BCC - [2021] QCAT 123

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BCC [2021] QCAT 123

PARTIES:

In applications about matters concerning BCC

APPLICATION NOS:

GAA13528-20 and GAA13529-20

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

9 April 2021

HEARING DATES:

12 February 2021 and 22 March 2021

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

GUARDIANSHIP

1.     BE is appointed as guardian for BCC for the following personal matter:

(a)     Provision of services, including in relation to the National Disability Insurance Scheme.

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

ADMINISTRATION

3.     BE is appointed as administrator for BCC for the following financial matter:

(a)     The interest held by BCC in the real estate situated at [redacted].

4.     The administrator is to provide a financial management plan to the Tribunal within three months.

5.     The Tribunal grants a full exemption to the administrator from the requirement to provide annual accounts but directs the administrator to keep records of dealings and transactions involving BCC’s real property situated at [redacted] and directs the administrator to provide to the Tribunal within twenty one (21) days of being notified that a review of the appointment has been commenced:

(a)     A list of BCC’s real property assets and liabilities; and

(b)    A signed and witnessed declaration as to the administrator’s continuing appropriateness for appointment.

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

NOTICE OF INTEREST IN LAND

7.     Before 22 June 2021, the administrator must:

(a)     Record their appointment as administrator on any property registered in BCC’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 BCC’s property; and

(ii)    A copy of the Titles Registry’s “Lodgement Summary Form” confirming the notice has been lodged for each property held by BCC.

(c)     If no property is held, provide a copy to the Tribunal of a record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.

8.     If the ownership of any property of BCC changes in any way or BCC 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 a notice to the Registrar of Titles about the changes to BCC’s interest in another property.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – presumption of capacity – where the Tribunal is satisfied the presumption of capacity has been rebutted – the adult was identified as having a 50% interest in real property – the adult’s father is the other 50% owner…

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.

Continue reading BCC

Details

AGLC: BCC [2021] QCAT 123
Case: [2021] QCAT 123
Decision Date

CaseChat Overview and Summary

This case involves BCC and the need for a guardian and an administrator to be appointed for him, specifically in relation to property and services. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT). The key legal issues were whether BCC required the appointment of a guardian and an administrator and, if so, who should be appointed to these roles.

The court examined the evidence and determined that BCC required the appointments of a guardian and an administrator due to his inability to make complex financial decisions and maintain his financial obligations. The court found that BCC's father's enduring power of attorney, BE, was suitable for the roles of both guardian and administrator, given her relationship with BCC, her knowledge of his needs, and her capacity to make decisions in his best interests.

The court concluded that the appointments were necessary to protect BCC's interests and ensure his needs were met. The court emphasised the importance of respecting BCC's privacy and making decisions in the least intrusive manner possible. The court appointed BE as BCC's guardian and administrator for decisions relating to the property in Cardwell and the provision of services, including those related to the National Disability Insurance Scheme (NDIS). These appointments are subject to review in one year.

The final orders are that BE is appointed as BCC's guardian and administrator for decisions relating to the property in Cardwell and the provision of services, including NDIS-related decisions. These appointments are to be reviewed in one year.

Orders

Orders of the court

Full text does not contain this section.

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

Therefore, it is appropriate for BE to be appointed as BCC’s administrator, but only for those decisions that are required in relation to the property he jointly owns with his father. Conclusion Before moving to appointing a decision maker for personal and/or financial matters, the Tribunal should be mindful of the application of the principle relating to respect for, and the preservation of BCC’s privacy prior to any decision being reached for an appointment of a decision maker. Notwithstanding that, what must also be identified is whether there is a need for the appointments of a guardian and administrator for him, or whether the matter may be resolved in the least intrusive manner. Considering the facts and circumstances of this matter, I am satisfied that a need exists for the appointments of a guardian and an administrator to be made. The appointments are only required for decisions relating to the provision of services for him, and the decisions relating to the administration of the real property he has an interest in. In turning to an appropriate appointee as guardian and/or administrator, I am mindful that the rehabilitation unit’s application originally urged the appointment of the Public Guardian. Any appointment of the Public Guardian should only be undertaken as of last resort when there is no other appropriate person available to be appointed.[24] [24]Guardianship and Administration Act 2000 (Qld), s 14(2). Overall, I am satisfied that BE is appropriate for the appointment as both guardian and administrator. Therefore, she is appointed for those decision making roles relating to BCC’s real property in Cardwell and the provision of services, including decisions relating to the NDIS. Those appointments are reviewable decisions and will be reviewed in one (1) year.

