EN[2021] QCATA 9

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 26 August 2018, the Tribunal made orders under the Guardianship and Administration Act 2000 (Qld) (‘the GAA Act’) about Enduring Powers of Attorney (‘EPOA’) executed in 2016 and 2019 and applications concerning EN for the appointment of a guardian and an administrator.
2. [2]
   JN is one of EN’s daughters who was a named attorney together with her sisters DN and AM under an EPOA executed in 2016. In 2019 another enduring power of attorney was executed by EN appointing AM and DN as attorneys. JN applied to the Tribunal in the proceeding below for the Public Guardian (‘PG’) to be appointed as EN’s guardian and the Public Trustee of Queensland (‘PTQ’) to be appointed as EN’s administrator.
3. [3]
   Applications were also made in the proceeding below for the appointment of a guardian and an administrator by DN and CN, who is also EN’s child.
4. [4]
   Following an oral hearing, the Tribunal below declared the 2019 EPOA to be invalid and revoked the 2016 EPOA. The Tribunal dismissed the application for the appointment of a guardian and appointed AM and DN jointly and severally as administrators for EN. The learned Member delivered oral reasons for those decisions.
5. [5]
   JN seeks to appeal against the Tribunal’s decisions to dismiss the application for the appointment of a guardian and appoint AM and DN as EN’s administrators.
6. [6]
   In the oral hearing before the Appeal Tribunal, Counsel for JN, summarised the grounds of appeal as simply an error by the learned Member in exercising the discretion under the GAA Act, for which leave to appeal is not required. The two grounds of appeal identified in the application to appeal are set out below as follows:

   1. (a)
      Ground One:

The Tribunal ordered against the evidence and therefore erred in law.

The Member’s finding that the Adult’s EPOA of April 2019, whereby the Respondents [AM] and [DN] (‘the Respondents’) were solely appointed, was invalid (‘the first finding’), is accepted. However by then ordering those same two persons, and in doing so excluding the co-Applicant [JN], to be the sole attorneys of the Adult pursuant to his former EPOA of 2016, was inconsistent with the first finding and/or was inconsistent with the evidence on which the first finding was made. And was therefore wrong.

2. (b)
   Ground Two:

Further or alternatively the Tribunal Member ordered against the evidence by failing to appoint the PTQ as administrator and the Adult Guardian as guardian of the adult and therefore erred in law.

The Member’s finding that there was conflict between the respondents and the co-applicant [JN] (‘the second finding’), is accepted. However by omitting the Applicants’ proposals in sections 5.5 and 6.7 in their QCAT Form 10, and instead ordering two of those three persons found to have been in conflict to nonetheless preside as the Adult’s attorneys, was inconsistent with the second finding and/or was inconsistent with the evidence on which the second finding was made and/or was inconsistent with the QCATA reasoning at [22-24] in JMS v Adult Guardian & Anor [2013] QCATA 135 (30 April 2013). And was therefore wrong.

7. [7]
   It is settled law that the Appeal Tribunal will not usually interfere with the Tribunal’s exercise of discretion unless it can be shown that the learned Member acted upon a wrong principle or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.^[1] It must be shown that the decision is plainly unjust or unreasonable and involved a clear misapplication of the discretion.^[2]
8. [8]
   We agree that the grounds of appeal properly framed raise questions of law for which leave to appeal is not required.^[3] At the oral hearing, Counsel for JN submitted that the learned Member’s findings made in the proceeding below are not challenged in the appeal.
9. [9]
   In addressing Ground One of the appeal it was submitted for JN that the learned Member should have appointed all three former attorneys (under the 2016 EPOA) namely JN, AM and DN jointly and severally as EN’s administrators, or none of the former attorneys as EN’s administrator. Further to that, the learned Member, to the extent that he found conflict amongst the former attorneys, should have exercised his discretion and appointed the PTQ as administrator for EN. Counsel for JN referred to the learned Member’s decision in appointing AM and DN as EN’s administrators as ‘discriminatory against JN’. As we understand it,  the submission is that, by appointing AM and DN as EN’s administrators in circumstances where the Tribunal found conflict amongst the former attorneys (under the 2016 EPOA), JN is denied an advantage, that being any role in respect of the management of EN’s financial affairs, and the Tribunal is effectively placing, as stated, ‘blame’ on JN for the conflict.
10. [10]
    In addressing Ground Two of the appeal, it was submitted that the PG should have been appointed. It was submitted that as EN’s age advances and because of the fractured family, the need for decisions will increase. It was submitted for JN that whilst there is a family member who is available for appointment, it is more appropriate to appoint the PG because of the history of family conflict.
11. [11]
    JN seeks final orders by the Appeal Tribunal in allowing the grounds of appeal to set aside the Tribunal’s decision dismissing the application for the appointment of a guardian, and by way of a substituted decision, the appointment of the PG to make decisions about EN’s personal, health and welfare matters. Further, JN seeks an order setting aside the appointment of AM and DN as administrators and substituting therefor the appointment of the PTQ as administrator for EN.

