DNS

[2024] QCAT 403

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DNS [2024] QCAT 403

PARTIES:

In an application about matters concerning DNS

APPLICATION NO/S:

GAA14924-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

26 August 2024 (ex tempore)

HEARING DATE:

26 August 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne (Presiding)

Senior Member Brown

ORDERS:

1.     The financial management plan detailed in the Provision of Statement of Advice dated 8 November 2023 is approved.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – whether adult has decision-making capacity for complex financial matters – where presumption of capacity is rebutted – whether financial management plan should be approved

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal identified human rights affected by the decision – where the Tribunal considered the decision was compatible with human rights – where the Tribunal considered limits to human rights were reasonable and justified

Human Rights Act 2019 (Qld), s 13, s 48

Guardianship and Administration Act 2000 (Qld), s 7(a), s 11, s 11B, s 20, s 51

APPEARANCES & REPRESENTATION:

Adult:

Self-represented

Administrator

T Henley of Equity Trustees Wealth Services Ltd

REASONS FOR DECISION

1. Senior Member Browne: This is a hearing concerning DNS, before the Tribunal on the 26^th of August 2024 and before Senior Member Browne presiding together with Senior Member Brown. The matter before the Tribunal is the approval of a financial management plan.

2. The Tribunal has the power under section 20 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) to approve a financial management plan. Practice Direction 2 of 2007 of the Queensland Civil and Administrative Tribunal requires a matter involving funds in excess of $750,000.00 to proceed to an oral hearing. We must determine whether the financial management plan, being the Provision of Statement of Advice, a confidential document dated the 8^th of November 2023 for DNS, should be approved.

3. It is important to set out relevant background information giving rise to the matter before the Tribunal. By Supreme Court Order dated the 27^th of April 2023, DNS was awarded damages and Equity Trustees Wealth Services Ltd were appointed as an administrator for DNS to receive and manage the balance of the compromise sum after deduction of amounts specified in the order.

4. The administrators were also given power to invest by section 51 of the Act and were directed to provide a financial management plan to the Tribunal for approval. The documents filed in the Supreme Court, including affidavits by DNS’s litigation guardian and father, NCX, refer to a motor vehicle accident on the 10^th of February 1999 when DNS was less than one year of age where he sustained severe injuries, including head injuries, causing damage to his brain.

5. DNS is now 26 years of age and it is, in the Tribunal’s view, necessary to consider DNS’s capacity for financial matters. That includes, more broadly, investing in authorised investments, paying expenses, and managing his funds received by the Supreme Court Order that is detailed in the proposed financial management plan.

6. This is because there is a presumption at law that DNS has capacity to make decisions about his financial matters. The presumption can be found in section 7(a) of the Act and, importantly, section 11 and section 11B. Implicit in the sections referred to is the presumption of capacity. Capacity, defined under schedule 4 of the Act for a person for a matter, means the person is capable of: understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way.

7. The Tribunal accepts the evidence contained in the affidavit of Scott Keft, who is a solicitor at Maurice Blackburn Cashman, sworn on the 19^th of April 2023, who details medical evidence relevant to DNS’s capacity. There is reference to Dr Campbell, Neurosurgeon, who, on the 28^th of November 2016, reported a closed head injury, cognitive deficits, right facial weakness, right arm/leg weakness and poor coordination and balance. A further report dated the 28^th of August 2020 reported ongoing cognitive deficits. There is a report of Linda Troy, Neuropsychologist, dated the 12^th of December 2016 which reported deficits in reasoning, planning and organisation, memory and ability to process information, and vulnerability to the influence of others. In a further report of Linda Troy on the 25^th of March 2021, there is reference to major neurocognitive disorder due to a traumatic brain injury and behavioural disturbance, and a moderate intellectual disability.

8. The Tribunal accepts the evidence and finds that the presumption of capacity for complex financial matters that includes, more broadly, investing in authorised investments, paying expenses and managing funds received by a Supreme Court Order that is detailed in a proposed financial management plan is rebutted. The Tribunal is satisfied that DNS has no capacity to make complex decisions due to a severe traumatic brain injury following a motor vehicle accident on the 10^th of February 1999.

