RB[2021] QCAT 396

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In 2015 the Tribunal first appointed a guardian and administrator for RB following a stroke which has significantly impaired his communication and cognition. There have been five hearings in this matter since that time, and three changes of appointed guardian and administrators. The Tribunal is reviewing these latest appointments. A periodic review of the appointment of a guardian under the order of 26 March 2019 which appointed the Public Guardian, (PG), as guardian for decisions about with whom RB has contact, and review of appointment of administrator made under the order 26 May 2016 which appointed the Public Trustee (PTQ) as administrator for all financial matters for RB.
2. [2]
   In response to these applications, the Tribunal received applications from BB seeking that the PG and PTQ remain appointed.
3. [3]
   And a further application from CN proposing herself in these appointments.
4. [4]
   At the commencement of the proceeding, CN handed up an Enduring Power of Attorney signed by RB, dated 10 November 2020.  As this is a matter bearing on the listed matters, the Tribunal raised an application for an order about an enduring power of attorney to be heard today, and provided RB with an amended notice of the proceeding which included this matter. I abridged time in accordance with section 61of the Queensland Civil and Administrative Tribunal Act 2009  to enable this matter to proceed with the other matters. I am satisfied that RB had notice of the hearing.
5. [5]
   The Tribunal engaged a French interpreter for the proceeding who attempted to translate the discussion for most of the proceeding. It was difficult to gauge how much RB had understood of matters discussed. At the commencement of the proceeding RB indicated non-verbally that he did not need a French interpreter, however, the Tribunal noted that the documentation before it indicated that he had limited understanding of English or French. I asked the parties to comment, and BB suggested that his English was very limited and would benefit from the assistance of the interpreter. The Interpreter continued to assist the Tribunal at various times throughout the proceeding.
6. [6]
   RB sat with his back to the interpreter for much of the hearing, and would frequently put his hand up to indicate that he wanted her to stop translating.  His body was oriented to CN, and gave the impression of seeking CN’s permission or confirmation to respond to the Tribunal’s questions. On many occasions he refused to look at the Presiding Member and turned his body toward on CN.  He was prompted by CN to hand up a sheet of paper which stated that he wanted CN to be his administrator. I asked if someone had given him this paper to hand to me. It is not clear to me that RB understood the content of the paper nor the question. CN was observed to interject to when I asked RB questions on multiple occasions.

The Enduring Power of Attorney

7. [7]
   The first matter I must deal with relates to the purported Enduring Power of Attorney signed by RB on 10 November 2020, handed up at hearing by CN.
8. [8]
   This document was signed when substitute decision makers had been appointed by the Tribunal for both personal and financial matters. The document was executed after there was consistent evidence from previous medical practitioners in the reports of his general practitioner^[1] and an Occupational Therapist,^[2] and Specialist Geriatrician,^[3]  that RB was not capable of understanding the full nature and consequences of an enduring power of attorney, and was not able to make decisions freely and voluntarily.
9. [9]
   RB responded “no” when asked whether he knew what the document was, didn’t recall signing it, and did not know the effect of it. Again, extent of his understanding of the questions was unclear, and his responses are likely to be unreliable due to his communication deficits. By virtue of his difficulty engaging with the Tribunal to discuss this, and in light of his expressive and receptive aphasia, I can find no basis that the level of understanding required under s 41 of the Powers of Attorney Act 1998 (Qld) exists. It is invalid in so far as the Tribunal had appointed substitute decision makers because RB lacked the capacity to make these appointments at the time or his stroke and there is no evidence before the Tribunal that his condition has improved. And I find therefore this enduring power of attorney is invalid and make a declaration accordingly.
10. [10]
    The document is written in handwriting consistent with CN’s handwriting in her application and related documents. It is particularly concerning where CN has participated in each of the five proceedings before the Tribunal since April 2015 around RB’s substituted decision-making arrangements. This document appears to have been on foot since November 2020, purporting to give immediate financial power to CN, as well as personal/health matters. It has not previously been brought to the Tribunals attention, despite a multitude of written documentation filed by CN. 