Ground One

12. [12]
    JN accepts the Tribunal’s findings made about the 2016 and 2019 EPOA. JN says however that ordering the same two persons (i.e. AM and DN) to be attorneys and excluding JN as attorney for EN was inconsistent with the evidence and the learned Member’s findings about the 2016 and 2019 EPOAs.^[4] Further or alternatively, JN submits that the learned Member ordered against the evidence by failing to appoint the PTQ as administrator and the PG as guardian for EN.
13. [13]
    JN submits that the learned Member’s findings that there was conflict between family members including AM, DN and JN is accepted. The transcript of the proceeding below shows that JN told the learned Member that she has not been kept informed of anything, referring to her parents’ house being ‘stripped out, having tip skips, garage sales’ and the house being put on the market.^[5] Further to that, the transcript shows that the learned Member asked JN in the hearing below if she could work with the two attorneys appointed together with her under the 2016 EPOA. JN told the learned Member in the proceeding below that she did not think it could work and stated that she had not been informed of anything. The relevant extract from the Transcript is as follows:

… everything has been so severely broken down that – that it’s not possible to actually all work together and I think there needs to be somebody independent appointed to look after all the property.^[6]

And further:

… up to date, I haven’t been kept informed of basically anything.^[7]

14. [14]
    The transcript of the Tribunal’s reasons for its decision shows that the learned Member made findings about family conflict and that the attorneys appointed under the 2016 EPOA will not be able to operate together in the best interests of EN.^[8] The learned Member found that even if a decision was made on a several basis by one of the attorneys without the cooperation or consultation and input required, the document (meaning the 2016 EPOA) is likely to be ineffective and for those reasons the 2016 EPOA ought to be revoked.^[9]
15. [15]
    Further, the transcript shows that the learned Member asked JN if it is worth trying (meaning to work with AM and DN) for EN’s ‘benefit’. JN told the learned Member that it is not possible to work together.^[10]
16. [16]
    The learned Member found that there is an ongoing need for a range of financial decisions required for EN and in being satisfied of the requirements under s 12 of the GAA Act relevant to the exercise of discretion for appointing an administrator, found that AM and DN were appropriate.^[11]
17. [17]
    The transcript shows that the learned Member considered the appropriateness of an independent appointee such as the PTQ and EN’s views and wishes communicated in the proceeding below by EN’s advocate. The learned Member found that DN is a clear expression of EN’s preference for his substituted decision-maker as evidenced by her appointment as an attorney in the 2016 and 2019 EPOAs. Further, the learned Member accepted that EN preferred AM and DN which was expressed in the hearing by EN’s advocate and found that AM and DN were appropriate for appointment.
18. [18]
    The evidence of EN’s views and wishes that were communicated to the Tribunal by EN’s advocate in the proceeding below are important and relevant to the applications for the appointment of a guardian and an administrator. The General Principles in Schedule 1 of the GAA Act which the Tribunal and any substitute decision-maker for an adult must apply include Principle 7 which provides:

1. (1)
   An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
2. (2)
   Also, the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.
3. (3)
   So, for example—

1. (a)
   the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult’s life; and
2. (b)
   to the greatest extent practicable, for exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account; and
3. (c)
   a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult’s rights.

4. (4)
   Also, the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult’s views and wishes.
5. (5)
   However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult’s proper care and protection.
6. (6)
   Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.

