support letter for an ACAT referral;
    3. (c)
      a physiotherapy comment on 11 October 2016, that:
      1. (i)
         the Adult is alert and cooperative;
    4. (d)
      social work comments on 12 October 2016, that:
      1. (i)
         in a direct discussion with the Adult regarding his enduring power of attorney, the Adult stated that he did not want the current appointment to remain and he wanted to nominate his sister TS;
      1. (ii)
         the report writer is unsure if the Adult has capacity to change an EPOA at this stage;
      1. (iii)
         TS stated that she would prefer third-party organisations, such as the Public Guardian or the Public Trustee, to be appointed;
    5. (e)
      medical comments on 13 October 2016, that:
      1. (i)
         the Adult understands his condition and seems to be able to weigh up his decisions;
      1. (ii)
         the Adult has capacity; the Adult wants to live with his sister TS with increased services;
      1. (iii)
         TS is happy to have the Adult live with her with increased services, but she is concerned about ramifications with their brother AS;
    6. (f)
      a social work comment on 13 October 2016, that:
      1. (i)
         as per the Adult’s wishes, staff contacted the Public Trustee, who advised that they are unable to visit in hospital but are willing to see the Adult in their office to discuss his concerns about the current enduring power of attorney (the Adult feels he has no control over finances including the sale of his home);
    7. (g)
      a social work comment on 14 October 2016, that:
      1. (i)
         the social worker proposes a formal assessment of the Adult’s capacity for discharge planning;
    8. (h)
      social work comments on 17 October 2016, that:
      1. (i)
         the patient has a fully supported accommodation option available in approximately mid-January 2017;
      1. (ii)
         the patient is a candidate for a Queensland Civil and Administrative Tribunal (‘QCAT’) application for financial appointment due to complex family involvement;

and

  1. (i)
    a social work comment on 24 October 2016, that:
    1. (i)
       the Adult continues to fluctuate and often has difficulty following instructions or remembering instructions within very short periods of time.
  1. [18]
    The Tribunal received the My Aged Care Support Plan for the Adult, as generated on 21 November 2016. The support plan included the following relevant information:
    1. (a)
      the Adult receives a disability support pension;
    2. (b)
      the Adult is living with his parents but there are plans for him to move into supported accommodation in January 2017;
    3. (c)
      the Adult has had a noticeable decline in function in the previous two months prior to his hospital admission on 4 October 2016 and his condition is a progressive disorder;
    4. (d)
      his condition has deteriorated where it is beyond the capacity of the family to care for him and thus, he is unable to return home;
    5. (e)
      a referral for ACAT assessment has been sent;
    6. (f)
      the Adult’s parents have been assisting him with his finances;
    7. (g)
      the Adult scored poorly for functional skills, and his inability to attend to activities of daily functions suggested substantial dependence;
    8. (h)
      the Adult had difficulty understanding and following some directions;
    9. (i)
      the Adult spoke in very soft, slurred, slow, deliberate, pressured fashion and his speech volume has decreased in the past two months with his functional decline in cognition; and
    10. (j)
      the Adult recorded a Mental Status Questionnaire (‘MSQ’) score of 5/10.
  2. [19]
    The Tribunal received a written submission from the Adult’s parents and AS dated 1 May 2019 which includes a statement that in their collective view the Adult did have capacity on 21 September 2016. That is, at the time that a contract of sale was entered into by the Adult’s mother, as attorney, for the sale of his home (‘the Property Sale’). There is evidence to suggest that at the time of preparing the submission the Adult’s mother lacked capacity and accordingly the Tribunal regards the statement as evidence from only the Adult’s father and AS.
  3. [20]
    In written submissions, US said:

It is accepted by all parties that the Adult did have capacity at the time a Contract for Sale was entered into in relation to his property.[2]

