HWR
[2010] QCAT 349
•15 July 2010
| CITATION: | HWR [2010] QCAT 349 |
| PARTIES: | HWR |
| APPLICATION NUMBER: | GAA1148-10; GAA1149-10; GAA4036-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 31 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Allen – Presiding Member R Stafford – Member L Clarkson – Member |
| DELIVERED ON: | 15 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | GUARDIANSHIP 1. That the Adult Guardian is appointed as guardian for HWR for all personal matters. 2. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years. ADMINISTRATION 3. That The Public Trustee of Queensland is appointed as administrator for HWR for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within six (6) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. ENDURING POWER OF ATTORNEY 7. That pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to WH, GP, GR and HV to resign as attorneys for HWR under the Enduring Power of Attorney dated 31 July 2008. 8. That the following Enduring Power of Attorney for HWR is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of Attorney dated 31 July 2008 appointing WH, GP, GR and HV as attorneys for financial, personal and health matters. 9. That any purported Enduring Powers of Attorney for HWR are overtaken by the making of these appointments and, in accordance with s 22(2) of the Act, can no longer be acted upon to the extent that these appointments have been made. |
| CATCHWORDS : | Capacity of Adult, Need for Guardian and Administrator, Appropriateness of appointee’s, leave to resign for attorneys, Powers of Attorney Act 1998, Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
The active parties who attended the hearing were as follows:-
HWR, WH, HR, Ms H, HN, GP, BP (representing the Adult Guardian), AA (representing The Public Trustee of Queensland).
Mr WH was represented by Senior Counsel.
The Public Trustee of Queensland was represented by Ms Waldon, in house lawyer.
The following interested parties attended the hearing:-
HJ, FE, AL, AN, SR, SH, FR
REASONS FOR DECISION
History of the Application
HWR is an 80 year old retired banana and pawpaw grower. The farm on which HWR grew his fruit was located on prime land. This land was owned by a company as a trustee of trust structure of which HWR was the controller. The land having been sold in 2003 for approximately $30,000,000.00, HWR, following advice from his accountant and lawyers, made distributions from the trusts to his children. They are HR who received $7,000,000.00, Ms H who received $5,000,000.00 and HN who received $5,000,000.00.
HWR had received advice from solicitors in 2003 about the restructuring of the family trusts and the distribution of funds. He had at this time also made an enduring power of attorney appointing his children as his attorneys.
Following the sale of the land HWR had moved to a unit on the river. He left this unit in 2007 and moved to a small country town and bought a house there. HWR still owns the unit and continues to reside in the house.
Mr WH is currently HWR’s attorney for both personal/health and financial matters and was HWR’s accountant from 1996 until he retired in 2002. At the time of the sale of the land, HWR asked WH to assist in dealing with the restructure of the trusts and WH attended a meeting with solicitors with HWR and the three children in December 2003. It was after this meeting that WH became an advisor to HWR. WH, through a company he controls has a management agreement with the Trust entities which pay to his company an amount in the vicinity of $300,000.00 per year.
HWR did not instruct the solicitors to carry out the restructuring work in respect of the trusts. Instead this work was carried out by GP, solicitor with advice from KP, solicitor, and WH.
HR had a falling out with his father following the Minter Ellison meeting in 2003 and has had little contact with him since. HN and Ms H continued to have contact with their father until 2007.
HWR’s children became concerned about their father, noting that he was becoming vague about details in regard to his finances, and made approaches to WH and GP for information. In particular, as beneficiaries of the trusts which had been created under the new trust structure they requested financial details in respect of the trusts. They were not provided with the information requested and resorted to taking action in the Supreme Court of Queensland. Their initial claim was settled on the basis that an independent director would be appointed to the trustee companies. This director was later forced to resign. A second application was made to the Supreme Court of Queensland in 2008 and this application was discontinued during the hearing.
HWR had a friend, HV, who the children confronted at her home in 2007. It was following this that HWR moved. When the children later confronted HWR at his home an application for a domestic violence order was made.
In 2008 a new trust structure was created which removed HWR’s children as beneficiaries and also removed his control of the structure as he was no longer an appointor under the trust deeds or a shareholder of the trust companies. Mr WH, GP and KP held those roles.
10. HWR’s decision making capacity had been assessed at the request of GP in 2005 and at that time he was noted to have significant cognitive decline which was probably some form of dementia. At that time HWR was receiving some domestic assistance for shopping and cleaning. Over the last couple of years HWR’s condition has required increased domestic support and at the time of the hearing he was receiving 24 hour a day, seven day a week support in his home. This support is provided by two live in carers, who stay over 3 ½ nights each. One of those carers is WH’s sister-in-law. HWR’s care is supervised by Ms H, WH’s partner. The annual cost of HWR’s care is approximately $180,000.00.
11. HWR’s personal assets at the time of the hearing includes the Unit, the house, a Honda car and a bank account with a balance of a couple of thousand dollars. The house and the unit are mortgaged to companies which form part of the structure for at least their full value and so have no net value to him. HWR is the sole beneficiary of the structure during his life. Though with the cost of his care and management agreements with WH, HWR has not received a distribution from the trusts for a number of years.
12. Ms H made an application to the Tribunal for the appointment of a guardian and administrator for HWR in February 2010 due to concerns she had that HWR was being exploited by his advisors and attorneys, and that by moving him he no longer had easy access to medical services as well as being isolated from family and friends by the actions of his attorney, WH.
13. The Tribunal notes that HWR’s most recent enduring power of attorney was executed on 31 July 2008 and appointed WH as first attorney for all matters with HV as successive attorney for personal/health matters and GP as succussive attorney for financial matters.
14. HV had requested that she be given leave to withdraw as attorney prior to the hearing of this application. WH and GP both requested leave to withdraw as attorneys during the second day of the hearing.
15. WH nominated CB, solicitor as a replacement decision-maker for HWR.
The Issues and the Legislation
16. The Tribunal determines applications for the appointment of guardians and administrators in accordance with section 12 of the Guardianship and Administration Act 2000 (GAA Act). The threshold issue is whether or not HWR has impaired capacity for decisions in regard to the matters.
17. Capacity is matter specific and is defined in the dictionary of the GAA Act as follows:
Capacity, for a person for a matter, means the person is capable of-
(a) understanding the nature and affect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
18. The Act presumes that adults have capacity in accordance with item I of schedule 1 of the GAA Act and this presumption is required to be rebutted for the Tribunal to be satisfied that an adult has impaired capacity.
