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Re SEW

[2020] QCAT 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

SEW [2020] QCAT 26

PARTIES:

In applications about matters concerning SEW

APPLICATION NO/S:

GAA8823-19, GAA8824-19, GAA8855-19, GAA8865-19, GAA8866-19 and GAA8867-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 January 2020

HEARING DATE:

10 October 2019

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

ORDERS:

GUARDIANSHIP

  1. CDS is appointed as guardian for SEW for the following personal matters:
    1. (a)
      Accommodation; and
    2. (b)
      Provision of services.
  2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and to be reviewed in two (2) years.

ADMINISTRATION

  1. CDS is appointed as administrator for SEW for all financial matters.
  2. The financial management plan dated 28 July 2019 is approved.
  3. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the Tribunal by 1 October 2020 and annually thereafter:
    1. (a)
      Copies of SEW’s bank statements/passbook/term deposits for the past year;
    2. (b)
      Copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period;
    3. (c)
      Copy of receipts for any individual items purchased in excess of $500.00;
    4. (d)
      For any shares, investments or superannuation, a copy of all dividend notices or statements received during the year; and
    5. (e)
      A signed and witnessed Declaration as to continuing appropriateness for appointment.
  4. This appointment remains current until further order of the Tribunal. This appointment is reviewable and to be reviewed in two (2) years.
  5. Before 1 March 2020, the administrator must:
    1. (a)
      Record the appointment as administrator on any property registered in SEW’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 SEW’s property; and
      2. A copy of the Titles registry ‘Lodgement Summary Form’ confirming the notice has been lodged for each property held by SEW.
    3. (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.
  6. If the ownership of any property of SEW changes in any way or SEW 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 a notice to the Registrar about the changes or SEW’s interest in another property.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – conflict between family members – carer fatigue – failure of a proposed appointee to appreciate the significance of conflict transactions.

Powers of Attorney Act 1998 (Qld), s 58

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

APPEARANCES &

REPRESENTATION:

 

Applicant:

ABS (son)

Proposed Guardians:

ABS (son) and CDS (son)

Proposed Administrators:

ABS (son) and CDS (son)

Applicant:

CDS (son)

Proposed Guardians:

ABS (son) and CDS (son)

Proposed Administrators:

ABS (son) and CDS (son)

Interested Person:

EFS (daughter)

REASONS FOR DECISION

  1. [1]
    At the date of the hearing, SEW (‘the Adult’) was an 83-year-old gentleman with cognitive impairment associated with alcohol, cerebral vascular disease and Alzheimer’s disease.
  2. [2]
    The Adult has four children. For the purpose of this de-identified decision, I will refer to them as ABS, CDS, EFS and GHS. ABS and CDS brought separate Applications (‘the Applications’) proposing themselves as guardians and administrators for their father. They did not propose that their sister, EFS, or their brother, GHS, should be appointed in any capacity. ABS, CDS and EFS attended the hearing. GHS did not attend the hearing, but to some extent his views were provided to the Tribunal as a result of evidence provided by EFS.
  3. [3]
    As at the date of the Applications, the Adult was residing at the Robina Hospital. As at the date of the hearing, the Adult had been relocated to Tricare on a respite basis. In part, the applicants sought appointment by the Tribunal to enable them to make decisions about where their father should live on a permanent basis. Prior to admission to hospital and then Tricare, the Adult was living with his son ABS who was suffering stress given his caregiving responsibilities for his father, who was being aggressive and resistant.
  4. [4]
    The Adult signed a Power of Attorney in favour of his de facto partner on 17 September 2008. The Adult’s de facto partner passed away on 6 July 2019. When an Attorney dies, the enduring document is revoked to the extent it gives power to the Attorney.[1] Given that the Power of Attorney did not provide for an alternate decision-maker, it comes to an end.
  5. [5]
    The applicants sought, and obtained, appointment as administrators on an interim basis by order of this Tribunal dated 2 August 2019, effective for a period of three months. Accordingly, at the date of the hearing, ABS and CDS were the appointed decision-makers as administrators for the Adult.
  6. [6]
    The applicants seek appointment as guardians to make decisions in relation to accommodation and the provision of services. The applicants seek appointment as administrators in relation to all financial decisions, including in relation to the Adult’s property. The Tribunal notes that at the date of the application, the Adult had outstanding bills that needed to be paid.

