WJ[2021] QCAT 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant in these proceedings is WA, who is a registered psychologist. She seeks appointments as guardian and administrator for her father, WJ. She also seeks orders about Enduring Powers of Attorney executed on 5 April 2019 and 13 November 2019, suggesting they are invalid for want of capacity. She is seeking a declaration that the Enduring Power of Attorney of 24 January 2019 is valid.
2. [2]
   The applications are dealt with under s 12 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’) in respect of guardianship and administration. Before making an appointment of a guardian or administrator, the Tribunal must be satisfied that WJ has impaired capacity for decision-making, and that there is a need for an appointment of a guardian and/or an administrator. The relevant matters to consider capacity for decision-making are contained in Schedule 4 of the GAA. The relevant matters in relation to capacity to execute an Enduring Power of Attorney are contained in s 41 of the Powers of Attorney Act 1998 (Qld).
3. [3]
   The applications were heard over several days commencing on 10 August 2020 and concluding on 30 October 2020 after which parties provided written submissions. WA represented herself. WJ was represented by Mr Whiteford of counsel instructed by Moschella Solicitors. WJ was very strongly opposed to the applications.
4. [4]
   During the course of the proceedings, WA indicated that she now sought the appointment of the Public Guardian and The Public Trustee as guardian and administrator, respectively for her father.
5. [5]
   As a preliminary matter, WA sought to have her mother attend as a support person for her. The Tribunal was aware of the acrimonious relationship which existed between WJ and his ex-wife and raised an issue as to whether a closure order should be made.
6. [6]
   The Tribunal received oral submissions from the parties. WA submitted that she faces some difficult issues at the hearing and that WJ has lawyers representing him. She is trying to do the right thing by her father. She submitted that she did not expect the cross-examination process to be easy and that she would require some emotional support during the hearing because of the distressing nature of the hearing. She also noted that her mother is aware of the family history.
7. [7]
   Counsel for WJ supported a closure order as it would cause distress to WJ if his ex-wife was present. He submitted that of all the support persons that may be available to WA she has chosen the person who is most inappropriate in the circumstances because of the acrimonious relationship. When pressed, counsel advised that he can not make submissions that there are grounds to make a closure order as required by statute.
8. [8]
   WA further submitted that this is not a decision she made lightly to involve her mother and it is distressing for everyone. She also advised that she does not have anyone else who could support her. The Tribunal, in considering the various elements in s 105 and s 107 of the GAA necessary to make a closure order, determined that grounds did not exist to make such an order.

Relationship between WJ and his daughter WA, the applicant

9. [9]
   WJ described his relationship with his daughter as follows:

   1. (a)
      WA was born in 1988. Up until WA was the age of nine, he attempted to have regular contact with her. Around WA reaching the age of nine, he decided that whilst her mother controlled WA he would have no further contact and described himself as being estranged since 1997. He indicated that he attempted to get back together with his daughter a few times including a few events during her high school years. He subsequently gave her money for books in 2005 and 2006, and when he was admitted into hospital she came back into his life in 2018 and they talked regularly as he wanted to get to know a little bit about her. At times he indicated that there had not been a great deal of contact and that he was happy to commence a relationship again whilst he was in hospital. He gave her some tasks to do in relation to his business activities and it all went fine for a while. He subsequently came to the view that she was more interested in finding out all about his estate.

10. [10]
    He established the JS Legacy Trust in April 2019 and gave WA a role in managing the Trust assets on his death. This was non-binding on the Trustees.
11. [11]
    As time went by, the relationship became more problematic for WJ as WA questioned his various decisions in establishing further trusts. There were a number of discussions which could be described as acrimonious in relation to the way in which WJ proposed to deal with his assets and WA’s refusal to give him back certain financial documents she had in her possession.
12. [12]
    The further trusts were set up so that WA effectively would not benefit from WJ’s assets accrued during his life and there would be little left for her on his passing.
13. [13]
    On 28 February 2019, WJ gave a gift to WA of $360,000 so that she could pay various debts and purchase some goods and services.
14. [14]
    WA described her relationship with her father as fragile until around 2014, after which she considers they were more fully connected although described her father’s moods as fluid and unpredictable. She disagreed that her relationship with her father was poor between 2015 and 2018. However, various texts from WA strongly suggest to the Tribunal that the relationship with her father was poor. These texts and transcripts of their discussions given to the Tribunal are totally inconsistent with being fully connected.
15. [15]
    The Tribunal considers the relationship quite fragile. There was an attempt to mend the relationship after WJ became seriously ill and some attempt to put the past behind them. When WA lost employment in November 2018, WJ made a decision to involve her in his affairs. She was co-signatory of various accounts and was appointed as Enduring Power of Attorney in January 2019. WJ asked her to familiarise herself with various company documents and she put documents into her vehicle of her own volition. She denies having told her father she would return them and despite WJ’s repeated assertions at the hearing that he asked for them to be returned, she did not do so.
16. [16]
    It is clear to the Tribunal that during 2019 their relationship soured significantly for a number of reasons including WA not returning documents that she had taken from WJ’s filing cabinets, her engaging in lengthy discussions with her father about his assets, and his engagement of a solicitor to systematically put his assets into three Trusts such that his assets would be managed by the Trustees which were variously his sister, brother and nephews. These will be described in detail later.
17. [17]
    WA’s view was that WJ was doing this contrary to what he had told her and this was some evidence of his incapacity in that he behaved differently from what he said he intended to do.

WJ’s medical history

18. [18]
    WJ was admitted to Gold Coast University Hospital (‘GCUH’) on 16 December 2018, following a collapse at home on a background of gradually increasing back pain and leg weakness. He underwent emergency surgery as a result of a tumour on his spine secondary to prostate cancer. He spent a considerable amount of time in hospital and was subsequently assessed as eligible for permanent residential aged care with the assessment noting that WJ has significant health conditions and requires full assistance with all activities of daily living due to his impaired mobility. He is unable to return home as his care needs now exceed what could be provided in the community. His mobility is very restricted.
19. [19]
    At the time of hospitalisation he was given 12 to 18 months to live. He had lost sensation in both legs as a result of the metastasized prostate cancer affecting his spine.
20. [20]
    WJ subsequently was placed at a Blue Care residential aged care facility on the Gold Coast where he remains. As a result of WJ’s medical conditions he has become a paraplegic.
21. [21]
    WJ was observed and assessed on multiple occasions during his admission at the Gold Coast University Hospital, in relation to his medical conditions, as well as his orientation and alertness. Through December 2018, January 2019 and February 2019 the reports are that he was alert and oriented and there were no concerns about his cognition. Blue Care notes in March 2019 that he is oriented and had no issues with cognition or his memory. A My Aged Care assessment in September 2019 indicated there was no evidence of impairment.
22. [22]
    Since the initial prognosis, WJ’s prostate specific antigen levels have dramatically reduced and his life expectancy has increased.

