IHC

[2021] QCAT 141

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

IHC [2021] QCAT 141

PARTIES:

In applications about matters concerning IHC

APPLICATION NO/S:

GAA14569-20, GAA14570-20, GAA018-21, GAA019-21, GAA1545-21, GAA1546-21, GAA1547-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 May 2021

HEARING DATE:

31 March 2021

HEARD AT:

Brisbane via videoconference and phone, due to COVID restrictions

DECISION OF:

Member Casey

ORDERS:

1.   The Public Guardian is appointed as guardian for IHC for the following personal matters:

(a)   accommodation; and

(b)  health care.

2.   This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in five (5) years.

3.   The Public Trustee of Queensland is appointed as administrator for IHC for all financial matters.

4.   The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

5.   The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

6.   This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 

7.   Before 31 June 2021 the administrator must:

(a)    Record the appointment as administrator on any property registered in IHC’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. 

(b)   Provide confirmation to the Tribunal that this has been completed by providing: 

(i)      A copy of the title search conducted identifying IHC’s property; and 

(ii)      A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by her. 

(c)   If no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 

8.   If the ownership of any property of IHC changes in any way or she acquires an interest in another property the administrator must, within fourteen (14) days of such changes: 

(a)   Give a copy of this order to the Registrar of Titles; and 

(b)  Give a notice to the Registrar about the changes or IHC’s interest in another property. 

9. The following Enduring Power of Attorney for IHC is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 (Qld), can no longer be acted upon to the extent that these appointments have been made:

(a)   The Enduring Power of Attorney dated 22 August 2020 appointing SHM as attorney for personal and health matters.

10. The following Enduring Power of Attorney for IHC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld):

(a)   The Enduring Power of Attorney dated 22 July 1999 appointing SHM and MEC as attorneys for personal and health matters.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where any enduring power of attorney is declared invalid - where an enduring power of attorney is overtaken - need for the appointment of a guardian and an administrator

Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 12, s 14, s 15, s 22(2), s 82(2), Schedule 4
Powers of Attorney Act 1998 (Qld) (‘POAA’) s 41(2), s 44, s 62, s 113(2)
Human Rights Act 2019 (Qld) (‘HRA’) s 13, s 19, s 24,
s 25, s 48

APPEARANCES:

Applicants:

BHJ – son of the adult

SHM – son of the adult

Others:

IHC – the adult

HM – daughter-in-law of the adult  

MGK – clinical manager (of the residential aged care facility)

FS – general manager (of the residential aged care facility)

KM – friend of the adult

Representative of the Public Trustee of Queensland

REASONS FOR DECISION

1. IHC is 84 years old and receives accommodation and care in a residential aged care facility. 

2. The adult made an Advance Health Directive on 6 April 1999. On 22 July 1999, she appointed her son, SHM, and her sister-in-law, MEC, severally, as her Enduring Powers of Attorney for personal matters.

3. On 22 August 2020, the adult appointed SHM as her Enduring Power of Attorney for personal and health matters.

4. On 24 November 2020, the Tribunal received an application from another of the adult’s sons, BHJ, seeking his sole appointment as guardian and joint appointment with SHM as administrator for the adult. On the same day, the Tribunal received an application from BHJ for an interim order.  The applications were made in collaboration with SHM and were within the context of SHM seeking to retain his role as attorney for personal and health matters for the adult.  At the time of the applications, the adult was residing in her home, with BHJ as her carer.

5. The application for an interim order was dismissed by the Tribunal in a decision dated 25 November 2020.

6. On 4 January 2021, whilst the adult was hospitalised, the Tribunal received an application from SHM seeking his sole appointment as guardian and administrator for the adult, together with an application for an interim order. 

7. The Tribunal granted an interim order on 5 January 2021, appointing the Public Trustee of Queensland as administrator for the adult for all financial matters.  The appointment was to remain current for three months or, if the Tribunal were to make a further order in this matter, until the date of the further order, whichever was to be the sooner.

