MNU[2024] QCAT 165

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This case concerns decision-making arrangements for a man aged 85, referred to here as ‘MNU’. He has Parkinson's disease.

Background

2. [2]
   MNU was born in Italy but has lived in Australia for many years. His English is limited. Interpreters were used in the tribunal hearing. MNU was widowed in December 2023. There are four children of the marriage: three sons (‘SNC’, ‘SNF’ and ‘SNG’) and a daughter.
3. [3]
   MNU and his wife moved from their home into a retirement village in August 2022, but then moved into an aged care facility in March 2023.
4. [4]
   MNU’s main assets are:

   1. funds worth about $1.5m in bank accounts, term deposits and other financial investments;
   2. his refundable accommodation deposit, paid to the aged care facility, worth $650,000;
   3. the former family home, for which the tribunal does not have a valuation, but it may be worth around two or three million dollars;
   4. entitlement to some $299,000 from the disposal of the retirement village unit; and
   5. a car.
5. [5]
   The wife’s estate is yet to be administered. It appears that the only substantial asset is the wife’s $650,000 refundable accommodation deposit. MNU is the beneficiary under her will.
6. [6]
   MNU and his wife each had enduring powers of attorney appointing their four children as attorneys, with a requirement for at least three attorneys to agree to any decision. This arrangement was in place for MNU’s wife at the time of her death. It is common ground that the attorneys needed to act for their mother from September 2022, when the wife’s geriatrician, Dr Jane Mikli, certified that the wife had lost capacity due to dementia.
7. [7]
   Difficulties arose with the decision-making arrangements for the wife because serious discord and distrust developed between SNC and SNF, on the one hand, and SNG and the daughter on the other. Nonetheless, some significant decisions were made including decisions for the sale of investment properties jointly owned by the wife and MNU, entry into a placement agreement with the aged care facility, and payment of the wife’s refundable accommodation deposit.
8. [8]
   On 29 March 2023 MNU made a new enduring power of attorney, appointing only SNG and the daughter. The appointments are for both personal and financial matters. The powers are to be exercised jointly, and the financial powers commenced immediately.
9. [9]
   On 20 July 2023 SNC and SNF filed applications in the tribunal seeking the appointment of administrators and guardians for MNU. They proposed they be appointed to those roles. In very broad terms, the position of SNC and SNF was that their siblings had turned their parents against them, and were assisting their father to make decisions that were unwise or which favoured him (and probably ultimately SNG and the daughter through inheritance) at the expense of their mother. SNC and SNF made similar applications in respect of their mother. Those applications remained undecided at the time of her death and therefore lapsed.
10. [10]
    In the course of the proceedings, the applicants were granted leave to withdraw their application for the appointments of guardians. Further, they amended their administration application to seek the appointment of the Public Trustee of Queensland rather than themselves.
11. [11]
    Recently, the daughter has proposed that if an administrator is appointed, it should be Australian Unity Trustees Limited rather than the Public Trustee. The applicants do not oppose the appointment of Australian Unity, submitting that either Australian Unity or the Public Trustee should be appointed.
12. [12]
    On 29 August 2023 the tribunal initiated an application for an order about an enduring power of attorney. I was not involved in that decision, and no reasons were expressed for it. Presumably it was done because the applicants in their affidavit material questioned the capacity of MNU to make the March 2023 enduring power of attorney. 
13. [13]
    The applications were heard over three days: one in October 2023 (when the applications concerning the wife were being heard concurrently), one in January 2024, and one in March 2024. The Public Trustee of Queensland was appointed interim administrator for MNU on 29 January 2024 for up to three months.

Legislative framework

14. [14]
    The relevant legislation is the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) and the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’).
15. [15]
    The tribunal can appoint an administrator under section 12 of the Guardianship and Administration Act:

12 Appointment

1. The tribunal may, by order, appoint … an administrator for a financial matter, for an adult if the tribunal is satisfied—

1. the adult has impaired capacity for the matter; and

2. there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

3. without an appointment—

1. the adult’s needs will not be adequately met; or

2. the adult’s interests will not be adequately protected.