The history of WJ’s Enduring Powers of Attorney

23. [23]
    On 24 January 2019 by an Enduring Power of Attorney, WJ appointed WA and WD, his brother, as his attorneys for financial, personal and health matters, with the financial powers to begin when he becomes mentally incapable. He appointed WA as the first Attorney and WD as the backup if WA was uncontactable. The document was accepted by WA only.
24. [24]
    On 5 April 2019, WJ executed a further Enduring Power of Attorney appointing WA and RC who is WJ’s sister. He appointed them for personal and health matters successively in the order named and he appointed WD and WA for financial matters when he loses capacity. They were appointed successively in the order named and both accepted the appointment. The witness on that occasion was a solicitor, Mr Moschella.
25. [25]
    On 13 November 2019, WJ made a further Enduring Power of Attorney. In that document, he appointed RC and WD as his attorneys for personal and health matters and appointed them dependent on availability, successively in the order named, but both must be aware of the issues and decisions. He appointed RC and WD jointly for financial matters upon the loss of his mental capacity. Both attorneys accepted the appointment. The witness to that Enduring Power of Attorney was a Justice of the Peace, Ms Gallagher.
26. [26]
    Ms Gallagher gave evidence to the Tribunal. She advised that she had been a Justice of the Peace for six years, and during the last three years, had worked at the hospital at which WJ had been receiving treatment. She outlined the process that she used for witnessing Enduring Powers of Attorney. She advised that she had explained to WJ what an Enduring Power of Attorney is and that she needs to be satisfied that a person has to understand the nature and effect of the document and make it freely.
27. [27]
    She also explained her role does not just involve signing but being satisfied that the person understands what the document is about. She indicated that she keeps notes in a book about her interviews and that she spent around half an hour with WJ. She noted that WJ executed a long form of an Enduring Power of Attorney and when she asked him why he was using that form he indicated he had different ideas about who should make decisions about personal and financial matters. He was able to tell her that it would only come into effect when he lost capacity and he wanted appointments to be made successively for personal and health matters.
28. [28]
    She advised that she went through a statement of understanding with WJ and that he understood what would happen when he lost capacity. He was aware of the circumstances under which he could revoke an Enduring Power of Attorney as he had done this previously and told her he was unable to do that when he lost capacity. He was aware he could change the Enduring Power of Attorney if he wished to. She indicated he clearly knew what a revocation was and if he lost capacity, he would not be able to revoke the document.
29. [29]
    Ms Gallagher advised that she bases her questions of people executing an Enduring Power of Attorney on the Department of Justice website and she uses a checklist when asking the questions. She indicated that there was no one present and that WJ made the appointment himself and completed the form himself.
30. [30]
    Ms Gallagher advised that WJ could articulate that he wanted his attorneys to make decisions about his care and what would happen to him. He realised that if he lost capacity, he would not be able to have any input into decisions nor have any control over the decisions. He also indicated to her that he did not wish to limit his attorneys and that when he loses capacity “that’s it.” He advised her that it means they can do whatever they wish. Ms Gallagher indicated that she had no issues with WJ’s cognition otherwise she would not have witnessed the document. She indicated that if she has a problem with a person’s capacity at the hospital she would get the social worker involved. He had told her that he had previously revoked an Enduring Power of Attorney but did not ask him how many he had revoked and did not tell her about the Queensland Civil and Administrative Tribunal proceeding that was on foot.

The history of the deeds

JS Legacy Trust

31. [31]
    This trust was established on 9 April 2019. The Trustees were WD, WX and RD, the latter two being nephews of WJ. The income of the trust was to consist of income from three residential properties: one in Elanora, one in Carrara and one in Palm Beach.
32. [32]
    The income of the trust was to be distributed 100% to WJ whist he was alive. Following WJ’s death, the trustees had a non-binding discretion to allow WA to be employed, manage the trust assets and be paid approximately 40% of the income. The intention was that the balance of the trust income be distributed equally between one of his brother’s companies and one of his sister’s companies. Whilst that was the said intention, the Deed document provided each of those entities to receive 50%. This was an error in the trust deed.
33. [33]
    The named beneficiaries of the Trust were the great grandchildren of WPSJ, who is WJ’s father. The Elanora property was WJ’s mother’s property which he bought from her when she moved into a nursing home. The Carrara property was bought by his father with his own money or company money and was put into WJ’s name following WJ’s divorce from WA’s mother, on the understanding that it would be held in trust for the benefit of himself and his siblings.
34. [34]
    The unit at Palm Beach was transferred to WJ from his father on the understanding that he would hold it for the benefit of himself and his siblings equally.
35. [35]
    None of those properties generate any income. At the time of his hospital admission, WJ was living in the Elanora property having moved from the Carrara property. WJ advised that the transfer of the properties to the JS Legacy Trust were done with the consent of his siblings.

The JJ Legacy Trust

36. [36]
    This trust consists of funds resulting from the sale of shares in the family companies worth around one million dollars following the sale and transfer of the shares to his siblings and their companies. WJ authorised that the proceeds of the sale monies be gifted to the JJ Legacy Trust because he wanted to ensure WA and the family did not enter any dispute about these assets. The trustees are the same as for the JS Legacy Trust.
37. [37]
    On 27th October 2020, WJ entered a loan facility agreement with the Trustees of the JJ Legacy Trust to borrow money to fund his living expenses and for expenses to make the properties in the JS Legacy Trust tenantable.  WJ advised by a statement dated 29th October 2020 that he plans to borrow $360,000.00 using his Refundable Accommodation Deposit as security.

The JM Legacy Trust

38. [38]
    In December 2019, WJ arranged for the JM Legacy Trust to be established. This was to hold the funds he generated through his lifetime. He subsequently transferred his ordinary shares in his private company into this trust. He remains the company’s sole director and secretary and is entitled to directors and company secretary fees for future services. The company has a significant share portfolio and cash.
39. [39]
    The Trustees of the JM Legacy Trust are the same as for the other trusts.

What is the evidence about capacity?

