AAD

Case •

[2025] QCAT 400

•

21 October 2025

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

AAD [2025] QCAT 400

PARTIES:

In applications about matters concerning AAD

APPLICATION NO/S:

GAA4669-25
GAA4670-25
GAA4671-25
GAA4673-25
GAA6475-25
GAA6480-25

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 October 2025

HEARING DATE:

22 July 2025

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

    The Public Guardian is appointed as guardian for AAD for the following personal matters: with whom AAD has contact/and or visits.

    This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 1 year.

    The applications by BB and HH for the appointment of an administrator for AAD are dismissed.

    The Enduring Power of Attorney dated 7 May 2024 appointing BB and HH attorneys for personal and financial matters is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 (Qld), can no longer be acted upon to the extent that this appointment has been made.

    The Enduring Power of Attorney dated 12 February 2025 appointing BB and WW as attorneys for personal and financial matters is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld).

  The Advance Health Directive dated 12 February 2025 appointing BB and WW as attorneys for health matters is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld).

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT
AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES
–where the adult made enduring documents jointly appointing the adult’s husband and her daughter as attorneys
– where the adult made new enduring documents purporting to remove her daughter as her attorney – where the adult’s daughter questioned the validity of those new enduring documents – where the adult’s daughter and her husband both sought appointment as the adult’s guardian for personal matters and appointment as her administrator

Guardianship and Administration Act 2000 (Qld), s 4, s 12
Human Rights Act 2019 (Qld), s 24, s 25, s 58

Powers of Attorney Act 1998 (Qld), s 6C, s 41, s 42, s 117, s 118

APPEARANCES & REPRESENTATION:

Adult:

In-person

Applicant/s:

HH – AAD’s daughter

BB – AAD’s husband represented by A Patras and I Zhang of Bespoke Lawyers

Public Guardian:

T Boyes

REASONS FOR DECISION

  1. This proceeding involves several applications, which have been brought under the Guardianship and Administration Act 2000 (Qld) (‘GAA’) and the Powers of Attorney Act 1998 (Qld) (‘PA Act’) in respect of AAD, who has dementia.

  2. The said applications have been brought by HH who is AAD’s daughter and by BB who is AAD’s husband. HH is BB’s stepdaughter.

  3. Both HH and BB respectively apply to be appointed AAD’s guardian for health care and her administrator for all financial matters.

  4. HH also applies for the Tribunal to make a declaration about the validity of an Enduring Power of Attorney (‘EPOA’) and an Advance Health Directive purporting to remove HH as attorney, both of which AAD signed on 12 February 2025.

  5. Relevantly, on 24 April 2025, the Tribunal made an interim order appointing the Public Guardian for AAD for the following personal matters for a period of three months:

    (a)accommodation.

    (b)with whom AAD has contact.

    (c)provision of services.

    (d)travel.

  1. The Tribunal renewed the above interim order for a further three months on 22 July 2025.

Background

  1. AAD and BB have been in a relationship since 1993. They married in 2004.

  2. From around 2018, AAD began to exhibit minor memory issues. Her cognition continued to decline in 2020. That prompted AAD and BB to move into an independent-living townhouse at Forest Grove (‘AVEO’) on 12 January 2022, which is a retirement village with access to 24/7 medical care.

  3. On 25 February 2022, BB made an Advance health directive appointing BB and HH her joint attorneys to make decisions about her health decisions severally (‘1st AHD’). That enduring document also states that AAD would like BB and her daughters HH, KD and SD to be involved in discussions about her health care.

  4. On 7 May 2024, AAD made an EPOA appointing BB and HH her attorneys to jointly make decisions about personal matters (including health) and finances (‘1st EPOA’).

  5. On or about 5 February 2025, BB, whilst in the company of AAD, approached HH to sign a new EPOA, which purported to appoint BB as her attorney and HH as her successive attorney (‘attempted EPOA’). HH refused to sign the document.

  6. On 12 February 2025, AAD made a further EPOA which purported to appoint BB as her attorney and WW (AAD’s sister) her successive attorney (‘2nd EPOA’). That same day AAD also signed a second Advance health directive, purporting to appoint BB and WW as her attorneys to make decisions jointly. (‘2nd AHD’)

  7. Relevantly, on several occasions in 2023 and 2024 AAD was found wandering:

    (a)on 19 March 2023, AAD and BB went on a caravan trip to Warwick. During the trip AAD went missing. She was eventually found by residents.

