DFO[2024] QCAT 110

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   At the conclusion of the hearing on 20 February 2024 I announced my decision and informed the parties that written reasons would follow. This was due to there being an absence of remaining time for delivery of oral reasons within the allocated duration for the hearing, with no other time being available the following day to return to the hearing for that purpose. Moreover, TO, the previously appointed administrator, indicated to me her preference to receive written reasons so as she could more clearly understand the orders made concerning her.
2. [2]
   These are those reasons. In satisfaction of s 114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other private active or interested parties are referred to herein in a de-identified format.

Background

3. [3]
   At the time of hearing, DFO was 46 years of age, living with his mother CO in a private residence. DFO has been diagnosed with an intellectual disability, and autism spectrum disorder. It is reported he suffered a hypoxic brain injury at birth.^[1]
4. [4]
   Notwithstanding his age, it is apparent that an application for appointment of an administrator for DFO was not made until October 2020.^[2] Subsequently, on 15 February 2021 DFO’s sister-in-law, TO, was appointed as his administrator for all financial matters, to remain current until further order of this Tribunal but reviewable in two years.^[3]
5. [5]
   It is that review which came before me in the hearing. Whilst it was a periodic review, it also encompassed a review of TO’s appointment in terms of concerns this Tribunal held as to her fiscal management as administrator, such arising from the Tribunal’s Financial Assessment Team’s review of the accounts of administration for the first year of her appointment, as well the absence of accounts being submitted for the second year of her appointment.^[4]

The Issues in this Proceeding

6. [6]
   The primary issue in these proceedings was whether DFO is of impaired capacity in terms of financial matters. If I were to find that he is of impaired capacity then I needed to consider what decisions were required to be made such that there was the requirement for the appointment of an administrator. Associated with this was the question as to who the appropriate appointee is, the consideration of which entailed addressing the concerns this Tribunal holds over the fiscal management by TO as the appointed administrator.

The Relevant Law

7. [7]
   Before embarking on discussing my consideration of those issues, to assist in understanding the reasons that follow herein it seemed to me it should be helpful to any reader of these reasons for me to note the relevant law under which I have considered the applications before me and made my decisions.

The Guardianship and Administration Act 2000 (Qld)

8. [8]
   The primary legislation is the GAA Act. Relevantly, it provides 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 with which others might not agree. 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.^[5]
9. [9]
   In that regard 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.^[6] 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, in this instance such being an administrator.^[7] 
10. [10]
    On all occasions, an adult’s views and wishes should be sought and considered to the greatest extent possible. Although, that being said, a person performing a function under the GAA Act in terms of decision making must do so in a way that is consistent with the adult’s proper care and protection. It requires the principles of substituted judgment to be engaged, that is to make the decision the adult would have made if they had capacity, such to be based on any previously expressed views, wishes, and conduct of the adult when they had capacity (if any at all). It is not a ‘best interest’ test such that decisions are to be made in what the decision-maker believes to be in the best interest of the adult. Rather it is a regime that requires consideration of what the adult’s decision would have been if they presently had capacity.^[8]
11. [11]
    The proceeding before me concerns the review of an appointment of an administrator. That being so, under s 31 of the GAA Act I am required to revoke the appointment at the end of the review unless I am satisfied that I would make an appointment if a new application for appointment was to be made. To put it another way, if the evidence before me satisfies the appointment criteria under s 12 of the GAA Act which would be applied if it was a new application before me, then the existing appointment may be continued, or it may be changed. In that regard, to the extent any such change involves a change of an existing appointee, I may make an order removing the appointee only if I consider that person is no longer competent, or another person is more appropriate for appointment.
12. [12]
    In implementing that criteria, I may appoint an independent decision-maker where:^[9]

    1. there is no one available to make decisions;
    2. the decisions that are being made on an informal basis give rise to an unreasonable risk of harm;
    3. there is conflict among family members; or
    4. there is conflict between family and a service provider.
13. [13]
    However, there remains the overriding requirements of s 12 of the GAA Act, namely that I may make an administration appointment order only if I am satisfied that:^[10]

    1. DFO has impaired capacity for a financial matter;
    2. there is either:
       1. a need for a decision in relation to the matter; or
       2. DFO is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to his health, welfare, or property; and
    3. without an appointment:
       1. DFO’s needs will not be adequately met; or
       2. DFO’s interests will not be adequately protected.

