GJM[2024] QCAT 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   GJM is a sixty-four-year-old woman who is diagnosed with early-onset dementia.^[1] She is currently hospitalised but transitioning to supported independent living (‘SIL’) accommodation. Her partner, HKC seeks appointment as sole substitute decision-maker for GJM for personal and financial matters,^[2] looking to overtake an Enduring Power of Attorney made 4 December 2014 (‘EPA’) in which GJM appointed her daughter, GJJ as substitute decision maker for personal and financial matters, and an Advanced Health Directive made 22 October 2021 (‘AHD’) in which GJM appointed HKC and GJJ jointly as decision makers for health matters.
2. [2]
   On 12 September 2023 I made an interim order appointing the Office of the Public Guardian (‘OPG’) as interim guardian for decisions concerning accommodation, health, and services for GJM,^[3] overtaking the EPA. Member Lobban renewed that order on 24 November 2023.^[4] The decision to transition GJM to SIL accommodation was made by the OPG during the term of their interim appointment.
3. [3]
   GJM’s application came before me for hearing on 23 February 2024. Neither party objected to me hearing it, despite my having made an earlier interim order. Having regard to the principals of recusal espoused by Justice Carmody in Maffey v Mueller [2016] QCATA 19, I did not consider that I had actual or apprehended bias arising from the interim decision made and proceeded to hear the application on that basis.
4. [4]
   The hearing was well attended by the parties listed above and several additional witnesses comprising friends and family of GJM, HKC and GJJ, variously.
5. [5]
   My decision on the application was reserved, and now follows.
6. [6]
   In the meantime, the interim order was not renewed as the requirements of section 129(6) of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) were not met; a matter conceded by both parties’ legal representatives in the hearing.  Accordingly, decision-making for GJM has reverted to GJJ under the terms of the EPA.

Chronology

7. [7]
   The relevant factual background to GJM’s current situation is important for context: 

The statutory framework

8. [8]
   The GAA establishes the framework for the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity.
9. [9]
   The Powers of Attorney Act 1998 (Qld) (‘POAA’) provides for substitute decision making by attorneys appointed by adults who have capacity.
10. [10]
    The POAA is read in conjunction with the GAA^[6] and the GAA prevails in the event of inconsistency between the two.^[7]  Specifically:

    1. Section 22 of the GAA permits the tribunal to limit the extent to which an attorney may exercise power under an EPA if the tribunal gives decision making power to a guardian or an administrator.
    2. Section 70 of the POAA provides that if a guardian or administrator is appointed, the attorney for the principal may exercise power only to the extent authorised by the tribunal.
11. [11]
    On an application for the appointment of a guardian or administrator (or both), the tribunal may only make an order if satisfied that:

    1. the adult has impaired capacity for the matter; and
    2. there is either:
       1. (i)
          a need for a decision in relation to the matter; or
       1. (ii)
          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. (i)
          the adult’s needs will not be adequately met; or
       1. (ii)
          the adult’s interests will not be adequately protected.^[8]
12. [12]
    Determination of the adult’s capacity is the threshold issue to be resolved before any decisions are made over the person, followed by a determination of need and risk to the adult if an appointment is not made.

Does GJM have impaired decision-making capacity?

13. [13]
    An adult is presumed to have capacity for a matter^[9] but this is rebuttable.^[10]
14. [14]
    An adult with decision-making capacity for a matter is capable of:

    1. understanding the nature and effect of decisions about the matter;
    2. freely and voluntarily making decisions about the matter; and
    3. communicating the decisions in some way.^[11]
15. [15]
    Only one of these elements need be absent for there to be a finding of impaired capacity.^[12]
16. [16]
    Capacity is decision-specific^[13] and may differ depending on the:

    1. type of decision to be made;
    2. complexity of the decision to be made; and
    3. support available from members of the adult’s existing support network.^[14]
17. [17]
    Understanding the nature and effect of decisions about a matter requires a person to bring to bear information that is needed to make the decision, using some sort of rational decision-making process to evaluate and decide. It is based on the adult’s cognitive and functional ability, focusing on the process involved in making decisions, and encapsulates the abilities to: 

    1. understand, retain and evaluate the information and concepts relevant to the decision (including its likely consequences);^[15]
    2. seek out information to make that decision and being aware of the details;^[16] and
    3. manipulate, analyse and weigh that information in the balance to reach an informed decision.^[17]
18. [18]
    The evidence before the Tribunal on the issue of capacity is convincing and undisputed:

    1. Dr Bryant gave evidence after treating GJM for two months in hospital that GJM has suffered from early onset Alzheimer’s dementia since approximately February 2022, and that her condition is now (as of August 2023) severe. Dr Bryant opined that GJM has no capacity for simple or complex decision making for any decisions.^[18]
    2. Dr Ponce, GJM’s general practitioner for thirteen years also gave evidence that GJM suffers from Alzheimer’s dementia, although they were of the view that, whilst GJM does not have capacity for any complex decisions, she might have capacity for simple decision making around personal/health care issues and accommodation.^[19]
19. [19]
    Additionally, Dr Gange, geriatrician, reviewed GJM in the presence of HKC, GJJ and PJJ on 23 February 2023.  His letter written 26 February 2023 observed that since he last saw GJM on 22 September 2022, GJM’s cognitive decline had been “quite fast” and was now coupled with behavioural symptoms causing “significant carer stress”.^[20]
20. [20]
    I accept the evidence of Dr Bryant, Dr Ponce and Dr Gange, and the evidence of the parties themselves and find that GJM has impaired capacity for decision making concerning all personal and financial matters because she is unable to understand the nature and effect of decisions regarding those matters.

Is there either a need for a decision for GJM, or is GJM likely to do something that involves, or is likely to involve, unreasonable risk to her health, welfare, or property?

21. [21]
    I find there is a need for ongoing decision making for GJM with respect to accommodation and services. She is, in the week following the hearing, completing a staged transition to SIL accommodation in circumstances where she has not, yet successfully transitioned to any SIL accommodation despite previous attempts.
22. [22]
    GJM did not successfully live full time at her own property, despite the best efforts of GJJ and her family, and PJJ (GJM’s brother) and his wife to assist.
23. [23]
    There is no certainty that the planned move will succeed given all previous attempts have failed, giving rise to the need for future accommodation and associated service provision decisions (because GJM is an NDIS recipient).
24. [24]
    There is clearly a need for ongoing decision making for GJM with respect to financial matters. Regardless of where she lives, GJM has assets, including superannuation, and income and expenses to manage.

Without an appointment will GJM’s needs be adequately met, and her interests adequately protected?

25. [25]
    With an EPA in place for GJM, and no challenge made to its validity, the question is whether the EPA is adequate to meet GJM’s needs and to protect her interests,^[21] which requires a consideration of whether GJJ is appropriate or competent to act as attorney.^[22]
26. [26]
    GJJ argues that the EPA is sufficient to protect GJM’s needs and interests and says, therefore, that the requirements of section 12(1)(c) of the GAA are not made out and that HKC’s application must be dismissed.
27. [27]
    HKC says that the EPA is not sufficient and should be revoked or overtaken because GJJ has not acted in GJM’s best interests, nor in accordance with GJM’s views and wishes and has not otherwise observed the General Principles in performing her role. HKC says that GJM’s needs are not being met or her interests protected by the decision-making regime currently in place by way of the EPA. 
28. [28]
    In considering whether GJJ is appropriate or competent to act it is pertinent to consider how GJJ has applied the EPA to date.
29. [29]
    A guardian or administrator must apply the General Principles^[23] and the Health Care Principles^[24] which are adopted for a person performing EPA powers by sections 6C (General) and 6D (Health) of the POAA.
30. [30]
    Under the POAA, the General Principles include, relevantly:

2 Same human rights and fundamental freedoms

(1) An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.

(2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.

(3) The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—

(a) respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and

(b) non-discrimination; and

(c) full and effective participation and inclusion in society, including performing roles valued by society; and

(d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and

(e) equality of opportunity; and

(f) accessibility; and

(g) equality between all persons regardless of gender.

4 Maintenance of adult’s existing supportive relationships

(1) The importance of maintaining an adult’s existing supportive relationships must be taken into account.

(2) Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—

(a) the adult, to find out who are the members of the adult’s support network; and

(b) any persons who have an existing supportive relationship with the adult; and

(c) any members of the adult’s support network who are making decisions for the adult on an informal basis.

(3) The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.

8 Maximising an adult’s participation in decision-making

(1) An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.

(2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.

(3) An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.

(4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.

(5) An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.

(6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.

9 Performance of functions and exercise of powers

A person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must do so—

(a) in a way that promotes and safeguards the adult’s rights, interests and opportunities; and

(b) in the way that is least restrictive of the adult’s rights, interests and opportunities.

10 Structured decision-making

(1) In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must adopt the approach set out in subsections (2) to (5).

(2) First, the person or other entity must—

(a) recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and

(b) if possible, support the adult to make a decision.

(3) Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.

(4) Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.

(5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function or exercise the power.

