LJR

CITATION:	LJR [2017] QCAT 121
PARTIES:	LJR
APPLICATION NUMBER:	GAA935-17; GAA936-17
MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	On the Papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Endicott
DELIVERED ON:	30 January 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application by LGE for the appointment of a guardian for LJR is dismissed. 2. The application by LGE for the appointment of an administrator for LJR is dismissed.
CATCHWORDS:	GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult had appointed attorneys in 2013 – where adult in aged care facility – where adult cannot make complex decisions – where wife of the adult applied for appointment as a guardian and administrator – where wife and adult had separated and a property settlement had been made - where investigation by the Public Guardian had found that the restrictions imposed by the attorneys on contact that the applicant had with the adult were appropriate – where applicant relying on the allegation that she had been restricted in having contact with the adult as the basis for her allegations that the attorneys should be replaced as decision-makers - where applicant was notified that the applications would be considered for dismissal unless evidence supporting the need for a guardian and administrator was filed –whether the applications should be dismissed as lacking in substance Guardianship and Administration Act 2000 (Qld) s 12(1). Queensland Civil and Administrative Act 2009 (Qld) s 47.
APPEARANCES:

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

REASONS FOR DECISION

LJR resides in an aged care facility and he had been diagnosed with a cognitive impairment. He jointly appointed his daughter, MG, and his son, LL, to be his attorneys for personal, health, and financial matters in an Enduring Power of Attorney made on 16 July 2013. The financial powers commenced immediately and the personal powers commenced when LJR had been assessed as having impaired capacity for making personal decisions.
An application was filed in the Tribunal on 10 November 2016 by LJR’s wife, LGE, seeking appointment as the guardian and administrator for LJR. Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process.
The applicant stated that MG and LL are acting inappropriately as LJR’s attorneys because they have restricted her access to LJR in the aged care facility. The applicant stated that she seeks to enhance LJR’s quality of life by allowing access for herself and other friends to visit LJR. The applicant also claims that there is conflict between the family members and that LJR did not have capacity to make an enduring power of attorney.
The Public Guardian provided to the Tribunal evidence that an investigation had been conducted earlier in 2016 into allegations about the actions of the attorneys for LJR before the applications were filed in the Tribunal by LGE. Among the evidence considered by the Public Guardian in the investigation of the allegations was a report dated 13 June 2014 by Dr Vearncombe, a clinical neuropsychological. She stated in her report that there was a documented decline in LJR’s cognitive functioning and an underlying dementing process was suspected. She explained that LJR demonstrated a limited awareness of safety issues, health-related matters and hygiene issues. Dr Vearncombe stated that LJR’s ability to remember information, problem-solve, and make appropriate lifestyle decisions appeared to be considerably limited. She concluded that there was sufficient evidence indicating that LJR’s capacity for decisions around lifestyle matters was compromised. The Public Guardian was satisfied by that evidence that the presumption of capacity for decision-making had been rebutted. However, there was no evidence before the Public Guardian that suggested that LJR did not have capacity in July 2013 to make an Enduring Power of Attorney.
The Public Guardian had considered an allegation that LJR’s attorneys had imposed contact restrictions against LGE. The Public Guardian had received evidence that the relationship between the LJR and the applicant was not a supportive one, and that LGE had left LJR in February 2013. The evidence given to the Public Guardian was that LGE had left LJR destitute after removing almost all furniture, crockery, cutlery, linen and incidentals from the marital home. LGE had arranged for the electricity to the house to be disconnected and LJR had to ask his neighbour to run an extension cord to his house to provide him with some power.
The Public Guardian received evidence that LGE had acted in an abusive manner toward LJR and had taken or had attempted to take funds from him. The evidence about LGE engaging in abusive behaviour, the removal by LGE of most domestic items from the house, LGE’s access and use of LJR’s funds and the lack of a supportive relationship was corroborated by several persons who gave evidence to the Public Guardian.
The Public Guardian concluded that any further contact between LGE and LJR may be detrimental to LJR’s welfare and that the actions taken by the attorneys were for the purpose of protecting LJR.
QCAT does not have to proceed to a hearing for all applications filed in the Tribunal. Section 47 of the QCAT Act gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The exercise of this power in an appropriate case is consistent with the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
In this case, the Tribunal gave the applicant a copy of the investigation report of the Public Guardian and gave LGE an opportunity to set out reasons why the application should not be brought to an end under s 47 of the QCAT Act. The applicant filed a lengthy document with additional background information and responding, with denials, to many of the allegations made against her. However, the additional information confirmed that LGE had not visited LJR regularly since their separation and that she had taken over a year before she visited him in the aged care facility. A reasonable inference to draw from her response was that the relationship between LJR and LGE was not close and from LJR’s point of view, had in fact come to an end.
This inference is reinforced by the fact that, after the separation from his wife, LJR had chosen his daughter and his son to make decisions for him. They had acted willingly as his attorneys. The evidence filed by LGE did not establish to the satisfaction of the Tribunal that the personal and financial decision-making needs of LJR were not being adequately met by his attorneys. Her applications did not reveal a cogent basis for the need to appoint other decision-makers for LJR.
In addition, in view of the absence of a current supportive relationship, and in view of the circumstances of their separation in February 2013, LGE did not satisfy the Tribunal that she had a genuine interest in the welfare of LJR. She had not established that she was an interested person who had standing to bring applications to the Tribunal about LJR.
The Tribunal determined that the applications lacked substance and were misconceived. In view of that finding, and applying the objects set out in section 3(b) of the QCAT Act, it was appropriate to bring an early end to the proceedings and the Tribunal dismissed the applications under section 47 of the QCAT Act.

[2017] QCAT 121

30 January 2017