Human Rights Act 2019 (Qld)

14. [14]
    I have also, as I am required to do, considered and applied the provision of the Human Rights Act 2019 (Qld) (the HRA).
15. [15]
    The main objective of this legislation 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.^[11] That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with those human rights. One such statute is the GAA Act.^[12] Thus, the relevant human rights afforded DFO under the HRA must be considered in the exercise of any power or performance of any function under the GAA Act, 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.

The Relevant Evidence

16. [16]
    With that being general legislative framework under which I considered the application, before turning to the substantive issues on which I was required to reach a decision, I note here the relevant evidence on which my decision was based.
17. [17]
    The only available medical evidence is a report of Dr PV dated 26 September 2020.^[13] Whilst now of some age, and it presumably being the report relied on by the Tribunal when the appointment of TO was made, it remained helpful and of assistance to me. This was because, having read it and noted its content, I also had the advantage of observing DFO during the hearing which enabled me to first-hand confirm, as remaining current, much of what Dr PV stated therein.
18. [18]
    When I also noted in discussion with CO and TO during the hearing the highlights of the report as I read it, they each confirmed those aspects remain current and that overall DFO’s circumstances in terms of his medical conditions going to the issue of capacity remain the same as they were then.
19. [19]
    That report informs me:

    1. DFO suffered a hypoxic brain injury at birth, has autism spectrum disorder, and an intellectual disability;
    2. In terms of communications, DFO “looks and gazes only”, although it is reported therein that he has engaged with a speech pathologist and uses an I-Pad “every now and then”; and
    3. The Doctor opines that DFO is “unable to live independently” and in terms of self-management of financial affairs DFO is “incapable completely”.
20. [20]
    My observations of DFO during the hearing were consistent with the report of him looking and gazing only, and my efforts to engage him in a conversation were short lived with an absence of any recognition from DFO.
21. [21]
    In terms of his finances, in an ‘Account by Administrator’ filed by TO on 13 June 2023,^[14] it was reported that:

    1. DFO is the recipient of a disability pension as well as having previously received payment of a small amount of wages for work he undertook at the Endeavour Foundation;
    2. DFO held approximately $11,300 in a bank account, although the bank statement provided by TO showed this balance current as at 2 January 2022, such being compared to the summary recorded by the Tribunal’s Financial Assessment Team in review of the account as being in the order of $5,300 total cash at bank.^[15]
22. [22]
    The extent of any other assets, his liabilities, and his regular expenses was  unknown with clarity, although TO’s ‘Account by Administrator’ showed DFO had incurred accommodation expenses in excess of $11,200 annually, as well as an amount exceeding $13,200 annually for ‘food, clothing, toiletries, haircuts’.
23. [23]
    What was clear however is that his mother CO, held and operated DFO’s bank account in her name as trustee for DFO. It was not held in his own name operated by TO as the appointed administrator.^[16]
24. [24]
    It also became apparent during the hearing, as confirmed by TO and CO  orally, that whilst DFO lived in a private residence with CO, that residence was a rental for which DFO was a named tenant on the lease. In that same discussion I had with both of them, issues also became apparent with questions needing to be answered concerning the manner in which an inheritance received by DFO had been dealt with, the lack of clarity in terms of DFO’s superannuation account, and the apparent purchase of a car using DFO’s funds which is used by CO, but not the subject of any approval of a conflict transaction by this Tribunal.
25. [25]
    As it is reported in the Financial Assessment Report of this Tribunal’s Financial Assessment Team dated 30 October 2023 (the FAT Report):^[17]

The administrator has failed to provide all bank statements, with statements missing for the period 01/11/2021 through to 02/01/2022. During this period the bank balance increased by $9,353. The increase in funds possibly represents the distribution from his late father’s estate which has been reported at $10,535.

Perusal of bank statements identified a withdrawal of $10,535.43 on 23/02/2022 with the narration “super”. A copy of the super statement has not been provided, hence, we are unable to confirm this is where the funds are now held.

In the ABA lodged for the second-year accounts, it was reported the adult purchased a Mazda 3 motor vehicle for $12,000. I do not believe this transaction took place as an Application (sic) for approval of a conflict transaction to purchase a motor vehicle was formerly withdrawn – refer Decision dated 14/10/2022.

