KR[2023] QCAT 212

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background to the Applications

1. [1]
   KR is a 78-year-old woman about whom this application has been brought. On 26 November 2019, she appointed her husband JR, and successively her daughter JRU,   and son-in-law, ARU, as her enduring power of attorney. This appointment was activated on 12 December 2022, while in an inpatient psychiatric admission in Victoria when Consultant psychiatrist, Dr PD, formally expressed his opinion that she was not capable of financial decisions. A subsequent formal letter of activation followed on 22 December 2022.
2. [2]
   Significantly, KR’s first attorney, husband JR, has been incapacitated by terminal illness and a cognitive impairment. He has been certified as unfit to act as Attorney.^[1] The successive attorneys, JRU and ARU commenced action under the appointment in December 2022.
3. [3]
   Unhappy with the intervention of the appointed attorney, on 17 January 2023, KR  signed a  revocation of  this appointment.
4. [4]
   These applications arise in this context, with KR’s son DR now seeking to be appointed as her administrator because the appointed attorneys, JRU and ARU, no longer seek to be a substitute decision maker for financial matters and seeks instead leave to resign. They have asked the Tribunal to consider if she had the capacity to revoke the appointment, and if she currently has capacity for financial decisions.  
5. [5]
   The applicants argues that there is a need for an administrator to be appointed because KR has lost $1,004, 580 since 2018^[2] to multiple scammers,^[3] substantially depleting her and her husband’s assets. They have since successfully applied to VCAT to have KR removed as JR’s Enduring Power of Attorney, being appointed through an administration appointment to manage his affairs. They argue that KR’s behaviour of compulsively giving money to scammers has been going on since at least 2018.
6. [6]
   KR denies does not agree that she does not have capacity for financial matters. She claims that she was deceived by scammers believing that they were investing her funds for her.
7. [7]
   The issues for the Tribunal to determine are:

   1. (a)
      Did KR have the capacity to revoke the Enduring Power of Attorney for financial matters?
   2. (b)
      Does KR have capacity for financial matters?
   3. (c)
      If not, is there grounds for the appointment of an administrator? Is KR likely to do something involving unreasonable risk to her property?
   4. (d)
      If grounds for the appointment of an administrator are made out, is DR appropriate for appointment as administrator?
   5. (e)
      Is this decision compatible with human rights.

Did KR have the capacity to revoke the Enduring Power of Attorney on      

8. [8]
   KR signed a documentation purporting to revoke the appointments made under the enduring document signed in 2019. JR, her husband has a cognitive impairment and KR was managing his affairs until VCAT overtook this appointment through the appointment.^[4] Due to his incapacity, JR’s appointment has been revoked pursuant to section 22 Powers of Attorney Act. JR is also terminally ill and unable to act. For this reason, the successive appointee commenced under the appointment upon medical certification that the enduring power of attorney should come into effect.^[5]
9. [9]
   Given JRU sand ARU seek to resign from the appointment, being unwilling to continue in the role, the Enduring Power of Attorney of 2019 cannot be revived. It is relevant, however, to consider the evidence in relation to KR’s capacity to revoke this appointment and whether the Tribunal has jurisdiction in relation to enduring power of attorney.  This is central to whether a substitute decision maker is necessary, where the existing attorney no longer seeks to act.
10. [10]
    To validly revoke an enduring power of attorney, an adult must possess the requisite capacity under s 41 Powers of Attorney Act 1998 to execute an enduring power of attorney.^[6] This requires that the adult  is capable of making the enduring power of attorney freely and voluntarily; and  understands the nature and effect of the enduring power of attorney. Specifically, the requisite understanding requires, involves appreciating:

    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
11. [11]
    On 12 December 2022, Dr PD considered that KR did not have the capacity to manage her finances, and her enduring power of attorney should be activated. At this point, she lacked the ability to oversee the appointment. KR has not appreciated this element of capacity necessary in understanding the nature and effect of an appointment under s 41(2( (f) and therefore,  in light of Dr PD’s evidence, she cannot validly revoke the appointment. He has provided further evidence of his view as to her capacity to make an enduring power of attorney in his report of 17 February 2023.
12. [12]
    In contrast to this evidence  Dr VT, her treating GP of 5 years states he considers  that she is capable of understanding to understand the nature and effect of the  appointment in terms as identified in section 41 of the Powers of Attorney Act 1998 (Qld)^[7] His subsequent open letter three days later states he  had  not been aware of financial issues throughout treatment and had not had cause to assess them, and deferred further assessment of capacity to a geriatrician or psychiatrist given the complexities involved.^[8]  His view must therefore be afforded less weight than the specialist psychiatrist whose report focused on financial capacity.
13. [13]
    I find that weight of the evidence indicates that KR did not have the capacity to revoke the appointment, because she did not appreciate that she was unable to oversee the appointment if she lost capacity. In this regard, she did not have all elements necessary under sections 41 and 47 to have the requisite capacity for revocation. 
14. [14]
    However, the attorneys are no longer able or willing to act. Leave will be granted to the existing attorneys to resign, noting JR’s appointment has already been revoked pursuant to section 22 Powers of Attorney Act.
15. [15]
    There is a vacancy in the decision-making arrangements. The Tribunal must consider the application for the appointment of an administrator. The Tribunal may only appoint an administrator if it is satisfied that the grounds for appointment under s 12 of the Guardianship and Administration Act 2000 (Qld) are satisfied.
16. [16]
    The first issue relates to the presumption of capacity.