8. The Tribunal received further applications from BHJ on 19 January 2021, seeking his sole appointment as guardian and administrator for the adult, along with an application for an order about an Enduring Power of Attorney.

   The Legislation

9. The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the GAA 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.

10. The adult is presumed to have capacity in accordance with General Principle 1 of the GAA.[1]

    [1]GAA, Section 11B.

11. The GAA defines capacity as follows:[2]

    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) communicating the decisions in some way.

    [2]GAA, Schedule 4 (definition of ‘capacity’).

12. In the determination of capacity for an adult for a matter, the Tribunal must consider the type of decisions to be made and the support available to the adult from the adult’s existing support network.[3]

    [3]GAA, Section 5(c).

13. The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.

14. The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.

15. The Tribunal is required to act in accordance with sections 14 and 15 of the GAA 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.

16. The Tribunal must have regard to the POAA in its consideration of IHC’s Enduring Powers of Attorney dated 22 July 1999 and 22 August 2020.

17. The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the POAA. 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 POAA.Section 44 of the POAA provides the formal requirements for making an Enduring Power of Attorney. The Tribunal may declare an Enduring Power of Attorney invalid if it does not comply with other requirements of the POAA.[4]

    [4]POAA, Section 113(2).

    Does IHC have capacity to make personal and financial decisions?

18. The Tribunal had written evidence in relation to the adult’s decision-making capacity from two medical professionals.  The evidence includes three documents from Dr Anthony French, a consultant physician and geriatrician, and one report from Dr Tracy Reece, a general practitioner.  The reports are referred to below, in contemporaneous order.

19. In his letter dated 16 September 2020 to Dr Reece, Dr French describes the adult as experiencing dementia that is ‘clearly moderate to severe’.  He references the adult’s score of less than 15/30 on the Montreal Cognitive Assessment (MoCA) administered on 16 September 2020, opining the poor result was influenced by the adult’s ‘significant fatigue and disinhibited resistance to continued testing’. Dr French states that the adult’s ‘dysfunction is multifaceted’, and includes anxiety, reactivity, disorientation, attentional deficits, distractibility, confusion, very poor executive function and poor recall.  He provides that the adult had no understanding of her inability to care for herself and her resultant complete reliance on BHJ.  Dr French expresses concern that SHM, as the adult’s Enduring Power of Attorney, was ‘not available or really involved’ and that the adult’s ‘EPOA really needs to be shared’ between BHJ and SHM, given ‘limitations’ to the care she was receiving in her home from BHJ at that time and the likelihood the adult would require aged care placement in the near future.  He provides the opinion that, at that time, the adult had the requisite capacity to make an Enduring Power of Attorney, but was ‘not keen’ to make changes ‘due to a sense of fatigue’.

20. The Tribunal received a written report dated 29 October 2020 from Dr Tracy Reece, who had last reviewed the adult on 29 September 2020. Dr Reece provides that the adult experiences hearing loss and has poor vision associated with macular degeneration, and that the adult has comorbidities including hypothyroidism, osteoporosis, gastro-oesophageal reflux disease, chronic obstructive pulmonary disease and anxiety. Dr Reece states that the adult was diagnosed with dementia (mixed subtype, being a combination of vascular and dementia of the Alzheimer type) in June 2019.  The doctor states that the adult had demonstrated a decline in memory over the past two to three years, which had accelerated over the past twelve months and that the adult had attained a score of 21/30 on the Mini Mental State Exam (MMSE) on 4 December 2019. Previous assessment on the same instrument yielded results of 24/30 in March 2019 and 27/30 in April 2018. The report also references the adult’s score of less than 15/30 on the MoCA on 16 September 2020 which, the doctor opined, may have been impacted by the adult’s fatigue at the time of the assessment.  In the doctor’s opinion, the adult was able to make simple, not complex, personal decisions and was unable to make all financial decisions.

