GA
[2013] QCAT 71
•25 January 2013
| CITATION: | GA [2013] QCAT 71 |
| PARTIES: | GA |
| APPLICATION NUMBER: | GAA10251-10 / GAA6618-11 / GAA1605-12 / GAA2408-12 / GAA7496-12 / GAA7497-12 / GAA9850-12 / GAA221-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 24 October 2011 and 22 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Member Ron Joachim, Member Dr Bridget Cullen, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Adult guardian is appointed as guardian for GA for decisions about the following personal matters: (a) Accommodation; (b) Health care. 2. Unless the Tribunal orders otherwise this appointment remains current for two (2) years. 3. The application by WT for leave to withdraw as administrator is granted. 4. The Public Trustee of Queensland is appointed as administrator for GA for all financial matters. 5. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 8. That before 22 February 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. 10. The Tribunal directs WT pursuant to s 32B to: (a) file in the Tribunal: (i) his final accounts of administrator; and (ii) any affidavit in response to the concerns raised by the Tribunal at the hearing on 22 November 2012 within 14 days of today; and (b) co-operate with Vincent’s Chartered Accountants in carrying out the audit on his and XYZ’s fees. 11a. The Tribunal appoint Vincent’s Chartered Accountants to carry out an audit in respect of the fees claimed by WT as administrator for GA under s 48 and of the fees for which WT is claiming reimbursement under s 47 for the work performed by XYZ for WT as administrator for GA. 11b. In performing its audit Vincent’s Chartered Accountants is to have regard to the following: (i) any worked billed to GA by XYZ for work performed by WT or XYZ generally which may have already been billed to GA Pty Ltd; (ii) any work where the attendance of both WT and KW is noted; (iii) whether or not the work billed by XYZ except for that performed by WT required the service to be performed by a person at the level of the person who performed the service; and (iv) any work which was performed by a person other than WT which was not capable of delegation by WT in his role as administrator. 11c. Vincent’s Chartered Accountants is to file its audit in the Tribunal within 14 days of the finalisation of the audit. 11d. The Public Trustee of Queensland is to ensure that the adult’s funds are made available to Vincent’s Chartered Accountants to enable it to carry out the audit. 12. The application for authorisation of a conflict transaction and the applications for directions for GA are adjourned to a date to be fixed. |
| CATCHWORDS: | Application for leave to withdraw by administrator – claim for remuneration and reimbursement of fees – consideration of compensation claims for former administrator – appointment of guardian Guardianship and Administration Act 2000, ss 12, 27, 47, 48, 59 |
APPEARANCES and REPRESENTATION (if any):
| WT | Represented by Mr P Freeburn, SC and Mr G Dickson Barrister, instructed by Carne Reidy Herd lawyers |
| JM Public Trustee of Queensland | Represented by Mr G Irvine, of HWL Ebsworth Represented by Mr I Campbell |
REASONS FOR DECISION
History of the applications
GA is in her eighties and until recently lived independently. Due to deterioration in her health, she now resides in an aged care facility. GA has four children – JM, WS, RG and BL. GA is the principal shareholder in a family company, GA Pty Ltd. The assets of the company consist of real estate holdings with an estimated value of $2,200,000 and bank accounts totalling approximately $900,000. In her personal capacity, GA also owns two flats overseas with estimated values of $1,500,000; holds approximately $330,000 of funds jointly with her daughter, WS, in bank accounts, and owns artwork with an estimated value of $150,000. Despite GA’s significant financial resources, her income is limited as none of the real property is presently tenanted.
There has been considerable dispute within the family on many fronts, particularly surrounding concerns held in relation to perceptions of financial advantage which some family members may have received from the company.
As a result of the settlement of a Supreme Court claim in 2010, WT was to be appointed as administrator of the company. The parties also agreed to support an application for WT to be appointed as administrator for GA under the Guardianship and Administration Act 2000. The Tribunal appointed WT as GA’s administrator for all financial matters on 27 May 2010.