  1. [21]
    In written submissions, TS said that the Adult did have capacity on 21 September 2016.[3]
  2. [22]
    TS argued that at the time of the Property Sale, the Adult did have capacity, but he did not direct his mother to use her powers under the 2015 EPOA to sell the property.[4]
  3. [23]
    TS did submit that the Adult did have capacity to revoke the 2015 EPOA and enter into the 2017 EPOA.[5] TS went further to submit that the fact that a witness certificate at the time that the 2017 EPOA was signed is corroborative evidence of that fact.[6]
  4. [24]
    The witness certificate provided by RV states that at the time the Adult signed the 2017 EPOA the Adult appeared to understand the matters stated in clause 8 of the enduring power of attorney. Clause 8 of the 2017 EPOA is the statement of understanding by the Adult.
  5. [25]
    RV signed a statutory declaration on 5 October 2018 confirming that she recalls the events of 11 January 2017. She confirmed that the Adult requested a third party[7] to sign the document on his behalf.
  6. [26]
    The Tribunal concludes that at the relevant time of making both enduring documents and the revocation of the first enduring document, the Adult did have capacity to understand the nature and effect of the decision-making.
  7. [27]
    The Tribunal further concludes that the Adult did have capacity at 21 September 2016, when the Adult asked his mother to sign a contract for sale.
  8. [28]
    There is some evidence to suggest that during the period September 2016 and January 2017 the Adult lacked capacity. On balance the evidence suggesting that the Adult did have capacity is stronger. The Tribunal notes that all family members were of the view that the Adult did have capacity during that period. The medical notes extracted from the records produced from the Bundaberg Hospital indicate that (at least) a member of the medical treating team was of the view that the Adult did have capacity. Independent witnesses to the enduring documents certified that the Adult did have capacity.
  9. [29]
    The law presumes an Adult to have capacity for complex administration matters. There is insufficient evidence to rebut that presumption regarding the capacity of the Adult to make decisions between September 2016 and January 2017.
  10. [30]
    The Tribunal arrives at the following findings of fact in relation to the capacity of the Adult between September 2016 and January 2017:
    1. (a)
      the Adult could understand the nature and effect of decision-making;
    2. (b)
      the Adult was able to make decisions about matters freely and voluntarily; 
    3. (c)
      the Adult could communicate his views and wishes; and
    4. (d)
      the Tribunal determines that the Adult did have capacity to make decisions about complex administration matters. 
  11. [31]
    The Tribunal determines that between September 2016 and January 2017, the Adult did have capacity to make decisions about complex financial matters.

Application for an order about an enduring power of attorney

  1. [32]
    The Tribunal initiated an application to determine the validity of the enduring power of attorney.
  2. [33]
    Given the findings of the Tribunal about the capacity[8] of the Adult on 11 January 2017 it follows that, in the absence of any other factor, the 2017 EPOA must be valid.
  3. [34]
    US suggested that her sister TS acted improperly in signing the revocation of the power of attorney at the direction of the Adult, only to be appointed herself as the new attorney approximately five weeks later. The Tribunal does not accept this argument. It is clear to the Tribunal that the Adult did ask his sister to sign the revocation of the 2015 EPOA for him. The form makes it clear that TS did sign the Revocation the document for the Adult, but she did so at his direction.
  4. [35]
    In those circumstances, given that the Adult then had capacity, the Adult was at liberty to appoint TS as his attorney in January 2017. That was his prerogative and wish.
  5. [36]
    The Tribunal respects the prerogative and wishes of the Adult in January 2017.
  6. [37]
    The Tribunal finds that the 2017 EPOA is valid and given the Tribunal’s findings that the Adult lacks capacity now, the Tribunal declares that the powers given under that EPOA have begun.

