KR
[2024] QCAT 196
•13 May 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
KR [2024] QCAT 196
PARTIES:
In an application about matters concerning KR
APPLICATION NO/S: GAA738-24 MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
13 May 2024
HEARING DATE:
18 April 2024
HEARD AT:
Southport
DECISION OF:
Member Lobban
ORDERS:
The application for a declaration as to capacity is dismissed.
CATCHWORDS:
GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT –
Where applicant seeks a declaration as to capacity – where applicant alternatively seeks replacement of an administrator – whether adult has impaired capacity for financial decision making – where ongoing loss of assets
Guardianship and Administration Act 2000 (Qld)
KR [2023] QCAT
APPEARANCES & REPRESENTATION:
Adult/Applicant:
KR, represented by Jason Abraham, Advocate, ADA Law
Other parties:
DR, son and JR, daughter, self-represented
REASONS FOR DECISION
Background to the Application
KR is a 79-year-old in relation to whom an order was made by the Tribunal on 31 May, 2023, appointing her son DR as her administrator for all financial matters. The appointment remains current and is reviewable 5 years from the appointment date.
There were various consequential orders made. Relevant to this application, an order was made that KR did not have capacity for financial decision making.
Considerable evidence was before the Tribunal at the time of that finding which is the subject of written reasons. Member McDonald noted the definition of capacity set out in Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) as meaning a 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 definition is cumulative in that all 3 of elements (a) to (c) are required to be satisfied.
The Tribunal considered reports of several medical practitioners in making its determination, and made the following findings:
(a)It was common ground amongst all treating medical practitioners that KR did not have a cognitive impairment consistently scoring in the normal range of mini mental state examinations;
(b)The specialist geriatrician reports authored by Dr Peter Drysdale and involving a review of treating consultant psychiatrists, and KR’s hospital records, were given considerable weight;
(c)Dr Drysdale’s assessment identified ingrained behaviours that had not changed over an extended period and an inability of KR to appreciate the consequences of her behaviour;
(d)KR had not simply made poor choices over an extended period of time but rather had a psychiatric condition generating behaviours for which she has impairment in controlling;
(e)Dr Drysdale’s assessment was to the effect that KR did not appreciate the consequences of this behaviour and was unable to self-limit the behaviour. The psychiatric condition affected her ability to make decisions freely and voluntarily about financial matters.
(f)The evidence before the Tribunal was extensive and showed extensive undue influence from third party scammers with persistent pressure leading to a substantial loss of assets. KR was vulnerable to this undue influence and succumbed to pressure to part with her money, and
(g)In summary that KR did not have capacity as defined in Schedule 4 of the GAA as all 3 elements of the definition were not present.
In hearing this application, the Tribunal does not act as a court of appeal and does not reconsider the decision made in 2023.
The application is made on the basis that KR has, following treatment, regained capacity. That is the issue for determination.
Does KR have capacity for financial matters?
The application was accompanied by a report from Dr Thomas Vien, a general practitioner consulted by KR over a period of just under 6 years. The report confirms previous diagnoses of adjustment disorder and narcissistic personality disorder. It referred to Dr Drysdale’s reports as well as a “non medico legal report of Dr Mohammed Khabeeb” dated December 2023 which was not produced to the Tribunal. The Vien report does not express a view as to KR’s capacity for complex financial decisions and “recommended specialist determination of capacity due to previous psychiatrist opinion not to have capacity to make financial decisions”. The report does not assist in determining the issue.
Only very recently has further medical evidence been filed in the Tribunal from 3 practitioners viz, Dr Devari, a psychiatrist whose report is dated 3 April, 2023, Mr McStay, a psychologist whose report is dated 11 April 2024, and Dr Khabeeb, a geriatrician, whose report is dated 26 January 2024.
Dr Devari’s letter predates the Tribunal’s earlier findings but is introduced into evidence for the first time. It is stated to be “a factual support letter rather than a formal medico-legal letter”. KR’s explanation of her position and the doctor’s observations of her stress levels and depression were set out. The doctor observed that KR’s cognitive levels were grossly intact but a formal assessment was not conducted. It is apparent that KR acknowledged having lent money to scammers but was not aware of the amount although she had been informed it was over $450,000. Dr Devari made recommendations for a support plan including for example psychological intervention. The report does not express any conclusion as to the capacity of KR. It does not assist the Tribunal in determining the issue before it.
KR attended 4 appointments with Mr McStay over a one-month period prior to his authoring the report this month. He did not observe KR to have any cognitive deficits, but noted her anxiety and stress, with a strained family relationship which was expressed to be as a result of the administration, using terms such as KR being “stripped of her capacity” and her capacity “being removed” by it.
It is apparent that KR acknowledged that she had been scammed. Mr McStay spoke of KR’s vulnerability to scammers and stated that KR expressed a willingness to address and work on this. It did not address the criteria set out in Schedule 4 of the GAA and did not assist the Tribunal in its determination of the issue in question.
Dr Khabeeb contains a summary of reports prior to his. He conducted head and brain scans of KR and found no cognitive deficit. He noted Dr Drysdale’s assessment of KR but states that he “can neither validate, concur or negate (Dr Drysdale’s) report as I have not done a formal psychiatric assessment, that is beyond my expertise”.