40. [40]
    In January 2020, WJ was examined by Professor Phillip Morris, a consultant psychiatrist and Dr Simon Zuscak, a clinical psychologist. This occurred at Blue Care. Professor Morris and Dr Zuscak made themselves available to give evidence to the Tribunal in relation to their examination. In summary, both Professor Morris and Dr Zuscak indicated that WJ had capacity to make decisions about his financial matters and his personal and lifestyle matters and that he was at low risk of undue influence. The methodology used was both psychometric assessment and the use of a structured question set for specific decisions. WJ was found to be of normal functioning or above on the psychometric assessments.
41. [41]
    Dr Zuscak advised WJ’s overall intelligence was better than 88% of people his age, his verbal functioning was better than 50%, and his ability to solve novel problems was better than 99% of people his age.
42. [42]
    Dr Morris advised the Tribunal that he asked WJ about his current circumstances in respect of health and legal matters, and he assessed WJ’s mental status in relation to alertness, co-operation, speech, emotion, attention, mood, thought disorder and delusions, use of language, judgement and his level of insight. He found that WJ’s memory was intact, that he was very conversant with his medical issues, that there was no evidence of confusion, and there was no evidence of psychiatric illness. He did not get the impression that WJ was being guarded in any way.
43. [43]
    Dr Zuscak also interviewed WJ and discussed with him his affairs, the issue of undue influence and the allegations of clutter being made by WA. Dr Zuscak had received 930 extra pages of information generated by WA which revealed the situation to be more complex than first thought. During a supplementary interview, Dr Zuscak advised that WJ was aware that in making the trust deeds that he was overlooking potential benefits to particular family members. He indicated WA was creating stress in his life and he was aware that he had given a significant level of discretion to his trustees and was aware WA would not benefit.
44. [44]
    He advised Dr Zuscak that WA had become over protective and over involved in his affairs and he had become doubtful as to her bonafides and sought to decrease her influence. Dr Zuscak reported that WJ indicated that his thoughts had rapidly changed regarding WA’s involvement. He noted that he had already given WA $360,000 and he was essentially limiting her involvement in his affairs because of a deterioration in their relationship and her bringing the application to the Queensland Civil and Administrative Tribunal. He indicated he cannot trust her and that no one has influenced him although he was aware that she would have sour grapes.
45. [45]
    In relation to the clutter, Dr Zuscak advised WJ told him that he used urine to fertilize his plants and, as a former engineer, he likes to cannibalise items for other use.
46. [46]
    Dr Morris advised the Tribunal that he was aware of the hoarding disorder classification under DSM-5 and its overlap with obsessive compulsive disorder. If he was to assume that WJ had a hoarding disorder he considered that this would not necessarily impact on decision-making and that people can have these behaviours but the criteria for DSM-5 is reliant on a number of issues.
47. [47]
    The health professionals advised that their approach is to look at how WJ approached problems and understood them. They considered that WJ has capacity to grasp the concept of Capital Gains Tax (‘CGT’) and that he is fully able to comprehend information. In response to a question regarding that no advice seems to have been sought on the capital gains implication, the health professionals advise that it was not a question that was explored with WJ and that he potentially made an error or was potentially not advised appropriately.
48. [48]
    Dr Zuscak advised that even if WJ had a psychiatric disorder that does not mean a lack of capacity. In response to a question from the applicant, Dr Morris advised he would not be able to say how long a person’s distress over a catastrophic medical event such as experienced by WJ would last as this varied from person to person. Dr Morris also advised that anxiety can lead to impaired decision-making as can depression and sleep deprivation but he expressed doubt that these factors impacted on WJ. He noted that WJ signed complex documents in early April and doubted if his capacity had been affected at that time. The clinical examination in relation to stress, anxiety and depression which Dr Morris undertook gave no evidence of these factors being present and found that there were no symptoms evident that were overtaking WJ’s thought processes.
49. [49]
    In relation to the instructions given to the two health professionals from Mr Moschella, Dr Zuscak advised that he and Dr Morris kept an open mind regarding the instructions.
50. [50]
    The Tribunal has already commented briefly on the reports from Gold Coast University Hospital, Blue Care and My Aged Care about WJ’s cognition and alertness. The Tribunal had also benefit of evidence from a registered nurse, who is the facility manager where WJ lives. She advised the Tribunal that she had been a registered nurse since 1975 and had met WJ prior to his admission at a respite facility. She sees WJ once or twice per week. She advised the Tribunal that she has had no concerns regarding WJ’s capacity. She advised she has met WA and observed the father/daughter relationship. She has indicated that she was aware that WA has placed pressure on WJ when not getting the answers she wanted. She has approached staff regarding their conducting of capacity assessments and has put pressure on them to report that WJ lacks capacity. This has not occurred. She advised that staff did not see WJ in the same light as WA.
51. [51]
    The manager advised that WJ took a little while to consider the contract at the nursing home and that this is not unusual. He had indicated to her that he had been getting some advice when talking to his daughter. The manager indicated that she has never seen any evidence about WJ not understanding the nature and effect of the decisions regarding his healthcare or his lifestyle or making decisions freely and voluntarily or any evidence regarding a lack of ability to communicate.
52. [52]
    The care coordinator at the facility also gave evidence. She sees WJ every second day. She advised that his support needs consist of assistance with activities of daily living, transfers and setting up for showers. She does not have any concerns regarding WJ’s ability to make decisions. She has not seen him pressured. She has indicated that he will think about and process matters rather than answering straight away and that his responses are usually considered.
53. [53]
    She has had some discussion with WJ regarding health issues including end of life decisions. She described a meeting with WA on 6 November 2019. Following a case conference, WA had wanted to talk to her father about capacity and had recorded this without seeking his approval. She had asked for a registered nurse to monitor her father’s blood pressure. WA had asked that WJ’s blood pressure be monitored because she was worried it might go through the roof.
54. [54]
    The discussion that WA had with her father changed from capacity to recent matters including documents of his in her possession that he wanted. It was noted WA provided no appropriate answers to WJ and she kept saying she put it away, the language was very heated, she kept saying what she wanted, she kept overriding him, broke down emotionally and was quite upset.
55. [55]
    It is evident to the Tribunal that this conversation, transcribed for the Tribunal by WJ’s counsel, demonstrates a serious breakdown in the father/daughter relationship. A week later WJ changed his Enduring Power of Attorney removing WA as an attorney.
56. [56]
    The applicant WA raised a number of issues with the Tribunal which she considered indicative of her father’s lack of capacity.
57. [57]
    These will now be listed in no particular order.
58. [58]
    She provided the Tribunal with a range of photographs of her father’s last place of residence. These photographs showed the premise in a state of disarray. There were goods and materials spread across floors in various rooms.
59. [59]
    There was also photographs of bottles which she claims contained urine. She considered from about January 2019 that he had a form of hoarding disorder.
60. [60]
    A second matter WA raised with the Tribunal is that her father was constantly changing his mind regarding her involvement in his affairs and the promises he made to her about various aspects of his estate subsequently being for her benefit. She referred to the change in Enduring Powers of Attorney which have been outlined earlier. She also referred to the succession of trust deeds that he made, each of which in her view, reduced her access to funds from his estate.
61. [61]
    A further argument she raised was that her father was anxious and sleep deprived when making decisions in relation to the Enduring Powers of Attorney and the trusts and demonstrated a level of tiredness and confusion.
62. [62]
    She submitted that as early as 1996, WJ’s brother, WD, had put pressure on the adult in relation to a potential challenge to their late father’s will unless WJ agreed to forgo some of his inheritance.
63. [63]
    Finally, she indicated to the Tribunal that she had told staff at the Gold Coast University Hospital about her concerns for her father’s memory. She repeatedly requested capacity assessments be done by the hospital and by staff at the residential aged care facility.
64. [64]
    Notwithstanding her view about WJ having impaired capacity, WA accepted a significant gift from him on 28 February 2019 of $360,000. She also accepted Enduring Powers of Attorney which appointed her as attorney by document of 24 January 2019 and 5 April 2019. She subsequently advised the Tribunal that in early November 2019 she urged her father to sign an amendment to the April 2019 Enduring Power of Attorney. He refused.
65. [65]
    There was also a 5 page document, in evidence, drafted by the applicant which she pressured her father to sign which he refused.