Ratio Decidendi

Legal Principle Established

Having regard to the issues just identified, and the suitability of BE as BCC’s guardian, her appointment for that role is appropriate. Without that appointment, there is an unreasonable risk of a conflict arising and BCC’s needs would not be adequately met, and his interests would not be adequately protected. Administration The Tribunal had previously determined that the appointment of an administrator for BCC’s financial matters was not necessary. At that time, the information provided to the Tribunal suggested that his financial position was not sophisticated in anyway. His only income was his fortnightly disability support pension. He had stable and secure accommodation of which he made regular payments towards his rent and other household expenses. His long association with Kith & Kin was noted and there is no evidence of a likelihood of BCC doing anything that would involve an unreasonable risk to his welfare or property. At that time, his financial needs were being adequately met and his interests were adequately protected. However, at that time it seems that the active parties involved in the matter were not aware of BCC being a 50% shareholder in property at Cardwell. His father owns the other 50%. Nor were the active parties aware that BE was his father’s attorney under an enduring power of attorney and his father has been relocated to an aged care nursing home in Sydney. Nor were they aware that BCC had not contributed to his share of the local council rates for the property. BCC’s only siblings are his two sisters. One sister resides in Sydney, and the other (BE), lives in Townsville. His father no longer has decisions making capacity and has been relocated to an aged care facility in Sydney. BE is his father’s attorney under an enduring power of attorney for both personal and financial matters. Although BCC is able to make financial decisions for his daily living, he does not have the capacity to make complex financial decisions. That incapacity has led to him failing in his responsibilities to maintain his financial responsibilities or obligations to the property he jointly owns with his father. Notwithstanding BCC being able to make simple financial decisions, I am satisfied that without the appointment of an administrator to make effective and appropriate decisions in relation to the property in Cardwell, there will be an unreasonable risk to his finances and property. Therefore, it is appropriate for BE to be appointed as BCC’s administrator, but only for those decisions that are required in relation to the property he jointly owns with his father. Conclusion Before moving to appointing a decision maker for personal and/or financial matters, the Tribunal should be mindful of the application of the principle relating to respect for, and the preservation of BCC’s privacy prior to any decision being reached for an appointment of a decision maker. Notwithstanding that, what must also be identified is whether there is a need for the appointments of a guardian and administrator for him, or whether the matter may be resolved in the least intrusive manner.

CITATION:	BCC [2021] QCAT 123
PARTIES:	In applications about matters concerning BCC
APPLICATION NOS:	GAA13528-20 and GAA13529-20
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	9 April 2021
HEARING DATES:	12 February 2021 and 22 March 2021
HEARD AT:	Townsville
DECISION OF:	Member Pennell
ORDERS:	GUARDIANSHIP 1. BE is appointed as guardian for BCC for the following personal matter: (a) Provision of services, including in relation to the National Disability Insurance Scheme. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION 3. BE is appointed as administrator for BCC for the following financial matter: (a) The interest held by BCC in the real estate situated at [redacted]. 4. The administrator is to provide a financial management plan to the Tribunal within three months. 5. The Tribunal grants a full exemption to the administrator from the requirement to provide annual accounts but directs the administrator to keep records of dealings and transactions involving BCC’s real property situated at [redacted] and directs the administrator to provide to the Tribunal within twenty one (21) days of being notified that a review of the appointment has been commenced: (a) A list of BCC’s real property assets and liabilities; and (b) A signed and witnessed declaration as to the administrator’s continuing appropriateness for appointment. 6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. NOTICE OF INTEREST IN LAND 7. Before 22 June 2021, the administrator must: (a) Record their appointment as administrator on any property registered in BCC’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 BCC’s property; and (ii) A copy of the Titles Registry’s “Lodgement Summary Form” confirming the notice has been lodged for each property held by BCC. (c) If no property is held, provide a copy to the Tribunal of a record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 8. If the ownership of any property of BCC changes in any way or BCC 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 a notice to the Registrar of Titles about the changes to BCC’s interest in another property.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – presumption of capacity – where the Tribunal is satisfied the presumption of capacity has been rebutted – the adult was identified as having a 50% interest in real property – the adult’s father is the other 50% owner…