FK
[2017] QCAT 469
•18 December 2017
CITATION: | FK [2017] QCAT 469 |
PARTIES: | FK |
APPLICATION NUMBER: | GAA10697-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston |
DELIVERED ON: | 18 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Administrator is authorised to pay the gifts for Christmas and Birthdays set out in Table annexed to this Order totalling $67,000 for Christmas gifts and $45,500 for Birthdays a total of $112,500. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – whether conflict transaction – where the adult was in the practice of giving gifts to family members at Christmas, Birthdays and special events – with the adult’s independent advocate and family members are in support of the conflict transaction - where the adult’s accountant considers the level of gifts given is appropriate given the adult’s financial circumstances Guardianship and Administration Act 2000 (Qld), s 35, s 37, s 54 and General Principle 11 |
APPEARANCES: | |
| 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
On 4 September 2017, the Tribunal appointed GJ as Administrator for all financial matters for FK. GJ is the oldest daughter of FK. FK has five daughters and a son.
FK is a person of considerable financial means who was in the practice of giving monetary gifts to children, grandchildren and others at Christmas, birthdays and other special occasions.
The Tribunal has declared that FK lacks capacity for financial matters and the Administrator has brought a conflict transaction application for approval of the continuation of FK’s gift giving to family members and close friend.
FK’s advocate DK gave evidence to the Tribunal at the two hearings, which took place that FK supported the continuation of the practice of gift giving to her children, grandchildren and others. DK told Tribunal gift giving was important to FK.
The Tribunal made the following directions - The Tribunal directs the Administrator to:
a)Consult with family members around an appropriate policy for birthday and Christmas gifts by the adult to her children and grandchildren;
b)Develop the policy she considers appropriate given the adult’s financial circumstances;
c)File in the Tribunal and serve on the other parties an application for approval of a conflict transaction of the proposed policy, by:
4:00pm on 4 December 2017
On 15 November 2017 the Tribunal further directed the Administrator to:
a)prepare a Table setting out the actual amounts proposed during the financial year (including Christmas, birthdays and any other special occasions);
b)circulate the Table to all recipients, and give them seven (7) days to confirm they agree or disagree with the proposal in writing. If they object, a written objection must be provided, to be limited to one (1) page, and outlining clearly the grounds for their objection. If they agree they must confirm in writing their acceptance of the proposal;
c)engage a financial planner and provide the financial planner with a copy of the Table referred to in paragraph 1 (a):
d)obtain advice from the said financial planner regarding:
i)appropriateness of the proposed gifts given FK’s financial circumstances; and
ii)make recommendations on the most appropriate way for FK’s finances to be managed.
The Tribunal also directed the Administrator to file:
a)the Table of the proposed gifts;
b)a sworn document referring to the past practice setting out evidence of past practice as well as any other evidence to support the proposal;
c)file a copy of the financial planners advice;
d)file a copy of all acceptances and objections to the proposal as required by paragraph 1 (b).
The Tribunal had directed the Administrator to prepare a Table of proposed gifts and get the approval of family members to the proposal. Annexed to this Order is a Table setting out proposed Christmas gifting to 23 family members and a family friend totalling $67,000. Also annexed to this Order is a Table setting out the proposed birthday gifts to 48 family members and 1 friend totalling $45,500.
The Administrator has obtained positive responses from all but two of FK’s grandchildren. There are emails from 26 family members supporting the proposal. The Tribunal notes that HD daughter of FK and HDD grandson of FK queried payments to GJ’s children.
The Tribunal directed the Administrator to prove that it was the practice of the adult to give such gifts and the amount of such gifts. The Applicant has provided a sworn declaration that it was practice of FK to give monetary amounts at Christmas, birthdays and special events to members of her family for many years.
The Administrator declares that FK’s five daughters received the largest gifts:
a)Christmas 2015 and 2016 - $10,000;
b)Christmas 2013 and 2014 - $15,000; and
c)Birthdays 2015 to 2017 - $2,000.
The Administrator declared that FK’s grandchildren received:
a)Christmas 2016 - $1,000;
b)Christmas 2014 and 2015 - $2,000; and
c)Birthdays for several years - $1,000.
The Administrator declared that spouses of daughters and grandchildren have received $1,000 for their birthdays for several years but have not received a separate Christmas gift since about 2012.