Review Process

11. [11]
    When the Tribunal reviews the appointment of an administrator or guardian it must apply s 31 of the Guardianship and Administration Act 2000 (Qld):

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

       1. continue its order making the appointment; or
       2. change its order making the appointment, including, for example, by—
          1. changing the terms of the appointment; or
          2. removing an appointee; or
          3. making a new appointment.
    4. (4)
       However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers—

       1. the appointee is no longer competent; or
       2. another person is more appropriate for appointment.
    5. (5)
       An appointee is no longer competent if, for example—

       1. a relevant interest of the adult has not been, or is not being, adequately protected; or
       2. the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
       3. the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or
       4. the appointee has otherwise contravened this Act
12. [12]
    Section 31 requires the Tribunal to consider of grounds for appointment continue to exist, which requires turning my mind to the grounds for appointment under s 12 of the Act.
13. [13]
    Section 12 states:

Appointment

1. (1)
   The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—

   1. the adult has impaired capacity for the matter; and
   2. there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
   3. without an appointment—
      1. the adult’s needs will not be adequately met; or
      2. the adult’s interests will not be adequately protected.
2. (2)
   The appointment may be on terms considered appropriate by the tribunal.

Capacity

14. [14]
    As the tribunal has appointed a guardian or administrator previously in the decisions under review, pursuant to section 11(2) of the Act it is not required to presume the adult has capacity.  However, I have found it relevant to review the capacity evidence before me given existence of the enduring power of attorney that has arisen during these appointments.
15. [15]
    The capacity evidence on the file includes a health professional report from Dr Peter Simos dated 12/2/2015. That report notes that RB has a receptive and expressive aphasia because of a stroke in 2015. He noted that he also has a pre-existing mild intellectual disability and was unable to make decisions freely and voluntarily. He was noted to have no understanding of the elements required to execute an enduring power of attorney. He expressed the view that RB could not make simple decisions in personal health, lifestyle/accommodation, or financial matters.
16. [16]
    He stated that RB was not able to understand his needs around accommodation and lifestyle or make decisions around these. He further stated that RB would not be able to participate in the management of his finances or property. His report noted that there were concerns about his finances being accessed at that time.
17. [17]
    The Occupational Therapy assessment of Megan Wallace dated 24/3/015 expressed the view that RB was not able to make decisions freely and voluntarily. She stated that he was not able to clearly articulate who controlled his finances or the details of how bills were shared with CN. She reported that she considered that RB was influenced by CN stating “Roger reports that (CN) is a supportive person, however, she has not provided the practical support requested whilst RB has been in (Rehabilitation unit). (RB) has reported the (CN) has a key to his house, however, she has not been able to be contacted. messages were left asking her to contact the OT, and no returned phone calls were received... The senior social worker has requested (CN) bring in some clothes and shoes for (RB) however this has not occurred. (RB) has been provided with clothes by the rehabilitation unit since admission as (CN) did not bring in clothes for (RB)”.
18. [18]
    Dr Lillian Wong, Specialist Geriatrician reported in a report of 24 March 2015 that RB was diagnosed with an intellectual impairment and vascular dementia with significant language dysfunction and poor comprehension. He has a severe aphasia. All communication needs to be simple with careful monitoring for misinterpretation. She indicates that he does not understand any of the requirements to understand and the nature and effect of an enduring power of attorney. She reported that RB’s disability was likely permanent.
19. [19]
    Medical certificate of RB’s current general practitioner filed by CN indicates that his condition has not deteriorated.^[4] There is no medical evidence before the Tribunal that indicates any improvement in RB’s condition following the stroke, and I therefore rely on the 2015 reports.
20. [20]
    Despite CN’s verbal assertions that RB can make his own personal decisions, I find that there is no evidence to support any significant recovery from the stroke’s impacts. It is apparent that he continues to have significant language deficits affecting his ability to understand information and to communicate those decisions. The evidence indicates he lacks an understanding of his needs or the ability to fully communicate about these needs. I find that the medical evidence indicates that RB, who had a pre-existing intellectual disability, has suffered a stroke which has significantly impaired his communication and impacts of his understanding of the nature and consequences of decisions about his personal and financial matters, and his ability to understand communications and express his views and wishes clearly. I find the evidence indicates that he is unable to make decisions freely and voluntarily and his total dependence on others in this regard renders him very vulnerable to influence. 
21. [21]
    I am satisfied that he continues to have impaired capacity for personal health lifestyle accommodation and financial matters.

