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PC[2022] QCAT 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PC [2022] QCAT 147

PARTIES:

In applications about matters concerning PC

APPLICATION NO/S:

GAA4345-21, GAA4357-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 April 2022

HEARING DATE:

3 December 2021

HEARD AT:

Townsville

DECISION OF:

Member Stepniak

ORDERS:

GUARDIANSHIP

  1. The Application by DC for the appointment of guardian for PC is dismissed.

ADMINISTRATION

  1. The Application by DC for the appointment of an administrator for PC is dismissed.

DECLARATIONS ABOUT ENDURING POWER OF ATTORNEY

  1. The Tribunal notes the Enduring Power of Attorney for PC dated 16 March 2001 appointing TCR and PCA jointly and severally as attorneys for financial, personal and health matters, and pursuant to s 113(1) and 115 of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 declares
  1. (a)
    The Enduring Power of Attorney is valid; 
  2. (b)
    The attorneys’ power for financial matters commenced on 4 April 2001, and PC’s capacity for financial matters was certified as impaired on 24 March 2001;
  3. (c)
    The attorneys’ power for personal, including health, matters was exercisable from 4 April 2001, but only during periods that PC’s capacity was or is impaired, and irrespective of whether such impairment is or was certified or declared;
  1. (d)
    The principal, PC has impaired capacity for all matters.

DECLARATION ABOUT VALIDITY OF ENDURING POWER OF ATTORNEY

  1. The following Enduring Power of Attorney for PC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.
    1. (a)
      The Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters.

APPLICATION FOR ORDER FOR COSTS

  1. The application by TCR and PCA for an order for Costs against the applicant is refused.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – APPOINTMENT OF GUARDIAN AND ADMINISTRATOR   – medical assessments of Adult’s capacity challenged – Nature of capacity for a matter Adult declared to lack capacity for personal, health and financial matters – need for appointment of guardian and administrator – needs met adequately by Enduring Power of Attorney – application for appointment of guardian and administrator dismissed.

HEALTH LAW – OTHER MATTERS –– principal did not understand the nature and effect of the Enduring Power of Attorney – principal was not capable of making the enduring power of attorney freely and voluntarily – declared that principal did not have the capacity to make the enduring power of attorney – declared that the enduring power of attorney invalid

HEALTH LAW – OTHER MATTERS – Enduring Power of Attorney – commencement of attorneys’ powers – duties and obligations of attorneys – General Principles and Health Care Principles applied – allegations against attorneys dismissed.

LEGISLATION:

Guardianship and Administration Act 2000 (Qld), ss 5, 7, 11, 11B, 12, 33, 114A, 127, 146.

Human Rights Act 2019 (Qld) ss 4, 8, 9, 13, 25, 26, 31, 58.

Powers of Attorney Act 1998, s 6C, 6D, 26, 41, 42, 44, 47, 50, 63, 66, 72, 73, 82, 86, 109, 111A, 113, 116.

Public Guardian Act 2014 (Qld), ss 10, 19

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 43, 46, 48, 101, 102.

CASES:

HF [2020] QCAT 482

JF [2020] QCAT 419.

PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VCS 32.

REASONS FOR DECISION

Context of Applications

  1. [1]
    PC (‘the Adult ‘) is a fragile and legally blind 88-year-old man who suffered a cerebrovascular accident in August 2018. He lives in the home of DB, his carer and long-time friend/partner. He has two daughters, TCR and PCA, from his 37-year long marriage to LC. The marriage ended in divorce in 1994, and LC passed away in 1996. The Adult also has a brother, AC, and three sisters, GC, JC and DC (‘the Applicant’).
  2. [2]
    The Adult’s friendship with DB dates back some 40 years. It developed into a relationship involving at least two lengthy periods of cohabitation prior to the Adult moving into DB’s home in July 2020.
  3. [3]
    I will outline in some detail the events and issues that preceded the bringing of the application for the appointment of a guardian and administrator for the Adult, as they are essential to an understanding of the practical issues and the context for the decisions made on 8 February 2022.
  4. [4]
    In 2001, the Adult appointed his daughters TCR and PCA as his attorneys under an enduring power of attorney (EPA). In the document he stated that his attorneys’ power for financial matters was to commence immediately. The implication of this is that while the attorneys’ power over financial matters was exercisable immediately, it was also exercisable by the Adult, for as long as he remained capable of making decisions regarding his financial matters.
  5. [5]
    The Adult’s daughters state that in 2020, following their father’s brief period of hospitalisation, they complied with his wish to live with DB rather than return to the Apex village apartment in which he had lived alone since 2017.
  6. [6]
    The attorneys’ ongoing reservations about their father living with DB appear to relate largely to what they describe as the volatile, on and off nature of his relationship with DB, which in the past had proven to be detrimental to his wellbeing.[1] They say that on one occasion they had to extract the Adult from a situation that at least one other family member recognised as behaviour by DB amounting to elder abuse. On another occasion, the Adult’s daughters say, the Adult asked to be taken away from living with DB because of problematic behaviour by DB’s grandson.[2]
  7. [7]
    Consequently, the attorneys argue that their behaviour towards DB reflects their concern for their father, as historically DB had not been a reliable partner and carer for their father and on occasion had mistreated and financially abused him.
  8. [8]
    The Applicant contests this account, observing that the Adult and DB had only lived apart to reduce friction caused by TCR and PCA’s treatment of DB.[3] She further states that the Adult cannot reason with his daughters as they have never accepted this long-standing relationship and don’t think he should partner after death of his wife.[4]
  9. [9]
    The Adult’s daughters say that they first became concerned for their father’s capacity to make his own decisions, following his discharge from hospital in July 2020, where he had been treated for injuries sustained in an accidental fall.[5] Their subsequently expressed views as to his capacity to make his own decisions are at odds with those expressed by the Applicant and other family members. Consequently, the Adult’s capacity is a central issue in these proceedings.
  10. [10]
    The conflict between the Adult’s daughters and his siblings and particularly the Applicant and DB, culminated in these proceedings. The evidence presented reveals a number of specific issues that have dominated this conflict.
  11. [11]
    First and perhaps foremost, DB and DC and some other family members have questioned whether the attorneys’ powers under the 2001 EPA had commenced, as, they argued, the Adult had not been properly assessed to be considered incapable.  This view appears to be at least in part based on the incorrect premise that the attorneys’ powers with respect to financial matters was to commence when the Adult is found to have lost his capacity for financial matters.
  12. [12]
    In addition, DC had occasionally, albeit in passing, also questioned whether the Adult’s daughters had in fact been validly appointed. However, the only evidence she appeared to offer was that the Adult does not remember making the enduring power of attorney.
  13. [13]
    The attorneys’ power to make decisions about the Adult’s personal and health matters have also been questioned on the grounds that the Adult’s capacity for these matters had not been appropriately assessed.  The terms of the Adult’s 2001 enduring power of attorney provide that the attorneys are empowered to make decisions about the Adult’s personal (and including health) matters during any periods when the Adult is incapable of making such decisions.
  14. [14]
    According to DB and DC, an issue of concern has been the attorneys’ unreasonable withholding of finances from the Adult, the attorneys’ lack of consultation with the adult regarding financial decisions, and their inadequate financial contribution to BD for her provision of accommodation and care to the Adult.
  15. [15]
    DC states that the relationship between the attorneys and DB and other family members was good before March 2021, and ‘went bad’ when GC and DC asked that the Adult be allowed more money to maintain his dignity, and that TCR and PCA be kinder to DB.[6]
  16. [16]
    However, the suggestion that the relationship only soured in March 2021 appears to be at odds with evidence presented, including that by the Applicant, herself.
  17. [17]
    In May 2020, DB drove the Adult to another town where he transferred $10,000 from his bank account into hers. The attorneys’ concern relating to this withdrawal of the $10,000 relates not only to what appeared to them to be financial exploitation of their father, but also to the fact that he had been driven to Townsville in breach of Covid-19 restrictions in place at the time, endangering his health, and exposing him to prosecution.[7] Their suspicion that their father was being financially exploited appears to have been exacerbated by the suddenness of the trip and DB’s assertion when questioned that it was none of their business.
  18. [18]
    While the attorneys have accepted that their father was merely repaying an old debt to DB, they remain aggrieved at the reasons why this ‘loan’ was extended to him and manner in which it was repaid.

The Adult Consults a Lawyer

  1. [19]
    This withdrawal of the $10,000 was still a cause of friction on 18 January 2021 when, in a pro-bono attendance, the Adult met with DB’s solicitor.[8]  According to the solicitor’s file notes, the Adult told him that the reason for his attendance was that he was not happy with not being permitted to control his own money.
  2. [20]
    The Adult is recorded to have further advised the lawyer that while his daughters were his attorneys under an Enduring Power of Attorney, he had capacity to make his own decisions and had never been assessed as incapable. When asked who he would want to be his attorneys if it wasn’t his two daughters, the lawyer notes, the Adult could not answer.
  3. [21]
    Seemingly at odds with allegations of finances being withheld by the attorneys, the Adult told the lawyer that when available funds were insufficient, he was able to call his attorneys to get financial issues fixed, even if he did not understand how they managed to do so.
  4. [22]
    The Adult observed that the above-mentioned withdrawal of $10,000 had created significant conflict between DB and his daughters. He said that he had repaid DB ten thousand dollars that she had lent him several years earlier. As a result, referring to his attorneys, he said ‘the girls are causing real problems with this – they think I just gave [DB] this money but I didn’t I was paying her back the ten thousand dollars she lent me, but I will sort that out with the girls.’
  5. [23]
    At the end of the meeting, the Adult was asked what he wanted the lawyer to do, he said ‘nothing, I will talk to the girls – I don’t want any more friction I just wanted to talk to someone about it.’ The lawyer suggested that he undergo a capacity assessment.

Relationship Between DB and the Adult’s Attorneys

  1. [24]
    Correspondence between carer DB and daughter TCR in December 2020 and January 2021 appears to encapsulate the nature of the relationship and conflict between the Adult’s daughters and his carer/partner.
  2. [25]
    A week after DB and TCR met in December 2020, DB wrote to TCR with what she described as some ‘thoughts for [TCR] to consider.’
  3. [26]
    DB begins her message by objecting to being expected to ‘use [her] superannuation for retirement to subsidise [the Adult’s] care, because we have a relationship that is full of memories, respect, care, love, friendship etc.’
  4. [27]
    While advising that she had been successful with her application for a carer’s allowance, she proposes that the Adult pay her a weekly rent of $130 for bed and board, and draw on his savings for other expenses (a significant sum in view of his significant fortnightly chain-smoker’s cigarette bill).  DB suggests that if the Adult’s $25,000 savings become depleted, as a consequence of his payment of rent, she would be ‘willing to care for him free of rent.’
  5. [28]
    DB asks that the Adult’s ‘power to use and have access to his own earned money’ not be taken away from him. She states that she and the Adult, ‘fail to see why he needs to keep his money in his bank? For what purpose?’
  6. [29]
    Instead of limiting the money available to him, DB argues, he needs family contact beyond text messages and brief visits ‘out the front of my house’. She suggests more frequent contact with grandchildren ‘that live around the corner’, and visits to PCA’s home.
  7. [30]
    In her reply on 2 January 2021 TCR suggests that, ‘The immediate issue we need to resolve is solely the financial compensation you are now seeking in relation to Dad living at your home.’ She challenges DB’s insistence on financial payment by the Adult by observing—

By my value system, the matter of financial compensation is not determined in isolation of your 40-year relationship which you describe as “a relationship that is full of memories, respect, care, love, friendship”, and the obligation this confers to care for one another in sickness and in health.

