KJM - [2010] QCAT 552

PARTIES:

KJM [2010] QCAT 552

APPLICATION NUMBER: GAA1238-10

MATTER TYPE:

Administration

HEARING DATE: 10 August 2010

HEARD AT: Toowoomba

DECISION OF:	E Morriss Presiding Member
L Clarkson Member

DELIVERED ON: 10 August 2010

DELIVERED AT: Toowoomba

ADMINISTRATION

That the appointment of The Public Trustee of Queensland as administrator for KJM for all financial matters is continued.

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

This appointment remains current until further order of the Tribunal.

NOTICE OF INTEREST IN LAND

That the administrator shall within three (3) months:

a)Lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order.

b)Provide to the Tribunal:

(i)a copy of the search of records held by the Registrar of Titles referred to above and;

(ii)a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order.

That if any change is made in an interest in land held by the adult which is the subject of this administration order or if there are any further dealings in land on behalf of the adult by the administrator, the administrator shall lodge with the Registrar of Titles within 14 days of the finalisation of such interest a copy of this order and a notice (in a form prescribed by the Registrar of Titles), concerning such changes or dealings.

That the administrator pay, from the adult’s funds, any fee associated with the above notices.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

KJM is a 79 year old man who lives in his own home in Warwick. He has a history of over a period of ten years of making many telephone calls (1900) to “chat-lines”. His expenditure is estimated to have been more than $200,000.
KJM first became known to the Tribunal when applications were received from family in 2006, and on 11 October 2006 the then Guardianship and Administration Tribunal (the former Tribunal) appointed a family member as his guardian and administrator.

On 23 November 2006 the former Tribunal made an interim order, appointing the Adult Guardian and the Public Trustee of Queensland as KJM’s guardian and administrator.

On 4 June 2007 the former Tribunal appointed the Adult Guardian as guardian for decisions about accommodation, with whom KJM has contact and/or visits, provision of services and legal matters not related to the adult’s financial or property matters. The Public Trustee of Queensland was appointed as KJM’s administrator for all financial matters.
KJM submitted an application for a declaration about capacity and the former Tribunal conducted a hearing on 19 February 2008. At the hearing the Tribunal made a declaration that KJM had capacity for all personal matters, but did not have capacity for all financial matters. The appointment of the Adult Guardian was accordingly revoked.

KJM appealed this decision to the Supreme Court of Queensland. The appeal was ultimately dismissed.
On 16 February 2010 an application was received from KJM requesting a review of the Appointment of an Administrator, and proposing that KD be appointed in place of the Public Trustee. This matter was heard by the Queensland Civil and Administrative Tribunal, (the Tribunal) which now has jurisdiction in such matters, on 10 August 2010. HM, Solicitor, was given leave to appear and represent KJM.

LEGISLATION AND ISSUES

Relevant legislation included ss.31 & 12 of the Guardianship and Administration Act 2000 (the Act).

Section 31(2) provides that at the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied that it would make an appointment if a new application for appointment were to be made.

This requirement brings into operation the provisions of s12(1) of the Act, which outlines the circumstances about which the Tribunal must be satisfied before it can appoint a guardian or administrator for an adult.

Relevantly, s31(4) provides that the Tribunal may remove an appointee only if it considers the appointee is no longer competent, or another person is more appropriate for appointment.

The issues for the Tribunal were thus:

(a) Does KJM have impaired capacity for relevant matters? (Relevant matters in this case, being financial matters.)

(b)If so, is there a need for relevant decisions to be made to the extent that, without an appointment, KJM’s needs will not be adequately met, or his interests will not be adequately protected?

(c)If so, is the current appointee no longer competent, or is another person shown to be more appropriate for appointment?

DOES KJM LACK CAPACITY FOR THE MATTER?

The Act defines capacity as:
“capacity”, for a person for a matter, means the person is capable of-

(a) Understanding the nature and effect of decisions about the matter; and
(b) Freely and voluntarily making decisions about the matter; and
(c) Communicating the decisions in some way.