26. [26]
    The FAT Report also included this comment:^[18]

It appears money is transferred to the mother’s bank account ending xx3183 and she then covers all of the fortnightly expenses from her bank account. Sometimes money is deposited back into the adult’s bank account which assumably (sic) represents funds not spent by his mother.

27. [27]
    When I questioned both TO and CO about these comments and the fiscal management, including why DFO’s funds are being administered through a bank account held by CO as trustee for DFO, the following became apparent to me from their answers:

    1. The car was purchased, and is driven and used by CO in her role as carer for DFO, but CO also uses it for her own purposes;
    2. It was purchased using DFO’s funds which was in effect DFO’s inheritance from his father, with the money being taken out of DFO’s savings and given to CO who then purchased the car;
    3. TO did not agree with the purchase of the car and that is why the Application for a Conflict Transaction was withdrawn;
    4. TO informed CO that the bank account was required to be changed when she was appointed as DFO’s administrator, but CO did not agree and the bank would not deal with TO in being able to change it;
    5. There is a degree of conflict between TO and CO in terms of the manner in which TO’s finances need to be managed, such arising out of the fact that CO has always taken care of DFO and managed his finances and she questions why an administrator is even required.

Discussion on the Evidence and the Relevant Law

28. [28]
    I first turn to dealing with the requirements of s 12 of the GAA as I have laid them out in paragraph [13] herein in terms of the evidence that was before me.

Is DFO of impaired capacity?

29. [29]
    The issue of capacity is not to be decided as a fact premised on the opinions in a medical report that there is no capacity. The issue of capacity is a question of law, to be decided by the application of the definition of capacity under the GAA Act.^[19] That is, the question was whether at the time of the hearing DFO was of impaired capacity such that he would be unable to understand the nature and effect of decisions about financial matters, or would not be able to freely and voluntarily make decisions about financial matters, or would not be able to communicate the decisions in some way.^[20] It is only necessary for one of these elements to be absent for there to be a finding of impaired capacity.^[21]
30. [30]
    I was not concerned with an issue of global capacity but rather it was an issue of capacity in respect of a specific matter. A ‘matter’ for the purposes of the GAA Act is a ‘type of matter’,^[22] as relevant in this proceeding being a ‘financial matter’ such including decisions such as dealing with paying of DFO’s bills and managing his financial affairs, including legal matters relating to financial or property matters.^[23]
31. [31]
    I was readily able to decide this issue on the evidence as it was presented in the hearing.

Findings of Fact

32. [32]
    My decision is one that must be, and was, made on the opinions I have formed on that material as at the date of this hearing, but I also considered what (if anything) could likely occur in the near future based on that medical information, and the probability (if any) that DFO’s circumstances might change.
33. [33]
    Whilst the health professional’s report to which I have already referred earlier in these reasons was of some age, I accepted it as being still current, given its consistency with my observations of DFO in the hearing.
34. [34]
    On the basis of the evidence that was before me to which I have just referred, the following facts were established:

    1. DFO is affected by a medical condition which directly and adversely affects his cognitive abilities; and as a result
    2. DFO is unable to understand the nature and effect of decisions about relevant financial matters for which an administrator had been appointed, and as I will discuss will continue to need to be appointed.
35. [35]
    I was thus able to readily conclude that the presumption of capacity which DFO is afforded under the GAA Act for financial matters had been rebutted.

Is there the need for an Administrator ?

36. [36]
    With that conclusion being reached, the consideration then turned to whether there was a need for an administrator to be appointed.
37. [37]
    Such was to be answered by reference to whether there was a need for a decision to be made concerning a financial matter for DFO, or whether DFO was likely to do something involving or likely to involve unreasonable risk to his finances, and that without an appointment DFO’s needs may not be adequately met or his interests may not be adequately protected.
38. [38]
    As I noted it earlier, CO raised the question why an administrator was required. I answered this in the hearing, and to which TO also offered some comment.
39. [39]
    The simple fact is that DFO is an adult and as such occasions arise where he will need to make, or as the circumstances showed will need to have made by an external decision maker, certain decisions that could not be made in an informal way. Such include the leasing of a rental property, noting he is a named tenant of the property in which he now resides, operating a bank account, noting his funds are not presently held in his own name and thus he is at risk of financial exploitation, and to the extent necessary attending to his own identification needs, such as ID card or the like.
40. [40]
    All that being so, in my opinion this question could be answered with minimal discussion. I was without doubt that there is a current and on-going need for the appointment of an administrator to manage DFO’s financial circumstances. Whilst such is readily apparent because of DFO’s inability to manage them himself, such is also as identified by reference to this Tribunal’s FAT Report. Moreover, in that regard there remains a number of unanswered questions as to what has been occurring with the management to date of his finances. In my opinion that gives rise the need for retrospective assessment of DFO’s finances given the issues of concern raised in that Report.