  1. [31]
    Noting that DB appears to hold a ‘different view’, TCR suggests that payments by the Adult on DB’s behalf need to be taken into account when determining the Adult’s payment of ‘rent and lodgings’. TCR lists a number of DB’s bills paid by the Adult. and calculates that DB owes the Adult more than $4000 over and above what the Adult owes DB for rent and lodgings.

Lawyers’ Letters

  1. [32]
    In early March 2021, letters were exchanged by lawyers acting for the attorneys and for DB.
  2. [33]
    In a letter to DB dated 6 March 2021, lawyers acting for the Attorneys allege that DB had made ‘false representations to [a bank] and others that you are authorised to conduct transactions on behalf of [the Adult], had ‘induced [the Adult] to sign Centrelink documents relating to his financial affairs’, had ‘obtained the benefit of $14,250 from [the Adult], and ‘intended taking action to remove our clients as Phillip’s Attorneys’.
  3. [34]
    According to the letter, the attorneys are, ‘concerned that their father is not in a sound financial position, and that [DB’s] actions have merely exacerbated his vulnerability.’ The letter also points out that as their father’s attorneys, they ‘are legally responsible to protect his position and wellbeing.’
  4. [35]
    The letter writer informs DB that she has, ‘no authority to conduct business on behalf of [the Adult]’ and that ‘banks and other institutions have been informed that they are not to deal with you.’
  5. [36]
    The letter also conveys the attorneys’ willingness to work through ‘the current issues’ in mediation, the costs of which they are willing to cover. They nominate a mediator but express a willingness to consider an alternative.
  6. [37]
    The brief reply from DB’s lawyer, emailed on 16 March, states that DB refutes the allegations conveyed, and ‘is not prepared to attend a mediation at this stage.’ The email also notes that, ‘Your clients have made a similar complaint to Police and my client is presently assisting Police with their investigation of your clients’ complaint.’
  7. [38]
    With respect to this allegation by the attorneys, DC and other family members remain aggrieved at what they see as the attorneys’ unfounded allegations, and particularly with police involvement instigated by the attorneys that they say caused the Adult much discomfort and embarrassment.[9]
  8. [39]
    A further financial dispute occurred shortly after DC’s application was received by the Tribunal on 6 April 2021.
  9. [40]
    In mid to late April 2021 a number of reports were conveyed to the Tribunal regarding $28, 427 being withdrawn from the Adult’s Bank.  The Adult was reported to be upset with not being asked whether he agreed with the changes made to his current term account, and was said to be concerned that he would be paying an early withdrawal fee. The Adult is then reported to have called the bank to place a hold on his account. It was also reported that the attorneys had refused to tell the Adult where they had moved his money.[10] 
  10. [41]
    The attorneys are reported to have told NB told that,

the trigger for worsening of their relationship with DB was when [PCA] removed the [Bank] App from her father’s phone given concerns that others may be gaining access due to him giving his password to others because of his blindness.[11] 

  1. [42]
    In the context of these differences, steps were taken to assess the Adult’s capacity regarding his financial matters in order to confirm the Attorneys’ power regarding financial matters or to confirm the view held by other family members that the Adult was capable of making his own decisions.  

Medical Assessments

  1. [43]
    In January 2021, Dr SJ is reported to have written a ‘generic letter’ stating that [the Adult] no longer had capacity to manage personal banking and required assistance with personal banking and budgeting. [12]
  2. [44]
    In early March, the Adult’s decision making capacity was assessed by two GPs, Dr SJ, the Adult’s friend and GP for the past 25 years, and another local GP, Dr BS.
  3. [45]
    On 1 March 2021, the Adult’s capacity was assessed by Dr BS. The doctor had been contacted by DC and DB, ‘expressing concern as they feel that [the Adult]has capacity as well.’[13] Dr BS says that he found the Adult to be ‘upset because he has had his finances seized as his two daughters …who have a financial EPoA invoked by his regular GP.’[14] He assessed the Adult to be capable but referred him on 18 March 2021, for further capacity assessment by Gerontologist Dr OO.
  4. [46]
    The following day Dr SJ referred the Adult to NB, a Clinical Neuropsychologist for ‘neuropsychological assessment regarding concerns about decision making capacity.’[15]
  5. [47]
    On 24 March 2021, Dr SJ provided the attorneys’ lawyers with a certificate in which he stated, ‘I am of the opinion that [the Adult] no longer has capacity to manage his legal or financial matters.’
  6. [48]
    On 26 March 2021, DC lodged an Investigation Referral form with the Office of the Public Guardian. She later advised the Tribunal that she had done so on the advice of Dr BS.[16]
  7. [49]
    The Public Guardian role has a statutory role to protect the rights and interests of those who have an impaired decision-making capacity.[17] In this role, the Public Guardian—

may investigate any complaint or allegation that an adult—

(a) is being or has been neglected, exploited or abused; or

(b) has inappropriate or inadequate decision-making arrangements.[18]

  1. [50]
    On her investigation referral form, DC makes a number of allegations against the Adult’s attorneys. She states that the Adult only became aware that the EPA ‘was invoked’ after she suggested he ask his GP.
  2. [51]
    She also alleges that the attorneys’ power is not used for the adult’s benefit, but rather to take ‘reprisal action’ against DB. This, she suggests is because the Adult’s daughters don’t think he should partner after the death of his wife.[19] She further alleges that as they have never accepted their father’s ‘long standing relationship’ with DB, DB is unable to reason with them.
  3. [52]
    DC also states that the Adult is humiliated by the fact that neither he nor DB are given sufficient money by his daughters.
  4. [53]
    Questioning Dr SJ’s assessment of the Adult’s capacity, DC alleges that Dr SJ had only assessed the Adult’s capacity to be impaired, following persistent pressure from the attorneys.
  5. [54]
    In mentioning that the Adult taught Dr SJ to play golf and that they were once seen to be smoking together, DC appeared to be suggesting that it is inappropriate for Dr SJ to continue as the Adult’s doctor.
  6. [55]
    DC later advised the Tribunal that on 6 April 2021 DC she had spoken with the Office of the Public Guardian and was advised that the Adult should make a new EPA when his capacity to do so was ‘confirmed’.[20]
  7. [56]
    Following the Tribunal’s dismissal of the Applicant’s Interim Order Application, the Office of the Public Guardian discontinued their initial investigation of the Applicant’s Investigations Referral.
  8. [57]
    It is in this context of distrust and disagreement over the management of the Adult’s finances, and his capacity make his own decisions regarding his financial and health matters, that the application for the appointment of a guardian and administrator was brought to the Tribunal.

Application for the Appointment of Guardian and an Administrator

  1. [58]
    On 6 April 2021, DC filed an application with the Tribunal seeking the appointment of a Guardian and an Administrator for the Adult. In her application, DC proposes that the Public Advocate be appointed his guardian, and the Public Trustee Queensland, his administrator. Answering the application form question, ‘what outcomes are you seeking?’ the Applicant stated, ‘I am seeking the removal of EPoA from the adult’s daughters.’

The Applicable Legislative Scheme

  1. [59]
    The law governing adult guardians and administrators is set out in the Guardianship and Administration Act 2000 (GA Act). Laws governing Enduring Powers of Attorney (EPA) are to be found in the Powers of Attorney Act 1998 (PA Act) and to a lesser extent the GA Act. The GA Act states that, it,

together with the Powers of Attorney Act 1998 provides a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult.[21]

  1. [60]
    The GA Act provides that ‘the Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter’[22] and that such a appointment may be made, ‘on the application of a person with an impaired capacity, the public guardian, an interested person,[23] or on the Tribunal’s own initiative.[24]
  2. [61]
    Such guardians and administrators are usually,

authorised to do anything in relation to a personal matter [in the case of a guardian] or a financial matter [in the case of an administrator] that the adult could have done if the adult had capacity for the matter when the power is exercised.[25] 

Criteria for the appointment of a guardian or administrator

  1. [62]
    Section 12 of the GA Act sets out the criteria for the appointment of a guardian and administrator. The section states that—
  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. (a)
    the adult has impaired capacity for the matter; and
  2. (b)
    there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
  3. (c)
    without an appointment—
  1. (i)
    the adult’s needs will not be adequately met; or
  2. (ii)
    the adult’s interests will not be adequately protected.
  1. 1.That the adult has impaired capacity
  1. [63]
    The first, and threshold criterion as set out in, Section 12(1) of the GA Act is that the Tribunal must be satisfied that, ‘the adult has impaired capacity for the matter.’
  2. [64]
    Consequently, the need for the appointment of a Guardian or Administrator can only be considered where the Tribunal is satisfied that an Adult’s capacity to make decision about all or some of his personal, health and/or financial matters is impaired.
  3. [65]
    In this respect, the application lodged by CD appears to be flawed, as she seeks the appointment of a Guardian and Administrator while maintaining that the Adult does not have an impaired capacity for financial, personal or health matters.
  4. [66]
    However, irrespective of an applicant’s view, it is for the Tribunal to determine whether the Adult’s capacity is impaired. Even if DC had sought to withdraw her application, she could only have done so with the Tribunal’s leave.[26]
  5. [67]
    In both Schedule 3 of the PA Act, and Schedule 4 of the GA Act, ‘Impaired capacity, for a person for a matter, means the person does not have capacity for the matter.
  6. [68]
    A person’s capacity for a matter is defined in the GA Act[27] and PA Act[28] to mean that the person ‘is capable of—

(a) Understanding the nature and effect of decisions about the matter; and

(b) Freely and voluntarily making decisions about the matter; and

(c) Communicating the decision in some way.’

  1. [69]
    In these proceedings, capacity is a central issue in the determination of DC’s Application seeking the appointment of a guardian and administrator, as well as the associated issues of the validity of enduring powers of attorney and the commencement of the powers of the appointed attorneys. This means that—
    1. (a)
      Unless the Adult’s present capacity is found to be impaired, the Tribunal is not empowered to further consider the application seeking the appointment of a guardian and administrator.
    2. (b)
      As outlined below, the validity of each of the enduring power of attorney documents may depend on the capacity of a person for a specific matter.
    3. (c)
      An impaired capacity for personal/health matters serves to empower attorneys appointed for such matters. A principal’s incapacity for a matter can also make attorneys the only decisions makers for the matter. This is the case with respect to the attorneys’ authority for the Adult’s financial matters.

Presumption of Capacity

  1. [70]
    Both the GA Act and the PA Act list general principles that ‘must be applied by a person or other entity that performs a function or exercises a power under either Act or an enduring document (such as an enduring power of attorney).
  2. [71]
    The first general principle listed in both the GA Act and the PA Act[29] is that “An adult is presumed to have capacity for a matter’. 
  3. [72]
    How this presumption of capacity is to be applied is set out in s 11 of the GA Act. Section 11(1) states—

If, in performing a function or exercising a power under this Act, the tribunal or the court is required to make a decision about an adult’s capacity for a matter, the tribunal or the court is to presume the adult has capacity for the matter until the contrary is proven.

  1. [73]
    Consequently, to find that the Adult has impaired capacity requires the Tribunal to be satisfied that the evidence rebuts that presumption.

