In the Matter of QR
[2018] ACAT 118
•26 November 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF QR (Guardianship) [2018] ACAT 118
GT 151/2018
Catchwords: GUARDIANSHIP – applications for appointment as guardian and financial manager for a person – statutory criteria for appointment – factors to be taken into account – circumstances in which Public Trustee and Guardian should be appointed rather than an available family member who meets most statutory conditions for appointment – principles to be followed by decision-maker
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 26
Guardianship and Management of Property Act 1991 ss 4, 5, 5A, 6, 7, 8, 9, 10, 11, 14, 19, 24, 26, 27
Cases cited:Holt v Protective Commissioner (1993) 31 NSWLR 227
In the matter of AB [2017] ACAT 67
In the matter of LQL [2018] ACAT 53
M v M [2013] NSWSC 1495
Public Trustee for the ACT v Lee [2014] ACAT 69
Re LSC and GC [2016] NSWSC 1896
Tribunal: President G Neate AM
Member R VassarottiDate of Orders: 26 November 2018
Date of Reasons for Decision: 26 November 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 151/2018
In respect of
QR
D.O.B 18/10/1924
TRIBUNAL: President G Neate AM
Member R Vassarotti
DATE:26 November 2018
ORDER
1.The whole of the Enduring Power of Attorney executed by QR on 5 August 2005 is revoked.
Appointment of Guardian
2.VX is appointed guardian for QR (the protected person) with the following powers:
(a)to decide where, and with whom, the protected person is to live;
(b)to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
(c)to give any consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
(d)to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect her from unreasonable risks to her health and welfare; and
(e)to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):
(i) giving or receiving information; or
(ii) giving consent to investigations and assessments; or
(iii) participating in negotiations; or
(iv) signing documents.
3.The Tribunal will review this appointment on its own initiative before 26 November 2021.
4.The guardian must notify the Tribunal or any changes to the address of, or of any other significant change in circumstances of, herself or of the protected person.
Appointment of Manager
5.ST is appointed as manager to manage all of the property including finances of QR (the protected person) with the following powers:
(a)all the powers the protected person would have been entitled to exercise if she were legally competent to exercise powers in relation to her property including her finances herself.
6.Any dealings with the real property of the protected person must have prior endorsement of the Public Trustee and Guardian.
7.The Tribunal notes that, before endorsing the sale of any real property, the Public Trustee and Guardian will require evidence that:
(b)the sale price is the true market value of the property; and
(c)the sale is in the best interests of the protected person.
8.The Tribunal will review this appointment on its own initiative before 26 November 2021.
9.The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, herself or the protected person.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.On 8 October 2018, ST lodged with the ACT Civil and Administrative Tribunal (the Tribunal) an application to be appointed as guardian and financial manager for her 94 year old stepmother, QR.[1] Attached to the application were copies of documents including an Enduring Power of Attorney (EPOA) and some medical reports. The hearing of the application was listed for Tuesday, 6 November 2018.
[1] The letters QR have been used to preserve the anonymity of the person the subject of the application. Letter have been used in place of the names of other people involved in the proceedings. The letters bear no resemblance to the initials of those people
2.On 2 November 2018, solicitors acting for QR sent to the Tribunal statements from YZ and VX which, among other things, stated that QR had asked each of them to be her guardian and that they gave their consent to that appointment.
3.QR attended the hearing with her solicitor. At the hearing, ST and her husband UT spoke in support of ST’s application. YZ and VX gave evidence. Other friends and supporters of QR, including two people from ACT Disability, Aged and Carer Advocacy Service (ADACAS), attended the hearing.
4.The Public Trustee and Guardian (PTG) was not represented at the hearing but provided the Tribunal with a written statement recording QR’s views and wishes in relation to ST’s application, as expressed to a senior guardian on 29 October 2018.
5.Near the end of the hearing, the Tribunal met with QR and her solicitor, in the absence of other participants in the proceedings, to ascertain her views and wishes in relation to the main issues in this case.[2] The meeting took place after most of the evidence had been adduced, tested and considered. That enabled the Tribunal to ask questions and assess QR’s answers in the context of that evidence.
[2] Section 26 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal may inform itself in any way it considers appropriate in the circumstances
6.The meeting proved valuable to the Tribunal because we could hear directly from QR, and could discuss with her some of her answers. The exchange occurred in an environment free of the potential effect of the presence of other people on QR’s statements. It also gave her an opportunity to be heard, something which she contended has not happened sufficiently in recent months.
7.In addition to ascertaining her views and wishes about whether a guardian and manager should be appointed and, if so, who should be appointed, the Tribunal was able to gauge the extent of QR’s:
(a)understanding of the medical assessments of her mental and physical health;
(b)appreciation of her mental and physical health and the implications of that for her preferred lifestyle; and
(c)short term memory loss.
8.The relevance and implications of that discussion will be considered later in these reasons for decision.
The issues
9.The issues in this case are:
(a)whether a guardian and/or financial manager should be appointed for QR;
(b)if so, what powers the guardian and/or financial manager should be given; and
(c)who is a suitable person to be appointed to each or both of those roles.
10.Those issues must be resolved by reference to the relevant provisions of the Guardianship and Management of Property Act 1991 (GMP Act) and the documentary and oral evidence before the Tribunal. Those provisions of the GMP Act are quoted later in these reasons for decision.
11.The case also raised issues about whether the Tribunal could and should revoke an EPOA that QR executed in 2005 and which she purportedly revoked on 26 September 2018. That matter will be dealt with later in these reasons for decision.
12.Before considering those issues, it is appropriate to describe the events that preceded ST’s application. The following chronology draws on the written and oral evidence provided to the Tribunal.
Brief chronology of events leading to the application
13.On 5 August 2005, QR made an EPOA in favour of ST and her husband, UT, jointly and severally. The attorneys’ power to manage QR’s property and money came into effect only while she was incapacitated. The attorneys were authorised to make personal decisions and arrangements for her while she was incapacitated. They were authorised to give consent to lawful medical treatment which was essential for well-being on her behalf while she was incapacitated. They could also consent to medical treatment generally being withheld or withdrawn.
14.In December 2016, QR became ill and was hospitalised followed by a short stay in a rehabilitation centre. Apparently, she returned home earlier than advised by her medical practitioners. ST put in place numerous measures to ensure that QR was kept safe and secure in her own home, for example arranging Baptist Care, Meals on Wheels, and Woolworths online shopping.
15.On 16 November 2017, Dr A (a geriatrician and general physician) assessed QR (then aged 93), and referred due to her “increasing memory loss”. Dr A noted that QR had a housemaid and a gardener but was “otherwise relatively independent”. Her Mini-Mental State Examination (MMSE) score was 28/30. Dr A wrote “In summary, [QR] has cognitive impairment with predominant memory loss consistent with Alzheimer’s type dementia. This is despite the high Mini-Mental State examination score.”
16.In August 2018, QR was bedridden for two to three weeks. She suffered severe pain to her back, neck and left arm. During that time she relied on neighbours and friends and some Commonwealth Home Support Program that ST arranged through KinCare.
17.On 21 August 2018, ST (who had travelled to Canberra from her home in Brisbane) took QR to a doctor’s surgery for a check-up and assessment of her Alzheimer’s condition. QR was transferred by ambulance to Calvary Hospital for care and observation, due to severe back pain. During her hospital admission, she was diagnosed with acute vertebral fractures related to a fall one week prior. While there, she was assessed by the multidisciplinary team, including occupational therapists and physiotherapists. She had a functional assessment and was reviewed by the rehabilitation team.