19. [19]
    The transcript shows that EN’s views and wishes were that he wanted DN to be his decision-maker and EN’s preference is also for AM.^[12] Indeed, EN referred to JN in the Tribunal proceeding below as a ‘stickybeak’.^[13]
20. [20]
    JN does not challenge the learned Member’s findings about the financial plan prepared by DN and filed in the proceeding below that was a relevant consideration by the learned Member in determining DN’s appropriateness to manage EN’s financial matters. The transcript shows that the learned Member was satisfied that, amongst other things, DN will take advice from the accountants in relation to her book-keeping arrangements and have EN’s statements audited annually.^[14]
21. [21]
    There is no error in the Tribunal’s exercise of discretion to appoint AM and DN as EN’s administrators. The learned Member has correctly identified the issues to be determined in considering the application for the appointment of an administrator as required by s 12 of the GAA Act. Further, the learned Member has considered EN’s views and wishes communicated in the proceeding below by EN’s advocate that he prefers AM and DN to assist him in his decision-making. The learned Member has also, although not expressly referencing s 15 of the GAA Act, considered the appropriateness of the proposed appointees as required.^[15]
22. [22]
    JN’s submission that the learned Member has construed the GAA Act in a way that enables a person to garner advantage from their own wrong as expressed in Dunworth v Mirvac Qld Pty Ltd^[16] is without merit.
23. [23]
    It is established law that legislation must be interpreted in a way that is consistent with the language and purpose of all the provisions in the Act.^[17] Further, the interpretation of a provision which best achieves the purpose of the Act is to be preferred.^[18] The starting point  for ascertaining the meaning of a provision is the text, and context and purpose, and its ordinary meaning.^[19] In SZTAL v Minister for Immigration and Border Protection,^[20] Kiefel CJ, Nettle and Gordon JJ, said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, having regard to its context and purpose. Context should be regarded as the first stage and not at some later stage and it should be regarded in the widest sense. This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.^[21]

24. [24]
    As discussed above, the learned Member considered EN’s views and wishes and was clearly satisfied that AM and DN would apply the General Principles in making decisions about EN’s financial matters. There is no gain, profit or advantage for AM and DN as EN’s administrators. An administrator is a substituted decision-maker with a range of obligations under the GAA Act and their appointment may be reviewed. Similarly, a decision of the Tribunal which results in a person not being appointed as a decision-maker for a person despite proposing themselves is not a penalty or punishment. No findings were made by the learned Member apportioning any blame for the family conflict and nor would such findings be appropriate. Such findings are not required to make a decision about who is appropriate for appointment in line with s 15 of the GAA Act.
25. [25]
    JN’s submission that the appointment of AM and DN as administrators is inconsistent with the evidence and findings made about conflict between the former attorneys under the 2016 EPOA is without substance.

Ground Two

26. [26]
    The applicant relies upon JMS v Adult Guardian & Anor^[22] as support for the proposition that in this case, as the General Principles require all appointees to consult and liaise where possible with an adult’s existing support network, and given the history of conflict between the family members, the only option for appointment was the Public Trustee of Queensland and the PG.
27. [27]
    In JMS v Adult Guardian & Anor^[23] the Appeal Tribunal found that the Member below had not erred in finding that s 12(1) of the GAA Act had been met in relation to appointing a guardian to make contact decisions and that the applicant was not appropriate for appointment. Each case turns on its own facts. The Appeal Tribunal found that the learned Member below had not erred based on the evidence given at the hearing. That evidence included interactions causing significant distress to the relevant adult,^[24] rude and aggressive behaviour,^[25] that the proposal put by the applicant was that other family members visit only when the service providers were present which was not full time,^[26] that the relevant parties did not speak to one another and the applicant’s options for communications included Australia Post  mail.^[27] In JMS v Adult Guardian & Anor, the Appeal Tribunal found no error in the learned Member’s finding that the applicant in that case was not appropriate for appointment as guardian based on the history of conflict and its likely impact on appropriate decision-making for the adult should the applicant be appointed stating it was reasonably open on the material and evidence before the Member.^[28]
28. [28]
    The decision of the learned Member on the application of the appointment of a guardian is dealt with later in these reasons.
29. [29]
    In relation to the appointment of AM and DN as administrators for EN, the learned Member addressed the appropriateness considerations in his reasons:

As to who is appropriate for appointment, the options include [JN and AM, CN] or the Public Trustee. In circumstances like this, where families are at loggerheads and there is some significant disputes, it’s often appropriate to appoint an independent decision-maker like the Public Trustee. However, the tribunal would order away from family members, particularly if it was concerned that decisions wouldn’t be made correctly or that [EN’s] finances might be at risk by poor decisions and the like from family members.

In this case, the - at least two of the family members are attorneys and while the documents have been revoked and held to be invalid, nevertheless, particularly [DN]  is a clear expression of [EN’s] preference in this regard. [EN’s] advocate, … also indicates that he has expressed on several occasions, uniformly – consistently, if you like, the two appointments of [AM] and [DN].