Does KR have capacity for financial matters?

17. [17]
    A presumption of capacity applies to all adults^[9]. Kr is entitled to that presumption.
18. [18]
    Capacity is defined at schedule 4 of the Guardianship and Administration Act 2000, (“the Act’)

"capacity" , for a person for a matter, means the person is capable of— 

1. (a)
   understanding the nature and effect of decisions about the matter; and 
2. (b)
   freely and voluntarily making decisions about the matter; and 
3. (c)
   communicating the decisions in some way.

19. [19]
    Several medical practitioners have provided documents relevant to decision making capacity for consideration. 

Medical evidence

20. [20]
    During an inpatient admission to a psychiatric clinic Dr PD conducted an assessment at the request of the appointed attorney to determine whether KR had capacity to manage her affairs. Dr PD has three reports before the Tribunal.  Dr PD is the director of Age Psychiatry at the private hospital.^[10]
21. [21]
    Dr PD’s is a specialist Consultant Psychiatrist. His report of 12 December 2022 states that his opinion is based on 4 consultations with KR during her inpatient admission between 23 November 2022, and 12 December 2022, medical information from the psychiatric clinic and treating consultant psychiatrist and collateral information from family.
22. [22]
    This report  specifies Dr PD has been asked by other treating consultants at the facility to assess “testamentary capacity”.  This will be addressed in the later discussion of this evidence.
23. [23]
    PD reports that KR stated that she had been managing her and her husband’s finances since his declining health over several years and had been “managing them quite well.”^[11]
24. [24]
    Dr PD noted no cognitive symptoms describing KR as alert, and with only mild short term memory issues, and no decline in her personal care or domestic tasks related to cognition and opined that her memory issues were likely to be related to her depressed mood.
25. [25]
    This report focussed on the persistent nature of her behaviour, which saw her continuing to make bank transfers to multiple scammers since 2018, and high degree of the behaviour, described her to have “continued this behaviour over many years and over an exceedingly large number of individual bank transfers”. He noted that she had continued to engage with scammers until her access to them was ceased through a third party. He commented the KR did not appreciate that she had lost a significant amount of money. He noted that she had not been able to self-limit her behaviour and regarded the behaviour as “intense”. He described her as on a “relatively severe part of the spectrum” of being scammed where:

“She has not been able to self-manage her behaviour and only with external management has the behaviour been arrested. If this control is eased ,she is likely to be subject to the scamming behaviour. “

26. [26]
    Dr PD stated that KR had a Behaviour Disorder, and as a result did not have “testamentary capacity”:^[12]

“She has the ability to understand information relevant to the decision but is then unable to retain that information or decision, or to weight that information to provide a decision that is ongoing.”^[13]

27. [27]
    He noted his view that the Power of Attorney should be enacted.
28. [28]
    Dr PD refers to an opinion of KR’s “testamentary capacity”, which is the capacity execute a will. However, the substance of the report makes clear that the assessment is over her ability to manage her finances, making reference to her failure to protect her assets from scammers and has no relevance to testamentary capacity. This does not relate to testamentary capacity, which is of course a legal rather than medical term. I take the reference to testamentary capacity to be in error. This is supported by his subsequent reports on 22 December and 17 February 2023, that specifically address her capacity to manage her financial affairs.
29. [29]
    22 December 2022 Dr PD provided an open letter noting the above assessment and stated that she has a behaviour disorder and repeated that KR can understand information but cannot retain that information of decision or weigh that information to provide a decision that is ongoing. He expressed the clear opinion that he does not have capacity to manage her financial affairs and her attorneys need to act on her behalf.
30. [30]
    In a health professional report provided for the Tribunal on 17 February 2023, Dr PD stated that KR had normal cognition for her age, but confirmed again the diagnosis of behaviour disorder, and stated he considered that she does not have the ability to make decision freely and voluntarily, and needed financial assistance, noting that she was

“influenced by scammers who she sends excessive money over many years.”

