CJP
[2013] QCAT 663
| CITATION: | CJP [2013] QCAT 663 |
| PARTIES: | CJP |
| APPLICATION NUMBER: | GAA237-13; GAA238-13; GAA290-13; GAA8051-13; GAA8052-13; GAA8070-13; GAA8071-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 19 September 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Presiding Member Casey Member Jarro |
| DELIVERED ON: | 19 September 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | DECLARATION ABOUT CAPACITY 1. The application for a declaration about the capacity of CJP is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. GUARDIANSHIP 2. The Adult Guardian is appointed as guardian for CPJ for decisions about the following personal matters: (a) Accommodation; (b) With whom CPJ has contact and/or visits; (c) Health care; (d) Provision of services. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years. ADMINISTRATION 4. The Public Trustee of Queensland is appointed as administrator for CPJ for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in three (3) years. NOTICE OF INTEREST IN LAND 8. That before 19 December 2013 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 9. 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 a notice to the Registrar about the changes or the adult’s interest in another property. ENDURING POWER OF ATTORNEY 10. The following Enduring Power of Attorney for CPJ is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 21 December 2012 appointing FJ and FP as attorneys for financial matters. |
| CATCHWORDS: | Guardianship and administration matters for adults - Capacity of adult – validity of enduring power of attorney – overtaking of enduring power of attorney – need for guardian and administrator – appropriateness of appointees Powers of Attorney Act 1998 |
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing:
CJP adult and applicant
FJ friend, applicant and financial attorney
CS son and applicant
WL niece and applicant (attended via telephone)
CD son
FP friend and financial attorney
RE sister (attended via telephone)
Chris McKelvey solicitor granted leave to represent CS and CD
REASONS FOR DECISION
History of the Application
CJP (the adult) is an 86 year old returned serviceman.
The adult was residing in his own home at Ormeau until his admission to Logan Hospital in October 2012.
On 31 October 2012, whilst the adult was hospitalized, the Tribunal received an application from FJ, a friend of the adult, seeking to be appointed as the adult’s guardian and administrator.
In November 2012 the adult was discharged from hospital and admitted to a residential aged care facility at Pimpama where he was to receive high-level care on a permanent basis.
In early December 2012 the adult left the nursing home and commenced residing in the home of FJ and her husband, FP.
On 3 December 2012 the Tribunal received an application from WL, the adult’s niece, seeking to be appointed as the adult’s guardian and administrator.
On 21 December 2012 the adult appointed FJ and her husband, FP, jointly as his Enduring Powers of Attorney for financial matters, with the power for financial matters to begin ‘when I become incapacitated to such an extent that I cannot make my own decisions’. The attorneys signed the acceptance on 21 December 2012.
On 8 January 2013 the Tribunal received an application for declaration about capacity from the adult.
On 18 September 2013 the Tribunal received an application from CS, the adult’s son, seeking to be appointed as the adult’s guardian and administrator.
The Legislation
The issues for the Tribunal, based upon the legislation, are:
a) Does CJP have capacity to make personal and/or financial decisions?
b) Is there a need for the appointment of a guardian?
c) If so, who is the most appropriate person for appointment?
d) Is there a need for the appointment of an administrator?
e) If so, who is the most appropriate person for appointment?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult.
The adult is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The Guardianship and Administration Act 2000 defines capacity as follows:
Capacity for a person for a matter, means the person is capable of:
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
The Tribunal has concurrent jurisdiction with the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the Powers of Attorney Act 1998. The Tribunal may overtake an Enduring Power of Attorney by appointing a guardian and/or administrator so that, in accordance with section 22(2) of the Guardianship and Administration Act 2000, the Enduring Power of Attorney can no longer be acted upon to the extent that the appointments have been made.
The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the Guardianship and Administration Act 2000.
If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for the adult, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000.
The evidence
In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below.
Does CJP have capacity to make personal and/or financial decisions?
The Tribunal had the benefit of several medical reports dating from October 2012 until September 2013. The reports are addressed below in chronological order.
