MMA
[2013] QCAT 718
•21 November 2013
| CITATION: | MMA [2013] QCAT 718 |
| PARTIES: | MMA |
| APPLICATION NUMBER: | GAA1309-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATES: | 20 June 2013 and 21 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Ashman, Member Member Paratz Member Gardiner |
| DELIVERED ON: | 21 November 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Public Trustee of Queensland is appointed as administrator for MMA for decisions about all financial matters. 2. This appointment remains current until further order of the Tribunal. 3. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. |
| CATCHWORDS : | Appointment of an administrator; transfer of an administration from another state to Queensland; Guardianship and Administration Act 2000 Schedule 1, clause 7(4) |
APPEARANCES and REPRESENTATION on 20 June 2013:
MMA’s son and daughter-in-law
Three representatives of the Public Trustee of South Australia
Two representatives of the Public Trustee of Queensland
Two representatives of the Queensland Adult Guardian
APPEARANCES and REPRESENTATION on 21 November 2013:
MMA’s son and daughter-in-law
Three representatives of the Public Trustee of South Australia
One representative of the Public Trustee of Queensland
REASONS FOR DECISION
MMA came to reside in Queensland from South Australia several years ago. She is now 93 years old and resides in an aged care facility. The Public Trustee of South Australia has been administering her financial affairs for several years following its appointment by the Guardianship Board of South Australia. Her son has expressed serious concerns about the Public Trustee’s management of his mother’s affairs and has appealed several decisions of the Guardianship Board with one leading to an audit of the Public Trustee’s management of his mother’s affairs.
Several of the son’s concerns were confirmed by the audit although these were generally considered of minor significance. The Public Trustee of South Australia has given assurances that all anomalies revealed in the audit report have now been corrected.
As MMA has been a permanent resident of Queensland for several years, the Public Trustee of South Australia lodged an application with the Tribunal seeking the appointment of the Public Trustee of Queensland as administrator.
When considering the appointment of an administrator, the Tribunal must first be satisfied that MMA lacks capacity to make decisions about financial matters. If this is confirmed, the Tribunal may then consider the need for the appointment of an administrator, and if there is a need, who is best placed to fill that role.
Does MMA have capacity for decisions relating to financial matters?
On 20 June 2013, the Tribunal considered written evidence contained in the Tribunal’s expansive file. MMA’s general practitioner of approximately four years provided a report that MMA has a diagnosis of Alzheimer’s disease and has also experienced a cardio-vascular accident in recent years. The doctor expressed the opinion that MMA has no decision-making capacity in personal and financial matters. She reported Mini Mental State Examination results from 2009 of 13/30 and in early 2010, of 3/30.
Those participating in the hearing concurred with the doctor’s views that MMA does not have capacity for financial matters.
The Tribunal is satisfied that MMA’s decision-making capabilities are seriously impaired and finds that the presumption of capacity contained in the Guardianship and Administration Act 2000 has been rebutted for financial matters.
An adjournment
The Tribunal took almost three hours of evidence from the parties attending the hearing on 20 June 2013. The son raised numerous concerns about the veracity of written and oral evidence provided by representatives of the Public Trustee of South Australia and his efforts and inability to initiate appeal proceedings against a decision made by the South Australian Guardianship Board in October 2012. Eventually, it appeared to the Tribunal that this matter turned on the provision of an adequate statement of reasons for that decision of the Board. The representative of the Public Trustee of South Australia stated that the son was not precluded from beginning such a proceeding without having possession of a statement of reasons and that the commencement of the action would lead to a speedy release of a statement of reasons if none has been provided to him.
The Tribunal held the view at that time that if the matter (the appointment of the Public Trustee of South Australia as MMA’s administrator) had not been finalised, or if an appeal was genuinely foreshadowed, then the administration might best remain in that State until the matter was resolved.