31. [31]
    He stated that KR “has No ability to appreciate the consequences and then modify her behaviour. (Dr PD’s emphasis). He said without restrictions on this behaviour around finances such as power of attorney, he considered that:

“She I likely to spend all her money and become destitute.”

He concludes that KR does not have capacity make financial decisions. Dr PD based his assessment on his previous contacts, the last of which he identifies as 12 December 2022.^[14] He expressed the view that KR cannot make simple or complex financial decision, noting that “she can do the shopping but spends all her money.”^[15]

32. [32]
    DR PD stated that KR did not have the requisite understanding of the elements necessary to have the capacity to understand the nature and effect of an enduring power of attorney in terms identified in the Health Professional Report which corresponds to the provision of s 41 of the Powers of Attorney Act 1998.
33. [33]
    On 20 January 2021, Dr TV her treating general practitioner since March 2018 noted a diagnosis of adjustment disorder with mixed anxiety and depression, and a Narcissistic Personality Disorder he states were both diagnosed in November 2022. Although in an attached health summary, identifies the later diagnosed on 29 December 2022, and does not indicate a diagnosis of or treatment for the former. ^[16] He considered that KR was capable of making decisions freely and voluntarily. He omitted to provide an opinion  about her capacity to understand and act on information and appreciate the consequence of decision bout about financial affairs, In an attached statement dated 23 January 2023, referring to health decision making, he noted that he had the impression that she had full medical decision making over the years and KR had not told him of any financial problems so he had not delved into financial capacity. He stated that “complexities” existed in providing the financial assessment and had referred KR to Dr SK, geriatrician and noted an appointment had been made. Exempting himself from providing an opinion on KR’s financial capacity, he stated that due to the complexities, KR’s financial capacity was best assessed by a specialist psychiatrist or geriatrician.
34. [34]
    KR advised at hearing that she has been unable to obtain an appointment with Dr SK for a capacity assessment and was not pursuing this due to the delay in obtaining the same.KR instead asks the Tribunal to rely on correspondence from her treating psychiatrist Dr MD. 
35. [35]
    Dr MD is a consultant psychiatrist who has been treating since 23 February 2023, “weekly or fortnightly”. The letter dated 3 April 2023, states that she is providing “factual letter of support rather than a medico legal letter,” where the latter “is highly likely to compromise the neutrality of treatment.”  Dr MD indicated that she had a copy of Dr PD’s report of 12 December 2022. Her letter restates information that KR has provided her as to the background to the scamming and concerns communicated to her by KR.
36. [36]
    Dr MD’s report makes clear that she has not identified any cognitive impairments, with KR’s cognition being grossly intact, and MMSE within normal range. She describes KR as being alert and oriented at all times with no memory issues identified. She describes KR as capable of registering and maintaining and processing the information, and she has observed her communicate with and instruct her lawyer. She notes that KR is a recommended to have psychological intervention and noted that capacity can change with support, and that KR has been engaging with her support.
37. [37]
    As this was not a capacity assessment, she did not state an opinion of KR’s capacity and made no mention of her opinion of whether the elements of capacity are all present including whether she considers whether KR could make decisions freely and voluntarily. Dr MD’s letter exempts herself from providing a capacity assessment to preserve the therapeutic relationship.^[17]
38. [38]
    KG, solicitor for the applicant indicated that her request to Dr MD to provide a QCAT health professional Report was not met.^[18] I note that DR MD’s letter states that at KR’s first appointment KR requested a capacity assessment. Despite this, such a capacity assessment report was not provided.