Dr Dale Joyce Currey, a medical officer from the adult’s treating team at Logan Hospital, provided an undated report generated at the time of the adult’s admission to Logan Hospital. In the report she states she had known the adult for one week and had last seen the adult on 12 October 2012. Dr Currey submits that the adult was experiencing multiple medical conditions that included ETOH withdrawal and urinary tract infection with delirium. She provides the adult was non-compliant with medication and unable to exercise appropriate hygiene and self-care, having been found to be living in squalor prior to his hospital admission. She states that during his admission to Logan Hospital the adult had achieved a score of 16 out of 30 on the Mini Mental State Exam (MMSE) and 7 out of 10 on the Mental Status Questionnaire (MSQ) with deficits in the areas of orientation to time and place, attention, calculation, recall and repetition. Dr Currey did not consider the adult was able to operate bank accounts, pay bills, budget or plan for his financial future. In Dr Currey’s opinion the adult was able to make simple, not complex, health care, lifestyle/accommodation and financial decisions. Dr Currey also submitted that the adult was unable to understand all the criteria necessary to execute and revoke an Enduring Power of Attorney.
The Aged Care Assessment Team (ACAT) assessed the adult on 22 October 2012 during his admission to Logan Hospital. ACAT documentation indicates a history of excessive alcohol use and that on admission he was diagnosed with moderate malnutrition in the context of multiple medical conditions including unspecified dementia, and that the adult needed supervision/assistance with tasks in relation to self care (hygiene, bathing, dressing, toileting), transfers, mobility, health care and transport, along with social and community participation. ACAT documents state the adult has occasional short-term memory problems, long-term memory problems, disturbed sleep, depressive symptoms and confusion along with disorientation to time, place and person. He achieved a score of 16 out of 30 on the MMSE on 8 October 2012 (with a sub-score of 0/3 for recall). The adult was described as having poor initiative and needing encouragement and direction with all tasks. He was assessed by ACAT as eligible to receive residential aged care at a high level.
In his letter of 4 December 2012 Dr C Dias, a general practitioner, states that the adult achieved a score of 26 out of 30 on the MMSE administered on 16 February 2012. He provides the score did not indicate the identification of a significant cognitive impairment and that the adult did not have a diagnosis of dementia prior to his admission to Logan Hospital in October 2012 with an acute infection. Dr Dias further provides the adult achieved a MMSE score of 24 out of 30 on 4 December 2012, indicating the presence of a mild cognitive impairment, and that he advised the adult to seek a specialist/geriatric consult due to the diminishing MMSE scores in the context of a recent acute infection requiring hospitalization and a recent diagnosis of dementia.
Dr Janis Carter, a psychiatrist, initially examined the adult on 18 December 2012 and provides her opinion in a letter of the same day that ‘he has testamentary capacity and is able to make his own decisions’.
In a further report dated 11 January 2013 Dr Carter provides that in October 2012 the adult suffered from shingles and ‘did not cope well mentally’. Dr Carter states that the adult’s MMSE score of 24 out of 30 ‘indicates mild mental impairment’. She further states ‘he needs supervised care’ and ‘cannot live alone without supervision but can cope in the supervised situation he is currently living in’. Dr Carter further submitted ‘he can operate his own bank account and pay his bills’ and provided the opinion the adult is able to make all simple and complex personal and financial decisions and that he can understand all the criteria necessary to execute or revoke an Enduring Power of Attorney.
In an unsigned letter dated 23 January 2013 Dr Alan Parnham, a renal physician, states that ‘from my point of view he looks pretty good. I think he is in full command of his faculties’. He adds ‘I also don’t believe that he is an alcoholic’ and suspected that ‘the confusion (during admission to Logan Hospital October/November 2012) was due to pain relief and perhaps the anti viral medications which can cause confusion in a lot of elderly patients’. Dr Parnham reports he ceased the adult’s endep medication ‘that he was put on for confusion and depression. He doesn’t appear to have either of these at present’.