GJM’s views and wishes

31. [31]
    The only direct evidence of GJM’s views and wishes available to the Tribunal are those comprised by and contained within the EPA and the AHD.
32. [32]
    The EPA made 14 December 2014 appoints GJJ as substitute decision-maker for personal and financial decisions, with no special terms other than to permit conflict of interest transactions.^[25]
33. [33]
    The AHD made 22 October 2021:^[26]

    1. lists GJM’s “address” in section 1 as the property she owns (and not that she shared with HKC);
    2. lists the things that are important to her in section 3(a) as “spending time with my family and friends and living in my own home”; and
    3. describes the things that worry her in section 3(b) as “being unable to live at home - I don’t want to go into a home”.
34. [34]
    For context, GJM’s property was built by her parents in 1959 and is the home she grew up in.^[27] It features a granny-flat that was occupied by her impaired adult daughter. I accept GJJ’s submissions that GJM’s reference in the AHD to “my own home” is a reference to her family property specifically rather than to her residence from time to time, wherever that may be.
35. [35]
    HKC gave evidence that the AHD was done after a consultation with Dr Gange, Geriatrician, in or about August 2021 who had said that “there was possibly a problem, that he would be more able to say in 6-9 months’ time, but that [GJM] should get her affairs in place before then”. HKC says by this, Dr Gange was referring to GJM’s Will, EPA and AHD.^[28]
36. [36]
    That GJM did not alter her EPA on 22 October 2021 when the AHD was executed whilst she had capacity to do so and when she was arranging her affairs due to her diagnosis is strong evidence that the EPA at that time continued to represent GJM’s then current views and wishes that GJJ act as her substitute decision maker for personal and financial matters, despite her relationship with HKC having subsisted since early 2018.
37. [37]
    The principle of substituted judgment is to make the decision the adult would make if they had capacity, based on the previous views, wishes, and conduct of the adult when they had capacity.^[29]
38. [38]
    Although GJM’s expressed or demonstrated views, wishes, and preferences must be recognised and considered, it is not the controlling factor as to the correct decision.^[30]
39. [39]
    If the views, wishes, and conduct are unable to ‘reasonably be worked out’, or in situations where the adult’s rights, interests, and opportunities warrant not making the decision that the adult would have, the substitute decision-maker would rely on the guidance provided by General Principle 9 and the other General Principles. They may also consider:^[31]

    1. the nature of the matter to be decided;^[32]
    2. the consequences that may flow from making a particular decision;
    3. the nature and type of evidence that is being relied upon in applying the substituted judgment principle; and
    4. the strength of the views and wishes being expressed by the adult with impaired capacity.
40. [40]
    While consulting the adult’s supportive relationships is not a mandatory requirement for substitute decision makers, it may be necessary to maintain that relationship, and a failure to do so may be relevant in adjudging the decision-maker’s appropriateness and likelihood to apply the general principles.^[33]
41. [41]
    Conduct by or concerns in relation to GJJ that HKC says supports his application may be summarised as:

    1. The decision made by GJJ in April 2023 to remove GJM from the home she shared with HKC and to relocate her to GJM’s property (the ‘April 2023 accommodation decision’).
    2. Mismanagement of GJM’s finances.
    3. GJJ has set views against HKC’s relationship with GJM and the resulting conflict between her views and GJM’s interests and wishes render her unlikely to have an open mind  or to apply the General Principles when making decisions for GJM.

The April 2023 accommodation decision

42. [42]
    HKC says:

    1. At time of the relocation, HKC and GJM had been living in a defacto relationship for approximately six years and had spent the previous two years living at HKC’s home.
    2. At the time of the relocation, HKC was the primary caregiver for GJM, although GJM had been spending occasional time at GJM’s property on respite.
    3. As GJM’s condition declined whilst she was living with HKC, NDIS funding was obtained, and support workers organised to assist her to live more comfortably at the home she shared with HKC.
    4. The relocation took place on the giving of two days’ notice to HKC and GJM.
    5. The relocation was against the wishes of HKC and, HKC says, of GJM.
    6. HKC was informed by GJJ and PJJ that he was not permitted to visit GJM, in reply to which HKC expressed concern that this might end his relationship with GJM.
    7. Whilst GJM was away from HKC’s home, GJJ or PJJ or both told GJM that HKC had passed away.
43. [43]
    Among other things, HKC relies upon:

    1. A report by Ms Carlyle, support worker, dated 26 February 2023 reviewing GJM’s NDIS supports in which GJM is said to have stated that her NDIS goals include:^[34]
       3. (i)
          support to continue living with the freedom to act independently as possible with my partner [HKC], and
       3. (ii)
          maintain my physical health and wellbeing so I can address my disability related health issues and live safely and independently in my home and my community, and
       3. (iii)
          support to access the community so I can participate in activities I enjoy.