19. Section 12 of the GAA Act also requires that there is a need for decisions about the matters and that, without appointment, the adult’s needs will not be adequately met or their interests not adequately protected. In regard to whether an appointment is required, it is relevant to consider whether there are any informal or formal decision makers currently in place, in particular, attorneys appointed under the Powers of Attorney Act 1998. If there are attorneys it is necessary to consider whether they are carrying out their duties in such a way as to protect the adult’s interests and are otherwise acting in accordance with the Powers of Attorney Act 1998.
20. The Tribunal is required to act in accordance with section 14 and 15 of the GAA Act when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA Act.
21. If the Tribunal is satisfied that HWR has impaired capacity, then his current attorneys may only resign from their positions with the leave of the Tribunal in accordance with section 82 of the Powers of Attorney Act 1998.
22. The issues for the Tribunal are then as follows:-
a) Does HWR have capacity for the matter;
b) Should his attorneys be given leave to resign;
c) Is there a need for a guardian; and if so, who should be appointed; and
d)Is there a need for an administrator; and if so, who should be appointed.
Does HWR have capacity for the matter?
23. HWR has a diagnosis of dementia and has had symptoms of cognitive decline since 2005 when he was assessed by Dr C, Consultant Psychiatrist. Dr C prepared a report for Solicitors, dated 27 May 2005 in regard to HWR’s mental competency and capacity. Dr C’s opinion was that:-
From a clinical perspective he shows no evidence of any significant mood disorder such as depression, which might colour his judgment. Likewise he showed no evidence of psychosis, which might result in delusional/paranoid ideation. He did however show significant cognitive decline which is probably some form of dementia. The extent of his decline appears to be of a mild degree. This is suggested by the MMSE and his apparent capacity to live independently as well as his reasonable if approximate coverage of his history. I am not able to suggest what type of dementia he might suffer but sub-typing is unlikely to be of any significance in the present exercise. It is the case that his memory might reasonably be expected to decline further in the years ahead and faster than is associated with normal aging.
24. Dr C’s report stated that HWR’s Mini Mental State Examination (MMSE) score at the time of his assessment was 28/30. He described the MMSE as a widely used screening device for cognitive impairment which consists of 30 items with a potential perfect score of 30. In regard to HWR’s score of 28 out of 30 Dr C stated that it suggested only mild cognitive deficits.
25. Dr C also noted in his report that:-
HWR was able to give an approximate (only approximate) assessment of his assets and to suggest that they should primarily be divided equally across his offspring (which commonly is a reasonable orientation). He appeared to understand the consequences of such a division of assets. He described understandable ambivalence in this assessment in relation to his son HR with whom he is in conflict.
26. Dr C stated in his report that he was advised of this conflict in his instructions from Solicitors and that when he questioned HWR in regard to the source of the conflict he replied:-
He did not want to go into the difficulties but advised that they have gone their separate ways and “I have told him that I never want to see him again.. things got very nasty….recently.” He further related to the sale of his property, which fetched a sum of approximately 30 million dollars..
27. Dr C assessed HWR again at the request of solicitors and provided a report dated 28 September 2006. In that report Dr C noted that HWR’s MMSE score was 24 out of 30 and that HWR said his offspring were questioning his advisors’ control of his financial affairs. Dr C stated that:-
He (HWR) said is experiencing a rift with all three offspring who are “all in it together”
HWR suggested that except for his offspring, he may leave some money to a female friend, but he was not prepared to quantify how much this might be and I respected his right to privacy.
28. Dr C’s opinion was that:-
My impression was similar to that in my report of 27 May 2005, that HWR is able to give only an approximate assessment of his assets, He described an ongoing rift with his offspring, but appeared inclined to leave much of his estate to them.
Clinically he still shows no evidence of any significant mood disorder which might colour his judgment. He does however show significant mild cognitive decline which is most probably some form of dementia. His cognitive functioning was possibility only slightly worse than in my original assessment.
HWR appears only to have an approximate capacity to assess the extent of his assets. He would not have the capacity to reliably understand and make judgments about the investment of his considerable assets. He does understand who might have a claim on them in the event of his death and a relatively approximate ability to form a judgment and express his preferences with respect to the disposal of his estate
29. Dr C was also requested to provide a medico-legal report by Lawyers, who were acting for HWR, in relation to the Supreme Court of Queensland application in 2008 brought by the children. In his report dated 18 February 2009, following an interview with HWR on 12 February 2009, Dr C stated that:-
He (HWR) was reluctant to give details of his personal affairs but it was clear he did not wish to leave his estate to his children. He commented “as for as my children, they are wiped”. He was evasive about how much his estate was worth but when I prompted him “might it be worth half a million” he advised it was considerably more than that. In relation to who he did intend to leave his estate to he indicated that it would be to friends, but he was not prepared to divulge names. He also identified WH as his accountant and as his key support in whom he appeared to have considerable confidence.
I tested HWR’s memory with a range of simple questions. He was able to identify where he lived but not the street. He was able to suggest that he was born in 1930 but could not suggest his age.
His Mini Mental State Examination on this occasion scored 19 consistent with moderate dementia.
HWR would be able to give a broad indication as to his preferred overall strategy for the disposal of his estate. In particular both on this and previous occasions he appears to have stated that he does not wish his estate to go to his three children, and that Mr WH is his advisor that he has most confidence in.
I asked HWR whether he had instructed GP to apply to the Magistrates Court for a protection order against the plaintiffs but he did not recall GP’s role, other than to describe him as one of WH’s friends. He did not recall that the protection order application was in December 2007. When I asked him his reason for appointing all the trust income and capital to himself he responded with reference to his children, “Blow the lot of you” was his intention.”
I asked him if he was aware of new trusts, namely the A Trust, the B Trust and the C. He responded “I don’t know what you are talking about.” He also did not understand the effect of the creation of those trusts but he did express faith in WH.
I asked whether HWR consented to giving 1.2 million dollars to the Advisors Indemnity Trust. He said that he had heard of this entity but had no idea who they are. He further added regarding any suggestion that he had given $1.2 million to this trust, “I’d like that looked at please.”
In considering advice from his lawyers he would be likely to only comprehend the broadest of advice. He would only have a very approximate understanding of the potential legal fees (with respect to whether they were reasonable or not). He did appear to understand the implication of defending or not defending his case and he was again quite clear that he did not want to give his estate to his children.
I do not consider HWR would be fit to give evidence himself.