Capacity for a matter

  1. [74]
    ‘Capacity for a matter’ does not refer to global capacity but rather to capacity with respect to a matter, which GA Act states ‘includes a kind of a matter’.[30] Schedule 2 of both the GA Act and PA Act lists types of matters.
  2. [75]
    The significance of this is that incapacity need not relate to all personal/health matters to enable a Guardian to be appointed, nor to all financial matters for an administrator to be appointed. An appointment of a Guardian may on that basis, follow a determination that a person only lacks capacity regarding where they live, what doctor they see, and the nature and level of services to which they have access. Similarly, capacity may be impaired for all financial matters or only for a particular kind of financial matter, such as personal banking.[31]

Capacity varies according to the type of decision and support available

  1. [76]
    In section 5(c), the GA Act acknowledges that ‘the capacity of an adult to make decisions may differ according to—
  1. (i)
    The type of decision to be made including, for example, the complexity of the decision to be made; and
  2. (ii)
    The support available from members of the adult’s existing support network.
  1. [77]
    The matter in question may be the execution of a document of varying complexity, the capacity for which may need only be present at the time of execution of the document. Alternatively, the capacity may be for an ongoing matter, such as the management of personal finances.
  2. [78]
    Both applicable Acts recognise that the capacity to make decisions often depends on the availability of support and information.
  3. [79]
    General Principle 8(6) provides—

An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.

  1. [80]
    However, support and access to information must be distinguished from reliance on others or being influenced to make certain decision.  The capacity to make decisions freely and voluntarily is addressed below.

Elements of capacity – The Evidence

  1. [81]
    In light of the above understanding of capacity, I turn to consider whether on the evidence I am satisfied that the Adult ‘has impaired capacity for financial, personal matters including those for health care’.
  2. [82]
    A person’s capacity for a matter is defined in the GA Act[32] and PA Act[33] to mean that the person ‘is capable of—

(a) Understanding the nature and effect of decisions about the matter; and

(b) Freely and voluntarily making decisions about the matter; and

(c) Communicating the decision in some way.’

  1. [83]
    I turn to consider the elements in the light of available evidence

(a) ‘Understanding the nature and effect of decisions about the matter’;

  1. [84]
    I will begin by considering the evidence provided by health care professionals. In particular, I will consider the professional views of Medical General-Practitioners Dr BS and Dr SJ and of Clinical Neuropsychologist NB.
  2. [85]
    Dr SJ has been the Adult’s doctor for some 25 years. For many years, he has also been the Adult’s friend.  According to NB, ‘A generic letter written by Dr [SJ] in January 2021 indicated that [the Adult] no longer had capacity to manage personal banking and required assistance with personal banking and budgeting’. But. According to DB to the Applicant this finding was made at a time when accusations were being made about him being exploited financially by DB.[34] 
  3. [86]
    On 18 January 2021 the Adult told the lawyer he was consulting, that he had discussed ‘the girls controlling his money’ with his GP, SJ and that SJ had told him he doesn’t want to get involved and will refer [the Adult] to ‘another doctor ‘a female doctor’.
  4. [87]
    On 18 March 2021, Dr BS wrote a referral letter to Gerontologist Dr OO, outlines his own assessment of the Adult’s capacity on 1 March 2021.
  5. [88]
    In the letter, he states that he had been contacted by the Adult’s ‘sister and his house-carer,’ and notes that the Adult ‘is a new patient to me, and presents as upset as he has had his finances seized as his two daughters…who have a financial EPoA invoked by his regular GP but have not got a health EPoA.’
  6. [89]
    Their consultation and assessment convince Dr BS that the Adult’s, ‘thoughts were intact, coherent and rational with good short-term recall.’
  7. [90]
    Dr BS says that he declined one of the attorney’s request that he no longer see the Adult, as he felt the Adult was ‘able to make decisions of his own volition’. This would suggest that Dr BS had formed the view that the Adult had at least the capacity to decide which doctor he would see.’
  8. [91]
    In his referral letter Dr BS notes that the Adult took a Mini Mental State Examination (MMSE) and attained a score of 21/30, noting that he attained this score even though he was unable to attempt three questions due to poor vision.
  9. [92]
    However, I note that in the clinical notes that accompany Dr BS’s referral letter, he writes, ‘I became pretty certain he has capacity, at least for simple discussion.’ This conclusion appears to fall far short of a conclusion as to the Adult’s capacity regarding his financial, personal and health matters.
  10. [93]
    In summing up his referral, DR BS observed—

a new patient who is disputing his usual GP’s diagnosis of his capacity and the rights of his daughters to control his finances. I find myself in the unusual situation of agreeing with the patient that he has capacity, and his usual GP is incorrect. There may be extraneous matters not disclosed to me, but that does not alter his rights.

  1. [94]
    The appointment made with Dr OO, to whom Dr BS had referred the Adult, was cancelled by the attorneys.
  2. [95]
    On 19 March 2021, Dr SJ referred the Adult to NB, a Neuropsychologist for assessment decision making capacity. Dr SJ provided NB with some information and his own assessment.
  3. [96]
    In her 11 May 2021 Report, NB refers to statements by Dr SJ in his referral letter dated 19 March 2021 regarding the Adult’s capacity.
  4. [97]
    She notes that DR SJ had stated that the Adult’s, ‘memory and function appears to have declined over the past few years together with a lack of interest/degree of apathy.’
  5. [98]
    NB further reports that Dr SJ ‘said that he had witnessed [the Adult] to have severely compromised memory for conversation about his medical and personal matters.’ She also states that Dr SJ had reported the significant disharmony in the family and with DB, and ‘raised concerns in relation to [the Adult’s] wellbeing and deemed him to be ‘highly vulnerable’.
  6. [99]
    On 24 March 2021, Dr SJ also provided the attorneys’ lawyers with a certificate that stated, ‘I am of the opinion that [the Adult] no longer has capacity to manage his legal or financial matters.’
  7. [100]
    On 19 April 2021, the Tribunal directed that the Applicant ‘undergo an assessment by [NB] on 20 April 2021 and a report be produced to the Tribunal and all parties within seven (7) days of it being made available.’ The direction indicated that the interim order application would be determined after production of the report.
  8. [101]
    On 20 April, 2021, the Adult was assessed by Clinical Neuropsychologist NB, as directed by the Tribunal. In reviewing NB’s report, I am conscious that in directing that the Adult be assessed by NB, the Tribunal did so, recognising her qualifications to conclusively resolve differing opinions offered by two GPs.
  9. [102]
    In her Neuropsychological Report to Dr SJ dated 11 May 2021, NB notes that her assessment relates to concerns about the Adult’s decision making capacity, and in Particular ‘a recent worsening of cognition has been raised.’ She also notes SJ’s ‘recent opinion that [the Adult] no longer has the capacity to manage his legal and financial affairs.’
  10. [103]
    NB observes that the Adult’s daughters have an EPA ‘in relation to finances and personal/health matters, which has been active in relation to finances since 16 March 2001. She further records that while the Adult ‘s attorneys accompanied him to the appointment ‘he was assessed and interviewed alone’.
  11. [104]
    Information provided to NB by the attorneys included that DB had commenced steps to have the EPA revoked on the grounds that he has capacity to manage his affairs and that he had ‘apparently been taken to a new GP and a new solicitor by his carer to change his will and EPOA’.
  12. [105]
    In that respect, NB also recorded that Dr SJ had indicated to her that he was aware that DB had taken the Adult to ‘see her own lawyer regarding EPOA matters.’ According to NB, Dr SJ had also ‘indicated that [the Adult’s] daughters have impressed him as supportive and genuinely concerned about his welfare.’
  13. [106]
    NB reports that the Adult referred to DB as his carer and ‘having good intentions’ but that he denied cohabiting with her on two occasions prior to 2020, as NB had been told.
  14. [107]
    The Adult appeared to be confused about what an EPA was and told NB that an EPA is ‘to have control of my money’. He was also unsure when he had made his EPA and why it was active in relation to finances since 2001. He told NB that ‘he “thinks’ he now wants full access to his monies and full control of his decisions in relation to his money.’
  15. [108]
    NB notes that ‘he denied that he mistrusted his daughters and was not of the opinion that they were mismanaging his monies’. NB reports that while he did not indicate that someone else would be better in this role, when prompted he suggested he might appoint DB, but when the EPA was explained to him he nominated DB and his daughters. I note that this conversation corresponds very closely with my conversation with the Adult in the absence of other parties apart from the delegate of the Public Guardian – on that occasion the Adult clearly indicated that he trusts and does not wish to replace his daughters, but ideally would like to have DB sharing that role with them.
  16. [109]
    NB further reports that the Adult denied any problems or issues, nor did he indicate that he ‘was unhappy with his doctor’s opinion about his lack of capacity. However, she notes that he did say that ‘he was sent to see another doctor to see if he could handle his money by himself and he “got a good report”.
  17. [110]
    NB notes that during the assessment process, two of the Adult’s sisters contacted her via phone and email. The calls were ‘abrupt and demanding, with emails detailing alleged accounts of [the Adult’s] current situation.’
  18. [111]
    In outlining the Adult’s medical history NB notes that during his admission to hospital following a fall in July 2020, ‘a possible element of dementia was raised’. She also noted that while he suffered a cerebrovascular accident (CVA) in August 2018 his symptoms resolved over a 24-hour period.
  19. [112]
    With reference to his finances, the Adult correctly told NB that he had just received his last superannuation payment and now relies on his pension. However, he stated that his pension was $160 per fortnight - well short of the actual amount.
  20. [113]
    In contrast to allegations that he was being deprived of access to money, the Adult told NB that ‘he always has $2000 in his account’ as arranged by his daughters.
  21. [114]
    NB observed that the Adult had ‘difficulty providing a reliable timeline of events and episodic memory disturbance was apparent’.
  22. [115]
    While NB concedes that ‘comprehensive cognitive assessment was limited due to visual disturbance, ’the test administered revealed the Adult’s ‘exceptionally high ability to attend and concentrate, impaired learning and recall, intact verbal abstract reasoning and everyday reasoning and judgement, a mild level of depression
  23. [116]
    NB’s testing also revealed adequate verbal and intellectual ability and exceptional immediate attention and auditory working memory. In terms of executive function, he displayed intact verbal reasoning, everyday judgement, mental and verbal flexibility and inhibitory control. He was also completely oriented. On the other hand, the Adult’s verbal learning and recall were moderately to severely impaired. His verbal fluency was also impaired.
  24. [117]
    Overall, the Adult displays many areas of intact cognition and functioning with the exception of word generation and verbal memory. He also appears to have reduced awareness of his memory problems and lack of insight/denial of complex psychosocial matters and a level of apathy and/or depression.
  25. [118]
    NB states that the Adult’s cognitive profile is strongly suggestive of an underlying neurological condition and a neuro degenerative condition is suggested given his age and insidious decline over time. In her opinion the Adult’s profile is in keeping with Alzheimer’s dementia.
  26. [119]
    In conclusion NB observes that the Adult has the cognitive capacity to make reasonable decisions given intact executive function and immediate attention, but there are multiple vulnerabilities which will possibly hamper his decision-making capacity. These, she lists as being: visual disturbance, severe memory deficit, apathy/lack of insight, lack of experience in handling finances due to having his personal financial situation completely managed for many years, and a probable progressive neurological condition.
  27. [120]
    Addressing the elements of the GA Act’s and PA Act’s definition of capacity. NB makes the following observations.
  28. [121]
    Regarding the Adult’s understanding of the nature of decisions, she assessed a poor understanding of EPA, poor knowledge and insight into his medical condition and difficulty in retaining information and weighing up the pros and cons of decisions
  29. [122]
    NB observed that with respect to finances, the Adult is reliant on others due to memory and visual impairments.
  30. [123]
    She expressed doubt regarding the Adult’s capacity to freely and voluntarily make decisions, noting that she suspected pressure or influence. NB observes that while the Adult did not suggest that he was upset, disgruntled or critical, she detected ‘a degree of apathy/passivity which likely increases his level of vulnerability’
  31. [124]
    The Applicant submitted a written response to NB’s report, citing her credentials as an experienced Mental Health Accredited Social Worker Specialising in Gerontology.[35]
  32. [125]
    In her comments, DC challenges Dr SJ’s assessment on the grounds that she ‘never carried out an evidence-based capacity test. She also challenges some of NB’s statements regarding the family’s dynamics. Regarding NB’s conclusion about the Adult’s vulnerability, DC states, ‘Professionally, I disagree with her last comment on vulnerability,’ without elaborating.
  33. [126]
    Dr SJ’s participation by teleconference in the hearing on 3 December 2021 highlighted the contrasting views as to respecting the Adult’s wishes with respect to medical treatment and revealed significant animosity directed at him for assessing the Adult as having an impaired decision making capacity.
  34. [127]
    Doctor SJ expressed concern that the Applicant and other family members were making decisions about the Applicant’s health and treatment that were at odds with the Adult’s consistently expressed wishes, with which he, as the Adult’s doctor for the past 25 years, was quite familiar.
  35. [128]
    The Applicant had lodged a complaint that when the Adult saw Dr SJ regarding the Adult being vaccinated against Covod-19, rather than telling the Adult to be vaccinated, Dr SJ discussed the matter with the Adult, who left choosing not to be vaccinated at that time. This complaint illustrates that were it not for the recognition and protection by his doctor and attorneys the Adult would not have been permitted to actin accordance with his own wishes.
  36. [129]
    Dr SJ’s opinions as to the Adult’s capacity were that the Adult was in gradual cognitive decline in keeping with his age and physical frailties. He urged that the Adult required assistance with all his decision making and due to pressures exerted on him by others was very vulnerable as he was not capable of making decisions freely and voluntarily.
  37. [130]
    On the basis of the above outlined professional assessments, the anecdotal evidence of parties, and personal observation, I find that the Adult’s cognition, clear, rational thinking and executive functioning are largely intact and suggesting that the Adult is capable of ‘understanding the nature and effect of his decisions’. However, a number of factors appear to limit his capacity to make his own decisions. These are poor memory and recall, lack of insight apathy, and lack of appreciation of his own limitation and of the potential consequences of decisions.
  38. [131]
    When consulting a lawyer in January 2021 and when he was assessed by NB, the Adult also displayed a lack of knowledge where circumstances dictated that he would possess the knowledge. In particular, I note the Adult’s unfamiliarity with the concept of an enduring power of attorney while being assessed by NB one day prior to making a new EPA. While an unfamiliarity with financial transactions could explain the Adult’s inability to precisely state the size of his pension, his answer of $160 per fortnight suggests not only a lack of knowledge about the precise size of his pension, but a much broader lack of understanding of money.
  39. [132]
    On that basis I find that the Adult is not capable of understanding the nature and effect of his decisions regarding finances, health care and personal decisions. I also find that the evidence is such that it rebuts the presumption of capacity.
  40. [133]
    While this conclusion is particularly clear with respect to financial matters, the Adult’s lack of insight into his health issues and his lack of insight into his limitations, his poor memory and into consequences of decisions also indicate that he cannot be said to be capable of understanding the nature of decisions and of their effect. 
  41. [134]
    As capacity requires the satisfaction of all three criteria, the Adult must be adjudged to have an impaired capacity for all matters. However, for the sake of completeness, I will briefly consider the remaining two criteria. 