18.On 22 August 2018, RN, the treating nurse practitioner for QR, made a written statement which recorded, after conversational questioning of QR, RN’s conclusion that QR:
did not understand the nature and consequences of her decisions and showed no logical reason to the answers she gave. This therefore would put [QR] in a position of physical and legal harm.
[QR] lacks decision-making capacity with regard to financial, health and personal matters. As such, the existing Enduring Power of attorney should come into effect from 22 August 2018.
19.ST returned to Brisbane on 26 August 2018 and came to Canberra again in early September 2018.
20.An undated discharge letter from Calvary Health Care Bruce (probably written on 5 or 6 September 2018) confirmed that QR “is not safe to return home on discharge. She requires 24 hour surveillance and as a result requires residential care on discharge. This decision has been made by her medical team in conjunction with her Allied health therapists.” According to ST, the decision to transfer QR to the Mirinjani Nursing Home in Weston, ACT (Mirinjani) was based on assessments by the Calvary Hospital team, Dr A and the University of Canberra. The Calvary support team found a place for QR at Mirinjani.
21.On 6 September 2018, QR was discharged from Calvary Hospital and transported to Mirinjani. In light of the immediate circumstances and in the exercise of their powers under the EPOA, UT and ST decided to:
(a)re-home QR’s birds, hens and two dogs;
(b)change the locks on back and front security doors of QR’s home; and
(c)block QR’s access to her bank accounts.
They left cash for her to use but withdrew her credit card, apparently because of QR’s previous vulnerability to scamming of money.
22.Given that the professional advice was that QR would not be returning home, and that expenses were likely to be incurred for her future accommodation, UT and ST considered in detail the options for the sale or rental of her family home. They obtained an assessment from a real estate agent about the amounts of money for each option, and what work would be needed for those purposes. However, they did not make a decision then or subsequently about the sale or rental of the property.
23.Friends of QR visited her and arranged for an advocate from ADACAS to visit her. It seems that QR might have been advised, or formed the view, that ST and UT were selling her house.
24.On 9 and 10 September 2018, ST discussed QR’s circumstance with QR’s friend, VX. VX gave evidence that on 9 September 2018 she spoke by telephone to ST who advised that:
(a)three medical teams at Calvary Hospital had assessed QR and she had failed their assessments;
(b)QR’s doctors had decided that QR had to live permanently in a nursing home;
(c)UT and ST had the EPOA for QR;
(d)UT and ST had found a place at Mirinjani; and
(e)QR’s house would have to be sold to pay a deposit bond, and ST and UT would return in two months’ time to sell the house.
25.VX retrieved QR’s dogs and continues to look after them.
26.On 11 September 2018, UT and ST returned to Brisbane for work.
27.Subsequently, VX provided practical assistance to QR.
28.On 20 September 2018, VX took QR from Mirinjani to see Dr B, VX’s general practitioner. Dr B assessed QR as 23/30 on the MMSE, which he said was an acceptable result for someone who wished to live at home. He referred QR to see Dr A the following week.
29.On 21 September 2018, ST rang VX to discuss the situation and received an email from VX stating that she did not think it would be appropriate for her to comment further in this regard, and suggesting that ST and UT contact QR’s advocate directly.
30.According to VX, she had asked to take QR away from Mirinjani for a visit but was told she could not do so because of the EPOA, which she was shown by the deputy manager of Mirinjani. Having identified who QR’s solicitors are, on 26 September 2018, VX took QR to her solicitor’s office, where she revoked the EPOA. Apparently that was done after a conversation with a solicitor in the absence of VX. A new EPOA was not made. The solicitors subsequently received medical evidence and sought an opinion about QR’s capacity to make an EPOA and a will.
31.Dr A reviewed QR on 27 September and 3 October 2018. In a report dated 3 October 2018, Dr A noted the diagnosis of Alzheimer’s type dementia since 16 November 2017. She recorded a history of assessment at Calvary Hospital, noting that QR was deemed not to have the ability to return home without full time care (24 hours a day) due to the combination of high falls risk and cognitive decline in the setting of Alzheimer’s disease.
32.Dr A noted that QR’s MMSE was 28/30 in November 2017 and 26/30 in April 2018. In Dr A’s opinion, a more accurate assessment of QR’s cognitive function is the Montréal Cognitive Assessment (MOCA) – scoring 14/30 on 27 September 2018, which indicates moderate cognitive impairment (with a score of 26/30 or above considered to be normal). The MOCA indicates that QR has deficits in multiple cognitive domains including frontal lobe executive function, calculation and memory recall. Dr A also recorded that:
(a)QR also has a history of chronic heart failure.
(b)QR was not able to explain the role of an EPOA and said that the reason why she changed her EPOA was because she felt that ST “does not think about the situation, she doesn’t really know me.”
(c)QR has some insight into her care needs if she were to return home. She has limited understanding of her personal financial circumstances and is unable to calculate sums of money or compare larger denominations.
33.Dr A concluded that QR does not have capacity to make a new EPOA and strongly recommended the matter be referred to the ACAT to appoint a person who QR will trust to make decisions on her behalf in relation to her finances, personal and health matters.
34.Dr A also concluded that QR does not have testamentary capacity. She recommended that decisions regarding whether QR remains at Mirinjani or whether she returns home should be deferred until an EPOA is appointed. Due consideration needs to be given to QR’s recent history of cognitive and functional decline and assessments undertaken during her inpatient admission to Calvary Hospital in August and early September 2018.
35.The summary of events in recent months and the fact that there are competing applications for appointment as guardian and financial manager point to some disagreement and perhaps conflict between UT and ST and QR’s friends about what decisions need to be made on her behalf and the method of making those decisions.
36.The evidence also indicated that QR misunderstood some of the circumstances surrounding her relocation to Mirinjani, and that the misunderstanding appears to have influenced her attitude to how her affairs should be handled in the future. That impression is supported by the following account in YZ’s statement:
18. [QR] told me that she had revoked [UT and ST’s] power of attorney because she had been deceived into entering Mirinjani for a short period of physio therapy and rehabilitation. [QR] was angry that [ST] had not informed her of her intention to sell her home or give away her much-loved pets. [QR] told me these things when I visited her at the nursing home on numerous occasions.
37.At the hearing, UT acknowledged that QR might have thought she was in short term accommodation at Mirinjani.
38.The written statement of VX records QR’s “disbelief and anguish” expressed to her about what UT and ST had done or were doing under the EPOA. That included admitting her permanently to Mirinjani, planning to sell her home, and giving away her dogs and birds. QR had stated that, by such actions, UT and ST had “stolen my life” and taken away “my reasons for living.”
39.ST gave oral evidence that she did not tell QR about selling the house (or that they were investigating selling or renting it) but did tell her that they would have to make arrangements for the re-housing of her animals (birds, hens and dogs). QR was upset at the time but, ST thought, subsequently forgot this conversation. ST suspected that QR was later told that her pets would be disposed of and that her house would be sold. Subsequently, ST wrote a confidential letter to QR to explain what was meant. There is no issue that the letter exists, but it was not in evidence before the Tribunal. According to ST, she spoke to her mother subsequently and considered that QR understood what had happened.
40.UT and ST expressed their concern, orally and in writing, that those who sought to assist QR immediately after she went to Mirinjani acted on incomplete or inaccurate information. They did not contact UT and ST or, it appears, QR’s regular treating medical practitioners. On the information available to the Tribunal, it is not possible to decide whether some of the allegations about misinformation being provided to QR are correct. However, some of the exchanges at the hearing suggest that each of the people dealing with QR was attempting to act in her interests but was not communicating with, or making inquiries of, the others. Consequently misunderstandings arose which led to degrees of mistrust. Significantly for these proceedings, it seems that QR might have misunderstood some of the actions taken by UT and ST and the basis on which they proceeded to make certain decisions on her behalf.