Directions

  1. [38]
    The Tribunal may hear an application for a declaration, order, direction, recommendation or advice about something in, or related to, the Powers of Attorney Act 1998 (Qld) (‘the POA Act’).[9]
  2. [39]
    TS sought directions from the Tribunal to assist her in fulfilling her role as substitute decision-maker for her brother. She alleged that the former attorneys had failed to exercise their powers honestly and with reasonable diligence to protect the Adult’s interests.
  3. [40]
    Given that the Adult did have capacity during the period, she says the former attorneys acted without the proper authority of the Adult.
  4. [41]
    TS alleged that the Adult’s former attorneys:
    1. (a)
      sold his property ‘without his knowledge or consent, during a time when (he) was in ill health and particularly vulnerable’;[10]
    2. (b)
      sold his property for an amount that was $30,000 less than its true value;
    3. (c)
      took $21,000 from (his) balance of proceeds;[11]
    4. (d)
      owe payment for repairs to the Adult’s motorised scooter; and
    5. (e)
      should reimburse ‘her’ in the amount of $5000 for ‘unnecessary and stressful stay in respite’.[12]
  5. [42]
    TS sought directions for the Tribunal to assist her in investigating matters of concern to her and advancing litigation against the former attorneys.
  6. [43]
    On 4 December 2019, the lawyer representing US disclosed a transaction history report dated 11 October 2019 as evidence of the deposit of a cheque in favour of the Adult’s parents in the sum of $21,000 on 20 October 2016.
  7. [44]
    During the course of the Tribunal hearing, the Tribunal heard extensive evidence from the Adult’s siblings.
  8. [45]
    The Tribunal rejects the case presented by TS that in 2016, the Adult had no knowledge of the sale of the home nor did he consent to the sale of the home. The Tribunal also rejects the case presented by TS that in 2016 the Adult had no knowledge of the payment of $21,000 from the property sale proceeds to his parents.
  9. [46]
    There is, on balance, insufficient evidence for the Tribunal to arrive at the conclusions suggested by TS.
  10. [47]
    The common element of the evidence, as reflected in the Tribunal’s decision about capacity as stated above, was that the Adult did have capacity during the time that the property sale occurred and the payment of $21,000 to the Adult’s parents was made.
  11. [48]
    Further, the Tribunal concludes that the Adult knowingly authorised his mother to sign the Property Sale and he knowingly authorised the repayment of a debt in the sum of $21,000 owed by him to his parents.
  12. [49]
    There is some force in the submissions made by TS that the sum of $21,000 has not been itemised by meaningful documentation. But it does not follow that the absence of records and accounts of dealings to show where the $21,000 was incurred proves that it was not a valid debt. Given that he had capacity at the time, the Adult had the prerogative to gift money to his parents in any event.
  13. [50]
    Given that the Adult no longer has capacity it is not necessarily surprising that the Adult apparently has no recollection of the events that occurred in 2016.
  14. [51]
    The request made of the Tribunal for declarations to be made in relation to the alleged failure of the prior attorneys to act honestly and with reasonable diligence relates to a period when the Adult did have capacity. Given the Adult’s physical difficulties, it is unsurprising that he called upon others to sign documentation on his behalf. The Tribunal does note that the 2015 EPOA provided for his attorneys to sign financial documentation effective immediately.
  15. [52]
    The Tribunal has formed the view that the Adult had capacity to make decisions in relation to the sale of his home and to make decisions in relation to the sale price. Accordingly, if it was sold at under value that was a matter for the Adult at that time. The Tribunal determines that the attorneys did act upon the Adult’s instructions to sign contracts and transfer documents in relation to the sale. The Tribunal determines that the Adult’s mother signed the documentation at the direction of the Adult and did so for his convenience.
  16. [53]
    The Tribunal notes that on 24 September 2015 when making a power of attorney, the Adult did not sign as principal, but had his brother AS sign the document on his behalf. That process was witnessed by lawyer Christopher Parker who was satisfied that the Adult’s brother signed on behalf of the Adult. The Adult instructed his brother to sign the power of attorney for him and his brother signed it in the presence of both Mr Parker and the Adult. That is significant because it establishes that in 2015 there was clear evidence that the Adult did have capacity, nevertheless due to his physical constraints, he did ask someone else to sign a legal document for him. It is therefore unsurprising that the same conduct was demonstrated in September 2016 when his mother signed a contract of sale for the Adult. The Tribunal notes that when the Adult revoked the 2015 EPA, he invited TS to sign the revocation on his behalf. The Tribunal notes that when the Adult made a power of attorney on 11 January 2017 once again a person, SK, signed the power of attorney for him.
  17. [54]
    The Tribunal has formed the view that the request by TS for the Adult’s former attorneys to pay compensation for the alleged undervalued sale of the property is unfounded.
  18. [55]
    The Tribunal is of the view that the Adult’s former attorneys were assisting him rather than replacing him in his decision-making.
  19. [56]
    The Tribunal determines that there is sufficient evidence to suggest that the Adult did owe his parents an amount of money. The Tribunal determines that the Adult did authorise his former attorneys to assist him by paying the sum of $21,000 from his account into the Adult’s parents account. Accordingly, the Tribunal is not prepared to make any orders in relation to that sum.
  20. [57]
    The Tribunal is not prepared to make any orders in relation to allegations involving the scooter repairs and respite expenses. There is insufficient evidence to warrant consideration of these matters, but in any event these matters did relate to a period when the Adult had capacity to make decisions.
  21. [58]
    Based on the evidence before it, the Tribunal is not prepared to make any orders regarding the allegation that the Adult’s former attorneys failed to act honestly and with reasonable diligence.