(b) ‘Freely and voluntarily making decisions about the matter’;

  1. [135]
    Particularly significant in this matter, a person’s capacity for a matter is defined in the GA Act[36] and PA Act[37] to mean that the person is not only capable of ‘understanding the nature and effect of decisions about the matter; but also that the person ‘is capable of, ‘freely and voluntarily making decisions about the matter.
  2. [136]
    The evidence establishes the Adult as a person quite capable of indicating his views and wishes, but also as a person painfully aware of the conflict between his attorneys and the rest of the family. To live with this reality, the Adult avoids conflict and goes along with whomever is helping him at the time. 
  3. [137]
    This is perhaps most glaring when his alleged views and opinions are presented by DC or DB, and compared to the views he expresses to his doctor and attorneys and to ‘neutral’ parties such as the lawyer he saw in January 2021, NB in April 2021 or the Presiding Tribunal Member and delegate of the Office of the Public Guardian on 3 December 2021. 
  4. [138]
    Thus, NB stated, ‘I am dubious that he [the Adult] is freely and voluntarily making decisions about EPOA matters and I suspect there may be pressure or influence by others.’ The Applicant’s response, as previously cited, was to state, ‘Professionally, I disagree with [NB’s] last comment on vulnerability.’
  5. [139]
    I find no evidence to support the Applicant’s submission that the Adult is capable of, ‘freely and voluntarily making decisions about the matter.’

(c) ‘Communicating the decision in some way’

  1. [140]
    On 3 December 2021, the Tribunal ascertained first hand, that the Adult’s verbal communication skills were clear and appropriate.
  2. [141]
    In view of the Adult’s physical and cognitive deterioration, and evidence as provided by the Adult meeting with strangers, the Adult’s communication skills exposed not only deficits in the earlier criteria of capacity. Due to the nature of assistance provided the Adult has clearly become dependent on others not only making most of his decisions for him but also communicating the decisions.
  3. [142]
    While NB suggests that the Adult’s ‘verbal fluency’ is’ ‘impaired’, memory problems and deteriorating cognitive capacity clearly also restrict the Adult’s capacity for both expressive and receptive communication.
  4. [143]
    Consequently, I find that while capable of expressive his own views and wishes, the Adult has an impaired capacity to communicate his decisions.

Conclusion as to capacity

  1. [144]
    I have found that the evidence establishes that the Adult’s capacity to understand the nature and effect of decisions regarding his personal, health care and financial matters is impaired and that he is no longer capable of freely and voluntarily making decisions.
  2. [145]
    The Adult’s capacity to communicate his decisions is also impaired by the Adult’s diminished memory and understanding, lack of insight into potential outcomes and his own limitations.
  3. [146]
    In section 146(1) the GA Act provides—
  1. (1)
    The Tribunal may make a declaration about the capacity of an adult, guardian, administrator or attorney for a matter.
  1. (2)
    The tribunal may do this on its own initiative, or on the application of the individual or another person
  1. [147]
    As the question of the Adult’s capacity has been disputed for some time, on 6 February 2022, the Tribunal declared that the Adult has impaired capacity for all matters.
  2. [148]
    Had the evidence before the Tribunal satisfied me that the presumption of the Adult’s capacity for financial, and personal (including health) matters had not been rebutted and consequently that the Adult had capacity for those matters, I would have been obliged to dismiss the application, as guardians and administrators can only be appointed for adults with impaired capacities.
  3. [149]
    However, even if DC had sought to withdraw her application, once the application was lodged, it was up to the Tribunal to ensure that it had before it all the evidence required to determine whether the Adult has an impaired capacity and, if he does, to ensure that the needs created by this impairment are met adequately and appropriately.
  4. [150]
    For that reason, as previously noted, applications made under the GA Act and the PA Act can only be withdrawn with the leave of the tribunal.[38]

2. Need for Appointment

  1. [151]
    A finding that the Adult has an impaired capacity for personal, health and financial matters, does not in itself mean that a Guardian and Administrator may or should be appointed.
  2. [152]
    Section 12(1) of the GA Act states that in addition the tribunal must additionally be satisfied that—
  1. (b)
    there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves or is likely to involve, unreasonable risk to the adult’s health, welfare or property.

Identified Needs.

  1. [153]
    As Dr SJ observed, conflict rendered the Adult particularly vulnerable. This together with his physical frailty meant that his need for decision maker extended over personal, health and financial matters.

a) Financial matters

  1. [154]
    Turning first to the Adult’s financial matters, I note that the Adult’s assets are limited, that his income has recently been reduced to an aged pension as his superannuation payments have ceased, and that his daily expenses are significant due to a large extent to his chain smoking, estimated to cost $700 per fortnight.[39]
  2. [155]
    The Adult’s carer, DB, has advised that would prefer his finances be utilised to meet the costs of her household on the understanding that she would take care of his financial needs when his money runs out.[40]  Clearly there is a need for someone to ensure that the Adult’s savings provide him with some security in the future and that his living arrangements do not leave him financially exploited.

b) Health Care

  1. [156]
    In view of the sharp differences as to medical treatment between the Adult’s daughters and his siblings, there is an undoubted need for clarity as to who has the final say about health care and treatment, including choice of doctor.
  2. [157]
    The Adult’s daughters are also concerned about end of life decisions including where their father is to be laid to rest, as they say that the Adult’s wishes are not respected by DB.

c) Other Personal Matters

  1. [158]
    Decisions about accommodation, housing and services are perhaps the most sensitive. Since mid 2020 the Adult has indicated that he wishes to live with DB and to have her as his carer.
  2. [159]
    Having read all the materials and presided over two hearings I remain unclear as to the current nature of the relationship between DB and the Adult. While the applicant and other family members recognise her as the Adult’s spouse, in hearings RB declined to be described as his partner and the Adult has not been consistent in his description of the relationship.
  3. [160]
    I raise this issue because it has a direct bearing on the Adult’s pension and appropriate contribution to DB’s household finances, and his personal and health care decisions.
  4. [161]
    The current arrangement calls for a delicate balancing of the Adult’s clear wish to live with DB and previously demonstrated need for him to be protected should he wish or need to leave that arrangement.  For that reason there appears to be a need for a decision maker to make such decisions should they be required. On the basis of such previous decisions, the need for such a decision maker would encompass financial matters, and matters of health care, accommodation and access to services.
  5. [162]
    It appears that the Adult is so reliant on the assistance and decision making of those around him that without decisions being on his behalf relating to his finances, health care and other personal matters, I have no doubt that he would be likely to do something that would ‘involve unreasonable risk to [his] health, welfare or property.
  6. [163]
    In view of the ongoing conflict in the family, and the attorneys’ feeling that they are being pushed out of their father’s life,[41] it is important that someone have the authority to, if necessary, make decisions about the Adult’s contact with others.

3. Required to adequately meet the Adult’s needs and protect his interests?

  1. [164]
    A finding of a need for decision maker regarding these matters does not necessarily mean that a guardian and administrator should be appointed. The final element of which the Tribunal must be satisfied in order to be able to appoint a guardian or administrator is whether without the appointment of guardian or administrator—

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

(ii) the adult’s interests will not be adequately protected.[42]

  1. [165]
    In doing so, the Tribunal is required to consider whether the Adult’s needs can be addressed in a manner less restrictive of the Adult’s rights and freedoms.
  2. [166]
    This requirement ensures that in order for the Tribunal to be satisfied that an appointment of a guardian or administrator is essential to ensuring that the identified needs are met and interests protected.
  3. [167]
    This is in keeping with, General Principle 7(2) which underlines, ‘the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions, must be taken into account.
  4. [168]
    It could be said that this criterion, encapsulates the balancing required to achieve the overarching purpose of the Act, as set out in section 6 of the HR Act.

