GDA
[2018] QCAT 200
•22 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
GDA [2018] QCAT 200
PARTIES:
In applications about matters concerning GDA
APPLICATION NO/S:
GAA3129-18, GAA3130-18
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
22 June 2018
HEARING DATE:
8 June 2018
HEARD AT:
Brisbane
DECISION OF:
Member Casey
ORDERS:
1. GM and WK are appointed jointly and severally as guardians for GDA for the following personal matters:
(a) Health care; and
(b) Provision of services, including in relation to the National Disability Insurance Scheme.
These appointments remain current until further order of the Tribunal. These appointments are reviewable and are to be reviewed in 5 years.
2. The appointment of the Public Trustee of Queensland as administrator for GDA is continued.
The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.
CATCHWORDS:
GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPROVAL AND APPOINTMENT – where adult has an interest in an estate – where decision-making support needed to manage personal matters and finances and to ensure that adequate provision has been made for the adult from the estate – where applicant is a family member and may have conflict of interest in making decisions about whether adequate provision being made from the estate for adult – where applicant and proposed appointees are respondents in Family Provision claim – whether independent decision-maker more appropriate to progress Family Provision claim
Guardianship and Administration Act 2000 (Qld), s 12,
s 14, s 15, s 31, Schedule 1, Schedule 4DMB [2015] QCAT 518
APPEARANCES & REPRESENTATION:
Applicant:
GM, brother of GDA
Others:
WK, sister of GDA
WM, husband of WK
C Newell, Public Trustee of Queensland
N Behrbohm, Office of the Official Solicitor
REASONS FOR DECISION
GDA (the adult) is 52 years old. He resides with two co-tenants in a Department of Housing property and receives 24-hour support for accommodation, respite and community access. The appointment of the Public Trustee of Queensland as the administrator for the adult for all financial matters was continued by the Guardianship and Administration Tribunal on 30 November 2009, following the original appointment of the Public Curator as the manager of the adult’s estate in 1987 under the Mental Health Act 1974 (Qld) (now repealed) and the transition provisions of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’).
On 26 February 2018, the Tribunal received an application from GM, brother of the adult. GM was seeking to be appointed jointly with WK, sister of the adult, as guardian and administrator for the adult.
The Legislation
The issues for the Tribunal, based upon the legislation, are:
(a)Does GDA have capacity to make personal and/or financial decisions?
(b)Is there a need for a guardian to be appointed? If so, who is the most appropriate person for appointment?
(c)Is there a continuing need for an administrator to be appointed? If so, should the current administrator continue in that role, or is another appointment more appropriate?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA Act, 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.
GDA is presumed to have capacity in accordance with section 7 of the GAA Act and general principle 1 of Schedule 1 under the GAA Act. 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 GAA Act defines capacity as follows:[1]
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) communication the decisions in some way.
[1]GAA Act, Schedule 4, ‘capacity’.
The Tribunal, when considering the appointment of a guardian or an administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA Act.
If the Tribunal determines that there is a need for the appointment of a guardian or an administrator for GDA, the Tribunal, in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the GAA Act, have regard to the appropriateness considerations set out in section 15 of the GAA Act.
When conducting a review of an administrator, the Tribunal must be satisfied not only in regard to capacity, but also must take into account the provisions of section 31 of the GAA Act. The Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
In order to be satisfied that the Tribunal would make an appointment of an administrator if a new application for an appointment were made, the Tribunal must refer to section 12 of the GAA Act that sets out the essential requirements for such an appointment.
The Tribunal, in accordance with section 31(4) of the GAA Act, may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.
Does GDA have capacity to make personal and financial decisions?
The adult was assessed by Dr Andrew Quail, a general practitioner, on
21 February 2018 as having cognitive and receptive/expressive communication deficits secondary to Down’s Syndrome (Trisomy 21). Dr Quail provided the opinion that the adult is unable to understand and act on information relevant to making simple and complex personal and financial decisions, and is unable to communicate his wishes effectively. GM and WK concurred with the medical evidence, stating the adult utilises facial expression, gestures and vocalisations (laughs, cries) to express himself. They added the adult is non-verbal and has limited hearing and vision.
The evidence establishes that GDA has cognitive and communication deficits. Due to the severity of these deficits, the adult is unable to understand the nature and effect of his personal and financial decisions, and communicate such decisions.
The Tribunal concludes that the presumption contained in the GAA Act that GDA has capacity for personal and financial matters is rebutted.
Is there a need for a guardian to be appointed?
The adult has complex medical conditions that require management. Dr Andrew Quail, in his report of 21 February 2018, identified the adult is a hepatitis carrier and has bilateral cataracts, hypothyroidism, psoriasis, depression and obsessive compulsive disorder. GM and WK submitted the adult’s quality of life is significantly diminished by these conditions and that he urgently requires the removal of the bilateral cataracts. They submitted their proposed formal appointment as guardians for the adult for health care would result in increased opportunities for the adult to receive necessary treatment in both the public and private health care systems, and that this has not been achieved while they have been acting as the adult’s statutory health attorneys.