Findings of Fact

41. [41]
    On the basis of the evidence that was before me to which I referred earlier herein, and the comments I have just made, I was readily able to find that decisions were required in terms of all financial affairs for DFO, and that there was not an adequate support network in place to assist DFO in that regard and so the appointment of an external decision maker in the form of an administrator was warranted. For these reasons as order was made for the appointment of an administrator.

Who is the appropriate appointee for Administrator ?

42. [42]
    The remaining issue was thus who should be the administrator.
43. [43]
    In a document shown to be signed by TO on 7 June 2023, she provided the requisite statement of appropriateness and competence in satisfaction of s 16 of the GAA Act, thereby by inference confirming her ability and willingness to continue in that role.^[24] However, when I raised the issue of whom the appropriate appointee would be, TO informed me that she did not wish to continue in that role because of changed personal circumstances, and she suggested that CO would be appropriate.
44. [44]
    When I questioned CO as to her level of interest in such a role, noting there was no application by her before this Tribunal to be appointed in that role, her response was as I have referred to it earlier asking why an administrator was even required.^[25]
45. [45]
    In my opinion this issue was very quickly resolved on the basis of the facts and circumstances I have already discussed in these reasons concerning the questions arising over the fiscal management to date of DFO’s affairs. Put simply, it has been inadequate. Accordingly it gives rise to questions of competency of TO in her capacity as administrator and to continue in that role. There is also what seems to readily apparent to me to be some degree of conflict between TO and CO as to the methods and means of that fiscal management. That being so, in my opinion neither TO nor CO are appropriate appointees as DFO’s administrator.
46. [46]
    In the absence of any other person standing up to take on the role of administrator, given the findings I have made earlier in terms of the need for an appointment, it was in order that I appoint the Public Trustee of Queensland in that role. Orders were given to that effect.
47. [47]
    As to the duration of that appointment, whilst I saw no reason to consider that anything would change in the near future as to the continuing need for management and oversight of DFO’s financial affairs, I set a review period of one year. In my opinion, during such time the PTQ should be able to get clarity on DFO’s financial circumstances and put the necessary arrangements into place that would ensure his protection from risk of financial exploitation, but at the same time identifying where, if at all, an informal management arrangement could be possible. Also, as I understood it from TO, although not expressed by her with any great clarity, she and her husband GO, DFO’s brother, were intending to discuss further DFO’s circumstances with his mother CO in terms of his longer term needs which may also include the need for the appointment of a guardian on a limited basis. That being so, it seemed to me possible that the circumstances in one year may have changed such as any external decision maker or makers to be appointed could once again come from within DFO’s family.

The need for an investigation of the past fiscal management

48. [48]
    There was however one more issue that needed to be dealt with given the concerns held by this Tribunal in terms of the past apparent inadequate management of DFO’s financial affairs.
49. [49]
    A primary function of TO as administrator under the GAA Act was to exercise her powers for DFO honestly and with reasonable diligence to protect his interests.^[26] She was also required to have applied the General Principles as they are laid down in the GAA Act.^[27] As is relevant in this proceeding, General Principle 9 dictates that in performing a function, or exercising a power, under the GAA Act in relation to DFO she was to have done so in a way that promotes and safeguards his rights, interests, and opportunities.

