TYS[2024] QCAT 284

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   SENIOR MEMBER BROWNE: This matter concerns TYS, a 92-year-old man who is a claimant under the Legal Practitioners Fidelity Guarantee Fund established under the Queensland Law Society Act 1952 (Qld). The primary purpose of the fund is to compensate persons who suffer pecuniary loss because of a default of a law practice in relation to trust money or trust property.
2. [2]
   On the 24 January 2024, the Queensland Law Society received a claim against the fund on behalf of TYS, alleging a default by his former legal advisor in the amount of $1,569 926.66. On the 6 March 2024, the Committee of Management established by the Queensland Law Society for the purpose of managing and administering the fund held a meeting. Relevantly, the committee resolved unanimously to wholly allow the claim and sum plus interest to the date the claimant is notified by information notice that the claim is allowed. Because TYS, the claimant, has not yet been provided with an information notice, interest on the amount continues to be accrued.
3. [3]
   The committee resolved there was good reason to be concerned about obtaining a binding release from TYS. The Queensland Law Society subsequently applied to the Queensland Civil and Administrative Tribunal for an application for a declaration of capacity (GAA5009-24), an application for an order about an enduring power of attorney (GAA5010-24) and an application for the appointment of an administrator (GAA5007-24).
4. [4]
   As outlined in the applications filed by Ms Renee Hunt, as the applicant on behalf of the Queensland Law Society, the Queensland Law Society is concerned that TYS may not presently have capacity to sign a release for payment of the approved sum, may not have capacity to appoint an attorney and that is in respect of an enduring power of attorney dated the 6 November 2023 and whether, in the circumstances, the Public Trustee of Queensland be appointed as an administrator for TYS to manage the claim sum for the benefit of TYS.
5. [5]
   By way of background, TYS engaged a solicitor to gift a property to another person and to sell a property. TYS also engaged the same solicitor to prepare and witness an enduring power of attorney document. The transactions referred to had broader implications for TYS because he no longer had a house to live in. At 92 years of age, TYS found himself renting and, more importantly, the benefit of the proceeds of sale of one of the properties was missing. This is because there is an authority that purports to gift money from the sale of one of the properties to TYS’s former solicitor. Soon after the money was transferred by the former solicitor into another account, a claim followed under the hand of TYS’s attorney, appointed under a purported enduring power of attorney.
6. [6]
   The claim and, indeed, the circumstances surrounding TYS’s engagement with the former solicitor raise concerns about the solicitor’s standards of competence and diligence in preparing the enduring power of attorney, acting for TYS in the gifting and sale of his own properties and the alleged gifting of money by TYS under an authority.
7. [7]
   The preliminary issues to be determined by the Tribunal today is one of capacity. More importantly, whether TYS has capacity to provide instructions to the Queensland Law Society about receipt of a claim and money in the sum of $1,595,591.74 inclusive of interest to today (‘the sum’) from the Fidelity Fund, to execute a release required by the Queensland Law Society in respect of the payment to TYS of his claim and to manage the sum payable to TYS under the Fidelity Fund.
8. [8]
   The decisions to be made about the claim under the Fund more broadly, including the signing of a release, are financial matters as defined under schedule 2 of the Guardianship and Administration Act 2000 (Qld) ('GA Act’) and the Powers of Attorney Act 1998 (Qld) (‘POA Act’) which includes receiving and recovering money payable to TYS and managing the money to ensure that TYS’s financial interests are protected.
9. [9]
   The Tribunal is satisfied that urgent or special circumstances exist for the purposes of section 131 of the GA Act, such that it is desirable to proceed today to determine the application for a declaration of capacity. The urgent or special circumstances include the interest accruing daily on the claim sum amount, TYS having lost the benefit of living in his own property is now renting at the age of 92 years, and at the commencement of the hearing, the Tribunal heard that TYS was not open to a further assessment of capacity. Further, there is a significant wait time to secure an appointment with a suitable professional such as a geriatrician. To require TYS to undergo a further assessment would result in the hearing being delayed and this is not a desirable outcome.
10. [10]
    The Tribunal, in proceeding today, has heard from TYS under an adult evidence order. This was necessary to avoid a serious injustice to TYS, such that he was able to freely and voluntarily communicate with the Tribunal. During this time, everyone in the hearing room was invited to leave and the Tribunal heard from TYS, together with his representative appointed under section 125 of the GA Act. We have also heard from Dr Tiernan, TYS’s general practitioner.
11. [11]
    We accept the evidence of Dr Tiernan given orally in the hearing today about TYS’s capacity. Relevantly, Dr Tiernan found on 4 September 2023 that TYS had a Mini-Mental State Examination score, as at that date, of 26 out of 29 and full capacity to make decisions. At the hearing today, Dr Tiernan stated that TYS’s disabilities of hearing and vision are relevant to his decision-making and modifications are necessary. Without the modifications, this would cause a problem in understanding any document he was signing.
12. [12]
    This is consistent with our own observations made in the hearing of TYS, who told us that he would rely on [his attorney] to explain a document, including the Queensland Law Society release document, to him. TYS was unable to tell us, when prompted, about his finances. For example, he said he banks with the Bank of Brisbane but was unsure where that is. He relies on [his carer], and [attorney], who he came to know through [his carer] about three years ago to pay his rent and to manage his money. TYS made clear to us that he wants to manage his own money. He was, however, unable to explain how he does that. He said he pays four and a half dollars rent per week and was unsure if he lived in Broadbeach or Coorparoo. TYS did not know where his money came from and said [his carer] paid for everything as far as he was aware. We also observed TYS’s difficulties in reading and understanding documents, such as the enduring power of attorney and Queensland Law Society release. TYS could not identify the handwriting nor his signature on the enduring power of attorney document. TYS was assisted in the hearing with a hearing loop today and confirmed with us that he had no difficulties in hearing us.
13. [13]
    We are satisfied that TYS, a 92-year-old man with disabilities in his hearing and vision, is unable to read and understand complex documents such as the release for funds from the Queensland Law Society and to make complex decisions about his financial matters, such as the significant claim from the Queensland Law Society Fund. TYS is vulnerable to exploitation by others because he relies solely and entirely on another person to explain to him documentation and to manage his financial affairs.
14. [14]
    We find the presumption of capacity for the following financial matters to be rebutted:

    1. to provide instructions to the Queensland Law Society about a receipt of a claim and money in the sum of $1,595,591.74 inclusive of interest to today;
    2. to execute a release required by the Queensland Law Society in respect to payment to TYS of his claim in respect of that sum; and
    3. to manage that sum payable to TYS under the Fidelity Fund.
15. [15]
    We have considered whether TYS’s right to adequate and appropriate support for decision-making and again we have found there is an element of vulnerability here such that TYS, if left unsupported and without adequate support in his decision-making, would not be able to freely and voluntarily understand and communicate decisions about the payment from the Queensland Law Society fund and to manage that significant fund.
16. [16]
    We have viewed the video provided by [his attorney]. This video supports our assessment of TYS’s vulnerability and need for adequate and appropriate supports for his hearing and vision disabilities, and this is in respect of making complex decisions about the Queensland Law Society money to be paid from the fund.
17. [17]
    We have also considered, TYS’s human rights, as set out in the Human Rights Act 2019 (Qld) ('HR Act’) as required under section 48.  The Tribunal is required to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. TYS’s rights to recognition as a person before the law entitled to equal protection without discrimination may indeed be impacted by the making of a declaration with respect to his capacity. However, the Tribunal has taken into account whether there is adequate and appropriate support available to ensure TYS’s disabilities in hearing and vision are adequate in making complex decisions.
18. [18]
    Regarding TYS’s right to a fair hearing, again, the Tribunal, in providing a hearing loop to TYS in the hearing today, also made an adult evidence order to ensure TYS was comfortable and was able to communicate with us freely and voluntarily. TYS’s privacy. Regarding TYS’s rights to have sensitive information about his personal matters kept private, we have considered that a declaration in relation to TYS’s capacity about an aspect of his financial matters will be engaged and limited by the making of a declaration.
19. [19]
    However, taking into account our findings and the criteria set out under the GA Act, the Tribunal is satisfied the limits imposed by the orders are reasonable and justified in accordance with section 13. The orders are the least restrictive because we are making a declaration only over one discrete area of TYS’s financial matters, and that relates entirely to providing instructions, executing a release to the Queensland Law Society and managing the sum of money from the claim.
20. [20]
    So the orders today in relation to the application for a declaration about capacity are:

    1. TYS does not have capacity about the following financial matters:
       1. to provide instructions to the Queensland Law Society about receipt of a claim and money in the sum of $1,595,591.74 inclusive of interest to today from the Fidelity Fund;
       2. to execute a release required by the Queensland Law Society in respect of payment to TYS of his claim in the sum of $1,595,591.74 inclusive of interest to today; and
       3. to manage the sum of $1,595,591.74 inclusive of interest to today payable to TYS under the Fidelity Fund.