Capacity

  1. [7]
    Before the Tribunal can make any appointment, even where interim appointments have been made, it must consider the question of capacity. Every adult is presumed to be capable of making their own decisions.
  2. [8]
    The Tribunal had the benefit of a health professional report by Dr KL, general practitioner, dated 30 July 2019. In the report, the doctor said that the Adult has dementia, with onset of the disease in May 2018. As a result of a fall in July 2018, the Adult suffered a fractured skull. As at the date of the report, the doctor said that the Adult was suffering from an acquired brain injury, intellectual disability, psychiatric disability and dementia. The doctor concluded that, as at the date of the report, the Adult had no ability to make a Power of Attorney and had no ability to make complex decisions, but he could make simple decisions.
  3. [9]
    The Tribunal received a letter sent by Dr AR, geriatrician/general physician and associate professor, to Dr KL dated 28 August 2018. In the letter, the geriatrician identified the following issues of significance in relation to the Adult:
    1. (a)
      82-year-old gentleman with cognitive impairment associated with alcohol, cerebral vascular disease and Alzheimer’s disease;
    2. (b)
      the Adult suffered a fall in 2018;
    3. (c)
      the Adult was subject to an acute medical admission from June 2018 to July 2018 associated with a dementia syndrome, chronic alcoholism, plus Alzheimer’s dementia and cerebral vascular disease;
    4. (d)
      the doctor visited the Adult on 23 August 2018;
    5. (e)
      in May 2018, the Adult was hospitalised for aggressive behaviour and confusion;
    6. (f)
      the Adult returned home, where he continued to reside with his son, ABS;
    7. (g)
      the Adult said he has been sleeping well and his appetite was good;
    8. (h)
      the Adult said that he has hallucinated for years;
    9. (i)
      ABS is stressed by his caregiving responsibilities for the Adult, who was being resistant; and
    10. (j)
      it is important to keep the Adult away from alcohol.
  4. [10]
    The Tribunal received, into evidence, a letter from Dr HB, medical registrar, Department of Geriatric Medicine dated 25 July 2018. The letter confirmed that, from a medical perspective, the Adult lacked the capacity to make complex decisions about personal, health and financial matters.
  5. [11]
    The Tribunal received a copy of an Aged Care Assessment Team (‘ACAT’) support plan generated on 25 January 2019, which identified the following key points in relation to the Adult:
    1. (a)
      a comprehensive assessment was undertaken on 21 January 2019 at the Adult’s home;
    2. (b)
      the Adult was accompanied by his son ABS;
    3. (c)
      the assessment was required to determine the level of care for access to residential respite care;
    4. (d)
      the Adult was previously assessed in 2017, but his needs have increased since that time;
    5. (e)
      the assessment identified the Adult is eligible for a home care package and high care residential respite; and
    6. (f)
      the Adult had previously been approved for permanent residential care – if the Adult’s needs were unable to be met at home.
  6. [12]
    The Tribunal heard from the Adult’s three children who attended the hearing. All expressed the view that their father was not capable of making complex decisions and all agreed with the medical conclusions of Dr KL. EFS provided evidence to the Tribunal that she had spoken with her brother, GHS, and said that, if he had attended the hearing, he would have expressed the same opinion. Accordingly, the Tribunal concludes that the participants were uniformly of the view that the Adult was not capable of making complex decisions. None of the participants were aware of anyone associated with the Adult who held a contrary view.
  7. [13]
    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.
  8. [14]
    The Tribunal arrives at the following findings of fact in relation to capacity:
    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. 
  9. [15]
    Although the law presumes an Adult to have capacity for complex guardianship and administration matters, the Tribunal determines that the Adult does not have capacity to make decisions about complex personal and financial matters.

Guardianship

  1. [16]
    Section 12 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) provides that before the Tribunal can appoint a guardian to make personal decisions or 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.

Need for appointment of a guardian

  1. [17]
    In this case, the Adult does require a formal decision-maker to make decisions in relation to guardianship issues. The Adult’s accommodation decisions are yet to be finalised. If the Adult was to remain in, or return to, his home, then services will need to be provided, necessitating the appointment of a decision-maker in this regard.
  2. [18]
    It was clear to the Tribunal that the Adult’s son ABS was suffering carer fatigue and as a result of that, the Adult may require permanent placement in an aged care facility.
  3. [19]
    A decision-maker must make decisions for the adult in relation to guardianship issues. Without appointment, the adult is likely to do something that involves, or is likely to involve unreasonable risk to health and welfare and without appointment, the adult’s needs will not be adequately met, or interests adequately protected.
  4. [20]
    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.[2]
  1. [21]
    The Tribunal is satisfied that there is no legally effective Enduring Power of Attorney, signed by the Adult, in existence.

Suitability for appointment as a guardian

  1. [22]
    ABS and CDS signed Declarations as to suitability for appointment as guardians on 26 July 2019 and 28 July 2019, respectively.
  2. [23]
    In determining the suitability for appointment of guardians, the Tribunal must consider section 15 of the Act.