9. In relation to the proposed plan that the Tribunal is required to consider today, the Provision of Statement of Advice is comprehensive, comprising 100 pages, and was prepared by an authorised financial planner. In particular, it was prepared for DNS by Daniel George who is an authorised representative from Vincents LifeVantage Pty Ltd. The Tribunal heard from a representative from the financial advisor. The plan was prepared following consultation with DNS and his family and the administrator gathered information about his ongoing medical needs.

10. The main goal of the plan is to ensure compensation awarded will last for the duration of DNS’s life. This is the primary goal. Strategies were considered and it was decided to contribute money into superannuation environments and to link back to investment portfolios to ensure that the funds last for DNS’s lifetime. This has advantages, including tax advantages, and enables DNS to access funds when needed. Money has been invested across three schemes to manage risk to ensure DNS’s money has long term capital growth with funds available for ongoing and daily living, medical and other financial costs.

11. DNS’s investor profile is a growth profile so the profile is growth focused. Also considered were the current and future medical costs, and again, DNS has the ability to draw superannuation payments and has an annual pension that is sufficient to cover costs. The Tribunal is satisfied and finds accordingly that the plan details the funds received by order of the Supreme Court and describes DNS’s current financial circumstances and future plans for managing funds.

12. The plan is prepared by a qualified financial advisor and identifies current income, expenses, liabilities, and future expenses that may be necessary due to ongoing care needs. There are strategies for managing the funds including investments in superannuation that satisfy the prudent person rule. The plan was prepared in consultation with DNS and his family, and given DNS’s age, projections based on a number of assumptions as to DNS’s future care and living needs are reported. These include, for example, costs of living and other expenses, inflation rates and investment returns. The report demonstrates DNS’s continuing cash flow to meet his living expenses to normal life expectancy, and the plan also documents how the strategies and investment portfolio will be reviewed.

13. The Tribunal is required to consider DNS’s relevant human rights that may be engaged and limited by the making of this order. This is a requirement under the Human Rights Act 2019 (Qld), and the requirement under section 48 to interpret all statutory provisions to the extent possible consistent with their purpose in a way that is compatible with human rights.

14. The following human rights are limited and engaged by the making of the Tribunal’s orders: DNS’s right to be recognised as a person before the law, and DNS being entitled to equal protection of the law without discrimination. Also relevant is DNS’s right to not be arbitrarily deprived of his own property, and his right to privacy and reputation that will be impacted because his personal and sensitive information is shared with others. Finally, the right to a fair hearing is relevant. However, DNS participated in the hearing by remote conferencing, and the Tribunal was able to hear from DNS in his own words about the hearing and also the proposed orders.

15. The rights limited by the operation of the Act, which provides for the appointment of substituted decision makers to make decisions for a person who is found to have impaired decision-making capacity for a relevant matter, and also the approval of a financial management plan, are considered in the context of the legislative regime. That is, the Act seeks to strike a balance between: the right of an adult with impaired capacity to the greatest possible degree of autonomy; in decision making and the adult’s right to adequate and appropriate support for decision making.

16. The Act acknowledges the right of a person with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. Further, the General Principles that reflect relevant rights of a person with impaired decision-making capacity must be applied by a person or other entity that performs a function or exercises a power under the Act. The Tribunal is satisfied that the limits imposed on DNS’s human rights by the making of this order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld).

17. The Tribunal has applied the Act, including the General Principles, and is satisfied that the orders made are necessary and the least restrictive based on the information before the Tribunal.

18. The Tribunal has also considered that the following documents may be credible, relevant and significant to an issue in the proceeding, in accordance with section 103 of the Act. The documents are: the Notice of Hearing dated the 5^th of August 2024; the Supreme Court Order dated the 27^th of April 2023; the affidavit of Madeline Bowmaker; the affidavit of NCX; and the affidavit of Scott Keft. The order will be that the financial management plan detailed in the Provision of Statement of Advice dated the 8^th of November 2023 is approved.