WT has made several applications to the Tribunal, including an application for the authorisation of a conflict transaction and directions. The central issue for the Tribunal’s consideration was whether to authorise WT to enter a Deed of Settlement in relation to dealing with all of the assets of GA and the company; the fees charged by WT and XYZ and applications to the Supreme Court and the Tribunal. It was proposed that all of GA’s assets be sold along with those of the company, which had been placed in liquidation in 2011, and the proceeds be gifted into a trust to be established with GA as sole beneficiary during her life, and then her children. There were also gifts proposed to be made to GA’s children to purportedly equalise the gifting which had already occurred.
All of the children and WT were to execute the Deed, which also included a provision authorising the payments of remuneration to both WT and XYZ, for expenses that WT incurred in regard to GA’s administration. Until recently, WT had been a partner at XYZ, and is currently a consultant to the firm.
WT did not pursue the application for authorisation of a conflict transaction when it became clear that JM was not intending to execute the Deed, and a separate application was then made by WT in regard to the claim he had for remuneration[1] as GA’s administrator in the amount of $90,483.29. He also claimed for reimbursement[2] of expenses of $199,343.09, that he had incurred with XYZ. Some of the amounts he sought reimbursement for had already been paid by GA Pty Ltd, and were then added to GA’s loan account with the company. A consent order was made by her Honour Judge Kingham on 26 April 2012 which had the effect of restraining WT from paying to himself or XYZ any further amount in relation to his role as administrator for GA.
[1] Section 54 of the Guardianship and Administration Act 2000.
[2] Section 47 of the Guardianship and Administration Act 2000.
Actions of the Administrator
While it was intended that WT’s application for remuneration be heard at the hearing, the Tribunal was of the view that there was insufficient material before it to be able to hear and determine the application. The Tribunal indicated that having regard to the details of the fees and reimbursements disclosed in the material filed by WT, that it was of a mind to exercise its power to suspend[3] WT and have an audit of the fees and expenses to be claimed by him. WT considered his position, following which his Counsel made an oral application requesting the Tribunal’s leave to permit WT to withdraw[4] as administrator.
[3] Section 155 of the Guardianship and Administration Act 2000.
[4] Section 27 of the Guardianship and Administration Act 2000.
If the Tribunal grants WT leave to withdraw as administrator, it may then appoint someone else in the place of the current appointee.
Importantly, the Tribunal then noted that if WT was granted leave to withdraw as administrator, he would become a former administrator and by virtue of a Tribunal’s decision[5], this could pose potential difficulties in relation to his application for compensation and reimbursement.
[5] Re BH [2012] QCAT 179.
WT was then given an opportunity to reconsider his application for leave to withdraw, and his Counsel confirmed to the Tribunal that WT wished to continue with the application.
JM raised the issue of whether granting leave for WT to withdraw would affect the ability of JM to bring an application for compensation against WT. Based on the decision referred to above the Tribunal has previously determined that there was no right to bring an application for compensation against a former administrator.
There are no current applications for compensation against WT. JM has a current application before the Tribunal for the review of WT’s appointment as an administrator based on JM’s concerns in regard to WT’s performance of his duties as administrator.
The Tribunal notes that one of the issues raised by JM in his application concerned the remuneration and reimbursements claimed by WT. There were also concerns expressed in relation to WT’s performance of his role as administrator of the family company, and in his actions in respect of the flats located overseas.
WT’s application for remuneration and reimbursement remains before the Tribunal. WT will receive only the amount of remuneration and reimbursement that is ordered by the Tribunal subject to the matters mentioned below in regard to the concerns of the Tribunal in respect of the remuneration and fees. Whilst some remuneration has already been paid to WT, these payments were made by the family company, and therefore any claim in respect of those fees would be in respect of WT’s role as administrator of the family company. The Tribunal’s jurisdiction does not extend to WT’s role as company administrator, but extends only to WT’s appointment as administrator for GA in her personal capacity.