41.UT and ST stated that not only did they have to make difficult decisions under pressures of time and professional advice that QR could not return home, they were advised by medical practitioners not to discuss these matters with QR in order that she not be distressed. In her statement, VX wrote that on 9 September 2018 ST stressed to her that QR’s doctors instructed that no one was to tell QR what was happening because it would upset her too much.
42.It is apparent that, as a result, QR developed a misapprehension about some matters (particularly the possible pending sale of her home) and a sense that UT and ST had taken actions in relation to matters that were important to her but without seeking her views. Her frustration and possible resentment is captured in her statements that ST had “taken away my life” and “does things without consulting me.”
43.For their part, UT and ST appear to have acted in accordance with their powers under the EPOA and in reliance on professional advice to do what they considered to be in QR’s best interests. They took the precaution of obtaining legal advice that they were acting appropriately under the EPOA.
44.On the basis that the EPOA has been revoked, no one other than QR has legal authority to deal with QR’s finances or property, or make decision on her behalf about her accommodation or other health or welfare matters. The Tribunal was advised that, apart from an initial payment, no subsequent payments have been made to Mirinjani for QR’s ongoing accommodation. Her home is vacant and no decision can be made about its rental or sale, or whether it should be modified so that QR could return to live in it. It is in that context that the application for the appointment of a guardian and financial manager has been brought.
Should a guardian and/or financial manager be appointed?
45.The provisions that govern whether a guardian and/or financial manager should be appointed are set out in sections 7(1) and 8(1) of the GMP Act:
7 Appointment and powers of guardians
(1) This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a guardian is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
Note 1See s 8C in relation to appointment of a guardian for a child.
Note 2A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).
8 Appointment and powers of managers
(1) This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a manager is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
46.Section 5 of the GMA Act provides:
5 When does someone have impaired decision-making ability?
For this Act, a person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.
47.The medical evidence before the Tribunal comprised:
(a)Dr A’s report dated 16 November 2017;
(b)RN’s statement dated 22 August 2018;
(c)the discharge statement from Calvary Hospital of 5 or 6 September 2018; and
(d)Dr A’s report dated 3 October 2018.
48.It is not necessary to set out in detail the contents of those documents, much of which has been noted earlier. It is sufficient to observe that the documents contain sufficient information and professional opinions from suitably qualified persons to satisfy the Tribunal that QR has impaired decision-making ability in relation to matters relating to her health, welfare, finances and property.
49.That conclusion is supported to some extent by the oral and written evidence of the persons who have consented to be appointed as QR’s guardian. It is also supported by the Tribunal’s direct observations during the course of the hearing, particularly in the conversation with QR where her short-term memory loss was apparent.
50.The evidence before the Tribunal indicates that, if the EPOA has been revoked, there is no one other than QR with legal authority to make decisions about her future accommodation needs, health care needs and finances or about the maintenance and possible rental or sale of her currently unoccupied home.
51.It follows that the Tribunal is satisfied that:
(a)QR has impaired decision-making ability in relation to health and welfare matters; and
(b)there is, or is likely to be, a need for a decision in relation to one or more matters about her health and welfare, including her accommodation; and
(c)if a guardian is not appointed, QR’s needs will not be met and her interests will be significantly adversely affected.
52.The Tribunal is also satisfied that:
(a)QR has impaired decision-making ability in relation to her financial matters and matters affecting her property; and
(b)there is, or is likely to be, a need for a decision in relation to one or more matters involving her finances and property; and
(c)if a manager is not appointed QR’s needs will not be met and her interests will be significantly adversely affected.
53.Because the criteria in section in sections 7(1) and 8(1) of the GMP Act are satisfied, it is appropriate to appoint a guardian and manager.
What powers should be conferred on the guardian and/or manager?
Statutory provisions
54.Section 7 of the GMP Act also provides:
(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.
NoteThe powers that may be given to a guardian are restricted under s 7B.
(3) The powers that may be given to a person’s guardian include the following powers:
(a)to decide where, and with whom, the person is to live;
(b)to decide what education or training the person is to receive;
(c)to decide whether the person is to be allowed to work;
(d)if the person is to be allowed to work—to decide the nature of the work, the place of employment and the employer;
(e)to give, for the person, a consent required for a medical procedure or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));
NoteFor when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
(f)to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
NoteFor provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
(g)to bring or continue legal proceedings for or in the name of the person.
55.Section 8 of the GMP Act also provides:
(2) The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.
NoteThe ACAT’s power to appoint a manager is restricted under s 8A.
(3) The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.
56.Section 11 is also relevant.
11 Powers to be least restrictive
The powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.
Note Also, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4).
57.At the hearing, it seemed to be generally accepted, and the Tribunal has decided, that a guardian should have the power:
(a)to decide where, and with whom, QR is to live;
(b)to give, for QR, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure or medical treatment);
(c)to give, for QR, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure); and
(d)to make other personal decisions needed to ensure that QR’s health and welfare needs are met and to protect her from unreasonable risks to her health and welfare; and
(e)power to do the things necessary to give effect to decisions about the matters set out above, including (but not limited to) giving or receiving information, giving consent to investigations or assessments, participating in negotiations, or signing documents.
58.The Tribunal has also decided that a financial manager should have the power to manage all of QR’s property, including her finances and real estate.
59.We note that any person (or persons) on whom those powers are conferred should exercise the powers in accordance with the decision-making principles.
60.Section 4 of the GMP Act provides:
4 Principles to be followed by decision-makers
(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
(2) The decision-making principles to be followed by the decision‑maker are the following:
(a)the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(b)if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
(c)if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;
(d)the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
(e)the protected person must be encouraged to look after himself or herself as far as possible;
(f)the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
(3) Before making a decision, the decision-maker must consult with each carer of the protected person.
(4) However, the decision-maker must not consult with a carer if the consultation would, in the decision-maker’s opinion, adversely affect the protected person’s interests.
(5) Subsection (3) does not limit the consultation that the decision‑maker may carry out.
Who should be the guardian and/or financial manager for QR?
61.At the heart of this case is a contest as to who is the most appropriate person to be the guardian and manager of QR. To answer this question requires close consideration of the statutory provisions governing who may be appointed (as set out in sections 9 and 10 of the GMP Act), and the evidence before the Tribunal in relation to ST, YZ and VX.
62.For reasons which will become apparent, it is necessary to consider separately the appointment of a guardian and a financial manager. To some extent, the appointment of someone to one of those roles has a bearing on who should be appointed to the other.
Who should be the guardian for QR?
63.As noted earlier, three people have provided consent in writing to be appointed as guardian for QR.
64.ST is 64 years of age and the stepdaughter of QR. She lives in Brisbane, Queensland and is in paid employment in the retail sector from Thursday to Sunday each week. She is in regular telephone contact with QR and visits her periodically. In recent years, she has taken various steps to ensure that relevant services and supports are provided to QR to enable her to continue living in her own home. From August 2005 until it was revoked in September 2018, she and her husband were attorneys under an EPOA executed by QR.
65.YZ is 57 years of age and a friend of QR. He is a disability pensioner, having ceased work in approximately 2002. He subsequently undertook some studies at the Australian National University. He first met QR in 2011 when she required assistance with her garden. In recent years he has also helped with aspects of her day-to-day living, including taking her shopping after she stopped driving. He has accompanied her to some medical appointments. He has seen and spoken with her approximately three or four times each week. They share cups of tea. He receives payment for his work, and is reimbursed for groceries which he purchases on her behalf and petrol expended on doing errands for her.