Evidence of KR

39. [39]
    KR was questioned at the hearing about the nature of her decisions and her finances. The Tribunal asked KR to provide an indication of her financial position. She answered that she did not know how much her rates, insurances and other bills were for the properties she jointly owned with her husband, as these were directly debited and she wasn’t sure when they were due. She was not aware what her income was, and said that her husband had always managed the finances before he become ill. She said she did not budget as she has never had to. When asked she responded that she has lost $3-400,000 from the superannuation accounts but could not remember exactly how much she had lost.  She said she couldn’t remember the current balance of her superannuation accounts but thought that there were there accounts which held $400,000, $200,000, and $400,000 respectively. She said “I have always had plenty of money, I dint have to worry about what I spent.” Her responses gave the impression that she did not have an appreciation of her assets or any limits to her budget, nor of the diminution to these through her extended conduct of depositing money to scammers.
40. [40]
    In her oral evidence to the Tribunal she said that she did not believe that she had deposited $1Million, into scammers accounts, believing it to be more like $300,000. She said she had given it to three or four people, whom she had believed were investing it on her behalf. This was in contrast to her submissions filed which identify 6 scammers,^[19] but consistent with details provided by Dr MD indicating information given to her by KR.^[20]
41. [41]
    KR gave a written statement to the Tribunal. No sworn evidence was provided. KR was represented by a solicitor throughout these proceedings.  Some comments in her statement contrast with evidence that she gave the Tribunal. I note particularly that she said she “took care of all our finances.”^[21] This is inconsistent with her evidence that she was not aware the amounts for payments, due for rates, and outgoings on properties, and that she had never managed finances independently prior to her husband’s disengagement from financial management due to his ill health.
42. [42]
    KR’s statement indicated that she was ‘very confused at receiving DR PD’ letter stating that I had a behaviour disorder, but the disorder was not disclosed.” Given that she was receiving inpatient psychiatric treatment for this disorder,^[22] and Dr PD had informed himself from her inpatient notes amongst other means of assessing her capacity,^[23]this demonstrates a lack of appreciation or insight into her diagnosis and treatment around this disorder.

Consideration of the Capacity evidence

43. [43]
    It is common amongst all treating medical practitioners that KR does not have a cognitive impairment. She has consistently scored within normal ranges of mini mental state examinations. DR PD indicates that she is unable to make decision freely and voluntarily, influenced by her lack of appreciation of the consequences of her behaviour affecting decisions around her finances.
44. [44]
    The General practitioner Dr TV although he comments that he considers that she can make decision freely and voluntarily, reserves his opinion on financial decision, and deferring to the assessment of a specialist psychiatrist or geriatrician due to the “complexities”.  In this regard, little weight can be placed on Dr TV’s opinion that KR can make decision freely and voluntarily around her finances, where he has exempted himself from giving that opinion on this in his correspondence of 23 January 2023. In light of this, Dr TV’s report therefore can only purport to give an opinion of capacity for personal and health matters.
45. [45]
    Dr MD does not provide an opinion about whether KR can make decisions freely and voluntarily, or of KR’s appreciation of the consequences of her decision to give away significant amounts of money which are the critical issues for determination of capacity here. Her views on KR’s cognition are consistent with those expressed by Dr PD in his report of 12 December 2022, which did not find cognitive impairment. However, Dr MD has made clear that she was not providing a capacity assessment but a factual letter of support, in order not to compromise the therapeutic relationship. Very little weight can therefore be afforded to Dr MD’s letter of support, where it does not address the central issues or provide a professional opinion. 
46. [46]
    Moreover, it is not apparent that the complete and extended nature of the behaviour was fully disclosed by KR to Dr MD, where Dr MD notes the period of “six months or more” where three individuals “took advantage of her in an online game”. And that she has sent in excess of $500,000 “in the past six months to these people.”  This is inconsistent with the information provided by DR in his affidavit of   that the sum given away is in excess of $1Million dollars and has occurred since 2018^[24] or earlier similar behaviour in 2018.^[25] It is not clear that Dr MD was fully informed of the detail of the extent of the behaviour relevant to the diagnosis. It is not clear from her correspondence that she agrees with the diagnosis or otherwise.
47. [47]
    I place considerable weight on the specialist report derived during an inpatient in treatment, which took into account the views of treating consultant psychiatrists, and medical information on the hospital file.  Although the first of Dr PD’s three reports refers to testamentary capacity, the two other reports which contain the same information confirm that Dr PD’s opinion is that KR lack the capacity to make financial decisions of a simple and complex nature. That is clear from the substance of the report of 12 December 2022, that although he uses the word “testamentary capacity” on two occasions, he has not in fact the KR’s capacity to make a will, and makes no reference to any will or her understanding of the nature and extent of her assets, however, plainly. in substance, assesses her ability to make financial decision in her life.
48. [48]
    DR PD’s assessment identifies ingrained behaviours that have not changed over an extended period and an inability to appreciate the consequences of her behaviour. This latter was born out in discussions with KR at hearing which demonstrated a lack of appreciation of the finite nature of her and her husband’s assets, and provided an inaccurate picture of the extent of the losses that she and her husband’s assets had incurred due to the behaviour.
49. [49]
    It important to note that the Guardianship and Administration Act makes clear that adults have the right to make decisions that others don’t agree with.^[26] In this case, however, it is not merely a poor choice over an extended period of time, KR has a psychiatric condition generating behaviours for which she has sought inpatient psychiatric support and has impairments in controlling. The stated Specialist psychiatric opinion before the Tribunal is that she does not appreciate the consequences of this behaviour and is unable to self-limit the behaviour. Her psychiatric condition affects her ability to make decisions freely and voluntarily and appreciate the consequences of her decisions. This is not merely a case of reckless or unwise decisions as noted in WXL (2022) QCAT 283.
50. [50]
    The Appeals Tribunal in SW v BAR^[27] has considered the element of voluntariness in decision making, endorsing the approach taken in the NSW Supreme Court Case, Tonkiss v Graham,^[28] where the court stated:

“ the notion of ‘freely and voluntarily ‘is one which has a relationship implicit in it. One acts ‘freely and voluntarily when one acts free from circumstances constraining ones actions. The sort of circumstances which cases I have quoted recognises as being ones which can result in action not being freely and voluntarily included duress, intimidation, persistent importunity, sustained or undue insistence of pressure, harassment, force threats fear, fraud, being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice.”

51. [51]
    Extensive documented communications between KR and those identified as scammers to whom she transferred the couple’s funds identify occasions of pressure, persistent importunity, undue influence.^[29] By way of example, I extract a small number of the communications in evidence^[30] to demonstrate the nature of the influence applied:

    1. (a)
       On 26 May 2022, between 15:19 and 18:43 hours

RM: “You need to send $2000 to me. …

KR Out of the question.

RM: Okay I am going to send you an account details…..

…

RM: Baby I will send you an account to where you will send the money to baby. Just hold okay honey.

KR: Ok but I have no money to send anywhere yet…

(2 hours later…)

RM: Bank HSB Account XXXX Name (withheld) Reference for Payment should be Family Support. Honey send the $2000 to this account right now. So that everything will be put in place.

KR: I need phone number and email as well….

KR: (screenshot showing receipt for $2000 sent at 6:43pm)

2. (b)
   On 31 May 2022 to a third party of a different name:

KR:  You got steam cards today and you are still not happy baby.

SG: Don’t get me wrong baby I am very happy for the cards especially steam. I don’t just want to be chased out if I don’t pay the $500 for my rent baby.

KR: I hear you but still can promise nothing.

At 3:04 1June:

SG: Please baby today is the deadline unless I will be trow (sic) out my love. You glow like the sun and illuminate my life the way the sun does to the moon. …..

Please don’t forget to either get steam cards or google play my love.”

3. (c)
   On 4 June 2022,

SG: Please baby I want you to help me get $350 steam card tomorrow morning so I can use to get foodstuffs. I have nothing on me baby and I will be paid next week.

KR: No steam cards….

SG: Okay baby get me google play cards.

4. (d)
   On 8 June 2022:

RM: You don’t need to chase cards. You can by form any nearby stores close to you. You have always tried baby.

KR: No I cannot. They are short of stock. Also I am running dangerously low on funds and have many medical bills to pay. That is why I am not promising.

SG: Honey I understand but please just send the $1000 so I can add up to the one I have baby. If we send $2000 tomorrow to the company we will be left with $11000 and we will be both free forever.

KR: I already told you I would try. Please stop this..

SG: Okay baby I trust you with all my heart….

Please can you get I tunes card tomorrow morning since its everywhere. $500 * 2 my love….”

52. [52]
    This small extract of the extensive electronic communications is indicative of extended undue influence from electronic communications of third-party scammers KR experienced.  I find that undue influence and pressure to transfer funds and provide google iplay and steamboat gift among other cards is evidence of persistent pressure applied over an extended period of several months by individuals to KR to transfer her money to destinations specified.
53. [53]
    Moreover, specialist psychiatric opinion is that KR is unable to retain information  relevant to the decision, to weigh that information to provide a decision that is ongoing, and has been unable to self-limit her giving money away to the scammers. His opinion states that she does not appreciate the consequences to modify this behaviour. This has rendered her vulnerable to this undue influence.
54. [54]
    DR PD, unlike DR MD, has turned his mind all three elements of the meaning of capacity within the legislation, and provided his professional opinion of whether she meets she has capacity in each of the three sources of his opinion before the Tribunal.
55. [55]
    DR MD has not turned her mind to the Schedule 4 criteria and has not offered a formal assessment of opinion of capacity. She has not considered whether KR can make decision freely and voluntarily. Therefore, limited comparative weight can be placed on the letter of support from DR MD who expressly refuses to provide a capacity assessment to preserve the therapeutic relationship. While I accept submissions that a person’s capacity can improve with treatment and over time, and the evidence indicates KR has obtained treatment from a psychiatrist and a psychologist there is no professional opinion offered of how that treatment has affected her decision making capacity. The evidence of the treating psychologist notes four sessions and techniques applied, but omits a capacity assessment.^[31] It also carries little weight for this reason.
56. [56]
    I find that that the evidence indicates that she is unable to make decisions freely and voluntarily, being subjected to undue influence, and made vulnerable by her psychiatric condition, and lack of appreciation of the nature of consequences of the decision.
57. [57]
    I find that the evidence indicates that KR succumbs to undue pressure from scammers to part with her money, is unable to self-limit her behaviour to protect her assets. She does not appreciate the need to protect her assets from the scammers who she is giving money to, or the consequences of failing to act to protect her assets.
58. [58]
    I find that the evidence consistently indicates KR does not have a cognitive impairment.  However, that does not mean that she has capacity. All three elements of capacity identified at Schedule 4 must be present.
59. [59]
    The financial capacity assessment before the Tribunal which has the greatest weight is that of Dr PD which indicates that the KR is not able to make decision freely and voluntarily and does not appreciate the consequences of decisions about the impact of giving her money away or the failure to protect her assets. On this basis the expressed medical opinion indicates that the first two limbs for the test of capacity are not made out and therefore presumption of capacity is rebutted. I am satisfied that KR has impaired decision-making capacity for financial matters.