    (b)on two further occasions on 19 and 13 August 2024, medical staff at AVEO found AAD wandering.

What HH seeks

  1. In summary, HH questions the validity of the 2nd EPOA and the 2nd AHD. She also wishes to be appointed AAD’s guardian and administrator because she contends that:

    (a)BB restricted AAD’s contact with her and her sisters KD and SD following her refusal to sign the EPOA he presented to her on 5 February 2025.

    (b)BB coercively controls AAD.

    (c)BB permits AAD to undertake remote travel which is not safe for her.

    (d)BB fails to ensure AAD attends important medical appointments.

    (e)BB controls AAD’s finances, including limiting her access to healthcare to save money.

What BB seeks

  1. BB seeks to be appointed AAD’s guardian and administrator. He submits the following:

    (a)concerning AAD’s capacity, after considering a report by geriatrician Dr Lillian Wong, he “has resigned himself to the determination of the adult not having any capacity to execute any of the EPOA’s”.[1]

    (b)he is AAD’s primary carer. They have been married for 21 years and in a committed relationship for 31 years.

    (c)he denies HH’s allegations that he mistreated, restrained, or coerced AAD.

    (d)there are numerous friends and acquaintances who describe BB as a devoted and loving partner.

    (e)friends, neighbours and fellow AVEO residents have observed strong companionship between AAD and BB and their participation in community events and social activities reflects a healthy and supportive relationship.

    (f)there was no deliberate attempt to cease communication between AAD and daughters, except when there was significant harassment and repeated unwelcome calls that were causing BB distress.

    (g)BB has taken steps to address AAD’s incidents of wandering. He has installed bolt locks on the doors of their residence. Additionally, he remains constantly by AAD’s side and does not leave her unattended.

    (h)AAD’s financial interests are aligned and managed jointly.

[1] BB’s written submissions dated 15/07/2025.

Hearing

  1. A hearing took place on 22 July 2025 at which AAD, BB, HH, SD, KD, WW, LL (BB’s daughter) and various other friends of those parties appeared.

  2. At the hearing HH made the following submissions:

    (a)she did not dispute that BB is a caring partner and that AAD is content living with him at Aveo.

    (b)on 2 February 2025, BB presented her with a new EPOA dated 27 January 2025 removing her as primary attorney and proposing her appointment as a successive attorney. HH refused to sign that document without obtaining legal advice.

    (c)on 5 February 2025, BB arrived at her house unannounced and refused to leave until she returned the EPOA document. When HH refused to do so, BB cut off AAD’s contact with her and her sisters.

    (d)her contact with AAD resumed only when the Tribunal appointed the Office of the Public Guardian (‘OPG’) as guardian for contact decisions on an interim basis.

    (e)she denied that she or her sisters intended to place BB in an aged care facility.

    (f)she submitted that BB’s decision-making about what is in the adult’s best interests is impaired, which is demonstrated by his intention to take AAD on a long train journey to Longreach and Jundah.

    (g)HH repeated many of the concerns and submissions raised in her written material filed with the Tribunal.

  3. At the hearing KD, who is AAD’s middle daughter, submitted:

    (a)following the appointment of the OPG she has been able to maintain regular contact with AAD free of interference. During that contact they have laughed, sung songs and played music.

    (b)HH has been a fair, dependable and compassionate advocate for AAD.

  4. SD, who is AAD’s youngest daughter, submitted:

    (a)despite ongoing resistance from BB she had made efforts to see AAD weekly. They have attended art classes, shopping and lunches. Since February 2025 AAD’s contact with her three daughters and six grandchildren ceased. She missed birthdays, engagement celebrations and farewell parties.

    (b)she believes HH should remain involved in AAD’s medical care. She contends that BB is 80 years old and faces his own health and mobility challenges. BB’s hearing loss makes it difficult for him to absorb complex medical information. BB failed to take AAD to her annual oncology appointment in May despite two reminders from the hospital. The appointment only occurred after HH intervened. Previously, AAD missed her annual appointment with her haematologist. BB also failed to take AAD to hospital when she had a broken arm in 2021. In 2022, AAD’s appointment with a psychiatrist was cancelled because BB did not want to pay the required deposit.

