JWL[2023] QCAT 463

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   There are three proceedings dealt with herein. They are the review of the appointment of a guardian, an application for the appointment of an administrator, and orders to be made concerning power of attorney documents. They are all interconnected.
2. [2]
   In satisfaction of s 114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other active parties are referred to in these reasons in a de-identified format.
3. [3]
   For the reasons I discuss herein, on the evidence that was before me I concluded that:

   1. JWL did not have capacity to have signed enduring documents and accordingly the purported enduring powers of attorney documents were invalid; and
   2. there was the need for both a guardian and an administrator for JWL.
4. [4]
   Orders were thus made in that regard.

Background

5. [5]
   At the time of the hearings before me, JWL was 69 years of age living in his own residence, a home unit, although at the time of the second hearing he was temporarily resident in an aged care facility, such required following a fall at his home whilst arrangements were being made for more care at his home.
6. [6]
   From 27 October 2011 the Public Guardian (the OPG), then known as the Adult Guardian, and the Public Trustee of Queensland (the PTQ) were appointed as guardian and administrator to JWL, respectively. Initially that was an interim order,^[1] however on 23 November 2011 it was made a substantive order current for two (2) years.^[2]
7. [7]
   Those appointments came on for an early review with an application being made by JWL for a declaration  of capacity.^[3] That review occurred on 26 September 2012. There is a ‘Mental Health Services Progress Note’ dated 21 September 2012 on the Tribunal file, recorded as having been provided at the hearing on that date, in which the following is reported:^[4]

Background

Recurrent MDE – severe, melancholic, psychotic features

Schizoid personality traits

57 year old man, lives alone, isolated existence – has worked FIFO in the oil industry – basing himself in Cairns where he owns a unit for about 18 years is a UK citizen and has previously entered the country on tourist visas only so has not formal right of abode and now has no valid visa. This is the apparently the ongoing stress that led to his index depression with severe melancholic depression and psychotic features in 2010 – notable for him ceasing all food, not leaving the unit for weeks until services alerted by an acquaintance OS who was worried about lack of contact from [JWL].

8. [8]
   Notwithstanding that ‘Progress Note’, the outcome of the hearing was that an order was made declaring JWL had capacity for all personal and financial matters, and accordingly the appointments of the OPG and the PTQ were revoked.^[5]
9. [9]
   As best I can make out from reviewing the file, the learned Tribunal Member on that occasion reached the relevant conclusions on the basis of, at least in part, a report of a Dr RP who reported therein inter-alia:^[6]

… There was no evidence of persisting major mood disorder. I assessed him as currently table (sic) in his mental state. He was able to give a clear and coherent account of himself. There was no evidence of delusional thinking or of gross cognitive impairment. He displayed intact insight into his situation and previous mood disorder episodes, and was not seriously impaired regarding his ability to make health related decisions.

10. [10]
    On 19 August 2020, the OPG was once again appointed by the Tribunal as JWL’s guardian for decisions on matters of health care, provision of services, and immigration matters. As I understood it, the immigration matters were those concerning JWL’s visa status in Australia, or more accurately the fact that his visa permitting him to stay in Australia had expired. That appointment was reviewable within two (2) years.^[7]
11. [11]
    Since then an updated health professional’s report has been provided to the Tribunal. In a report of a Dr ND dated 6 December 2022, in which the Doctor records having known JWL since June 2020 and having last seen him on 20 December 2021, the Doctor reports that JWL has been diagnosed with vascular dementia, had suffered a stroke, that his cognition had been adversely affected, and that in her opinion JWL had lost capacity even in terms of basic self-care. However, notwithstanding that opinion as to loss of capacity, in terms of her assessment of JWL’s understanding of an enduring power of attorney, the Doctor opines that JWL did understand certain aspects of the giving of an enduring power of attorney although her answers given therein were not entirely clear in that regard.^[8]
12. [12]
    It was that review that came before me for hearing on 11 July 2023. In the early stages of that hearing, it being conducted entirely by phone, it became apparent that:

    1. JWL did not have any knowledge or understanding he was the subject of a guardianship order in August 2020, and/or that the OPG was his appointed guardian;
    2. On 19 July 2022, he had signed an enduring power of attorney document under the Powers of Attorney Act 1998 (Qld) (the POA Act), such purporting to give power to his neighbour, CAO, for all personal, health, and financial matters (the First EPOA) such to commence on his loss of capacity; but
    3. CAO wished to resign as attorney, and for JWL’s niece, LAO, to be appointed in his stead.
13. [13]
    That gave rise to questions concerning JWL’s capacity to have signed an enduring document, and if he did have capacity then, whether he had since lost capacity to revoke the appointment of CAO and/or subsequently appoint LAO as his attorney. Moreover, a copy of the First EPOA was not before the Tribunal.
14. [14]
    There was also a related issue if JWL did not have capacity to effectively change the EPOA, that being whether LAO, a permanent resident in Canada, was appropriate as either an attorney for personal and/or financial matters, or a guardian if I were to decide that there was still the need for the appointment of a guardian but not an attorney for personal matters.
15. [15]
    Accordingly, I adjourned that hearing part heard, to be reconvened on a date to be fixed, and gave directions for the filing of a copy of the First EPOA document.^[9] Once that document was filed and reviewed by me,^[10] I gave further directions:

    1. listing the reconvening of the hearing on 17 October 2023;
    2. for any person wishing to make any application or provide further documents to lodge same with the Tribunal Registry by 19 September 2023; and
    3. for Ms C. Burke, the solicitor who witnessed the giving of the First EPOA, to appear at the hearing on 17 October 2023 to give evidence and produce any documents in her possession addressing the question of what steps she took in witnessing that document to satisfy herself JWL had capacity to give the enduring power.
16. [16]
    Further material was then filed, namely:

    1. A short submission from SO giving some history to the involvement of herself and CAO, together with a report from ‘National Trauma & Crime Scene Cleaning Pty Ltd’ which I understand was the company engaged by CAO on behalf of JWL to conduct a clean-up on JWL’s home unit;^[11]
    2. a purported revocation of the First EPOA, shown to have been signed by JWL on 14 September 2023, once again witnessed by Ms Burke (the Revocation);^[12]
    3. a purported enduring power of attorney giving power to LAS for all personal, health, and financial matters shown to have also been signed by JWL on 14 September 2023, once again witnessed by Ms Burke, although shown to have been signed by LAS on 31 August 2023, i.e. prior to JWL giving the power, purporting to accept the appointment, on that occasion stating that the commencement of the financial power was immediate (the Second EPOA);^[13]
17. [17]
    The parties then appeared before me on 17 October 2023, on this occasion in person other than LAS who again appeared by phone from Canada.^[14] As that hearing unfolded:

    1. questions remained for me as to JWL’s capacity to have given the First EPOA, made the Revocation, and in turn given the Second EPOA, however I did not make any decision on that issue during the hearing;
    2. notwithstanding his earlier stated desire to resign as JWL’s attorney, CAO declared his willingness to take on the role of JWL’s guardian should I decide that there is the need for one;^[15]
    3. the OPG’s delegate attending suggested that in view of the questions still remaining to be considered by me in terms of JWL’s capacity and the enduring documents, that it may also be appropriate to consider the appointment of an administrator to JWL;
    4. CAO suggested that LAS would be the appropriate person as an administrator; and
    5. LAS indicated her willingness to do so if required.
18. [18]
    Accordingly, I once again adjourned the hearing part heard giving yet further directions, namely:^[16]

    1. noting the existence of the enduring documents, but directing that pending a determination being made as to the validity of any one or more of those enduring documents, to the extent the powers given under either the First EPOA or the Second EPOA conflict with the appointment of the OPG by this Tribunal on 20 August 2020, the purported attorneys are not to act on the powers given them thereunder;
    2. for the filing of any further material, including a formal application by LAS to be appointed as administrator if ultimately she decides to do so; and
    3. should any of the active parties wish to be heard further in an oral hearing they are to inform the Tribunal of same upon which the proceedings will be listed for further hearing, otherwise the proceedings will otherwise be determined.
19. [19]
    In furtherance thereof, LAS subsequently filed her Application for the Appointment of an Administrator,^[17] and a one-page accompanying written submission.^[18]  No request was made for a return to an oral hearing, and accordingly it was against that background I reached the decisions I did in these proceedings.

The Legislative Framework

20. [20]
    Before embarking on a detailed discussion on the issues arising in these proceedings, it seems to me it should be helpful to any reader of these reasons to understand the operation of the legislation under which I made the decisions, and gave the orders, I did. Accordingly I make the following comments.

The GAA Act & the POA Act

21. [21]
    As it is expressed in the GAA Act, the GAA Act together with the POA Act provides a comprehensive scheme to facilitate the exercise of power for financial and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult.^[19]
22. [22]
    The GAA Act is to be read in conjunction with the POA Act.^[20] The POA Act is to be read in conjunction with the GAA Act.^[21] To the extent there is any inconsistency between the POA Act and the GAA Act, the GAA Act prevails.^[22]
23. [23]
    Under s 82(2) of the GAA Act this Tribunal has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents, under s 109A of the POA Act this Tribunal  is given the same jurisdiction and powers for enduring documents as the Supreme Court and that Act applies in these proceedings as if references in the Act to the Supreme Court were references to this Tribunal.
24. [24]
    Both the GAA Act and the POA Act authorise the exercise of power for a matter for an adult with impaired capacity for the matter. Inter-alia, as is relevant to these proceedings, this may be done on a formal basis by one of the following:^[23]

    1. an attorney for personal matters, and/or an attorney for financial matters, appointed by the adult under an enduring power of attorney under the POA Act;
    2. a guardian appointed under the GAA Act;
    3. an administrator appointed under the GAA Act;
    4. this Tribunal.
25. [25]
    Whilst the POA Act provides mechanisms where a person (the attorney) is authorised to make particular decisions and do particular other things for another person (the principal), which as relevant to these proceedings is the provision of an Enduring Power of Attorney by the principal to the attorney,^[24] the GAA Act provides for the appointment by this Tribunal of a guardian to make decisions on personal matters for the person, and an administrator to make decisions on financial matters for the person.
26. [26]
    The GAA Act notes that an adult’s right to make decisions is fundamental to their dignity, and that the right to make decisions includes the right to do so notwithstanding that others might not agree with those decisions. It is also premised on the position that if an adult with an impaired capacity to make decisions is to be restricted or interfered with in terms of decision making, it should be done to the least possible extent.^[25]
27. [27]
    A person performing a function under the GAA Act in terms of decision making for an adult, such including this Tribunal in its role as appointer of external decision makers, must do so in a way that is consistent with the adult’s proper care and protection. Noting once again the requirement for the least restrictive option to be exercised, the legislation seeks to strike a balance between the right of an adult with impaired capacity to be afforded the greatest possible degree of autonomy in decision making, with the adult’s right to adequate and appropriate support for decision making.^[26]
28. [28]
    Thus it sets out general principles to be applied in any decision making process, including the decision as to whether to appoint an independent decision maker.^[27]  
29. [29]
    The POA Act sets out those same general principles, such to be applied by a person exercising a power under an enduring document of which the First EPOA and the Second EPOA are each one.^[28]
30. [30]
    The relevant criteria for appointing a guardian and/or administrator is that laid down by GAA Act s 12. That empowers the Tribunal to make a guardianship order or an administration order if satisfied that: ^[29]

    1. the adult has impaired capacity for the matter;
    2. 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. without an appointment:
       1. the adult’s needs will not be adequately met; or
       2. the adult’s interests will not be adequately protected.
31. [31]
    In implementing that criteria, the Tribunal may appoint a decision-maker where: ^[30]

    1. there is no one available to make decisions; or
    2. the decisions that are being made on an informal basis give rise to an unreasonable risk of harm; or
    3. there is conflict among family members; or
    4. there is conflict between family and a service provider.
32. [32]
    This Tribunal must review an appointment of a guardian in accordance with an order of the Tribunal, but at least every five (5) years.^[31] At the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.^[32] That then requires a consideration of the criteria to which I have just referred.
33. [33]
    If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either continue the order making the appointment; or change the order including by changing the terms of the appointment, or removing an appointing, or making a new appointment.^[33]
34. [34]
    As is relevant here, the Tribunal may make an order removing the Public Guardian as an appointee if there is a person mentioned in s 14(1) of the GAA Act available for appointment.^[34] That is, a person who is at least 18 years and not a paid carer, or health provider, for the adult;^[35] and having regard to the matters mentioned in section 15(1), a person this Tribunal considers appropriate. The provisions of s 15(1) are the appropriateness considerations, which include inter-alia whether the person is likely to apply the general principles as they are laid out in the GAA Act, whether the adult and the person’s interests are likely to conflict, whether the adult and the person are compatible, whether the person would be available and accessible to the adult; and the person’s competence to perform functions and exercise powers under an appointment order.^[36] Related to this are the provisions of s 16 of the GAA Act which requires the person who has agreed to a proposed appointment to advise the Tribunal of his or her appropriateness by giving of a declaration addressing the prescribed matters thereunder.^[37]
35. [35]
    Similar provisions apply for the appointment of an administrator.^[38]
36. [36]
    In concluding the discussion on the relevant legislative provisions of the GAA Act and the POA Act, it remains only necessary to discuss an issue that pervaded these proceedings, namely whether JWL was of impaired capacity. This was to be considered by me not only at the time of the hearings going to the issue of whether an external decision maker was thus required, but also as at the date of JWL having signed the First EPOA, and later the Revocation and in turn the Second EPOA, such going to the issue of their validity.
37. [37]
    In terms of the first aspect, the relevant definition is found in the GAA Act,^[39] namely:

impaired capacity, for a person for a matter, means the person does not have capacity for the matter.

capacity, for a person for a matter, means 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 decisions in some way.