Notably, in submissions HKC suggests this is an expression by GJM that she wishes to continue living in HKC’s home. But that is not what the report says, and I do not make that finding.  

2. A report by Ms McVey, Occupational Therapist dated 5 April 2023 that made recommendations for the care of GJM, including the level of support required by HKC to continue caring for GJM at home as her primary caregiver.^[35]
3. A long email from HKC to GJJ, PJJ and others dated 29 March 2023^[36] wherein HKC says (relevantly, emphasis is his):

First off, please take anything that is written as 100% my observations and experiences of [GJM] over the last month. The last few weeks have been a real trial and I think there are real reasons for this and solutions that will get [GJM]’s health and care back on track.

…

HKC describes GKM’s demeanour between 13 March 2023 and 29 March 2023, ranging from confusion and melancholy, to being “very upset” and crying. GJM frequently became upset upon relearning of her mother’s death and of the ending of her marriage, as she believed herself to still be married to RJJ, her former husband.

HKC concludes in the email that:

Going to [GJM’s property] is not a good idea at all.  It has pushed [GJM] to another lower level and has effected my ability to give her good care.  Changes like this are not advised from all of my sources and should be refrained from at all cost…. I had hoped to get her to the stage where she can have one transition straight to aged care with no alternating homes and adding to [GJM]’s confusion.

I would like more carer time at [HKC’s property] for my respite and to give me the ability to do other things.

A decision on the appropriate Aged Care facility must be made in weeks and the paper work signed so that, if needed, respite/fulltime care can happen immediately…. My instinct says June will be the time to go to care at the latest and things have to be in place well before then. Mots people in [GJM]’s situation would be in care by now. If the change in medication works we may get more time but the Care Facility must be put in place now. 

4. Within a short period of time, GJM’s behaviour and wellbeing deteriorated to the point that she was hospitalised within three months of the move. HKC says this would not have occurred had GJM remained in HKC’s home with increased supports. There is no direct evidence to support this assertion.
5. A letter from Dr Gange dated 27 July 2023 stated that:  
   3. (i)
      He met with GKM, HKC, GJJ and PJJ on 27 July 2023.
   3. (ii)
      At the time GJM was admitted to hospital because of escalating behavioural symptoms of dementia making it no longer feasible to manage with NDIS help alone at home.
   3. (iii)
      It is “quite apparent that it is unlikely that she will be able to manage in a home without 24-hour supervision”. However, she has not always accepted external help.
   3. (iv)
      GKM expressed her views, through significant cognitive impairment, that she wished to return to HKC’s home and have HKC continue to look after her, with family members to visit.
   3. (v)
      It would be a worthwhile exercise to explore whether GJM could return to HKC’s home with NDIS care reinstated going along with GJM’s wishes.

44. [44]
    HKC gave additional evidence^[37] that he is committed to following the advice of health professionals, including if they recommend that the only option for GJM is to stay in SIL accommodation. But if they say that GJM can come home with support then he will follow that advice in consultation with GJJ and PJJ and “knowing that [GJM]’s very strong preference was to be as independent as possible and live with me”. 
45. [45]
    JK (H035), MD (H015) and SM (H024) gave evidence in support of the close and loving relationship they have observed between HKC and GJM.
46. [46]
    GJJ gave evidence that:^[38]

    1. She attended a 23 February 2023 with PJJ, HKC and Dr Gange to discuss how to better manage GJM’s immediate need for additional support and to minimise the risk to HKC of ‘carer burnout’.
    2. She did not agree to staying at HKC’s home when caring for GJM because she considered GJM to be comfortable and familiar with GJM’s home and noted that GJM’s impaired adult daughter was living there and could spend time with GJM while GJM was on respite.
    3. HKC said in the phone call on 4 April 2023 that if GJM went back to her home then the relationship was over.
    4. She did not ever state that HKC would not be allowed to see GJM.
47. [47]
    PJJ gave evidence that:^[39]

    1. He was present on the 4 April 2023 phone call when HKC used words to the effect that “the relationship will be over” if GJM was removed from his home.
    2. He recalls the first instance of HKC alluding to struggling to care for GJM around 16 February 2023, and making suggestions that he drop GJM off to be cared for by GJJ or to hospital.
    3. He provided numerous occasions of respite to relieve HKC from carer duties.
    4. HKC asked him to investigate nursing homes for GJM.
    5. When GJM was first removed from HKC’s home he and GJJ asked that HKC not visit initially so as not to confuse her, whilst they got her settled, but HKC was never told that he could not see GJM indefinitely.
    6. When GJM did not settle at her home, she was taken to Yukana, a private patient facility suitable to GJM’s needs given she was not eligible for aged care. Visits were arranged and a respite stay organised, but GJM became upset and Yukana was deemed unsuitable for her.
    7. Neither he nor GJJ informed GJM that HKC had passed away.
48. [48]
    GJJ and PJJ both fell short of describing HKC and GJM as ‘defacto’ partners.