...

21. [21]
    SENIOR MEMBER BROWNE: These are the Tribunal’s reasons for the matter concerning TYS, file reference [Redacted]. The Tribunal is determining the balance of the applications before the Tribunal, being an application for the appointment of an administrator (GAA5007-24) and the application for an order about an enduring power of attorney (GAA5010-24).
22. [22]
    Relevantly, the Tribunal has the power under section 12 of the GA Act to, by order, appoint a guardian for a personal matter or an administrator for a financial matter for an adult if the Tribunal is satisfied as to certain matters provided under the section. Further, under the POA Act, the Tribunal can amongst other things make a declaration about the validity of an enduring power of attorney. The Tribunal may also, pursuant to section 22(2) of the GA Act, having made an appointment of an administrator and in accordance with section 22(2), overtake any existing power of attorney by the making of an appointment such that the attorney can no longer act to the extent that the appointment is made.
23. [23]
    In this matter, the Tribunal has first of all considered whether there is a need for a decision to be made about TYS’s financial matters. This is relevant to the exercise of the discretion under section 12 of the GA Act. It is uncontroversial in this matter that decisions are required about TYS’s financial matters, including to provide instructions to the Queensland Law Society about receipt of a claim, to execute a release required by the Queensland Law Society in respect of a payment to TYS, and to manage the sum of $1,595,591.74 inclusive of interest to today that is payable to TYS under the Fidelity Fund.
24. [24]
    Findings about TYS’s capacity to make decisions necessary to sign the Queensland Law Society release and to manage the payment from the Queensland Law Society have been made by the Tribunal and reasons given earlier today. Further, reasons have been given for making an adult evidence order, commonly referred to as a “limitation order” under the GA Act, that was necessary to ensure TYS was adequately supported to be able to speak to the Tribunal freely and voluntarily about the issues to be decided today.
25. [25]
    There are a number of orders or possible outcomes available to the Tribunal based on the evidence we have heard. The primary focus of the GA Act and, relevant to the orders, is TYS and his right to make decisions with which others may not agree. Further, and amongst others, is the right of TYS to make decisions should be restricted and interfered with to the least possible extent.
26. [26]
    The Tribunal has decided to exercise its discretion under section 12 of the GA Act to appoint an administrator, albeit in a limited way, for the signing of the Queensland Law Society release and to manage the significant funds to be paid under the claim to TYS. The Tribunal has arrived at this decision after considering the evidence of TYS himself about the circumstances surrounding the execution of an enduring power of attorney. We have also considered the views of [Redacted], also known as [Redacted], who is the current attorney appointed under an enduring power of attorney, the videos taken by TYS’s former solicitor, [Redacted], and videos taken by [the attorney].
27. [27]
    The evidence surrounding the execution of the enduring power of attorney may raise concerns about its validity to the extent that TYS had capacity at the time of execution on the 6 November 2023. This, however, needs to be considered in light of the Supreme Court decision of Lambourne v Marrable [2023] QCS 219 and the presumption at law of capacity to execute the enduring document. Further, is TYS’s right to choose who he would like to support him in his decision-making.
28. [28]
    There is, however, a complex decision required about TYS’s financial matters that includes signing a release from the Queensland Law Society and managing a significant sum of money. The options available for taking on the role of making these decisions include the Public Trustee of Queensland and the current attorney to the extent that the enduring power of attorney would remain and the attorney would step in to manage the significant sum paid from the Queensland Law Society Fund. If the Public Trustee of Queensland was to take on this role, then that would require the Tribunal to exercise the power under section 12 of the GA Act to appoint an administrator.
29. [29]
    We do not consider the current regime, in terms of the attorney appointed under an enduring power of attorney, to be an appropriate mechanism to safeguard TYS’s payment from the Queensland Law Society Fund. This is because there are concerns about the attorney’s ability to apply the general principles and to execute the powers and functions of an administrator reflected in the GA Act. Indeed, similar if not the same powers and functions are mirrored in the POA Act with respect to an attorney.
30. [30]
    [The attorney] has acted appropriately in bringing the claim to the Queensland Law Society. This is evidence of acting protectively to safeguard TYS’s financial interests. This, however, needs to be balanced against the weight of evidence that demonstrates [the attorney's] inability to exercise the powers when needed because of his concerns that in doing so the attorney would be interfering with TYS’s personal life with his current carer, [Redacted]. For example, [the attorney] was unable to identify what action he took to protect the sum of $263,758 paid to TYS at settlement. Further, [the attorney] was unable to articulate what steps he would take to manage and protect TYS’s money received from the Queensland Law Society claim.
31. [31]
    As we have said, TYS’s right to make decisions should be restricted and interfered with to the least possible extent. There is also a presumption of validity of the enduring power of attorney. The Tribunal is satisfied that without an appointment of an administrator, TYS’s needs will not be adequately met or his financial interests protected in respect of the Queensland Law Society payment. The Public Trustee of Queensland is independent and available to step in as an administrator and to apply the general principles that include, amongst other things, taking into account TYS’s rights and fundamental freedoms.
32. [32]
    The Tribunal, in appointing the Public Trustee of Queensland, overtakes the enduring power of attorney. This is pursuant to section 22(2) of the GA Act, and means that TYS’s wishes in determining who should support him in his decision-making is preserved and interfered with to the least possible extent, and the appointment of the Public Trustee of Queensland is until further order.
33. [33]
    The Tribunal has also considered the relevant human rights as set out in the HR Act There are potentially a number of rights that may be engaged and limited by the making of the Tribunal’s orders today. TYS’s rights to recognition as a person before the law entitled to equal protection without discrimination. So, TYS being entitled to identify who he would like to support him in his decision-making. TYS’s rights to have a fair hearing, and to ensure that his views and wishes are communicated, and also TYS’s right to privacy to have his sensitive personal matters managed by himself, or to be able to choose others to do that for him.
34. [34]
    The Tribunal has, however, made an order that is least restrictive in terms of interfering in the least possible way with TYS’s rights to choose how he makes his decisions and who he would like to support him in his decision making. The Tribunal has also taken into account the purpose of the GA Act, the acknowledgements, and that the Act is to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy and decision-making, and the rights to adequate and appropriate support for decision-making are considered.
35. [35]
    Given the Tribunal’s findings today, we are satisfied that the limits imposed by the orders are reasonable and justified in accordance with section 13 of the GA Act. The Tribunal will now read these orders into the record. In relation to the application for the appointment of an administrator, the Tribunal orders that:

    1. The Public Trustee of Queensland is appointed as an administrator about the following financial matters:
       1. to provide instructions to the Queensland Law Society about receipt of a claim and money in the sum of $1,595,591.74 inclusive of interest to today from the Fidelity Fund;
       2. to execute a release required by the Queensland Law Society in respect of payment to TYS of his claim in the sum of $1,595,591.74 inclusive of interest to today; and
       3. to manage the sum of $1,595,591.74 inclusive of interest to today, payable to TYS under the Fidelity Fund.
    2. The Tribunal dispenses with the requirement of the administrator to provide a financial management plan, and this appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.
    3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
36. [36]
    In relation to the application for an order about an enduring power of attorney, the Tribunal orders that the following enduring power of attorney for TYS is overtaken by the making of this appointment, and in accordance with section 22(2) of the GA Act can no longer be acted upon to the extent that this appointment has been made:

    1. The enduring power of attorney dated 6 November 2023, appointing [Redacted] as attorney for personal, including health matters, and financial matters.
37. [37]
    Finally, I read into the record the following documents that were considered by the Tribunal to be credible, relevant, and significant to an issue in the proceeding in accordance with section 103 of the GA Act.

    1. H1, the video;
    2. H2, the affidavit of [Redacted].
    3. H3, application for leave to be represented;
    4. H4, application for miscellaneous matters;
    5. H5, application for declaration about capacity;
    6. H6, application for appointment of administrator;
    7. H9, Notice of Hearing;
    8. H12 statutory declaration of [Redacted];
    9. H13, submissions from [Redacted];
    10. H15, submissions from ADA Law;
    11. H18, submissions from the Queensland Law Society containing typed transcripts;
    12. H19, submissions from ADA Law; and
    13. H20, proposed draft release provided by the Queensland Law Society.