Guardianship - Is there a need for decisions which require a guardian to be appointed to ensure that RB’s needs are met, or interests adequately protected?

22. [22]
    CN outlined to the Tribunal the many roles that she undertakes as carer for RB in support of his need for a guardian. Her application states that RB can make decisions about personal matters himself, but that she should be appointed his guardian. In her reported discussion with the Public Guardian, she stated that he did not need a guardian.^[5]  CN’s position is unclear in light of this, but notes she seeks to be appointed in lieu of the Public Guardian.
23. [23]
    She explained the Tribunal that she takes RB to the dentist, and specialist, does his cleaning, shopping, and cooking twice each day and reads to him, takes him to community garden and church activities. She said she had been doing this for 7 years with no respite and “only for $220 per week”. The Tribunal made the distinction between functions of a carer and those of a guardian. It was not apparent what personal decisions CN thought needed to be made, given the opportunity to address the tribunal on these issues. CN stated that she has known RB for over 21 years and they have relied on each other for support, care and affection since they met in early 2000. She stated that she had attended to all medical requirements for RB including pathology tests, hearing and dental needs and other medical appointments and needs.^[6] It is apparent that CN as well as carer, acts as informal decision-maker for RB in matters in personal health and lifestyle decisions outside of the terms of the current guardianship order which is limited to contact decisions.
24. [24]
    CN provided several letters of support from friends in her church and personal network. Her long-time friend CS, who lives in Darwin, was in constant contact with CN and RB. CS had stated that CN has not take advantage of RB since he knew them together since 2000. He further stated CN had taken good care of RB’s medical needs.^[7] The Pastor from the church that RB and CN attend also provided a statement confirming that RB’s daily care is met by CN and he stated that she pays for medical services out of her own money (note the Public Trustees evidence that this is reimbursed to CN).^[8] Another church attendee who helps around the garden said, “it is my observation that CN has been doing a good job looking after RB and there are no signs of abuse.”^[9]
25. [25]
    BB, RB’s sister, strongly opposes CN as guardian and advocates for broader scope of decision-making authority of the Public Guardian. BB provided relevant background. RB was born in France and has had a learning disability since birth. He had attended special school during his childhood due to his intellectual disability and is very vulnerable because he has limited English. She indicated that his father, until his mid-thirties, managed all of RB’s finances and medical matters. In the past she could ring him at home and talk to his mother via landline in the nursing home, but this was no longer possible due to the landline being disconnected. BB stated that in the past CN has taken the telephone off RB when they have been speaking.^[10] She indicated  she considered that CN was isolating RB from her contact.
26. [26]
    BB outlined extensive concerns about RB in his current living arrangements: essentially arguing that RB is living in inappropriate circumstances and is being taken advantage of by and abused by CN to his detriment. She submitted that RB was under CN’s influence and was frightened of her, and he does as she asks. She stated that BB’s contact with RB has been obstructed by CN, with the landline being disconnected, and his contact with his dying mother in a nursing home has been blocked. Referring to RB’s initial admission for the stroke in February 2015, she said at that time she was not aware of CN’s presence in is life at that time, as CN did not attend the hospital during his long stay admission. It is relevant that around that time, the Tribunal appointed BB initially as guardian and administrator for RB, until she sought leave to withdraw due to personal circumstances.
27. [27]
    BB made an emotional plea to the tribunal to recognise that RB was in an abusive situation and needed assistance to live with some quality of life. She made several allegations about the care provided by CN:

• She told the Tribunal that RB is being verbally abused by CN.^[11]
• That RB is like a child, they said he “just does what she says. She stated that another person may be living on RB’s premises. CN provided photos that show another person’s car is parked on RB’s property, and submitted that neither CN nor RB can drive.^[12]
• That neighbours report having witnessed CN “screaming at RB  and using mean and abusive language directed to RB.  That RB’s property is locked up under the house and he is not allowed to access it.
• That RB is living in a house cluttered such that the ambulance was not able to access it to provide urgent medical help, and neighbours have expressed concerns that the home may be a fire hazard.^[13]
• BB and AC submitted that they want the Tribunal to appoint the public guardian to find RB suitable accommodation with professional care because they consider he is suffering to psychological abuse in his current circumstances.^[14] They assert the guardian needs to provide services to assist him to keep his house clean and tidy, to assist him to have his communication restored with his sister, and to make decisions about RB being in a safe environment or consider alternative accommodation and care arrangements. She alleged that CN is isolating RB from her to increase her influence over him.

28. [28]
    BB relied on evidence before the Tribunal that RB was experiencing abuse in his current circumstances, referring to the evidence of neighbours and community members that have approached the Tribunal registry with concerns about RB’s treatment. These documented contacts include:
29. [29]
    Statements from N1, a neighbour of CN (that is, CN’s in a different suburb to RB’s home, not RB’s neighbour), who in an email to the Tribunal stated:

“My observation of the treatment meted out to (RB) by (CN) who claims to be his girlfriend has failed to show an improvement in attitude.  … she lacks being kind to him due to her demanding attitude towards RB who is living under an atmosphere of tension and pressure”^[15]

30. [30]
    In a phone call to the registry on 21 June 2021, documented on the file, N1 stated that he was very concerned for RB’s well-being and RB was experiencing continuous abuse and horrible treatment. He stated that he thought the government was failing RB. He was documented to have said “(CN) is money hungry and latched on to Roger who is extremely vulnerable and is exploiting him, she brings his furniture from his place to her place.”^[16]
31. [31]
    N2, a neighbour of RB’s, also contacted the Tribunal on this date. N2 told the registry that: CN is extremely abusive toward Roger and moved in with him a few years ago to be his carer, but is now claiming to be his de-facto but there is a question about this claim. She stated that RB was in an environment of constant abuse. She said: “And yet CN still lives with and abuses RB. So what is the government doing?^[17]
32. [32]
    N3, another neighbour of RB, contacted the Tribunal, stated that CN came in as his carer and now states that she is his partner, but there is another male that stays with them at (RB’s home). He said that when RB is in hospital CN does not visit him, and her excuse is that she cannot drive but there is public transport.  N3 raises a concern that RB did not have a partner prior to his stroke and that it was strange for CN to claim that she was in a relationship after the strokes.  He observed that CN yells and shouts at RB and if he pees himself the abuse is awful. He said RB is scared of her and does what he is told, is always telling him what to say, she trains him like parrot, she is always telling him what to say. “Poor RB always waits for her to speak and he agrees.” N3 said he is not sure RB even understand what is going on.  N3 said CN “lives off RB… free food… free power… and saves her pension money, and does the other man staying there pay anything”, he questioned.  N3 said was recorded to say “if a dog were living under those conditions the RSPCA would remove it”. He expressed strong concern about CN as RB’s carer. He further questioned “who gave permission for CN to move in in the first place”. He said RB does not have the ability to make decisions. Prior to the strokes he never had any woman stay with him. He expressed his view that CN is “taking advantage of the helpless” He expressed the view that RB needs proper care and is not receiving it in his current circumstances.^[18]
33. [33]
    BB also pointed to a contact from a local Justice of the Peace evident on the file. The Tribunal was contacted on 13 May 2021 by a community-based Justice of the Peace (JP1) who provided his name and contact details. He informed the registry officer that he has been approached by CN and RB for witnessing a document. He relayed the following concerns:

CN was “pushing and bullying RB and it is obvious that RB has no capacity and was copping the abuse. CN has made a will for RB putting herself as benefactor even though he has no capacity for a will…. It was obvious CN has radical behaviours of her own. CN was just pushing and shouting to do as she wants. JP1 said … “This poor man needs to be looked after by professional people”. He said he “feels the community owes Roger special care and not to be left with an abusive and bullying person…”^[19]

34. [34]
    BN, RBs brother, expressed the view opposing CN’s applications stating that CN did not have the ability to do what is right for RB. He stated that RB’s well-being was the most important and the Public Guardian and Public Trustee were the right people for the job.^[20]
35. [35]
    It is noted that CN strongly denies allegations that she is abusive toward RB, and relies on the evidence of her character witnesses previously noted. In her filed statement^[21]she said she has never abused RB, and that BB had a vendetta against her. She said she has nursed him to good health and his doctor confirms she takes good care of him and refers a medical certificate from RB’s general practitioner that states this.^[22] She also noted that the Public Guardians delegate had made comments to her the RB was well looked after on their visit to their home.^[23]
36. [36]
    She denies that she has obstructed BB’s contact with family. CN claims that she has facilitated contact with BB whenever she calls, but despite her encouragement RB does not want speak to anyone.^[24]  She stated that RB does not want to speak to BB, that she speaks in an authoritative tone and he does not like it. She noted that he had regular visits from his brother. CN stated RB’s mother has dementia and cannot recognise him or her other children.  CN said the landline had been disconnected because Telstra had called to speak with RB and because he could not respond cut off the service. She stated that she did not disconnect the phone line. She strongly denied that there was anyone else living on the premises of RB’s house. She said Rb’s safety has never been at risk.^[25]
37. [37]
    The Public Guardian reported to the Tribunal that it had had “minimal contact with RB” during their appointment. They reported that they had made no decisions around contact because RB’s was able to advise who he would like to have contact and who eh does not wish contact. The Public Guardian’s report stated RB does not require service provision because he is living in permanent accommodation with his partner who is also his full-time carer. Appointed for contact decisions, they stated that they have not made any decisions during their appointment.
38. [38]
    At hearing the Public Guardian’s delegate stated that they had on 21 March 2021 attended the premises due to

“an anonymous tip that RB was suffering elder abuse. These allegations were not true (sic) upon the visit BB appeared healthy and well and showed no signs of abuse. BB provided the visiting delegate with his views and confirmed that he is doing well. During the visit the delegate did not view anything that raised concerns.”

39. [39]
    The aforementioned statements of abuse post-dated Public Guardian’s visit on that date. The Public Guardians’ delegate at the hearing expressed the view that they did not consider there was a need for decisions that required the appointment of a guardian to ensure RB’s needs were adequately met or interests adequately protected. They report BB to be living in permanent and stable accommodation with his partner/carer CN with whom he has been with for the past 6 years. During the course of this order the Public Guardian has made no formal decision about contact. RB is able to advise and who he is not able to have contact.”^[26]
40. [40]
    There is no indication in the Public Guardian’s report that an interpreter was used in the aforementioned home visit in discussing these matters with RB. The Tribunal notes that RB has limited English as well as limited French and RB’s significant communication impairments and infers that the source of information for this report has heavily relied on CN who is the subject of allegations.
41. [41]
    Public Guardian’s reports RB’s views have been sought directly from him in the telephone interchange between the delegate and RB on 19 March 2021. 