Application for the appointment of an administrator

  1. [59]
    US brought an application seeking the appointment of an administrator. In doing so, she urged the Tribunal to deal with the power of attorney in favour of TS in such a way as to confer decision-making on an administrator instead of TS as the Adult’s attorney.
  2. [60]
    US said that the investigations being undertaken by TS and the litigation commenced by her against the Adult’s former attorneys was ill-founded. She said that it demonstrated that the current attorney is not a suitable person to make decisions for the Adult and that an administrator should be appointed instead of allowing TS to continue to act in that role.
  3. [61]
    US indicated that the former attorneys were concerned about suggestions that TS would continue to pursue matters against them.
  4. [62]
    Section 12 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) provides that before the Tribunal can appoint an administrator to make financial decisions for an Adult with impaired decision-making capacity, the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator.  Need is established if the Tribunal determines that 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 without an appointment the Adult’s needs will not adequately be met or the Adult’s interests will not be adequately protected.
  5. [63]
    The Tribunal acknowledges that, in making its decision, it must attempt to strike an appropriate balance between:
    1. (a)
      the right of an Adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and
    2. (b)
      the Adult's right to adequate and appropriate support for decision-making.[13]
  6. [64]
    The Tribunal is satisfied that there is a legally effective enduring power of attorney, signed by the Adult, in existence.
  7. [65]
    The Tribunal is satisfied that there is insufficient reason to remove the current attorney from her role as substitute decision-maker for the Adult, or to limit that power.
  8. [66]
    The argument presented to the Tribunal by US for the removal of her sister as decision-maker for their brother is that TS took unmeritorious action in pursuing the claims for compensation. The Tribunal has difficulty in accepting that the action by TS was without some merit. The Tribunal took some time to arrive at its conclusions and did so as a result of hearing from several people through oral evidence to gauge credibility. The hearing was conducted over a period of three days. Importantly, the Tribunal had to determine the capacity of the Adult during the relevant period.
  9. [67]
    Given that the Tribunal has determined that the Adult did authorise the Property Sale and the payment of his parents of $21,000, it is unnecessary for the Tribunal to make any determination as to whether the property was sold at an undervalue and whether the Adult did owe his parents an amount of money, and if so, whether that amount was $21,000.
  10. [68]
    But it does not logically follow that given those findings that the Tribunal must be satisfied that TS has failed to act in the Adult’s best interest.
  11. [69]
    The Tribunal rejects the submissions made by US that TS has not acted in accordance the General Principles under the Guardianship and Administration Act 2000 (Qld).
  12. [70]
    In this case, there is no need for this Tribunal to appoint a formal decision-maker to make decisions in relation to administration issues. That is because the Adult’s interests are adequately protected by the appointment of TS under the 2017 EPOA.
  13. [71]
    The Tribunal determines that TS is willing and available to act as substitute decision-maker as his attorney under the 2017 EPOA. The Tribunal is satisfied that at all times TS has acted in a way that has had the best interests of the Adult as her motivation and that she has attempted to protect his interests.
  14. [72]
    The Tribunal rejects the submission made by US that it should appoint the Public Trustee of Queensland as substitute decision-maker. Where a member of an Adult’s family is appropriate to act as a substitute decision-maker, and is ready, willing and able to fulfil the tasks of acting as a substitute decision-maker for a member of the family with impaired decision-making capacity, the Tribunal prefers such an appointment to the appointment of an independent administrator, such as the Public Trustee of Queensland.
  15. [73]
    By allowing TS to continue to act as decision-maker for the Adult, the Tribunal also acknowledges and respects the wishes of the Adult when, in January 2017, he appointed his current attorney.
  16. [74]
    For clarity, the Tribunal notes that the powers given to TS under the enduring power of attorney have begun.
  17. [75]
    The Tribunal orders that the identity of the Adult and members of the Adult’s family are to be de-identified.
  18. [76]
    The Tribunal orders as follows:

In GAA9624-19:

The application for AS to be joined as an active party is dismissed.

In GAA5295-19:

  1. The Tribunal notes the existence of the following Enduring Power of Attorney for DGS:

The Enduring Power of Attorney dated 11 January 2017 appointing TS as attorney for financial, personal and health matters.

  1. Pursuant to s 115 of the Powers of Attorney Act 1998 (Qld), the Tribunal declares that the powers given to the attorney under the Enduring Power Attorney dated 11 January 2017 have begun.

In GAA1112-19:

The application for directions for DGS is dismissed.

In GAA10401-19:

The application by US for the appointment of an administrator for DGS is dismissed.

Footnotes

[1]Submissions of TS dated 25 July 2019, [86].

[2]Submissions on behalf of US undated, [11(a)].

[3]Submissions on behalf of TS dated 9 April 2019, [1].

[4]Submissions on behalf of TS dated 25 July 2019, [5].

[5]Submission of TS dated 25 July 2019, [36]–[38].

[6]Ibid, [36].

[7]SK.

[8]The Tribunal may make a declaration about a person’s capacity [Powers of Attorney Act 1998 (Qld), s 111].

[9]Powers of Attorney Act 1998 (Qld), s 110(1).

[10]  Letter from Baker O'Brien Toll Lawyers to Finemore Walters & Story Solicitors dated 4 July 2017.

[11]  Ibid.

[12]  Ibid.

[13]Guardianship and Administration Act 2000 (Qld), s 6.

Close

Editorial Notes

  • Published Case Name:

    In applications about matters concerning DGS

  • Shortened Case Name:

    DGS

  • MNC:

    [2020] QCAT 138

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    14 Apr 2020

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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