The Administrator declares that great-grandchildren have received birthday gifts of $500 for several years but in 2015 and 2016 did not receive a separate Christmas gift.
The Administrator has provided copies of cheques showing:
a)payment of the sum of $10,000 to FK’s daughters and $1,000 to close friends at Christmas 2016;
b)payment of the sum of $10,000 to FK’s daughters at Christmas 2015; and
c)payment of the sum of $10,000 to FK’s daughters at Christmas 2014.
The Administrator has provided copies of cheques showing:
a)the payment of the sum of $2,000 to FK’s daughters and $1,000 to family friends for birthdays in 2017;
b)the payment of the sum of $2,000 to FK’s daughters and $1,000 to family friends for birthdays in 2016; and
c)the payment of the sum of $2,000 to FK’s daughters and $1,000 to family friends for birthdays in 2015.
The Administrator declares that FK has the financial capacity to make these gifts in the period 2017 – 2018.
The Tribunal directed the Administrator to obtain an opinion from FK’s financial planner as to her ability to make these gifts and the appropriateness of the gift giving in the context of FK’s financial circumstances.
The Administrator has obtained a statement from FK’s accountant CF who has acted as her accountant for a period 15 years. CF is of the view that FK can afford to continue her traditional gift giving for the year 2017 – 2018 and that this would be reconsidered depending on FK’s financial circumstances at the end of the period.
The Administrator has filed a Statement of FK’s financial situation as at November 2017. This shows FK in a very sound financial situation. This shows that FK has the financial capacity to make the gifts set out in her Application.
The letter from CF the Principal of HC Accountants confirms that FK was in the habit of making monetary gifts to family members at Christmas and birthdays and CF states that it does not appear that the proposed gifts of $114,250 cause any hardship for FK.
The Tribunal is satisfied that CF advice as FK’s accountant meets the Tribunal requirement in relation to independent advice as required by the Directions.
The Tribunal is satisfied that the Administrator has established:
a)a history of FK giving gifts at Christmas and birthdays;
b)evidence of the quantum of such monetary gifts;
c)the support of FK’s advocate DK to the continued practice of gift giving; and
d)evidence from FK’s accountant that she has the financial capacity to make gifts and that they are appropriate in FK’s financial circumstances.
The Tribunal respect of the matters raised by HD and HDD notes that:
a)they are the only family members to object and are only objecting in relation to a very small part of the proposal;
b)the adult’s advocate supports the gift giving proposal and states that there is no evidence of FK wanting to treat any family members differently;
c)there is evidence of FK making gifts to these family members;
d)the Administrator has provided an explanation for payments to these family members; and
e)the amounts in the context of the gift-giving program are very small.
The Tribunal is satisfied in the circumstances that the Tables for gifts for Christmas and birthdays reflects FK’s wishes. The Tribunal in the circumstances is prepared to approve the gifts as proposed by the Administrator for Christmas and birthdays.
An administrator is required by section 35 of the Guardianship and Administration Act 2000 (Qld) (“the Act”) to exercise decision-making power for an adult honestly and with reasonable diligence to protect adult’s interests. An administrator is prohibited by section 37 of the Act of entering into a conflict transaction unless authorised to do so by the Tribunal. A conflict transaction is a transaction with the duty of the administrator conflicts with the interests of the administrator or another person in close personal relationship with the Administrator. Having regard to an administrator’s duties, a conflict transaction may only be authorised by the Tribunal if it is to protect the interests of the adult. Conflict transactions may be authorised retrospectively.
Discussion of the evidence
The Administrator is required by principle 11 of the General Principles to act in a way that is appropriate to FK’s circumstances. The Administrator is required to act with honesty and with reasonable diligence in relation to the adult’s affairs. The Administrator is required to avoid conflicts of interest. The Act in section 54 deals specifically with the situation of gifts. The section provides that unless the Tribunal orders otherwise, an Administrator for an adult may give away the adults property only if:
a)the gift is
i)a gift of the nature of the adult would make when the adult had capacity
ii)a gift of the nature that the adult might reasonably be expected to make
b)the gifts value is not more than what is reasonable having regard to the circumstances and, in particular, the adult’s financial circumstances.
