LLJ - [2014] QCAT 275

CITATION:

LLJ [2014] QCAT 275

PARTIES:

LLJ

APPLICATION NUMBER:

GAA113-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

14 April 2014

HEARD AT:

Brisbane

DECISION OF:

Member Ford

DELIVERED ON:

26 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a Declaration about Capacity is dismissed.

2. The Adult Guardian is appointed as guardian for contact decisions only for two years.

3. The Public Trustee of Queensland is appointed as administrator for all financial matters until further order of the Tribunal.

CATCHWORDS

Where adult seeks a declaration of his capacity – where conflict between adult and his adult children – where previous evidence of financial vulnerability and abuse – where guardian is appointed for contact decisions – where tribunal abridges time for review of guardian and administration appointments.

Guardianship and Administration Act 2000 Schedule 4, ss 12, 15, 31, 146

APPEARANCES and REPRESENTATION (if any):

LLJ
LT
LJ
LM
LA
MJ
DB
Rocco De Peirri
Kylie Retschlag

Adult
wife
daughter
daughter
son
support to son
support to son
Office of the Adult Guardian official
Public Trustee of Queensland official

REASONS FOR DECISION

LLJ is an 83 year old man who has been estranged from his adult children in the latter years of his life. This situation has been mainly due to his belief that they are involved in long term litigation against him which led to his loss of decision-making independence and that they do not accept his marriage to his younger second wife, LT.
LLJ’s first wife had died in 2002. He had lived alone after this and had commenced relationships with women who worked as prostitutes. He saw these relationships as providing companionship and filled the void of loneliness he experienced.
LLJ’s children had seen a change in his personality and intellect. They reported he had been a kind, gentle and devoted father and a prudent lawyer. They saw radical alterations in his behaviour including numerous ill judged proposals of marriage. These proposals included to his niece in 2005 – 2006, two housekeepers and an unnamed Turkish girl. He proposed to a prostitute who agreed to marry him but not live with him or look after him. She had wanted LLJ to live in a retirement home where her own mother resided.
LLJ’s children had also seen a dissipation of his assets. He displayed an uncharacteristic willingness to hand over large sums of money. His actions had diminished much of his savings, the proceeds of his wife’s inheritance, and the sale of land.
His children claimed some $150,000 was misappropriated by the prostitute who agreed to marry him. From November 2008 bank account deposits showed $26,000 was paid directly to another woman’s account. Some $40,000 had been withdrawn and given to LT in the early stages of their relationship which was subsequently repaid.
A severe remoteness developed between LLJ and his children and they witnessed, in comparison, an excessive enthusiasm towards these women. The children saw these behaviours as hypersexual with fixations on pornographic materials and prostitutes.
LLJ had started a relationship with LT in May 2010. She was 41 years old at the time. She gave up working as a prostitute within a month of meeting LLJ as it was difficult to continue that work while being committed to a relationship. It did not start out as a partnership but that is what evolved.
LLJ has subsequently married her, moved to Queensland with LT and her children from Canberra. LT has been caring for him due to his physical health needs.

The application for a declaration of capacity to QCAT

LLJ applied to the Tribunal on 6 January 2014 for a declaration of his capacity. The Public Trustee of Queensland had been appointed as his administrator on the 28 October 2014 for one year. The Adult Guardian had been appointed as his guardian for contact decisions for one year on the same date.
LLJ did not want these appointees to be in his life. He believed he has capacity to make his own decisions and that he was in this situation because of the actions of his adult children. He holds very strong views about how his children have ‘intruded’ in his life and about their ‘litigious’ actions. He had chosen to have no contact with them. He also believed that the Public Trustee of Queensland is an affront to his independence and right to live his life with his wife unencumbered.
The Tribunal had before it previous decisions made by Tribunals. On 10 May 2011, the ACT Civil and Administrative Tribunal revoked an enduring power of attorney executed by LLJ on 17 October 2008. This Tribunal appointed the Public Trustee for the ACT as manager of all of the property of LLJ. This order was recognised in QCAT on 30 May 2012 when LLJ relocated to Queensland with LT and her three children.
For these appointments to have been made, the Tribunals were satisfied that LLJ did not have capacity to make those decisions at the time.
At this hearing, the Tribunal did not grant leave for the adult children to be legally represented. The presiding member abridged time to allow a tribunal initiated application to proceed relating to the review of the appointments of a guardian and an administrator.

Does LLJ have capacity to make personal and financial decisions?

