BAR - [2018] QCAT 278

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BAR [2018] QCAT 278

PARTIES:

In applications about matters concerning BAR

APPLICATION NO/S:

GAA12495-17, GAA1191-18, GAA7394-18; GAA7682-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

Date of orders 1 August 2018
Reasons delivered 14 August 2018

HEARING DATE:

25 January 2018; 22 February 2018; 29 March 2018;
2 July 2018

HEARD AT:

Southport

DECISION OF:

Member Joachim

ORDERS:

GUARDIANSHIP

1.   The application by DY for the appointment of a guardian for BAR is dismissed.

ADMINISTRATION

2.   The administration order made by the Tribunal on 25 January 2018 is changed by removing the Public Trustee of Queensland as administrator and appointing Australian Unity Trustee Limited as administrator for BAR for all financial matters.

3.   The administrator is to provide a financial management plan to the Tribunal within four (4) months.

4.   The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

5.   This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.

NOTICE OF INTEREST IN LAND

6.   Before 31 October 2018 the administrator must:

(a)   Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b)   Provide confirmation to the Tribunal that this has been completed by providing:

i)     A copy of the title search conducted identifying the adult’s property; and

ii)   A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult.

(c)    If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.

7.   If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:

(a)   Give a copy of this order to the Registrar of Titles; and

(b)   Give notice to the Registrar about the changes or the adult’s interest in another property.

ENDURING POWER OF ATTORNEY

8. The following Enduring Power of Attorney for BAR is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998:

(a)   The Enduring Power of Attorney dated 26 October 2015 appointing SW as attorney for financial, personal and health matters.

COSTS

9.   The application for costs by BAR is dismissed.

DIRECTIONS

10. That the administrators, Australian Unity Trustees Limited, do all things necessary to ensure that the proceeds of the sale of the attorney’s property (which was purchased with funds given to her by BAR) and held by Gall, Stanfield and Smith, Solicitors are returned to the adult.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where applicant seeks the appointment of a guardian – where appointment of an administrator is being reviewed – where there are allegations of financial abuse – where adult has made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BAR [2018] QCAT 278
Case: [2018] QCAT 278
Decision Date: 14 August 2018

CaseChat Overview and Summary

The case involved BAR, who sought the appointment of a guardian, and DY, who applied for the appointment of an administrator. The dispute arose in the context of allegations of financial abuse and the need for a substitute decision-maker due to concerns over BAR's capacity for decision-making. The matter was before the Tribunal, which had previously appointed the Public Trustee of Queensland as the administrator. The Tribunal had to determine whether BAR had impaired capacity for decision-making, whether she had been unduly influenced, and whether an alternative administrator should be appointed. Additionally, the court considered whether costs should be awarded.

The legal issues the court had to decide included whether BAR had impaired capacity for decision-making, whether she had been unduly influenced, and whether there was a need for a substitute decision-maker. The court also had to consider whether the existing administrator should be replaced and whether costs should be awarded to any of the parties involved. The court needed to balance the rights of BAR with the need to protect her from financial abuse and ensure her best interests were being met.

The Tribunal found that while BAR did not require a guardian, there was a need for an alternative administrator to be appointed due to concerns about financial abuse and the management of BAR's assets. The Tribunal dismissed the application for a guardian but appointed Australian Unity Trustee Limited as the new administrator, replacing the Public Trustee of Queensland. The Tribunal also directed the new administrator to provide a financial management plan and accounts to the Tribunal when requested. The Tribunal revoked an existing Enduring Power of Attorney and directed the new administrator to ensure the proceeds of the sale of the attorney's property were returned to BAR.

The final orders included dismissing the application for a guardian, appointing Australian Unity Trustee Limited as the new administrator, directing the administrator to provide a financial management plan and accounts, revoking an existing Enduring Power of Attorney, and dismissing the application for costs. The Tribunal also directed the new administrator to ensure the proceeds of the sale of the attorney's property were returned to BAR and to record the appointment as administrator on any property registered in BAR's name.

Orders

Orders of the court

GUARDIANSHIP

1. The application by DY for the appointment of a guardian for BAR is dismissed.

ADMINISTRATION

2. The administration order made by the Tribunal on 25 January 2018 is changed by removing the Public Trustee of Queensland as administrator and appointing Australian Unity Trustee Limited as administrator for BAR for all financial matters.

3. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.

NOTICE OF INTEREST IN LAND

6. Before 31 October 2018 the administrator must:

(a) Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b) Provide confirmation to the Tribunal that this has been completed by providing:

i) A copy of the title search conducted identifying the adult’s property; and

ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult.

(c) If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.

7. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes:

(a) Give a copy of this order to the Registrar of Titles; and

(b) Give notice to the Registrar about the changes or the adult’s interest in another property.

ENDURING POWER OF ATTORNEY

8. The following Enduring Power of Attorney for BAR is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998:

(a) The Enduring Power of Attorney dated 26 October 2015 appointing SW as attorney for financial, personal and health matters.

COSTS

9. The application for costs by BAR is dismissed.

DIRECTIONS

10. That the administrators, Australian Unity Trustees Limited, do all things necessary to ensure that the proceeds of the sale of the attorney’s property (which was purchased with funds given to her by BAR) and held by Gall, Stanfield and Smith, Solicitors are returned to the adult.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	BAR [2018] QCAT 278
PARTIES:	In applications about matters concerning BAR
APPLICATION NO/S:	GAA12495-17, GAA1191-18, GAA7394-18; GAA7682-18
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	Date of orders 1 August 2018 Reasons delivered 14 August 2018
HEARING DATE:	25 January 2018; 22 February 2018; 29 March 2018; 2 July 2018
HEARD AT:	Southport
DECISION OF:	Member Joachim
ORDERS:	GUARDIANSHIP 1. The application by DY for the appointment of a guardian for BAR is dismissed. ADMINISTRATION 2. The administration order made by the Tribunal on 25 January 2018 is changed by removing the Public Trustee of Queensland as administrator and appointing Australian Unity Trustee Limited as administrator for BAR for all financial matters. 3. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. NOTICE OF INTEREST IN LAND 6. Before 31 October 2018 the administrator must: (a) Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: i) A copy of the title search conducted identifying the adult’s property; and ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. (c) If no property is held, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 7. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) Give a copy of this order to the Registrar of Titles; and (b) Give notice to the Registrar about the changes or the adult’s interest in another property. ENDURING POWER OF ATTORNEY 8. The following Enduring Power of Attorney for BAR is revoked pursuant to s 116(d) of the *Powers of Attorney Act* 1998: (a) The Enduring Power of Attorney dated 26 October 2015 appointing SW as attorney for financial, personal and health matters. COSTS 9. The application for costs by BAR is dismissed. DIRECTIONS 10. That the administrators, Australian Unity Trustees Limited, do all things necessary to ensure that the proceeds of the sale of the attorney’s property (which was purchased with funds given to her by BAR) and held by Gall, Stanfield and Smith, Solicitors are returned to the adult.
CATCHWORDS:	GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where applicant seeks the appointment of a guardian – where appointment of an administrator is being reviewed – where there are allegations of financial abuse – where adult has made…