66.YZ stated that QR asked him to be her guardian at Mirinjani and at the solicitors’ office. He has never previously been appointed as a guardian, financial manager or an attorney under a power of attorney. He contends that he should be appointed as her guardian because he is “a benign and trusted friend of long standing with altruistic motivation.” He considers that he could be guardian alone, but would prefer to be appointed with VX.
67.ST took issue with some of YZ’s written evidence, including about the reasons for and frequency of his contact with QR. More relevantly for these proceedings, she challenged his suitability to be a guardian and manager for QR because of some specified health issues.
68.VX is 61 years of age and a close friend of QR, who she first met in 2004, when QR taught VX’s daughter. In recent years, the two women have spoken and spent time together at least once each month, including at QR’s home or at a restaurant or café. They have conversed about a broad range of topics and attended plays together. VX assisted QR in organising the opening of QR’s gardens to the public to raise funds for charities.
69.Since QR’s admission to Mirinjani, VX has seen or spoken with her approximately three times each week. She has taken QR to attend medical appointments, and provided other forms of practical assistance including looking after QR’s dogs. She has facilitated QR seeing her solicitors, accountant and a geriatrician and has secured a Level 3 Home Care Package to subsidise the costs of in-home care that QR would require if she were to return to live at her home. She has had discussions with various individuals and organisations about a range of possible modifications to the home and provision of in-home services.
70.VX considers that she understands the role of a guardian and financial manager, as in 2015 she was appointed by the Tribunal to both roles for a relative. She has also been nominated under powers of attorney for family members. VX also stated that she is honest, cares about QR and believes she has some understanding of the health challenges QR is facing now and in the future. She is also aware of details about QR’s financial situation.
71.The GMP Act provides:
9 Who may be appointed
(1) The public trustee and guardian or an individual may be appointed as a guardian.
(2) The public trustee and guardian, a trustee company or an individual may be appointed as a manager.
(3) A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.
(4) The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.
(5) The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.
10 Considerations affecting appointment
(1) A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.
(2) A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—
(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
NoteBankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
(3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(4) For subsection (3), the matters the ACAT must take into account include—
(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b)the desirability of preserving existing relationships with family and any other carers; and
(c)whether the proposed guardian or manager is compatible with the protected person; and
(d)whether the proposed guardian or manager lives in the ACT; and
(e)whether the proposed guardian or manager will be available and accessible to the protected person; and
(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
(5) The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.
72.In summary, section 10(2) contains criteria that must be met before a person (other than the PTG) can be appointed.
73.Section 10(3) provides that someone (other than the PTG) ‘may’ be appointed as a guardian or manager ‘only if’ the Tribunal is satisfied that:
(a)the person will follow the decision-making principles (set out in section 4 of the GMP Act and quoted above); and
(b)is “otherwise suitable for appointment” (section 10(3)).
74.The key criterion in relation to an individual is that they are ‘otherwise suitable’ for appointment (section 9(4), (5), section 10(3)). When deciding whether a person is “otherwise suitable”, the Tribunal must take into account the factors listed in section 10(4).
75.Although the Tribunal “must take into account” those listed matters, they can affect, but need not determine, whether a particular person is suitable for appointment as a guardian or manager.
76.In many instances it will be obvious that an individual will follow the decision-making principles and is ‘otherwise suitable’ for appointment.
77.The Tribunal must consider closely the matters listed in the GMP Act and may consider other matters, if the suitability for appointment of an individual is contested.
Consent given, and applicants not disqualified
78.ST, YZ and VX each consented in writing to be appointed as guardian for QR.
79.Each of them has provided sworn evidence that they:
(a)have never been convicted or found guilty of an offence involving violence, fraud or dishonesty;
(b)have never in the ACT or elsewhere, been refused appointment as a guardian or manager, or removed from office as a guardian or manager; and
(c)are not bankrupt or personally insolvent.
Decision-making principles
80.Both YZ and VX gave direct evidence that they would follow the decision-making principles in section 4. It was clear from her written and oral evidence and her final submission that ST would also follow those decision-making principles. We are satisfied that, if appointed as QR’s guardian, each of them would follow the decision-making principles.
QR’s views and wishes
81.As noted earlier, the Tribunal has two sources of information about QR’s views and wishes about the possible appointment of a guardian and/or financial manager.
82.The written report provided by the PTG recorded that, on 29 October 2018, QR was aware of ST’s application but did not agree with it. According to QR, ST had “taken away my life. The thing that is most important to me is to have my life back. This includes going home. I have a lovely home. I want to live, not just exist.” However, it was clear that QR did not wish to malign ST and considered that “she means well.” QR was concerned that ST “does things without consulting me, like I have no brains.” She particularly referred to the re-homing of her birds without ST telling or asking her. She noted that she does not see ST often, and the lack of consultation “bothers me.” When asked to nominate an alternative appointment as guardian she referred to “[VX] and [YZ]. I can’t recall his surname. He is my gardener, helper friend.”
83.At the meeting on 6 November 2018, the Tribunal was impressed by QR’s spirited approach to answering the Tribunal’s questions, and by her positive attitude to life at present and into the foreseeable future. Her views are firmly held and were clearly expressed.
84.It is clear from the Tribunal’s conversation with QR, and consistent with her statements recorded in the written report of the PTG, that:
(a)QR would prefer to live in her own home with appropriate help to keep her safe and healthy in the years ahead, possibly to 100 years of age. She has always been an independent person who has a mind and wants to use it. Since her youth she has been a manager and she considers that, with help, her dementia can be managed. She wants her life back, and considers that it is possible for her to live in her home with suitable fit out, delivery of good food and the periodic assistance of a carer.
(b)QR accepts that it might be useful to have a guardian but does not consider that she needs a financial manager. She considers that she has managed her affairs successfully for many years and by carefully managing her money has always maintained a surplus in the bank.
(c)If a guardian is to be appointed, she would prefer the guardian to be YZ, MO (her niece in Melbourne) or VX. It was apparent that, of those people, her preference would be VX. QR made it clear that she did not want ST to be appointed as a guardian.
(d)If a financial manager is to be appointed, her preference would again be VX. She does not want ST to be appointed.
85.Without setting out in full her reasons for preferring particular individuals to be appointed or not appointed, it is clear to the Tribunal that QR’s preferences are based on two factors: her assessment of the competence of each person to perform one or both of the roles of guardian and manager, and her assessment of her compatibility with each of those persons in terms of their outlook on life and how to meet challenges that arise (a matter considered later in these reasons for decision).
86.At the hearing, there was some suggestion that QR has expressed different views on recent occasions. For example, ST stated that recently QR had said that she wanted UT and ST and others to hold her power of attorney.
87.QR’s lawyer expressly made no submissions against the medical evidence. Rather, he referred to Dr A’s assessment that QR needs assistance. In that context, he submitted, QR’s views and wishes about what she wants and how she want the assistance to be provided should be strong considerations.
Relationship with family and carers
88.The Tribunal must take into account the desirability of preserving existing relationships with family and ‘any other carers’ (section 10(4)(b)). Section 6 of the GMP Act provides:
6 Meaning of carer
In this Act:
carer—a person is a carer of someone else (the dependant) if—
(a)the dependant is dependent on the person for ongoing care and assistance; and
(b)the person cares for the dependant otherwise than because of—
(i)a commercial arrangement; or
(ii)an arrangement that is substantially commercial.