The Tribunal considered the following evidence about KJM’s capacity:
Reports from various health professionals have been considered by the Tribunal in previous hearings. Health professional reports were available from Dr MG, Dr H, Dr M, Dr E, and Dr B. This evidence has been traversed at length in previous reasons provided by the Tribunal. The Tribunal notes there have been differing views provided by professionals regarding capacity.
a) Dr MG’s report dated 20 November, 2006 describes cognitive deterioration to the extent that KJM is unable to understand and make decisions, and demonstrates a lack of responsibility in financial matters. Dr MG was of the view that KJM is negatively influenced and has a compulsion to act on impulse and lacks in insight.
b) Dr H’s report dated 11 March 2007 states that KJM has capacity to make decisions about personal and financial decisions. Dr H in oral evidence, conceded that KJM, in relation to expenditure on 1900 calls, lacked insight and had impaired capacity. His beliefs and trust in the women on the chat lines (1900) indicated a vulnerability to exploitation. Dr H stated that KJM’s beliefs were fixed and do not change with information and discussion and constituted a “blind spot” in KJM’s decision making process.
c) Dr M, Consultant Neurologist in a written report of 19 February 2007 was of the view that KJM has relatively mild frontal lobe dysfunction, but has normal capacities for making decisions and appreciating the consequences of decisions. In oral evidence Dr M had conceded he was unaware of the full extent of KJM’s spending on the 1900 calls and agreed that KJM’s garrulousness and tangential behaviour made him vulnerable to exploitation by persons who may encourage him to speak at length.
d) Dr E, (Neuropsychologist), provided a report dated 15 February, 2007. In this report she describes KJM’s difficulty with communication which is over-inclusive and at times tangential. He demonstrates limited insight and lack of judgement. Dr E however concludes that there is no evidence of cognitive, memory, attentional or higher executive processes sufficient to compromise his capacity to manage his own personal and financial affairs. In oral evidence, Dr E argued that his vulnerability and eccentricity in regard to 1900 calls did not in itself demonstrate incapacity. However, Dr E agreed with the evidence from Dr MG, Dr H and Dr M that KJM’s behaviour showed a fixed incapacity to make decisions regarding the 1900 calls.
e) Dr B (Psychiatrist) provided written reports dated 11 January 2008 and 20 August 2008. Her opinion was that KJM is capable of managing his finances. She found no evidence, after clinical examination of cognitive impairment, neurological, degenerative or psychiatric condition that would mean he is incapable of managing his own affairs. Dr B believed it was reasonable that KJM had free choice as to how he spent his money and she saw no evidence that he has jeopardised his well-being or was unable to afford the expenditure. In oral evidence Dr B considered that KJM has naive expectations and that he was too trusting and needed counselling and education. She confirmed her view that KJM should be able to make his own choices about how he should spend his money.
At the current hearing an updated Health Professional Report dated 4 August 2010 was received from Dr B. Dr B conducted a clinical interview with KJM on 12 May 2010. KJM had reported to her that he was aware of how to circumvent the bar on his phone, but had not made any further 1900 calls since March 2008.
Dr B’s examination included a Mini Mental State Examination (MMSE) where he scored 29 out of 30. There was no evidence of cognitive decline. He exhibited in her view good insight into the perception of others of his behaviour, particularly repetitive calls to 1900 numbers, but had demonstrated that he could “resist the urge” to make the calls. He was adamant that his expenditure never jeopardised his own well-being or that his expenditure was beyond his means.
In conclusion Dr B states that in her opinion there is no concrete evidence of cognitive decline or psychiatric disorder. She believes KJM has demonstrated he can resist urges and is not “compelled” to ring the 1900 numbers despite having opportunity to do so.
Dr B further considers KJM is capable of managing his finances and her opinion has not changed since her earlier reports. He has the capacity to understand the nature and effect of his decisions and has consistently given a rational explanation for this. His decisions need to be considered in the context of his personal history. She believes his decisions in relation to making the calls are entirely freely and voluntarily and in effect represent for the first time in his life some degree of “self-indulgence”. She has not seen any evidence that suggest KJM has put himself at risk through his expenditure. He is quite capable of communicating his decisions and the reasoning behind them.
A Health Professional Report from Dr H (General Practitioner) of 17 December 2009 states that KJM fully capable and aware, and appears as capable as the “average” person. He is capable of making complex health, personal and financial decisions.
Submissions were received from HM, SM Lawyers. He submitted that there was an error in Dr B’s report, in that KJM had not made 1900 calls since March 2009 not 2008. Although KJM had had opportunity to make 1900 calls since March 2009 he had not done so, exercising some restraint. HM substantially relied on the most recent report of Dr B, in addition to the previous reports received from her dated 11 January 2008 and 20 August 2008.
HM submitted to the Tribunal that there was no evidence in the medical information available that KJM had a cognitive deficit or psychosis or thought disorder which would lead to a finding of incapacity.
HM further submitted that the “proof is in the pudding” in relation to whether KJM lacked capacity. KJM has been managing his day to affairs, and frugally. The Tribunal should take into account KJM’s “rationalisation” of his behaviour.
