WXL[2022] QCAT 383

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   WXL is a forty-seven-year-old woman living with bipolar affective disorder.
2. [2]
   WXY, the sister of WXL, brought applications for interim orders seeking appointment as administrator and guardian to manage the affairs of WXL pending the final hearing of applications for the appointment of an administrator and guardian for WXL brought by WXL’s Senior Case Manager at Community Mental Health. The concern for WXL is that she has been the victim of financial scammers and is currently vulnerable to ongoing financial exploitation that could lead to the loss of her home.
3. [3]
   On 2 November 2022 I declined to appoint WXY as interim guardian and administrator for WXL but did appoint the Public Trustee of Queensland as interim administrator for WXL. Reasons for that decision have been requested and now follow.

The statutory framework

4. [4]
   The Guardianship and Administration Act 2000 (Qld) (GAA) establishes the framework for the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity. It has a protective purpose that must be balanced with the person’s right to autonomy, so Tribunal may only make a guardianship or administration order if satisfied that:

   1. (a)
      the adult has impaired capacity for the matter; and
   2. (b)
      there is either:

      1. a need for a decision in relation to the matter; or
      2. 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. the adult’s needs will not be adequately met; or
      2. the adult’s interests will not be adequately protected.^[1]
5. [5]
   Determination of the adult’s capacity is the threshold issue to be resolved before any decisions are made over the person, followed by a determination of need and risk to the adult if an appointment is not made.
6. [6]
   Applications for interim orders are largely determined ‘on the papers’, without an oral hearing, meaning the evidence before the Tribunal is both limited and untested by cross-examination.^[2]
7. [7]
   To make an interim appointment order, QCAT must be satisfied on reasonable grounds that:

   1. (a)
      the adult concerned has, or may have, impaired capacity for a matter; and
   2. (b)
      there is an immediate risk of harm to the health, welfare or property of the adult, including because of the risk of abuse, exploitation or neglect of the adult or self-neglect by the adult.^[3]
8. [8]
   Interim orders must strike a balance between the right of an adult with impaired capacity to have the greatest possible degree of autonomy in decision-making, and the adult’s right to adequate and appropriate support for decision making and ought not be made unless circumstances compel such action^[4] and to urgently respond to immediate risks, established by evidence.^[5]

Does WXL have, or might she have, impaired decision-making capacity?

9. [9]
   An adult is presumed to have capacity for a matter^[6] but this is rebuttable.^[7]
10. [10]
    An adult with decision-making capacity for a matter is capable of:

    1. (a)
       understanding the nature and effect of decisions about the matter;
    2. (b)
       freely and voluntarily making decisions about the matter; and
    3. (c)
       communicating the decisions in some way.^[8]
11. [11]
    Only one of these elements need be absent for there to be a finding of impaired capacity.^[9]
12. [12]
    Capacity is decision-specific^[10] and may differ depending on the:

    1. (a)
       type of decision to be made;
    2. (b)
       complexity of the decision to be made; and
    3. (c)
       support available from members of the adult’s existing support network.^[11]
13. [13]
    The interim application before the Tribunal for the appointment of WXY as guardian is described as necessary to protect WXL from “financial exploitation and ongoing vulnerability to the same”.
14. [14]
    The application goes on to say that:

    1. (a)
       WXL currently does not have insight into how her diagnosis increases her vulnerability;
    2. (b)
       WXL has recently been the victim of scanners and has been defrauded of approximately $100,000;
    3. (c)
       WXL has been making further attempts to re-mortgage her home to obtain cash to appease the scammers; and
    4. (d)
       WXL is at high risk of financial exploitation and is at risk of losing her home, accumulating debt and deterioration of mental health.
    5. (e)
       The scammers are currently requesting further funds from WXL, which she  intend to provide in hopes of having her lost $100,000 returned.
15. [15]
    The interim application seeking the appointment of WXL as administrator contains the same information.
16. [16]
    The evidence before the Tribunal on the issue of capacity comprises:

    1. (a)
       A Health Practitioners Report by Dr W dated 24 October 2022 that describes WXL as:

       1. supportive of the applications for the appointment of a guardian and administrator;
       2. suffering from bipolar affective disorder;
       3. living independently in Queensland whilst her family is located in Victoria;
       4. having no formal or informal supports currently available to her;
       5. having capacity for simple decision-making but not complex decision-making; and
       6. in relation to financial decision-making, vulnerable to exploitation that could lead to the loss of her home, accumulation of debt and the deterioration of her mental health.
    2. (b)
       A Treatment Authority by Dr F dated 8 March 2022 that contains the following information:

       1. WXL receives the disability support pension as her only source of income;
       2. WXL does not report any strong social supports, protective factors or significant relationships;
       3. WXL mentioned that she has a sister but reports that they “do not have a close and enduring relationship”;
       4. WXL was experiencing mania symptoms, mental and behavioural disorders, engaged in the use of cannabinoids, suffered from “other mental and behavioural disorders” and is non-compliant with medical treatment and regimes; and
       5. WXL does not accept that she has a chronic mental illness, is not able to understand and to weigh up information relating to the treatment of her mental illness and has impaired decision communication ability due to disordered thinking processes.
17. [17]
    Text messages between WXL and WXY were produced to the Tribunal evidencing WXL’s attempts to borrow $23,000 from family “urgently” in August 2022.
18. [18]
    I accept the evidence of Dr W and Dr F and find that WXL has, or may have, impaired capacity for decision making concern the management of her financial affairs and in particular with respect to gifting, lending, investing and borrowing money and the giving of security over her home (financial decisions).
19. [19]
    WXL’s impairment is with respect to: 

    1. (a)
       understanding, retaining and evaluating the information and concepts relevant to financial decisions, including their likely consequences;
    2. (b)
       seeking relevant information, for example, financial and accounting advice, to make financial decisions;^[12] and             
    3. (c)
       analysing and weighing information, particularly risks and consequences of financial decisions, to reach an informed decision.^[13]
20. [20]
    Further, I accept the evidence currently before the Tribunal that WXL’s judgment and her ability to weigh consequences of financial decisions appears to be detrimentally impacted by a lack of insight into her mental illness and the manic symptoms she experiences.
21. [21]
    WXL is not making financial decisions freely and voluntarily as both internal (disordered thinking processes) and external (scammers) factors are unduly influencing WXL’s decision-making autonomy. She has been defrauded of $100,000 to date and is making current attempts to further indebt herself to pay more. 
22. [22]
    Finally, WXL does not appear to have informal or formal supports in place to support her with financial decision making. She has been exploited despite attempts by her family, who are not local to her, to prevent it.

Is there an immediate risk of harm to the health, welfare or property of WXL?

23. [23]
    There was no immediate risk to the health or welfare of WXL disclosed on the evidence sufficient to warrant the appointment of a guardian for those matters.
24. [24]
    However, I am satisfied that there is an immediate risk to the finances, assets and property of WXL and that substitute decision-making is needed urgently around the administration of WXL’s financial affairs, including with respect to her borrowing, investing, gifting or lending money.
25. [25]
    The Tribunal has previously identified risk in adults who were vulnerable to financial exploitation due to a history of poor financial management and lack of understanding of financial matters;^[14] who had a history of an impulsivity in making financial decisions;^[15] and who had a history of vulnerability to undue influence or financial exploitation by others.^[16] 
26. [26]
    Unfortunately, there are no formal or informal supports or other safeguards available to protect WXL without the appointment of an administrator. Her family have not been able to protect her despite their efforts.
27. [27]
    WXL’s home is of a modest value ($380,000 according to the application), she has a reverse equity loan secured by a mortgage over it (approximately $30,000), her sole income is the disability support pension, and she has been defrauded of $100,000 to date, whilst making attempts to borrow more to give away without any reasonable prospect of her recovering it.
28. [28]
    I am satisfied that there is an immediate risk of harm to WXL’s property and financial health due to the risk of exploitation and self-neglect by WXL such that she requires a substitute decision-maker to urgently protect her from further financial exploitation.
29. [29]
    An administrator, not a guardian, is the appropriate appointee to make financial decisions for WXL during this interim period before the full applications are heard. 