Example of a carer
Ms S suffers from a severe brain injury because of a car accident and requires constant care. Her spouse, 2 children aged 18 and 11 and a family friend share her care and would each be a ‘carer’.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
89.In relation to family matters, it is clear that ST has been a loving and caring daughter for many years. The relationship between her and her stepmother has been strained in recent times as a result of the change in QR’s health and the steps taken by ST under the EPOA. Part of that strain is also attributable to the way in which some actions have been taken by ST in relation to QR’s animals and accommodation, and the lack of timely communication between them about significant issues. The absence of direct communication between them has led to mistrust based on a misunderstanding by QR. It is apparent from her views and wishes, and the evidence of ST referred to earlier, that the two women have not yet reached a mutual understanding, let alone agreement, about what might be best for QR in the immediate and foreseeable future or the basis on which such decisions should be made. It is possible, if not likely, that the appointment of ST as guardian for QR might further strain rather than preserve existing relationships within the family.
90.QR’s lawyer referred to the recent strain on relationships and submitted that preserving relationships would not be facilitated by appointing ST as guardian. Appointing YZ or VX would not affect pre-existing relationships.
91.QR’s lawyer submitted that YZ and VX could be described as a ‘carer’ for present purposes, and submitted that their roles were not because of commercial arrangements or substantially commercial arrangements.
92.As noted earlier, YZ has been performing a range of functions to assist QR, including gardening and more recently, maintaining her pets and driving her to and escorting her at the shops. Although there is no formal work contract between him and QR, he receives payment for some of his work and is reimbursed for things he purchases such as food and petrol. Before QR went to Mirinjani she apparently insisted on paying him an average of $50 per day for what YZ described as “compensation”. The relationship is essential one in which YZ performs an increasing range of tasks for payment or reimbursement. Although that includes some social contact (for example, over cups of tea), the relationship is essentially based on employment. YZ could not be described as QR’s ‘carer’ as that word is defined in the GMP Act.
93.In her written statement, VX states that she has known ST for approximately 12 years and that, prior to QR’s admission to Mirinjani, her relationship with ST was “cordial”.
94.Having described the nature of her relationship with QR and the extent of their contact since 2004, including taking QR to appointments, VX wrote:
22. Prior to [QR] moving to Mirinjani, I provided her with assistance in daily activities and living. For example, when I visited [QR] I would sometimes make afternoon tea; wash the dishes; take out rubbish. I was doing this for several months prior, approximately once every three weeks
21. I am currently providing practical assistance to [QR] and have been doing so since approximately 17 September 2018. I do not receive payment for this… I facilitated [QR] seeing her solicitors; accountant and geriatrician. I have provided [QR] with transport to her appointments; paid some of her bills; reclaimed and cared for her dogs.
95.VX has liaised with My Aged Care to secure QR a Home Care Package and has discussed with other organisations for the provision of a range of services.
96.On that basis, it is arguable but not certain that VX is, or has been, a ‘carer’ of QR. It is clear that they have a long-standing friendship based on mutual interests and that VX has voluntarily assumed an increasing range of duties to assist QR (including looking after her dogs) and arranging or identifying options for assistance to be provided. The appointment of VX as guardian would be in accordance with QR’s wishes, and would build on their existing relationship.
97.Nothing turns on the way in which their relationship is characterised. It is possible that, if VX were guardian and had to make some difficult decisions, the relationship would be tested. That is a possibility if any family member or carer is appointed.
98.In the alternative, QR’s lawyer submitted that the PTG could be appointed as guardian. We understand that submission to have been made at this stage as a possible means of preserving, or at least not straining further, the existing relationships.
Compatibility of proposed guardian with QR
99.Written statements in support of ST’s application were made by her sister PR, and by her cousin MO.
100.PR attested to “the loving relationship and special bond that Mum and [ST] have shared for close on 60 years.” She contended that ST is the best qualified person to appoint as guardian and manager for their mother, “[b]ecause of the loving relationship spanning so many years and [ST]’s proven administrative and organisational abilities.”
101.MO described ST as “a most dutiful and caring daughter” who has worked tirelessly to ensure that QR has been able to remain in her own home. She stated that she and ST had been in very regular contact, especially over the past three years, and had mutually agreed that despite a diagnosis of Alzheimer’s, QR would remain at home whilst she was able to manage safely there.
102.MO’s statements in strong support of ST’s appointment have additional significance because PR suggested that MO might be a suitable appointee as guardian, including for reasons of personal compatibility with QR.
103.The evidence of QR’s views and wishes is relevant here. Her views regarding ST’s compatibility are likely to have been affected by ST’s recent decisions in relation to QR’s living arrangements. The Tribunal has previously noted the actions that ST has taken to enable QR to remain in her home prior to her admission into a nursing home following her recent illness. Although ST made decisions about QR’s current accommodation and to withhold information from QR based on explicit medical advice, these actions appear to have created a situation where there has been a breakdown of trust between the two women. Notwithstanding ST’s reasons for taking those decisions, the Tribunal needs to consider how events have transpired and their impact.
104.Further, evidence provided by both parties shows that ST and QR had different priorities in relation to QR’s care. For example, while ST emphasised the importance of the regular meals that were available at the nursing home, QR believed that this was unnecessary. In her private discussions with the Tribunal, QR emphasised her desire to live her final years in a way that was reflective of her life to date – and this involves a level of risk.
105.QR described to the Tribunal their respective approaches to how she should live. She said that ST is a good person of whom she is fond, but who has a mindset that is conservative and concerned with what QR should not or could not do, rather than “give her a go.” QR approaches life on the basis that it involves danger every day, something she seems to relish. “What is life without a bit of risk?” she asked the Tribunal.
106.In order to ascertain the most compatible person or persons to be appointed as guardian, QR’s lawyer pointed to her views and preferences for people with personal similarities with her.
107.There was evidence of VX’s compatibility of thinking with QR’s views and wishes. In her statement to the Tribunal, VX wrote:
32. [QR] has told me she wishes to reside at her home… where she has lived since she purchased the property with her late husband… as a new home… I support [QR]’s desire, conditional on comprehensive services being put in place to support [QR]’s safe and healthy return home.
108.VX made it clear to the Tribunal that she would support QR returning home if that could be done safely. VX indicated that she would need to discuss these matters with QR’s doctors, and that proper communication would be needed to access appropriate services. She acknowledged that, for various reasons, the stage might be reached where QR could not live in her own home. VX also referred to an option for QR to live with her in VX’s home.
109.As noted earlier, VX has known QR since 2004 and they have socialised at QR’s home and at restaurants and cafes, have conversed about a range of topics, and have attended plays together. VX has assisted QR in organising the opening of QR’s gardens to the public to raise funds for charities. Their friendship seems to have intensified after QR’s admission to Mirinjani. VX is currently caring for QR’s dogs. We are satisfied that the two women are compatible.
110.We have previously noted that YZ’s relationship with QR was established when YZ was employed by QR as a gardener. YZ stated that in recent times this role has been ‘reframed’ to include other duties, including driving and tending to QR’s animals. YZ still receives payment for some (if not all) of his duties. QR has continued to refer to YZ as the gardener and has had trouble identifying his surname. While there was evidence that there is no employment contract, the Tribunal is not convinced that this relationship extends beyond an informal employment relationship.
111.The Tribunal has insufficient evidence on which to be satisfied that YZ and QR are compatible in the sense contemplated by section 10(4)(c). It is clear that they have a friendly relationship and that QR trusts and relies on him to assist her in various ways. But it is not clear that they are otherwise compatible in ways that might form a basis for him being appointed as her guardian.
Whether the proposed guardian lives in the ACT
112.The criterion in section 10(4)(d) suggests that the geographic proximity of the guardian or manager to the protected person is relevant to the selection of someone to perform that role.
113.Residence outside the ACT is not a bar to appointment, but it is a factor to be considered.
114.The significance of this criterion might vary from case to case depending on the number and types of decisions that a guardian needs to make, and whether the guardian needs to be in the ACT to make those decisions or to be informed about what is the best decision to make (for example, about the protected person’s accommodation or health needs). On that basis, section 10(4)(d) and section 10(4)(e) can be considered as containing complimentary factors.