HM stated that KJM had some insight as to why other people considered his behaviour (in regard to the matter of 1900 calls) erroneous. Whilst KJM did not step away from what had happened in the past, and that it had had an effect on his finances, the “lesson had been learned” and he had taken steps to modify his behaviour. He indicated that KJM, although he had been a lonely man, and had some satisfaction in making the calls, no longer needed that source of release.
HM further indicated that KJM had proved that he could make decisions, and had shown by his actions that he had capacity. In regard to the making of 1900 calls, KJM had “drawn a line in the sand” and not made any further calls because he had simply chosen not to do so. HM spoke about some reconciliation that had occurred between KJM and some family members in recent times.
HM’s final submission was to the effect that KJM had capacity for all financial matters and there was accordingly no longer a basis for an administration appointment.
The Tribunal took the opportunity to speak directly to KJM. KJM was able to give the Tribunal a summary of his overall income and assets. He has a house, which is well-furnished. The Public Trustee has allowed KJM to manage a term deposit of $50,000 which he has invested and about which he has sought advice. He was able to give a summary of his Centrelink income, and how he manages the funds of $260/week that the Public Trust provides to him to pay outgoings, such as rates, telephone, electricity, MBF and his day to day expenses. He organises his own shopping and bill paying, and mechanical repairs on his vehicle, and has funds available for petrol. He has also made some savings and indicated that he has an amount of $5000 put away in his home. He keeps this money in his home as he doesn’t want the Public Trust to have control of it.
The Tribunal questioned KJM in regard to his history of making 1900 calls, and referred to the assertions of HM that he had “drawn a line in the sand”. There was some discussion as to whether KJM did or did not know that there was no longer a bar on his home telephone. The Public Trustee representative insisted that KJM was aware that there was no bar, but they had no record of 1900 calls made from his landline.
When questioned further about why he had not made calls, KJM referred to people having “crucified me” and “putting the thumbs on me” in regard to the calls, and that he needed to get out of the jaws of the Public Trustee. He said that making the calls was a “ridiculous thing” but explained again that it was because he had a “rotten marriage” and talking to women helped him and gave him the will to live on. He conceded that he may have spent money foolishly, but he enjoyed it and he had no regrets. He indicated that now as he had a lady friend he didn’t need to make the calls.
The Tribunal questioned KJM very directly about whether he had not made any 1900 calls since March 2009, as asserted by HM and as he himself had reported to Dr B. Ultimately, after some repetition of the question KJM conceded that in fact he was continuing to make 1900 calls, but utilising a mobile telephone which he had obtained, instead of his landline telephone. He had obtained a mobile phone plan, and used his funds to pay accounts, and to purchase credit so that he could continue to make calls. He had made 1900 calls as recently as in the last two weeks and very frequently. His monthly bill varied, but the biggest bill had been approximately $700. KJM had not disclosed to Dr B or to his solicitor, HM that he had continued to make 1900 calls.
When questioned about the nature of the calls, KJM disclosed that the “lady friend” he had previously mentioned was someone called P who he had called on many occasions (and referred to in previous hearings). When asked about P KJM disclosed that he believed she was a woman living in Bundaberg who worked as a head sister at the hospital. She had inherited a large sum of money, so did not need his funds. He said that P told him she was 37 years old and looks like LP. KJM revealed detailed plans of his future life with P. In the next few days, P would be coming to Warwick with a trailer to collect relevant effects with the intention that KJM would return with P to Bundaberg to take up residence with her. He had disclosed to her his address, and he believed she had been to visit him previously but he (according to P) had not been home, so he had never actually met her. When questioned whether P was her real name, he said he believed that it was. He had no doubts about any of the information that she had provided to him.
KJM revealed his plans, that should he have control of his finances, he would sell his house, and move to Bundaberg to live with P. He hoped for marriage and a future with her. When asked what he would do if it did not work out, he thought that he might have to go into a nursing home.
In the circumstances, the Tribunal adjourned for a short time so that HM should have an opportunity to discuss these developments with his client. Following this break, HM was invited to make further submissions to the Tribunal.
HM submitted that the only position he could take was to seek to withdraw the application before the Tribunal. He indicated that he could not, having heard the evidence elicited from KJM advocate that he had capacity. He indicated that the need for continuation of an appointment of an administrator, namely, the Public Trustee was “self-evident”. The issue for the Tribunal was not just the 1900 calls, and whether or not KJM made them, but there were wider issues, including the beliefs of KJM regarding the nature and effect of the 1900 calls, and their potential to lead to more meaningful relationships - and as evidenced by his belief in a future relationship with P.
The Tribunal was aware that there were a number of issues surrounding the Public Trustee’s administration which KJM and others wished to air. In the circumstances, the Tribunal determined that it should not grant leave to withdraw the application at this relatively late stage of the hearing, and that it was appropriate to continue the hearing. The Tribunal ruled accordingly.