21. In a report to the Tribunal dated 24 March 2021, Dr French states that the adult feels she has capacity to make basic decisions and is happy for the support from BHJ in relation to her application with QCAT to change her Enduring Power of Attorney. He states the adult’s medical diagnoses as inclusive of mixed dementia (moderate-severe), anxious depression, chronic obstructive pulmonary disease, bilateral vision loss, hearing impairment, hypertension, hypothyroidism, Barrett’s oesophagus, osteoporosis, osteoarthritis and spinal dysfunction. Dr French reports that the adult clearly expressed her basic preferences using verbal communication and gestures and that she is vulnerable to both positive and negative influences.  He provides the opinion that the adult is able to make simple personal decisions and unable to make all complex personal and financial decisions. He also stated that, in his opinion, the adult understood criteria relevant to making and revoking an Enduring Power of Attorney and that the adult’s ‘overall cognitive dysfunction [is] itself actually mild, mostly amnestic, and slowly progressive’.  The adult was receiving care in a secure unit of a residential aged care facility at the time the report was written.

22. In a letter also dated 24 March 2021 to Dr Tracy Reece, Dr French states that the adult retains her capacity to make or change her Enduring Power of Attorney, in favour of BHJ.  He provides the adult attained a score of 17/28 on the MMSE on 24 March 2021, which he interprets as representative of her current impairment of a moderate-severe mixed dementia of Alzheimer’s and vascular subtypes without perceptual and language disturbances. He further provides that as BHJ found the adult’s environment at the residential aged care facility stressful, he recommended the adult be moved away from more behaviourally disturbed residents, and that BHJ wants to resume caring for the adult in her home on a full-time basis.

23. In its determination of the adult’s decision-making capacity, the Tribunal received oral evidence from attendees at the hearing.  IHC participated in the initial minutes of the hearing with communication support from MGK, a clinical manager at the residential aged care facility.  IHC told the Tribunal that she was in a room talking with some friends and that the room was not in a hospital.  She was not able to state where she was living, nor where she would like to live.

24. MGK provided the Tribunal with a clinical update in relation to the adult’s functional capability as evidenced within the setting of the residential aged care facility. She stated the adult had been cared for in a secure dementia unit upon her arrival at the residential aged care facility.  She reported the adult had displayed wandering and exit-seeking behaviour along with some verbally and physically aggressive behaviours directed towards residents and staff.  MGK told the Tribunal that the adult was currently undergoing a two-week trial in a less secure area of the facility, however the adult has stated that she does not feel safe in her current surroundings and would like to return to her former area within the facility where the residents are not ‘as old’.  MGK submitted that the adult is not oriented to time or place and requires assistance with activities of daily living, including with oral intakes at mealtimes. MGK provided the clinical opinion that the adult is able to make simple choices (e.g. chicken or lamb as a main course) and would not have the cognitive ability to make decisions in relation to her finances.

25. The applicants submitted that the adult had been admitted to QEII Hospital on 18 December 2020 from her home where BHJ had been caring for her. She was discharged to a residential aged care facility on 12 January 2021, only to be admitted to the Mater Private Hospital on 16 January 2021. After three days, the adult was discharged to the current residential aged care facility.  The representative of the Public Trustee of Queensland told the Tribunal that, under the interim order, the administrator had signed the residential care agreement with the current facility on 4 March 2021 on behalf of the adult. 

26. The adult’s sons submitted to the Tribunal that they had differing views in relation to the adult’s accommodation requirements and, therefore, the permanency of the adult’s tenure at the residential aged care facility.  Whilst SHM did not oppose the adult’s current placement, BHJ submitted that the adult’s permanent accommodation in the residential aged care facility required further consideration and that it was not in the adult’s best interests to be accommodated with residents who are behaviourally and cognitively impaired.  In addition to accommodation concerns, there are health care considerations, as the adult has complex co-morbidities that require a decision-maker to consent or refuse treatment on her behalf.  