So is the appointment of [AM] and [DN] likely to not protect his interests and the like? [DN’s] financial plan indicates that she will be taking advice from the accountants in relation to her bookkeeping arrangements and those sorts of things. [EN’s] age – advanced age would indicate that the requirement to invest to protect against inflation would not be as critical as a person who was much younger, with great respect to [EN] himself. Furthermore, the – [DN]  has indicated her intention to have the statements ordered annually – audited annually and to provide copies of those statements to all of her siblings, which the tribunal applauds in those circumstances. In any event, the tribunal will also be asking for annual accounts from which they simply could be able to obtain records from the tribunal files, if necessary.

Given the extended overview by the tribunal, the tribunal is satisfied that there is sufficient protection for [EN] with the appointment of family members in those circumstances. There is no compelling reason why the tribunal should not go with the constantly – consistently expressed preference of [EN] and the tribunal finds, in the circumstances, that those two parties are appropriate for appointment. ^[29]

30. [30]
    While evidence about conflict amongst the adult’s family members may be relevant in deciding who may be appropriate for appointment as a guardian, it is not determinative. If the Tribunal is satisfied that, despite the conflict, a person will likely apply the General Principles in making decisions for the adult, assuming the other appropriateness considerations have also been considered, including compatibility with the adult, the person will be appropriate for appointment.^[30] The General Principles include the adult’s right to participate to the greatest extent practicable in decisions affecting their life, the importance of preserving to the greatest extent practicable an adult’s right to make his or her own decisions and the importance of maintaining an adult’s existing supporting relationships. However, an administrator is not required under the GAA Act to consult and liaise with all family members of an adult before making for an adult each and every decision for which they are appointed to make, for example, the payment of each and every bill.
31. [31]
    The learned Member has accepted that DN and AM would make accounts available to the other family members and have the accounts audited. The learned Member has given weight to the compatibility of DN and AM with EN and the compatibility of DN with AM.  As EN resides with DN, DN is accessible to EN.
32. [32]
    The learned Member reached the conclusion that AM and DN would apply the General Principles despite the conflict and that EN’s finances would not be at risk by their appointment. That was not the case in JMS v Adult Guardian & Anor.^[31] The learned Member made relevant findings in that regard supported by the evidence before him.
33. [33]
    JN’s concerns raised in the oral hearing before the Appeal Tribunal about the appointed administrators’ competency in complying with the Tribunal’s orders to submit accounts and in applying the General Principles under the GAA Act are all relevant issues that JN is able to raise in the review of the appointment of an administrator proceeding. Indeed the transcript shows that the learned Member informed JN in the proceeding below that if there are any issues the Tribunal can bring on a review of the appointment of the administrators.^[32] It was open for the learned Member to find on the evidence before him that AM and DN are appropriate for appointment as EN’s administrators. This ground of appeal in relation to the appointment of the administrators is without merit.
34. [34]
    There is no error in the Tribunal’s decision to dismiss the application for the appointment of a guardian. Under the GAA Act, the Tribunal is required to make the least restrictive order.^[33] The transcript shows that the learned Member was not satisfied that the requirements of s 12 of the GAA Act had been met having found that it is not demonstrated on the material that either there was no need for a decision or an appointment was necessary to ensure that EN’s needs are adequately met or his interests adequately protected.^[34]
35. [35]
    JN does not challenge in the appeal proceeding the Tribunal’s findings made in the proceeding below relevant to the applications for the appointment of a guardian and an administrator. The transcript shows that the learned Member was satisfied that an accommodation decision was not required at that stage, referring to EN being settled in his present accommodation.^[35] The learned Member found that EN receives services in his activities of daily living, with showering and general hygiene. Further, day to day decisions were not regarded to be required for EN nor legal matters anticipated at that stage.^[36] In relation to healthcare decisions, the learned Member accepted that the parties believed that it was worth attempting the family members to engage in the statutory health attorney regime to avoid formal appointment at that time.^[37] In relation to contact and visits, the learned Member acknowledged the concern of EN’s daughters that they are not receiving nor getting proper access to EN and that EN terminates their call or someone else terminates it on EN’s behalf.^[38] The learned Member found however that EN prefers not to have people visit and in any event DN has agreed that she will arrange for her father to purchase a mobile phone which she will be able to assist him to at least receive calls, if not to make them.^[39] Further, the learned Member considered EN’s rights by stating that a formal appointment of a guardian would certainly ‘infringe on [EN’s] rights, and…[EN] would become very indignant given his professed views …’^[40]
36. [36]
    The learned Member also considered the Tribunal’s power to revisit the telephone arrangements relevant to decisions about with whom EN should have contact and visits by stating that ‘the matter can be reconsidered if the new telephone arrangements are considered to be unworkable’.^[41] The learned Member also said that in relation to health care decisions for EN, the parties are aware that if it does not work, the Tribunal would be seriously concerned about that and would likely reconsider its decision in that regard.^[42] An application for the appointment of a guardian may be made to the Tribunal at any time. As identified by the learned Member in his oral reasons, if the telephone arrangements with respect to JN’s contact with EN are no longer working, an application can be made to the Tribunal which can be determined at a hearing based on the evidence then before it.
37. [37]
    There is no error in the Tribunal’s decision to dismiss the application for the appointment of a guardian. The learned Member was not satisfied based on the evidence before him that the requirements of s 12 of the GAA Act had been met. In particular, the learned Member was not satisfied that either there was a need for a decision in relation to a matter (e.g. accommodation, services, day-to-day issues, legal matters) or that without an appointment, the adult’s needs would not be adequately met or EN’s interests would not be adequately protected in relation to decisions about his personal matters (health care and contact).^[43] As discussed above, the learned Member took into account the evidence of JN regarding a lack of consultation with JN regarding decisions made for EN prior to the hearing. The learned Member found that there was family conflict. It does not automatically follow that the result sought by JN was the only outcome available to the Tribunal. The Tribunal may exercise the discretion to appoint a guardian only if the specific criteria in s 12 are satisfied and mindful that s 5(d) and Schedule 1 s 7(1)(c) of the GAA Act require that the Tribunal make the least restrictive order.
38. [38]
    The decision of JMS v Adult Guardian & Anor^[44] does not assist JN in addressing the ground of appeal relating to the learned Member’s decision to dismiss the application for the appointment of a guardian. In JMS v Adult Guardian & Anor, unlike the matter before the Tribunal below, the appointment of a guardian was continued with the guardian’s powers broadened to include decisions about with whom the adult has contact and/or visits.^[45] In JMS v Adult Guardian & Anor, the Appeal Tribunal found that it was open to the Tribunal at first instance to find in accordance with s 12(1) of the GAA Act that there was a need for a decision to be made about contact matters and without the appointment, it was likely that the adult’s needs would not be adequately met or her interests would not be adequately protected. The Appeal Tribunal said:

Indeed, it is difficult to imagine how the Tribunal could have reached any conclusion other than to appoint a formal decision-maker to put contact or visiting arrangements in place. ^[46]

39. [39]
    We have set out at [27] of our reasons, some of the evidence that was apparently before the Tribunal below in that case. In addition, the Appeal Tribunal said:

The evidence of the parties about the informal visiting arrangements of family members indicates it was unsatisfactory, and unlikely to be conducive to the adult’s general wellbeing. For example, there were recitals of family members entering the adult’s room when another was visiting, with resulting rude or aggressive behaviour. Other avoidance techniques were described, none of which would guarantee that disturbances would not occur. ^[47]

40. [40]
    In the present matter, JN does not challenge the findings of the learned Member that the requirements of s 12 of the GAA Act were not satisfied. The fact that there exists conflict amongst family members was taken into account by the learned Member. In contrast with JMS v Adult Guardian & Anor^[48] the learned Member found, in relation to contact/visits, supported by the evidence before him including EN’s views, that the informal arrangements were appropriate at the relevant time and could be made meeting his needs and adequately protecting his interests without a formal appointment. We can find no error in the learned Member’s reasons.
41. [41]
    The Tribunal below was not satisfied the requirements of s 12 were met in relation to the application to appoint a guardian for EN. It was not necessary for the learned Member to consider the appropriateness of any proposed appointee under s 15 of the GAA Act in so far as it relates to the application for the appointment of a guardian. It was open for the learned Member to find that it was not demonstrated on the material that an appointment of a guardian for any personal matters was necessary at the relevant time. This ground of appeal insofar as it relates to the decision to dismiss the application for the appointment of a guardian is without merit.

Disposition of the Application to Appeal

42. [42]
    We have found no error in the learned Member’s exercise of discretion to dismiss the application for the appointment of a guardian and to appoint AM and DN jointly and severally as administrators for EN. Having made findings about the grounds of appeal, it is appropriate to dismiss the application for leave to appeal or appeal. We order accordingly.