As suggested above, he would only be able to make decisions in the broadest of terms, such as trusting that the advice by WH and WH’s associates would be in his best interests and relevant to his preferred strategy for disposing of the estate i.e. it not going to his children. I do not consider that HWR would be able to reliably detect and/or understand either mischievous advice or unsound advice given in good faith. Hence, his decisions would be highly susceptible to influence.
His ability to recall events is likely to be highly approximate. Because of the tendency of dementia to have a more deleterious effect on recent than past memories, his recall of events from 2005 to 2008 is likely to be even more unreliable than his recall of events prior to 2005.
In my opinion, HWR has little capacity to descend to any significant detail. He basically understands that he does not want his children to get his estate and that WH is his principal source of advice. He is able to understand that his estate is valued in the millions of dollars as opposed to the thousands, or hundreds of thousands.
30. The Tribunal notes that CB was appointed litigation guardian for HWR in respect of the Supreme Court of Queensland and that the last mentioned report was prepared in regard to HWR’s competency to give instructions in respect of that matter.
31. Dr C advised the Adult Guardian by letter on 28 January 2010 that he had prepared four mental competency assessments for HWR with the most recent being 21 January 2010 for which the report was not yet available. Dr C stated that:-
I have not provided treatment for HWR. He has, however received treatment from psychiatrist Dr H.
32. Dr C’s final report dated 23 February 2010 was prepared for Solicitors. Dr C stated in the report that he had interviewed HWR on 21 January 2010. In his report Dr C noted that HWR had commenced a trial of Aricept in 2009 which Dr H had considered successful. Dr C administered the Mini-Mental State examination and stated that:-
His score was 22/30 being indicative of cognitive impairment.
33. FR attended this assessment and in his discussions with her she mentioned to Dr C that HWR had attended the court case in March 2009. Dr C stated that:-
I interrupted FR and asked HWR what this court case dealt with, He was unable to elaborate. FR said that he handled the Court hearing well, stating that he had trust in his solicitor and accountant, WH. She also indicated that his son HR brought documents into the Court that had previously been reported as stolen from HWR. She was of the view that by so doing, HR had disadvantaged his case and was in danger of getting himself into trouble. As a result, the proceedings were shut down earlier than expected, with HWR’s side carrying the day.
34. Dr C’s opinion in this report was as follows:-
It is important to understand with such evaluations that the cognitive functioning of individuals with dementia can vary from day to day and hour to hour. Hence, minor changes observed in different interviews may be of no significance. The Mini-Mental State examination has limitations with respect to accuracy in quantifying cognitive impairment, it is more useful as a screening instrument but it gives a ballpark figure with regard to quantitative changes. I do consider his change from 28/30 in his original assessment in 2005 to his current 22/30 to be significant. I do not, however, consider his recent three assessments to be significantly different from each other, all three assessment are significantly different from his original assessment of 28/30.
It was also my impression that his other cognitive responses were not significantly different from his previous examination on 12 February 2009.
His carer, FR, indicated that he had a relatively good response to Aricept, which has potential to improve cognitive functioning in dementia. She said that in particular his mood had been brighter since then and his memory did not appear to have declined in her opinion over the previous year. It is the case that Aricept often does improve mood, even though it is prescribed primarily for cognitive problems It is also the case that where there is a satisfactory response to Aricept, the magnum of the response is typically to delay further memory decline (or to turn back the clock) by just under a year 9on average). This is consistent with the observation that HWR’s cognitive performance appeared to be approximately similar to a year ago.
In summary, based upon an interview with HWR and his primary carer, FR, my cognitive examination of HWR and FR’s observations both suggested that changes in his cognitive functioning over the last 12 months have been insignificant
35. As mentioned by Dr C, HWR was treated by Dr H, Consultant Psychiatrist. Dr H provided a report to Mr WH dated 6 June 2007 following a request by WH. She states:-
Thank you for asking me to assess HWR for assessment of his memory problems which you reported were exacerbated at times when he was distressed by the conflict he is having with his children. You informed me that there has been considerable conflict with the children particularly HWR’s eldest son, HR as they want access to HWR’s considerable wealth now and HWR does not wish this to occur.
The other relevant background information you provided on 30 March 2007 was that there were serious problems with HWR’s children hiring private detectives who had entered your house, office and farm. I note that there was a real fear that HWR’s may be abducted and that HWR had come to stay with you for a period of time. During that period it was very distressing for HWR and I note that you reported that he had become confused at night and had difficulty finding the lights switch in a strange environment and he was clattering around. I note that on the background you provided that there were complex financial arrangements in place to manage HWR’s considerable wealth. I note that GP has been appointed enduring Power of Attorney for HWR’s financial matters and HV.
I note from the other information you provided was that HWR had given each child $5 million and HR $7 million.
36. Dr H stated that:-
HWR reported he was “as right for life” until he started to forget things. He informed me that his children are terrible and have their own ideas which don’t mix with his. They try and tell him what to do and want money. He reported that he has given them a lot of money and that is where the problem is.
HWR informed me that his memory problems stop him from wanting to do much. He stated “what’s the point in doing something if I am going to forget about it.” He reported that people close to him notice but he isn’t aware that he is doing it i.e. the forgetfulness.
I note the most recent conflict between HWR and HR is regarding the Trust. The trust is being wound up as it is appropriate to do this but that there is a problem in that HR will not remove chattels from the shed and has changed the locks which have prevented the sale of the shed. HR has been corresponding with HWR inferring that you are not managing things appropriately. You reported that HWR’s son, HN had harassed your former secretary.
37. Dr H reported that:-
HWR completed a mini mental state examination on 1 May 2007 on which he scored 25 out of 30 indicating a mild level of cognitive impairment. This was consistent with the level of impairment as assessed by Dr C in September 2006.
She stated that:-
There was a preoccupation with his children just wanting his money and the distress that this was causing him.
38. Dr H reported her findings as follows:-
My impression was that HWR is suffering from a mild dementia. I feel that the severity of his cognitive problems does increase when he is anxious. It is my opinion that the extent of HWR’s current cognitive impairment is such that he would be unable to manage the intricacies of his financial affairs. However it is in my opinion that he is still able to make reasonable decisions regarding broad issues e.g. the division of his assets to his children.
39. Dr H also made recommendations as follows:-
I would recommend that HWR have some investigations performed if these have not already been done to exclude any reversible cause for his dementia. These include a full blood count, renal function, liver function, thyroid unction and vitamin B12 and Folate. I would also recommend he have a CT scan of his brain.
