DMB - [2015] QCAT 518

CITATION:

DMB [2015] QCAT 518

PARTIES:	DMB
APPLICATION NUMBER:	GAA11633-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

25 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Trustee of Queensland is appointed administrator for DMB for all financial matters.

2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.

3. This administration appointment remains current for (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

4. That before 23 December 2015 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.

(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.

5. 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.

CATCHWORDS:

GUARDIANSHIP – where adult has an interest in an estate – where bills were unpaid and adult at risk of losing some essential services – where decision making support needed to manage finances and to ensure that adequate provision has been made for the adult from the estate

INTERIM ORDER - where applicant is a family member and may have conflict of interest in making decisions about whether adequate provision made from the estate for adult – whether independent decision-maker more appropriate to consider feasibility of Family Provision claim - whether immediate risk of harm

Guardianship and Administration Act 2000 – s129

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

DMB is 39 years old. His father passed away in 2015 and he has left his estate to DMB and to another son, DC. The estate consists of the former family home where DMB resides, superannuation entitlements of his late father, a modest amount of cash and assets such as a car and furniture and a stamp album.
An application has been filed in QCAT by DA seeking the appointment of a guardian and administrator for DMB. The applicant is the aunt of DMB. Evidence provided to QCAT by Dr Robyn Barrett discloses that DMB had been cared for by his father all his life. Since the death of his father, DMB struggled to manage his affairs and activities of daily living. DMB had worked at Help Enterprises from 2005 to 2008 but he had found it difficult to use public transport to get to work and so he ceased work and has not re-entered employment since 2008.
According to the evidence provided to QCAT by Dr Barrett, DMB is unable to do many household tasks and cannot manage his finances, pay bills and budget. He is said to be easily influenced and coerced. He is not capable of obtaining meaningful employment.
A health professionals report by Dr Barrett states that DMB has been diagnosed with congenital Hypothyroidism. Dr Barrett stated that DMB does not understand the consequences of decisions and that he is not capable of operating a bank account, planning or operating his finances, or the consequences of not paying bills and that he does not understand legal documents.
Dr Barrett stated that DMB has an intellectual impairment that also affects his receptive and expressive language. Dr Barrett considered that DMB could not make simple or complex financial decisions due to his intellectual disability.
According to DA, DMB’s brother is currently making decisions for DMB and those decisions are not appropriate. In addition, DC is the executor of his father’s estate and DA expressed concerns that DC had withdrawn all the funds from his father’s bank account and was using his father’s credit card for his own expenses. Household and insurance bills were not being paid by DC placing the house where DMB lives and services to the household at risk.
DA also applied for an interim order appointing a guardian and administrator for DMB until the hearing of the substantive applications. QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129(1) of the Guardianship and Administration Act 2000 (the Act) without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
Her request for an interim appointment was triggered by information that the superannuation funds would be released very soon. DA wanted the ability to protect DMB’s financial position, to get clarity on the amount he was to be paid from the estate and superannuation fund and to be involved in the sale of assets such as the deceased’s car and in obtaining valuations of other assets in the estate.
Some of these tasks are carried out by the executor of the estate and an administrator would not have authority to be directly involved in some of the decisions referred to by DA in her application. However, it was clear that DA was also concerned about non-payment of household bills that would put DMB’s welfare and financial position at risk and whether DMB’s share of the distribution from his father’s estate was safely held until the hearing to appoint an administrator.
I was satisfied that DMB required immediate and effective decision-making support for financial matters. Bills for his household were unpaid, putting the continuation of essential services at risk. An administrator was needed to make immediate decisions to reduce the risk to DMB’s welfare.
The evidence suggested that part of the estate would be distributed in the near future and that the house may even be transferred into the names of the beneficiaries quite soon. If this distribution happened before the hearing of the applications by QCAT, then the overall financial position of DMB could be placed at risk if debts incurred by the estate were not paid from the funds of the estate but were left to DMB to pay from his own funds. It would also be necessary to seek an adjustment before distribution of the estate for DMB’s share of estate assets already removed from the estate by his brother.
However, more cogently an issue, it is possible that DMB’s share of the estate under the will of his father may be inadequate. DMB, due to his cognitive impairment and his inability to work, may require a greater than half share of his father’s estate. An administrator would have an obligation to seek advice on whether DMB has any reasonable basis to bring a Family Provision claim against the estate.
It was apparent from the interim order application by DA that she was not alert to whether the share of the estate left to DMB was adequate. This issue is a complex matter and would require difficult decisions to be made whether to put family members at odds in a Family Provision claim. A relative such as DA is likely to have a conflict of interest in seeking to prefer the interest of one nephew against the other.
Investigations must be undertaken at an early stage to ensure that proper advice about the feasibility of a claim can be obtained within the time period for bringing the claim. A delay in taking action could result in a loss to DMB.
I was satisfied that it was more appropriate to appoint The Public Trustee of Queensland as administrator on an interim basis than DA. An administrator independent of the family would not have any conflicts of interest when considering whether to incur costs in investigating and then bringing a Family Provision claim. No loss of opportunity in such a claim would occur during the period when the parties were waiting for the hearing of the substantive applications if The Public Trustee were to be appointed on an interim basis.