At all times that WT was administrator for GA, her daughter WS, who resides overseas was her attorney under an overseas power of attorney which appointment was registered with Office of the Public Guardian overseas. WT was not able to have his appointment recognised in that country to enable him to effectively deal with the flats, but was required in accordance with the consent order of the Tribunal mentioned above to make payment in regard to some fees and charges in respect of them.
Discussion
In exercising its powers, the Tribunal must act in accordance with the General Principles and ensure that GA’s interests are protected[6]. The current situation casts doubt on whether WT is able to protect those interests. This arises because his actions have been questioned both by other active parties, JM and by the Tribunal in terms of the claim for remuneration and reimbursement. To leave WT as an administrator for the purpose of enabling a future compensation claim to be brought against him is counterintuitive, in particular where considerable dissatisfaction exists in relation to the very issue of remuneration and reimbursement. The issue of WT’s compensation and reimbursement remains before the Tribunal and will be resolved even if WT is granted leave to withdraw as administrator.
[6]Section 11 and General Principle 7(5) of the Guardianship and Administration Act 2000.
The issue around whether a compensation order can be made against a former administrator and the question of whether a former administrator can make an application for remuneration and reimbursement raise similar risks in terms of whether the claims can properly be made under the Act. The quantum of the claim for remuneration and reimbursement is significant and it is unknown what any potential claim for compensation would be. WT’s claim for remuneration and reimbursement is currently on foot, whereas there is only speculation of a claim for compensation.
The Tribunal is satisfied that by granting WT leave to withdraw it is acting to protect GA’s interests by putting a finality to his dealings as her administrator and replacing him with the Public Trustee of Queensland – an independent professional organisation who is always available for appointment as administrator[7].
[7] Para 14(1)(b)(ii) of the Guardianship and Administration Act 2000.
Orders
The Tribunal grants WT leave to withdraw as administrator and appoints the Public Trustee of Queensland as administrator for GA for financial matters until further order of the Tribunal. The Administrator is to provide a financial management plan to the Tribunal within 4 months and accounts as requested.
The Tribunal had raised specific issues in regard to the applications for remuneration and reimbursement and directions are given for WT to respond to those issues within 14 days of the hearing. Those issues are:
a)It appears that WT may have delegated his role – conduct which the Tribunal regards as inappropriate;
b)It appears there are duplications in attendances, for example, on 2 July 2010 there was an attendance at the Commonwealth Bank by WT and KW for which $2,520 was billed: see XYZ invoice 175;
c)From the material supplied, in particular BH9 (July), there is an allowance of $1,260 – $630 for XYZ staff and $630 for WT;
d)WT’s personal claim is $38,000 and there are significant claims by XYZ, when the Tribunal’s experience is that these administrations usually cost in the vicinity of $10,000;
e)The Tribunal is concerned that, not only is there duplication of time by staff, but there are duplications where charging has occurred twice for the same work;
f)It is a concern that much of the work carried out was at the level of partner when a partner was not necessary to, for example, pay GA’s bills;
g)The Tribunal has an additional concern that WT has taken fees when he was not authorised by the Tribunal to take fees.
Having regard to the issues raised on the material before it, the Tribunal has determined that an audit[8] should be performed on the fees claimed by WT and XYZ, and appoints Vincent’s Chartered Accounting to carry out that audit. WT’s application in regard to remuneration and reimbursement and the other miscellaneous applications are adjourned to a date to be fixed.
[8] Section 153 of the Guardianship and Administration Act 2000.
Guardianship
JM also made an application for the appointment of a guardian to make personal decisions for GA. Before the Tribunal can appoint a guardian for GA it must be satisfied of the matters set out in section 12 of the Act. That is, (1) whether or not GA has impaired capacity for decisions in regards to personal matters; (2) whether there are personal decisions which are required to be made by GA; and (3) whether GA’s needs will not be adequately met or her interests will not be adequately protected without an appointment.