The Tribunal was provided with a copy of an Acute Resuscitation Plan dated 30 August 2013 signed by Dr R Hopkins, Authorizing Medical Officer, Metro South Health – Community Health, wherein Dr Hopkins has ticked a box indicating that ‘I believe that the patient has capacity to consent to and/or refuse medical treatment’. The adult’s medical conditions listed on the document are metastatic cancer and chronic kidney disease. Dr Hopkins incorrectly provides that FJ is the adult’s attorney for health matters and the adult’s Advanced Health Directive is kept at FP’s workplace.
In a final letter dated 11 September 2013 Dr Janis Carter, psychiatrist, states she has seen the adult on nine occasions since 15 December 2012, (with appointments occurring monthly except in May 2013 when the adult was in hospital), and that stress from harassment from family members has rendered him unable to ‘get around to making an application to the Department of Veterans’ Affairs to obtain his entitlements’ associated with his military service within the British Commonwealth Occupation Forces after World War II in Japan. Dr Carter states that ‘today I have provided a MMSE and he has been able to complete the test’. (Results were not provided). Dr Carter also submits the adult was able to correctly count backwards from 100 in 7’s using ‘paper and a biro’ and that such a task ‘requires more attention and concentration of memory to task than the MMSE’. Dr Carter stated the adult ‘reads the newspapers daily and can relate what he has read’ and that ‘sometimes what appears to be a cognitive defect is in fact hearing loss’. Dr Carter once again provided the opinion the adult ‘still has full testamentary capacity’.
Taking the above written medical evidence in isolation, the Tribunal could find that the evidence was unlikely to rebut the presumption that CJP has capacity to make personal and financial decisions. Against this, however, is the oral evidence of the adult himself.
CJP submitted he was able to make his own decisions and that there was ‘nothing wrong’ with him. He repeatedly told the Tribunal that the hearing was the result of ‘greed: g-r-e-e-d’ with reference to his family members.
He disputed the medical evidence stating there was ‘nothing wrong’ in how he was managing at his residence prior to his admission to Logan Hospital in October 2012 and that he enjoyed the in-home support provided by a friend on the weekends before his hospitalisation. He denied that during this time he was consuming excessive amounts of alcohol and that he was unable to manage daily self-care and household tasks. He said he was hospitalised due to ‘passing out’ and having ‘a memory block’. He claimed that hospital staff administered the ‘wrong drug’ during his admission, rendering him immobile.
The adult provided inconsistent evidence in relation to the circumstances around his admission to the nursing home, firstly stating it was FP, and then later that it was CD, who made the decision for him to receive permanent care at that location. Similarly, he stated the nursing home gave him the ‘wrong drug’ and that at this time he “wasn’t quite on the ball”.
CJP was unable to provide details about the circumstances that led to his departure from the nursing home to reside at the home of FJ and FP, except to say it was his decision. He said he intends to remain at his current location that he shares with FJ and FP, their four children and two international students. He said that other persons have moved out since his arrival.
The adult told the Tribunal he sees Dr Janis Carter every 2-3 months and was unable to state the reason for his continuing appointments with Dr Carter or if he had been diagnosed with a mental illness.
When answering questions in relation to his financial matters the adult required prompting to recall his assets.
While he was unable to provide details of his cash assets he could recall that he purchased a new Hyundai at some time earlier this year.
The adult could not inform the Tribunal about his current share portfolio, stating he ‘got cheated’ by his former financial advisors in relation to his shareholdings by $500,000 as ‘they gave it to their wives’.
The adult stated his only liability was in relation to an invoice from his former lawyer for $500, which he was reluctant to pay.
While CJP advised he received a Centrelink pension he could not provide information as to why, as a returned serviceman, he was not in receipt of a pension, or has access to services, from the Department of Veterans’ Affairs (DVA).
The adult provided inconsistent and contradictory evidence to the Tribunal in relation to his real property at Ormeau. CJP told the Tribunal that a ‘carer’, ‘a Kiwi’, has taken up residence in his Ormeau property. While he initially stated the ‘carer’ did not pay rent, he later advised the Tribunal that he forwarded the regular payments from the ‘carer’ in their entirety to FJ and FP to pay for his own board/lodgings. The adult inconsistently reported the amount and frequency of the regular payments by initially stating the payments were $130 per month, and then later stating the payments were $200 per month.