38. [38]
    It is not an issue of global capacity. Rather it is an issue of capacity in respect of a specific matter. A ‘matter’ for the purposes of the GAA Act is a ‘type of matter,’ such as is relevant in this proceeding being listed in the Act under the headings:^[40]

    1. ‘personal matter’ which includes inter-alia where JWL lives, services provided to JWL, health care for JWL, and legal matters not relating to his property or finances; and
    2. ‘financial matter’ which includes inter-alia matters such as paying JWL’s expenses or a legal matter relating to the JWL’s financial or property matters.
39. [39]
    If I were to find that JWL was of impaired capacity then I had to consider whether there was the need for a decision to be made in relation to one or more personal matters and/or financial matters, or that JWL was likely to do something in relation to a matter that involved, or was likely to involve, unreasonable risk to his health, welfare, or property, such that there was the requirement for the appointment of an guardian and/or administrator, or whether the existence of an appointed attorney (if the appointment was valid) was sufficient.
40. [40]
    Associated with this was the secondary issue as to who the appointee(s) should be.
41. [41]
    In terms of the second aspect of the capacity issue, the relevant ‘matter’ is JWL’s act of giving his power of attorney to another person, such having been done by his signing of the First EPOA, and then the Revocation and the Second EPOA. But it is a different test of capacity.^[41] Under s 41 of the POA Act, a principal has capacity to make an enduring power of attorney only if the principal is capable of doing so freely and voluntarily, and understands the nature and effect of the enduring power of attorney. The section specifies, non-comprehensively, matters which must be understood by the maker.^[42] Related to this is s 47 of the POA Act which provides that a principal may revoke an enduring power of attorney only if the principal had the capacity necessary to make an enduring power of attorney giving the same power.
42. [42]
    If I was to find that JWL did not have capacity at the time he signed the First EPOA, or the Revocation, or the Second EPOA, then it would follow that the document in issue would be invalid and of no effect Under s 113 of the POA Act I was thus empowered to declare any one or more of those documents invalid thus leaving it open to proceed with a consideration of the need for the appointment of a guardian and/or an administrator. Consideration would then turn to the question of who the appropriate appointee was, namely the Public Guardian or CAO as guardian, and LAS or even the Public Trustee of Queensland, as administrator.
43. [43]
    However if I was to find that JWL had capacity to give the First EPOA, or the Second EPOA and in turn revoke the First EPOA, then the consideration of the matters in this proceeding would turn initially on the effectiveness of the decision-making for JWL by CAO, or LAS,  if I was to also find that the relevant EPOA had commenced.^[43] In this regard s 50(1) of the POA Act would also be relevant because under that provision the giving of the Second EPOA would have effectively revoked the First EPOA to the extent of any inconsistency.
44. [44]
    Subject then to which EPOA prevailed, if I was to find that CAO and/or LAS were competent and that either of them understood the decisions that needed to be made and would protect JWL’s interests while ensuring his wishes were taken into consideration, whilst also noting CAO’s wishes to resign as an appointed attorney but in turn also noting his willingness to take on the role of a guardian, then I may readily consider JWL’s needs were met and his interests adequately protected such that there was no need for the appointment of a guardian and/or an administrator and the issues would simply turn on the existence of the EPOA’s and how best to work with them in terms of JWL’s care.^[44]

The Human Rights Act

45. [45]
    Whilst substantively the issues in these proceedings were dealt with under those two pieces of legislation, I also considered the Human Rights Act 2019 (Qld) (HRA).
46. [46]
    The main objective of the HRA is to protect and promote fundamental human rights. However those rights are not absolute. They may be limited, but only as far as is reasonable and justifiable. That being said, all statutory provisions, as far as is possible consistent with their purpose, must be interpreted in a way that is compatible, or most compatible, with those human rights. Two such statutes are the GAA Act and the POA Act. Thus, the relevant human rights afforded JWL under the HRA must be considered in the exercise of any power or performance of any function under those pieces of legislation, such being done in a way that is compatible with them but only to the extent that is also possible whilst meeting the statutory purpose of the GAA Act and the POA Act.
47. [47]
    JWL’s rights as noted in the HRA would be engaged and limited by the orders I was being asked to make in this proceeding.^[45] That being so, noting the findings of fact as I express them later in these reasons as to the criteria set out in the GAA Act and the POA Act, in my opinion the limits that are imposed by the orders I ultimately made are reasonable and justified. JWL is entitled to adequate support services to enable him to live independently, such being consistent with a free and democratic society based on human dignity, equality and freedom. The decisions reached in this proceeding are, in my opinion, the least restrictive options consistent with that entitlement.

The Relevant Evidence

48. [48]
    I have already referred to relevant documents in the Background section of these proceedings as they appear in the Tribunal file. I need not repeat that detail here and merely need only say that all such documents referred to are relevant evidence.
49. [49]
    In paragraph [7] therein I referred to a ‘Mental Health Services Progress Note’ and accompanying report of a Dr RP. There was however another, and earlier, ‘Progress Note’ included as part of the documents shown as having been provided in that hearing, this once dated 19 June 2012. The following notation appears therein, having earlier identified the person to whom it refers as being JWL:^[46]

His mental state is currently stable and he reports it has been for over 3 months now.

He denies any persistent depressive symptoms and there was no evidence of psychosis on review, no delusional content. He has a meagre lifestyles, few interests/activities …

He continues to look for work and may have a job opportunity in Europe but worries that if he leaves the country having overstayed his visa then he will not be able to return.

His only emotional connection is to his home in Cairns – he keeps in contact with his sister in Canada, but not especially close.

His neighbours look out for him, though he won’t socialise with them.

…

He is a long term risk of recurrence, especially as the stressor triggering episodes is unresolved, though has responded well to treatment and seems compliant.

…

Suggest he should remain linked with case management team in the longer term (as least 12 months from after guardianship revoked and hopefully seeing him sort out his visa issues) given his risk of relapse and seriousness of prior relapse.

50. [50]
    As I noted it in paragraph [16] herein, a written submission from SO was provided. Whilst short, it still contained allot of information of which certain aspects are in my opinion directly relevant to the decisions I was ultimately required to make. I extract those parts here:^[47]

We moved into the apartment next door to [JWL] in December 2020. We were unaware of [JWL]’s living situation until we had been there a while. We were alerted with the smells that we (sic) were coming from his apartment and the wine deliveries being bade to him of 64 boxes (12 bottles in a box) a month being delivered to him and being left in the common area. For about a month we talked with [JWL] and other residents who were on the body corporate, and [JWL] (reluctantly) agreed that he needed to have his apartment cleaned.