27. The decisions that are therefore required for the adult are in relation to the complex issues of her accommodation, health care requirements and financial matters. BHJ and SHM, as members of the adult’s circle of support, have not been able to discharge effective decision making, as is evidenced by their numerous and competing applications to the Tribunal for appointments as formal decision makers for the adult.

28. The Tribunal considered the medical, clinical and oral evidence in relation to the adult’s decision-making capacity. The Tribunal finds the evidence of Dr French inconsistent for two reasons. On 16 September 2020, he assessed the severity of the adult’s dementia as moderate-severe. He did so again on 24 March 2021, yet, in the same correspondence, he defined the adult’s overall progressive cognitive dysfunction as mild and mostly amnestic. Secondly, Dr French wrote on 24 March 2021 that, despite being unable to make complex decisions, the adult was, in his opinion, able to make decisions in relation to making or revoking her Enduring Power of Attorney. The Tribunal is of the view that the requisite capacity to make or revoke an Enduring Power of Attorney is a complex matter, having regard to section 41(2) of the POAA. The evidence of Dr French for these two matters is therefore not given significant weight by the Tribunal.

29. The undisputed evidence before the Tribunal is that the adult has a diagnosis of a mixed (Alzheimer’s and vascular) dementia. The diagnosis was made in June 2019. The most recent clinical evidence by the clinical manager at the adult’s residential aged care facility is that the adult is disoriented and her decision-making ability is limited to communicating simple day-to-day choices. The weight of evidence establishes that IHC has progressive cognitive deficits across a number of domains including orientation, attention, concentration, executive function and recall, and that her levels of anxiety and reactivity impact on her functionality.

30. Having regard to the type of decisions required for IHC, and the support available to her, the Tribunal determines that IHC has cognitive deficits which impair her ability to make complex personal decisions and all financial decisions (simple and complex).

31. The Tribunal, therefore, is not satisfied that IHC understands the nature and effect of her financial decisions (both simple and complex) or complex personal decisions. Accordingly, the Tribunal rebuts the presumption of capacity for IHC for financial and complex personal matters, including the complex matters in relation to making and revoking an Enduring Power of Attorney.

    Determination of the Enduring Power of Attorney dated 22 August 2020

32. The Tribunal’s rebuttal of the presumption of capacity for the adult for complex personal matters enlivens the Enduring Power of Attorney dated 22 August 2020 appointing SHM as her attorney for personal and health decisions.

33. Accordingly, the Tribunal addressed the application in relation to making an order about the above Enduring Power of Attorney and considered the medical evidence prior to 22 August 2020 in relation to the adult’s decision making capacity for this specific matter.

34. The Tribunal accepts the evidence that the adult had been given a diagnosis of dementia in June 2019 and that her cognitive functioning has been assessed longitudinally by repeat administrations of the MMSE.  According to the above written evidence of Dr Reece, the MMSE score attained by the adult that most closely predates 22 August 2020 is that of 21/30 which the adult attained on 4 December 2019.

35. Notwithstanding the above evidence in relation to MMSE results, there is no medical evidence before the Tribunal in relation to the specific matter of the adult’s capacity to make or revoke an Enduring Power of Attorney on or before 22 August 2020. 

1. Accordingly, the presumption that the adult had capacity to make the Enduring Power of Attorney of 22 August 2020 is not rebutted and the Tribunal, therefore, determines that the Enduring Power of Attorney of 22 August 2020 is valid.

   Determination of the Enduring Power of Attorney dated 22 July 1999

2. There is no evidence before the Tribunal to rebut the presumption that the adult had the requisite capacity to make the Enduring Power of Attorney on 22 July 1999.  In any event, the Enduring Power of Attorney dated 22 July 1999 was essentially revoked by the adult when she made the Enduring Power of Attorney dated 22 August 2020. 