    (c)regular phone calls and catch ups have only resumed after the OPG was appointed for contact decisions.

  5. BB gave the following evidence:

    (a)when BB and AAD signed the EPOA in May 2024, they did not understand and were not legally advised that it did not permit the attorneys to make decisions severally. That is why AAD executed a further EPOA.

    (b)he admitted to reading the Advance health directive before signing it in 2022.

    (c)he knew at the time the directive was signed that HH had the power to make decisions severally in his absence.

    (d)AAD refused to answer BB and her sisters’ calls because she was upset that HH did not return the new EPOA and she called the police.

    (e)HH and her sisters do not appreciate that he and AAD have busy lives and commitments which means AAD is not always available for contact with them.

  6. AAD’s sister WW told the Tribunal that she is “totally supportive of BB” and that the care he gives AAD is “unbelievable”.

  1. LL, who is BB’s daughter, told the tribunal that during the period of limited contact it was AAD that did not want to see her daughters. She observed AAD refusing to take her daughters’ calls after BB presented the EPOA to HH.

  2. At the hearing friends and acquaintances of BB spoke positively about BB’s devotion to AAD.

  3. Lastly, I spoke to AAD in the absence of the other parties. Whilst I do not propose to disclose precisely what she told the Tribunal it was plain to me that she trusts both HH and BB and would be content with either making decisions on her behalf.

Issues for determination

  1. I consider, the essential questions to be determined in the matter are:

    (a)Firstly, does AAD have impaired capacity for personal and/or financial matters as of the date of the hearing.

    (b)Secondly, did AAD have capacity to make the 1st EPOA, the 1st AHD, the 2nd EPOA and the 2nd AHD. Hereafter it is convenient to refer to those preceding documents collectively as the ‘enduring documents’.

    (c)Thirdly, if the enduring documents are valid because AAD had the capacity to make them, which enduring document prevails.

    (d)Fourthly, whether the Tribunal ought to make any order removing an attorney appointed under the enduring documents or change or revoke the document.

    (e)Fifthly, whether any valid document should be overtaken by appointing a guardian and/or administrator for AAD.

AAD’s capacity

  1. The parties have furnished the Tribunal with several documents authored by medical professionals addressing AAD’s capacity to make decisions.

  2. Dr Nicholas John prepared a health professional report on 21 February 2025. It states that AAD has Alzheimer’s disease with an onset in 2023. She participated in a Mini Mental State Examination (‘MMSE’) on 28 January 2025 in which she scored 19/30 (a score below 23 indicates the existence of a cognitive impairment). In his report Dr John opined that AAD lacks capacity to make complex decisions about health care, accommodation choices and financial affairs.

  3. In a further letter dated 24 February 2025, Dr John wrote that he has known AAD for several years dating back to 2020 and over that time her cognition has slowly deteriorated. He opined that she would not have the capacity to change her Power of Attorney in January of 2025, as her cognitive function was sufficiently poor back in mid-2024 to activate her Power of Attorney. He indicated that he had enormous concerns about changing the 2024 Power of Attorney because BB’s ability to manage AAD’s care is impaired as evidenced by a discussion they had about not going on long trips which would put AAD at risk of wandering again.

  4. On 10 February 2025, AAD sought a second medical opinion from Dr Anthony Henderson who was her general practitioner at AVEO. Dr Henderson concluded that AAD retained capacity to understand matters relating to Advance Health Directives and EPOAs and was able to act freely in these matters.

  1. AAD underwent capacity assessments with geriatrician Dr Lillian Wong on 28 March 2025 and 30 May 2025. On 30 May 2025, Dr Wong produced a report stating that AAD scored 16/30 in a MMSE, which is typical of a moderate Alzheimer’s dementia pattern.

  2. Relevantly, in her report Dr Wong wrote the following about AAD’s capacity to make decisions about the enduring documents.

    Having regard to capacity to make an enduring power of attorney, she has impaired capacity to make it. I understand she has made three in the past year, and I would question the validity of all of them due to the likelihood of undue influence.