I also recommend that HWR have some psychological tests performed to further delineate the extent of his cognitive deficits and also to determine the effect that his psychological condition i.e. anxiety is impacting on his thinking ability. This could be performed by JJ.
I would also recommend that HWR have an occupational therapist assess his abilities to attend to his activities of daily living.
In terms of treatment options this will depend largely on the results of the findings by the psychologist and the investigations that I have suggested. If the investigation results are suggestive of an Alzheimer’s type dementia then there may be future medication options such as a class of drug called cholinesterase inhibitors which can result in improvements in cognitive functioning, It is my opinion that HWR’s condition is not severe enough to require prescriptions of these agents at this period of time but I would recommend that this issue be reassessed in six months time.
40. JJ, Psychologist, provided a neuropsychological assessment dated 9 November 2007 at the request of Dr H. JJ reported that:-
HWR expressed strong concerns about the assessment, and admitted that he has problems, however is concerned about what is going to come out of the testing and does not want to be put in a “loony bin”. He commented that the money he now has from the sale of his land has “buggered his life”. He is currently in serious dispute with all three of his children, over their inheritance.
41. JJ performed an assessment of HWR’s cognitive functioning to determine whether his current memory difficulties are due to a dementing process or psychological factors. JJ administered a battery of psychological tests including the Weschler Adult Intelligence Scale-Revised (WAIS-R), Weschler Memory Scale - third edition abbreviated, Rey Auditory Verbal learning, Rey Complex Figure test, Memorization of 15 items
42. JJ’s opinion in respect of HWR’s results on the tests was relevantly as follows:-
HWR’s overall cognitive functioning is in the below average range of intelligence, when compared to his peer group,
His scores on all memory tests were worse than that of patients with mild to moderate dementia, yet his day to day functioning is better, suggestive of pseudodementia or mild dementia exacerbated by psychological factors.
HWR’s symptoms are more indicative of mild dementia however he is a poor historian and cannot recall significant events in his earlier life, such as when his father died, when he was divorced the names of grandchildren and so on.
The anomalies of his test performance appear to be due to a combination of memory deficits and psychological factors, that is, non-cognitive features of dementia. A diagnosis of pseudeodementia does not preclude a coexisting brain disorder or underlying organic disease.
JJ recommended further neuropsychological testing and a CT scan to confirm the presence of dementia and its subtype.
43. Dr H prepared a report for lawyers dated 8 January 2009 in which she noted that the CT scan had been performed on 23 January 2008 and was reported as:-
Some generalised atrophic change was noted. There is enlargement of the lateral and third ventricles and widening of the subarachnoid spaces. No evidence of raised intracranial pressure could be seen. No significant focal pathology has been demonstrated.
In my opinion this CT scan was consistent with the diagnosis of dementia.
44. Dr H stated that she had reviewed HWR on 12 November 2008 in the presence of his friend, HV. HV was said to have stated that:-
HWR had implemented a restraining order against his family as his children were trying to take over his finances. She indicated HWR was facing six months legal battles and would have to appear in court. HV was concerned that HWR was not fit enough to do this.
45. Dr H reported that HWR had stated that:-
He was quite distressed with “the antics” of his children. He indicated to me “I don’t want anyone to touch my property’. He seemed quite determined to defend his right to keep his property and to express this is in court. He clearly stated that he did not wish his children to have his money until after he dies.
On specific questioning he reported that his appetite is “perfect”. He was receiving assistance from a carer four days per week and receives meals on wheels on the weekend. He has contact with friends but spends most of his time sitting on the verandah watching wildlife around his home.
46. On examination Dr H reported that HWR :-
Was visibly distressed during our discussion regarding the antics of his children and the need for a court case. HWR completed a mini-Mental State examination on which he scored 20 out of 30 indicating a moderate level of dementia symptoms. This indicated a serious deterioration from his previous Mini mental state examination result on 1 May 2007 when he scored 25 out of 30.In summary, HWR is suffering from dementia which is now of moderate severity. It is entirely likely that his condition is further exacerbated by anxiety and stress associated with his children attempting to obtain their inheritance early. HWR is adamant that he does not wish his money to be split between his children until after he dies as stated in the abovementioned previous report in 2007. HWR, while able to clearly express his ideas, in general terms regarding his fortune lacks the cognitive ability to determine the finer aspects of distribution. He may not cope with cross examination I an attempt was made to determine his cognitive abilities or undermine his credibility on the stand.
47. Dr H wrote a letter to Lawyers, dated 19 March 2009, clarifying her report of 8 January 2009. In particular following a discussion with HN in which he indicated that the children were not attempting to access their inheritance early but he was of the opinion that HWR is being manipulated by Mr WH and HV who “are cleaning him out” and that there “will be no will to inherit”. The amendment was to replace the sentence
It is entirely likely that his condition is further exacerbated by anxiety and stress associated with his children attempting to obtain their inheritance early.
With the following
It is entirely likely that his condition is further exacerbated by anxiety and stress associated with the perception that his children attempting to obtain their inheritance early.
48. Dr H provided a report to the Adult Guardian dated 17 February 2010, in which she stated that she was still treating HWR and had seen him on 8 February 2010. She stated that she had performed a Mini Mental state examination on which he scored 24 out of 30 and that his score had improved significantly since he has been treated with Aricept 10 mg. She also advised that she did not have an occupational therapy report in regard to capacity.
49. Dr S, HWR’s doctor for two years, provided a report to the Adult Guardian dated 18 May 2010. In his report Dr S noted that HWR had a cognitive impairment, which was progressive and of moderate severity. He stated that HWR needs supervision and assistance with personal care and has full time carers. Dr S also stated that the family legal dispute impacts on HWR’s capacity and that he did not have capacity to make an enduring power of attorney.
50. The Tribunal received written submissions dated 25 May 2010 from the Adult guardian in regard to HWR’s current capacity to make personal and financial decisions. After canvassing the medical report and noting that the Adult Guardian does not have expertise to provide a medical opinion regarding capacity, it was the opinion of the Adult guardian that HWR does not have capacity.
51. The Adult Guardian provided a copy of HWR’s most recent ACAT assessment dated 27 November 2009. The assessment noted a diagnosis of dementia and stated in regard to cognitive behaviour that:
HWR exhibited regular short term memory loss and occasional long term memory loss. It stated that he was on aricept and suffers paranoia and he lacks organisational skills and therefore needs supervision and prompting with all activities to keep him focussed.
52. There were further written submissions from friends and family of HWR detailing his ongoing primary problems going back many years. These have not been specifically relied on by the Tribunal for the purpose of determining HWR’s capacity as at the date of the hearing.