66. [66]
    Mr Moschella has been WJ’s lawyer for several years. He advised the Tribunal that he gave WJ verbal advice regarding the impact of capital gains tax and he believed that the losses outweighed the gains, although there were no discussions in relation to losses or gains in relation to WJ’s private company.
67. [67]
    He gave evidence that WJ wanted to make sure that there was some legacy to the Lexie generation which was the third generation from his father. He considered WJ to be a sophisticated client having dealt with trusts and estates and been the director of the family companies.
68. [68]
    He advised the Tribunal that WJ gave him instructions in relation to the trust documents and he subsequently prepared drafts and discussed it with him. No draft was provided to WJ prior to the discussion. He commented on WJ’s usual practice to consider matters carefully. He did not believe that WJ was vulnerable. He did not recall WJ being tired when executing the Enduring Power of Attorney in April 2019. On one occasion, he was advised by WJ that he was very unhappy about his discussions with WA being recorded by her without his consent.
69. [69]
    In an affidavit, Mr Moschella advised that apart from WJ’s health problems he found him to be no different from what he had always been. As early as February 2019, Mr Moschella recalls a discussion with WJ indicating that he would like to set up a discretionary trust as he wanted to distribute his estate whilst he was alive and he wanted to limit the chances of WA challenging his estate. He wanted the primary beneficiaries of the trust to be his father’s great grand-children with the trust to be exercised by the trustees unanimously.
70. [70]
    During a discussion in early April 2019, WJ indicated that he did not wish control of any of the various trusts but wanted his brother and nephews to control them.
71. [71]
    Towards the end of his affidavit, Mr Moschella addresses the issue of WJ changing his thinking about WA and what income she was to receive, done without the full knowledge regarding the Queensland Civil and Administrative Tribunal proceedings. He notes that initially, WJ was happy with the prospect of reconnecting with WA but subsequently became more cautious due to her unwillingness to perform certain tasks and her becoming more assertive and overbearing. In particular, Mr Moschella refers to WJ’s disappointment with WA’s apparent sense of entitlement and dissatisfaction with the JS Trust and becoming suspicious about her motives and conduct. By November 2019, Mr Moschella notes that WJ resolved to not involve WA any further in his affairs as a result of her tantrums.
72. [72]
    WJ’s brother and sister gave evidence to the Tribunal. His sister, RC, advised the Tribunal that she sees her brother regularly and has had no concerns regarding his mental state. Her opinion was that the relationship between WA and WJ is poor. RC advised that WJ told her that he was asking WA to assist him regarding his financial affairs. She advised that RC had provided blank Enduring Powers of Attorney for WJ to complete in April and November. She advised that as attorney she has never been asked for consent in relation to any health matter and indicated that apart from his mobility, he seems the same to her including his memory.
73. [73]
    She described the state of the property in which her brother was living as messy with stuff everywhere and that it would take a few days to clean it up.
74. [74]
    WD provided an affidavit to the Tribunal dated 6 October 2020 in which he advises he is a director of and manages nine family companies and is involved in a number of trusts. He advised he has a continuous positive relationship with his brother and talks to him usually twice per week.
75. [75]
    His affidavit indicates an estrangement between WA and WD from information told to him by WJ. In his affidavit, he refers to the clutter in the property at Elanora noting that WJ was doing work in the house and had completed a couple of rooms by the middle of December 2018. He described his brother’s method of placing items appropriate for a particular room on the floor and then sorting into rubbish for dumping and items to be kept. He provided a photograph of the two completed rooms. He advised that the clutter shown in the photographs provided by WA is typical of how WJ kept his residences all his life.
76. [76]
    In relation to decision-making, the affidavit contains an observation by WD that his brother never makes a decision hastily and that he has not noticed any changes in decision-making since December 2018. WD provided information about his brother’s financial needs and indicates that the actual expenditure for the period April 2019 to April 2020 has been just in excess of $50,000.00, noting that if the properties were rented the net income would be $67,000.00.
77. [77]
    WD states that his brother told him that renovations have not been carried out to date because he has had to use the money which he intended to spend renovating the properties to pay his legal costs of the Tribunal proceedings.
78. [78]
    WD’s evidence is that his brother is not susceptible to being misled. He advised that he had spoken to his brother regarding the capital gains tax implications in relation to the transfer of assets to the JJ Legacy Trust and the JS Legacy Trust. WD advised he had asked the accountant questions regarding the capital gains tax implications. He gave evidence that the family companies had lost millions of dollars as a result of the alleged actions of a former lawyer.
79. [79]
    WJ provided information by way of affidavit to the Tribunal regarding his assets prior to 2019 and since 2019. This, along with his oral evidence, established that WJ had a satisfactory understanding of his assets, and the trusts he caused to be established. His affidavit also refers to his estate planning.

The submissions of the adult

80. [80]
    Counsel for WJ argued that whilst WJ may have an imperfect understanding of the law, may be unconventional in his approach to some aspects of his life and there may be differing views about the means he adopted to achieve his financial goals, these matters are not determinative of his capacity.
81. [81]
    The submissions argue that there can be no doubt about WJ’s capacity to understand, absorb and retain information, process that information rationally, reason, and make rational decisions or choices about the steps to be taken or avoided to achieve an appropriate outcome. The submissions argue that there is no persuasive evidence before the Tribunal sufficient to rebut the presumption of capacity and that the applications ought to be dismissed.
82. [82]
    In relation to capacity, the submissions note that the report of Professor Morris and Dr Zuscak of 20 January 2020 confirm that WJ had capacity to manage healthcare decisions, personal and lifestyle decisions and financial decisions, being at low risk of undue influence. These results, it is argued, are confirmed in the August assessment in which Professor Morris and Dr Zuscak questioned WJ as to his particular financial arrangements with reference to the further material provided to them. At that time, it is argued that he was able to recall that he had properties, money in trusts, term deposits and shares. He provided the assessors with a historical account of his relationship with WA and the reasons why he progressively reduced her involvement in his affairs. Dr Zuscak maintained his opinion that he had no concerns whatsoever that WJ had capacity. Counsel argued that the untidy state of WJ’s residence proves nothing because:

    1. (a)
       The uncontradicted evidence was that this is typical of the way he had always lived; and
    2. (b)
       Professor Morris’ evidence that even if WJ had a hoarding disorder it has not necessarily any effect on his capacity.
83. [83]
    Counsel submitted that the opinions of the health professionals are supported by the opinions of Ms McDonald and Ms Dickenson, registered nurses who provided care and support to WJ. Ms McDonald advised the Tribunal that she has never had any indication for concern regarding WJ’s capacity whilst Ms Dickenson advised that she does not have any concerns with WJ’s ability to make decisions and that he will think through and process things as you are talking to him and is not impulsive. The submissions note that the evidence of WJ’s brother and sister who have known him for the longest period of time of all witnesses and continue to see and speak to him regularly was that they had seen no change or decline in WJ’s cognitive state since December 2018.
84. [84]
    The submissions note that Mr Moschella, WJ’s long term solicitor advised the Tribunal that he has always held the belief WJ has capacity.
85. [85]
    In relation to WJ’s current Enduring Power of Attorney which was made on 13 November 2019, the submissions note that the witness, Ms Gallagher, specifically recalled WJ and spent at least 30 minutes with him to ensure he had capacity before he signed the Enduring Power of Attorney. During her time with WJ she asked a series of questions based on the Queensland Department of Justice and Attorney-General booklet. She was satisfied that WJ knew when the powers were to commence, that he could, if he wished, place limitations on the appointments, that the attorneys would have the power to do anything that he could do for himself, subject to any limitations he might impose and he understood when he could revoke the appointments.
86. [86]
    It is submitted that the only evidence against WJ’s capacity is the unqualified opinion of the applicant and that little, if any, weight could be attached to her evidence because of the following:

    1. (a)
       Her selective presentation to the Tribunal of photographs of books in the adult’s possession to support her view that the adult is given to bizarre beliefs.
    2. (b)
       Her acceptance of the sum of $360,000 from the adult on 28 February 2019 despite believing at that time that WJ was suffering from a hoarding disorder which she suspected was comorbid with a lack of capacity.
    3. (c)
       She has not offered to return any of the gift despite maintaining doubts throughout the hearing as to the adult’s capacity.
    4. (d)
       Her accepting her appointment under the April Enduring Power of Attorney despite questioning its validity and despite having serious concerns in April 2019 that WJ was failing to comprehend simple information about his situation, that his speech was being confused and contradictory, that he potentially had hoarding disorder, and he had impaired memory.
    5. (e)
       Despite her concerns, she presented WJ with and requested he sign documents in April 2019 with advantages to her.
    6. (f)
       In November 2019, she encouraged the adult to amend the April Enduring Power of Attorney despite her asserted belief that he lacked capacity to do so on the basis that she was conducting an experiment to determine the level of pressure needed to get WJ to do something.
    7. (g)
       She refused to return WJ’s personal financial documentation despite repeated requests from him to do so, firstly claiming that a Queensland Civil and Administrative Tribunal Case Manager had advised her or told her that she was not allowed to return them because the Tribunal has to make a decision. She subsequently used an alternative excuse regarding her not returning them because she was afraid of WD.
    8. (h)
       She chose to go ahead with the conversation regarding the non-return of his documents showing a disregard for the adult’s welfare as she knew this conversation would cause him considerable distress and prior to the conversation asked that a nurse monitor his blood pressure during this conversation.
    9. (i)
       Finding that WJ lacks capacity will or may assist in impugning the transfer of the assets to the trust resulting in the return of the assets to WJ where they are amenable to family provision proceedings by the applicant upon his death.

87. [87]
    The final submission in relation to capacity was that the evidence of the applicant should not be preferred over that of Professor Morris, Dr Zuscak, Miss McDonald, Miss Dickenson, Mr Moschella, RC and WD.
88. [88]
    During the hearing, the Tribunal raised some matters which were of potential concern about the actions of WJ. These matters were in relation to the establishment of the trusts, the impact of capital gains tax, the lack of engagement by WJ with the NDIS and the demand by WJ that WA repay the gift of $360,000.
89. [89]
    In relation to the trusts, the submissions argue that the JS Legacy Trust Deed was drafted by Mr Moschella and that his evidence was that when drafting clause 7.2 it was not his intention to enable 140% of the income to be applied and that he has accepted the benefit of hindsight that the wording of this clause may not make the expression of WJ’s views clear.
90. [90]
    It is argued that clause 7.2 was neither WJ’s instructions to Mr Moschella in relation to how the net income was to be applied nor the intention of Mr Moschella when drafting the clause. It is argued that this does not cast doubt on Mr Moschella’s capacity nor should it in relation to WJ. Mr Moschella admits to further errors in the document which were likely to be a result of his preparing WJ’s will around the same time. It is argued by counsel that these drafting errors are not a product of the adult’s instructions or actions and do not bespeak want of capacity.
91. [91]
    It is argued that when WJ became suspicious of WA’s motivations he took steps to limit the benefit that she would receive from him and that his goals were to minimise his estate to reduce the possibility of additional fighting over finances. It was this, it is argued, that led him to create the three trusts.
92. [92]
    It is further argued that the JJ Legacy Trust was a conscious, deliberate and rational decision-making process made by WJ in an effort to protect his assets from WA following the significant deterioration in their relationship throughout 2019.
93. [93]
    It is submitted that whilst the effect of these decisions might be unfair to WA they are neither irrational nor do they bespeak a want of capacity.
94. [94]
    In relation to the unconditional nature of the trust, it is noted in the submissions that the trust deeds give absolute discretion to the trustees. It is submitted that WJ was aware of this fact and specifically understood he would not have a controlling interest in the properties and shares once he had divested himself. He was aware that the trustees had absolute discretion within the classes of eligible beneficiaries as WJ wanted to ensure that they had all the power they need to do what was necessary to benefit the Lexie generation. It is further argued that WJ took measures to protect the assets from WA not because of a lack of capacity but rather because of a deterioration in his relationship with her. It is noted he appreciated that he needed and obtained legal assistance to create the trusts.
95. [95]
    In relation to the potential impact of capital gains tax when WJ transferred assets to the JJ Legacy Trust and the JS Legacy Trust it was submitted that WD made enquiries with WJ’s accountant, Mr Michael Sullivan and was advised essentially that there would be no capital gains tax implications for WJ. It is noted that while WJ did not obtain specific advice in relation to potential capital gains tax, he discussed the issue with his brother prior to the creation of the trust in April 2019.
96. [96]
    It is argued that whilst a more financially prudent person may have sought formal written advice on this issue it does not mean that adult lacks capacity. This argument, it is submitted, is supported by Mr Moschella seeing no reason to obtain further evidence about CGT. Dr Zuscak considered that this did not indicate a lack of capacity and that such a failure was either an oversight, something he wasn’t advised appropriately or effectively on, or something that he didn’t feel he needed to seek advice on.
97. [97]
    In relation to the NDIS plan, the Tribunal raised concerns in the hearing in relation to WJ’s lack of engagement with the NDIS. At the hearing WJ explained the reason for his limited engagement related to his frustration in accessing sufficient funds to assist him particularly in relation to the purchase of a motorised wheelchair. He also indicated the COVID-19 pandemic was an added difficulty.
98. [98]
    It is submitted that since August 2020, WJ has made significant progress with his NDIS support plan which was updated in October 2020, that he has engaged an NDIS support coordinator and plan manager and engaged a service provider to assess his needs. It is argued that the Tribunal can be satisfied that WJ has properly engaged with his NDIS plan and has plans to continue this engagement.
99. [99]
    In relation to the gift of $360,000 given to WA on 28 February 2019, the submissions note that WJ did not indicate at the time of the loan that he required WA to repay any part of that sum which was not spent on her mortgage, her HECS debt and air conditioning.
100. [100]
     It is submitted that WJ subsequently changed his mind following the deterioration in the relationship including her refusal to return his personal documents and making an application to the Tribunal. It was submitted that WJ subsequently instructed Mr Moschella to request WA to repay any part of that sum which had not been used for purposes the gift was given. It is argued that this decision as a layman does not suggest a lack of capacity, despite the possibility he may not be legally entitled to treat the payment of the gift as conditional.
101. [101]
     It is submitted that it was not put to Mr Moschella or WD that there was an effort to influence the adult’s decisions. It is also submitted that the applicant has not demonstrated that she is able to provide a qualified opinion in relation to the assessment of capacity and is far from being an independent witness.
102. [102]
     It is further submitted that whilst the adult was or may have been mistaken about the effects of the three trusts, the evidence does not show that he was incapable of understanding the nature and effect when these were explained to him and it is not necessary that the adult understood each and every clause of the trusts with the “eye of a lawyer”. It is further submitted that “the presumption of undue influence arising from the solicitor client relationship affects transactions in favour of Mr Moschella of which there are none.”
103. [103]
     Finally, it is submitted that there is no evidence that WD’s views about the applicant had any effect on WJ’s instructions in relation to the trusts and this was not put to WJ during the hearing.

