MJA
[2018] QCAT 269
•27 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
MJA [2018] QCAT 269
PARTIES:
MJA
APPLICATION NO:
GAA1883-18
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
27 June 2018
HEARING DATE:
18 May 2018
HEARD AT:
Cairns
DECISION OF:
Member Pennell
ORDER:
The Public Trustee of Queensland is directed to take all reasonable steps it considers necessary to sell the residential property belonging to MJA situated at [redacted], and if necessary, take all other reasonable steps to obtain vacant possession of the property for the purposes of that sale.
CATCHWORDS:
GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPROVAL AND APPOINTMENT – adult with impaired capacity – The Public Trustee of Queensland appointed as administrator – administration appointment for all financial matters – adult living in aged care facility – adult owns a house – adult’s house occupied by a family member – family member is not paying market rent as directed by the Tribunal – family member is not contributing to the rates or insurance of the adult’s house – adult’s financial position is means tested – adult’s aged care facility fortnightly fees are significantly more expensive than the adult’s fortnightly pension – adult has limited financial resources in reserve – financial security of the adult is necessary – requirement for the adult’s house to be sold to secure his financial security
Guardianship and Administration Act 2000 (Qld), s 11, s 12, s 33(2) and Schedule 1.
APPEARANCES & REPRESENTATION:
MAJ, MD and DJ
Kirrily Turner and Lisa Gottani for The Public Trustee of Queensland
REASONS FOR DECISION
The adult in this matter is aged 87 and has been a long-term resident of Far North Queensland. He has two adult sons. MD, who is the eldest son, lives interstate. The other son, MJA, lives in the family home owned by the adult. By 2012 the adult and his wife lived in the family home. MD was living interstate and MAJ was employed on a full-time basis and working in the mining industry in Central Queensland.
On 11 May 2012, the adult’s wife suffered a stroke. Because her condition was described as serious, MAJ left his employment and returned to the Far North Queensland area to help his father look after her. She was later placed into a residential aged care facility.
In the period between 2012 and 2014, the adult’s medical condition deteriorated, and an application was made to the Tribunal for the appointment of an administrator for the adult’s financial affairs. By that stage, an Enduring Power of Attorney (“EPA”) had been signed which appointed MAJ and two (2) others as Attorneys for the adult in regard to his financial, personal and health matters.
On 11 February 2014, the Tribunal appointed the Public Trustee of Queensland (“the PTQ”) as the administrator for the adult for all financial matters. The EPA which was in place at that time for financial matters was overtaken by that administration appointment.[1] The adult and MAJ remained living in the adult’s house.
[1]Decision of Senior Member Endicott.
By the following month, the adult’s cognitive health had significantly deteriorated, and he was placed into a residential aged care facility.[2] Soon after he was admitted to the aged care facility, the Tribunal dealt with an application for the appointment of a guardian for him. The Public Guardian was appointed as the adult’s guardian for the personal matters of accommodation and health care.[3]
[2]He was admitted to the aged care facility on 22 April 2014.
[3]Decision of Member Quinlivan on 6 May 2014.
On 1 May 2015, the adult’s wife passed away. Within a week after her death, the Tribunal made a decision in relation to the personal and financial matters of the adult by continuing the appointments of the Public Guardian as guardian, and the PTQ as administrator. The guardianship appointment was to be reviewed within two (2) years,[4] and the administration appointment was to remain current until further order of the Tribunal.[5]
[4]Member Bayne reviewed that appointment and revoked the guardianship appointment on 4 May 2017.
[5]Decision of Member Clarkson on 7 May 2015.
On 23 November 2015, MAJ wrote to the PTQ. He requested that he be allowed, along with his friends, to share the adult's house as co-tenants. He told the PTQ that he had known his friends for 21 years and they could be trusted. He sought an answer back from the PTQ as soon as possible so that the early advice would be fair to his friends as they should not be left in limbo with regards to whether they could live in the adult’s house as co-tenants with him. It appears that MAJ did not receive a response back from the PTQ and he again wrote to the PTQ repeating his request.[6]
[6]The second request was made on 21 February 2016.