53. In his submission to the Tribunal dated 25 May 2010 Mr WH stated in regard to HWR’s capacity that:
HWR suffers from, according to his specialist reports, mild dementia. His dementia is such that on some days he cannot recall what he did the day before and on other days, he may not recall what he did several hours ago. HWR has taken medication to help with dementia since July 2009
54. HWR was questioned at the hearing and, although he was able to identify where he lived, he could not recall his address. He said that he organised his own life and preferred to be on his own. Following an explanation of the purpose of the hearing he was also unable to recall any details of that explanation. HWR stated that he had some problems with his memory and that his father had memory problems as well. When asked whether this affects his ability to make decisions he stated:-
I turn to WH I haven’t had to make decisions.
He could not recall that he had granted an enduring power of attorney. He stated in regard to his children that:
they have their own lives and that time come when they would prefer to be on their own.
He said they were entitled to their own lives. In regard to money he stated that he goes to the bank for money but could not recall which bank.
55. HR stated that he had seen his father twice in seven years and that he had last spoken to him in 2003. He said his father had lucid moments and that no-one had ever said he had dementia. Ms H said that she had known of her father’s memory problems for some time. She stated that she had seen Dr C in 2006. HN said that he had known about capacity issues due to the court proceedings.
56. Senior Counsel submitted that given HWRs present status, it was easy to overlook that it was a developing one but he was not propounding that HWR had capacity. WH stated that while HWR’s memory seemed to reduce in a short term sense, he felt he had capacity right through to early 2009.
57. BP confirmed the Adult Guardians written submissions and agreed that HWR lacks capacity.
Conclusion
58. The Tribunal is satisfied that HWR has impaired capacity for both personal and financial matters as at the date of the hearing. He has a diagnosis of dementia which is confirmed by both Dr C and Dr H, which has resulted in him having short term memory loss to the extent that he cannot recall details of even such things as his own address. HWR’s memory loss is to such a degree that in 2010 according to Dr C he was unable to recall the court case that occurred in 2009 which was a major event for him at the time. HWR’s history of cognitive decline goes back to at least 2005 according to the reports of Dr C. His score on the Mini-Mental State Examination has declined from 28 out of 30 to 22 out of 30 over this period, which Dr C stated was indicative of cognitive impairment. Dr C’s opinion in 2006 was that HWR would not be able to reliably understand and make judgments about the investment of his considerable assets and that he had only an approximate capacity to assess the extent of his assets. The Tribunal notes that HWR is a beneficiary of a very complex trust structure which would require a high level of capacity to understand even with professional advice. In 2009 Dr C further stated that he did not consider HWR would be able to reliably detect and/or understand either mischievous advice or unsound advice given in good faith. Hence his decisions would be highly susceptible to influence. Dr H, in her 2007 report, noted HWR’s memory problems and she was also of the opinion that HWR would be unable to manage the intricacies of his financial affairs. JJ formally assessed HWR and confirmed that his scores on all memory tests were worse than that of patients with mild to moderate dementia. The Tribunal accepts this evidence as rebutting the presumption of capacity in terms of HWR being unable to understand the nature and effect of decisions about his financial affairs and being unable to freely and voluntarily make decisions as a result of his susceptibility to influence. In regard to personal matters, the Tribunal has had regard to the extent of the care provided to HWR, which is now on a 24 hours a day, 7 days a week basis this is consistent with the ACAT report which noted that he lacks organisational skills and therefore needs supervision and prompting with all activities of daily living. As early as 2007, Dr H had suggested that an occupational therapy assessment of HWR’s care needs be performed. As at the date of the hearing HWR appeared to not realise that he was being cared for on a 24/7 basis as he stated that he kept mostly to himself, whereas the diary extracts provided to the Tribunal by his carers indicated that he is never alone during the day. The Tribunal notes that all of the parties present at the time accepted that HWR had impaired capacity for both personal and financial matters.
Leave to Resign as Attorney
59. HWR made an enduring power of attorney on 31 July 2008 which appointed WH and HV, successively in the order named, as his attorneys for personal/health matters and WH and GP, successively in the order named, as attorneys for financial matters. The Tribunal notes that all three attorneys have sought leave to resign as attorney for HWR. Having regard to the finding that HWR has impaired capacity, an attorney may only resign with leave of the Tribunal in accordance with section 82 of the Powers of Attorney Act 1998. The Tribunal, in exercising that discretion, is required to in accordance with section 76 of the Powers of Attorney Act 1998 to apply the General Principles in schedule 1 of the Powers of Attorney Act 1998 in exercising this discretion and in particular here General Principle 7, substituted judgment, so that HWR’s views and wishes should be taken into account. It is clear that HWR has placed a great deal of faith and trust in WH as his advisor and that he had a strong relationship with HV. HV has stated that her request to resign was due to her advanced age. In regard to GP, it would appear from the notes prepared by MP, the solicitor who witnessed HWRs enduring power of attorney, that HWR did not recognise that GP was HWR’s and the Trust entities solicitor and referred to him as a friend of WH which was a good enough reason for him to be appointed. The Tribunal notes that WH’s request for leave to resign was made without admission on the part of WH.
60. The Tribunal, when exercising substituted judgment in accordance with General Principle 7, is required to do so in a way consistent with HWR’s proper care and protection. The Tribunal is satisfied having regard to concerns expressed below in regard to the lack of contact HWR has had with his family and friends, conflict transactions which have taken place in terms of the employment by WH, as director of companies which act as trustee of trusts of which HWR is the sole beneficiary of persons associated with him as carers for HWR and financial transactions in regard to mortgages taken over HWR’s real property by the same companies that leave should be granted to the current attorneys to resign as attorneys for HWR so that these matters can be considered further. While the Tribunal has power to appoint a new attorney for HWR, in accordance with section 82(2) of the powers of Attorney Act 1998, it will not exercise that discretion and instead, where there is a need for a decision maker, will make an appointment under the GAA Act which will enable the Tribunal to exercise its supervisory role under that Act of the appointees. As there are no attorneys appointed under the enduring power of attorney dated 31 July 2008, as a result of the Tribunal granting the current attorneys leave to resign, the Tribunal exercised its power under section 116 of the Powers of Attorney Act 1998 to revoke that enduring power of attorney.
61. The Tribunal notes that it has not made a determination in regard to the validity of this or any of the enduring powers of attorney made by HWR since 2003. That is not to say that such an application could not be made in the future in which case the witness to the enduring documents and the medical experts would be required to give evidence.