The circumstances of this matter are unique and unusual. There is a clear history of the adult making significant monetary gifts over many years to her family and close friends. The evidence in relation to the adult’s wishes are that she wants to continue her previous practice of making monetary gifts to her family and friends. The adult FK has substantial financial resources and the capacity to make substantial monetary gifts.
The Tribunal is satisfied on the basis set out earlier that the Administrator has met the requirements of section 54 of the Act. The gifting section goes on further and at section 54(2) of the Act it is stated that an Administrator which has a connection is not precluded from receiving a gift. The Administrator GJ is a daughter of FKs o that she has a connection. A gift to those connected with herself is not precluded. This section addresses the issues raised in section 37 of the Act.
The Tribunal has received independent evidence from FK’s advocate that she is supportive of the gift giving policy.
The Tribunal has required independent evidence from FK’s accountant that the gifts are appropriate to the adult’s financial circumstances.
The next issue for the Tribunal is the matter of FK’s best interests. The duty of the administrator to protect FK’s financial affairs.
The Tribunal notes that FK is a person of considerable personal wealth. The Tribunal accepts the evidence at the previous hearings that it has brought FK great joy over many years to share her wealth with her family namely her children, grandchildren, spouses and children and grandchildren and great-grandchildren. There is ample evidence that she had provided monetary gifts at Christmas, birthdays special events such as weddings and the birth of children.
While FK lacks the capacity to manage her financial affairs, her wishes and views need to be taken into account. FK has expressed her wish clearly and consistently to her independent advocate DK and to family members that she would like to continue making monetary gifts to family members and close friends.
FK has expressed her views and wishes to her Administrator that she would like to continue making monetary gifts to family members and close friends. Her administrator FK’s eldest daughter is well aware of her mother’s feelings, wishes, and past practices.
FK’s accountant of 15 years CF says that she has the means to continue to provide the traditional monetary gifts to family members.
FK is a 93 year-old lady whose family have always been important to her.
The Tribunal needs to balance the principal of taking into account FK’s wishes with the need for her financial position to be appropriately protected.
The Tribunal agrees with the Administrator that any approval should only be given for the period 2017 to 2018 and that at the end of that period a review of FK’s financial circumstances should take place and if appropriate, a fresh application for the approval of a conflict transaction should be lodged.
The Tribunal is of the view that FK’s best interests are served by approving the conflict transaction. FK has the capacity to make gifts. There is a documented history of FK making these types of monetary gifts. This decision takes into account the balance between respecting FK’s wishes and the requirement of an administrator to protect FK’s finances.
The evidence is that FK will retain sufficient assets to meet her future needs.
The Administrator acknowledged that the gift giving must take into account her mother’s financial circumstances and that the current application is only for the 2017 – 2018 period.
The Tribunal is of the view that the gift-giving program can be undertaken without unreasonably compromising FK’s financial position. Her interests are being protected but her wishes are also being served.
The Tribunal accepts that there will be some tension between the principles of respecting an adult’s wishes in terms of gift giving and protecting the adults financially. The Act makes it clear that the Tribunal can approve gifts in circumstances where there is a history of making such gifts. There is a history of making such gifts in this matter. The protection which the Act provides to an adult is that any such gifts must take into account the adult’s financial circumstances. FK is a person of considerable wealth. She has the capacity to make the gifts set out in the table. The Tribunal is satisfied in this matter that the Application records with FK’s wishes and should be granted. The Tribunal is satisfied that the making of the gifts in the circumstances outlined does properly consider the appropriate protection of FK’s financial circumstances.
The Tribunal makes the following findings:
a)FK has for many years made monetary gifts to family members and close friends at Christmas, birthdays and on special occasions;
b)FK’s expressed wish is for her tradition of making monetary gifts to family and close friends to continue;
c)FK has the financial capacity to make substantial monetary gifts to family members and close friends;
d)FK has expressed her wishes to her family and to her independent advocate;
e)FK’s accountant of 15 years standing is supportive of the level of monetary gifts. CF believes that FK has the financial capacity to make gifts and that the gifts are appropriate in her financial circumstances.
The Tribunal determination
The Tribunal for the reasons set out above makes the following Order.
The Administrator is authorised to pay the gifts for Christmas and Birthdays set out in Table annexed to this Order totalling $67,000 for Christmas gifts and $45,500 for Birthdays a total of $112,500.
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