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- Unreported Judgment
PK v The Public Trustee of Queensland QCATA 72
PK v The Public Trustee of Queensland & anor  QCATA 72
The Public Trustee of Queensland
The Public Guardian
On the papers
Deputy President Judge Horneman-Wren SC
Senior Member Stilgoe OAM
27 May 2015
APPEAL – GUARDIANSHIP AND ADMINISTRATION – where appellant held power of attorney – where application for appointment of guardian and administrator – where no evidence that attorney acting inappropriately – where late allegations of improper conduct – where late allegations not supported by evidence – where appellant had no opportunity to consider and respond to allegations – whether grounds for appeal
Guardianship and Administration Act 2000 (Qld) ss 12(1)(c), 14(2), 15, General Principle 7(4)
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- CR made a will in 2013 leaving everything to his wife CC. If CC died first, CR’s will provided for a series of bequests. In particular, CR’s nephew PP was to receive $80,000, CR’s tools and garden implements.
- CR died in January 2014. CC became the sole beneficiary and executor. By this time, CC’s attorney, PK, was managing CC’s affairs. But PP wanted “his” $80,000 and “his” tools in advance of any bequest he may receive under CC’s will. He filed an application that PK’s power of attorney be revoked and that the Public Guardian and the Public Trustee be appointed as CC’s guardian and administrator. In his application, PP alleged that PK had transferred CC’s property into her own name, that she was restricting CC’s social activities and failing to provide appropriate care.
- The tribunal did appoint the Public Guardian and the Public Trustee.
- PK wants to appeal that decision. She says the evidence at the hearing does not support the tribunal’s decision. She says the tribunal did not apply, or misapplied, the test in s 12(1)(c) of the Guardianship and Administration Act 2000 (Qld) (GAAT Act). She says the tribunal erred in finding that she had agreed to the appointments of the Public Guardian and Public Trustee. She says that the tribunal did not apply, or misapplied, s 14(2) of the GAAT Act. She says the tribunal did not give her sufficient opportunity to responded to allegations that were raised at the first time during the hearing. She says the tribunal did not consider CC’s financial position when ordering the appointment of the Public Trustee.
Section 12(1)(c) of the Guardianship and Administration Act
- The effect of s 12(1)(c) of the GAAT is that the tribunal may appoint a guardian or administrator if it is satisfied that, without an appointment, CC’s needs would not be adequately met, or CC’s interests would not be protected.
- The tribunal received a report from the Public Guardian which found that, although PK’s record keeping was not perfect, PP’s allegations that PK had misappropriated CC’s assets were unsubstantiated. The tribunal noted the Public Guardian’s findings that it was not necessary to suspend PK’s power of attorney or to pursue an application for the appointment of independent decision makers.
- The only evidence that CC’s needs would not be met, or that her interests would not be adequately protected, were late and unsubstantiated allegations by PP and L that PK had a history of mismanaging or misappropriating third parties’ funds. This is an issue to which we will return.
- We agree that, in the absence of the late allegations, there was no evidence before the tribunal that, without an appointment, CC’s needs would not be met or that her interests would not be protected.
Did PK agree to the appointment of the Public Guardian and the Public Trustee of Queensland?
- PK submits that she did not agree to being replaced by the Public Trustee but she did agree to the appointment of the Public Trustee as supervisor.
- If the tribunal, knowing of the existence of an enduring power of attorney appoints an administrator, the attorney may exercise power to the extent authorised by the tribunal. The tribunal initially did intend that the Public Trustee act as supervisor. In its reasons for decision, the tribunal noted that the Public Trustee needed to “sit over” the current enduring power of attorney. In the event, however, the tribunal appointed the Public Trustee for all financial matters, so there was nothing left for PK to administer.
- The tribunal was correct in recording PK’s agreement to appoint the Public Trustee in some capacity. The error, if any, was that the appointment did not reflect the extent of that agreement.
- We are not persuaded that the tribunal was in error. During the hearing, PK asked if the Public Trustee could take over the whole thing. The tribunal said “yes” and explained that, if the Public Trustee was appointed, the pressure on PK would be taken away. The tribunal explained that the Public Trustee would not interfere with things that were working well, but would be an umbrella to protect CC’s interest. PK told the tribunal she was happy with that and to “just do it”. The clear inference from the evidence before the tribunal is that PK was content for the Public Trustee to take control of CC’s affairs.
Section 14(2) of the Guardianship and Administration Act
- Section 14(2) of the GAAT states that the tribunal may appoint the Public Guardian only if there is no other appropriate person available for appointment for the matter.
- PK points out that, in deciding whether a person is appropriate, the tribunal must consider the matters set out in s 15 of the GAAT. PK submits that the tribunal did not ask her whether she understood, and was likely to apply, the general principles or the health care principle. She says the tribunal did not consider whether PK and CC’s interests were likely to conflict, whether PK and CC were compatible, whether PK would be available and accessible to CC, or whether she was appropriate and competent to act for CC.