The adult provided varying evidence in relation to how the tenancy arrangement occurred, initially reporting he met ‘the carer’ through FP, later changing his evidence to ‘(CD) found them’. He was unsure if the arrangement commenced while he was in the nursing home or since he began living with FJ and FP. He did not know if a formal tenancy agreement had been signed. He did not know how to terminate arrangement. While the adult told the Tribunal that staff and Centrelink ‘know everything’ he was unable to advise of the effect the tenancy arrangement may have made on his pension or his taxation responsibilities. CJP told the Tribunal he had not advised Suncorp, his home/contents insurer, in relation to the tenancy arrangement.
Similarly, the adult’s oral evidence in relation to the Enduring Power of Attorney dated 21 December 2012 was contradictory and imprecise, with his responses including ‘I don’t know what this is’, ‘I can’t remember’ and ‘I cancelled it’. The adult also stated at this time that ‘he wanted full control’ but was unable to name the person to whom he was referring.
In response to questioning CJP was, however, able to express his views to the Tribunal that he would like FJ, solely or with FP, to make his decisions should he become unable to do so.
FJ and FP submitted that the adult could make his own personal and financial decisions. They said they had known the adult for 7 years and that they had introduced him to the individual who now resides in his property. They stated that 3 months ago the adult had given CD a vehicle and then immediately purchased a new Hyundai as a replacement vehicle. They said the adult ceased driving 9 weeks ago and that his vehicle was garaged at the home of FJ and FP.
FJ and FP submitted they were aware of their responsibilities to the adult under the Enduring Power of Attorney and that they question Dr Janis Carter at each of the adult’s monthly appointments in relation to the adult’s continuing ability to manage his finances. They provided that FJ receives a carer’s payment from Centrelink in relation to the adult at Dr Carter’s suggestion. They did not know if Dr Carter had diagnosed the adult with a mental illness. They further stated the adult did not make an Advanced Health Directive.
CD submitted that prior to the adult’s hospitalisation in October 2012 he had stayed with the adult on a twice-yearly basis. He said that in the 12 months preceding the adult’s admission he had observed a deterioration in the adult’s functional ability. He provided the opinion that the adult was presently ‘vague’ and vulnerable to influence as he has been ‘talked into where he lives’. He did not think the adult could manage his money or understand the benefits of consenting or not consenting to medical treatment.
CS and WL have had minimal contact with the adult in recent times. After hearing the adult’s evidence they separately confirmed their belief that the adult was unable to make decisions about his personal and financial matters and that he was vulnerable to influence and exploitation.
The Tribunal considered the varying evidence. The medical evidence provides that the adult’s cognitive functioning was significantly impaired during the admission to Logan Hospital in October 2012, and that by 4 December 2012 Dr Dias diagnosed the adult as having a mild cognitive impairment.
The Tribunal observes the disparity between the oral evidence of the adult and the recent medical evidence, particularly that of Dr Carter. The Tribunal is of the view that while Dr Carter, (a psychiatrist), may have concluded that the adult has the ability to make personal and financial decisions, the oral evidence of the adult himself does not, on any reasonable or objective basis, justify such a conclusion. The Tribunal finds that the medical evidence was not based upon specific analysis of the adult’s ability to identify the nature and consequences of his unique complex and intertwined personal and financial decisions, nor did the evidence address the adult’s ability to make complex decisions freely and voluntarily without being vulnerable to undue influence.
On balance the Tribunal places greater weight on the evidence of the adult in relation to his complex personal and financial matters in its determination of the adult’s decision-making capacity.
The adult did not demonstrate an understanding of his personal circumstances in relation to his complex co-morbidities and the type of treatment, care and service provision that is necessary to meet his increasing medical needs.
He was unable to demonstrate he understands the nature of his assets, income and expenditure. He is not cognisant of the complex issues involved in the tenancy of his residence and the implications of the arrangement on his Centrelink pension and taxation obligations.