LLJ has many health issues. He has a background history of longstanding ischemic heart disease and hyperlipidaemia and significant arthritis. He has osteoporosis with spinal fractures. Some 23 years ago he had a fall and developed a subdural haematoma. His children believe that this fall has had an adverse impact on his cognition.
There are conflicting views regarding LLJ’s capacity.
Dr Sivakumaran, consultant physician in Canberra opined on 20 April 2011 that he had capacity to make decisions about his welfare. However on 21 March 2011 the doctor reported LLJ probably had mild cognitive impairment related to his vascular disease. He lacked insight and sometimes said things out of context. LLJ admitted to this doctor to having short term memory problems.
Associate Professor Carmelle Peisah conducted a comprehensive assessment in February 2011. She reported:
a)    LLJ was a delightful and intelligent gentleman with at least a five year history of personality change and dissipation of assets, probably due to mild cognitive impairment resulting in vulnerability and impairment in financial decision making.
b)    He has no insight into his vulnerability or risk and in particular (no) insight into his children’s concerns.
c)    He had an intense attachment to LT while being estranged from his children due to his lack of insight into the basis of their concerns for his financial security.
d)    LLJ has impaired decision making capacity in regard to his finances due to a psychological condition and not due to eccentricity or a desire to engage in ‘immoral’ conduct.
e)    LLJ’s interests are best served by having a private financial manager who has the power to veto influenced decisions and make decisions on his behalf to protect his estate.
f)          LLJ’s interest would also be served by maintaining his relationship, both his intimate and his family relationships, particularly with his children.
g)    It is not uncommon for mild cognitive impairment/early dementia to cause family conflict.
Associate Professor Peisah advocated that a non-adversarial conciliatory approach be taken to preserve/restore if possible his relationship with his children.
LLJ’s children took comfort that their concerns were justified from Associate Professor Peisah’s findings that:
[LLJ] has many risk factors for undue influence, namely cognitive deficit with impairment in reasoning and lack of insight, personality change, willingness to hand over money, physical frailty and physical and psychological dependency on a carer, vulnerability to sexual bargaining, a major age discrepancy between himself and his carers/intimates and family conflict.
LLJ’s children saw first hand the changes in their father. They believe that the very exploitation they predicted in 2010 continues to be played out today. They had no choice but to take action after friends, doctors and LLJ’s bank manager raised alarm bells that significant funds had been withdrawn and given to third parties.
LLJ submitted two health professional reports with his application to QCAT. His GP of the last one and half years, Dr WJ, was of the view that he had full ability to understand and act on information, understand the consequences of his decisions and that he had the ability to make his own decisions.
On 27 November 2013 Dr DM, psychiatrist, provided a report. He opined that LLJ showed no evidence of a dementing illness and a good understanding of his finances. He scored 29/30 on the Mini Mental State Exam. LLJ had capacity to manage his financial affairs as well as testamentary capacity.
LLJ had spoken to Dr WJ about his will being made before he was declared incapable (in the ACT) and before he married LT. He wanted to include her in his will but this would upset his children who served to gain most financially.
Neither of these recent doctors referred to a knowledge of the former actions of LLJ that adversely affected his financial status nor of the previous medical reports.
I am not satisfied that LLJ has capacity to manage his entire financial portfolio. There is clear evidence of vulnerability in the past. He made significant decisions that adversely affected his security and would have continued to do so without intervention. He continues to display no insight into the valid concerns his children held that led to financial administrators being appointed.
LLJ had great difficulty at first in accepting that this hearing was not brought on by the ‘litigation’ of his children, but rather that it was in response to his own application to QCAT. Some efforts were made to explain the distinction. He cannot accept that his children had acted protectively in the past. He sees their focus is on their entitlement to his money rather than on his welfare and their desire to have contact with their father.
LLJ is reliant on his wife LT. They have a close and seemingly positive relationship. She is the person who communicates with the Public Trustee of Queensland.
I am not satisfied that LLJ has capacity for decisions relating to contact. LLJ is committed to providing for both his wife and her children and this is commendable. In contrast he has not seen his grandchildren nor shown any desire to do so. The ongoing withdrawal from his children’s lives has adversely impacted on any relationship with grandchildren.
LLJ took great offence to allegations made against his wife and in her being spoken to negatively by his children. The more they raised the concerns of the past, the more entrenched his position became regarding not wanting contact. It was only when LT herself stated she would not prevent him from seeing his children that LLJ stepped back from his position. That is, the entrenched view that he would not have contact with them until they stopped the “litigation” against him.
LLJ’s insight is impaired regarding any previous concerns. He continued to fail to acknowledge neither his decision making could have devastated his security nor that he had been vulnerable.

Is there a need for the appointment of a guardian?