  3. Ultimately, Dr Wong concludes in her report that AAD has moderate Alzheimer’s dementia which could affect her soundness of mind, memory and understanding.

AAD’s capacity at the date of the hearing

  1. The GAA defines capacity for a person for a matter to mean the person is capable of:

    (a)understanding the nature and effect of decisions about the matter; and

    (b)freely and voluntarily making a decision about the matter; and

    (c)communicating the decision in some way.

  2. Further, s 11(1) of the GAA provides that if in performing a function or exercising a power under the Act, the Tribunal is required to make a decision about an adult’s capacity for a matter, the Tribunal is to presume the adult has capacity for the matter until the contrary is proven.

  3. After considering the medical opinions above and applying the definition of capacity contained in the GAA, I am amply satisfied that the presumption that AAD had capacity for personal and financial matters at the time of the hearing is rebutted. Dr John’s opinion is particularly informative given his longstanding association with AAD.

Did AAD have capacity to make the enduring documents?

  1. I turn now to the issue of AAD’s capacity at the time she signed the various enduring documents. Section 41(1) of the PA Act provides that a principal has capacity to make an EPOA only if the principal:

    (a)is capable of making the EPOA freely and voluntarily; and

    (b)understands the nature and effect of the EPOA.

  2. Notably, under the general principles of the PA Act, an adult is presumed to have capacity for a matter.[2]

    [2] PA Act, s 6C – General Principles.

  3. Section 41(2) of the PA Act lists various matters that indicate an adult understands the nature and effect of an EPOA.

  4. Section 42 of the PA Act explains when a principal has capacity to make an advance health directive. It is framed in identical terms to s 41, namely that the principal must:

    (a)understand the nature and effect of the advance health directive; and

    (b)be capable of making the advance health directive freely and voluntarily.

  5. Importantly, a principal has capacity to make an advance health directive, to the extent it gives power to an attorney, only if the principal has the capacity to make an EPOA giving the same power.[3]

    [3] PA Act, s 42(3).

  6. Dr Wong opines that she would question the validity of all three enduring documents due to the likelihood of undue influence. The enduring documents prepared in 2025 are roughly proximate in time to the capacity assessment that AAD underwent with Dr Wong on 28 March 2025. Therefore, it can be inferred that she did not make those documents voluntarily. I prefer Dr Wong’s opinion to that of Dr Henderson due to her status as a specialist geriatrician.

  7. However, I am not satisfied that the presumption that AAD had capacity to make the 1st AHD or the 1st EPOA has been rebutted. AAD made the 1st AHD about two years before Dr Wong first assessed her capacity. She made the 1st EPOA about ten months before Dr Wong assessed her capacity. Whilst AAD exhibited impaired cognition from about 2020, it does not axiomatically follow that she lacked capacity to make the enduring documents in 2022 and 2024. I therefore find that AAD had the capacity to make the 1st AHD and the 1st EPOA.

Should the Tribunal make any changes to the enduring documents?

  1. Next, it is necessary to consider the question of whether the Tribunal ought to order the removal of an attorney in respect of the 1st AHD or the 1st EPOA or change or revoke the documents.

  2. Section 117 of the PA Act provides that without limiting the grounds on which a court may make an order changing the terms of a EPOA or AHD, or revoking all or part of the documents, the court may make the order if it considers the principal’s circumstances or other circumstances have changed to the extent that one or more of the terms of the document are inappropriate.

  3. I am not satisfied that AAD’s circumstances have sufficiently changed to the extent that the Tribunal ought to interfere with the 1st AHD or the 1st EPOA. Certainly, it can be observed that there is a greater degree of conflict between BB and HH than existed at the time the enduring documents were first prepared. However, the existence of conflict alone does not preclude HH or BB making joint decisions that align with AAD’s best interests.

  4. Importantly when an adult lacks capacity the Tribunal must use the principle of substituted judgement.[4] That means it must use the views, wishes and preferences the adult expressed or demonstrated when they had capacity to extrapolate what their current views, wishes and preferences would be. Plainly, at the time AAD made the 1st AHD and the 1st EPOA, it was AAD’s express intention that HH and BB would make joint decisions about her personal, health and financial matters. That intention should be respected.

    [4] PA Act, s 6C – General Principal 10(4).