3. Nonetheless, the Tribunal observes some deficits in the manner in which the Enduring Power of Attorney dated 22 July 1999 was executed.  The evidence establishes that SHM and MEC signed their acceptances as attorneys on 24 June 1999 and 25 June 1999, respectively, thereby pre-dating the adult’s signature of 22 July 1999. Additionally, the questions contained within sections 23, 24, 25 and 26 of the Enduring Power of Attorney dated 22 July 1999 were not addressed, nor did the adult sign the statement contained within section 29. The Tribunal, therefore, is not satisfied that the witness properly certified the document insofar as ensuring the adult understood the nature and likely effects of each direction stated in the document.[5]

   [5]POAA Section 41(2).

4. Accordingly, the following Enduring Power of Attorney for IHC is declared invalid pursuant to s 113(2) of the POAA and s 82(2) of the GAA: the Enduring Power of Attorney dated 22 July 1999 appointing SHM and MEC severally as attorneys for personal matters, including health care matters.

   The Advance Health Directive dated 6 April 1999

5. There is no evidence before the Tribunal to rebut the presumption that the adult had the requisite capacity to make the Advance Health Directive on 6 April 1999.  The document is complete and has been properly certified. Accordingly, the Tribunal acknowledges the validity of this document.

Is the current decision-making regime meeting the adult’s needs and protecting her interests?

1. In the context of the Tribunal’s rebuttal of the adult’s capacity for making financial and complex personal decisions, together with the Tribunal’s declaration of the validity of the Enduring Power of Attorney dated 22 August 2020, the Tribunal proceeded with hearing the applications for the appointment of a guardian and administrator for the adult.  There must be an adequate and effective decision-making regime in place for the adult, as otherwise her needs will not be met and her interests will not be protected.

   Is there a need for the appointment of a guardian?

2. SHM, as the adult’s attorney for personal and health matters, is required to make decisions for the adult, having regard to the General Principles[6] and Health Care Principle.[7] His legislative obligations include liaising with all stakeholders, considering their opinions and then making decisions in the adult’s best interests which can be actioned and maintained.

   [6]GAA, Section 11B.

   [7]GAA, Section 11C.

3. IHC is receiving care at a residential aged care facility.  She has permanent tenure at the facility as a consequence of the Public Trustee of Queensland authorising the agreement whilst acting as plenary administrator under the interim order of the Tribunal dated 5 January 2021. At the hearing, BHJ confirmed he was not convinced the adult’s care requirements were such that she required 24/7 care on a permanent basis within a dementia unit of an aged care facility, while SHM, as the adult’s attorney for personal and health matters, sought to have the adult remain in her current accommodation.

4. An accommodation decision is therefore required in order to afford the adult appropriate and sustainable accommodation and care.   

5. In relation to health care matters, the adult has complex comorbidities that require decisions in relation to consenting or declining treatment, having regard to her Advance Health Directive, the General Principles[8] and the Health Care Principle.[9]  In her Advance Health Directive dated 6 April 1999, the adult describes herself as ‘one of Jehovah’s Witnesses’ and directs that ‘no blood transfusions be given to [her] under any circumstances . . . even if physicians deem such necessary to preserve [her] life or health’. SHM submitted that he should remain the adult’s decision-maker for health care, under the Enduring Power of Attorney dated 22 August 2020, as he shares the same deeply held values and convictions as the adult. 

   [8]GAA, Section 11B.

   [9]GAA, Section 11C.

6. In contrast, BHJ submitted that he should be appointed as the adult’s guardian for accommodation and health care matters.  He said he was more aware of the adult’s health care concerns as he had been living with and caring for the adult for at least four years and had been active in supporting the adult at all medical appointments and hospital admissions. He said he was more available than SHM, who resides interstate, and that he was in a position to visit the adult frequently and respond quickly to communications by health care providers requiring health care treatment decisions for the adult.