50. [50]
    In my opinion, on the evidence that is before this Tribunal presently, it is entirely unclear to me as to whether she has done so. Given the questions raised in the FAT Report, use of DFO’s funds are not fully and property accounted for and it is thus open to be asked as to whether DFO’s savings have been inappropriately depleted. In making that comment, I am not presently suggesting TO has conducted herself and the management of DFO’s financial affairs in any manner for her own benefit, but it is seemingly apparent that there has been some mismanagement albeit such which TO might be able to satisfactorily explain once the full circumstances are clearly identified. It may be that it has arisen because of the conflict between TO and CO and in terms of CO’s management and control of DFO’s bank account in the capacity of a purported trustee.
51. [51]
    It is also prudent to note the following for the benefit and assistance of TO’s understanding of why the orders were made as I gave them at the conclusion of the hearing.
52. [52]
    Under s 59 of the GAA Act, this Tribunal may order an administrator for an adult to pay an amount to the adult or the adult’s estate to compensate for a loss caused by the administrator’s failure to comply with the GAA Act in the exercise of a power, or to account for any profits the administrator has accrued as a result of the administrator’s failure to comply with the GAA Act in the exercise of a power.^[28] The tribunal has no other jurisdiction to award compensation. There is no room, for example, to consider whether there has been a breach of any other duty which might be imposed at common law, or in equity, or by statute.^[29] Whether the Tribunal orders compensation or an account of profits will depend on the circumstances of the case, and in particular whether the adult has suffered a loss or the appointee has made a profit. However, the Tribunal may not order the administrator to make a payment under both limbs in relation to the same exercise of power.^[30]
53. [53]
    This power to order compensation or accounts applies even if the appointee is convicted of an offence in relation to the administrator’s failure,^[31] or  where the appointment has ended.^[32] However, this power is not enlivened unless the failure to comply with the GAA Act is complete – for example, the failure of an administrator to obtain the Tribunal’s authorisation to a conflict transaction is not complete until the possibility of retrospective authorisation has been exhausted.^[33]
54. [54]
    Therefore, the Tribunal must determine if:

    1. the administrator has failed to comply with the GAA Act in the exercise of a power and in the course of their role;^[34] 
    2. the adult has suffered a loss or the administrator has made a profit,^[35] and that the loss must also be particularised and identified as the Tribunal can only award compensation in respect of what has been identified as having been lost,^[36] and where there is no loss there is no grounds for compensation;^[37] and
    3. the loss or profit was caused by the administrator’s failure.^[38] 
55. [55]
    Generally, the matters should be determined on the balance of probabilities, and this Tribunal should be wary of finding fault merely on the basis that after events show that mistakes were made.^[39]
56. [56]
    An  administrator however is afforded relief from personal liability under s 58 of the GAA Act, but only in circumstances where the administrator has acted honestly and reasonably and ought fairly to be excused for the contravention.^[40] In such circumstances this Tribunal may relieve the administrator of all or part of the administrator’s personal liability for the contravention.^[41]
57. [57]
    For all of these reasons, I made an order for the Public Trustee to investigate the management of DFO’s finances by TO during her appointment as administrator, with such report being required by November 2024 so as it may considered prior to the next review of the appointment. I also put TO on notice of a possible compensation order being made against her should that investigation show adverse circumstances. It may be the case that upon receipt of that report nothing further comes of it, or it may be the case that following receipt of that report the Tribunal will give directions to TO for the filing of submissions addressing the relevant issues in advance of a hearing about them. That hearing may or may not correspond with the next review.

Conclusion

58. [58]
    The circumstances that has given rise to a number of issues raised herein are unfortunate and disappointing. When a person is appointed as administrator for an adult with impaired capacity that person takes on an important and onerous task. They are to be commended for doing so. However, they are also to be held to account when the circumstances of their performance of that role raises questions and the spectre that something may not be right. This is particularly so when the questions opens the door to the possibility that the purpose of the GAA Act to strike the appropriate balance between the right of that adult to be afforded the greatest possible degree of autonomy in decision-making, and the adult’s right to adequate support for decision-making, is not being met, or at the very least cannot be shown to have been met with certainty and clarity.
59. [59]
    For this reason, the orders I made at the conclusion of the hearing reflected in these reasons were in my opinion entirely necessary. It of course remains to be seen whether the investigation by the Public Trustee ultimately shows financial mismanagement. But in the meantime, the change of appointment should permit the care of DFO to be continued in a manner that is appropriate to his needs and without the uncertainty and possibility of risk to his finances that seems to have pervaded his circumstances in recent times.
60. [60]
    Whilst the orders I made have the effect of engaging and limiting DFO’s rights as noted in the HRA,^[42] having considered the findings of fact as expressed herein as to the criteria set out in the GAA Act, in my opinion such a limitation is reasonable and justified, all such being in accordance with s 13 of the HRA.
61. [61]
    DFO 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 I have reached in this proceeding are, in my opinion, the least restrictive options which are consistent with that entitlement.