115.ST has lived in Queensland since 1989. She gave evidence that she does not intend to move to the ACT.
116.YZ lives in Canberra.
117.VX lives in Canberra.
Whether the proposed guardian will be available and accessible to the protected person
118.This criterion, in section 10(4)(e), is separate from the previous criterion, but appears to be conceptually linked to it. Again, the significance of this criterion to a particular case might vary depending on the number and types of decisions that a guardian needs to make, and how readily they can perform those functions as issues arise and the protected person’s circumstances change.
119.A range of circumstances might affect whether a proposed guardian would be available and accessible to the protected person, including whether they are in full-time employment, whether they have substantial business and family commitments, and whether they travel outside the ACT for extended periods. It is possible, for example, that a person who lives outside the ACT and who is not in full-time employment but has access to transport and other resources, would be more accessible and available to the protected person than someone who lives in the ACT but has substantial works, travel and family commitments.
120.ST lives in Brisbane. She works in the retail sector from Thursday to Sunday each week (but not Monday to Wednesday). There was evidence that:
(a)she visits QR every two or three months for a few days;
(b)she speaks with QR by phone almost daily, but at least two to three times each week;
(c)she works closely with MO who also QR to support ST in protecting QR’s welfare;
(d)she has established, engaged with and to some extent relies on a group of neighbours and QR’s gardeners who she speaks with by telephone regularly to obtain information about her mother’s health and welfare. She agreed that she relies on these people to provide updates on her mother. They contact her from time to time.
121.Although ST does not live in the ACT and only visits every few months, there was clear evidence that she has been able to arrange services for QR from Queensland.
122.As noted earlier, both YZ and VX live in the ACT and are available and accessible to QR on a regular basis and, potentially, as the need arises.
123.QR’s lawyer highlighted the fact that ST lives interstate and is still working. Although she visits QR as often as she can, she does not have the advantage that locals (such as YZ and VX) have of developing a face-to-face understanding of QR’s wishes and the ability to provide practical support. Rather, ST depends on a network of family and friends to keep her informed about QR’s welfare.
124.In addition we note that some of the decisions that need to be made in relation to QR, and her views and wishes in relation to these, are complex and may require significant investigation and negotiation. The location of a guardian within the ACT might facilitate the ready identification of additional options.
Whether the proposed guardian is competent to exercise the functions
125.The proposed powers of the guardian are set out above. They involve making important decisions for, or giving consent on behalf of, the protected person. To make informed decisions and give informed consent, the guardian or manager needs to be aware of such things as:
(a)the protected person’s circumstances from time to time (for example, their health, accommodation and finances) and whether those circumstances have changed or are likely to change in the foreseeable future;
(b)when a decision needs to be made;
(c)the options that are realistically available; and
(d)the protected person’s wishes.
126.As QR’s lawyer submitted, competence to exercise the functions is to be assessed in terms of what needs to be done.
127.He suggested that YZ and VX are competent to be guardian. He also submitted that, although ST might be competent, she might not be ‘otherwise suitable’ to be appointed as guardian.
128.YZ advised the Tribunal that he would work to ensure QR could remain in her own home, but did not provide detailed information regarding how this would be actioned. The Tribunal notes that, at the time of the Tribunal hearing, YZ may not have had access to information to assist him in assessing options. Nevertheless, the Tribunal holds some concerns regarding his ability to gain the information necessary to make key decisions for QR in the timeframe that is required (particularly in relation to accommodation).
129.In both her written statement and oral evidence, VX provided information regarding her understanding of potential assistance that QR would be able to access to support the continuation of her accommodation within her own home. She displayed a good understanding of how the aged care system works, and an understanding of potential constraints on giving effect to QR’s wishes to remain at home. VX outlined steps that she had already taken to identify potential supports and how these might be accessed. The Tribunal also notes VX’s experience as a guardian and manager for family members, and a carer for a family member with dementia.
130.ST’s substantial knowledge and experience are described earlier and need not be repeated.
131.We are satisfied that, having regard to their knowledge and experience outlined earlier in these reasons, ST and VX are each clearly competent to exercise the functions. In that respect, they are more suitable for appointment than YZ who has had no direct knowledge or experience of being a guardian or manager or exercising a power of attorney.
Whether the interests and duties of the proposed guardian are likely to conflict with the protected person’s interests
132.The Tribunal must take into account:
whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests. (section 10(4)(g))
133.To understand the scope of that criterion, we have to consider the following definition of a person’s ‘interests’ in section 5A of the GMP Act:
5A What are a person’s interests?
A person’s interests include the following:
(a)protection of the person from physical or mental harm;
(b)prevention of the physical or mental deterioration of the person;
(c)the ability of the person to—
(i)look after himself or herself; and
(ii)live in the general community; and
(iii)take part in community activities; and
(iv)maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);
(d)promotion of the person’s financial security;
(e)prevention of the wasting of the person’s financial resources or the person becoming destitute.
134.QR’s lawyer noted that ‘interests’ is defined broadly, but submitted that there was no evidence that YZ, VX or ST would gain from the appointment. In that sense, there would be no likelihood of a conflict of the type contemplated by section 10(4)(g) of the GMP Act. However, potential conflicts arise in relation to such things as the re-housing of animals without contacting QR first.
135.We are satisfied that the current interests and duties of ST, YZ and VX are not likely to conflict with QR’s interests to her detriment.
Otherwise suitable
136.Having expressed our conclusions about each of the people who have consented to be the guardian of QR, it remains to consider whether each of them is ‘otherwise suitable’ to be appointed as QR’s guardian (see section 10(3)).
137.It will be apparent from evidence of actions taken by ST to assist QR, particularly in recent years, that she is well qualified to perform the role of guardian. That much is evident from the fact that in 2005 QR appointed her as one of two attorneys under an EPOA.
138.In support of ST’s application, her sister PR wrote:
I know also that over the last few years, as the dementia progressed, [ST] has assumed increasing responsibility for the handling of our mother’s affairs, both personal administrative and financial. This support has gone on quietly in the background and largely unobserved or acknowledged by outsiders. [ST] is one of those people who just gets on with a job, does it well, efficiently, with a minimum of fuss, and no fanfare.
Because of the loving relationship spanning so many years and [ST]’s proven administrative and organisational abilities, I believe that [ST] is the best qualified person to appoint as Guardian Manager for our mother [QR].
139.MO described how, when QR returned home after being hospitalised in December 2016, ST set about putting in place numerous measures to ensure that QR was kept safe and secure in her own home, for example Baptist Care, Meals on Wheels and Woolworths online shopping. Since then, she and ST have been taking turns to visit QR for between four and seven days at approximately three monthly intervals. Over the past year or so, as QR’s health has declined, ST has organised for extra home support and people to manage the extensive garden and perform other duties for QR. According to MO, ST:
(a)“has been a most dutiful and caring daughter” to QR and “has worked tirelessly (un-be-knowns to my aunt at times) to ensure that [QR] has been able to remain in her own home” until the age of 94;
(b)“has on all occasions been open, honest and conscientious” in her management of QR’s personal, administrative and financial affairs;
(c)has always explained her decision making and logic to MO so that it can be shared with the extended family in Melbourne, who “know that she has had [QR’s] best interests at heart at all time”;
(d)is “extremely responsible and efficient” and her functions “all reveal a great deal of thought” such that MO “would never doubt her decision making”;
(e)“values and trusts the opinions and advice on medical specialists and making difficult and often heart-wrenching decisions” about QR’s affairs and welfare.
140.In MO’s opinion, ST is “without a trace of doubt, the best placed person to appoint” as guardian and financial manager for QR.