Is there grounds for an administrator to be appointed?

60. [60]
    An administrator may only be appointed if the grounds under s 12 of the Guardianship and Administration Act 2000 (Qld) are established to the Tribunal’s satisfaction:

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.

Is KR likely to do something involving unreasonable risk to her property?

1. (i)
   Medical evidence that KR is likely to do something involving unreasonable risk to her property

61. [61]
    Specialist Psychiatric opinion identifies that as a result of her psychiatric condition, KR is unable to control her behaviour, placing her assets at risk. Dr PD states that without formal control of her finances she is unable to self manage her behavioural disorder and without external management she is likely continue to be subject to the scamming behaviour.^[32]  He states without control of her finances she is “likely to spend all her money and become destitute”. ^[33]This is strong medical evidence from a consultant psychiatrist that opinion she is likely to do something involving unreasonable risk to her finances, and that without control a substitute decision maker she would lose all of her assets.
62. [62]
    Based on this evidence, I am satisfied that the risk of KR doing something unreasonable with her property is a likely risk arising from inability to self-limit and the nature of her diagnosed condition directly impacting on her behaviour.

2. (ii)
   Nature and Extent of unreasonable risk to KR’s property

63. [63]
    Further, there is extensive evidence in the banking transactions on record^[34] of frequent transfer to multiple individuals often several times a day in large sums, over an extended period. There are transfers to a number of individuals.  Taken with the record of correspondence between KR and the scammers it is evidence that the certain individuals provided KR with instructions of varying names and accounts to transfer funds at the scammers direction and specific reference details.
64. [64]
    DR provides evidence of $1Million of her and her husband’s assets since 2018.This represents a third of her joint assets with her husband.^[35] Dr states that KR withdrew $380,000 from her husband’s superannuation^[36] confirmed in superannuation statements in evidence. Bank transactions demonstrate that she placed it into her accounts and then distributed these funds to the multiple third parties beneficiaries.^[37]  DR identifies that $904,580 in funds were transferred to scammers between  September 2021 and December 2022.^[38]
65. [65]
    The transactions from which the scammers received KR and JR’s funds were in amounts and from bank accounts as follows: $336,700 from KR’s account in her sole name, and $480,190 from her joint account with her husband, and $87,690 from the other joint account.^[39] Closer inspection of the accounts demonstrates bank transfers to multiple third party beneficiaries, some receiving sums of up to $10,000, and some receiving transfers daily, in amounts of $2000 or $3000, and on occasions the same third parties received multiple lump sums in excess of $2000 several times a day.^[40]
66. [66]
    This pattern of activity rapidly diminished the balance of the accounts which would be topped up from superannuation and quickly depleted. As an example, between 20 April 2021 and 25 October 2021, when KR was responsible for the finances, the couples joint bank account showed $347,997 inputs and $349, 962 withdrawals. On 12 May 2021 a draw down from superannuation account was immediately distributed to third party identified as GS in the sum of $10,000 depleting the balance to a nominal amount, and then further transfers were made to of $7,459.34, on 20 May 2022, and again on 23 May 2022 $1491.96 once the bank accounts were topped up from superannuation accounts.  The bank accounts demonstrate significant diminution of the assets base at a rapid rate via OSKO transfers, electronic transfer and Tele transfer.^[41]
67. [67]
    Cross referenced with electronic communications contained in evidence^[42] many of these transfers correspond with directions of scammers to provide funds to multiple names accounts identified by specific references such as “family support”. 
68. [68]
    Large sums are evident in frequent purchases of gift cards including google play, steamboat, apple, from various store in large amounts evident in bank transactions and copies identified in electronic correspondence.^[43]
69. [69]
    DR asserts the behaviour has persisted since 2018 when KR gave $100,000 away, as DR states:^[44]

“Mum simply found alternative means to obtain funds and was able to hide this from my aging unwell father by following instruction of her online companions.”