The most recent report in regard to GA’s capacity to make decisions is by Dr X, and is dated 25 August 2012. The report was prepared following a visit by Dr X to GA at her then residence the previous day. Dr X administered several screening tests to GA, resulting in scores of 6 ½ out of 10 on the Mental Status Questionnaire and 21 out of 30 on the Mini-Mental State Examination. GA was said to be articulate and co-operative, exhibiting a good sense of humour and fun. She was disoriented in time, but not in place. She managed simple mathematics. Dr X concluded that GA is not capable of abstract thought and has poor reasoning and decision making, even when prompted or led in conversation.
Dr X’s opinion was that GA has moderate cognitive impairment and poor executive function. She would be incapable of understanding complex financial issues or legal issues and could not cope with making any decision which required reasoning. She would require assistance in decision making in relation to personal, legal and financial matters.
JM stated that his mother’s recent surgery had increased her dementia. Sadly, she is not able to identify her grandchildren, and does not engage in an intellectual way in conversation.
WT stated that he had visited GA while she was recently in hospital and that he considered her to be lucid, at times.
The Tribunal is satisfied that GA has impaired capacity for personal decision-making as a result of the affects of dementia.
GA has ongoing health issues in regard to her cancer treatment. JM stated that while his mother was able to, she had refused surgery for cancer, but in October 2012 she was admitted to a hospital for a mastectomy. He expressed concern that he was unaware that she had been admitted to hospital, and told the Tribunal that he found her by contacting the hospital. Self-evidently, in circumstances where he found his mother only after a hospital call-around, JM was not consulted about his mother’s surgery. When he spoke to her, she could not tell him the details of her operation. He is concerned that his mother is in constant pain, and is not taking any medication for her cancer.
Following her stay in hospital, GA was placed in an aged care facility in the Southern suburbs. Again, JM expressed concern that he was not consulted in relation to his mother’s placement, and indicated that he found out his mother’s location through his sister. When he visited GA in hospital, JM says that he saw various documents in her room signed by RG, with him described as her carer in the documents. JM noted that his mother is also listed at another aged facility, located in the Northern suburbs where she historically has resided. If she was to move, this would require a decision in relation to accommodation.
The Tribunal is satisfied that there is a need for both health care and accommodation decisions for GA. Decisions of this kind can usually be made informally, and in regard to health decisions, there exists a statutory health regime facilitating such decisions[9]. It is expected that where family members make decisions for an adult with impaired capacity they do so not only in consultation with the adult to ensure that the decision as much as possible reflects their wishes[10], but consult and inform other family members, so that they may continue to be part of the adult’s support network[11]. It is clear that family consultation has not occurred in respect of the health care and accommodation decisions for GA, and the Tribunal is satisfied that there is then a need for a formal guardian for GA.
[9] Sections 62 and 63 of the Powers of Attorney Act 1998.
[10] General Principle 7(3) of the Guardianship and Administration Act 2000.
[11] General Principle 8 of the Guardianship and Administration Act 2000.
As mentioned above, GA’s children do not enjoy good sibling relationships. This unfortunate reality is evidenced by the lack of communication which occurred when their mother was admitted to hospital, and then placed in an aged care facility. JM has nominated the Adult Guardian, the independent statutory appointee, as guardian. The Tribunal can only appoint the Adult Guardian if there is no other appropriate person available for appointment[12]. The other options for appointment as guardian for GA are her children, none of whom have formally put themselves forward as proposed appointees.
[12] Section 14(2) of the Guardianship and Administration Act 2000.
Having regard to the troubled and litigious relationships that characterise GA’s children’s mis-trusting relationships with each other, it is entirely unlikely that they would be able to satisfy the Tribunal of their ability to set aside their long standing conflicts to be able to have regard to the general principles, particularly those principles requiring consultation and the maintenance of the adult’s supportive networks. The Tribunal is satisfied that there is no other appropriate person, and appoints the Adult Guardian as guardian for GA for decisions about accommodation and health care for a period of two years.