Administration

  1. [24]
    At the hearing, the Tribunal heard evidence that the Adult owns a home worth approximately $850,000.00, has contents worth approximately $10,000.00, owns a motor vehicle worth approximately $1,500.00 and has an account with Suncorp with a balance of approximately $30,000.00. In addition, the Tribunal heard that the Adult will inherit all or some of the estate of his late de facto partner.
  2. [25]
    The Tribunal received, into evidence, a financial management plan by ABS dated 26 July 2019. The plan identified the following key issues:
    1. (a)
      the Adult resides in his own home;
    2. (b)
      the family home meets his needs, with no modification required;
    3. (c)
      the focus of decision-making will be on maintaining the house;
    4. (d)
      due to the passing of the Adult’s partner, the title deeds to their home will need to pass to the Adult;
    5. (e)
      legal support has been arranged to manage the deceased estate of the Adult’s late de facto partner;
    6. (f)
      the Adult receives a pension;
    7. (g)
      the Adult owns a house worth approximately $850,000.00;
    8. (h)
      the Adult owns house contents worth approximately $10,000.00; and
    9. (i)
      the Adult owns a car worth approximately $1,500.00.
  3. [26]
    The Tribunal received, into evidence, a financial management plan by CDS dated 28 July 2019. The plan identified the following key issues:
    1. (a)
      the Adult can continue to live in his own home;
    2. (b)
      the Adult can receive BlueCare nursing assistance and domestic assistance, with respite, if needed;
    3. (c)
      the Adult has advanced dementia and requires support from his brother ABS, with whom he lives;
    4. (d)
      the Adult may need to go into respite or nursing home care;
    5. (e)
      with the passing of the Adult’s de facto partner, the money and property that he inherited from his partner needs to be managed in the best interest of the Adult;
    6. (f)
      the Adult will continue to live in his own home, in accordance with his wishes;
    7. (g)
      familiar surroundings are important to the Adult’s health and well-being;
    8. (h)
      if appointed, the plan of the proposed appointees is to speak with a financial adviser regarding the investment of money inherited from the Adult’s partner;
    9. (i)
      CDS has successfully run his own business as a sole trader for 15 years with a number of employees;
    10. (j)
      CDS has a family and is responsible for maintaining the home and lifestyle for his family; and
    11. (k)
      CDS has an excellent credit history and does not owe any money or incurred any defaults.
  4. [27]
    The Tribunal approves the financial management plan presented by CDS. The Tribunal does so in the knowledge that although the plan had contemplated that the Adult was to continue to reside in his own home, circumstances have changed since that time which will necessitate a decision to be made as to where the Adult should reside on a permanent basis.

Need for appointment of an administrator

  1. [28]
    Section 12 of 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 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 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.
  1. [29]
    A decision-maker must make decisions for the adult in relation to administration issues. Without appointment, the adult is likely to do something that involves, or is likely to involve unreasonable risk to welfare and property, and without appointment, the adult’s needs will not be adequately met, or interests adequately protected.
  2. [30]
    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 (s 6 of the Act).
  1. [31]
    The Tribunal is satisfied that there is no legally effective Enduring Power of Attorney, signed by the Adult, in existence.

Suitability for appointment as an administrator

  1. [32]
    ABS and CDS signed declarations as to suitability for appointment as administrator on 26 July 2019 and 28 July 2019, respectively. During the Tribunal hearing, the Tribunal enquired of ABS in relation to his proposal for decision-making for the Adult. From his responses, it appeared that he did not have any understanding of the nature of conflict transactions or the implication of being involved in a conflict transaction. Also, ABS was exhibiting carer fatigue.
  2. [33]
    In determining the suitability for appointment of administrators, the Tribunal must consider section 15 of the Act.
  3. [34]
    In his financial management plan, ABS said that he has managed his own affairs, and owned his own home without any debts or problems. He said that he is familiar with budgeting through his work as a social worker. He said that he has managed the Adult’s household for the past year and has helped to obtain good outcomes regarding pool fencing and return of funds from contracts, such as with telecommunication companies, where the Adult had signed three simultaneous contracts for telecommunication services. ABS also spoke of his brother’s capacity to act as an administrator. He said that CDS has successfully run his own business for many years.
  4. [35]
    During the Tribunal hearing, the Tribunal spoke candidly with ABS in relation to the requirements of an administrator. It appeared to the Tribunal that ABS lacked specific knowledge and understanding of conflict transactions, which raised concerns for the Tribunal as to whether he is an appropriate appointee. Responses provided by ABS in relation to his absence of understanding the nature and consequences of conflict transactions, coupled with his carer’s fatigue precludes him from being considered for appointment.