7. Since the initial applications were received by the Tribunal, the adult has received accommodation and care in a number of locations.  At the time of the first application, the adult was living in her home, being cared for by BHJ. The adult was then admitted by ambulance from her home to the first hospital on 18 December 2020, in the context of a falls history.  It was during this admission that SHM and BHJ submitted their individual and competing applications for appointment.  The adult was discharged to a residential aged care facility on 12 January 2021.  She received injuries at the residential aged care facility in an alleged incident and was subsequently removed from that accommodation and admitted to the second hospital on 16 January 2021.  On 19 January 2021, she was discharged to the residential aged care facility where she now receives care.

8. The Tribunal has been provided with reference numbers in relation to Queensland Police Service involvement pertaining to allegations of harm sustained by the adult within the aged care setting.  

9. The written evidence before the Tribunal describes an acrimonious and highly conflictual relationship between SHM and BHJ.  SHM has accused BHJ of perpetrating psychological abuse and neglect upon the adult, and denying the adult contact and visits with family and friends.  He has also accused BHJ of falsely representing himself as SHM to hospital staff in an attempt to thwart the decision of SHM as attorney to discharge the adult to the current aged care facility. In addition, SHM provided written evidence to the Tribunal wherein he informed staff at the current residential aged care facility of his decision to prohibit unsupervised contact between BHJ and the adult.  Both BHJ and SHM have provided the Tribunal with affidavits from various third parties supporting their respective proposed appointments whilst describing the unsuitability of the proposed appointee in the competing application.

10. The patterns of negative communication between SHM and BHJ were demonstrated within the context of the Tribunal hearing as SHM and BHJ were unable to engage in productive discussions in relation to the adult’s circumstances and requirements.  

11. The evidence before the Tribunal is that the highly conflictual relationship between SHM and BHJ adversely impacts effective liaison and consultation prior to the decision making of the attorney, and impedes the ability of the attorney’s decision to be effected and maintained. The evidence establishes, therefore, that the current decision making regime, with SHM as the enduring Power of Attorney for personal and health care matters for the adult, is not in the adult’s best interests. 

    Conclusion

12. Based on the above evidence, pursuant to section 12 of the GAA, there is a need for a guardian in relation to accommodation and health care for the adult, as the adult’s needs are not being met and her interests are not being protected by the current arrangements.

    Who is the most appropriate person for appointment as guardian?

13. The evidence further establishes that the highly conflictual relationship and negative communication processes between SHM and BHJ adversely impact liaison and consultation such that neither SHM nor BHJ would be able to discharge effective decision making for the adult in relation to her personal matters as an appointed guardian.

14. Section 14(2) of the GAA provides that the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. The Public Guardian is an appropriate and independent decision maker with extensive knowledge, skills and experience in applying the General Principles[10] and the Health Care Principle[11] to decision-making. Such capabilities include heeding the voice of the adult in relation to her health care decisions as expressed through her Advance Health Directive.

    [10]GAA, Section 11B.

    [11]GAA, Section 11C.

    Conclusion

15. Accordingly, as there is no other appropriate person available for appointment, the Tribunal appoints the Public Guardian as guardian for IHC for accommodation and health care matters.  The appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in five years. 

16. The Enduring Power of Attorney for IHC, dated 22 August 2020, appointing SHM as attorney for personal and health matters is overtaken by the making of this appointment and, in accordance with s 22(2) of the GAA can no longer be acted upon to the extent that this appointment has been made.

    Is there a need for the appointment of an administrator?

17. The Tribunal obtained evidence in relation to the financial decisions that are required for the adult.

18. The representative of the Public Trustee of Queensland submitted that the adult receives the age pension and that her assets consist of savings of $3,000 and a house in Brisbane (in which BHJ continues to reside). The property was a War Service Home and the interim administrator had been undertaking enquiries in relation to whether the mortgage had been discharged.  The adult’s expenses include accommodation fees, health insurance and personal care requirements.  The representative submitted that BHJ pays all expenses in relation to the adult’s property (including rates, insurance and electricity) and that the adult’s property is a protected asset in relation to the adult’s contribution to her aged care.