“The delegate asked RB if he knew of the Public Guardian he advised “yes: I then advised RB the reasons for the call and asked if he felt as though he still required assistance around regarding contact, (RB) stated “no”. The delegate re-iterated the conversation and RB stated no for a second time regarding the need for the Public Guardian.”

42. [42]
    It is not apparent to me that this conversation is entirely reliable in the circumstances that in a random telephone call from a stranger, a man with stroke related communication impairments and an intellectual disability who has very limited English or French has necessarily understood the question relayed to him in the vacuum of any other context. The extent that the above statements as a reported expression of the adult’s views can be relied upon is arguable, certainly without an interpreter, in the very least. I place limited weight on the evidential value of this report as a statement of the adult’s views in these circumstances.
43. [43]
    The Public Guardian noted at hearing that hoarding concerns in the environment were observed on their visit. No other references were made beyond this.
44. [44]
    BB expressed strong concern that the Public Guardian’s assessment, that there were no signs of abuse identified on the visit, did not adequately understand the nature of what she described as emotional abuse and, in her words “coercive control” stating that such abuse is not likely to be apparent from a one-off visit, where abuse of the nature RB is alleged to have experienced is not directly visible. Demonstrating much distress, she pointed to contacts from multiple members of the community who have provided statements of concerns about how RB is treated by CN.
45. [45]
    There are documents in the Tribunal file relating to the previous applications before the Tribunal generating previous appointment that are relevant to and give a sense of history to this matter. On 23 March 2015, RB’s Specialist Geriatrician stated in a report to the Tribunal:

“Prior to the stroke RBs friend (CN) was intermittently staying at his house. It is reported that she has now invited another person to live in the house without RB’s permission. RB’s current function would require him to access some services to maintain his living in his own house identified in the occupational therapy report…. RB is very vulnerable and prone to be influenced by others due to his intellectual impairment and frontal lobe dysfunction. … RB has voiced that he does not like CN’s male friend living in his house and he does not give permission for this. … We believe that RB will require a package of help to keep him at home due to his significant cognitive deficits. He does not appreciate that he requires services.  We also believe that RB needs some monitoring by an independent body regarding his relationship with CN due to his significant vulnerability.”

46. [46]
    CN strongly denied that there was any other person living at the house she shares with RB now or at any other time, yet there is competing evidence on this point.

Discussion of the evidence

47. [47]
    The evidence indicates that RB is particularly vulnerable, having an intellectual impairment, a receptive and expressive aphasia that impairs his understanding and communication. He understands very little English. He is heavily reliant on his carer. A weight of the material before the Tribunal indicates that there are very serious concerns from several people outside of and within RB’s family that his right to dignity and non-degrading treatment may be not respected in his current living and care arrangement. While there is evidence to the contrary in statements from church visitors, and longer friends,^[27] the existence of these multiple independent observations of verbal/emotional abuse must be given weight to suggest that his wellbeing in his current circumstances may be compromised.
48. [48]
    I note that CN denies these allegations, and provides evidence of her providing good care to the adult from her church friends and Darwin based friends. Despite this, there is evidence that RB is experiencing degrading treatment. Notwithstanding the Public Guardian’s conclusion arising from their one-off home visit, the balance of the evidence indicates concerns exist for RB in his current care arrangement. I find that because of the multiple reports of harm received by the Tribunal from members of the public with no personal interest in these applications who have observed CN’s interactions with RB over period, serious questions arise about the appropriateness of RB’s current care arrangements and the protection of his human rights. I also note RB’s geriatrician’s concerns about his vulnerability and the need for oversight of CN’s conduct in RB’s life.  Given these concerns, I find there is a need for decisions about the following personal matters about where the adult lives, with whom the adult lives, services provided to the adult, who may have access visits or contact with the adult.
49. [49]
    I have concerns whether CN, who acts as informal decision maker for RB in all personal decision but contact, is complying with her obligation to apply the general principles of the Guardianship and Administration Act^[28] stated at s 11B to respect the inherent dignity and worth of RB^[29], and maintain his existing supportive relationships^[30]. 
50. [50]
    As the informal decision maker has a conflict of interest around these decisions, an independent guardian needs to make decisions to ensure that his interests and basic human rights are adequately protected, and on that basis I find that  the grounds for appointment under s 12 are made out.
51. [51]
    CN asks to be appointed as guardian. I may, pursuant to s 31 of the Act remove an  appointee only if I am satisfied that the appointed Guardian is not competent or someone else is more appropriate.  I find that as the evidence before the Tribunal indicates CN as the informal decision maker for personal matters has not complied with this obligation to apply General Principle 2, I find CN is not more appropriate than the Public Guardian for appointment.  No submissions were made about the Public Guardians competence in the role.
52. [52]
    It is significant to note that the historical material the Tribunal file indicate that the issues of another male person living in RB’s home has been raised before 2016. The lack of clarity around this issue is a matter of concern, and a matter that substitute decisions makers should turn their minds to. It is not apparent that RB is offered choice around these matters.  There is ample evidence from independent witnesses before that suggests that RB’s human rights are not respected in his current circumstances.