Appointments

  1. [36]
    The Tribunal notes that at the date of the hearing, the Adult’s daughter EFS had not sought formal appointment as a substitute decision-maker for her father.
  2. [37]
    During the hearing, the Tribunal did detect signs of discord between members of the family, but there was limited evidence in the material presented by any of the parties, prior to the hearing, that points to conflict between family members. During the hearing, the Tribunal expressed concern in relation to the ability of the Adult’s children to communicate in a meaningful way with each other. The Tribunal raised the possibility of appointing the Adult’s daughter EFS as guardian and the appointment of the Public Trustee of Queensland as an independent administrator. The Adult’s children who attended the hearing were largely opposed to that course of action. Importantly, the evidence to the Tribunal is that the Adult would have also been opposed to the appointment of the Public Trustee of Queensland.
  3. [38]
    While EFS may have been an appropriate choice as substitute decision-maker for the Adult, on balance, the Tribunal is of the view that CDS should be appointed as the sole guardian and the sole administrator. The Tribunal notes that CDS was the only proposed appointees who specifically identified the need to obtain independent financial advice from a qualified financial advisor. To the Tribunal, that is a significant and important function for an administrator in the circumstances.
  4. [39]
    The Tribunal is of the view that CDS is the person best placed to liaise with all interested parties, assess the relative merits of options for decisions on guardianship and administration matters and make decisions that best meet the Adult’s needs. While it does appear to the Tribunal that CDS has not had recent communication with his brother GHS, that does not appear to be an insurmountable obstacle to overcome. In that regard, CDS may need to call on the assistance of his sister, EFS.
  5. [40]
    While CDS did initially apply to be appointed jointly with his brother ABS, it appeared to the Tribunal that CDS was able to understand why the Tribunal had concerns about the appropriateness of appointing ABS. That is, particularly in relation to the absence of insight by ABS into the potential existence and effect of conflict transactions. The Tribunal expects that one important function to be fulfilled by CDS is to consider whether conflict transactions have been entered into by ABS, as that appears likely. Further, the Tribunal expects that CDS will take appropriate action for the benefit of the Adult.
  6. [41]
    CDS has considerable experience in managing financial affairs for himself, and his family. The Tribunal notes that in his Application, CDS indicated that he had the support of his sister EFS. While that level of support did appear to be questioned during the hearing, the Tribunal is confident that EFS will be supportive of the appointment of CDS as substitute decision-maker for their father. The Tribunal notes that EFS did not seek appointment prior to the hearing. EFS has not provided a financial management plan.
  7. [42]
    The Tribunal is of the view that CDS is a person who is willing, competent and available to act as guardian and administrator for his father. Given that the Tribunal has raised issues as to the potential for the Adult’s financial interests to be at risk, for example through exploitation, the Tribunal is of the view that CDS is a person who will undertake appropriate investigations and, if necessary, undertake appropriate action. The Tribunal is satisfied that CDS is not a person who is likely to make decisions that are financially, or otherwise, detrimental to the Adult.
  8. [43]
    Given that discord has arisen between informal decision-makers, it is appropriate to appoint one person, rather than two or more people, to fulfil the task of decision-maker for the Adult.
  9. [44]
    Where a member of an adult’s family is appropriate for appointment, and 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.

Orders

  1. [45]
    The orders are as follows:

GUARDIANSHIP

  1. CDS is appointed as guardian for SEW for the following personal matters:
    1. (a)
      Accommodation; and
    2. (b)
      Provision of services.
  1. This appointment remains current until further order of the Tribunal. The appointment is reviewable and to be reviewed in two (2) years.

ADMINISTRATION

  1. CDS is appointed as administrator for SEW for all financial matters.
  2. The financial management plan dated 28 July 2019 is approved.
  3. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the Tribunal by 1 October 2020 and annually thereafter:
    1. (a)
      Copies of SEW’s bank statements/passbook/term deposits for the past year;
    2. (b)
      Copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period;
    3. (c)
      Copy of receipts for any individual items purchased in excess of $500.00;
    4. (d)
      For any shares, investments or superannuation, a copy of all dividend notices or statements received during the year; and
    5. (e)
      A signed and witnessed Declaration as to continuing appropriateness for appointment.
  4. This appointment remains current until further order of the Tribunal. This appointment is reviewable and to be reviewed in two (2) years.
  5. Before 1 March 2020, the administrator must:
    1. (a)
      Record the appointment as administrator on any property registered in SEW’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 SEW’s property; and
      2. A copy of the Titles registry ‘Lodgement Summary Form’ confirming the notice has been lodged for each property held by SEW.
    3. (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.
  6. If the ownership of any property of SEW changes in any way or SEW 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 a notice to the Registrar about the changes or SEW’s interest in another property.

Footnotes

[1]Powers of Attorney Act 1998 (Qld), s 58.

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

Close

Editorial Notes

  • Published Case Name:

    Re SEW

  • Shortened Case Name:

    Re SEW

  • MNC:

    [2020] QCAT 26

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    21 Jan 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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