…

16. [16]
    Such an appointment would, unless the tribunal authorised the attorneys to exercise a financial power, overtake the financial powers of the attorneys.^[1]
17. [17]
    The tribunal may make orders about an enduring power of attorney.^[2] Relevantly, such orders include revoking or varying the enduring power of attorney, and granting an attorney leave to resign.^[3] Leave to resign is required only if the principal has impaired capacity for the matter in question.^[4]
18. [18]
    Capacity for decision-making is defined in the Guardianship and Administration Act and the Powers of Attorney Act as follows:

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

1. understanding the nature and effect of decisions about the matter; and

2. freely and voluntarily making decisions about the matter; and

3. communicating the decisions in some way.^[5]

19. [19]
    A different definition applies for capacity for making an enduring power of attorney:

41Principal’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.

Note—

Under the general principles, an adult is presumed to have capacity. See section 6C, general principle 1.

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.

Note—

If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.

3. For this section, schedule 3, definition capacity does not apply.^[6]

20. [20]
    Capacity must be presumed until the contrary is proven.^[7]

Outcomes sought

21. [21]
    By the end of the hearing, the outcomes sought by the parties were as follows.
22. [22]
    The applicants seek the appointment of an administrator, whether it be Australian Unity or the Public Trustee. If no administrator is appointed, the applicants seek a declaration that the enduring power of attorney is invalid.
23. [23]
    MNU and his attorneys do not agree that MNU has lost capacity. They oppose the appointment of an administrator.
24. [24]
    SNG seeks to relinquish his financial (but not personal) powers under the enduring document. He does not have a preference as to how this is achieved: for example by an order changing the enduring document, or by the tribunal giving him leave to resign. No other party opposes an order that would give effect to SNG’s wish.
25. [25]
    The daughter submits that the enduring power of attorney should remain in place (subject to any orders relieving SNG of his financial powers), and no administrator should be appointed. In the event that an administrator is appointed, the daughter submits it should be Australia Unity in preference to the Public Trustee. SNG shares that view.
26. [26]
    The other active party who participated in the hearing, the Public Trustee, does not advocate for any particular outcome. 

Capacity

27. [27]
    There are two medical reports about MNU in evidence: a report by the geriatrician Dr Mikli, dated 6 September 2023, and a short letter by general practitioner Dr Charles Occhino, dated 19 October 2023.
28. [28]
    Dr Mikli’s report begins by stating a diagnosis namely ‘dementia / moderate cognitive impairment (RUDAS = 17/30)’ and then says ‘lacks financial capacity’. The report goes on to discuss MNU’s physical conditions as well as his cognitive functioning. The report cites comments made by the daughter, who attended the consultation along with MNU, but I do not propose to quote those comments or take them into account. The daughter is not a neutral party. Indeed, she should not have been present because a tribunal direction had been made that no attorney for MNU was to be present at the capacity assessment examination.
29. [29]
    The following comments by Dr Mikli are relevant to MNU’s cognitive functioning and decision-making capacity:

[MNU] denies any memory problems, but states that he cannot read or write in English and has very little linguistic skills in Italian.

…

[MNU] states that he lives alone, but he is actually in [the aged care facility]. He has one daughter and three sons. He has a Grade 3 education and worked as a bricklayer and plasterer. …

He denies a history of depression, but is apparently on an antidepressant. …

Examination: His Rowland Universal Dementia Assessment Scale (RUDAS) was 17/30. …

He was able to do a simple mathematical problem, but failed a hypothetical change problem. He reported that his unit at [the aged care facility] cost at least $1 million, but in fact this was the price for both his and his wife’s units. He reports that his five bedroom concrete home is worth $2.5 million. He was unable to recall the suburb that it is in … He reports that he wants his money from the sale of the house to be split between his children and is quite clear about this.