The National Disability Insurance Scheme (‘NDIS’) is being rolled out in the area in which the adult resides, altering the way the adult will receive funding for essential support services. GDA will require a formal decision-maker to identify goals and obtain funding for services, including under the NDIS, in order to receive vital support services to maintain and improve his quality of life within his accommodation setting and when accessing the community.
The evidence establishes the adult requires a formal guardian to liaise with medical and health professionals in relation to surgical and non-invasive options for his co-complex and inter-relating physical and mental health conditions, and to provide informed consent as required. In addition, without the appointment of a guardian for the provision of services, including in relation to the NDIS, the adult is at risk of not receiving vital services under this new and individually-funded service provision model.
The Tribunal is satisfied that, without the appointment of a guardian for health care and provision of services, including in relation to the NDIS, the adult’s needs will not be met and his interests will not be protected. Consequently, the Tribunal determines that the provisions of section 12 of the GAA Act have been satisfied in this regard.
Who is the most appropriate person for appointment as guardian?
In deciding if someone is appropriate for appointment as a guardian or administrator for the adult, the Tribunal must consider the appropriateness considerations provided in section 15 of the GAA Act. Section 15(1)(a) and (b) provide the Tribunal must consider the likelihood of proposed appointees applying the General Principles and the health care principle, respectively. The General Principles referred to in section 15(1)(a) of the GAA Act are contained within Schedule 1 Part 1 of the GAA Act. Sections 15(1)(d) and (e) provide that the Tribunal must consider if the proposed appointees are compatible with the adult and each other, respectively. Section 15(1)(f) provides that consideration must be given to the availability and accessibility of the proposed appointees to the adult. The Tribunal must also have regard for the appropriateness and competence of the proposed appointees to perform functions and exercise powers under an appointment order.
The written and oral evidence before the Tribunal establishes that GM and WK meet the requirements of section 15 of the GAA Act for being appointed as guardians for the adult for health care and the provision of services, including in relation to the NDIS. Accordingly, GM and WK were appointed, jointly and severally, as the adult’s guardians for these matters until further order of the Tribunal. The appointments are reviewable and are to be reviewed in five years.
Is there a continuing need for an administrator to be appointed?
Evidence from the representative of the Public Trustee of Queensland in relation to the adult’s financial matters follows.
The adult receives a disability support pension and mobility allowance. He will be eligible for NDIS funding and lives within the current registration rollout zone. Once he receives a NDIS plan, his mobility allowance from Centrelink will cease.
The adult has cash assets of $43,433. Other assets include furniture and ¼ share of a motor vehicle (managed by the Endeavour foundation) and a funeral plan, totalling $4,525. External bank accounts, totalling $1,598 are managed by the Endeavour foundation for the adult’s accommodation support and respite services (e.g. savings, household and vehicle accounts). There are no liabilities.
Written evidence from Clinton Miles, Director Disability Services on behalf of the Public Trustee of Queensland, states that the Public Trustee of Queensland filed a family provision application on 2 February 2018 in the Supreme Court of Victoria, in relation to the estate of GGM, the adult’s late mother, who died on 31 May 2017 in the State of Victoria. GM and WK are respondents in the proceedings as the executors of the deceased’s estate. The estate is worth approximately $1,384,159. Under the deceased’s Last Will and Testament, dated 18 August 2014, the estate is shared equally between her three children, GDA, WK and GM, with the adult’s share to be held in a Special Disability Trust (‘SDT’). WK and GM are also the Trustees of the SDT and the residual beneficiaries of the SDT upon the adult’s death. An attempt to settle the proceedings in the State of Victoria was made in February 2018, however the proceedings have not been finalised as the parties are unable to reach an agreement.
Pursuant to section 12 of the GAA Act, the Tribunal is satisfied there is a need for decisions in relation to financial matters. There must be an adequate and effective decision making regime in place for GDA, as otherwise his needs will not be met and his interests will not be protected.
Should the current administrator continue in that role, or is another appointment more appropriate?
The Tribunal must consider whether the appointed administrator should continue in that role or whether another party is more appropriate for appointment under section 31(4) of the GAA Act.
The application before the Tribunal proposes the joint appointment of GM and WK as the adult’s administrators as they are trustees of the SDT and executors of the last will and testament of GGM. They submitted the current administrator was appointed when their ‘parents became old and frail’. They stated that if they were successful in their application, they would transfer the funds managed by the current administrator into the SDT. They further provided they would manage the adult’s finances on a ‘pro bono basis’, in accordance with their family’s philosophy. They said their application to the Tribunal is in keeping with the wishes of their late mother, and that the family has experience in managing trusts.