Is there a need for a Guardian and if so who should be appointed
62. There is a history of estrangement in HWR’s life from his children and friends. WH submits that this estrangement is a result of HWR’s children wanting to take over the remainder of HWR’s finances following the sale of the land. HWR had gifted substantial amounts to his children and had retained an amount of approximately $12,000,000 in the trust structure. HWR has, on numerous occasions, written to his children to express that he does not wish them to interfere with his financial affairs. HWR’s children engaged solicitors to request information from HWR’s advisors in regard to the trusts and they were informed that there was no requirement to do this. In 2007 there was a confrontation with HV. WH in his written submissions stated that:-
By September 2007, HWR had become fearful of his children and he was very upset that HV had dropped out of his life. He believed that he was under surveillance and did not want to be left by himself. He became obsessive about the fact that his children were not to have any information and any contact with him and not share in his estate. Those were HWR’s wishes expressed to me.
63. WH goes on to explain why HWR moved as follows:-
I said to HWR I could not look after his pastoral care while he lived at N and me in K and I couldn’t prevent unwelcome visits from certain people. I spoke to HWR about him physically moving. He instructed me to find him a house to buy. He was so panicked by what had happened that we moved him out in approximately September 2007 to K where he stayed at FR’s house until the settlement of his house.
64. WH notes that HN, by letter dated 27 November 2007, demanded HWR’s contact details from GP and that HWR had, on 25 November 2007, signed a letter stating he did not want contact with his children as they had commenced legal proceedings against his companies. WH states that on 15 December 2007:-
HR, Ms H and HN along with FE attended at HWR’s house uninvited and unannounced. HN had climbed upon to the verandah and damaged the back screen door to gain access to the lock. The police were called.
Immediately after the confrontation, HWR also instructed GP to apply for domestic violence orders (DVO) as attorney for HWR. Interim orders were made by the Magistrates Court at Maroochydore on 24 December 2007, and ultimately consent orders were made on 15 April 2008, which provided that the children were to have no contact either directly or indirectly with HWR.
65. In his statement WH also refers to a letter signed by HWR on 8 February 2008 which stated “I do not want any of you, or your associates, visiting me, writing, telephoning or otherwise contacting me personally. Any necessary communication should be from your legal advisors to Solicitors.” The use of the word associates became important as a further DVO agreement was put in place. WH describes the effect of these as follows:-
The DVO orders were in place (in various forms) from 24 December 2007 to March 2010. Those orders provide, amongst other things, that the children and their associates were not to contact HWR by phone or mail. During that period HWR received several letters from FE. I wrote on those letters “Return to Sender” on HWR’s instructions.
66. During the hearing WH was asked how he would describe an associate of HWR’s children and he listed various of HWR’s friends. When asked whether there would be circumstances where these were not associates of the children WH indicated, No. The Adult Guardian in their report to the Tribunal noted that HWR had :-
4 existing supportive relationships with the following long term friends:
FE;
SR and SH;
AL and AN; and
HJ and HK
And that all of them had had difficulties contacting HWR.
67. Each of the above persons made submissions to the Tribunal setting out their concerns for HWR and the fact that they had been denied contact, or had been required to fill in an undertaking before having contact with HWR. Ms H, in her oral submissions to the Tribunal, stated the family became concerned around 2005 due to HWRs failing memory and his lack of knowledge about financial details. She stated that the children did not want to control HWR’s money, what the children wanted was transparency. This was in particular as there were people they did not know involved to whom HWR would defer any questions about finances, in particular, WH and that the family members were a long way away. This position was reflected in the evidence of HN and HR as well. The Adult Guardian’s report nominates HWR’s existing supportive relationships as being WH, FR, WS (carer), ML (carer). The Tribunal noted that all of these people are paid by the trust structure.
68. In regard to accommodation, WH, in written and oral submissions to the Tribunal, made it clear that HWR had expressed to him that he did not wish to be institutionalised because of his dementia and that he had determined that while the trusts could provide him the best quality of life he can have in his own house I am prepared to authorise payment of funds to meet that quality. This involved WH acting in his capacity of attorney for personal matters and as director of the trustee companies which paid for HWR’s care. This care is estimated to cost in the vicinity of $180,000 a year and is provided by WH’s partner, FR, who has no experience as a carer. WH’s sister-in-law, WS, who also has no experience as a carer, and ML, who has some experience as a carer. WH, in his statement, makes remarks about how frugal HWR was, quoting an example of HWR not wanting to purchase a new TV and preferring to retain one he had bought in 1967. When asked by the Tribunal whether he had discussed the cost of HWR’s care with him at the time the decision to put the care in place was taken, WH replied, No. The Adult Guardian, in their report, stated that the care of HWR appears to be of a high standard but there is concern in regard to reasonableness of the cost of the care. The material submitted by WH also indicates that HWR has regular attendances at his doctor.
69. There were several other outstanding personal matters identified in oral submissions at the hearing by BP, including an occupational therapy assessment as she had confirmed with WH that the one in 2007 by Dr H had not occurred. She submitted that apart from the occupational therapy report, HWR required an updated ACAT assessment, investigation of the progress of his dementia. Ms Beerbohm submitted that a guardian should be appointed for service provision, contact, health and accommodation.
70. The Adult Guardian was nominated as guardian by the applicant, Ms H and CB was nominated by WH. BP submitted that there were concerns in regard to the appointment of CB. In particular that CB has not provided any care plan or assessment of HWR’s care needs; whether CB understands that the role of guardian is unpaid, whether he will be available for decisions 24 hours a day or only in office hours, CB’s understanding of dementia and that while he needs to take HWR’s wishes into account he must make decisions in HWRs best interests. There is also the fact that while CB has some familiarity with HWR it is through his role as litigation guardian for HWR during the 2008 court case and that this may be a barrier to communications between CB and HWR’s children. BP submitted that the Adult Guardian is open and transparent in regard to decision making and will consult with all parties, including WH, and make a reasonable assessment of care arrangements for HWR.
71. CB was not present at the hearing but an affidavit was filed by him in support of his proposed appointment as guardian for HWR. CB stated that he practiced in the area of powers of attorney and was familiar with the general principles and health care principle under the Powers of Attorney Act 1998. He also stated that he holds powers of attorney for various individuals. He confirmed that he had known HWR since 1998 as a result of the Supreme Court proceeding. He stated that he had become familiar with HWR and his carers. CB had also been retained to advise HWR in regard to Domestic Violence orders since the trial. CB stated that he had met WH only once during the Supreme Court trial. CB stated that he had known the family for 30 years and had become familiar with FR over the past few years. CB confirmed in his affidavit that he met the eligibility requirements of section 14 of the GAA Act.
