HHG
[2015] QCAT 319
•15 June 2015
| CITATION: | HHG [2015] QCAT 319 |
| PARTIES: | HHG |
| APPLICATION NUMBER: | GAA5174-15 GAA5176-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 15 June 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 15 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for appointment of a guardian is dismissed. 2. HUS is appointed as the administrator for all financial matters for HHG. 3. The financial management plan dated 29 April 2015 is approved. 4. The Tribunal grants the administrator a full exemption from the requirement to provide accounts to the Tribunal. 5. The appointment of the administrator is not reviewable and will come to an end on 15 December 2015. |
| CATCHWORDS: | GUARDIANSHIP – where adult has impaired decision-making capacity for personal and financial matters, where decisions needed about assets owned by the adult in Queensland EXTRA-TERRITORIAL REACH – where adult’s domicile is outside Queensland, where adult does not reside in Queensland – whether sufficient connection to Queensland to base jurisdiction in Tribunal to appoint guardian and administrator Acts Interpretation Act 1954 (Qld) ss9 and 35(1)(b) Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309 |
APPEARANCES and REPRESENTATION (if any):
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
HHG has lived in the United State of America for 35 years with her husband, HUS. She has been diagnosed with Alzheimer’s dementia and is in a late stage of that condition. She is bedbound and non-responsive.
HHG has some funds in a bank account in Queensland. She needs to access those funds to help meet her current care costs. Her husband is her attorney for financial matters under an Enduring Power of Attorney made in the United States. He has asked his wife’s Queensland bank to remit the funds in her bank account to their joint bank account in the United States.
The bank has declined this request on the basis that HUS’s authority as attorney for HHG is not recognised in Queensland. It is clear that HHG can no longer personally give instructions to her bank. HUS has applied to QCAT for appointment as the guardian and administrator in Queensland for HHG so he can lawfully give instructions to the bank based in Queensland to remit HHG’s funds to the United States for her use.
QCAT has power to make orders appointing guardians and administrators for a person under the Guardianship and Administration Act 2000 (Qld). Under section 12 of that Act, appointments can be made if QCAT is satisfied by the evidence that the person in question has impaired decision-making capacity, that there are decisions that need to be made for that person and that the decision-making needs of the person can only be adequately met if a guardian and/or an administrator is appointed by the Tribunal.
A report by Dr Elisa Santoz dated 29 January 2015 stated that HHG has been diagnosed with Alzheimer’s dementia. Dr Santoz reported that HHG is nonverbal, non-responsive and not orientated to time, place or person. A Mini Mental State Examination conducted in 2010 resulted in a score of 15.5 out of 30. Dr Santoz expressed an opinion that HHG could not make decisions freely and voluntarily and could not make any simple or complex decision due to dementia.
I accept that evidence. I find that HHG has been diagnosed with Alheimer’s dementia which is at an advanced stage. I find that HHG is nonverbal, non-responsive and not orientated to time, place or person.
When considering whether a person has decision-making capacity, I must apply the definition of capacity as set out in the Guardianship and Administration Act 2000 (Qld).That definition states that a person has capacity if they can understand the nature and effect of decisions about a matter, they can make decisions freely and voluntarily about that matter and they can communicate the decisions in some way. In the absence of one or more of those abilities, the Tribunal can then conclude there is impaired decision-making capacity.
Applying the definition to the evidence provided to the Tribunal, I am satisfied that HHG cannot understand information about her personal and financial affairs due to the cognitive impairment associated with Alzheimer’s dementia. She could not analyse information relevant to making a decision about her affairs, could not come up with options for decision-making, could not weigh up the pros and cons of those options, could not appreciate the consequences attached to any perceived decision-making option and then could not choose between the options and communicate that choice to others.
I conclude that HHG has impaired decision-making capacity for personal and financial matters.
When considering whether a guardian is required to be appointed to make personal decisions for HHG, I note that HHG lives permanently outside of Queensland and has done so for 35 years at least. Although there is no evidence as to when her cognitive impairment developed, it is unlikely on the evidence to have developed as long as 35 years ago when her domicile was legally changed by her own choice.
HHG is not domiciled in Queensland, she does not reside here and the evidence suggests that she does not intend to return to live permanently in Queensland.
The Guardianship and Administration Act 2000 (Qld) does not expressly bestow on QCAT any extra-territoriality jurisdiction. Courts have for many years found that there is a rebuttable presumption against giving legislation an extra-territorial effect. A law may have extra-territorial effect where it can be said that an extra-territorial reach would be for the peace, order and good government of the State involved. The test is whether there is a sufficient connection between the extra-territorial aspect and the State enacting the legislation.[1]
[1]Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, Welkler v Hewett [1969] HCA 53, and see ss 9 and 35(1)(b) of the Acts Interpretation Act 1954 (Qld).
The Tribunal can only make orders about persons who have some relevant connection to Queensland. In the absence of HHG’s domicile being in Queensland or her residing here at least temporarily, there is no sufficient connection with Queensland to bestow on QCAT the power to appoint a guardian for HHG.
The application for the appointment of a guardian is dismissed because the Tribunal has no jurisdiction or power to appoint a guardian for a person who does not have any relevant personal connection to Queensland.
HUS also applied for the appointment of an administrator for HHG. Unlike the absence of any personal connection to this State, the evidence reveals that HHG has a current financial connection to Queensland in that she has funds in a bank account in this State. She could deal with the funds in that account, including instructing her bank to close her account and directing that her funds are remitted to the United States. However, the only reason she cannot make this request herself is the absence of decision-making capacity.
I am satisfied that the presence of those funds in Queensland provides an adequate connection to Queensland to give QCAT jurisdiction to make an order appointing an administrator for HHG despite her residing permanently out of this State.
I am satisfied by the evidence that a decision is needed to deal with those funds in a manner that benefits HHG and will assist to meet her current care needs. I accept the evidence that the bank has refused to act on the instructions of HUS because his position as the financial attorney for HHG appointed under a foreign law is not recognised in Queensland.
I find that decisions are needed to be made about the HHG’s funds in the bank account in Queensland. I find that those decisions can only adequately be made by a person appointed as her administrator in Queensland. I am satisfied that it is appropriate to appoint HHG’s husband as her administrator for all financial matters to enable decision-making to be implemented about the assets owned by HHG in Queensland.
The evidence does not suggest that the need for decision-making in Queensland will extend beyond dealing with the funds in her bank account in Queensland. On that basis, the appointment would not be needed after the funds are withdrawn and remitted to the United States. Although no time period was suggested in the application, I consider that the appointment of the administrator in Queensland would not be needed to remain in place longer than six months. The appointment will expire on 15 December 2015 and will not need to be reviewed after that date.[2]
[2]See Guardianship and Administration Act 2000 (Qld) – section 28 for review of ongoing appointments without a specific term.
I have given an exemption from the usual requirement that the administrator provides further information to the Tribunal by way of accounts as I anticipate that the funds within the jurisdiction will be removed totally before the end of the period of appointment. It would be unnecessary to require HUS to provide information to QCAT at the end of the term of appointment about the use or disbursement of funds in the United States.
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