This Act seeks to strike an appropriate balance between –

  1. (a)
    The right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and
  2. (b)
    The adult’s right to adequate and appropriate support for decision-making.
  1. [169]
    The Tribunal must protect the Adult’s right to make his own decisions, by identifying such means of addressing his needs as would be least restrictive of his rights and freedoms. 
  2. [170]
    Consequently, I must consider alternatives to the appointment of a guardian or administrator and determine whether such alternatives would adequately meet his needs and protect his interests. 
  3. [171]
    In this case, the two less restrictive alternatives are the Adult’s enduring powers of attorney.
  4. [172]
     

Enduring Powers of Attorney

  1. [173]
    The Adult executed his most recent EPA on 21 April 2021. According to the terms of the EPA the Adult appointed DB, his carer/partner, as his attorney for health decisions, and his sister GC to make his financial decisions. He authorised his attorneys to commence to make decisions for financial and medical matters when, ‘I do not have capacity to make decisions for financial and medical matters.’ In this document, the Adult also expressed a number of specific wishes and preferences to be considered by his attorney. If found to be valid, this EPA would revoke the 2001 EPA.[43]

Is the Adult’s 21 April 2021 EPA valid?

  1. [174]
    Section 113(2) of the PA Act provides that the Tribunal may declare an EPA to be invalid if satisfied that—
  1. (a)
    the principal did not have the capacity necessary to make it; or
  2. (b)
    it does not comply with the other requirements of this Act, or
  3. (c)
    it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.

The Adult’s Capacity to execute his Second EPA

  1. [175]
    As earlier noted, the first general principle governing the performance of any function or exercise of any power under the PA Act is the presumption that the Adult has capacity.[44] In addition, the PA Act specifically addresses the Tribunal’s ‘Application of presumption of capacity’ in section 111 A of the PA Act, stating—
  1. (1)
    If, in performing a function or exercising a power under this Act, the court or tribunal is required to make a decision about an adult’s capacity for a matter, the court or tribunal is to presume the adult has capacity for the matter until the contrary is proven.
  1. [176]
    I turn to the first and crucial criterion for the making of a valid EPA. Section 41(1) of the PA Act states that, ‘A principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney.’  
  2. [177]
    Section 41(2) goes on to list what is required to establish an ‘understanding of the nature and effect of the EPA’. It states—
  1. (2)
    Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—
  1. (a)
    the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
  2. (b)
    when the power begins;
  3. (c)
    once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;
  4. (d)
    the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;
  5. (e)
    the power the principal has given continues even if the principal becomes a person who has impaired capacity;
  6. (f)
    at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.

Evidence Rebutting the Presumption of Capacity

  1. [178]
    I find that there is a significant amount of evidence, much of which I’ve already identified, suggesting that the Adult did not have capacity to execute an EPA.
  2. [179]
    I note in particular the evidence of NB who assessed the Adult’s capacity a day earlier on 20 April 2021. Apart from her earlier observations qualifying the Adult’s broader decision-making capacity, NB sought to determine the Adult’s understanding of an EPA. Her Report records that he was confused by what an EPA was and suggested that it was ‘to have control of my money’. In addition, that he did not remember when he had made his first EPA is perhaps understandable in light of his diminished memory, although on the day before he intended to revoke that EPA by executing a second, the date of the earlier EPA should have been fresh in his mind.
  3. [180]
    In these circumstances, when meeting with NB, the Adult, was not sure why first EPA was active since 2011, is difficult to explain, as that factor had been at the core of the family’s conflict over his finances. I also note that when an EPA was explained to him by NB, he is reported to have changed his mind about having DB alone as his attorney, preferring instead that his daughters share this role with her.
  4. [181]
    When speaking with DB’s lawyer, with whom he had a pro bono consultation in January 2021, the Adult revealed a sounder understanding of an EPA. He told the lawyer that while his daughters were his attorneys, ‘he has capacity to make his own decisions and he has never been assessed (or advised that he doesn’t have capacity).’
  5. [182]
    Even if the Adult did understand every other aspect of the nature and effect an EPA, it would be totally inconsistent with a long-held view that he expressed throughout the period of these proceedings that he did not wish to dismiss his daughters as his attorneys.
  6. [183]
    When consulting DB’s lawyers and being assessed by Dr BS and in conversations with Dr SJ, the Adult was clear as to his wish not to remove his current attorneys. Consequently, it is highly unlikely that the Adult understood An EPA ‘is revoked to the extent of an inconsistency, by a later enduring document of the principal.’[45] If the Adult failed to appreciate this effect of making a new EPA then he lacked the capacity to understand the nature and effect of what he was doing.
  7. [184]
    If he was led to believe otherwise, I note that it is a punishable offence to ‘dishonestly induce a person to make or revoke a power of attorney.’[46]
  8. [185]
    s 42(2) (d) of the PA Act, which provides that—

the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power.

  1. [186]
    At a more general level of assessment, on 23 March 2021, the Adult’s long-standing GP, Dr SJ wrote to the attorneys’ lawyers stating, ‘I am of the opinion that [the Adult] no longer has capacity to manage his legal or financial matters.’ 
  2. [187]
    I consider the evidence that the Adult lacked an understanding of the nature and effect of the EPA he executed on 21 April 2021, to be sufficient to rebut the presumption of his capacity.
  3. [188]
    Even if I am wrong in finding that the Adult lacked the capacity to understand the nature and effect of her decision to make the EPA, the medical and other evidence would clearly suggest that the Adult was not capable of freely and voluntarily making decisions about the matter.’
  4. [189]
    The evidence discussed earlier relating to why the Adult is currently not capable of making decisions freely and voluntarily, is particularly applicable to the Adult’s capacity at the time of his execution of the EPA on 21 April 2021.
  5. [190]
    I find the Adult’s execution of this EPA to be completely at odds with his wishes regarding his attorneys’ powers, as expressed to independent persons including the Presiding Tribunal Member.
  6. [191]
    As I conclude that the Adult lacked the capacity to execute his EPA on 21 April 2021, I declared the EPA invalid.[47]
  7. [192]
    A significance of this document’s invalidity is that the Adult’s earlier EPA is not revoked by it and provides the remaining options for a less restrictive alternative to the appointment of the Adult.

The 16 March 2001 Enduring Power of Attorney.

  1. [193]
    The Adult’s earlier EPA was executed on 16 March 2001 when he appointed his daughters TCR and PCA as his attorneys for personal health and financial matters, with their power for financial matters to commence immediately. The attorneys accepted their appointment on 6 April 2001.

The Validity of the March 2001 EPA

  1. [194]
    I begin by considering whether the Adult’s 21-year-old EPA is valid.
  2. [195]
    As previously noted, section 113(2) of the PA Act provides that the Tribunal may declare an EPA invalid if satisfied that—
  1. (a)
    the principal did not have the capacity necessary to make it; or
  2. (b)
    it does not comply with the other requirements of this Act, or
  3. (c)
    it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.
  1. [196]
    As discussed with respect to the 2021 EPA, a principal is presumed to be capable of executing an EPA, unless the contrary is proven.[48] No evidence has been presented suggesting that on 16 March 2001 the Adult lacked capacity to execute the document.
  2. [197]
    An EPA must also comply with a number of other requirements. The formal requirements of an EPA are set out in section 44 of the PA Act.

44 Formal requirements

  1. (1)
    An enduring power of attorney must be in an approved form.
  2. (2)
    An advance health directive must be written and may be in the approved form.
  3. (3)
    An enduring document must—
  1. (a)
    be signed—
  1. (i)
    by the principal; or
  2. (ii)
    if the principal instructs—for the principal and in the principal’s presence, by an eligible signer; and
  1. (b)
    be signed and dated by an eligible witness.
  1. (4)
    If an enduring document is signed by the principal, it must include a certificate signed by the witness stating the principal—
  1. (a)
    signed the enduring document in the witness’s presence; and
  2. (b)
    at the time, appeared to the witness to have the capacity necessary to make the enduring document.
  1. (5)
    If an enduring document is signed by a person for the principal, it must include a certificate signed by the witness stating—
  1. (a)
    the principal, in the witness’s presence, instructed the person to sign the enduring document for the principal; and
  2. (b)
    the person signed it in the presence of the principal and witness; and
  3. (c)
    the principal, at the time, appeared to the witness to have the capacity necessary to make the enduring document.
  1. (6)
    An advance health directive must also include a certificate signed and dated by a doctor mentioned in subsection (7) stating the principal, at the time of making the advance health directive, appeared to the doctor to have the capacity necessary to make it.

….

  1. (8)
    An enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document.
  1. [198]
    An examination of the EPA and available evidence discloses no basis on which to find that the EPA fails to comply with other requirements of the PA Act, or that it is invalid for another reason.
  2. [199]
    Further, no evidence has been produced suggesting that the Adult has revoked the EPA, or removed his attorneys.
  3. [200]
    The only doubts cast on the EPA’s are inferences to be drawn from comments made by DC that the Adult has not been able to recollect executing the document, that the document had not been made accessible to others, and that she had not been aware of its existence.
  4. [201]
    As the Tribunal has revoked the EPA executed on 16 March 2001 on the grounds that the Adult lacked the capacity to execute the document, and there appears to be no other perceived revocation of the 2001 EPA, while the Adult had the ‘capacity necessary to make an enduring power of attorney giving the same power.’[49]
  5. [202]
    Satisfied as to its validity and existence, the Tribunal has declared the EPA dated 16 March 2001 to be valid. The Tribunal has also declared the attorneys’ power for financial matters to have commenced on 4 April 2001, and that the Adult’s capacity for financial matters was certified as impaired on 24 March 2001.
  6. [203]
    In addition, the Tribunal declared that the attorneys’ power for personal matters including health matters was exercisable from 4 April 2001, during periods that the Adult’s capacity was or is impaired, and irrespective of whether such impairment is or was certified or declared.
  7. [204]
    Finally, by declaring the Adult to currently have impaired capacity for all matters, the Tribunal in effect declares the attorneys to have the power for the Adult’s financial and personal, including health, matters.  However, while the Adult has been declared to have impaired capacity for all areas of his life, as discussed below, the attorneys are obliged to encourage and facilitate the Adult’s participation and involvement in decision making, for which they believe he has capacity.[50]
  8. [205]
    In a submission dated 26 November 2021 the Adult’s attorneys, advised the Tribunal that—

We wish to be removed as our father’s Financial Attorneys as our position is untenable, the conflict surrounding this is severely affecting our mental wellbeing, and we now believe that it is impossible for us to receive a just outcome before QCAT for our father – and the protection of our father;

We seek, however, to retain our father’s Medical Power of Attorney – in circumstances where he now faces considerable health issues, which require his wishes to be strictly adhered to, and which involves his trusted doctor of more than 25 years: Dr [SJ].[51]

  1. [206]
    While ‘an attorney may resign as attorney for a matter by signed notice given to the principal’[52] when, as in this case, the principal has an impaired capacity, an attorney ‘may only resign as attorney for the matter with the court’s leave.’ [53]
  2. [207]
    As the attorneys’ submission significantly altered the potential outcomes, all parties were invited to make submission by 31 January 2022. However, in their subsequent submissions dated 27 January 2022, the attorneys withdrew their request, stating,

We wish to withdraw this request, [to be relieved of our financial power], and retain both financial and health powers in accordance with the Powers of Attorney signed in 2001.’[54]

  1. [208]
    The reason the attorneys give for this change is the, ‘more peaceful environment post-3 December hearing’ and almost complete lack of, ‘continued agitation of our father on the issue of his finances’. As a result, they report, the Adult, ‘has not experienced stresses in relation to his financial affairs.’
  2. [209]
    The validity of this EPA does not necessarily mean that it provides a suitable alternative to the appointment of a guardian and administrator. For the Adult’s EPA to provide a less restrictive alternative to the appointment of a guardian and/or administrator, the Tribunal must be satisfied that the EPA adequately meets the Adult’s needs and protects his interests.