The adult does not understand the nature and effect of an Enduring Power of Attorney and does not recall appointing FJ and FP as his financial attorneys.
Conclusion
The Tribunal makes findings that CJP demonstrates memory deficits, confusion and a lack of insight into his personal and financial matters.
He is vulnerable to influence and exploitation.
He is unable to understand the nature and effect of decisions in relation to his personal and financial matters, including the complex issues of appointing or revoking an Enduring Power of Attorney.
Having regard to the medical, written and oral evidence the Tribunal is satisfied that the presumption contained in General Principle 1of the Guardianship and Administration Act 2000 that presumes that the adult has capacity for personal and financial matters is rebutted.
Is there a need for the appointment of a guardian?
The adult is currently located in the home of FJ and FP, receiving assistance, support and supervision from FJ and a carer who visits the home when FJ works away from the home. Decisions are required in relation to the appropriateness of the adult’s accommodation now and in the future, in the context of his increasingly complex care needs.
Ongoing decisions are necessary in relation to the nature and extent of support services to be provided to the adult and such decisions are dependent on the circumstances of the adult’s accommodation.
Health care decisions will be required to ensure the adult receives appropriate treatment for a number of physical health conditions metastatic cancer and chronic kidney disease, and for mental health issues.
The adult has family members and friends who would like contact and/or visits with him. The evidence is that there is conflict between the adult and members of his support network, and between the adult’s family and friends. For example FJ has sought a DVO against the adult’s brother on her own behalf. Decisions are required in relation to nature, (including location, duration and frequency), of contact and/or visits the adult has with others.
Conclusion
The adult has a number of co-morbidities. His care requirements are complex. He requires a decision maker to ensure he receives appropriate medical treatment. It is essential that the adult be accommodated where he can receive care and service provision commensurate with his needs. It is necessary for the adult to have maximum opportunity to maintain supportive existing relationships.
Pursuant to section 12 of the Guardianship and Administration Act 2000 the Tribunal is satisfied there is a need for decisions in relation to accommodation, provision of services, health care and with whom CJP has contact and/or visits.
Who is the most appropriate person for appointment as guardian?
In their evidence to the Tribunal FP and FP submitted they commenced assisting the adult with his personal matters following requests from the adult and his two sons. FJ further submitted that she is available and willing to make personal decisions on behalf of the adult and in his best interests. FP supported her application.
CS submitted that despite a fractured relationship with the adult, he also remained willing and available to be appointed guardian for the adult. CD supported his application.
WL stated she was willing to be appointed as the adult’s guardian, and then paradoxically informed the Tribunal that due to the adult’s ‘belligerence, paranoia and aggression’ she would not be seeking contact with him.
The evidence is that FJ is currently benefitting financially from the adult being accommodated in her home, as she receives regular payments from the adult for board/lodging along with the carer allowance from Centrelink. The appropriateness considerations set out in section 15(1)(c) of the Guardianship and Administration Act 2000 provide that the Tribunal must consider the extent to which the adult’s interests are likely to conflict with those of a proposed guardian and/or administrator. Having regard to the appropriateness considerations the Tribunal is satisfied FJ would be unlikely to make decisions in relation to where the adult is to be accommodated without a conflict of interest.
Further, General Principal 8 contained within Schedule 1 of the Guardianship and Administration Act 2000 provides that the importance of maintaining an adult’s existing supportive relationships must be taken into account by decision-makers. Should the adult continue to be accommodated in her home FJ would be unable to objectively determine the nature and extent of contact and/or visits the adult would have with members of his family with whom she is in conflict, as such contact would occur within and/or from her home.
The evidence is that there has been conflict and poor communication processes between the adult’s family members and friends in relation to his personal matters. Due to the extent of conflict and poor communication processes that presently exist between the friends and family of the adult the Tribunal is not satisfied any of the proposed appointees would be able to effectively consult with each other or be receptive to variant opinions in a way that was consistent with the legislative requirements, including the General Principles.