  5. If HH and BB disagree about a health decision relating to AAD, the OPG may mediate or conciliate the dispute,5 or the Tribunal could make a direction under s 118 of the PA Act. Similarly, if HH and BB disagree about a specific financial decision, the Tribunal could make a direction resolving the dispute.[5] Whilst litigating discrete issues as they arise plainly inconveniences HH and BB, such an approach pays deference to AAD’s stated intention for both her husband and daughter to make decisions for her.

    [5] Public Guardian Act 2014 (Qld), s 12(d).

  1. Additionally, on the evidence presented to the Tribunal, I do not consider there is any foundation to HH’s claims that BB has coercively controlled AAD’s finances or restricted her access to healthcare to save money. Accordingly, that is not a basis to remove him as an attorney.

Should the Tribunal appoint a Guardian or Administrator for AAD?

  1. I turn now to the issue of whether a guardian or administrator ought to be appointed. Section 12(1)(b) and (c) of the GAA provides that the Tribunal may appoint a guardian for a personal matter or an administrator for a financial matter if it is satisfied that:

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

    (b)without an appointment –

    (i)      the adult’s needs will not be adequately met; or

    (ii)      the adult’s interests will not be adequately protected.

  2. As I articulated above, the 1st AHD and the 1st EPOA adequately provide for decision making about AAD’s health, personal matters (excluding contact) and finances. Therefore, in respect of those matters, I cannot be satisfied that her needs will not be met, or that her interests will not be protected without an appointment.

  3. However, the same cannot be said for decisions about with whom HH has contact. HH and her sisters’ contact with AAD was severely curtailed from about 5 February 2025 until the Tribunal made an interim order appointing the OPG to make contact decisions on 24 April 2025. That is unacceptable. The general principles of the GAA prioritise the maintenance of the adult’s existing supportive relationships[6] and provide that the role of families, carers and other significant persons in the adult’s life to support the adult to make decisions should be acknowledged and respected.

    [6] GAA, s 4.

  4. I reject BB’s evidence that he made no deliberate attempt to restrict contact. The obvious inference that can be drawn from the fact that contact immediately resumed following the appointment of the OPG is that BB discouraged AAD from contacting her daughters when his relationship with HH deteriorated after the failed attempt to obtain her signature on the new EPOA. To attribute the resumption of contact to mere coincidence is in my view improbable. Therefore, I am satisfied that it is necessary to appoint the OPG to decide who may have access visits to, or other contact with, AAD. Without such an appointment I am not confident AAD will have the opportunity to maintain the undeniably supportive relationships she presently enjoys with her daughters.

  5. It should be noted that by operation of operation of s 22(2) of the GAA, the existing 1st EPOA will be overtaken by the making of the guardianship appointment but only for contact decisions.

  6. Lastly, I do not consider it necessary to appoint the OPG to make decision about AAD’s travel. I am satisfied that BB is sufficiently chastened by his earlier ill-advised attempts to take AAD on long trips. At the hearing I formed the impression that he now possesses sufficient insight about the risk such travel poses without express consent from AAD’s medical professionals.

  7. As a final observation, it is plain to me that it is family dynamics and conflict, rather than any egregious deficiency or failing on the part of either HH or BB, that has caused this matter to come before the Tribunal. It is obvious that both HH and BB are deeply committed to AAD and have her best interests at heart. They have both acted protectively by strongly advocating for what they consider to be in AAD’s best interests. Unfortunately, that protectiveness brought HH and BB into conflict, but their genuine care and commitment for AAD is undeniable.

Application of the Human Rights Act 2019 (Qld)

  1. I am required to apply the Human Rights Act 2019 (Qld) (‘HR Act’) when deciding this matter. Section 58 of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights,[7] or, in making a decision, to fail to give proper consideration to a human right relevant to the decision.[8] A decision is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonably justifiable in accordance with s 13 of the HR Act.

    [7] HR Act, s 58(1)(a).

    [8] Ibid, s 58(1)(b).

  2. Here AAD’s right to property[9] and privacy,[10] and her right to not be subjected to medical treatment without her full, free and informed consent, will be limited by my decision. However, in my view that limitation is reasonable and justifiable to ensure she receives adequate access to her family.

    [9] Ibid, s 24.

    [10] Ibid, s 25.


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