Allegations, in the Context of Attorney’s obligations and Governing Principles

  1. [210]
    The Applicant, DB and other members of the family and friends of the Adult have submitted that the attorneys should be removed because in performing their duties as the Adult’s attorneys administrators they have not acted in his best interests.
  2. [211]
    In addressing concerns raised regarding the attorneys undertaking of their obligations, the Tribunal must assess whether this EPA, can be said to adequately meet the Adult’s needs and address his interests. 
  3. [212]
    In addition to the Tribunal being able to declare an EPA valid or invalid, the Tribunal is empowered to revoke part or all of an EPA document,[55]and remove, appoint or replace an attorney.[56]
  4. [213]
    The PA Act sums up an attorneys obligations, by stating,‘An attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests.’[57]
  5. [214]
    More specifically, an attorney must avoid conflict transactions,[58] ‘keep the attorney’s property separate from the principal’s property,’[59] and, ‘keep and preserve accurate records and accounts of all dealings and transactions made under the power.’[60]
  6. [215]
    The PA Act also sets out a list of General Principles that must be applied by the attorneys, as persons exercising a power under the EPA.[61] In summary they are:
  1. 1.Presumption of an adult’s capacity for a matter.
  2. 2.‘The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.’
  3. 3.The importance of ‘empowering an adult to exercise the adult’s human rights and fundamental freedoms.’
  4. 4.‘The importance of maintaining an adult’s existing supportive relationships must be taken into account.’ This may ‘involve consultation with, for example, any persons who have an existing supportive relationship with the adult.’
  5. 5.‘The importance of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.’
  6. 6.‘An adult’s privacy must be taken into account and respected.’
  7. 7.‘An adult’s right to liberty and security on an equal basis with others must be taken into account.’
  8. 8.‘An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.’
  9. 9.Exercise power under the PA Act or an enduring power of attorney, ‘in a way that promotes and safeguards the adult’s rights, interests and opportunities; and in the way that is least restrictive of the adult’s rights, interests and opportunities.’
  10. 10.In applying general principle 9, adopt in which the person exercising the power must adopt a structured decision making approach in which:
  1. (a)
    First, ‘they must recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and if possible, support the adult to make a decision.’
  2. (b)
    Second, they must ‘recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.’
  3. (c)
    Third, ‘if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement - take into account what the adult’s views, wishes and preferences would be if able to be discerned from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity and
  4. (d)
    Fourth, after taking into account matters mentioned in preceding steps, ‘may perform the function or exercise the power.’
  1. [216]
    In addition, the PA Act also lists Health Care Principles which ‘must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document for a health matter.’[62]
  1. 1.General principles must be applied by person exercising power under this Act or an EPA for a health matter.
  2. 2.Any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.
  3. 3.Any person exercising a power for a health matter must take into account-
  1. (a)
    information given by the adult’s health provider; and
  2. (b)
    if the adult has a medical condition—
  1. (i)
    the nature of the adult’s medical condition; and
  2. (ii)
    the adult’s prognosis; and
  1. (c)
    if particular health care is proposed, any alternative health care that is available; and
  2. (d)
    the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and
  3. (e)
    whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and
  4. (f)
    the consequences for the adult if the proposed health care is not carried out; and
  5. (g)
    a consideration of the benefits versus the burdens of the proposed health care; and
  6. (h)
    the effect of the proposed health care on the adult’s dignity and autonomy.
  1. 4.In applying general principle 10(4) to a health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.

Allegations regarding financial matters

  1. [217]
    A repeated allegation, made by parties supporting the application has been the claim that the attorneys were not providing the Adult with sufficient funds or with funds in a form that he requested or preferred.
  2. [218]
    This allegation must be considered in the context of the Adult’s living arrangements and his incapacity with respect to his financial matters, in part due to his cognitive decline but also due to his lack of experience in managing finances.
  3. [219]
    When viewed in this light I find that money, or more importantly access to sources of money, has been restricted due to concerns that the Adult is or may be financially exploited. Even in such situations, I note that when the Adult requested additional funds, those were made available without delay. I note that the Adult has discussed a source of additional funds permanently available to him.
  4. [220]
    Claims and allegations regarding inadequate funding being made available to the Adult appear to reflect the views of the Applicant rather than those of the Adult.
  5. [221]
    A number of the concerns expressed about the attorneys’ management of the Adult’s funds appeared to flow from not being aware of how and why the attorneys were handling the Adult’s finances.
  6. [222]
    I turn to specific allegations regarding the attorneys’ financial role. The first relates to suggestions that some of the Adult’s money was held in a trust account, an account that was not in his name, or in a joint account with one the attorneys. Such actions, if proven, could amount to breach of the requirement for an attorney to keep the attorney’s property separate from the principal’s property.[63]
  7. [223]
    Once again, the explanations offered by the attorneys suggest that a misunderstanding of what the attorneys were doing may account for the basis of the claims. I find no evidence that would lead me to find the attorneys guilty of having breached their obligation to keep their property separate from the Adult’s.[64] In any event I note that this obligation is qualified in that it ‘does not affect another obligation imposed by law.’[65] In this case, the ‘other obligation’ would be the attorneys’ desire to protect the Adult’s funds by preventing access to those who they believe may exploit the Adult’s vulnerability. 
  8. [224]
    As to allegations regarding the attorneys’ lack of consultation with the Adult regarding his finances, I note the difficulty the attorneys face in fulfilling their obligation to maximise the Adult’s participation in decision-making[66] while seeking to minimise the stress such involvement may cause their father.
  9. [225]
    I have not identified anything that would cause me to suspect that the attorneys may have breached any of their obligations as attorneys for their father’s financial matters. As for the alleged technical breaches mentioned above, even if established, they would not in my view, in the circumstances of this case create a need to consider the removal of the attorneys.

Allegations regarding personal and health matters

  1. [226]
    Similarly, allegations regarding the Adult’s attorneys decision making regarding his personal and health matters is confined to familial conflict where family members have taken it upon themselves to make decisions they deem to be in the Adult’s best interests even where at odds with the views and wishes of the attorneys, and most importantly with the Adult’s long held views and wishes.
  2. [227]
    Difference of opinion between the attorneys and DC, DB and other family members supporting them regarding the choice of the Adult’s GP, his vaccination for Covid-19 and his views on diagnosis and treatment of suspected illnesses, highlight the sharp contrast in approaches.  The approach of the attorneys applies the structured decision making of the general principle 10 as applied through the substituted judgment of Health care principle 4. 
  3. [228]
    The approach preferred by the Applicant and DB is to do and get the Adult to do what they believe to be in his best interests. The reason such an approach, no matter how nobly motivated, is not preferred is that it is at odds with the preservation of an adult’s autonomy and expectations that decision maker’s choices will be based on an adult’s preferences, views and wishes no matter how expressed, or discerned from the time when an adult had capacity.
  4. [229]
    Having reviewed the evidence relating to the attorneys’ performance of their obligations leads me to conclude that the negative effect on the Adult has not been caused by his attorneys’ maladministration of his finances and other matters, but by the conflict in the family and particularly between his carer and sisters on one side and his daughters on the other. This view appears to be reinforced by the attoneys’ report of how after the 3 December 2021 hearing, their father has avoided the earlier stresses relating to the management of his finances.
  5. [230]
    Having regard to the attorney’s performance of their duties as their father’s attorneys and their application of the general and health care principles governing the exercise of their powers, I do not find any grounds upon which I could justify removing the attorneys.[67]
  6. [231]
    On the basis of the above finding that the 2021 EPA is ensuring that the Adult’s needs are adequately met and his interests adequately protected, I find that there is no need for the appointment of a guardian and administrator and dismiss the application seeking such appointments. 
  7. [232]
    The Tribunal does not go on to enquire whether another alternative such as the appointment of a guardian and administrator would meet the Adult’s needs better than the EPA. The reasons is that the EPA expresses the Adult’s views and wishes and consequently will be considered to be less restrictive of his rights and freedoms, unless respecting his views and wishes results in his needs not being adequately met.
  8. [233]
    If neither of the EPA proved valid or capable of adequately meeting the Adult’s needs and addressing his interests, the Tribunal would have turned to consider whether the required decisions could be made informally.
  9. [234]
    While I am not required to consider this option, I will briefly note that in the absence of an EPA, it is often possible for family members and close friends to make all personal, including health care, decisions for a person lacking capacity for such matters, as few if any personal decisions needing to be made on behalf of a person lacking capacity need to be legally authorised. Medical decisions can be made by a Statutory Health Attorney, a person authorised ‘to make any decision about a health matter’, not by appointment but by virtue of their relationship with a person who lacks capacity for health care.[68] 

Application for Costs

  1. [235]
    On 21 July 2021, submissions were filed on behalf of PCA and TCR. Submission 17 addressed the question of costs.

As to costs we seek an order against the Applicant personally in terms of s 127 of the GA Act. There are exceptional circumstances such that the tribunal may make such an order. These proceedings—

  1. (a)
    were frivolous and vexatious;
  2. (b)
    were never necessary or desirable;
  3. (c)
    could on the applicant’s own case that [the Adult] had capacity which has been confirmed) never have succeeded;
  4. (d)
    should never have been commenced;
  5. (e)
    have caused harm to [the Adult]’
  6. (f)
    have caused us to incur considerable expense.
  1. [236]
    The law informing the Tribunal’s response to this application by TCR and PCA, is, as their attorneys submit, set out in section 127 of the GA Act, which provides—
  1. (1)
    Each party in a proceeding is to bear the party’s own costs of the proceeding
  2. (2)
    However, the tribunal may order an applicant to pay an active party’s costs and the costs of the tribunal in exceptional circumstances including for example, if the tribunal considers the application is frivolous or vexatious.
  1. [237]
    The attorneys’ submission is that while it is normally expected that each party will bear its own costs, an applicant may be ordered to pay another party’s costs in exceptional circumstances, for example where their application is frivolous or vexatious.
  2. [238]
    Further guidance as to when an order for costs is appropriate, is to be found in section 102(1) of QCAT Act, which states—

The Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceedings if the tribunal considers the interests of justice require it to make the order.

  1. [239]
    So, while the GA Act provides that an order for costs may be ordered in exceptional circumstances, the QCAT Act states that such an order may be made if the tribunal considers the interests of justice require it to make the order.
  2. [240]
    Section 101(3) the QCAT Act provides guidance for the determination of when the interests of justice may require a costs order to be made. It states that—

In deciding whether to award costs under section (1) the tribunal may haver regard to the following—

  1. (a)
    whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1(a) to (g);
  2. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  3. (c)
    the relative strengths of the claims made by each of the parties to the proceedings;

….

  1. (e)
    the financial circumstances of the parties to the proceeding
  2. (f)
    anything else the tribunal considers relevant
  1. [241]
    Some of the ways in which a party to proceedings may unnecessarily disadvantage another are listed in section 48(1) of the QCAT Act as including—
  1. (a)
    not complying with a tribunal order or direction without reasonable excuse; or 
  2. (b)
    not complying with this Act, an enabling Act or the rules; or
  3. (c)
    asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
  4. (d)
    causing an adjournment; or
  5. (e)
    attempting to deceive another party or the tribunal; or
  6. (f)
    vexatiously conducting the proceeding; or
  7. (g)
    failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.
  1. [242]
    The attorneys submit that there are exceptional circumstances in these proceedings justifying the making of a costs order against the Applicant. Specifically, they submit that the proceedings brought by DC—

(i) Were frivolous and vexatious;

Some of the issues raised by the Applicant are core concerns and considerations in Guardianship and Administration matters and in relation to Powers of Attorney. However, the manner in which they were submitted or argued would undoubtedly have caused the attorneys to devote significant time in preparing responses.  Nevertheless, I would not consider this to constitute ‘exceptional circumstances’.

