LC

[2013] QCAT 328

CITATION: LC [2013] QCAT 328

PARTIES: LC

APPLICATION NUMBER: GAA5224-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 2 July 2013

HEARD AT: Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 2 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The appointment of The Public Trustee of Queensland as administrator for LC for all financial matters is continued.

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

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

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

5.    The Enduring Power of Attorney dated 1 February 2012 appointing LAS as attorney for personal, health and financial matters is overtaken by the making of this appointment and can no longer be acted on to the extent that this appointment has been made.

CATCHWORDS:

GUARDIANSHIP – where Enduring Power of Attorney disclosed after administrator appointed – where appointment suspended until review taken place – where attorney has impaired capacity for any financial matter – where appointment of administrator found to be appropriate

Guardianship and Administration Act 2000 – sections 12, 23 & 31

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. LC has incurred significant debts and spends more than her income.  An administrator was appointed by QCAT to make all financial decisions for LC.  After the appointment of the administrator was made on 3 May 2013, QCAT was informed that LC had granted an Enduring Power of Attorney for personal, health and financial matters to her husband, LAS on 1 February 2012. 

2. Under section 23(2) of the Guardianship and Administration Act 2000 the appointment of the administrator is suspended until a review has taken place by QCAT. The tribunal may conduct the review in the way it considers appropriate.[1]  The tribunal conducted a review based on the written documents and without an oral hearing.  Notification of the review was given to LC and to her husband.  LAS contacted the tribunal registry and informed the registry that he and LC wanted him to continue making financial decisions for LC.

   [1]        Guardianship and Administration Act 2000 s 31(1).

3. In conducting a review, the tribunal must revoke the appointment unless it is satisfied that it would make an appointment if a new application for the appointment of an administrator were to be made.[2] As such the tribunal must be satisfied in terms of section 12 of the Guardianship and Administration Act 2000 that the appointment should be in place.

   [2] Ibid s 31(2).

4. The first factor in section 12 is whether LC has the capacity to make her own financial decisions. The evidence provided to QCAT is that LC has been diagnosed with epilepsy. She has been assessed as having an intellectual impairment in the mild range with verbal reasoning, abstract reasoning and quantitative reasoning all mildly impaired. Her neurologist reported that he considered that LC did have sufficient intellectual function to deal with day to day financial issues.

5. However there was evidence which tended to contradict the opinion expressed by the neurologist.  Evidence from a service provider working with LC noted that LC received support with reading her mail, budgeting, grocery shopping and with community access activities.  Support staff reported that they have observed LC engaged in impulsive spending over a long period of time which has resulted in LC being sent debt collection mail.  LC and her husband have on occasions been in significant arrears with their rent and have been at risk of homelessness.   

6. Evidence was given to the tribunal that LC has taken out loans with Cash Converters and other non bank lenders at very high interest rates and then becomes stressed about the repayments that she has incurred.  Evidence was given that LC has signed up for so much credit, loans phone and internet deals that she has no remaining funds for her share of general household expenses.  

7. The tribunal accepts the evidence that LC has been assessed with an intellectual impairment in the mild range and that she had reduced ability with abstract and quantitative reasoning.  The tribunal accepts the evidence that LC’s actions reveal impulsive spending beyond her means.  A reasonable inference can be drawn from the evidence that LC does not appreciate the consequences of her spending habits until she is faced with demands for repayments that she cannot afford to make. 

8. I prefer the evidence of the service providers over the opinion of LC’s neurologist when considering her ability to manage her day to day financial issues.  Unlike the neurologist, the service providers have directly observed LC’s demonstrated inability to budget for herself or to manage her financial affairs in a manner where her income is not exceeded by her spending.  She demonstrates no understanding that she places herself at risk of serious financial harm and homelessness if essential outgoings such as rent remain unpaid.

9. I find from the evidence that LC cannot understand the nature and effect of decisions about financial matters beyond simple and immediate day to day purchases.  I also find from the evidence that she cannot budget and plan for even short term financial decisions as her immediate and impulsive desires are constantly preferred by her over longer term financial security.   The evidence rebuts the presumption of capacity.[3] 

   [3] Ibid s11(1) and the general principles in the Guardianship and Administration Act 2000.

10. I conclude that LC has impaired capacity for making decisions about financial matters in terms of the definition of capacity set out in schedule 4 of the Guardianship and Administration Act 2000.  

11. The tribunal was provided with evidence that LC owes about $7,000, she has no funds available to pay her debts and her income is limited.  Evidence was provided that LC is likely to engage in spending beyond her means placing her at ongoing risk of financial harm.  Decisions are needed to implement some budget restraint so that her financial position can be restored to a less precarious position.

12. The final factor to consider under section 12 is whether LC’s needs will not be adequately met unless there is an administrator formally appointed by QCAT. LC has already appointed a financial decision maker by granting decision making power to her husband as her attorney. However the evidence provided to QCAT is that LAS is himself subject to an administration appointment. On 5 October 2010 the tribunal declared that LAS does not have capacity for any financial matter.

13. In view of that declaration, it is likely that the grant of decision making power about financial matters to LAS is invalid.  However it is not necessary to determine that issue today. 

14. However I can take into account the finding from 2010 that LAS does not have capacity to make any financial decisions for himself.  A reasonable inference can be drawn from that evidence that LAS would also lack capacity to make financial decisions for other people. I am satisfied that LAS does not have the capacity to make financial decisions for LC and that her needs will not be adequately met if LAS is left to make financial decisions for LC, either under the Enduring Power of Attorney or even on an informal basis as part of her support network. 

15. I find that the only manner in which the financial decision making needs of LC can be met is by the appointment of an administrator by this tribunal. I conclude that the Enduring Power of Attorney must be overtaken to the extent of the appointment of an administrator by this tribunal.  

16. Having been satisfied under section 31(3) of the Guardianship and Administration Act 2000 that there are appropriate grounds for the appointment of an administrator to continue, I conclude that it is appropriate to continue the appointment of The Public Trustee of Queensland as administrator for LC for all financial matters.  No other appropriate person has sought appointment to that role.  The term of the appointment will be on an indefinite basis and remain in place until further order of the tribunal.