GJJ’s opposition to HKC / conflict

49. [49]
    Family conflict may render an otherwise competent appointee inappropriate in certain circumstances, but the mere presence of family conflict does not preclude the relative from appointment.^[40] The consideration is whether the presence of conflict or the potential for it impacts on a finding as to the appointee’s ability to comply with the General Principles,^[41] such as where the conflict prevents other relatives or supportive network members to provide their views or consultation,^[42] or where it is detrimental to the adult’s wellbeing.^[43]
50. [50]
    A decision-making process that is likely to be affected by emotion, historical conflict, perceptions, and personal prejudices may lead the tribunal to consider that the proposed appointee is not appropriate for appointment.^[44]
51. [51]
    HKC says:

    1. PJJ and GJJ have each stated that they consider HKC to have been manipulative and controlling and to have undermined GJM’s relationship with others.^[45]
    2. GJM told him that GJJ had said to her that she did not approve of the relationship with HKC and did not think they should move in together.
    3. GJJ has set her mind to the idea that GJM must live in SIL accommodation and will not consider alternates.
    4. GJJ has excluded HKC, as GJM’s primary carer and partner from decision making concerning HKC.
    5. GJJ refused to bring GJM to visit HKC when he was hospitalised in December 2022 even though it was only a five-minute journey.
52. [52]
    However, HKC also says that his early interactions with GJJ were positive and that, for example that they “seemed to get along well as we had some things in common”.^[46]
53. [53]
    GJJ gave evidence that:^[47]

    1. She voiced concerns to GJM when she first met HKC about exercising caution before rushing into a relationship due to the speed and intensity with which their relationship progressed.
    2. Her refusal to take GJM to visit HKC in hospital in December 2022 was a product of circumstances and not maliciously or carelessly done. Her text message to HKC informing of this, was in my view, is amiable in tone and HKC’s reply message did not object to the decision.^[48]
    3. She accepts the importance of maintaining GJM’s supportive relationship with HKC as a significant person in her life.
54. [54]
    GJJ submits that the family conflict alleged to exist by HKC does not exist or is exaggerated by HKC to support the orders he seeks, namely his appointment as sole guardian and administrator, overtaking the EPA.

Section 12(1)(c) - Guardianship

55. [55]
    In considering whether GJJ is appropriate and competent, it would be a mistake for the Tribunal to examine her conduct in an overly forensic way or with a microscopic focus on individual decisions made, and without recognising the hindsight it is benefitted by.
56. [56]
    In Queensland Building and Construction Commission v Richardson [2015] QCATA 85 the Appeal Tribunal considered whether the conduct of a certifier amounted to professional misconduct. It observed that whilst it was Mr Richardson’s conduct was under scrutiny, that conduct was part of a ‘matrix of facts’ to be considered.^[49]
57. [57]
    In other words, context is important when undertaking a critical examination of conduct.
58. [58]
    The ‘matrix of facts’ surrounding GJJ’s decision making as attorney for GJM includes the following:

    1. GJJ has acted as substitute decision-maker for GJM since in or about February 2022 when it was opined that GJM had lost decision-making capacity for personal and financial matters.
    2. Between February 2022 and March 2023, even if GJJ’s own views were against HKC or critical of the relationship between GJM and HKC, she and PJJ worked with HKC to increase supports to GJM and offered respite to HKC when needed. It was GJJ who HKC reached out to when suffering ‘carers’ fatigue’. GJJ also continued contributions by GJM to the joint account with HKC after she began managing GJM’s finances until the relocation occurred.
    3. Between June 2023 (when GJM was hospitalised) and September 2023 (when the interim order was made overtaking the EPA), GJJ did not use her decision-making power to prevent HKC spending time with and providing care and company to GJM while she was in hospital and SIL accommodation.
    4. GJJ has deposed to her recognition of the importance of maintaining GJM’s relationship with HKC as a member of GJM’s existing support network.
    5. On one view of the evidence, the April 2023 accommodation decision made by GJJ was ill-judged because:
       3. (i)
          it was unsupported by GJM’s health professionals,
       3. (ii)
          it went against the wishes of HKC,
       3. (iii)
          it went against information from HKC that GJM was unsettled in her own home due to the confusion triggered by memories of her deceased mother and of her marriage,
       3. (iv)
          it was conducted on short notice to HKC and GJM,
       3. (v)
          it did not consider alternatives that were available to increase supports to keep GJM at the home she shared with HKC, and
       3. (vi)
          GJM’s condition deteriorated following the move as she was known not to take well to external carers and did not settle at her home or at any SIL accommodation attempted since.
    6. Importantly, the decision created an involuntary separation of partners to a long-term intimate relationship, however GJJ characterised it - a very serious decision for the adult child of one of those partners to have made without due consideration. The risk of emotional harm to GJM from the separation, or from the ending a long-term relationship – if that had been the outcome - does not appear to have been properly considered, nor was it considered that this was inconsistent with GJM’s choice to enter the relationship and to maintain it while she had capacity. GJM’s joint appointment of HKC with GJJ as decision maker for health matters evinced her clear intention that he play an integral, if not equal role with GJJ in decision making of that kind and contemplated his ongoing role in her life.
    7. Further, the conclusion formed by GJJ and PJJ that HKC ended his relationship with GJM upon GJM being relocated to GJM’s property was not, in my view, reasonably formed based upon the telephone call that occurred on 5 April 2023. The context of HKC’s communication, and health advice sought, around that time was consistent with expressions of carer’s fatigue and words used by HKC in that call did no more, in my view, than express concern about the impact of involuntary separation upon his relationship with GJM.
    8. However, HKC then did not communicate with GJM for several months, other than a text message to GJJ on 11 April 2023 offering to attend a medical appointment to assist in the transition of medical records. Nor did HKC file his application until after GJM was hospitalised, months later. This conduct by HKC was not consistent with HKC seeking to maintain his relationship with GJM during those months.
    9. In any event, HKC appears now to remain in a close and continuing relationship with GJM and is said to be a positive and calming influence on her.^[50]
    10. On another view, the evidence also supports a conclusion that the decision to relocate GJM to her own property was made:
        3. (i)
           by the person GJM appointed for decisions of that nature, when GJM had capacity pursuant to her EPA, which she did not amend despite a late opportunity to do so,
        3. (ii)
           following ongoing discussions between GJJ and HKC over several months about GJM’s increasing care needs and HKC’s increasing need for support and respite,
        3. (iii)
           with adequate supports in place at GJM’s property, a home that was long-familiar to her,
        3. (iv)
           when GJM had already been spending respite time in her own home,
        3. (v)
           within a week of HKC’s email to GJJ and PJJ in which he expressed that he wanted more respite care to be provided at his home (rather than at GKM’s home where respite had been occurring) but that “a decision on the appropriate Aged Care facility must be made in weeks and the paper work signed” – which directly contradicted GJM’s express wish to remain living at her “own home” and would have created an involuntary separation in any event, and
        3. (vi)
           consistent with GJM’s wish expressed in the AHD to remain in her own home and not in aged care or similar facility.
59. [59]
    On balance, I am not satisfied that the April 2023 accommodation decision was unreasonably made by GJJ in all the circumstances, nor that it was made against the views and wishes of GJM or contrary to the General Principles.
60. [60]
    As the situation currently stands, the decision of the Public Guardian to accommodate GJM in SIL rather than returning to HKC’s home was made in consultation with all relevant parties including, importantly, GJJ, HKC and GJM’s care team of health professionals.
61. [61]
    GJM’s hospital care team gave evidence that since September 2023 their consistent view has been that SIL is the best discharge option for GJM, despite private accommodation being available to her, with support in HKC’s home. They said that they are concerned with making safe decisions for GJM and that current concerns for GJM around her behavioural presentations which include significant episodes requiring the intervention of security, assaults on staff, her friends, and the treating team, where GJM has never previously caused harm. The care team consider GM a considerable risk and recommend that she be accommodated in SIL with 24/7 supports.
62. [62]
    The OPG gave oral evidence that the accommodation decision made on 24 November 2023 followed a meeting with GJM during which GJM was only able to communicate that she wished to remain in the town in which her property and HKC’s were situated. GJM was unable to articulate a person she wanted to live with or area of that town that she wanted to live in.
63. [63]
    HKC did not initially accept the decision of the OPG made in set out in its letter of 13 December 2023 to transition GJM to SIL accommodation and sought a review of it, but the decision did not change upon review which included a consideration of the AHD.
64. [64]
    As recent to the hearing as 15 February 2024 HKC expressed in an email to all stakeholders including the OPG that he is “just flabbergasted” that “this situation” is being continued with “no consideration to [GJM] and my relationship and my offer to look after [GJM] at my residence and [GJM]’s home”.
65. [65]
    HKC’s application and his evidence are directed at an outcome that accommodates GJM to return to living in his home. However, in submissions at the hearing HKC clarified that he is open to a decision placing GJM in SIL accommodation, if other options are considered, including private accommodation with support.
66. [66]
    Nothing turns on it, but I observe that HKC’s position after April 2023, and continuing now, is inconsistent with the position he took in the email of 29 March 2023 wherein he expressed that GJM would require out of home care by June 2023 “at the latest” and that a decision on where to move her should be made “within weeks”. It ignores the evidence of GJM’s current treating team, relies upon superseded evidence of Dr Gange and the reports of Ms McVey and Ms Carlyle, disregards the rapid escalation of behavioural symptoms of GJM’s illness and the significant risks they pose to GJM and to others and minimises the extent to which HKC suffered “moderate to severe”^[51] and “significant”^[52] carers fatigue twelve months prior and the impact GJM’s worsening condition might have on him were he to attempt to care for her now, even with increased supports. 
67. [67]
    On balance, I am not satisfied that:

    1. (as mentioned) the April 2023 accommodation decision was unreasonably made by GJJ in all the circumstances, nor that it was made against the views and wishes of GJM or contrary to the General Principles,
    2. any personal views GJJ holds in relation to her mother’s relationship with HKC, or of HKC personally, have impacted or will influence her decision making for GJM in such a way as to render her incompetent and unlikely or unable to apply the General Principles, nor
    3. HKC has otherwise established that GJJ is incompetent or inappropriate to continue her role as attorney for personal decisions for GJM under the EPA in all the circumstances.
68. [68]
    I find therefore that the requirements of section 12(1)(c) of the GAA are not met and the application by HKC for appointment as guardian is dismissed on that basis.

Section 12(1)(c) - Administration

69. [69]
    It is not disputed that HKC and GJM have always kept separate finances in the conduct of their relationship, although HKC says that they administered their financial affairs “together”. This included running separate accounts as they always had, and a joint account for their day to day living expenses, that they both contributed to.  The joint account appears to have been divided up and contributions to it ceased after April 2023, according to a bank statement filed by HKC. 
70. [70]
    HKC says he received reminders for unpaid bills including for electricity and a post office box, that he passed on to GJJ once she was acting under the EPA.
71. [71]
    HKC says that GJJ did not respond to emails from the provider that paid GJM’s NIDA accounts, resulting in carers not being paid and ultimately to the resignation of SM.
72. [72]
    HKC says that GJJ inappropriately and arbitrarily limited GJM’s spending to $20 per day.
73. [73]
    HKC complains that GJJ does not consult him as GJM’s defacto spouse with regards to any matters concerning GJM and does not seek GJM’s views despite GJM having the ability to provide them.^[53]
74. [74]
    HKC states in the Financial Management Plan filed 30 August 2023^[54] that he would continue the transfer of $250 per week from GJM’s account to a joint account to meet the cost of food and entertainment, as has been their long-standing practice, and that otherwise he intends to invest any funds over $5,000 in short term deposits, leaving superannuation untouched. The plan has clearly been based upon GJM returning to live with HKC, with NDIS funded in-home supports.
75. [75]
    GJJ gave evidence that:^[55]

    1. She is not aware of any fraud suffered by GJM during her management of GJM’s finances.
    2. On 18 January 2023 she received a disconnection warning for an overdue electricity invoice of $76.35. It transpired there were multiple meters at GJM’s property with different payment references.  The overdue account was paid, and the issue corrected.
    3. She was not responsible for the payment of the support worker invoices through the administration of GJM’s NDIS funds and understands that any delayed payments arose from the complexity of GJM’s hospital admission.
    4. She did not impose a spending limit on GJM but did provide $20 in cash per day to support workers in the form of petty cash for expenses on outings.  These supports were with GJM four hours per day. This was part of a risk-management strategy to prevent carers having access to GJM’s bank accounts.
76. [76]
    PJJ gave evidence that:^[56]

    1. GJM reported to him losing money in online scams whilst she was managing her own money, but he does not recall specifics other than she said she lost $20,000 through a Telstra scam.
    2. He recalls there being an issue with electricity accounts as there were two at the GJM’s home and GJJ’s payments were being applied to one account, but not to the second account (so that one was in credit and one in arrears).
77. [77]
    The allegations by HKC of mismanagement by GJJ of the financial affairs of GJM are unsupported:

    1. There is no evidence that GJM was the victim of an internet scam, other than what she is said to have told PJJ.  Even if she was, this is likely to have occurred during the period in which GJM had capacity (even if it was diminishing) and was administering her own affairs. If this is the case, then HKC deposed to GJM and HKC managing their financial affairs together (whilst keeping assets separate) until November 2021 and by HKC until November 2022. If its not the case, there is simply no evidence to support a finding that GJM suffered financial loss as consequence of any negligent act or omission on the part of GJJ acting as attorney. 
    2. Whilst some bills were unpaid, the situation was rectified by GJJ once discovered. Some transitional oversights can be expected when an attorney or administrator takes over the management of finances from another person without an informed handover. There was no significant harm to GJM as a result, and none is alleged to have happened since.
    3. The $20 allowance for support workers has been explained as a reasonable protective measure to avoid providing supports with GJM’s bank card, and therefore access to her accounts. This is reasonable.
78. [78]
    The EPA signed in 2014 represents a clearly expressed direction by GJM that GJJ should manage her financial affairs in the event she lost capacity to do so, and it is compelling that she did not update her EPA when she was considering such things when signing the AHD in October 2021, which was almost four years into her relationship with HKC.
79. [79]
    Consulting HKC regarding financial decisions for GJM is not a mandatory requirement of GJJ as attorney, nor do I consider it necessary to maintain the relationship between HKC and GJM given:

    1. on the evidence of HKC, he and GJM kept their finances separate, aside from one joint account for shared expenses like food and entertainment,^[57] and
    2. GJM maintained her separately owned property, not wanting to sell it and it was never intended or required for HKC’s maintenance. 
80. [80]
    Therefore, I find that GJJ has not offended the General Principles in acting in her role as attorney for GJM under the EPA by not consulting with HKC on financial matters concerning GJM. 
81. [81]
    HKC has not established that GJJ is not appropriate or competent to manage GJM’s financial matters as GJM’s duly appointed attorney, the requirements of section 12(1)(c) of the GAA are not met and the application by HKC for appointment as administrator is dismissed on that basis.

Consideration of GJM’s Human Rights

82. [82]
    Section 48 of the Human Rights Act 2019 (Qld) (‘HRA’) requires the tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. These rights are explicitly recognised in the GAA.^[58]
83. [83]
    A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA and subject only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom.^[59]
84. [84]
    I consider the following human rights are potentially impacted through this process and by this decision:

    1. section 19 – freedom of movement;
    2. section 24 – property rights;
    3. section 25 - privacy and reputation;
    4. section 26 - protection of families and children; and
    5. section 31 - fair hearing.
85. [85]
    With respect to the right to a fair hearing, the decision was made after a contested hearing on adequate notice in which the parties were represented, and considerable evidence and submissions considered. The parties are being advised of the reasons for the decision. Although the hearing took place in GJM’s absence, I am satisfied in the circumstances that a fair hearing took place.
86. [86]
    The other human rights of GJM impacted by this decision are s 19 (the right to choose her own accommodation), s 24 (the right to own property), s 25 (the right not to have her privacy, family, or home unlawfully or arbitrarily interfered with) and s 26 (recognising families as the fundamental group unit of society). 
87. [87]
    Decisions made by a substitute decision-maker regarding where GJM lives, who she lives with, what she owns and what is done with her assets, and who her personal and financial information is shared with limit those human rights.
88. [88]
    GJM is also entitled to privacy and to the protection of her family unit, that includes both GJJ and HKC. Dismissing the applications of HKC means a reversion to the decision-making regime that GJM put in place for herself, when she had capacity and when she knew what her diagnosis was and that her condition would deteriorate.  Respecting her choice in this regard is consistent with her human rights. 
89. [89]
    To the extent GJM’s human rights might be limited by the risk of an impact on her relationship with HKC of an involuntary separation, I find this risk to be minimal given that I have found GJJ to be appropriate and competent to act as attorney but also because an involuntary separation was inevitable, even on HKC’s own evidence,^[60] given GJM’s increasing care needs. This limitation, if it exists, is reasonable and justifiable in the circumstances of the application, considering the factors in s 13(2) of the HRA and the applied provisions of the POAA and the GAA.

Directions sought under section 118 of the POAA

90. [90]
    In closing, GJJ made an oral application for directions under section 118 of the POAA that GJJ’s costs of the proceeding be met from GJM’s funds administered by GJJ as attorney.
91. [91]
    Section 118 provides that directions can be made about:

    1. the interpretation of the terms of, or another issue involving, a power of attorney, enduring power of attorney or advance health directive; or
    2. the exercise of an attorney’s power or another issue involving an attorney.
92. [92]
    This would include, without limitation, authorising an attorney to undertake a transaction that the attorney is not otherwise authorised to undertake or may not otherwise be authorised to undertake, if satisfied the transaction would be in accordance with the General Principles.
93. [93]
    It is appropriate that an opportunity is given for further submissions and a response to the application now that the outcome of the substantive proceeding is known. I have made directions for this to occur. Parties might consider whether the costs provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) apply to the application for directions/costs in making their submissions.