(ii) Were never necessary or desirable

  1. [243]
    The outcome of these proceedings is a confirmation of the status quo as it existed before the proceedings. On that basis it could be said that the proceedings were unnecessary. However, to the extent that the hearings provided opportunities for issues to be aired, and the decisions provide definitive rulings and finality, they may be said to be desirable, if not necessary.

(iii) The proceedings should never have been commenced

  1. [244]
    I note that even prior to the first hearing in July 2021, the Attorneys’ had submitted that the Application seeking the appointment of a guardian and administrator or the Adult should not have been brought as the application was premised on the Adult having decision making capacity but sought the appointments requiring a lack of capacity.
  2. [245]
    However, the bringing of the application makes more sense if considered in the light of the Applicant’s awareness of assessments of capacity providing evidence of incapacity signalling the commencement of certain powers given to the attorneys. So the Applicant was in fact asking the Tribunal to consider, whether the Adult is being assessed to be incapable when in fact he is capable, but even if incapable, his needs are not being addressed by his attorneys and a guardian and administrator should be appointed.
  3. [246]
    For the above reasons I do not see the bringing of the application as ‘vexatious’.

(iv) Have caused harm to [the Adult]’

  1. [247]
    The bringing of these proceedings has undoubtedly been stressful and upsetting for the Adult. The impression I have gained from submissions, evidence and in particular, my private conversation with the Adult is that he has found the whole process to be stressful, upsetting and embarrassing.
  2. [248]
    While it is not uncommon for an adult to be harmed by family conflict, all parties should now be aware of this and are hopefully determined to ensure that the Adult is shielded from any remaining conflict.
  3. [249]
    While the harm caused is regrettable, it does not in my view constitute exceptional circumstances such as would warrant the issuing of an order for costs.

(iv) Have caused the attorneys to incur considerable expense.

  1. [250]
    In this Tribunal’s hearings parties do not have an automatic right to be legally represented. In section 43(1) the QCAT Act states that ‘parties are to represent themselves unless the interests of justice require otherwise.’ On 19 April 2021, TCR and PCA sought leave to be legally represented. Their application was refused on 22 June 2021. 
  2. [251]
    Parties are expected to represent themselves not in order to take on the legal work themselves, but rather because tribunal proceedings are intended and designed to be conducted without the presence and involvement of legal representatives.
  3. [252]
    The hearings themselves are intended to be sufficiently informal to ensure that all participants can understand and contribute. As Tribunal hearings are inquisitorial rather than adversarial, the Tribunal plays an active part in securing all the evidence and information required for it to make the required decision. As proceedings are less formal legal issues are able to be explained by the Tribunal. Importantly, unless, leave to be represented is granted, there is no expectation that parties will present formally drafted documents or oral argument.
  4. [253]
    Legal costs may of course be incurred even when parties are not legally represented in proceedings. Legal advice and the drafting of letters, replies and submissions may cause a party to incur considerable costs. But even in this respect, proceedings of this type before the Tribunal are not expected to require the involvement of legal assistance.
  5. [254]
    Readily and freely available materials explain the nature of various proceedings, and provide a guide to participation in proceedings. Where there are forms to be filled out, they are easily accessible, and explained.  The Tribunal’s case managers are also available to clarify or answer any questions. 
  6. [255]
    Proceedings before the Tribunal in Guardianship, Administration and Powers of Attorney matters are designed to be conducted informally, without legal representation and with each party bearing their own costs. These proceedings, while at times vexatious, did not in my opinion constitute the exceptional circumstances[69] Neither do I consider that the interests of justice, as envisaged by section 101 of the QCAT Act, require a costs order to be made.
  7. [256]
    For the above reasons I have refused the application by TCR and PCA for an order for Costs against the DC.

Compatible with Human Rights

  1. [257]
    In these proceedings the Tribunal is required to also comply with certain provisions of the Human Rights Act 2019 (HR Act).
  2. [258]
    The HR Act imposes specific obligations on ‘public entities.’ When acting in an administrative capacity, courts and tribunals are public entities for the purposes of the HR Act.[70] When appointing guardians and administrators pursuant to the GA Act and dealings with EPAs under the PA Act, the Tribunal is considered to be acting in its administrative capacity and consequently to be a ‘public entity’ for the purposes of the HR Act.[71]
  3. [259]
    As a ‘public entity’ the Tribunal is required by the HR Act ‘to act and make decisions in a way that is compatible with human rights’,[72] and to give proper consideration to a human right relevant to the decision’.[73] The HR Act makes it unlawful for the Tribunal not to do so.[74]
  4. [260]
    The HR Act also requires ‘courts and tribunals to interpret provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.’[75]
  5. [261]
    A legal provision or a decision or other act of the Tribunal is compatible with human rights, if it —
  1. (a)
    does not limit a human right; or
  2. (b)
    limits the human right only to the extent that is reasonable and demonstrably justifiable …[76]
  1. [262]
    In determining what constitutes reasonable and justifiable limits on the human rights of those affected the Tribunal may need to balance and reconcile diverse and competing human rights.  The Act recognises this by providing guidance through the following list of factors that ‘may be relevant’ to ‘deciding whether a limit on a human right is reasonable and justifiable’.
  1. (a)
    The nature of the human right;
  2. (b)
    The nature and purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom.
  3. (c)
    The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  4. (d)
    Whether there are any less restrictive and reasonable available ways to achieve the purpose;
  5. (e)
    The importance of the purpose of the limitation;
  6. (f)
    The importance of preserving the human right, taking into account the nature and extent of the limitation of the human right;
  7. (g)
    The balance between matters mentioned in paragraphs (e) and (f).[77]
  1. [263]
    In declaring the Adult to have impaired capacity for all matters, dismissing the Application seeking the appointment of a Guardian and Administrator, and declaring the enduring power of attorney dated 21 April 2021 to be invalid, the Tribunal has decided that the Adult’s attorneys may continue exercising the powers given to them by the Adult in the EPA dated 16 March 2001.
  2. [264]
    The Tribunal’s determination that the Adult has impaired capacity regarding all matters, clearly limits many of his human rights. The rights of other parties to these proceedings have also been limited.
  3. [265]
    The impact of the exercise of attorney’s power under an EPA on the human rights of  an EPA’s principal is addressed in the PA Act. 
  4. [266]
    As discussed earlier, the PA Act sets out General Principles and Health Care Principles that ‘must be applied by a person, or other entity that performs a function or exercises a power under this Act or an enduring power of attorney.’[78]
  5. [267]
    As Principles 2 and 3 most directly relate to the Adult’s human rights, I  set them out to underline expectations of both the attorneys’ and Tribunal’s exercise of power under the enduring power of attorney and under the Act.
  6. [268]
    For instance, General Principle 2(2) states that ‘The rights of all adults to the same rights and fundamental freedoms regardless of a particular adult’s capacity, must be recognised and taken into account
  7. [269]
    General Principle 2(3) specifies that, ‘The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those right are taken into account include –
  1. (a)
    respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and
  2. (b)
    non-discrimination; and
  3. (c)
    full and effective participation and inclusion in society, including performing roles valued by society; and
  4. (d)
    respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and
  5. (e)
    equality of opportunity; and
  6. (f)
    accessibility; and
  7. (g)
    equality between all persons regardless of gender.
  1. [270]
    General principle 3 requires attorneys to exercise their power in a manner that empowers the Adult to exercise his human rights and fundamental freedoms.
  2. [271]
    In view of the conflict between parties to this proceeding I also note general principle 4(3)—'The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.’ The HR Act lists the ‘Protection of families and children’ as a human right, and notes in part that ‘Families are the fundamental group unit of society and are entitled to be protected by society and the State.[79]
  3. [272]
    The HR Act also lists ‘Privacy and Reputation’ as human rights, and states—

A person has the right—

  1. (a)
    not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  2. (b)
    not to have the person’s reputation unlawfully attacked.[80]
  1. [273]
    The PA Act’s general principle 6 relates to respect for privacy, prescribing that—
  1. (1)
    An adult’s privacy must be taken into account and respected
  2. (2)
    An adult’s personal information including health information must be protected on the same basis as other people’s personal information is protected.
  1. [274]
    Findings as to the Adult’s capacity to make his own decisions regarding his finances is reflected in section 24 of the HR Act which states—
  1. (1)
    All persons have the right to own property alone or in association with others.
  2. (2)
    A person must not be arbitrarily deprived of the person’s property.
  1. [275]
    In addition, the PA Act’s general principle 8 expects those exercising power under an EPA to maximise the Adult’s participation in decision-making.[81] This involves taking into account an Adult’s ‘right to participate to the greatest extent practicable in decisions affecting the adult’s life.[82]

The Right to be Accorded a Fair Hearing and Natural Justice

  1. [276]
    The HR Act lists the right to a fair hearing as a human right. Section 31 provides that—
  1. (1)
    A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
  2. (2)
    However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice.
  3. (3)
    All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
  1. [277]
    The Tribunal is required to act ‘fairly and according to the substantial merits of the case.’[83] In proceedings, the Tribunal ‘must observe the rules of natural justice.’[84]
  2. [278]
    ‘Natural justice’ is sometimes referred to as procedural fairness or due process. Natural justice includes the right to be treated fairly and applies to a wide range of judicial, quasi judicial and administrative decision-making processes.
  3. [279]
    At its core, natural justice refers to the right to a fair hearing. A fair hearing generally entails appropriate notice of a hearing, a right to present one’s case, and a decision maker who is impartial, competent and unbiased. It also recognises that a party to proceedings has the right to present their own case, and be provided with a logically probative decision based on all the evidence presented.
  4. [280]
    As part of the right to a fair hearing, the HR Act clearly states that a party to civil proceedings has a right to have their proceeding decided ‘after a fair and public hearing’.[85] It also states that ‘all judgments and decisions made by a court or tribunal in a proceeding must be publicly available’.[86]

Public Hearing

  1. [281]
    Section 90(1) of the QCAT Act provides that, ‘Unless an enabling Act…provides otherwise, a hearing of a proceeding must be held in public’.
  2. [282]
    The GA Act as the enabling Act states in section 105(1) that ‘a hearing by the tribunal of a proceeding must be in public.’[87] However section 105(2) provides that,’the tribunal may make an adult evidence order or a closure order.’
  3. [283]
    The QCAT Act also provides that a tribunal may direct a hearing to be closed if the tribunal ‘considers it necessary—
    1. (a)
      to avoid interfering with the proper administration of justice; or
    2. (b)
      to avoid endangering the physical or mental health or safety of a person; or
    3. (c)
      to avoid offending public decency or morality; or
    4. (d)
      to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
    5. (e)
      for another reason, in the interests of justice.[88]
  4. [284]
    While Section 31(1) of the HR Act lists the right of a party to a civil proceeding to a fair and public hearing, in section 31(2) the HR Act provides for an exception. It states that—

a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.

  1. [285]
    I find that in these proceedings, the holding of an open hearing, with closure available if required was compatible with human rights as set out in section 31(1) and qualified in section 31(2) of the HR Act.