On 22 April 2016, the PTQ made an application to the tribunal for directions. The reason for the application was because MAJ continued to occupy the adult’s house without paying rent or otherwise contributing financially to the house. The PTQ suggested that MAJ should pay a market rental on the property. The PTQ’s purpose for making the application was the identification of a deficit to the adult’s budget, primarily due to no contributions being made by MAJ for him living in the house.
The Tribunal determined that MAJ should be joined as a party to the proceedings and directed him to provide submissions in respect to the PTQ’s application.[7] The PTQ’s application was listed for hearing.[8] MAJ resisted the PTQ’s application. Prior to the hearing, he filed two (2) affidavits to support his position. The first affidavit was from the adult’s niece, DML. She deposed that she had known the adult all her life. She also deposed that before the adult lost capacity, she heard him say that MAJ could stay at the house. A second affidavit was filed from CAJ. She also deposed that in 2013 she heard the adult say that MAJ could live in his house rent free for as long as he wanted
[7]Decisions of Senior Member Endicott dated 11 May 2016 and 22 June 2016.
[8]Hearing listed for 12 July 2016.
On 12 July 2016, the PTQ’s application was determined by the Tribunal. The Tribunal decided that MAJ should pay market rent whilst he continued to live in the adult’s house. A period of grace was afforded to MAJ in that the market rent was not to commence until 12 October 2016. This would allow him time to get his affairs into order (for example, finding a co-tenant).[9] The Tribunal also decided that in setting a market value for the rent to be paid by MAJ, the PTQ should assess the value of any contributions MAJ made towards the maintenance or improvement to the house and offset that against the market rent.
[9]Decision of Member Johnston.
What followed from the Tribunal’s decision with regard to MAJ paying the market rent was a complete failure for MAJ to follow the Tribunal’s decision. Subsequently, the PTQ filed an application seeking directions from the Tribunal with respect to the sale of the adult's house.[10] By the time of the hearing for that application on 18 May 2018, MAJ had not paid any rent as directed by the Tribunal on 12 July 2016. Neither had he contributed to the costs of the local council rates or the insurance premiums for the adult’s house whilst he had continued to live there.
[10]Application filed 30 January 2018.
The PTQ’s role as the adult’s administrator
The PTQ, during the period of its appointment, has acted competently and appropriately in a number of ways. The PTQ has informed the Registrar of Titles that an administration order had been made; has arranged a valuation of the real property owned by the adult; and has been active in managing the adult’s income and expenditure by implementing a budget for the adult and paying his expenses including his aged care facility fees; the rates and insurance on his house.
Direction sought by the PTQ
The PTQ seeks a direction from the Tribunal with respect to the disposal of the adult’s real property, which is a house owned by the adult.
The PTQ has appropriately explained to the Tribunal that if the adult’s house was not disposed of by way of a sale, then there will be insufficient funds available by the administrator to meet the financial needs of the adult in the future, particularly with respect to the fees relating to the aged care facility. The adult’s financial position has been made worse by the failure of MAJ to abide by his obligation under the Tribunal’s previous direction that he should contribute towards the adult’s financial position by paying market value rent.
The PTQ told the tribunal that the adult had previously been receiving financial support from the Department of Human Services (Centrelink) during his stay at the aged care facility. The adult’s house has now been valued at $280,000[11] and because the adult has been at that facility for longer than two years, his house is no longer exempt from the assessment of fees. Consequently, he is now means tested with respect to his overall financial position.
[11]Valuation as of 20 March 2017.
Because of that means test, the adult’s assessed contribution towards his aged care facility fees is now $1,524.18 per fortnight, calculated at an annual amount of $39,628.68. His income from his aged pension is $907.60 per fortnight, calculated at $23,597.60 per annum. That is an annual nett deficit of $16,031.08, or a deficit of $616.58 per fortnight.
The adult’s current financial assets (excluding his real property) are approximately $35,000. This is made up of savings and investments. It is understandable that the PTQ as the adult’s administrator are concerned about his long term financial position. That concern is because there has been no other income being derived from the adult’s house in the form of rent. It appears that the prospects of MAJ contributing by way of a market rent to the adult is minimal given that in the past two years he has not paid anything to the adult. Understandably, if that course is to continue then the adult’s financial resources will be depleted within two years.