The Adult Guardian has not made a contact decision since appointed on 28 October 2013. There are no other decisions for which the Adult Guardian was appointed. It was acknowledged reluctantly by his children at this hearing that such contact could not be imposed on LLJ. The children were distressed by this continuing reluctance and resistance by LLJ and believed he was adversely influenced in the position he took.
The children have been very critical of the failure of the Adult Guardian to make any gains in their ability to see their father and have a meaningful relationship again. The system is seen to have failed to protect their father. One family member asserted that LLJ’s vulnerability is being exploited with the apparent inadvertent endorsement of an ill-informed guardian. They do not have faith that LT’s expressed care for their father, and desire to not interfere with contact, is genuine.
I am satisfied that the Adult Guardian cannot impose contact.
A slow reintroduction by his children into LLJ’s life was agreed to by the parties at the hearing. The children are asking for five minute telephone conversations to begin with.
This solution was made possible by the verbal agreement of LT that she would not interfere with, nor influence, LLJ’s views. I am not satisfied however that LLJ fully understood the reasons his children wanted contact. Nor the level of distress they have experienced.
There remains a need for the appointment of the Adult Guardian for contact decisions. LLJ actually liked the representative and got confused about having his guardian removed from the picture if he was found to have capacity. His positive view may stem from the fact that he had not been pressed to have contact with his children.
An independent person is needed to engage the parties in reconnection. This should not be left to LT to facilitate. The Tribunal has on the record LT’s view that, as a mother, she understands how children would want contact with their parent. She has not actively encouraged LLJ, effectively saying it was his choice. The negative relationship between the children and LT cannot be reversed without independent facilitation.
While LLJ’s children were of the view that a formal decision maker may also be needed for health care decision making, there was no evidence that he was not receiving adequate medical treatment or that LT was not providing adequate care at home. On the contrary, the evidence is that their marriage allowed LLJ to remain living in the community and to access services as required. It was not apparent that LLJ’s needs were not being met or that his welfare and interests were not being protected regarding healthcare.
The Tribunal appoints the Adult Guardian for contact decisions for a further two years to affect the agreements made at hearing. While it is acknowledged that LLJ’s son, LA, was to speak with his father after the hearing concluded, I am not convinced any goodwill will continue without the Adult Guardian’s oversight and proactive decision making.

Is there a need for the appointment of an administrator?

LLJ has less regard for the Public Trustee of Queensland than he has for his guardian. He blames his children for the Trustee’s intervention in his life. He does not want the Public Trustee of Queensland to continue to be appointed for all of his financial affairs, however limited their involvement may be on a day to day basis.
The Public Trustee of Queensland negotiated a regime with LLJ, taking the least restrictive option as prescribed by the legislation. Effectively the Public Trustee of Queensland only manages his savings. LLJ receives his own Comsuper and Centrelink income. The Public Trustee of Queensland however is appointed, and thus responsible for, the oversight of all of LLJ’s financial affairs.
LLJ’s children have been critical of financial decision making by formal appointees in the past. They want reassurance that LLJ will not be further adversely impacted.
The Public Trustee of Queensland reports a good working relationship with LT with whom they have the bulk of the contact. They liaise with her regularly to ensure all matters are attended to in a timely fashion.
LLJ would be totally opposed to any of his children taking on such a formal role as administrators.
LT was less resistant than her husband to the continuing appointment of the Public Trustee of Queensland. She reported that they were able to manage with the income (totalling approximately $50,000 per year) they received. LLJ paid for all of the costs incurred by the family. Her eldest son contributed board. She acknowledged the importance of protecting his savings.
The family home is in LLJ’s name only. The Public Trustee of Queensland will ensure that this cannot change without their decision making. He has savings of some $40,000 held in a Public Trustee of Queensland term investment account.
This financial portfolio is significantly less to that of the early 2000s. There is significant past evidence of previous financial vulnerability. There remains a need for LLJ’s financial security to be formally managed by an independent body.
The Tribunal acknowledges that LLJ wants to be free of the management by the Public Trustee of Queensland. He is aggrieved that the actions of his children had led to the first appointment in Canberra in 2011. He had difficulty appreciating that the decision for the appointment of the Public Trustee of Queensland was in the hands of the Tribunal and not his children. That these appointment decisions remain the sole responsibility of the tribunal was not fully understood by LLJ. That the subsequent financial decisions made by the Public Trustee of Queensland were as a direct result of the Tribunal appointment also proved difficult for LLJ to accept, in it being independent of his children’s capacity to influence.
Through the course of the hearing attempts were made by the Tribunal to affect resolution of some of the disputes. LT accepted the continuing appointment of the Public Trustee of Queensland to ensure that LLJ’s finances were secure. Such an appointment would reduce the potential of further allegations against her regarding financial abuse.
The Tribunal is satisfied that the Public Trustee of Queensland should continue its role as the formally appointed administrator. The independence and lack of conflicts of interest of the Public Trustee of Queensland will provide for ongoing oversight of LLJ’s financial affairs, while allowing for the day to day management of LLJ’s finances to remain the purview of LLJ and LT. LLJ’s assets are protected by this appointment.
The Tribunal continues the appointment of the Public Trustee of Queensland for all financial matters until further order of the Tribunal.