AF

[2011] QCAT 199

CITATION: AF [2011] QCAT 199

PARTIES: AF

APPLICATION NUMBER:   GAA9728-10 / GAA9732-10 / GAA1086-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 27 April 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1]    Applications dismissed.

CATCHWORDS:  Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Nil
RESPONDENT:	Nil

REASONS FOR DECISION

1. On 1 December 2010 the Queensland Civil and Administrative Tribunal received an application from BMV the granddaughter of AF.

1. In this application she sought to be appointed as both guardian and administrator for her grandfather along with her brother ARJ.  The application was supported by a Health Professionals Report which was completed by a social worker, RE from Queensland Health.

1. This report indicates that AF has a fluctuating ability to understand and act on information in respect of his personal health care.  It also indicated that he believes at times he has been kept in hospital against his will and other times says he wishes to stay in the hospital.  The report also indicates that he would not be able to understand the six (6) criteria necessary to execute an enduring power of attorney.  Indeed the report indicates he understands none of those concepts.

1. He is said to have a late onset paraphrenia with an eccentric personality forming part of his history.  He is said to be able to make simple decisions only in relation to personal health care and unable to make the simplest of decisions in relation to finance, lifestyle and accommodation choices.

1. The consideration of this application is complicated by the fact that AF executed an enduring power of attorney in October 2008, in which he appointed his late wife and the Adult Guardian as guardians for him to make decisions about personal and health matters and at the same time he appointed The Public Trustee of Queensland and his wife to make decisions about finances immediately.

1. AM, the first attorney, has since passed away.  As a result the Adult Guardian and the Public Trustee are attorneys for personal and financial matters respectively.  When the Tribunal considers an application for guardianship and administration it needs to be satisfied that the adult does not have capacity for decision making and that a need exists for a decision maker.

1. On the face of it, it does not appear there is any need for a decision maker as appropriately appointed attorneys are in place.

1. The applicant in correspondence to the Tribunal, indicates a degree of unhappiness with the actions of the Public Trustee.  She refers to issues relating to Centrelink and the completion of forms not being managed in a timely way.  Moreover she advises that her grandfather would not have understood that by appointing the Public Trustee and the Adult Guardian they would be making decisions for him whilst he was alive.

1. She says that he is very distrustful of Government Departments and wants the two grandchildren to be decision makers for him.  No evidence has been provided to the Tribunal that AF lacked capacity when executing the enduring power of attorney in October 2008.

[10]  The evidence today however is that he does not have capacity to execute an enduring power of attorney as evidenced by the health professional report completed in November 2010 by RM.

[11]  Subsequent correspondence to the Tribunal by BMV and ARJ has been taken to be an application for an order about an enduring power of attorney.  This is contained in a statement from them received by the Tribunal on 3 February 2011.  BMV and ARJ suggest that at the time of making the enduring power of attorney they were only minors and that would have been reason why he didn’t use them and chose the Public Trustee instead.

[12]  As noted above the enduring power of attorney was executed on 31 October 2008.  BMV was born in July 1972 which would have made her 35 years old at the time the document was executed.  ARJ was born on 1 August 1974 which would have made him 34 years at the time the document was executed.  They were therefore not minors but adults in their thirties.

[13]  One of the issues about which the applicants were concerned was that the adult was living in Townsville.  He has now been moved by the Adult Guardian to Birkdale in Brisbane, closer to the grandchildren.

[14]  There appeared to be no other issues relating to the decisions of the Adult Guardian about which the applicants were questioning.  Indeed in their statement received by the Tribunal on 8 February they note that they have been visiting AF in the nursing home and he is now quite settled and happier with frequent visits.

[15]  On 3 March 2011 the Tribunal Registry wrote to the applicant BMV and advised her that she should provide further written comments to the Tribunal by 18 March 2011 as to why the Tribunal should proceed to hearing and consider changing the terms of the current enduring power of attorney.  She was advised that if no response was received the application would be referred to the Tribunal for consideration of dismissal.

[16]  BMV responded to this invitation indicating that the Public Trustee had not completed various paper work and was costing her grandfather money.  She did not believe they were acting properly and promptly.  She also submitted that her grandfather had no regards for any Government Departments and would be very distressed if he were told the Public Trustee had control of all his money.

[17]  She was also concerned about the Public Trustee’s efficiency in respect of his late wife’s estate.  She noted there had been four different officers of the Public Trustee appointed to his file.

[18]  The Tribunal is not satisfied that there are any grounds made out to justify this application proceeding to a hearing.  There is no prima-facie evidence that the adult lacked capacity to execute the enduring power of attorney.  There is no evidence that the Adult Guardian and the Public Trustee have breached any of the provisions of the Powers of Attorney Act 1998 in exercising their powers under the enduring power of attorney.

[19]  Whilst the applicant may be concerned about some of the actions of the Public Trustee taking longer than she would have wished, this does not demonstrate that they have not acted with reasonable diligence.

[20]  The applicant is able to use the Public Trustee complaint system to address issues of the kind that she has raised.

[21] In all the circumstances the Tribunal finds that the applications lack substance and will be dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009.