MAJ
MAJ is aged 59. He enjoys good health and he disclosed that he has no alcohol, drug or gambling problems. He told the Tribunal that he is not presently employed and is in receipt of Centrelink benefits of $730.00 per fortnight. He did not contest the suggestion that he has lived rent free at the adult’s house since 2013. Neither did he raise any opposition to the suggestion that he had made no other contributions to his father’s expenses, such as the local council rates and the insurance premiums for the house. He also said that he has made no attempt to source alternative accommodation and at present he has no other place that he could move to.
MAJ made several proposals, which were varied. Firstly, he said that if he was working he could pay rent, although he conceded that he has not been actively employed since 2013. He then said that he could afford to pay $300 per week rent to his father, although he could offer no real explanation as to why he can now afford to pay the rent but had declined to do so for the past two years.
MJ then proposed that if he got someone else in as a co-tenant, then he could afford to live at the adult’s house and share that rental cost. This was the very point that the Tribunal made when it allowed him a three-month grace period in July 2016 to find others to assist in the rental costs. This same co-tenant proposal was his own proposal made earlier in November 2015. It seems that despite the passing of two and a half years, MAJ has not actively sourced others to co-tenant with him during that time.
The PTQ told the tribunal that they had engaged a valuer to value the market rent of the adult’s house. The market rent is somewhere between $470 – $490 per week. This amount includes the possibility that a large shed on the property could attract a rental income for the adult of $150 per week. Having regard to the market rent, it seems that the rent far outweighs what MAJ can afford to pay. Notwithstanding all of that, MAJ has not contributed a single dollar to the adult’s financial position in the past by way of rent, rates or insurance.
MD
MD is the adult’s eldest son. He resides interstate and appeared at the hearing by telephone. In the past he had opposed the sale of the adult’s house because it had been owned by the family for many years. However, given the current dire position of his father’s financial affairs, he now acknowledges and accepts that MAJ’s rent free occupancy of the house has become unsustainable and the house has to be sold. He supported the PTQ’s application.
Conclusion
Because of the adult’s impaired capacity, the Tribunal exercised its power under Guardianship and Administration Act 2000 (“the GAA Act”) to appoint the Public Trustee as the administrator for the adult in regard to all the adult’s financial matters.[12] The GAA Act outlines the general principles[13] that must be followed by the appointed administrator.
[12]Guardianship and Administration Act 2000 (Qld), s 12.
[13]Guardianship and Administration Act 2000 (Qld), s 11 and Schedule 1.
When an administrator is appointed there is usually the requirement for the administrator to develop and implement a financial management plan or a budget that ensures the effective and responsible administration of the adult's finances. This includes inter alia determining the full nature and extent of the adult's financial interests and developing a budget covering expected income and expenditure that ensures financial security, which in turn, maximises the adult's independence and quality of life. The PTQ has undertaken that task.
Due to the administration appointment, the GAA Act provides that the PTQ is authorised to act in accordance with the terms of their appointment as administrator for all the adult’s financial matters. The PTQ is also authorised to do anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.[14]
[14]Guardianship and Administration Act 2000 (Qld), s 33(2).
It is concerning to the Tribunal that if the adult’s house is not sold, the adult’s current financial assets are not enough to accommodate him within the comfort of the aged care facility where he presently resides for a period any longer than a further two years. What is also concerning is that MAJ has ignored the Tribunal’s decision which provided him with an opportunity in July 2016 to rectify his father’s dire financial position by entering into an arrangement whereby he would pay market rent for living in the house. His complete disregard for paying rent or contributing towards the council rates and insurances of the house are a major contributor to why there is a need to sell the adult’s house.
Decision
Having regard to the circumstances which led to the making of this application, the Tribunal is satisfied that if the adult’s real property is not sold, the personal and financial consequences will place the adult in a dire financial position.
Therefore, the PTQ should take whatever steps it considers necessary to sell the residential property belonging to the adult. If necessary, the PTQ should also take all reasonable steps to obtain vacant possession of the property for the purposes of that sale.
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