KR provided details about her history of being scammed as well as her financial history to Dr Khabeeb which was set out in the report.
In a rather confused opinion, the doctor expresses his views that:
(a)KR “has the knowledge of her current finances, the ability to discuss them and wishes to have more control than the current state on her financial restrictions”;
(b)She “now has the capacity to discuss options to increase availability and some freedom towards her finances”, but also;
(c)There is “no doubt in (his) mind that her finances should be protected. She should be made less vulnerable”.
The report does not address the criteria in Schedule 4 of the GAA and is unhelpful in determining the issue to be considered by the Tribunal.
The administrator has filed a substantial volume of material consisting principally of extracts of electronic communication to which KR was a party. A review of the material shows ongoing communication between KR and parties purporting to be men such as James Roger, “Ken”, Dave Scott, Tommy Davidson and Garry Adlon, all of whom applied pressure on KR for money to be sent to them due to their differing yet unfortunate circumstances. Expressions of love, affection, a desire to travel to Australia to reside with KR and similar statements are frequent. It is also evident that money was sent principally by way of gift cards to these persons and indeed on at least one occasion information such as a birth certificate, passport and Medicare numbers were also provided. There is no doubt from a reading of the material that there is ongoing interaction with scammers by KR and that there is an ongoing exploitation of KR and her finances although KR is constrained by the administration in the amount being sent.
This was supported by a statement from a long-term friend of KR, Mr Russell Jackson, who had been told by KR of being scammed for a considerable sum and her determination that it does not recur. Mr Jackson states that she had asked him to lend her money and borrowed money from others which he felt was sent to scammers. Mr Jackson expressed the view that DR did his best for KR but that she would conflict with whoever was appointed as an administrator.
The final evidence before the Tribunal came from a report by Dr Drysdale dated 14 April 2024 who had been provided with at least some of the electronic communication referred to above. Dr Drysdale noted this ongoing contact and provision of money to scammers. It is his expectation “that if KR has access to more funds, then the money would go missing” to the extent that were she to have full access to her funds, it is possible that all her funds would be given away.
Dr Drysdale confirmed his earlier diagnoses and agrees with other observations that arguments between KR and her family were causing her anguish and genuine distress. It is suggested a reasonable allowance but with direct payments for most major outgoings may ease the conflict.
Submissions
KR made oral submissions as well as providing written submissions. She seeks freedom to live her life in her own way and spoke of her recent illness and her grief at the loss of her husband. She feels that DR is “obsessed with scammers” and is not performing his role adequately, not providing sufficient funds for her to live on such that an alternate administrator should be appointed should the Tribunal reject her application for a declaration as to capacity. There is no formal application for that relief.
KR believes her consultations with Mr McStay are helping with her confidence. She has never denied being scammed but states she will not do so again and that scammers are no longer part of her life. She expresses the view that she was the victim of scams but is continuing to be punished for that. Much of the submissions dealt with her opinions of her family and their restriction on her access to money. The evidence of ongoing scamming was not satisfactorily addressed or acknowledged.
In response DR and JR also lodged written submissions and made oral submissions as to the ongoing nature of KR’s disorder and behaviours and of the considerable sums still being misdirected to scammers including, it was submitted, the sale proceeds of her BMW vehicle with respect to which police became involved. (This is referred to in two of the medical reports also).
Conclusions
The starting point in considering this application is to note the statutory presumption of capacity for all persons as set out in s 7A and the General Principles in the GAA. That presumption for KR has been found to be rebutted as reflected in the Tribunal’s current orders.
KR asserts that she has now regained capacity. However, it remains the case that Dr Drysdale’s reports are the only ones which address all 3 elements of capacity as set out in Schedule 4 to the GAA. None of the reports relied on by KR address the Schedule 4 criteria directly.
The evidence shows an ongoing communication with scammers, ongoing pressure, a willingness to send money to scammers and an inability on the part of KR to self-limit her behaviour to protect her own interests. Rather it is evident that KR has a willingness to deflect from this behaviour and blame others for her perceived mistreatment.
It is clear from the evidence that KR is unable to make decisions freely and voluntarily about financial matters, is subjected to undue influence and made vulnerable by her psychiatric condition, lacking appreciation as to the consequences of her behaviours.
The Tribunal is satisfied that the administrators are acting appropriately and are willing to work with KR in the manner suggested by Dr Drysdale in an endeavour to reduce her stress and anguish whilst still acting protectively.
The test for capacity has not been satisfied. The application is therefore refused.
Is the decision compatible with human rights?
The Tribunal is acting as a public entity in considering an application for a declaration as to capacity. It is required to make a decision that is compatible with any human rights which may be affected. In particular, KR’s human rights to property may be affected.
In imposing a limit on KR’s human rights, the limitation must be reasonable and justifiable. The purpose of this decision is to protect KR’s financial interests from her psychiatric condition that might otherwise deplete her assets substantially if not totally. The Tribunal finds that it is reasonable and justifiable to limit these rights by its findings.
Orders
1. The application for a declaration as to capacity is dismissed.
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