Submissions of the applicant

104. [104]
     In summary, WA argues that WJ has demonstrated an inability to understand the nature and effect of complex legal and financial transactions he has entered into since December 2018. She argues there is persuasive evidence before the Tribunal sufficient to rebut the presumption of capacity and that the applications therefore ought to be upheld.
105. [105]
     The applicant argues that WJ should be regarded as a vulnerable person in terms of a definition on a Federal government website which places him at a special disadvantage. She argues that the onus is placed on the stronger party to adequately avoid taking advantage of the weaker party. These provisions offer assurance that the person of special disadvantage has the capacity to contract freely and voluntarily which is inherent to protection against exploitation, the provisions being that there should be independent advice sought and received and explained in plain and simple terms prior to any signatures or contractual agreement being finalised. She argues that there is no evidence that this was offered by Mr Moschella or WD as the stronger parties to protect WJ and argues that this is indicative of unconscionable conduct. She argues that there has been no attempt to offer protection by either WD or Mr Moschella noting that it is evident that WJ was experiencing lengthy sleep deprivation when he signed various documents.
106. [106]
     The applicant submits that Mr Moschella, in particular, has repeatedly stated that he doesn’t believe that WJ is a vulnerable person despite being aware of his recent illness and disability.
107. [107]
     She also submits that it is evident that WJ was experiencing prolonged sleep deprivation at the time he signed various documents and points to an observation by a Dr Davis on 14 February 2019 that current concerns are exacerbated by disturbed sleep and fatigue. In her submissions, the applicant refers to an ACAT assessment stating that WJ is in need of full assistance and that his full reliance on others negatively impacts on his ability to make decisions freely and voluntarily through the resultant increase to the possibility of influence.
108. [108]
     She asserts that Dr Davis’s professional opinion is that premorbid factors or disorders were negatively impacting on WJ’s ability to adjust and make balanced decisions in the face of uncertainty and that further assessment is required about these factors. She submits that her qualified opinion is consistent with BlueCare staff and Dr Davis’s observations and conclusions.
109. [109]
     She argues that there is evidence indicating a hoarding disorder which is indisputable and that such a disorder occurs as a result of factors such as information processing deficits and avoidance behaviour. She argues that Professor Morris’s statement that “even if the adult has a hoarding disorder it has no or no necessary effect on his capacity” is professional mispractice in psychiatry.
110. [110]
     The applicant argues that Professor Morris and Dr Zuscak were prevented from conducting an appropriate assessment due to improper briefing by Mr Moschella and that the assessors did not receive the appropriate instructions.
111. [111]
     She submits that WJ’s inability to recognize a problem with CGT and to obtain and receive information on CGT demonstrates a lack of mental abilities required and therefore sufficient to rebut capacity however neither examiner seemed to be aware of this.
112. [112]
     She submits that the conclusions or Dr Zuscak’s report are invalid because Dr Zuscak relied on WJ’s average score on verbal cognitive assessment (KBIT). She argued that WJ’s ability to read even simple language let alone complex legal and financial documents has not been assessed. She further submitted that neither examiner acknowledged the extensive time delay between WJ’s signing of various documents and when the capacity assessment was conducted.
113. [113]
     She again argues that it is evident that WJ was severely sleep deprived for several months leading up to and including April 2019 and was regularly experiencing anxiety, disturbed sleep, insomnia and symptoms of depression at that time. The applicant’s interpretation of her father’s cognitive profile is that it is indicative of a relatively impaired ability for language comprehension i.e. a reduced ability to communicate, understand and interpret spoken and written communications. She argues that the current informal processes for decision-making are inadequate and that WJ is left at unreasonable risk of harm and that his interests therefore will not be adequately protected.
114. [114]
     In relation to the Tribunal’s concerns about the NDIS plan, the applicant submits that WJ has procrastinated in accepting NDIS standing contracts for some twenty months and that no acceptance has yet occurred.
115. [115]
     In relation to the Enduring Powers of Attorney, WA submits that the validity of an Enduring Power of Attorney is primarily dependant on execution in accordance with the guidelines and that Mr Moschella failed to adhere to the guideline procedures for the April Enduring Power of Attorney. She submitted that the witness for the November Enduring Power of Attorney, Ms Gallagher, did adhere to the guidelines however noted WJ’s inability to understand how attorneys are appointed and powers limited.
116. [116]
     For reasons that will become obvious later in these reasons, it is not necessary to discuss the earlier Enduring Powers of Attorney.
117. [117]
     In relation to the November Enduring Power of Attorney, WA submits that no evidence was provided as to why WJ indicated successive appointments when Ms Gallagher’s stated her notes of their discussions stated that WJ wanted availability but the attorneys to work together.
118. [118]
     She submitted that WJ has demonstrated an inability to apply appropriate limits in appointing an attorney. The Applicant noted that WJ affirmed that his November Enduring Power of Attorney was based on discussions with his siblings, that he acknowledged that the decision was made without consideration of the Queensland Civil and Administrative Tribunal application content and that a fourth Enduring Power of Attorney had been drafted by solicitor Macallum.
119. [119]
     In relation to the gift of $360,000.00 given to the applicant, she states that WJ’s capacity to give the gift may not be in question however his capacity to freely and voluntarily make the decision to demand it back is in question, referring to Mr Moschella’s affidavit that WJ pursued the return of the funds following his advice and encouragement to do so. She argues that the letter requiring the return of the funds demonstrated that WJ was easily influenced under Mr Moschella’s advice.
120. [120]
     The applicant makes a number of submissions in relation to the JS, JJ and JM Legacy Trusts. In particular, she criticises Mr Moschella for misrepresenting the nature and effect of the documents and submits that the fact that WJ still fails to perceive this is the strongest evidence as to why his capacity should be rebutted. She argues that despite the specific instructions of WJ that the trusts are to be created for benefits that go to the Lexie generation, they are not fit for purpose. She submits that WJ has consistently demonstrated an inability to understand the nature and effect of the three trusts, including the unconditional nature of the trust deeds.
121. [121]
     She says that because WJ’s understanding is consistent with the inaccurate version of the nature and effect of the documents given by Mr Moschella and WD that his understanding is predicated on blind faith in their advice. She argues that the evidence given by WJ indicates that he believes he retains oversight over assets no longer owned by him including being able to contract with a tradesmen to make renovations on properties owned by the JS Legacy Trust.
122. [122]
     She further submits that WJ acknowledged that he did not consider alternative trust structures and was not advised that such existed. The applicant argues that this demonstrates the coordinated efforts of WD and Mr Moschella to deprive WJ of the opportunity to consider alternative structures. In her submissions, she infers a conflict of interest between WD and Mr Moschella and goes on to argue there was undue influence. She argues that WJ’s uncertainty regarding his future should have provided sufficient consideration for him to retain additional assets for unseen problems.
123. [123]
     In relation to the JS Legacy Trust, the applicant submits that the need to have liquid funds to renovate the properties should have been a factor taken into account prior to the transfer of all of the residential assets into the trust as cash liquidity would be a problem.
124. [124]
     The applicant submits that the advice provided by WD to WJ regarding the nature and effect of the trusts was false, misleading or otherwise contained significant conflict of interests.
125. [125]
     In relation to the capital gains tax implications of various transfers to the trusts, the applicant submits that it is unequivocal that WJ gave no consideration to the impact of the capital gains tax. The applicant submits that there is sufficient evidence to rebut each element of capacity because of WJ’s “ongoing failure to understand the nature and effect of decisions, the unconscionable conduct of undue influence of others depriving WJ of the ability to make decisions freely and voluntarily and his inability to communicate his decisions in written terms or else was deprived of effective by the unconscionable conduct and undue influence of others.”
126. [126]
     In relation to rebutting the validity of the Enduring Powers of Attorney and whether the Tribunal should decide WJ’s capacity for execution is rebutted, she submits that WD’s conduct in the matters referred to is contrary to the standard expected of an attorney and therefore his conduct casts significant doubt on his fitness for appointment. RC also witnessed all transactions and deed documents in these matters without raising any concerns with WJ or the Queensland Civil and Administrative Tribunal and therefore her conduct is also contrary to the standards expected of an attorney. She wishes the Public Trustee of Queensland to be appointed as administrator and the Public Guardian to be appointed as guardian.
127. [127]
     She also requests that the Tribunal make orders to report Dr Zuscak and Professor Morris to APRA and Mr Moschella to the Law Council of Australia and Legal Services Commission, respectively and an order that a claim be served for compensation on behalf of WJ with Mr Moschella as the respondent.