We organised for [JWL] to move out of the apartment for 3 days and [COA] worked with National Trauma & crime scene (sic) cleaning the apartment. …

…

A doctors (sic) visit was organised with Dr [ND] at [location named]. [JWL] did not want the tests she suggested as he is not on Medicare so would have to pay and he could not see the reason to have the tests.

We organised for [JWL] to go to a lawyer as we were concerned he had lost touch with his family (sister and niece) and that they should be involved …. When [JWL] went to the lawyer, Catrino Burke (Lawyer at Smithfield Law) advised us [JWL] asked if [CAO] would be his power of attorney which would only be activated if the Doctor deemed him medically incompetent. The reason we got involved is we were concerned if [JWL] could no longer live in his apartment where he would go and who would organise the right care for him. …

51. [51]
    As also noted this submission also included a report from National Trauma & Crime Scene Cleaning Pty Ltd, that report being described therein as being for the purpose of “Hoarded, Squalor Home Clean Up”. It contains extensive details of what was done in the clean-up, such which need not be detailed here save only for the following comments which I consider to be relevant: ^[48]

NTCSC was contacted on 6^th of September 2021 by [CAO] regarding his neighbour’s [JWL] unit. …

[CAO] has advised there is a bad odour coming from his apartment and the unit has cockroaches. …

Our technician [A] attended on the 9^th of September 2021 and conducted an onsite assessment of the property (sic) based on his finding the following scope of works are commended (sic).

…

Inside the Property:

• Removal and disposal of all human excrement from within the property.
• Removal and disposal of all rubbish within the home throughout all rooms. There is a severe accumulation of general household rubbish, packaging and alcohol bottled to be discarded.

…

We highly recommend for the mattress to be disposed of as it is badly stained with bodily fluids and will be one of the main sources of the odour within the bedroom. …

• This property needs to receive a thorough bio-hazardous clean.

…

52. [52]
    The relevant oral evidence is that which I heard from JWL, CAO, LAS, Ms Burke, and Ms Daveson during the second hearing.
53. [53]
    Helpfully, on the occasion of each hearing I was afforded the opportunity to have a fairly lengthy conversation with JWL. The following points are the relevant aspects of that discussion:

    1. As I mentioned it earlier at paragraph [12](a) herein, initially JWL stated he did not have knowledge of the appointment of a guardian to him in 2020, repeating that in the second hearing and also saying he had not had any discussions with the Public Guardian “since 2015 when they had control”;^[49]
    2. As to his immigration status, he informed me that :
       1. he had previously been employed on the basis of working away for two (2) months, staying here for one (1) month;
       2. he first learned only in 2018 of the need to address his immigration status in Australia and apply for a visa;^[50]
       3. he has not done anything about it since then;
       4. he has no knowledge of any advice having been given to the Public Guardian about his immigration status;^[51]
       5. he is aware of the risk of deportation but there is nothing he can do about it;
       6. he hopes to die before the immigration issue needs to be sorted out.
    3. On questioning from me in terms of persons who assist in his care, JWL asserted that it is only his niece LAS who looks after his finances paying his bills when they are due, and that she has been doing this since April;
    4. When I asked him in what year this commenced, he was unable to answer me; and when I pressed him to tell me what year it was now his response was that it was either 2034 or 2038;
    5. When I asked him as to whether LAS has been, or could be look after anything else, or whether anybody else is looking after anything else for him, his response was that there was nothing else that he needed to have anybody else look after.
54. [54]
    I then asked him some questions concerning his understanding of the enduring documents he had signed. The discussion identified the following:

    1. His understanding of the enduring power of attorney documents is that his ‘attorney general’, being the term he used to describe the appointed person, has overall control of his finances;
    2. That person did not have control over anything else;
    3. As to what he might do if he did not agree with decisions the person was making about his finances, he did not answer the question and appeared unable to answer it;
    4. As to what decisions the appointed person under the documents had made about his finances, he said that none had been made yet;
    5. As to what he could do if he changed his mind and no longer wanted the person appointed, he could not comprehensively answer it saying merely he would go to his solicitor.
55. [55]
    For completeness I should also make this comment. At the second hearing JWL appeared in person in the hearing room assisted by CAO, as compared to his attendance at the first hearing by phone. That afforded me the opportunity to not only have the discussion with JWL, but to observe him during that discussion as well as during discussions I had with other persons, either present in the hearing room or via phone. I was also able to observe his interaction with CAO. All of those observations were of great assistance to me. Not only did I see the manner in which JWL reacted, or more relevantly did not react, to many of the comments made in the discussions, I was able to observe him generally during the hearing. What I observed was a person who at times appeared not to be fully cognisant of his surroundings. His ‘gaze’ was at times vacant. In my opinion, it was indicative of a person who was adversely affected by dementia such that their cognition was wavering between being aware and not being aware of what was occurring around them, such which I have observed on numerous occasions in hearings such as these with adults in attendance who had been diagnosed with dementia.
56. [56]
    Having heard from JWL, I turned to Ms Burke, the solicitor for JWL, questioning her as to what steps she took to satisfy herself that JWL had capacity to sign the enduring documents on the two occasions he attended at her office to do so. The following are the relevant aspects of that discussion:

    1. JWL brought with him allot of paperwork concerning the history of his dealings with this Tribunal, however Mr Burke was not aware of the application for review of the appointment of a guardian to JWL;
    2. Ms Burke did not ask JWL about his medical history, did not request any medical evidence from him, and did not make any enquiries as to medical information;
    3. On her observations of JWL during her meetings with him, in her opinion JWL was clear on his intentions and what he wanted, and that he understood the nature of the enduring documents he was signing;
    4. When I pressed her to explain to me the basis upon which she reached that conclusion as to his understanding, her response was that she explained the decision making process to JWL and he told her he understood it;
    5. When I then pressed her to explain what she did to evaluate JWL’s understanding of the nature and effect of the enduring powers of attorney he was signing, and in particular satisfy herself as to being able to meet the understanding as it is expressed in s 41(2) of the POA Act, her response was that:
       1. She was satisfied he had capacity to make a will, applying the Banks v Goodfellow test; and
       2. on looking at all the QCAT documents and the medical advice she was satisfied.^[52]
    6. When I specifically asked her what she considered when learning of the fact that this Tribunal had appointed the Public Guardian on 19 August 2020, that of itself giving rise to a question of capacity, her response was that this was not in the paperwork JWL had shown her.^[53]
57. [57]
    My discussion then turned to CAO. This was at the second hearing only given he was not present on the first occasion. He informed me of the following facts which I considered to be relevant:

    1. In last couple of weeks before the hearing, JWL had a fall at his home, and was then in residential care and receiving cardiac care, pending home care being organised, also informing me this was because there was not a lift in the building in which JWL lives and his unit is on an upper floor; and
    2. A Dr DC had called CAO around 19 or 20 September, being after JWL had been in residential care for about 2 to 3 days, raising his concerns with CAO about JWL’s capacity.
58. [58]
    What then followed was my discussion with Ms Daveson of the OPG. She informed me of the following facts which I considered to be relevant:

    1. A delegate of the OPG last visited JWL in October 2021 at which time he stated he did not want any involvement from the OPG;^[54]
    2. A delegate of the OPG held a discussion with CAO on 24 August 2023, the purpose of which was to discuss the OPG’s appointment as well as the purported First EPOA, raising then issues of capacity;
    3. Today was the first occasion she learned of JWL’s recent fall, cardiac care, and residential care, despite the fact the OPG is the appointed decision maker for health care;
    4. Due to JWL’s immigration status, he does not have access to Medicare, thus ‘My Aged Care’ and thus funded homecare;
    5. JWL is at risk of deportation;
    6. Whilst noting JWL’s expressed desire not to have the OPG involved, she holds concerns about JWL’s health care and immigration issues, expressing her opinion that JWL did need somebody to assist him in that regard.
    7. She suggested that whilst it appears certain a guardian is appointed, the appointment of an administrator should also be considered.
59. [59]
    Finally, my discussion then moved to LAS. Once again these are the relevant facts as I noted them from that discussion:

    1. Her understanding of her purported appointment under the Second EPOA is that if JWL can make decisions on his own then he should do so, otherwise she will have to make them;
    2. JWL has not followed through with the immigration issue, but she was aware that the OPG had done something but did not know what;
    3. She has a contact list of persons who are involved and reaches out to them for information from time to time; and
    4. Whilst she signed the Second EPOA document, she has not been provided with a copy of the document signed by JWL, and thus says she does not have any documentation to enable her to show people she is involved.
60. [60]
    As noted in paragraph [19] herein, LAS also provided some short written submissions with her Application for the Appointment of an Administrator. The content of that document was minimal, it for relative intent and purpose describing LAS’s understanding of her uncle’s financial circumstances, part of which I extract here as being what I saw relevant to the decisions I was being asked to make:^[55]

Given that I have never had and still do not current have any documentation granting a legal ability to access or examine my uncle’s finances beyond what we as a family know  … I have not engaged a real estate agent to provide a more accurate assessment of the value of my uncle’s property.

… Until [SO] and [CAO] became involved, and started assisting my uncle, he had not been leaving his unit or seeing anyone and had some hording tendencies. His unit required a complete clean up (sic), which [SO] and [CAO] co-ordinated, and it has not been updated or renovated in any capacity in many years. My uncle is a heavy drinker and has not been keeping up with general maintenance … From my uncle’s work on oil rigs in the Middle East, our family’s knowledge of his past financial history, including past discussions my parents had with him, the frugal lifestyle he has led and his ability to pay his bills, we believe he has more than enough means to support himself.

… I am in regular contact with [CAO] and [SO] and as a family we consider ourselves extremely fortunate to have them as part of the team supporting and working with my uncle. My uncle trusts them to look out for his best interests, as do we as a family, and that is a direct result of all they have done for my uncle to significantly improve his life and general wellbeing. This trust has allowed all of us, my uncle, [CAO], [SO] and myself, to be able to work together, resulting in timely and regular support for my uncle’s needs as they have evolved while also enabling us to discuss possible future plans which will need to be in place as my uncle’s needs further change.

Consideration of the Evidence and the Relevant Law

61. [61]
    The criteria against which I assessed and considered the evidence for the purposes of the question of the need for appointing a guardian and/or an administrator is as I have explained in in paragraph [26] herein. Often these requirements are dealt with as a step-by-step process, with the Tribunal first evaluating capacity, then need, then finally considering if the lack of an appointment will impact the adult’s needs and interests.^[56] I adopted that same approach in my consideration of the evidence and the relevant law. Associated with this is the issues of the EPOA’s and the consideration of them under the relevant provisions of the POA Act.

Capacity

62. [62]
    The starting point is that under both the GAA Act and the POA Act, JWL is presumed to have capacity.^[57] However this is a rebuttal presumption, such which can only be rebutted by the presentation of evidence that shows the contrary. On the evidence that was before me, in my opinion that presumption in both instances was rebutted.

The test of capacity under the POA Act relevant to the giving of the EPOA

63. [63]
    Firstly, I turn to the issue of JWL’s capacity to have given the First EPOA, then the Revocation, and in turn the Second EPOA. In this regard it is necessary to consider the provisions of s 41(1) and s 41 (2) of the POA Act which describe the premise for a finding of capacity to make an enduring power of attorney, and in turn to revoke it. For completeness and ease of reference I extract those provisions here in full:

41  Principal’s capacity to make an enduring power of attorney

1. A principal has capacity to make an enduring power of attorney only if the principal—

1. is capable of making the enduring power of attorney freely and voluntarily; and

2. understands the nature and effect of the enduring power of attorney.

2. Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—

1. 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. when the power begins;

3. 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. 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. the power the principal has given continues even if the principal becomes a person who has impaired capacity;

6. 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.

64. [64]
    In terms of those provisions, as was recently observed by Martin SJA in Lambourne and Ors v Marrable and Ors:^[58]

[52]  Section 41 imposes a two-part test for the assessment of capacity and excludes the definition of “capacity” contained in the Dictionary.

[53]  Section 41 must be read together with the presumption of capacity provided for in s 111A. It follows, then, that when a court is required to make a decision about an adult’s capacity it is presumed that the principal … understands the nature and effect of an EPOA and is presumed to understand the matters set out in s 41(2).

65. [65]
    Martin SJA earlier said of that presumption:^[59]

[43]  This presumption is to be applied by the court but it may be rebutted if “the contrary is proven.” Such proof need only meet the civil standard but, given the nature of the matter and the consequences of a finding of a lack of capacity, the proof must be to the Briginshaw standard. I respectfully adopt what Sofronoff P said in Leigh v Bruder Expedition Pty Ltd about that standard:

“[23]  … it must be borne in mind that the case does not establish a third standard of proof which lies between the civil and criminal standards. Briginshaw establishes that, when applying the civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding whether evidence actually proves a fact to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.”

66. [66]
    That being said, once again for ease of reference it is apposite to also extract s 111A of the POA Act:

111A  Application of presumption of capacity

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.

2. …

67. [67]
    Later in his reasons in Lambourne, his Honour made this observation as is relevant to the issue under discussion here:^[60]

The type of evidence which assists in deciding whether the assumption of capacity has been rebutted

[116]  The applicants gave evidence of their observations of Harvey at various times which, they argue, is relevant to the execution of the revocations and the later EPOAs. Evidence was also received from persons who knew Harvey as well as from experts in the field of geriatrics.

[117]  The means by which a person’s capacity may be assessed has been considered in cases in which a party bears the burden of proving capacity. In this case, the burden is reversed but the consideration of what may be relevant and helpful in discharging that burden will, inevitably, involve consideration of similar types of evidence.