141.VX is aware that QR wants to live at home and cherishes her home, prize-winning garden, birds and dogs. QR was appalled at the prospect of moving into nursing care. VX has read medical reports and understands that if QR were to return home safely she would need comprehensive services including case management and home modifications. VX accepts that the support required might cost more than the amount of money available on Level 3 assistance, but described the contrast between how QR was living at home immediately before her admission to Calvary Hospital (with the assistance of a gardener and cleaner) and her situation at Mirinjani. VX expressed concern about the significant change in a short period without consultation with QR, and would support QR returning home if that can be done safely.
142.VX indicated that she would need to discuss these matters with QR’s doctors and noted that, on previous occasions when some services had been arranged, QR had cancelled the services because, for example, she did not like strangers coming in to her home and did not like the food that was delivered. Proper communication is needed to access appropriate services, and QR would need to understand that the alternative to accepting those services is living in a care facility. Further, VX acknowledged that QR might reach a stage when she could not live at home because the financial resources are spent. In these circumstances, VX said she would investigate a range of facilities to find accommodation that best suited QR, for example, where small companion animals are allowed.
143.YZ said that he knows a lot about QR’s personal circumstances and knows her as well as anyone. He noted that QR wishes to reside at home, and that she would require home care. She has received a Level 3 subsidy. When asked whether, if appointed as guardian he would give effect to her wishes, he said that he has been privy to various medical consultations and would investigate what could or could not be done to facilitate her wishes. He would seek a fresh medical opinion. He would also consult with UT and ST because they are family. He would keep them informed. If the obstacles could not be overcome he would put that to QR.
144.Although YZ meets most of the criteria for appointment as QR’s guardian, he does not have the range and depth of relevant experience and knowledge that ST and VX have. Accordingly, we have concluded that ST and VX are more suitable for appointment as QR’s guardian.
Who should be appointed financial manager?
145.For reasons noted earlier, we are satisfied that it is appropriate, indeed necessary, to appoint a financial manager for QR.
146.The statutory criteria for who may be appointed as a financial manager are found in sections 9 and 10 of the GMP Act, quoted above. They are the same criteria as for who may be appointed as guardian.
147.However, the appointment of a financial manager in relation to QR raises some different practical issues from those to be resolved in relation to the appointment of a guardian. Those practical issues need to be resolved by reference to specific provisions of the GMP Act.
148.ST applied to be appointed as both guardian and financial manager for QR. It is apparent from her written material that ST managed her mother’s financial affairs in recent years. She kept a journal of activities and arranged for the provision of various services to her mother while she lived at home. At the time of QR’s hospitalisation, ST arranged Aged Care Assessment Team Level 2 care to commence immediately QR returned home. She arranged initial payment to Mirinjani for QR’s accommodation.
149.ST provided the Tribunal with information about the sources and amounts of QR’s income and the value of her house and personal assets. She also gave oral evidence about the amounts that she had withdrawn from QR’s bank account to reimburse herself for expenses that she incurred in attending on QR and meeting her needs in August and September 2018.
150.ST managed QR’s finances until the EPOA was revoked. There is no evidence before the Tribunal that ST has abused that role and hence is unsuitable to perform the role of financial manager. Her residence outside the ACT is arguably less of an issue for the management of funds than for the role of guardian, as this should be largely an administrative function.
151.ST made it clear that she has no problem with people such as YZ being paid for the assistance they provide to QR, so long as the cost is reasonable.
152.As noted earlier, in support of ST’s application, her sister PR wrote:
I know also that over the last few years, as the dementia progressed, [ST] has assumed increasing responsibility for the handling of our mother’s affairs, both personal administrative and financial. This support has gone on quietly in the background and largely unobserved or acknowledged by outsiders. [ST] is one of those people who just gets on with a job, does it well, efficiently, with a minimum of fuss, and no fanfare.
153.In support of her contention that ST is the best person to be appointed as guardian and manager for QR, MO stated that ST “has on all occasions been open, honest and conscientious” in her management of QR’s personal, administrative and financial affairs.
154.Given her history of arranging services and managing finances on QR’s behalf, ST has demonstrated her competence to perform the role of financial manager. She has consented in writing to accept that appointment. She has demonstrated her capacity to make difficult decisions based on information and opinions from experts. She told the Tribunal she is happy to receive input from others and to work with the Tribunal.
155.In his written statement YZ wrote that he consented to be QR’s guardian and continued “I consent to being appointed financial manager, but would prefer to just be her guardian.” In his oral evidence, YZ explained that there needs to be checks and balances in place to protect him from slander. He said he had an aversion to the role, and suggested that a forensic accountant or the PTG should be appointed.
156.Having considered all his evidence, it is clear that YZ does not freely consent to being appointed as QR’s financial manager. To the extent that he gave such written consent, he did so reluctantly. Consequently, we are satisfied that he should not be considered for appointment.
157.In her written statement, VX said that she would consent to being appointed as a guardian for QR but “I would prefer not to be appointed a financial manager of [QR].” In her oral evidence, VX explained that the relationship with UT and ST needs to be at arm’s length management. She does not want to perpetuate any tension between them. Consequently, we are satisfied that VX does not consent to being appointed as QR’s financial manager.
158.Having heard from each of the three people and QR’s lawyer, it would appear that only ST consents to be appointed as financial manager for QR. For the reasons outlined above, she is qualified for that appointment.
159.However, QR’s lawyer submitted that the Tribunal could appoint the PTG as financial manager.
160.The issue for this Tribunal is whether that would be an appropriate (or possible) appointment given the clear terms of section 9 of the GMP Act.
161.The GMP Act expressly contemplates that either the PTG or an individual may be appointed as a manager, but also makes it clear that the circumstances which the PTG might be appointed are more limited.
162.Section 9(5) states:
The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed. (Emphasis added)
163.Differently constituted Tribunals have characterised the operation of that provision as expressing “preference from the options available” [3] so that where a choice can be made “the categories of potential appointees are not equal.”[4] In Public Trustee for the ACT v Lee,[5] an appeal tribunal considered the operation of the predecessor to the current version of section 9 of the GMP Act. That appeal tribunal referred to the terms of section 9(4) and (5) and to the Explanatory Statement of the 1991 Bill which, it wrote, “clearly indicated that where there is a suitable, natural person available such as a relative or close friend, that person takes precedence in terms of appointment over a public official, or in management matters, over a trustee company.”[6]
[3] In the matter of LQL [2018] ACAT 53 at [19]
[4] In the matter of AB [2017] ACAT 67 at [67]
[5] Public Trustee for the ACT v Lee [2014] ACAT 69
[6] Public Trustee for the ACT v Lee [2014] ACAT 69 at [8], [9], [13]
164.Kirby P described the preference for an individual person where a choice needed to be made under comparable New South Wales legislation as a “sensible hierarchy of choices,” particularly “where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established.”[7]
[7] Holt v Protective Commissioner (1993) 31 NSWLR 227 at [238]-[239]
165.Decisions of the Tribunal[8] and the New South Wales Supreme Court[9] show that a range of factors, including but not necessarily limited to those listed in section 9 of the GMP Act, are to be taken into account when deciding whether a person is ‘otherwise suitable’ for appointment.
[8] See In the matter of AB [2017] ACAT 67 at [70]-[73]
[9] See Holt v Protective Commissioner (1993) 31 NSWLR 227 at [241]-[243], M v M [2013] NSWSC 1495
166.The question is whether ST is ‘otherwise suitable’ in the circumstances of this case, including QR’s clearly expressed wishes.
Consideration and conclusions
167.For reasons set out above, it is necessary to consider separately the appointment of a guardian and financial manager and, to some extent, the appointment of someone to one of those roles has a bearing on who should be appointed to the other.