The proposed appointees stated that the settlement offer, made by Aitken Partners, Lawyers and Advisors of Melbourne, who act for the litigation guardian for the adult in the proceedings, would have delivered a lower cumulative Net Present Value to the adult and the trust, than the outcome proposed in the deceased’s will. They submitted the claim would have asked the trustees to accept four elements of incremental basis risk which the trustees believe is inappropriate for a person on a full disability pension without any alternative source of income. The four elements follow:
(a)legal fees from all parties to the dispute;
(b)fees and charges to the Public Trustee of Queensland for the balance of the adult’s life;
(c)a loss of a proportion of the adult’s pension, as the gift exceeds the gifting concession, and that this would result in the requirement of the trust to inject funds negate the loss; and
(d)an indemnity to the Public Trustee of Queensland.
GM stated that their mother had told them she had been unhappy with the actions of the administrator. He submitted interactions with representatives of the Public Trustee of Queensland have been extremely challenging for himself and WK, and they have filed a complaint against the administrator. GM and WK submitted that the Public Trustee of Queensland, through its administrative processes, has failed to adequately manage the adult’s finances in relation to his health care requirements, and that this has resulted in a deterioration of the adult’s vision, mobility and general wellbeing. Towards the end of the hearing, they requested the Tribunal consider the appointment of Perpetual Ltd as administrator for the adult, if they were not successful in their application.
Evidence from representatives of the Public Trustee of Queensland the Office of the Official Solicitor follows. The administrator opposes the application before the Tribunal for GM and WK to be appointed as joint administrators for the adult. Prior to the order of the Tribunal of 30 November 2009, the Public Trustee of Queensland had been acting as the adult’s manager/administrator for 31 years, during which time they have not been aware of any previous complaints from the adult, his parents or the proposed appointees in relation to the administrator’s financial acumen, including with regard to making funds available for the adult’s health care requirements. The administrator has protected the adult’s income and has periodically reviewed the adult’s bank accounts, insurances and budget. Excess funds held in savings accounts have been invested. The administrator has maintained regular contact with the adult’s accommodation support and respite service and has conducted annual house reviews. In the determination of filing a family provision application, the Public Trustee of Queensland considered factors including the adult’s needs and financial position, along with the financial position of the deceased’s estate, and both sought and received external advice.
The Public Trustee of Queensland further submitted that GM and WK have a personal interest, which is contrary to that of the adult, in the outcome of the proceedings in the State of Victoria. The administrator stated that GM and WK, as respondents in the proceedings, would be unable to act as the adult’s litigation guardian to continue the proceedings, and that their proposed appointment as administrators could result in GM and WK bringing the proceedings in Victoria, against themselves, to an end. The administrator stated that, in DMB,[2] in circumstances where a family member seeks appointment as the adult’s administrator and may have a conflict of interest in making decisions about the adequacy of provisions made for the adult from a deceased estate, an independent decision-maker is more appropriate for appointment as it would not have any conflicts of interests in such circumstances.
[2][2015] QCAT 518.
The Tribunal considered the evidence. The administrator had an obligation to seek advice about the feasibility of making a family provision claim, with consideration being given to factors including the adult’s needs and financial position, and the financial position of the estate. In doing so, the administrator found it reasonable to pursue the claim and lodged an application in the State of Victoria. GM and WK are respondents in the proceedings as executors of the deceased’s Last Will and Testament, and residual beneficiaries of the deceased’s estate. As respondents in the proceedings, they are likely to have a conflict of interest in making decisions in the adult’s best interests that may result in their own diminished benefit from deceased’s estate. This could represent a loss of opportunity for the adult, as a man with an intellectual and communicative disability, along with significant health care requirements, to receive further benefit from the deceased’s estate. While the details of the attempt at settlement of the claim are not relevant to the decision of the Tribunal, the fact that there is a family provision claim at all is as a result of the independent administrator initiating the action against GM and WK in the State of Victoria, upon receiving advice as to the feasibility of a claim.
Consequently, after consideration of the extent to which their interests and those of the adults are likely to conflict with regard to section 15(1)(c) of the GAA Act, the Tribunal is not satisfied that GM and WK are appropriate persons to be appointed as administrators for the adult. The applicant’s oral proposal, at the conclusion of the hearing, for Perpetual Ltd to be appointed as administrator for the adult, was not a component of the application before the Tribunal. The applicant did not withdraw his application, nor did he provide evidence to the Tribunal in relation to how Perpetual Ltd could be more appropriate for appointment that the current administrator.
The current administrator, the Public Trustee of Queensland, has acted on advice and filed an application for a family provision claim in the appropriate time frame. The matter is yet to be finalised. As an administrator, independent from the family, the Public Trustee of Queensland does not have any conflict of interest in relation to the proceeding. The evidence establishes that in the period under review, the Public Trustee of Queensland has acted competently, in protecting the adult’s interests and meeting his financial needs. The administrator has acted in accordance with the terms of the order of 30 November 2009 and has fulfilled its obligations under the GAA Act.
Accordingly, the Tribunal is not satisfied GM and WK would be more appropriate to manage the adult’s finances than the Public Trustee of Queensland. The Tribunal determines, pursuant to section 31(4) of the GAA Act, that the Public Trustee of Queensland is competent and that no other person is more appropriate for appointment as administrator for the adult. The appointment of the Public Trustee of Queensland is continued until further order of the Tribunal.
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