[118]  Assistance can be found in the analysis of Lindsay J in Scott v Scott. In that case, his Honour dealt with the Powers of Attorney Act 2003 (NSW). It did not provide for the same presumption of capacity as the Act does and, so, in resolving the issues, Lindsay J referred to the tests for assessing capacity. His remarks help to identify the types of evidence which can be relevant to a consideration of whether a lack of capacity has been established:

“[199]  … There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed.

[200]  An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject’s mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spacial [sic] and relational dimensions.”

[119] I also bear in mind the caveat expressed by Lindsay J about the elevation of statements in analogous cases:

“[206]  … care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable “standard” or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the court must be on the substance of the inquiry whether the particular subject had, in fact, the requisite capacity — understanding — to effect a particular transaction.”

[120]  That statement has similar force in a case such as this where the inquiry is whether the applicants have rebutted the presumption of capacity.

68. [68]
    All that being said, I thus turn to the evidence that was before me and upon which I could determine the question of JWL’s capacity to have given the First EPOA, and in turn the Revocation and the Second EPOA.
69. [69]
    Given that which JWL said to me during the hearing as to his understanding of the power of attorney documents, I was left with the clear impression that on neither occasion had any of the matters raised in s 41(2) of the POA Act had been discussed in any detail with JWL at the time he signed either of the EPOA documents. On that premise alone it is challenging to reach a conclusion that he understood those provisions.
70. [70]
    It will be recalled, as I discussed it earlier herein, that I had a discussion with Ms Burke, the solicitor whom, as I understood it , not only advised JWL on the giving of the EPOA’s but also witnessed him giving them and in turn effectively declared that in her opinion he had capacity to do so. However despite my specific questions of her as to what steps she took to satisfy herself of JWL’s understanding of the nature and effect of the EPOA’s, with particular reference to s 41(2) of the POA Act, Ms Burke could not tell me what she did with reference to that section. All she could tell me is what she did not do, specifically being she did not call for any medical reports or similar material, and that she relied on the test in Banks v Goodfellow in terms of being satisfied JWL had capacity to make a will.^[61] However such is not the correct test, it being a test for testamentary capacity, not a test for the giving of an enduring power of attorney. Such can be seen by reference to the following discussion of two relevant decisions of the Queensland Supreme Court.
71. [71]
    Applegarth J considered the test for testamentary capacity in Frizzo & Anor v Frizzo & Ors, wherein his Honour expressed it in the following manner in reference to Banks v Goodfellow: ^[62]

The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:

1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;

2. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;

3. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties.

The Banks v Goodfellow test does not require perfect mental balance and clarity; rather, it is a question of degree. As Cockburn CJ put it in that case, “the mental power may be reduced below the ordinary standard” provided the testatrix retains “sufficient intelligence to understand and appreciate the testamentary act in its different bearings”. More recently, Kirby P (as he then was) has articulated this principle as follows:

“In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent—more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will…. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.”

In part, this reflects the fact that the Banks v Goodfellow test is always brought to bear “on existing circumstances of modern life”. …

72. [72]
    It can thus be seen that it is expected that a testator/testatrix has some understanding of relevant aspects of his/her estate property and its value. Compare this to the detailed analysis of the extent of understanding required to meet s 41 of the POA Act to which Martin SJA referred in Lambourne,^[63] wherein his Honour made no reference to Banks v Goodfellow but moreover rejected the argument that the person giving an enduring power of attorney must have some understanding of the nature of the assets or business of the person,^[64] such being what arises in the Banks v Goodfellow test.
73. [73]
    In my opinion Ms Burke applied the wrong test and simply failed to know that she was doing so. She did not describe to me in any way that she discussed with JWL the terms of the instrument, the nature of the business that might be conducted pursuant to the power, the extent to which JWL might be affected in his or her person or property by an exercise of the power. At best, all Ms Burke could describe is the circumstances in which the instruments came to be prepared for execution and a purpose for which it may ostensibly have been prepared.^[65] From that discussion I was left with the very clear impression that Ms Burke herself did not have knowledge or an understanding of the proper test to be employed, such being when not advising JWL on the giving of an enduring power of attorney, but when witnessing the giving of same. In my opinion she failed to assess JWL’s capacity to have given either of the EPOA’s, and accordingly her evidence to the contrary is of no probative value.
74. [74]
    Moreover, JWL’s responses to my questions went solely to the management of his finances on the basis that the person appointed had ‘total control’. Whilst that was at least partway sufficient to establish a degree of understanding for the purposes of s 41 of the POA Act, I note that First EPOA stated that the powers of the attorney for financial matters was to start on loss of capacity, however the Second EPOA stated it was to start immediately. I did not glean anything from the discussion with JWL that enlightened me to him having any understanding of this difference. It also appeared to me that he either simply did not know, or at the very least did not understand, that he had also given authority over his personal and health matters albeit only upon his loss of capacity.^[66]
75. [75]
    Thus, as it was demonstrated to me in the hearing by JWL himself, in my opinion he did not understand the nature and effect of the EPOA’s, such which I find to be a fact. The evidence as I have discussed it meets the Briginshaw standard as it was  discussed by Martin SJA in Lambourne^[67] as I have referenced it in paragraph [63] herein, and thus in my opinion supports that finding.