168.Each of the matters which the Tribunal must take into account for the appointment of a guardian are set out earlier in these reasons for decision. The GMP Act does not specify the relative weight to be given to each of those matters. That is understandable given the wide variety of personal, family and community circumstances in which prospectively protected persons find themselves.
169.In this case it is clear one of the significant factors is the weight to be given to QR views and wishes. The requirement in section 10(4)(a) that the Tribunal take into account the views and wishes of the protected person can be read in the context of other provisions of that Act. The decision-making principles to be followed by a decision-maker in the exercise of a function under the GMP Act in relation to a protected person (quoted above) include principles that, in summary:
(a)the protected person’s wishes “must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;”
(b)if giving effect to the protected person’s wishes “is likely to significantly adversely affect the person’s interests”, the decision-maker “must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;” and
(c)if the protected person’s wishes cannot be given effect to at all, the interests of that person must be promoted.
170.QR has clearly expressed her wish that (of the people who have given consent) VX and YZ be appointed as her guardian and that VX be appointed as her financial manager. She has just as clearly expressed a wish that ST not be appointed as her guardian or manager. To some extent, the evidence suggests that her wish that ST not be appointed is based on a misunderstanding of what decisions were taken by and ST under the EPOA, and concerns about why the decisions were made, and about the processes followed by them in making decisions on her behalf. It is also clear to the Tribunal that, those misunderstandings aside, it is still QR’s wish that ST not be appointed for reasons which might be broadly described as relating to their compatibility for this purpose.
171.Having considered in some detail the extent to which ST, YZ and VX satisfy the statutory criteria for appointment as guardian, we can express our conclusion relatively briefly.
172.In our view, both ST and VX have relevant experience and knowledge to perform the role. Each has consented to do so and is not disqualified from appointment. Having regard to their respective current relationship and level of compatibility with QR, their place of residence and relative availability and accessibility to QR, and QR’s clearly expressed wishes, we have concluded that VX is the most suitable person to be appointed as QR’s guardian.
173.The Tribunal is now in a situation where, in summary:
(a)the only family member or close friend who has consented to be appointed is ST;
(b)ST is competent to perform the functions of financial manager;
(c)QR does not wish ST to be appointed; and
(d)if ST is ‘otherwise suitable’ to be appointed, the PTG must not be appointed.
174.We are satisfied that ST is ‘otherwise suitable’. QR’s views and wishes, as expressed to the Tribunal, are not based on any suggestion that ST is not competent or would not exercise the process of manager improperly. Indeed, the fact that QR appointed her as attorney under the EPOA in 2005 and took no steps to replace her or to revoke the EPOA until 2018 suggests that she trusted her for that period, at least prospectively, to perform the functions that a financial manager would perform.
175.As noted earlier, QR’s wishes seem to be based on a perceived incompatibility of views between her and ST about what would happen in relation to QR’s future accommodation and other matters. Those are decision which the guardian will make. Some of those decisions will have significant financial implications. It will be important that the manager administers QR’s property appropriately.
176.We note that, consistently with the protection of the welfare and interests of the protected person,[10] the GMP Act contains provisions for the supervision of, and constraints on the exercise of powers by, a financial manager. For example, in summary, and subject to any other orders by the Tribunal, the manager:
(a)must not enter into a transaction in relation to the protected person’s property if the manager’s interests are in conflict, or may conflict, with the interests of the protected person;[11]
(b)must keep their property separate from the protected person’s property;[12]
(c)must not invest amounts held as manager except as permitted by the GMP Act;[13] and
(d)must file annually with the PTG the accounts and other documents relating to the management of the relevant property, for examination by the PTG.[14]
[10] See M v M [2013] NSWSC 1495, Re LSC and GC [2016] NSWSC 1896 at [50]
[11] Guardianship and Management of Property Act 1991 section 14(1)(a)
[12] Guardianship and Management of Property Act 1991 section 14(1)(b)
[13] Guardianship and Management of Property Act 1991 section 24
[14] Guardianship and Management of Property Act 1991 sections 26, 27
177.The issue then becomes whether VX and ST could work cooperatively in the exercise of the powers and functions of guardian and financial manager respectively.
178.It is apparent that, until relatively recently, ST and VX had a cooperative relationship based on a broadly similar approach to what they considered to be in the best interests of QR.
179.VX wrote positively about ST’s efforts last year to provide or arrange the provision of practical assistance to QR. VX “welcomed [ST]’s decision to arrange in-home care” for QR, and provided ST with information about in-home care providers. VX described her relationship with ST as “cordial” before QR was admitted to Mirinjani.
180.VX referred to the suggestion that QR might live with her, but said that would only occur if the suggestion had ST’s unconditional support.
181.ST’s evidence about VX was more ambivalent. She said that she had no real relationship with VX, who is a friend of QR.
182.When asked whether, if appointed as a guardian and manager, she would consult with VX and YZ, ST said she did not know. She would talk to QR in the first instance. If ST’s relationship with VX was better, she might consult with her.
183.Given that, until recently, VX and ST shared similar views about what is best for QR, the Tribunal anticipates that they can work together, sharing responsibilities towards common objectives.
184.If that proves not possible and QR’s interests are, or are likely to be, adversely affected, VX or ST (or both of them) could apply to the Tribunal under section 19 of the GMP Act to have the orders reviewed, and potentially varied or revoked.
Enduring Power of Attorney
185.As noted earlier:
(a)QR executed an EPOA on 5 August 2008 in favour of UT and ST jointly and severally;
(b)the attorneys were authorised to make decisions and arrangements for QR while she was incapacitated;
(c)on the basis of a written statement made by RN, a treating nurse for QR, about QRs incapacity to make decisions with regard to financial, health and personal matters, UT and ST proceeded to exercise the powers of attorneys from 22 August 2018;
(d)on 26 September 2018 QR revoked the EPOA;
(e)since then UT and ST have proceeded on the basis that the revocation was effective;
(f)having reviewed QR on 27 September 2018, Dr A concluded that she does not have capacity to make a new EPOA.
186.If the EPOA became operational from 22 August 2018 because QR lacked capacity to make the decisions referred to in the EPOA, then arguably she lacked capacity to revoke the EPOA on 26 September 2018. The report of Dr A on 3 October 2018, building on consultations on that date and 27 September 2018, suggest that was the case.
187.These matters were not directly in issue before this Tribunal, and the question of whether QR had capacity to make or revoke an EPOA on 26 September 2018 was not the subject of evidence.
188.What is clear is that the parties to the application for the appointment of a guardian and financial manager proceeded on the basis that the EPOA was revoked.
189.Without deciding the issue, we have proceeded to hear and decide the present application on that basis. However, so that there is no doubt that the orders appointing a guardian and financial manager are valid and fully effective, we have decided to order that the EPOA be revoked. If the EPOA was validly revoked on 26 September 2018, then that order is otiose. However, the order should provide a degree of legal certainty that might not otherwise exist, and avoid the risk of subsequent litigation in relation to the operation of the EPOA. The order is also consistent with QR’s wishes.
Summary of orders
190.In summary, for the reasons set out above, the Tribunal orders that:
(a)the Enduring Power of Attorney executed by QR on 5 August 2005 is revoked;
(b)VX is appointed as guardian for QR with specified powers to make decisions and give consent for QR; and
(c)ST is appointed as manager to manage all of the property, including the finances, of QR.
191.The full text of the orders is attached to these reasons for decision.
……………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
GT 151/2018
PARTIES, APPLICANT:
QR
PARTIES, RESPONDENT:
Public Trustee and Guardian
TRIBUNAL MEMBERS:
President G Neate AM
Member R Vassarotti
DATES OF HEARING:
6 November 2018