Who should be appointed administrator?

30. [30]
    WXY sought that she be appointed as administrator during the interim period.
31. [31]
    The Tribunal can appoint an individual as an administrator for the adult if they are:

    1. (a)
       over the age of 18;
    2. (b)
       not a paid carer or health provider for the adult; and
    3. (c)
       not bankrupt.^[17]
32. [32]
    WXY signed a declaration in her application indicating that she satisfies these criteria.
33. [33]
    The Tribunal can also appoint the Public Trustee of Queensland as administrator,^[18] but should first eliminate any other eligible proposed appointees from consideration before doing so.^[19]
34. [34]
    In considering the merits of a proposed appointee the Tribunal must have regard to the following matters (among other things):^[20]

    1. (a)
       the General Principles and whether the person is likely to apply them;
    2. (b)
       the extent to which the adult’s and person’s interests are likely to conflict;
    3. (c)
       whether the person would be available and accessible to the adult;^[21] and
    4. (d)
       the person’s appropriateness and competence to perform functions and exercise powers under an appointment.
35. [35]
    In deciding appropriateness and competence, the Tribunal can consider factors such as the relationship between the adult and the person^[22] and the presence or risk of family conflict in the event of an appointment.^[23]
36. [36]
    Family members often know the adult best, have good intentions and genuine concern for the adult, and are generally aware of the wishes and needs of the adult better than anyone else.
37. [37]
    However, conflicts of interest and family conflict may affect the person’s appropriateness and competence to perform the functions and exercise the powers under the appointment, such as where the conflict prevents other relatives or supportive network members to provide their views or consultation, or where it is detrimental to the adult’s wellbeing.
38. [38]
    On the evidence currently before the Tribunal:

    1. (a)
       WXY is willing and eligible to act as administrator,
    2. (b)
       according to WXY, WXL is in favour of WXY’s appointment, and
    3. (c)
       WXY appears to be competent to make financial decisions for WXL and is motivated in her application by her care and concern for WXL,

however:

4. (d)
   the original application by WXL’s Case Manager sought the appointment of the Public Trustee (albeit without discussing the matter with WXL),
5. (e)
   WXY lives in Victoria and is not geographically proximate or available to WXL and has been unable to support WXL in her decision-making to date,
6. (f)
   WXL reported to Dr F that her relationship with WXY is neither close nor enduring, and
7. (g)
   WXY is at risk of familial conflict should she take on the role as the tendered text messages indicate that the mother of WXY and WXL has blocked WXL from communicating, and that WXL owes money to other family members.

39. [39]
    I am not satisfied on the current evidence before the Tribunal that WYX is an appropriate appointee in those circumstances and prefer the Public Trustee of Queensland as an appointee.  
40. [40]
    As WXL’s real property appears to be at immediate risk, it is appropriate that the administrator’s interest be noted by the Registrar of Titles in their Land Registry records for WXL’s home.

Consideration of WXL’s Human Rights

41. [41]
    Section 48 of the Human Rights Act 2019 (Qld) (HRA) requires the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
42. [42]
    I acknowledge that the appointment of an administrator for WXL necessarily limits her human rights, including her right to freedom of movement, property rights, privacy and reputation and liberty. 
43. [43]
    These rights are explicitly recognised in the GAA,^[24] but I am satisfied considering the findings I have made with respect to WXL’s impaired decision-making capacity, and her immediate need for substitute financial decision-making to protect her property, I am satisfied that the limits imposed by the administration order are reasonable and justified in accordance with section 13 of the HRA.