72. HWR’s children supported the appointment of the Adult Guardian as an independent guardian who would consider all of those who had in HWR’s welfare and would act in his best interests. The Adult Guardian was the appointee for guardian proposed in Ms H’s application.
Conclusion
73. The Tribunal notes that the effects of HWR’s dementia are to such a degree that he can no longer recall the reasons why he was at odds with his family. It is clear from Dr C’s 2010 report when he could not recall the court case of 2009. It is also clear that HWR has had signs of dementia since at least 2005 and it was at this time that he began to be concerned that his children were trying to take control of his money. HWR’s advisors were clearly aware that he had cognitive issues as they were the one’s obtaining the medical reports and yet they exacerbated the situation by refusing to deal with HWR’s children in a way which would reassure them that their father who was in failing mental health was well advised. As a result HWR is now estranged from his family and friends and lives in a small country town to which he has no connection, surrounded by people who are paid to be with him. The appropriateness of the current arrangement must be investigated and, if HWR desires, contact with his family and friends must be facilitated. HWR is a vulnerable old man who no longer has any cognitive resources and relies completely on those around him. Having regard to the complexity of HWR’s situation, the Tribunal is satisfied that there is a current need for decisions to be made, which may be greater than thought, and that it is appropriate to appoint a guardian for all personal matters.
74. The Tribunal has considered CB and has decided not to appoint him as he has had a prior association with HWR and his current carers and due to the 2009 court case his communication with HWR’s children may be difficult. The Adult Guardian is independent and most importantly transparent and the Tribunal will appoint the Adult Guardian as guardian for HWR for all personal matters.
Is there a Need for an Administrator and if so who should be appointed?
75. In his statement, WH provided a copy of a document which set out the approximate statement of Assets and Liabilities for Trust/HWR. The total assets including HWR’s unit were $13,915,635.00 as at 2 December 2004, this is following the gift of $17,000,000 to HWR’s children. At that time HWR owned or controlled all of the assets as director and shareholder of trustee companies and appointer of trusts. As at the date of the hearing WH stated that:-
HWR receives distributions from the trusts and that money is used for his living expenses.The only bank account HWR has is his personal account. It currently has about $2,000.00 in it.
HWR’s properties are otherwise in his name, albeit mortgaged to the A Trust and B Trust respectively.
76. In 2005 WH says that HWR informed him that:-
His relationship with HR was becoming increasingly strained and that he no longer wanted to have any dealings with HR. He also no longer the day to day responsibility of investing and managing his substantial funds.HWR told me in meetings that were attended by GP and GP that his reasons for instructing me to create the trust were that he:
Wanted to finalise the Trust;
Wanted to keep control of the remaining assets. HWR informed me that he felt that he had looked after his children’s interests in giving them more than half of the assets of the Trust. Therefore he thought it appropriate that he retain control of the remaining funds as a nest egg in case the children needed more money in the future;
He did not want his children involved in his financial affairs;
Wanted the children to “get on with their lives” and allow HWR’s advisors to get on with the management of his financial affairs;
Had considered that he should be entitled to have the net assets of the trusts appointed to him personally given the gifts which he had made to the children; and
No longer wanted to be involved in the day to day management of his finances.
HWR subsequently instructed me to create a new trust structure in such a way that he was no longer required to be involved in the day to day management of the business.
77. An attachment to WH’s statement sets out the Trust structure. It has at its head HWR with 4 companies and 9 trusts. WH stated that the essential features of the Trust structure were :
That during HWR’s lifetime the income and capital of the fund could be distributed or appointed to any of HWR, HR, Ms H or HN (or a wider class of beneficiaries related to each of them); and
That on HWR’s death the capital and income would be held in trust for each of the children (and their beneficiary classes) in equal shares.
78. WH, in his statement says that following the break-in in December 2007, HWR wrote advising him that his children should not benefit on his death and that on the advice of KP, Solicitor, HWR borrowed $2,000,000 from the Trust which was secured by a mortgage and then gifted the monies back to the trust. KP stated to HWR that this is a standard method of transferring the value of an asset. WH later in his statement confirms that the same transactions took place in respect of the house which was valued at $400,000.00. The trust involved here is the Trust 2008, HWR, though the primary beneficiary of that trust, has no control either as appointor or shareholder of the trustee company. The persons who are appointor’s are WH, accountant, GP, GR, solicitor and KP, solicitor. WH and KP are the shareholder directors of the trustee of the Trust 2008. WH stated that this trust was settled in accordance with HWR’s wishes that the children not benefit on his death.
79. WH in his statement also refers to the Advisor’s indemnity Trust which was settled by HWR with a gift of $1,2000,000. WH stated that :-
HWR had in 2006 and early 2007 become concerned that HR would commence proceedings against me or HWR’s other advisors, particularly after his death. He wanted to establish fund so that if such proceedings were commenced any of the parties he considered were at risk could access funds to defend proceedings.
The Tribunal noted that when Dr C asked HWR about this trust in 2009 HWR said that “I’d like that looked at please.” WH stated that HWR obtained independent legal advice from MK, solicitor in regard to the settlement of this trust.
80. MK provided an affidavit sworn on 12 March 2009 in respect of the 2009 Supreme Court of Queensland proceeding, which amongst other matters, deals with this advice. MK states in his affidavit that he had been requested to give the advice by GP and that the advice was given at GP’s office. He also states that he informed HWR that it was highly unusual for a discretionary trust to be set up in this manner, particularly as HWR would have no ownership or directorship or control of the trustee company and where the appointor under the trust deed is not himself. MK confirms that he was aware of HWR’s diagnosis of dementia and had been provided with a copy of Dr C’s report.