19. The evidence establishes that IHC has income and assets that require management to ensure funds are available for her needs, including accommodation and care requirements, as determined by the guardian, at the present time and into the future.

20. The Tribunal determines that the provisions of section 12 of the GAA have been satisfied in relation to the necessity of the appointment of an administrator for the adult.

    Who is the most appropriate person for appointment as administrator?

21. At the hearing, SHM submitted he no longer sought to be appointed as administrator for the adult, and proposed the appointment of the Public Trustee of Queensland.   

22. The options for appointment as administrator for the adult, therefore, were BHJ or the Public Trustee of Queensland. 

23. The Tribunal had regard for the appropriateness considerations set out in section 15 of the GAA in relation to proposed appointees.

24. In his written submissions to the Tribunal, SHM alleged that BHJ had been utilising some of the adult’s finances for his own benefit.  This allegation was not substantiated by the Public Trustee of Queensland, as interim administrator.  The Public Trustee of Queensland advised in the Tribunal Briefing Report that should evidence of misappropriation be identified during the review of the adult’s accounts, appropriate steps would be taken to recover funds.

25. BHJ disputed the allegations made by SHM and submitted that he had been supporting the adult with her financial transactions for many years within the context of being her carer and receiving a carer’s pension. He told the Tribunal he had knowledge of the adult’s circumstances, along with her views and wishes.

26. Other evidence before the Tribunal consists of multiple documents which BHJ and SHM submitted to the Tribunal independently of each other.  The correspondence includes emails into which the Tribunal was copied when disputes occurred between BHJ and SHM, along with direct submissions to QCAT.  At the hearing, the Tribunal observed high levels of conflict and negative communication processes between BHJ and SHM.  BHJ was asked repeatedly to cease interrupting the oral submissions of SHM, demonstrating a disinclination to listen and consider the information and opinions provided by SHM in relation to the adult. 

27. Should BHJ be successful in his application to be appointed as administrator for the adult, he would be obliged to liaise with all stakeholders, including SHM, in order to consider options and make decisions in the adult’s best interests and in accordance with the General Principles.[12]  Given the highly conflictual relationship between BHJ and SHM, the Tribunal is not convinced that BHJ would be able to adequately consult with SHM, or consider his views should they be communicated to him in writing.  The Tribunal is therefore not satisfied that BHJ would be able to discharge effective decision making in accordance with the legislative requirements.

    [12]GAA, Section 11B.

    Conclusion

28. The evidence establishes that an independent decision-maker would be required to consult with all stakeholders, including the guardian, and make decisions that best meet the adult’s needs in accordance with the General Principles.[13]

    [13]GAA, Section 11B.

29. The Tribunal is, therefore, of the view that the Public Trustee of Queensland, as an independent, skilful and experienced administrator, would be able to discharge effective financial decision making for the adult. The Public Trustee of Queensland is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA.

30. Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for IHC for all financial matters.  The appointment is until further order of the Tribunal. 

31. The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. IHC’s rights to privacy[14], freedom of movement[15] and property[16] are engaged and limited by decision of the Tribunal to appoint a guardian and administrator for the adult. On balance, the decision of the Tribunal ensures that the adult’s finances are managed so that she can receive accommodation and care commensurate to her increasing needs in the context of her advancing dementia. Taking into account the above findings in relation to the criteria set out in the GAA, the Tribunal is satisfied that the benefits of the decision of the Tribunal outweigh any limitations imposed on the adult’s human rights. Accordingly, the Tribunal determines that the limits imposed by the decision of the Tribunal are reasonable and demonstrably justified in accordance with section 13 of the HRA.

    [14]HRA, Section 25.

    [15]HRA, Section 19.

    [16]HRA, Section 24.