The Tribunal made the following finding of fact about the capacity of KJM:

[36] The Tribunal finds that the evidence established that:

(a)KJM cannot understand the nature and effect of decisions about the matter. He continues to demonstrate impaired reasoning, judgment and decision making in relation to the 1900 calls.
(b)Despite repeated opportunities for information, education and counsel in regard to the 1900 calls, he has been unable to comprehend and integrate information to assist in his understanding and therefore his decision making.
(c)Despite making assertions to his solicitor, to medical practitioners such as Dr B, and indeed to the Tribunal, that he would not and was not making 1900 calls, his own evidence is that he has continued to do so.
(d)The Tribunal’s concern is not simply with the fact of the phone calls. That cost has tended to be prohibitive in the past, and can be measured in more than money terms. The calls have caused substantial prejudice to his financial circumstances, the severing of his marriage relationship, and the ongoing damage to relationships with his children and grandchildren. KJM continues to demonstrate no insight or concern about these consequences.
(e)However, it is more to the point that KJM continues to make the 1900 calls, in the belief that they will lead to relationships with the women to whom he speaks, and particularly, a woman named P. He continues to hold fixed ideas and beliefs in this regard.
(f)The Tribunal found that KJM has no insight or understanding of either the nature of the matters (the transactions he is making via the 1900 service) or the consequences. Time after time he has been easily led into placing his trust in people he has never met, and consequently making decisions about his life (and specifically his finances). Despite the subject being raised in much detail in previous Tribunal hearings, and a Supreme Court appeal, KJM has been unable to understand these matters or regulate his behavior. His judgment and insight in this regard is profoundly impaired, and he is vulnerable to exploitation.

(g) The opinions expressed in the reports of Dr M, Dr E, Dr H, and, particularly in more recent times, of Dr B, appear to have been almost entirely based on information provided to them by KJM. His family, who have taken the time to attend lengthy hearings in the past, also raise concerns that the professionals involved do not appear to adequately understand KJM’s circumstances and to appropriately consider the evidence in regard to his lack of capacity. There appears to have been little or no attempt by these practitioners to seek appropriate and essential corroboration for their views from other sources. Their opinions in regard to KJM’s capacity are based on false premises, and in the event, are not of assistance to the Tribunal.

CONCLUSION

The Tribunal determined that KJM does not have capacity to make decisions about financial matters. He does not fully understand the nature and the consequences of the choices that he makes, and as a result of his persisting limited insight and understanding, he is vulnerable to exploitation. His beliefs and his behaviour in regard to 1900 calls, have the potential to place all of his assets and finances at risk.

IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?

Evidence was given to the Tribunal that KJM has assets and income requiring management. He has a house in which he lives, valued at $400,000. He has investments managed by the Public Trustee, including in their Growth Fund, $42,645, Income Fund $48,842, Fixed Investment $9,100, Cash Account $3,492. KJM manages a Term Deposit of $50,000. KJM receives a Centrelink Aged Pension of $663/fortnight. The Public Trustee provides him with living expenses of $260/week. He pays most utilities such as telephone, electricity, MBF from his allowance, sending receipts to the Public Trustee.
The Tribunal made the following findings of fact in relation to the need for the appointment of an administrator:
(a) KJM has ongoing day to day financial decisions which he can make himself and the Public Trustee has allowed him to do so, under supervision.
(b) KJM requires assistance in the overall management of his finances to ensure that his assets and income are applied for his own benefit and use, and that there is monitoring and supervision in place to ensure that KJM’s spending and decision making related to the 1900 calls, and his relationship with the women he contacts, do not place his assets and income at risk. The Tribunal is of the view that he will continue to make these calls, and some latitude in this regard may be appropriate, as long as he does not place his assets and income at significant risk.
(c) The Tribunal concludes that the supervision and support of an independent administrator such as the Public Trustee has provided some level of external control in regard to KJM’s spending on 1900 calls. He has been able to make calls, but these have been limited to within a more constrained budget. He has not been able to make decisions in regard to sale of his property of disposal of the bulk of his income. The Tribunal concludes that without this supervision and support there is a foreseeable likelihood that KJM’s spending would be unchecked, and that he would place his assets and income at risk due his impaired decision making.

CONCLUSION

The Tribunal concluded that there is a need for ongoing decisions in relation to KJM’s financial matters and that without an appointment it is likely that his needs will not be adequately met or his interests will not be adequately protected.
As to the extent of an appointment, the Tribunal is bound by the general principles, and acknowledges that an appointment should have regard to the principles outlined therein. In particular, general principle 7 requires maximum participation by KJM in the decision-making process, and minimal limitations. In other words, a Tribunal order must consider an appointment which encompasses these principles.
However, the Tribunal is also cognisant of general principle 7(5), which requires the Tribunal to exercise power in a way consistent with an adult’s proper care and protection.
KJM’s impairment relates to a single course of behaviour, which nonetheless, if allowed to go unchecked, is likely to significantly prejudice his entire estate. For this reason, the Tribunal concluded that there was a need for an administrator for KJM, and the appointment should be plenary in nature.

WHO SHOULD BE APPOINTED AS ADMINISTRATOR?

The options for the Tribunal were initially the following:
(a) The Public Trustee of Queensland.
(b) KD – friend of the adult, and local business man.
KD initially had been proposed as administrator for KJM. On hearing KJM’s evidence at the hearing, KD indicated that he was now disinclined to accept such a role. He indicated he would rather continue as KJM’s friend, and provide support to him in re-building relationships with his family.
HM (SM Lawyers) submitted that the only appointment the Tribunal could make was the Public Trustee of Queensland, and he supported a plenary appointment after consideration of the evidence and KJM’s circumstances.
Family members of KJM who attended the hearing, KM, KJ and NC also supported the continuing appointment of the Public Trustee of Queensland.

CONCLUSION

There is no evidence to suggest that the Public Trustee is no longer competent or that another person is more appropriate for appointment as KJM’s administrator. All parties, with the exception of KJM himself, support the continued appointment of the Public Trustee in a plenary capacity.
The Tribunal concluded that the Public Trustee is the most appropriate appointee and, for the reasons outlined, considered that a plenary appointment is most appropriate. The Public Trustee will be in a position to take the least restrictive approach in allowing KJM to manage some day to day affairs and investments, while at the same time providing supervision, support, and ensuring the preservation of his estate. It is not appropriate to limit the appointment of the Public Trustee.

ORDERS

For the reasons outlined above, orders were made accordingly.