3. (iii)
   The persistent nature of the behaviour

70. [70]
    The evidence indicates that behaviour has persisted despite KR knowing she has been scammed. Although KR disputes this, DR presented evidence that she has continued to deposit money to scammers since November 2023 when she was her behaviour was challenged.
71. [71]
    DR reports that transfers from KR’s NAB account occurred after her discharge from the hospital and upon her return to Queensland. KR denies transferring further funds. DR asserts these transactions were undertaken by KR. NAB were contacted and suspicions transactions were disputed with the NAB concluding as a result of their inquiries that these transactions were authorised from KR’s mobile phone and were not fraudulent transactions.^[45]
72. [72]
    DR states that he believes that transactions after her admission are indicative that she continues to attempt to deposit funds in scammers accounts. He provided evidence of transaction on 17 January 2023, transferring funds from her credit card to an account based in India. from an account opened ion 22 December 2022 after her discharge from the psychiatric clinic.  18 January 2023 to a Coinbase account in Dublin from her NAB account.^[46] These were denied by KR.^[47] DR states the KR was under the interim appointment withdrawing $150 per day in cash and purchasing crypto currency Coinbase.com and purchased gift cards from Big W. KR denies this. There is evidence which supports that she continues to give money away despite recent knowledge of being scammed. There is evidence that indicates that she was aware she was being scammed in 2018, but continued to give money to the scammers.
73. [73]
    Electronic communication between KR and scammers on 12 November 2022 demonstrates that KR warned scammers that her children were coming after the scammers and they needed to act immediately.^[48]
74. [74]
    KR did not provide sworn evidence, but in her submission denies these transactions are hers.^[49]  She claims to have taken steps to protect herself against fraud. KR has reported these transactions to NAB, yet NAB’s investigations reveal that they were authorised from the mobile telephone number registered to the account.^[50] This casts very strong doubt over the denials of KR that she has continued the behaviour.
75. [75]
    The facts of this case are very different from the case of Hewitt v Bayham & Alliance Australia Insurance Ltd [2015] QSC 250. Here there is specialist opinion of a psychiatric disorder affecting behaviour and ability to control that behaviour that has manifested over years and caused significant diminution to KR and her husband’s assets.
76. [76]
    The facts as outlined indicate that there is a substantial risk to KR’s property due to by her vulnerability generated by her psychiatric condition and the exploitation of that vulnerability by online scammers. The assets at risk include three properties, superannuation accounts which also provide income for KR, as well as bank accounts.^[51] These are assets that will require protection from this behavioural disorder to avoid the scenario identified by DR PD as destitution.
77. [77]
    I find that as a result of a medical diagnosis, a behavioural disorder, KR has deposited at least $1 Million of funds into scams, depleting her and her husband’s joint and individual assets. I find the evidence indicates that this behaviour continues despite knowledge that she has been scammed. I find medical opinion from psychiatrist treating the condition in November 2022 was that she is likely to continue this behaviour at the risk of depletion of her assets until the point she has nothing left.
78. [78]
    On the balance of probabilities having regard to the findings, and I am satisfied that without appointment of an administrator, KR is likely to engage in giving her money to scammers and that there is a need to protect her assets and ensure she has funds to meet her ongoing needs. I am satisfied that without an administrator to manage her access to these funds, she is likely to do something that involves unreasonable risk to her property. She is likely give all of her property away to scammers and have an insufficient amount for her own needs.
79. [79]
    The grounds for the appointment of an administrator are made out pursuant to section 12 of the Guardianship and Administration Act.

Is DR appropriate for appointment as administrator?

80. [80]
    DR states:

“as a son and proud father of Mum’s two grandchildren I am seeking to protect Mum because it is the right thing to do. … To demonstrate that as both my parents become more dependent on others and in Mum’s case, more vulnerable to scammers, I will be there to protect them, I will ensure they have the retirement lifestyle and end of life care befitting of a couple who have worked their whole lives to ensure their needs are met…”^[52]

He presents as motivated to protect his mother’s interests into the longer term. JRU, endorses his appointment.