Decision on capacity for the purposes of the POA Act

76. [76]
    It must follow that it could not be said JWL understood the meaning of the EPOA’s or Revocation, and it turn it may be readily concluded he did not have the requisite degree of capacity to give these EPOA’s nor sign the Revocation. For this reason, an order was made declaring both the First EPOA and the Second EPOA invalid.
77. [77]
    However, if I am wrong about my conclusions, and thus that order, the following facts and circumstances are relevant such that a similar outcome would have prevailed.
78. [78]
    In terms of the First EPOA, as noted earlier CAO wished to resign his role as attorney, such encompassing both personal and financial matters. As such the following circumstances would have been relevant to the decision to be made.
79. [79]
    If JWL had  capacity, it being the general test for capacity under the POA Act,^[68] not the test for capacity under s 41(2) of the POA Act, then the First EPOA would have effectively been revoked.^[69] Further or alternatively, the First EPOA would have been revoked by the giving of the Revocation and/or the giving of the Second EPOA if the latter were otherwise valid.
80. [80]
    There is however one issue with the Second EPOA which for completeness I should mention. It is as I noted it in paragraph [16](c) herein, that being the date on which LAS purported to accept the appointment predates the date on which JWL purports to have given the powers to LAS. Under s 44(8) of the POA Act, an enduring document is effective in relation to the attorney only if the attorney has accepted the appointment by signing the enduring document. Accordingly, notwithstanding LAS signed the document, at the time she did so there was no power to accept on the basis that JWL had not at that time yet given it, and there is no evidence before me to show that she has subsequently accepted the appointment by a later signature.
81. [81]
    As was observed by Lyons J of the Queensland Supreme Court in Whitney v National Australia Bank, the enduring power of attorney is made only when the requirements of s 44 of the POA Act are met.^[70] It is the granting of the power by a principal which is the unilateral grant of authority by the donor to the done, and whilst the validity of the grant of power does not depend on the acceptance by the attorney, the act of acceptance of that grant by the attorney is necessary in order for the attorney to exercise the authority.^[71] However, the Second EPOA would not otherwise be invalid in the absence of  the acceptance of it by LAS after it was made because the provisions of s 44 apply such that the granting of the power has been made. But LAS would be required to have re-signed her acceptance on a date after the Second EPOA was signed by JWL before she would be in a position to exercise her power as attorney. Such could have been done simply by the first acceptance being ruled through and LAS signing the form on the acceptance page again and dating it as at the date of re-signing the form.
82. [82]
    In this regard, once again a criticism of Ms Burke’s conduct as JWL’s solicitor arises, it again being in my opinion entirely unsatisfactory and such displaying once again an absence of either knowledge or at the very least understanding of the operative provisions of the POA Act. On LAS’s own evidence she has not been provided a copy of the Second EPOA to provide her with a basis upon which she could formally conduct her role as an appointed attorney, but even if she had been it would not be a power she could have exercised lawfully without having resigned the document on a date after JWL signed it. In my opinion this is something Ms Burke should have ensured was correctly done.
83. [83]
    If however JWL did not have capacity, that being he was of impaired capacity as that term is defined in the POA Act, and the requisite application to this Tribunal was made by CAO under s 82(1) of the POA Act,^[72] then I would have given leave thereunder for him to resign, but I would not have appointed a replacement attorney under s 82(2) of the POA Act in either role. Whilst LAS, the only other person standing up to take on the role, was effectively in the wings to take on that role in both capacities, in my opinion given her location Canada she would not be suitable as an external decision maker for personal and health matters due to issues of being readily available and accessible to JWL for quick and effective decision making on personal matters,^[73] nor would she be suitable as an attorney solely for financial matters given her remote location given that as an attorney, unlike an administrator appointed under the GAA Act, would not have been the subject of oversight by this Tribunal without a specific application being made to the Tribunal.
84. [84]
    For these reasons, whilst the order would not be that the enduring documents were invalid, the orders would have been that:

    1. the enduring documents were revoked under s 116(d) of the POA Act on the basis of changed circumstances as provided for under s 117 of the POA Act; and
    2. in their stead, for the reasons I have explained later herein as to the appointees for guardianship and administration, I would have appointed a guardian and an administrator under the GAA Act, such which would have been CAO as guardian given his stated willingness to take on the guardian’s role, and LAS as administrator given her stated willingness to take on the administrator’s role, both being subject to oversight by way of formal review by this Tribunal in those roles.

The question of capacity under the GAA Act

85. [85]
    Secondly, I turn to the issue of JWL’s capacity in terms of his understanding the nature and effect of decisions required to be made in respect of personal and/or financial matters, or his ability to freely and voluntarily make decisions about those matters, or to communicate such decisions. That is, the question of his capacity which goes to whether there is the need for an external decision maker and ultimately a guardianship and/or an administration order.
86. [86]
    On the evidence before me, I was readily able to conclude that he was of impaired capacity and accordingly find that the presumption of capacity for both personal and financial matters had been rebutted.
87. [87]
    The first part of the relevant evidence is that found in the health professional’s report of Dr ND to which I briefly referred in paragraph [11] herein. As the Doctor expressed it in her answer to the question “In your opinion, are there any other factors that affect the Adult’s ability to make decisions …?”:^[74]

Vascular dementia and post stroke status have significantly affected his cognition & he has lost capacity to make decisions about his life and even basic self care (sic).

88. [88]
    That of itself was significant. Whilst the question of capacity is not a medical issue but rather a legal issue, the medical opinion evidence is highly persuasive in determining the legal point. What is shows me is that there is a formal diagnosis of dementia, such which is well known to be a degenerative condition and so only worsening over time. As such, notwithstanding the Doctor’s opinion that JWL has already lost capacity, even if that were to be discounted such that it might be considered at the time of the hearing JWL retained some capacity, I can readily conclude that such would decline over time, possibly even rapidly, such which is properly considered in assessing capacity for the purposes of the GAA Act.^[75]
89. [89]
    What was also persuasive in terms of medical opinion evidence before the Tribunal was the Mental Health Services Progress Note of 19 June 2012 to which I referred in paragraph [49]  herein. Notwithstanding it is of substantial historical age, and its general content went to the question that was then before the Tribunal to be answered, namely whether at that time JWL was of impaired capacity, in my opinion the parts therein which I extracted and emphasised remain entirely relevant now. This is particularly so when read in conjunction with the later Progress Note dated 21 September 2012 to which I referred and extracted in part in paragraph [7] herein. In the earlier report it was opined by a medical professional that JWL was a ‘long term risk of recurrence, especially as the stressor triggering episodes is unresolved’, together with a stated ‘risk of relapse and seriousness of prior relapse’. One of those triggering episodes referred to therein was his visa status, such also being referred to in the later report as being an “ongoing stress that led to his index depression with severe melancholic depression and psychotic features in 2010.” It still remains unresolved now more than 11 years after those reports were written. Accordingly in my opinion it must remain an issue  for JWL that could trigger, and seemingly has triggered, a relapse to his condition that ultimately brought about the earlier guardianship and administration orders. I return to this shortly in these reasons.
90. [90]
    There was also the short submission from SO, and the accompanying cleaner’s report  to which I referred in paragraphs [50] and [51] herein. The circumstances as they are described therein as to the ‘status’ JWL was in at that time are alarming. To me it is indicative of a person who at that time failed to understand the nature and effect of decisions that are ordinarily required for the subtleties of life and self-care, and thus of a person who simply could not make them. It was consistent with the opinion of Dr ND, and in my opinion with a recurrence and relapse in the context of that to which I have just referred from the June 2012 Progress Note.
91. [91]
    The information I learned from CAO as I have referred to it in paragraph [57] herein was also of great benefit. In my opinion it demonstrated a most recent set of circumstances that left me with concerns over JWL’s capacity, and for all intent and purpose confirmed that which Dr ND and SO had stated, as well as the recurrence and relapse.
92. [92]
    But most importantly, and critically, is that which I heard from JWL himself, and my observations of him during the hearing, all which I referred to in paragraphs [53] and [55] herein. This showed me that what others were saying, to which I have just referred, was accurate in terms of JWL’s cognition. When considered in conjunction with his answers to my questions about the enduring powers of attorney as I have mentioned it in paragraph [54] herein, albeit that directed towards the capacity issue for the purposes of s 111A of the POA Act, it demonstrated to me quite clearly that, as Dr ND had opined, JWL had lost capacity, and in my opinion such was in terms of both personal and financial matters.
93. [93]
    This was reinforced by what I later heard from Ms Daveson of the OPG’s office as I referred to it in paragraph [58] herein wherein JWL’s immigration status was discussed more fully. That left me with the conclusion that, based on what JWL had to say to me on that topic, and whilst noting that which is recorded in the Mental Health Services Progress Note of 19 June 2012 to which I referred earlier in terms of his concerns then regarding his visa status, as I mentioned it earlier herein an issue still unresolved more than eleven (11) years later, JWL simply was unable to understand the nature and effect of the issue and in turn the need for a decision to be made about it. Effectively what JWL was doing was deciding not to decide, such which was clearly a risk to his health and welfare.