Financial administration

53. [53]
    It is noted that the Tribunal has previously found the reasons for appointment of the Public Trustee included asset protection. The Public Trustee reported on RB’s financial position indicating that he has income and expenses to be managed and assets to be protected.^[31] It is noted that the medical evidence indicates that he is not able to make simple decisions about his finances, cannot make decisions freely and voluntarily and cannot communicate these decisions due to his receptive and expressive aphasia.^[32]
54. [54]
    The Tribunal finds that the evidence indicates that CN has prompted RB to sign an Enduring Power of Attorney to give her power of his personal and financial matters where RB has no ability to understand given the nature of this disability. CN has done this despite her participation in all three previous tribunal proceedings which determined appointment of substitute decision makers around RB’s personal and financial matters. She has ignored the appointment of the Public Trustee and sat quietly on this document for almost 12 months, despite ongoing continuous contact with the Public Trustee throughout the period of their appointment. Her motives for doing so in relation to the financial matters can only be considered spurious in these circumstances. I consider this suggests that there continues to be some risk to RB’s assets and an ongoing need for protection of his interests, given his vulnerability.
55. [55]
    I find that there is a need for decisions to protect RB’s assets and manage his day to day affairs, and without the appointment of an administrator his interests will not be adequately protected.
56. [56]
    I am concerned about reports that CN has moved RB’s furniture to CN’s home in Kingston; about another male person living in RB home without his consent and without contribution to costs of the household. I am concerned that there are reports that RB may not have access to his possessions allegedly locked from his entry.  I consider these are matters that require an administrator to investigate and take action upon to ensure that RB’s interests are adequately protected. I find that the grounds under s 12 for the appointment of an administrator continue to be made out.
57. [57]
    CN seeks that the Public Trustee is removed and that she is replaced as administrator.
58. [58]
    S 31 of the Act permits the Tribunal only remove an appointee if the appointee is no longer competent, or someone else is more appropriate. CN submitted that she was more appropriate than the Public Trustee as RB would not incur fees with her as administrator. She also raised concerns about the Public Trustee’s management of the administration which questions their competence. CN submitted evidence arguing that RB’s interests have not been protected in a number of matters by the Public Trustee. She raised concerns about an inadequate living expense budget; expenditure anomalies and PTQ fees. She stated that Public Trustee had made multiple errors in managing RB’s budget.^[33]
59. [59]
    The Tribunals explored these concerns with her and the Public Trustee at length.
60. [60]
    CN expressed concerns that RB was provided with only a living expense budget of $220 per week for living and groceries, which was inadequate to meet his needs. The public trustee’s representative stated that RB’s budget is reviewable each year and CN is encouraged to participate in these discussions to plan for budget to be responsive to his needs. She indicated that this matter has not previously been addressed to them and there would be avenues to review the living cost budget to make it a more responsive to his circumstances, and CN’s input in this process would be welcomed. She said the most recent review of the budget was September of this year.  She stated further that CN could approach the PTQ at any time to review this amount.
61. [61]
    CN expressed concern that there had been errors in payments that had been made which had not been accounted for. The Public Trustee addressed each of these concerns and identified an invoice for each outlay noting each of these matters was accounted for.
62. [62]