81. [81]
    In considering whether he is appropriate for appointment I must be satisfied that he meets the statutory criteria at s 15 as to appropriateness for appointment.
82. [82]
    I must also apply the general principles and to those ends I have sought KR’s views at hearing about who she would want to be appointed. It was noted that her evidence was inconsistent with the position advocated by her legal representative. KR’s legal representative strongly objected to the appointment of DR, noting that there was a poor relationship, he had communicated inappropriately with KR and was overly restrictive in distributions of living allowance. 
83. [83]
    However, KR, in her evidence to the Tribunal stated at first that she would accept DR  as her administrator if he increased her allowance from the $150 to $350. She stated  the living allowance amount was not able to sustain her standard of living and was humiliating and demeaning. She said she needed more to pay the cleaners.  She ultimately told the Tribunal that she would be accepting of an appointment of DR. The Tribunal had explained that the Public Trustee was an alternate option, and while no express reference was made, she implied she preferred DR over the PTQ’s appointment. I take her oral evidence as an expression of her wishes over the contrary instructions she has given to her solicitor.
84. [84]
    I must be satisfied that DR is likely to apply the general principles of the Act stated at s 11 B. These include taking into account the adult’s inherent dignity and to recognise human rights and empower them to exercise fundamental freedoms. KR is distressed by having access to only $150 spending money per week, which undoubtedly is a statement that the current allowance affects her sense of dignity where she has not previously been subject to limits. 
85. [85]
    DR states that all KR’s expenses and bills are paid by him, and KR has access to a debit card and he provides funds on her request. In discussing the current living allowance arrangements DR stated that KR has under the interim appointment access to tap and go and is not limited to accessing the funds in her account and she can access this at will.  In addition, he stated that she knows that if asked he will provide any money she requires. DR said he has concerns that if a larger sum is given, as has occurred in the early weeks of the interim appointment, she will give this away to, and he described limited trust, and ongoing desire to stop funds being sent to scammers.^[53] I would encourage DR to be mindful of the General Principles in distributing a living allowance and note KR’s reports on the impact on her dignity. Having said that, I consider DR is likely to apply the General Principles.
86. [86]
    S 15 requires that I consider compatibility with the adult in determining whether the proposed appointee is appropriate for appointment. It is apparent that the relationship is not without conflict which has arisen through the exposure of KR’s behaviour at a time of ill-health in the family, and allegations that KR has engaged in deceitful behaviour during these transactions to cover up the behaviour. DR said that the conflict between them is not too difficult, said that they still have a relationship, and his mother knows that he wants to take care of her. He explained that he was committed to ensuring interests were protected and has made this promise to his father which he seeks to keep.  He is a practising accountant and competent to undertake the obligations of administrator.
87. [87]
    Under the interim order, DR has reported the activities to relevant cybercrime authorities and police have been made aware of the concerns.^[54]He has lodged a caveat over the 3 properties owned by KR to protect. I find that he has demonstrated competence during the interim appointment to take the steps necessary to protect KR’s assets.
88. [88]
    DR has been managing KR’s affairs from Victoria under the interim order with no barrier caused by distance. He continues to keep regular contact with KR and while the relationship can be tense, it remains a relationship of trust and confidence, and KR has been clear that she thinks their tensions can be overcome. KR gave the impression she had accepted that she knows DR is seeking to protect her, and she communicated a willingness to accept that at some level.
89. [89]
    I am satisfied that the evidence indicates that he is likely to apply the general principles, is available, accessible, appropriate and competent and has no conflict of interest. I find KR is accepting of DR in this role, and impliedly indicates she would prefer DR over the Public Trustee. I find DR is appropriate for appointment pursuant to s 14, 15 of the Act, and there is nothing in s 16 that excludes him from appointment as administrator.^[55] DR is appointed as administrator for KR for all financial matters.

Is the decision compatible with human rights.

90. [90]
    The Tribunal is acting as a public entity in making an appointment of an administrator under the Act, and therefore carries obligations to make a decision that is compatible with human rights.^[56]
91. [91]
    I must turn my mind to any human rights affected by this decision. I consider that it is possible that there may be limits on KR’s human rights to rights to property^[57]  privacy and reputation.^[58] Human Rights may only be subject to reasonable and justifiable limits.^[59] Given that the purpose of this decision is to ensure that the adults interests are protected from her psychiatric condition that is likely to render her with significantly diminished assets, and that this appointment is subject to review, I consider that it is reasonable and justifiable to limit these rights in making this appointment. The decision is therefore compatible with human rights.
92. [92]
    The applicant has brought an application for costs. This matter is reserved to be determined at a later date.