Publication of reasons

  1. [286]
    As set out above, the section 31(3) of the HR Act requires all tribunal decisions to be ‘publicly available’.  However, in section 114A the GA Act states—
  1. (1)
    Generally, information about a guardianship proceeding may be published.
  2. (2)
    However, a person must not, without reasonable excuse publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult by a member of the public; or by a member of the section of the public to whom the information is published,
  1. [287]
    Section 114A(8) defines prohibited publication as a ‘publication of information about a guardianship proceeding to the public or a section of the public that is likely to lead to the identification of the relevant adult by a member of the public or by a member of the section of the public to which the information is published.
  2. [288]
    I note that the decision published on 8 February 2022 and these reasons for the decisions are presented in a manner designed to prevent the identification of the Adult directly, or indirectly through the identification of other parties and witnesses or other information addressed in the hearing.
  3. [289]
    Parties in these proceedings are also reminded that this prohibition on dissemination of information about these proceedings that could identify the Adult, equally applies to them.
  4. [290]
    In accordance with factors listed in s 13(2) of the Act I note ‘the importance of the purpose of the limitation’,[89] ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’[90], ‘the balance between the [last two factors]’[91] and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.[92]
  5. [291]
    As outlined above, these Tribunal proceedings, the Tribunal’s interpretation of the law and in its decisions have been compatible with human rights. The Tribunal has given proper consideration to human rights affected by these proceedings and decision. Where human rights were found to be limited the Tribunal considered whether such limits were reasonable and justifiable. In this way the Tribunal has satisfied the requirement by the HR Act ‘to act and make decisions in a way that is compatible with human rights.’[93]

Conclusion

  1. [292]
    The Application brought by the Applicant did not lead to the appointment of a guardian and an administrator, as sought. The proceedings did however, serve to highlight and determine key issues related to protecting the Adult and promoting his best interests.
  2. [293]
    On being satisfied that evidence including all available evidence rebutted the presumption that the Adult is capable of making his own decisions, the Tribunal declared the Adult to be incapable for all personal including health and financial decisions.
  3. [294]
    Consideration of the evidence as to the need for decisions to be made for the Adult, disclosed a wide range of matters for which decisions need to be made. 
  4. [295]
    In the context of the family conflict, it is also clear that the person or persons making such decisions for the Adult would need to be appointed or otherwise have authority giving them the final say regarding such matters.
  5. [296]
    However, the Tribunal may only appoint a guardian and administrator where it is satisfied that ‘without the appointment of guardian or administrator, the adult’s needs will not be adequately met; the adult’s interests will not be adequately protected.[94]
  6. [297]
    The alternative to the appointment of a guardian or administrator are the attorneys appointed by the Adult, but only if the Tribunal finds that the attorneys appointed in the March 2001 or April 2021 EPAs are validly appointed and able to ensure that the Adult’ needs will be met and his interests protected ‘adequately’.
  7. [298]
    As the most recent EPA was revoked on the grounds of the Adult’s incapacity. The only remaining alternative to the appointment of a guardian and administrator is the original EPA executed in 2001.
  8. [299]
    In the absence of any evidence suggesting that the EPA was invalid I turned to consider whether the Tribunal should consider revoking the document and removing the attorneys.
  9. [300]
    The allegations by DC, DB and other family members needed to be assessed against the legal duties and obligations of the attorneys and the General Principles and Health Care Principles governing the exercise of the authority.
  10. [301]
    I found that in the circumstances of family conflict the attorneys had acted in accord with the obligations of their legal duties and in accord with the overriding principles. Consequently, to prevent any misunderstanding, I have declared the EPA executed by the Adult on 16 March 2001 to be valid, and the adult to be currently incapable of personal and financial matters. On the basis of evidence as to capacity I also made declarations as to the commencement of the attorneys’ powers.
  11. [302]
    The above 302 paragraphs constitute the reasons for the following decisions made on 8 February 2021.

Orders

GUARDIANSHIP

1.  The Application by DC for the appointment of a guardian for PC is dismissed.

ADMINISTRATION

2. The Application by DC for the appointment of an administrator for PC is dismissed.

DECLARATIONS ABOUT ENDURING POWER OF ATTORNEY

3. The Tribunal notes the Enduring Power of Attorney for PC dated 16 March 2001 appointing TCR and PCA jointly and severally as attorneys for financial, personal and health matters, and pursuant to s 113(1) and 115 of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 declares—

(a) The Enduring Power of Attorney is valid; 

(b) The attorneys’ power for financial matters commenced on 4 April 2001, and PC’s capacity for financial matters was certified as impaired on 24 March 2001;

(c) The attorneys’ power for personal including health matters was exercisable from 4 April 2001, but only during periods that PC’s capacity was or is impaired, and irrespective of whether such impairment is or was certified or declared;

(d) The principal, PC has impaired capacity for all matters.

DECLARATION ABOUT VALIDITY OF ENDURING POWER OF ATTORNEY

4.  The following Enduring Power of Attorney for PC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.

(a) The Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters.

APPLICATION FOR ORDER FOR COSTS

5.  The application by TCR and PCA for an order for Costs against the applicant is refused.

Footnotes

[1]  Attorneys’ ‘Outline of Respondent’ 26 November 2021, paras 53-59.

[2]  Ibid, para 56.

[3]  DC, Comment on NB report, 1 July 2021

[4]  DC, Investigations Referral Form, 26 March 2021, p 7. 

[5]  Applicant’s affidavit, 19 April 2021, para 5.

[6]  DC, Comment on NB report, 1 July 2021.

[7]  Outline of attorneys’ submissions, 26 November 2021, para 4.

[8]  Pro Bono attendance with Solicitor, JW on 18 January 2021.

[9]  DC, “Background’ attachment to application, dated 23 December, para 26.

[10]  Emails from DC and GC, dated 28 April 2021

[11]  Attorneys’ ‘Outline of Respondent’ 26 November 2021 at para 63.

[12]  NB, Confidential Neuropsychological Report dated 11 May 2021, p 2.

[13]  Dr BS, Referral letter to Dr OO dated 18 March 2021.

[14]  Ibid.

[15]  NB Confidential Neuropsychological Report dated 11 May 2021, p 1.

[16]  Email from DC on 19 May 2021.

[17] Public Guardian Act 2014 (Qld), s 10.

[18]  Ibid, s 19.

[19]  DC, Investigations Referral Form, 26 March 2021, p 7. 

[20]  Email dated 19 May 2021.

[21] Guardianship and Administration Act 2000 (Qld), s 7 (b).

[22]  Ibid, s 12 (1).

[23]          Defined in schedule 4 of the GA Act as ‘a person who has a sufficient and continuing interest’ in the Adult.

[24] Guardianship and Administration Act 2000 (Qld), s 12 (3).

[25]  Ibid, ss 33 (1), 33(2).

[26] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46(2)(c).

[27] Guardianship and Administration Act 2000 (Qld), Schedule 4.

[28]  Powers of Attorney Act 1998 (Qld), Schedule 3.

[29]  Powers of Attorney Act 1998 (Qld), s 6 C 1, Guardianship and Administration Act 2000 (Qld), s 11 B (3)1.

[30] Guardianship and Administration Act 2000 (Qld), Schedule 4.

[31]  As identified by Dr SJ in January 2021, NB Report, 11 May 2021, p 2.

[32] Guardianship and Administration Act 2000 (Qld), Schedule 4.

[33]  Powers of Attorney Act 1998 (Qld), Schedule 3.

[34]  DC, Comments on NB Report, 1 July 2021, pp 1-2.

[35] DC, ‘Comments on NB Report’ 1 July 2021.

[36] Guardianship and Administration Act 2000 (Qld), Schedule 4.

[37]  Powers of Attorney Act 1998 (Qld), Schedule 3.

[38] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46(2)(c) and (d).

[39] Outline of attorneys’ submissions, 21 July 2021, para 14.

[40] Undated letter from DB to TCR, Attachment C Attorneys’ Affidavit, 19 April 2021.

[41]  Outline of Respondent, 26 November 2021, at para [1-2]

[42] Guardianship and Administration Act 2000 (Qld), s 12(1)(c).

[43]  Powers of Attorney Act 1998 (Qld), s 50(1

[44]  Ibid, s 6C General Principle 1.

[45]  Powers of Attorney Act 1998 (Qld), s 50(1).

[46]  Ibid, s 26(1).

[47]  Ibid, s 113(2)(a)

[48]  Ibid, s 111 A.

[49]  Ibid, s 47(1).

[50]  Obligation to encourage as much participation as capacity permits

[51]  Outline of Respondent, 26 November 2021, at para 15(a) and (b).

[52] Powers of Attorney Act 1998, s 72(1).

[53]  Ibid, s 82(1). The reference to ‘court’s leave ‘includes this tribunal’s leave, as QCAT ‘is given the same jurisdiction for enduring documents as the Supreme Court’: Powers of Attorney Act 1998 (Qld), s 109(1).

[54]  Submission from Attorneys, 27 January 2022.

[55] Powers of Attorney Act 1998 (Qld), s 116(d).

[56]  Ibid, s 116(a), (b), (c).

[57]  Ibid, s 66.

[58]  Ibid, s 73.

[59]  Ibid, s 86(1)

[60]  Ibid, s 85.

[61]  Powers of Attorney Act 1998 (Qld), s 6C.

[62]  Powers of Attorney Act 1998 (Qld), s 6D.

[63]  Powers of Attorney Act 1998 (Qld), s 86(1).

[64]  Ibid, s 86(1).

[65]  Ibid, s 86(3).

[66]  Ibid, s 6C General Principle 8.

[67]  Powers of Attorney Act 1998 (Qld), s 116(a).

[68]  Powers of Attorney Act 1998 (Qld), s 63.

[69] Guardianship and Administration Act 2000 (Qld), s 127.

[70] Human Rights Act 2019 (Qld), s 9(4)(b).

[71] PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at [123]; HF [2020] QCAT 482 and JF [2020] QCAT 419.

[72] Human Rights Act 2019 (Qld), ss 4(b), 58(1)(a).

[73]  Ibid, s 58(1)(b).

[74]  Ibid, s 58(1).

[75]  Ibid, s 4(f).

[76]  Ibid, s 8.

[77]  Ibid 13(2).

[78]  Powers of Attorney Act 1998 (Qld), ss 6C and 6D.

[79] Human Rights Act 2019 (Qld), s 26(1).

[80] Human Rights Act 2019 (Qld), s 25.

[81]  Powers of Attorney Act 1998 (Qld), s 6C general principle 8.

[82]  Ibid, s 6C 8(1)

[83] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[84]  Ibid, s 28(3)(a).

[85] Human Rights Act 2019 (Qld), s 31(1).

[86]  Ibid, s 31(3).

[87] Guardianship and Administration Act 2000 (Qld), s 105(1)

[88] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 90 (2).

[89] Human Rights Act 2019 (Qld), s 13(2)(e).

[90]  Ibid, s 13(2)(f).

[91]  Ibid, s 13(2)(g).

[92]  Ibid, s 13(2)(d).

[93] Ibid, ss 4(b), 58(1)(a).

[94] Guardianship and Administration Act 2000 (Qld), s 12(1)(c).

Close

Editorial Notes

  • Published Case Name:

    PC

  • Shortened Case Name:

    PC

  • MNC:

    [2022] QCAT 147

  • Court:

    QCAT

  • Judge(s):

    Member Stepniak

  • Date:

    21 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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