Conclusion
Due to the level of conflict between members of the adult’s informal support network, and the conflict of interest FJ would have if she were appointed solely, the Tribunal concludes that the adult’s family and friends, or any combination of them, are not appropriate for appointment as guardian for the personal matters mentioned as they would be unable to discharge effective substituted decision-making for the adult.
Section 14(2) of the Guardianship and Administration Act 2000 empowers the Tribunal to appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
The Tribunal is of the view that an independent guardian is the only entity capable of complying with the General Principles, and would therefore be better placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. In this respect, as the Adult Guardian is an independent decision maker with extensive skills and experience, the Tribunal appoints the Adult Guardian as guardian for the adult for the matters mentioned. The appointment is reviewable and is to be reviewed in three years.
Is there a need for the appointment of an administrator?
The evidence pertaining to the adult’s current financial circumstances follows.
The adult’s assets include real property at Ormeau, cash assets in two accounts, a share portfolio, a motor vehicle and personal effects.
His income includes the Age Pension and rental income from his Ormeau property. CJP may be eligible to receive benefits from the Department of Veterans’ Affairs. Centrelink and the Australian Taxation Office will need to be advised of the current details of the adult’s income and any subsequent variations.
The adult’s expenditure includes medical and pharmaceutical payments, a contribution to household expenses (board/lodging) to FJ and FP, along with outgoings on his Ormeau property and motor vehicle.
His liabilities include a debt to his former lawyer.
Conclusion
The adult has assets, income, expenditure and liabilities that require management. The Tribunal is satisfied, pursuant to section12 of the Guardianship and Administration Act 2000, that there is a need for decisions pertaining to financial matters. There must be an adequate and effective decision making regime in place for CJP as otherwise his needs will not be met and his interests will not be protected.
Who is the most appropriate person for appointment as administrator?
By declaring the adult does not have capacity for financial matters the Tribunal has enlivened the Enduring Power of Attorney dated 21 December 2012.
There is insufficient evidence before the Tribunal to rebut the presumption that the adult had capacity on 21 December 2012 to appoint FJ and FP jointly as his financial attorneys, as the most recent medical evidence prior to the adult signing the document is that of Dr Janis Carter dated 18 December 2012 wherein Dr Carter provides the opinion that the adult ‘has testamentary capacity and is able to make his own decisions’.
The fact that there have been attorneys appointed is relevant in determining whether the adult’s needs would be met or whether his interests would be protected without an appointment of an administrator. The Tribunal must consider whether the appointed attorneys should start to act or whether the appointment of the attorneys should be made subject to the appointment of an administrator under section 22(2) of the Guardianship and Administration Act 2000.
FJ and FP are currently charging the adult to reside in their home. The cost of the adult’s board/lodging is equivalent to rental payment the adult receives from an acquaintance of FJ and FP.
Having regard to the appropriateness considerations set out in section 15(1)(c) of the Guardianship and Administration Act 2000 the Tribunal is not satisfied that FJ and FP would not have a potential conflict of interest in making financial decisions on the adult’s behalf in order to meet his needs and protect his interests when such decisions directly affect their financial well-being, particularly in relation to their household income and expenditure.
In addition, the sustained level of conflict and impoverished communication between the attorneys and members of the adult’s family would adversely impact on the ability of the attorneys and the proposed administrators to effectively liaise with all stakeholders in order to make informed decisions in the adult’s best interests.
Conclusion
Consequently, the Tribunal does not consider FJ, FP, WL or CS would be to discharge effective substituted financial decision making for the adult in a way that is consistent with the legislative requirements, including the General Principles.
The Tribunal is of the view that an independent administrator, free from any potential conflict of interest, would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters, and make decisions that best meet the adult’s needs in accordance with the General Principles.
In this respect, the Public Trustee of Queensland is an independent decision maker with extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.
Orders are made accordingly including that the Enduring Power of Attorney dated 21 December 2012 appointing FJ and FP jointly as attorneys for financial matters was overtaken and, in accordance with section 22(2) of the Guardianship and Administration Act 2000, can no longer be acted upon to the extent that the appointments have been made.