Impression and Plan: …

[MNU] has a moderate impairment of cognition which seems to be interfering with his functional capacity in that he is living in a nursing home. … He had difficulty with a change problem and I think that complex financial decision making would be an issue for him. He certainly has clear wishes about wanting to sell his property and divide the money up between his children. However, overall, I believe he lacks financial capacity and needs assistance from his Enduring Power of Attorney.^[8]

30. [30]
    Dr Occhino’s letter says:

…

The consultation was performed in Italian.

His MMSE score was 28/30. The adjusted score taking into account his educational status is 29.5/30.^[9]

31. [31]
    It is not suggested that either doctor had examined MNU previously, though Dr Mikli would have seen MNU when he accompanied his wife to her six-monthly appointments.
32. [32]
    Neither doctor explains how the test result they mention relates, if at all, to capacity. Dr Occhino does not discuss capacity at all. In the absence of any expressed opinion by Dr Occhino about MNU’s decision-making capacity, I consider his report to be irrelevant.
33. [33]
    Dr Mikli does refer to capacity, but she does not indicate whether she is using the applicable definition. It is reasonable to assume that she is, as she is a geriatrician practising in Queensland. However, Dr Mikli does not explain in detail what decisions need to be made and why she considers that complex decision-making would ‘be an issue’ for MNU.
34. [34]
    It can be inferred that Dr Mikli contemplated two types of decisions, at least:

    1. retail transactions, because she talks about a hypothetical change problem, and presumably this involves MNU having difficulty ascertaining whether he has received the correct amount of change in cash; and
    2. the sale of the house, as she discussed MNU’s wishes about the distribution of the proceeds.
35. [35]
    It is not evident from the report whether the difficulty with the change problem involved cognitive deficits or poor numeracy or some combination.
36. [36]
    In respect of a transaction such as the sale of the house, the reader is left to speculate about what the perceived deficit is or deficits are: is it that MNU is not capable of understanding the nature of such a decision, or the effect of such a decision, or is he unable to make the decision freely and voluntarily for some reason? (There does not seem to be a suggestion of an inability to communicate a decision). Of course, it may well be that a person who fails a hypothetical change problem might also have difficulty with a high-value transaction such as the sale of a house. Such a sale would involve decisions about the method of sale, who to engage as a selling agent and on what terms, whether to accept a particular offer, whether to agree to particular terms in the sale contract, and so on. However, it does not automatically follow that the person will lack such capacity. It would depend on factors such as why they failed the hypothetical change problem and what assistance the person would be likely to engage. Will they seek out the assistance of a reliable relative, and will they engage a lawyer, for example?  
37. [37]
    The Guardianship and Administration Act acknowledges in section 5 that:

3. the capacity of an adult to make decisions may differ according to—

1. the type of decision to be made, including, for example, the complexity of the decision to be made; and

2. the support available from members of the adult’s existing support network.

38. [38]
    In Adamson v Enever & Anor,^[10] by way of example, the court had regard to the support that the plaintiff had from her daughters, and the fact that the plaintiff had sought advice about investments and could seek legal advice.
39. [39]
    Dr Mikli does not explain whether the assistance that MNU needs from his attorneys is for them to make the decisions for him, or to assist him to make his own decisions such as by providing clear explanations and options.
40. [40]
    Two of the matters upon which Dr Mikli seems to rely are questionable.
41. [41]
    First, the comment that MNU ‘has a moderate impairment of cognition which seems to be interfering with his functional capacity in that he is living in a nursing home’ is puzzling. A person with perfectly intact cognitive capacity may need nursing home care because of physical ailments. A person who may have managed at home might go into a nursing home mainly because their spouse requires nursing home care. Whether either of these scenarios applies in MNU’s case I do not know. However, I do not accept that his residing in an aged care facility establishes anything about his cognition.
42. [42]
    Second, there is evidence that MNU and his wife had separate units in the aged care facility because the wife needed to be in a wing catering to residents with higher needs. In these circumstances, a comment by MNU that he lived alone is not necessarily a sign of confusion.
43. [43]
    On the other hand, other factors cited by Dr Mikli lend some support for her conclusion, such as MNU’s inability to recall the name of the suburb in which the house is situated, and the wrong figure he gave for the cost of the unit in the aged care facility. (The combined cost of the units, assuming that refers to the refundable accommodation deposits, was $1.3m).
44. [44]
    The financial matters in MNU’s life that need to be attended to include:

    1. whether to sell the house, rent it out, or leave it vacant;
    2. if the house is sold, whether to invest the proceeds or to distribute them amongst the children;
    3. whether to keep funds in term deposits or diversify the range of investments;
    4. whether to obtain fresh financial advice;
    5. ensuring that the funds from the disposal of the retirement village unit are obtained;
    6. deciding whether to retain or dispose of the car (as MNU no longer drives);
    7. payment of routine bills;
    8. having cash and/or a bank card available for discretionary spending; and
    9. any spending on holidays and family gifts.
45. [45]
    In relation to the wife’s estate, I understand that her will makes MNU the executor, with the children being executors in the event that MNU cannot act. Whether MNU seeks to act as executor, or intends to forego this role, is something which remains to be seen. It is not presently significant. However, a relevant matter for present purposes is MNU’s interest, as beneficiary of the estate, in having the estate administered by someone.
46. [46]
    Dr Mikli’s report does not address the range of decisions likely to be required in MNU’s life. Nor does the report explain whether, and if not, why, MNU is able to understand the nature and effect of the decisions involved, can make relevant decisions freely and voluntarily, and can communicate any decisions. Nor does the report squarely address whether he can make relevant decisions himself, with some assistance.
47. [47]
    SNC mentioned in his oral evidence that MNU and his wife had always turned to one or more of their children for counsel on financial matters such as contracts and investments.
48. [48]
    It is apparent that the family member to whom MNU would most likely turn for assistance in financial decision-making, in the current family dynamics, would be his daughter. It is apparent that she has a close relationship with him. For some time she arranged the payment of bills for her parents. She works in the public service as a financial analyst, though she has no formal qualifications in that field.
49. [49]
    The question then arises whether the daughter would be likely to truly give support, or simply influence MNU in a way that suits any agenda of her own. This question arises not merely because of the suspicions of the applicants, but also because of some of her conduct revealed in the course of the hearing.
50. [50]
    It is undisputed that in early 2023 when the investment properties of MNU and his wife were being sold, the daughter gave instructions to the conveyancing solicitors to pay the proceeds of sale of one of the properties, some $428,000, into an account in MNU’s sole name, notwithstanding that the property had been jointly owned. On the first day of the hearing, the daughter told the tribunal that within a matter of days the funds were then shifted into a joint term deposit. The applicants later obtained bank statements showing that the money remained in the sole account. The daughter’s explanation then shifted, to become in effect that MNU and she considered it preferable for the funds to be in MNU’s name: he could then ensure that his wife’s expenses were paid, without the trouble involved in obtaining agreement by three of the wife’s attorneys in circumstances of strong discord between the two camps of children.
51. [51]
    Mr Hackett submits that the daughter gave deliberately false evidence on this topic. The daughter says she made an error, under the pressure of giving evidence in a hearing, when she said the funds were placed in a joint account. I do not consider that a finding on that topic is required. It is not critical whether the daughter lied.
52. [52]
    On the third day of the hearing, when shown documents in cross-examination, the daughter acknowledged that in February 2023, when a $200,000 term deposit, held jointly by MNU and his wife, matured, the proceeds went into an account in MNU’s sole name. The daughter said she was present at the bank with her parents when this was arranged. She gave the same explanation for this arrangement as for the unit proceeds.
53. [53]
    The daughter insists that these arrangements were not for her own enrichment, but for the benefit of her parents. She says the arrangements were in accordance with their wishes. I see no reason to doubt this. While it is possible that she might have seen ultimate advantage to herself, through inheritance from MNU, there is no actual evidence that MNU’s will prefers her over the other children. The latest will is not in evidence.
54. [54]
    However, in respect of her involvement in the transactions, the daughter seems to have been oblivious to her obligations as attorney for her mother:

    1. to exercise a power subject to the terms of the enduring document^[11] (which required decisions by at least a three out of four attorneys); and
    2. to avoid a conflict transaction^[12] (in that the transactions benefitted MNU, who is a ‘relation’ of the daughter).
55. [55]
    Even though legally MNU was probably required to hold half of the funds on a constructive trust for his wife, the reality was that he had full access to all of the funds unless challenged. This was in circumstances where at least two of the wife’s attorneys were not informed of the arrangements.
56. [56]
    While those considerations go to the daughter’s competence as an attorney, they do not necessarily reflect adversely on her ability to offer MNU guidance and assistance in making his own financial decisions. Having considered the daughter’s written evidence, and having observed her giving oral evidence on two occasions, my impression is that she is someone devoted to her father and his wellbeing, as she was to her mother. She was oblivious to at least some of the legal duties of an attorney. However, she is not a lawyer. She was accustomed to regarding her parents as a single economic unit. She did not appreciate that separate obligations to her mother arose when she was required to act as attorney, and that these obligations might require decisions contrary to her father’s wishes.
57. [57]
    The situation in assisting her father alone does not have those complications.
58. [58]
    I consider that the daughter is someone who MNU could and would look to for assistance in making significant financial decisions. He may also seek out the assistance of one or more of his other children. I also consider it likely he would engage a lawyer to assist and advise in transactions, as he has done in the past. He may also choose to obtain advice from time to time from a financial advisory firm, as the family did in March 2023 in connection with options for funding residential aged care.
59. [59]
    I consider that MNU would receive genuine support, as distinct from self-interested manipulation, from these sources including from the daughter.
60. [60]
    I have also had regard to the oral evidence which MNU gave. This was on the middle day of the hearing, on 16 January 2024. I am conscious that MNU in giving evidence does not assume an onus of establishing that he has capacity. He must be presumed to have capacity, until the contrary is proven. Nonetheless, his presentation is part of the evidence I may take into account.
61. [61]
    His recall seemed to be reasonable in some areas but poor in others. For example, he identified the house by its street name and number. He named the place he is currently living at but said he could not remember what sort of place it is. He recalled that the solicitor who witnessed his enduring power of attorney spoke ‘my language’.^[13] On the other hand, when asked in cross-examination who various people were, such as previous lawyers, he mostly said he did not know. He said that prior to his wife’s death, his funds in the bank had been held in joint accounts with her (but I note there is also evidence of accounts solely in his name). He initially misidentified his attorneys, before later giving a correct answer. His answers about the sale of the investment properties were similarly patchy: some answers were accurate, or reasonably accurate, but he did not recall other details.
62. [62]
    The above is not an exhaustive account of MNU’s oral evidence, but it is representative.
63. [63]
    MNU’s presentation when giving his oral evidence was very flat, even apathetic. It was only a month after his wife’s death, so his presentation may well have been affected by grief or depression. Overall, however, the impression I gained from observing MNU give oral evidence was that he is someone who appeared to have cognitive difficulties and who, at least, is likely to require assistance in making novel or complex decisions.
64. [64]
    I have also considered the written evidence of Mr Fabio Orlando, solicitor. He witnessed MNU’s March 2023 enduring power of attorney. Mr Orlando has provided a detailed statement convincingly explaining why he was satisfied that MNU had capacity to give instructions about the enduring power of attorney in the course of two consultations in March 2023. It is apparent from the statement, read in conjunction with the other evidence on the tribunal’s file, that MNU exhibited a satisfactory understanding of his family and his assets.
65. [65]
    I am mindful that a person may have capacity to make an enduring power of attorney even though they lack capacity to make decisions about complex financial matters.^[14] Nonetheless, I consider that Mr Orlando’s evidence has background relevance to the question of MNU’s capacity to make financial decisions.
66. [66]
    It is also worth noting that Mr Orlando and Dr Occhino each conversed with MNU in his native language, and Mr Orlando remarked upon MNU’s emotion and humour. This suggests rapport. It can be contrasted with MNU’s wooden presentation in his evidence, through an interpreter, at the tribunal’s hearing. Dr Mikli also used an interpreter.
67. [67]
    I have also considered whether there is evidence of a pattern of unwise decision-making which might point to a lack of capacity. Of course, a person has the right to make decisions with which others may not agree.^[15] Nonetheless, a pattern of imprudent decision-making may be a sign that the person might not understand the nature and effect of certain decisions or may not be making them freely and voluntarily.
68. [68]
    The applicants in their affidavits point to several decisions which they considered raised such issues because of uncharacteristic behaviour or imprudence, and which may point to a lack of understanding and manipulation by the daughter and SNG. I do not propose to canvass all of these. Four examples will suffice, namely:

    1. MNU and his wife purchasing the retirement village unit at a time when the wife’s declining dementia meant this was not a suitable long-term form of accommodation and where a substantial exit fee became payable if they moved out more than six months after the contract date, as indeed eventuated when they moved out only a few weeks after the six-month mark and incurred an exit fee of $48,616.44;^[16]
    2. incurring excessive conveyancing fees in the sale of the investment properties: over $3,000 for one unit, and almost $8,000 for a block of six units;
    3. MNU appeared to have embraced an option suggested by the financial advisory firm in March 2023 which would involve moving most assets into MNU’s name and leaving the wife with only $100,000 in funds, with the aim that if MNU died first, and left his assets to persons other than the wife, the wife should be able to claim an age pension, notwithstanding that, in SNC’s opinion, this ‘was likely to be illegal, and obviously not in our mother’s best interests’;^[17] and
    4. a pattern of cash withdrawals indicative of MNU spending more on gambling than he had in the past, and therefore not keeping within self-imposed limits, as shown in withdrawals totalling over $6,000 across a six-month period in 2023.
69. [69]
    I am not persuaded that these matters point to a lack of capacity.
70. [70]
    It cannot be uncommon for ageing people, including those with decision-making capacity, to buy into a retirement village in the optimistic hope they will be able to see out their days in that environment rather than an aged care facility, notwithstanding the risk of loss through an exit fee if their hope turns out to be misplaced.
71. [71]
    There is no clear evidence that the conveyancing fees were excessive. The Public Trustee in its report dated 19 March 2024 advised that it does not have concerns about the level of fees.
72. [72]
    I do not accept that the option proposed by the financial advisory firm was probably illegal. It would become illegal only if relevant background facts were misrepresented to Centrelink in the event of a claim for pension.
73. [73]
    Incidentally, so far as the wife’s attorneys were concerned, whether the strategy was in the wife’s interests was relevant but not determinative. Attorneys are required to apply the general principles in section 6C of the Powers of Attorney Act. This involves a weighing up of factors. The principles include, for example, not only safeguarding the interests of the principal, but also taking into account the views, wishes and preferences of the principal.
74. [74]
    In relation to expenditure on gambling, I accept that SNC is able to comment on gambling trends because for many years he assisted his parents with their finances. The expenditure in question, though, could not be described as improvident given the extent of MNU’s wealth. An increase in gambling expenditure could be related to factors other than cognitive decline, such as depression or a more relaxed attitude by MNU at this stage of his life.
75. [75]
    Overall, then, I consider that the evidence is consistent with MNU being able to make his own financial decisions, including complex ones, with support. The opinion of Dr Mikli is too lacking in detail and explanation to persuasively rebut the presumption of capacity. 

Outcome of the application for the appointment of an administrator 

76. [76]
    As the presumption is not rebutted, the application for the appointment of an administrator is dismissed.

Application for an order about an enduring power of attorney

77. [77]
    There is no evidence from a health professional addressing the question of MNU’s capacity to make the March 2023 enduring power of attorney. The evidence of Mr Orlando, the witnessing solicitor, convincingly explains why he had no concerns about MNU’s understanding of the enduring document or about his autonomy in making it without coercion or pressure.
78. [78]
    The presumption that MNU had capacity to make the enduring power of attorney is not rebutted.
79. [79]
    There is no need for any order about the enduring document. If SNG wishes to resign as attorney, he can do so. Leave is not required.

Conclusion

80. [80]
    Accordingly, both applications are dismissed.