- The transcript reveals that, until the late allegations, the tribunal was satisfied that PK was the appropriate person to be CC’s guardian. The tribunal was not going to appoint a guardian and/or administrator simply because PP was trying to understand what happened with CR’s will. CC was living with PK “90% of the time”. She told the tribunal that “PK looks after me now” and she was happy with that arrangement. PK told the tribunal she had 25 years’ experience in nursing.
- The tribunal noted that the appointment of a guardian would be against CC’s wishes. That is an important consideration, given General Principle 7(4) requires that the principle of substituted judgment must take account of the adult’s views and wishes if those views and wishes can be ascertained.
- The tribunal formed the view that PP’s late allegations showed a level of mistrust between PK and her children, which put into question whether PK could act under the principles of the enduring power of attorney, guardian or administrator. The tribunal noted that it was critical to preserve ongoing relationships between CC and her family that long term relationships are important and someone should be able to make decisions around what contact should look like.
- There is almost no evidence that PP had a relationship with CC, or that he visited her often. PK told the tribunal that she had not seen PP in the last eight months. PP spoke about his relationship with CR but he gave no evidence of having a long term, or personal, relationship with CC.
- PK’s husband, MM, told the tribunal that he was happy for PP to continue seeing CC. Even if we consider PP’s late allegations, the evidence does not support a finding that PK would not preserve existing relationships or arrange appropriate contact between CC and PP. We find that the tribunal did misapply the tests in s 14(2) of the GAAT. The appeal should be allowed.
PP’s late allegations
- When conflict between PK and PP emerged, the tribunal indicated that it intended to appoint the Public Guardian and Public Trustee in a supervisory role, leaving the day to day administration with PK. The evidence showed that, from PP’s perspective, not much would change under that arrangement. Only then did PP raise more serious allegations against PK. It is fair to observe that PK responded with some serious counter allegations, which were also unsubstantiated.
- PP’s late allegations did affect the tribunal’s decision:
What has been disclosed today, not only with regards to concerns raised by your children, but also then in response, how – how you have responded to the children, that the level of mistrust really puts into question your capacity to actually act under the principles of the enduring power of attorney.
- Although the tribunal is not bound by the rules of evidence, it must observe the rules of natural justice. Natural justice is not served by making a decision on allegations that were raised late, not made under oath, not supported by any evidence and to which PK had no opportunity to respond in a thoughtful way. PP conceded that the evidence, of very serious allegations, was hearsay. Even the Public Guardian, which had investigated PP’s earlier allegations, made the point that these allegations were completely new. The tribunal should have been slow to have any regard for late, new allegations, particularly in light of the Public Guardian’s earlier findings about PP’s initial complaints.
- There was no basis for the tribunal having regard to the late allegations and the tribunal erred in doing so.
- The Public Guardian investigated PP’s initial complaints and concluded that they were unsubstantiated. On that basis, the tribunal was minded to leave PK’s power of attorney in place.
- The conflict between the parties did not affect PK’s ability to administer CC’s financial affairs. There was no reason for the tribunal to appoint the Public Trustee.
- The conflict between the parties was relevant only to the issue of contact. The tribunal erred in assuming that the conflict between PP and PK tainted her ability to make decisions about accommodation and health when there was no reliable evidence to that effect.
- The appeal should be allowed and the decision of 21 August 2014 set aside. For the reasons set out, we do not see a need for the appointment of either a guardian or administrator for CC. However, given that it was PP’s application to the tribunal, he should have an opportunity to make submissions on the appropriate order.
 Transcript page 1-68, lines 26 – 29.
 GAAT Act s 22(2).
 Transcript page 1-68, lines 19 – 20.
 Transcript page 1-43, line 27.
 Transcript page 1-43, lines 29 – 35.
 Transcript page 1-43, line 39 – page 1-44, line 11.
 Transcript page 1-22, lines 24 – 36.
 Transcript page 1-23, line 44 – page 1-24, line 25.
 Transcript page 1-34, lines 10 – 23.
 Transcript page 1-34, line 34.
 Transcript page 1-23, lines 15 – 17.
 Transcript page 1-40, lines 1 – 6.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-40, lines 44.
 Transcript page 1-49, lines 30 – 37.
 Transcript page 1-30, lines 1 – 7.
 QCAT Act s 28(3)(b).
 QCAT Act s 28(3)(a).
 Transcript page 1-36, lines 14 – 16.
 Transcript page 1-34, line 18.
- Published Case Name:
PK v The Public Trustee of Queensland and The Public Guardian
- Shortened Case Name:
PK v The Public Trustee of Queensland
 QCATA 72
Horneman-Wren DP, Senior Member Stilgoe
27 May 2015