    CN raised concerns about legal fees for a claim for total and permanent disability insurance which was unsuccessful. The Public Trustee indicated that $6,600 was billed as fees by Maurice Blackburn lawyers and the TPD claim was successful and they have invested these funds on RB’s behalf.
63. [63]
    CN raised concerns about unaccounted for outlays for mowing which she said was not done for the 31 May 2021. The Public Trustees in response noted invoices on the record for lawn mowing on 27 March 2021 for $120 and the work on 31 May 21 for $330 pertained to gutter cleaning, as well as lawn mowing and yard maintenance and that they held photographic evidence of completion of the works for both dates.
64. [64]
    CN raised concerns that the Doctors had told her that there is no bill payable. The PTQ produce and invoice that they had received from RB’s specialist on 3 July 2021 for $180 to be rebated to CN, because CN pays the bill is reimbursed by the PTQ for these expenses.
65. [65]
    CN raised concerns that $412.15 on 4 May 2021 had been identified as groceries but not paid. The PTQ consulted their ledger and noted that these funds had been directly transferred to CN’s account at her request.                            
66. [66]
    There is no evidence that indicates that Public Trustee has failed to protect RB’s interest in these matters. There is therefore no evidence that the current administrator is not competent.
67. [67]
    CN raised concerns that requests for renovations have not been met. She indicated requests have been issued to repair fencing and issues on front and back verandah. Requests for an air-conditioner, painting curtain replacement. CN’s submission to the Tribunal was that these items would increase the value and safety of RB’s property.  The PTQ indicated that they weren’t aware of these requests and opportunities for CN and RB to participate in budget planning are available for these requests to be considered.
68. [68]
    CN also states that the PTQ fees are excessive and an unnecessary impost where she can manage RB’s finance without any fees being incurred. The fees identified are approximately $3,200 per year. This may cause to the Tribunal to consider if another person is more appropriate. CN puts herself forward as more appropriate than the PTQ in these circumstances.
69. [69]
    The Tribunal heard from BB who strongly objected to CN as administrator. BB told the Tribunal that she had discussion with CN in the past and noted that she sometimes had difficulties interpreting financial documents, noting that she was unable to distinguish between the budget and actual expenses in her submissions to the Tribunal.  The Tribunal observed that it did need to point out the differences in the notional budget and the ledger of expense to CN during the hearing.
70. [70]
    I am particularly concerned that CN has ignored the existence of the Tribunal’s appointment of the Public Trustee as administrator in participating in her purported appointment as enduring power of attorney under the document of   November 2020. There are no circumstances that she can be considered appropriate to act as administrator where she demonstrates contempt for the Tribunal’s orders in this way, and her motives for doing so must come into question.
71. [71]
    I find that CN is not more appropriate than the Public Trustee as administrator for RB. Therefore, there are no grounds for me to remove the Public Trustee to replace them with CN. The appointment of the PTQ is continued for all financial matters. The order is current until further order of the Tribunal.
72. [72]
    It is reasonable to expect that the administrator’s obligations will extend to making enquires as to any transactions which may have occurred under the invalid Enduring Power of Attorney that has been on foot the past year. The administrator’s obligations  may also include making inquiries whether there are any additional residents in RB’s home and determine their contribution to RB’s household; and make further inquiries and take any necessary action in relation to RB’s access to his personal goods and household furniture items which may be on RB’s premises or stored elsewhere.