Tribunal’s conclusions

128. [128]
     In large part, the Tribunal accepts the submissions of the adult, WJ and does not accept the majority of the submissions of the applicant, WA. The Tribunal makes the following findings of fact:

     1. (a)
        WJ was born on 10 September 1956 and lives in residential aged care on the Gold Coast.
     2. (b)
        WJ had surgery in December 2018 for a tumour on his spine secondary to prostate cancer and has paraplegia. He was given a life expectancy of 12 to 18 months at that time.
     3. (c)
        WJ has a daughter WA born in 1988.
     4. (d)
        WA has had irregular contact with WJ since she was 9 years old until WJ’s hospitalisation in December 2018.
     5. (e)
        During brief periods of WA’s childhood, WJ would see WA for occasional events.
     6. (f)
        From late 2018, when she was 30, WA came back into WJ’s life and he was prepared to get to know her and commenced involving her in his financial affairs.
     7. (g)
        WJ gave WA a gift of $360,000.00 for her to pay off her mortgage and pay for other debts and goods.
     8. (h)
        WJ sought advice from his solicitor in early 2019 in relation to estate planning including the establishment of trusts.
     9. (i)
        WJ made three Enduring Powers of Attorney (‘EPA’) between January and November 2019. A fourth was commissioned but never completed.
     10. (j)
         The EPAs progressively diminished WA’s role in decision-making should WJ lose capacity.
     11. (k)
         The relationship between WJ and WA deteriorated during 2019 as a result of a number of factors including: –

         1. WA not returning some of WJ’s financial documents as he requested;
         2. WA’s verbal harassment of WJ regarding the trusts and the estate planning which resulted in her potential inheritance being reduced;
         3. WA’s increasing interest in family business matters; and
         4. WA bringing the Queensland Civil and Administrative Tribunal application in October 2019 and not advising him.
     12. (l)
         WA believed WJ’s decision-making was compromised during 2019 as a result of sleep deprivation, anxiety and undue influence.
     13. (m)
         WA sought to have a guardian and administrator appointed for WJ and to have the latter two EPAs declared invalid for want of capacity.
     14. (n)
         WJ has a satisfactory understanding of his financial position and of the assets he has transferred into three trusts.
     15. (o)
         WJ has the ability to obtain information and advice about his personal and financial matters, analyse it, and weigh up his options for decision-making.
     16. (p)
         WJ is able to make decisions freely and voluntarily.
     17. (q)
         WJ’s decisions to limit WA’s involvement in his affairs, to place his assets out of her reach and to change his mind about how his assets would be managed were conscious decisions arising from WA’s behaviours towards him.
129. [129]
     All adults in Queensland are presumed to have capacity for decision-making. In this matter the onus is on the applicant, WA to convince the Tribunal that her father did not have capacity to execute an Enduring Power of Attorney in April 2019 and then in November 2019. There is also an onus on her to convince the Tribunal that he does not have capacity now to make decisions about his personal and financial matters.
130. [130]
     In the Tribunal’s view she has failed to do either of these. The Tribunal does not accept her submissions that the capacity assessors, Dr Zuscak and Professor Morris, have failed in their responsibilities to conduct an appropriate assessment. The assessment occurred in 2020 and broadly relates to capacity at that time.
131. [131]
     The Tribunal considers that the assessors were quite comprehensive in the assessments they undertook and the only potential criticism could be that they did not sufficiently explore with him the extent to which he understood the ramifications of any capital gains implications from any of the transactions he made by transferring assets into the various trusts. This does not mean that he did not. There is evidence that WD sought advice and passed it on to WJ.
132. [132]
     The conclusions made by the assessors are consistent with the views of the trained nurses and others who had contact with him in hospital and who provide care to him now in the residential aged care facility. None of those health professionals have indicated that they have any concerns about WJ’s capacity. Indeed, they all say they have had no concerns. None raised any issue about sleep deprivation effecting WJ’s cognition.
133. [133]
     In addition to this, WJ’s solicitor of many years, Mr Moschella, has given evidence that he did not consider that there had been any change in WJ’s ability to make decisions.
134. [134]
     This is also reinforced by his brother and sister who gave similar evidence to the Tribunal.
135. [135]
     The evidence of Professor Morris is that even if the Tribunal was satisfied that WJ has a hoarding disorder that does not necessarily mean that he is not capable of making decisions for himself.
136. [136]
     The evidence of his brother and sister are that he generally lived in an untidy environment. There was evidence from WD that in fact, WJ was working through the rooms in the Elanora property and there was evidence of at least two rooms being in a neat and tidy condition following work being done by WJ.
137. [137]
     The Tribunal takes the view that it is not necessary for an adult to have full and detailed knowledge of all of their assets and liabilities in order for them to be able to make decisions about their financial matters.
138. [138]
     That WJ was not able to give a total picture of the way in which the trusts operated does not, in the Tribunal’s view, amount to a lack of capacity. He had a good understanding of his assets both pre and post the establishment of the trusts.
139. [139]
     He was very clear in his intentions in relation to the establishment of the initial trust and the subsequent trusts, despite his imperfect understanding of some details.
140. [140]
     There is no doubt in the Tribunal’s mind that the relationship between WA and WJ deteriorated significantly during 2019 primarily as a result of WA’s behaviour towards her father evidenced by the various recordings. The Tribunal considers her actions as bordering on harassment and can fully understand why WJ made the decisions he did to progressively remove her from any financial dealings in respect of his assets. Some of her interactions with her father do her no credit.
141. [141]
     The fact that he changed his mind on a number of occasions after expressing certain views to WA is not evidence that he lacks capacity. The Tribunal considers that it is the result of a deteriorating relationship.
142. [142]
     In relation to the November 2019 Enduring Power of Attorney, the evidence by the witness Ms Gallagher is very strong. She conducted an appropriate interview with WJ to ensure that he understood the various elements of section 41 of the Powers of Attorney Act 1998 (Qld). There is no doubt in the Tribunal’s mind that as a result of the interview she conducted with WJ that he understood the nature and effect of the document including the various matters set out in section 41(2) of the Act.
143. [143]
     That document is therefore not invalid for want of capacity.
144. [144]
     Section 50 of the Act provides that a principal’s Enduring Power of Attorney is revoked to the extent of any inconsistency by a later enduring document of the principal.
145. [145]
     Given that the later document in November is inconsistent with the earlier document the later document prevails.
146. [146]
     As a result, the Enduring Powers of Attorney made in January and April 2019 are revoked. It is not necessary for the Tribunal to consider WJ’s capacity to execute those documents. There is little to no evidence, however, that WJ did not have capacity to execute them.
147. [147]
     Given that the Tribunal finds that WJ has a valid Enduring Power of Attorney and given that the Tribunal finds that WJ has capacity for personal and financial matters, the application for guardianship and administration must be dismissed. There is no need for the Tribunal to consider the appropriateness of the attorneys because on the evidence before the Tribunal, no decisions have been made by the attorneys under that Enduring Power of Attorney so no claims can be made as to whether the attorneys have not acted honestly and with reasonable diligence or not applied the general principles. There is no evidence that they would not do so.
148. [148]
     The Tribunal accepts the submissions made by the adult and outlined in paragraph 86 of these reasons from subsections (a) to (i) relating to the evidence of the applicant.
149. [149]
     In reaching its conclusions, the Tribunal has carefully considered the applicant’s submissions and notes the following other flaws:

     1. (a)
        She submits that a report of 22 February 2019 by the ACAT indicates WJ needs full assistance but fails to add the reasons for this statement as being due to his impaired mobility, based on a comprehensive assessment undertaken on 21 February 2019 in which it is stated “[WJ] requires full assistance to manage his finances and correspondence due to his reduced access to the community”. This assessment also records he never has problems with long or short term memory or disorientation but is regularly anxious and shows occasional agitation. The report goes onto say “[WJ] was alert, fully oriented and appropriate at assessment. He has undergone a major life changing event and is still coming to terms with his diagnosis, losing his mobility and his independence. WJ has been under the care of a Psychologist whilst in GCUH and has been noted to have adjustment issues – he is struggling to cope with the uncertainty surrounding his future. He states he is also frustrated by the slowness of his progress and the lack of modern technology and equipment in hospital and feels let down by this. He requires significant ongoing emotional support and would benefit from a caring environment.” This does not mean he did not have capacity in February 2019.
     2. (b)
        She submits that Mr Moschella and WD exerted undue influence over WJ in relation to the execution of the trusts. There is no evidence of this. The applicant posits WJ was vulnerable due to his medical condition, anxiety and tiredness. It was, however, WJ who initiated the trust documents and who gave his solicitor the instructions.
     3. (c)
        The applicant cites a large number of the Queensland Civil and Administrative Tribunal cases to argue her position. These are largely irrelevant as the facts and circumstances in those cases are different to those of WJ. For instance SJWN [2013] QCAT 136 relates to an interim order only, HWR [2010] QCAT 349 refers to mischievous advice of which these is none here, and RV [2019] QCAT 384 in which there is culpable evidence of undue influence. She also refers to FAJ [2013] QCAT 703 in which it was observed that the “existence or absence of a diagnosis of a medical condition is not however determinative of impaired capacity”. It is merely one factor to be considered. In BA [2012] QCAT 228 the Tribunal found the EPA witnessing process flawed. There is no such problem with the November 2019 EPA.
     4. (d)
        There is no evidence that Mr Moschella has misrepresented the nature and effects of the trusts nor that WJ’s understanding of the trust documents are predicated on his blind faith in Mr Moschella or WD. The deeds give wide discretion to the trustees which is consistent with WJ’s understanding, notwithstanding the Lexie generation may or may not benefit ultimately given the other potential beneficiaries.
     5. (e)
        Whilst alternative trust structures may not have been considered, this does not lead to a conclusion that WD and Mr Moschella coordinated their efforts to deprive WJ of an opportunity to consider alternative structures or that there was undue influence.
     6. (f)
        There is no evidence that WJ did not understand how attorneys were appointed and how their powers could be limited. Ms Gallagher who witnessed the November 2019 EPA was very clear that WJ did not wish to place any limits on the attorneys in executing their powers. The document appoints RC and WD successively in the order named for personal/health matters subject to availability but WJ desires that they both be aware of the issue and decision. Financial decisions are to be made jointly. This distinction in decision-makers itself is an indication of how WJ thought about how the powers should be given.
     7. (g)
        The Tribunal considers it irrelevant to capacity that he discussed the November 2019 EPA with his siblings prior to execution or that WJ knew about the Queensland Civil and Administrative Tribunal application.
     8. (h)
        There is no evidence that the letter requiring the return of gift funds was the result of WJ being easily influenced by Mr Moschella. His affidavit refers to advice regarding possible recovery and a subsequent instruction from WJ to send a letter of demand.
     9. (i)
        The material from Dr Davis from February 2019 relied on by the applicant regarding pre-morbid factors and the need for her father’s assessment does not rebut the presumption of capacity.

Matter of concern

150. [150]
     WJ’s solicitor wrote to Dr Zuscak on 23 December 2019 and 13 January 2020 to arrange the capacity assessment. Whilst the applicant raised concerns about Mr Moschella requesting the report, this is not of concern to the Tribunal.
151. [151]
     What is concerning, however, is the approach made by Mr Moschella in his request. The Tribunal considers his language is inappropriate in part of the background he gave to Dr Zuscak.
152. [152]
     The last two paragraphs of the quote below gives the Tribunal concerns as it seeks to disparage the applicant and is not relevant to the assessors’ considerations:

I am instructed late last year [WJ] was diagnosed with prostrate cancer which had progressed to form a tumour in his spine and as a result has lost the function in his legs. When he was first diagnosed he wasn’t given long to live.

It appears that upon hearing this, his long estranged daughter, [WA], made contact with him which, from our point of view, appears to be a blatant attempt to acquire or inherit his estate. During this initial period of contact I am instructed [WJ] gave [WA] significant amounts of money to pay out her education debts and allow her to own her own home outright.

Since receiving hormone therapy [WJ’s] PSA levels have dropped significantly and his prospects for a longer life span have increased. It appears [WA] wasn’t happy with this news or being informed that he didn’t intend leaving all of his estate to her. Since then she has taken his records and papers from his former home and refuses to release them claiming to be protecting him due to his purported vulnerability.

153. [153]
     Finally, given the extensive previous estate of WJ, the Tribunal considers it would have been helpful to the assessors and the Tribunal if Mr Moschella  had given a fuller picture of WJ’s financial position to the assessors pre and post the establishment of the trusts rather than simply referring to “multi-million dollar decisions regarding his finances”.
154. [154]
     These factors do not affect the Tribunal’s decisions as the Tribunal accepts the evidence of the assessors that they kept an open mind and obtained further and fuller  information about WJ’s finances and his intentions. The applicant also supplied the assessors with hundreds of pages of additional material.

Further observation

155. [155]
     WA made the following comment in an email when sending her final submissions to the Tribunal:

Despite being self-represented, I’ve reviewed over 47 GAA QCAT precedents (and similar) in the last year. I found not one case where the Hearing extended beyond eight hours. Hearings of 6 days (over 26 hours) with over 1000 pages of evidence, is sufficient signalling (even to a ‘layperson’) that a substantive case exists.

156. [156]
     The Tribunal notes that a number of rarely seen factors in Guardianship matters contributed to the length of the hearing, including: -

     1. (a)
        The many hundreds of pages WA submitted as part of her case including submissions at various times during the proceedings, photographs, lengthy statements with extensive appendices and transcripts of taped conversations with her father;
     2. (b)
        The need for breaks for WA to compose herself when she became distressed during the hearing, when either questioning witnesses or during cross-examination;
     3. (c)
        The need for the presiding member to intervene regularly when WA was questioning the witnesses because she had difficulty forming her questions;
     4. (d)
        The adversarial nature of this proceeding;
     5. (e)
        The unusually large number of witnesses; and
     6. (f)
        The extensive examinations of WJ and WA.