81. The Tribunal received an application from Ms H on 12 February 2010 for an interim order appointing the Public Trustee of Queensland (PTQ) as administrator for HWR as his unit was to be sold by auction on 14 March 2010. A copy of a newspaper advertisement in respect of the auction stated that it was an “Urgent Sale”. The Tribunal appointed the PTQ as administrator under an interim order on 3 March 2010 for a period of three months. That appointment lapsed in May 2010. The PTQ provided a written submission dated 25 May 2010 for the hearing which confirmed WH’s statement in regard to HWR’s current asset position. That is that he had a Bank account with a balance of approximately $2,000.00; HWR owns a house and a unit. Both properties are fully mortgaged to Pty Ltd. HWR is the discretionary beneficiary of a complicated trust structure, The Trustee is a company Pty Ltd and the directors are WH (HWR’s attorney) and KP. The submission goes to say that:-
The Public Trustee instructed the official solicitor to look into the Trusts that have been set up to benefit HWR. There are volumes of documents and investigations are continuing and the Public Trustee has no funds. The Public Trustee as interim administrator was involved with a proposed auction of HWR’s unit. The property did not proceed to auction and remains vacant. A mortgage was taken over the property for $2,000,000.00 on 1 July 2009. The document was signed by WH as attorney for the mortgagor and as director of Pty Ltd, the mortgagee. The Public Trust has arranged a valuation and the current value is $1.8 million. HWR’s personal tax return for 08/09 reveals no income was distributed from the trusts for that period and the only income was bank interest.
82. The PTQ provided further submissions dated 31 May 2010 for the purpose of the hearing. In them the PTQ gave a report on its role as administrator under the interim order stating relevantly that:
After failing to reach agreement with the Mortgagee, Pty Ltd in respect to the auctioning a unit, the Pubic Trustee advised the appointed real estate agent on 12 March 2010 that the auction scheduled for 14 March 2010 would not proceed;
On 24 March 2010 the regional manager, Redcliffe office of the Public Trustee together with a representative of the Adult Guardian attended upon the adult at his home.
To date the Public Trustee has incurred approximately $20,000 in corporate funds in investigating the matter.
83. The PTQ set out a chronology of events in respect of HWR and the entities which relevantly disclosed :
During 2005 management agreements were entered into between WH and the adult (the ‘new 2005’ restructure) which allowed WH to receive a bonus over his remuneration and to engage a book-keeper. In 2008 the arrangement was changed from a bonus scheme and independent book-keeping arrangement to an index of management fee and salary component.
WH prepares the accounts and certifies them as accountant and is thus acting as both client and accountant.
WH appears to have been providing financial and investment advice to the entity however no information has been received as to whether WH is licensed to provide advice.
The adult is not a beneficiary in all incorporated entities trusts controlled by WH.
On or about February 2007 the adult ‘gifted’ $1 M to the Advisors Indemnity Trust to defend any claims brought against WH, GP, and KP amongst others.
There is no indication to date that either GP or HV acted on their appointment (they had been appointed as immediate attorney’s under earlier enduring powers of attorney for HWR).
There appears to be no draw down of monies in exchange to the adult for executing the mortgage and the Public Trustee has been unable to ascertain with any certainty that the mortgage was effected for the benefit of the adult.
The Public Trustee has determined that:
The financial affairs of the adult appear complicated for the total capital held in trust and thus more expensive to administer.
The extent of the adults liquid funds (i.e. not held in trust) is $2K.
WH is the director of Pty Ltd which is the incorporated trustee for the Trust; this trust is the current functioning entity.
The Public Trustee submitted that if appointed as administrator for the adult, the Public Trustee will require sufficient funds to complete his enquiries. Included in those enquiries will be the need to commission an independent forensic accountant to review the accounts of the trusts for which the adult is the principal beneficiary/
84. In oral submissions at the hearing Ms Waldon submitted that HWR was technicality bankrupt as he can’t service his mortgages due to the monies secured being greater than the independent valuation of the real property securing them. She confirmed that the PTQ was concerned that the mortgages represented a conflict of interest transaction in that WH executed as mortgagor and accepted as mortgagee. She stated that the Public Trustee has no funds to undertake the role as administrator. Ms Waldon did confirm that the PTQ would accept appointment as administrator for HWR. Senior Counsel submitted that HWR is, during his life, the only beneficiary of the trust structure and is therefore not bankrupt.
85. In regard to who should be appointed as administrator, Ms H has proposed the PTQ and WH has proposed CB whose qualifications have been discussed above.
86. HWR’s children supported the appointment of the PTQ as an independent administrator for HWR in their written submissions to the Tribunal.
Conclusion
87. HWR in 2004 had control over assets of nearly $14,000,000 owned by him and through his family trust structure. It is clear form WH’s statement that this control was important for HWR to retain when the 2005 trust structure was created. Though in 2008, when the last structure was created as a result of HWR’s house receiving an unwanted visit from his friends and children, HWR is said to have agreed to lose the control of all of these assets and be left with $2,000 in a bank account. Not only that, but in July 2008, he appointed one of the persons who controlled this latest trust structure and who was handsomely remunerated for managing the trust structure for him, that is WH as his attorney. In that way if he lost capacity there would be no-one to ensure that his interests were protected. The Tribunal notes that it was not provided with any details of the capital gains and stamp duty consequences of the restructure which took place in 2008 and there is no indication that this issue was raised with HWR when the transactions took place. These transactions are consistent with Dr C’s opinion in 2006 that HWR:-
would not have the capacity to reliably understand and make judgments about the investment of his considerable assets.
And although Dr C’s opinion of 2009 post-dated most of these transactions, it is salient that he stated:-
I do not consider that HWR would be able to reliably detect and/or understand either mischievous advice or unsound advice given in good faith.
The Tribunal has no jurisdiction in regard to trusts. Its jurisdiction is in regard to the financial affairs of adults with impaired capacity. HWR has impaired capacity and over the years transactions have occurred in regard to assets which have been owned by him. These include such things as the mortgages and gifting in respect o his Unit and the house, the gift of $1,200,000 to settle the Advisors indemnity Trust.
88. HWR’s advisors have carried out his instructions. The question which must be asked is did he have the capacity to give those instructions and should his advisors, knowing of his dementia as they did from 2006, acted differently. The Tribunal is satisfied that there is a need for an administrator to investigate HWR’s financial affairs and ensure that those assets which are rightfully his are returned to him. This may involve applications for declarations of capacity and even Supreme Court of Queensland proceedings to return control of HWR’s trusts to him through his administrator. This job will be difficult and expensive and will require specialist expertise and is hampered by the fact that HWR has no assets. While WH submits that HWR is the sole beneficiary of the trusts, HWR through his administrator, has no control over the distribution of funds.
89. The Tribunal does not consider CB appropriate to act in the role of administrator for HWR in particular as there is specialist work to be done and HWR does not have the resources himself to do it. The PTQ is independent and has an in-house legal team and other corporate resources to undertake this role. The Tribunal appoints the PTQ as administrator for HWR for all financial matters.
0
0