Decision on capacity for the purposes of the GAA Act

94. [94]
    For all these reasons I was readily able to find that the presumption of capacity JWL is afforded under GAA Act was rebutted for both personal and financial matters. Once again the evidence that was before me met the Briginshaw standard as it was  discussed by Martin SJA in Lambourne and Ors v Marrable and Ors ^[76] as I have referenced it in paragraph [65] herein, and so supporting that finding.
95. [95]
    On that basis it was appropriate to proceed and consider making a guardianship and/or an administration order. As discussed earlier, once the capacity threshold is dealt with the issue then turns on the need for decisions to be made such that requires the appointment of an external decision maker.

The Need for Decisions on Personal Matters and/or Financial Matters

96. [96]
    I was also able to conclude, for the very same reasons, that there was the need for decisions to be made for JWL, both on personal matters and financial matters that could not otherwise be made via lawful means, and in turn there was the need for the appointment of both a guardian and an administrator. It was abundantly clear to me that JWL was in need for decisions to be made for the protection of his health and welfare, and without those decisions being made he was at risk of harm.
97. [97]
    As to the financial matters I should also say this. LAS has provided a relatively rudimentary Financial Management Plan (FMP) as part of her application for appointment as JWL’s administrator.^[77] Much of the information is unknown by her and recorded as such therein. But based on what it does contain, it is apparent that JWL’s assets will readily exceed A$1,000,000 with funds of an unknown amount held in off-shore bank accounts,^[78] and with minimal or no debt. Moreover the income and expenses statement is minimal in its content but appears to suggest that he is left with a substantial surplus when considered at regular intervals. It also informs me that investigation into his financial circumstances is necessary to firstly identify what those are, and only then to make plans for management of same, such which will have to be done in conjunction with the guardian and decisions that will need to be made in terms of JWL’s personal matters. This is particularly so given the complete uncertainty as to what may transpire for JWL given his immigration status and the risk for him of deportation.
98. [98]
    What all of this means is that it will be necessary for the administrator to not only conduct a detailed investigation to identify the full extent of JWL’s financial circumstances, but to also take proper and comprehensive advice from a licenced financial planner to ensure that appropriate and adequate financial planning is in place to ensure JWL’s finances are protected and will meet his needs for the remainder of his life. For this reason, an order was not made approving the FMP, but an order was made for the provision of an updated Financial Management Plan within six (6) months to allow the administrator to undertake that necessary investigation and obtain that financial planning advice.
99. [99]
    Finally, before turning to the issue of who is the appropriate appointee for each role, I should say one more thing about the need for a guardian.
100. [100]
     On the evidence and submissions as it was before me, it was entirely unclear as to the ambit of the nature of decisions to be made on personal matters. It seemed to me that the ambit of the OPG’s appointment as it was made on 19 August 2020 remained necessary, namely health care, provision of services, and immigration matters, but there was also the need for accommodation decisions given what CAO had to say about JWL’s mobility and current health conditions as well as the fact of his dementia which as I noted earlier is a known degenerative condition and so ultimately often requiring placement of a person in permanent care. It also seemed to me that, given all of JWL’s personal circumstances and his immigration issues, he may readily require advocacy relating to his care and welfare and accordingly I extended the ambit of the decision making of a guardian to reflect that. For these reasons orders were made setting the ambit of the appointment of a guardian inclusive of these areas of decision making.

Who is Appropriate as Guardian and as Administrator?

101. [101]
     In my opinion these aspects of these proceedings are conveniently dealt with together and can be disposed of with minimal discussion.
102. [102]
     As I read and heard the evidence and submissions before me, it was readily apparent that JWL has not engaged with the OPG. Accordingly a continued appointment of the OPG would not be a sensible way forward and so a change order was necessary.
103. [103]
     As I have noted it earlier, CAO effectively put up his hand for the role of guardian, and LAS put up her hand for the role of administrator. Initially I held some concerns about LAS performing a role as attorney given she lives in Canada and so absent from being local to JWL and others within his local support network such that any issue that might arise with his financial management, if identified, might not be promptly and readily dealt with. However, as an administrator appointed under the GAA Act and thus subject to regular reporting to, and the regular oversight of, this Tribunal, in my opinion the challenges for ensuring JWL’s finances will be responsibly managed become substantially less of an issue. Should any local member of his support network, in particular CAO as his guardian, identify an issue of concern, an application for a review in this Tribunal of the appointment of the administrator can readily be brought on and the issue aired and dealt with. Similarly if this Tribunal identifies an issue of concern on review of documentation that must be filed from time to time by the administrator, or such material is not filed, a review of the appointment can be initiated.
104. [104]
     For these reasons I did not see any reason each of them should not be considered to be appropriate and competent in the respective roles. There is no issue as I see it for either of them arising under s 15 of the GAA Act, and they have each given the requisite declaration in satisfaction of s 16 of the GAA Act.^[79]
105. [105]
     Accordingly, orders were made appointing each of them in those respective roles.

Other Orders Made

106. [106]
     Corresponding orders were made in terms of the conduct of the administration in regard to the requisite Notice of Interest in Land and the provision of a Financial Management Plan and Accounts.
107. [107]
     As for the terms of the orders for appointment of the guardian and the administrator, whilst the appointments were made current until further order of the Tribunal, given these were effectively first appointments for each of them, but more particularly given that JWL’s circumstances were somewhat unknown with any degree of certainty at this time with decisions to be made concerning his immigration status which could dramatically affect many other decisions that might otherwise be made or not made, and the full effect of his circumstances arising from his medical conditions realised such that it could readily dictate the need for accommodation changes such as a decision to be made for permanent placement in aged care with facilities for residents with dementia, it seemed to me necessary to set the review period of two (2) years.
108. [108]
     Orders were made to that effect.

109. [109]
     Finally, I also gave an order for completeness that the Registrar of this Tribunal take the necessary steps to provide to LAS an ‘Administrator’s Pack’ in conjunction with the provision of the formal Decision document, such ordinarily being provided to a private appointee as administrator at the conclusion of a hearing and the pronouncement of the orders therein.