Therefore, the Tribunal issued directions to the son to produce written evidence of his request for a statement of reasons from the Guardianship Board, and additionally, a statement that he had commenced appeal proceedings, or intended to commence such proceedings. A time frame was set for the delivery of these materials and the matter was adjourned.
During the adjournment, the son provided a copy of his request for a statement of reasons, and in latter correspondence explained that he was still awaiting information that would enable him to commence appeal proceedings.
Evidence from the Public Trustee of South Australia indicates that the son was provided with a transcript of proceedings in March 2013, which included the ex tempore oral reasons that were delivered.
Upon reconvening the hearing on today’s date, the son stated that he has not lodged an appeal in the District Court of South Australia. As such, he is now out of time to do this and would have to apply for leave to commence such an appeal.
The Tribunal does not consider that there are any current uncompleted proceedings, or pending proceedings, of any type in South Australia that would impede the appointment of an administrator in Queensland.
Does MMA need a Queensland decision-maker for financial matters?
This question was expansively investigated during the 20 June 2013 hearing. Documents provided by the Public Trustee of South Australia in advance of that hearing showed that MMA’s assets totalled approximately $245,000 being split roughly equally between cash, investments, and shares, with the residual being an accommodation bond plus the value of personal possessions. During the reconvened hearing on 21 November 2013, details of these assets were updated. Assets managed by the Public Trustee include approximately $140,600 in cash and shares, and approximately $111,500 as the balance of the accommodation bond and personal possessions.
While there does not appear to be any substantive disagreement between the MMA’s son and daughter-in-law and the Public Trustee of South Australia about the need for MMA’s affairs to come under an administrator, it is the location of the administration that is disputed.
The representative of the Public Trustee of South Australia stated that there is a need for a Queensland appointment as MMA has been living in Queensland for some years, she owns no property in South Australia and a local administrator would be best placed to manage her affairs. A local administrator would have ready access to MMA and could assist in the delivery of state-based entitlements. The Public Trustee of South Australia was not in a position to provide the type or range of personal services due to distance.
The son disagrees. He stated that there was no need for the appointment of an administrator in Queensland, that technology was available to enable the South Australian Public Trustee to manage his mother’s affairs although he stated that there had been many unnecessary delays in payment of bills and accounts; and dealings related to property and his mother’s belongings.
From the bulk of the son’s evidence it appears that his overriding concern about the appointment of a Queensland administrator was the perceived loss of his capacity to litigate against the Public Trustee of South Australia should his mother’s assets be placed under the management of a Queensland administrator. This would eventuate following a subsequent revocation of the Public Trustee’s appointment by the South Australian Guardianship Board.
Furthermore, the son believed that it is the Queensland Tribunal’s responsibility to investigate the alleged wrong-doings by the South Australian Public Trustee. The son was reminded that the Tribunal has no jurisdiction to investigate the actions or decisions of entities in other Australian states.
In deciding if there is a need for the appointment of an administrator in Queensland, the Tribunal is mindful that simultaneous appointment of administrators in two or more states is not uncommon when an adult with an impaired capacity for financial decision-making moves regularly between states, when there are assets spread across states, or when the transfer of assets from one financial product to another or one jurisdiction to another would incur unacceptable losses. None of these situations appear to exist in MMA’s case. The son insisted that his mother would be financially disadvantaged, but representatives of the Public Trustee of Queensland and of South Australia expressed the view that a loss, if any, would be small.
The Tribunal is satisfied that as a long-term resident of Queensland and in light of her current substantial assets, there is a need to ensure that MMA’s affairs would be appropriately managed in Queensland and to ensure that her interest are properly protected. Of significance to the Tribunal is the nature of the relationship between the son and the Public Trustee of South Australia. It has been severely strained for several years.
MMA’s daughter-in-law stated that the Tribunal might take into consideration MMA’s views about where her affairs might be administered. The Tribunal considered this information as being relevant to General Principles, specifically Schedule 1, clause 7(4) of the Guardianship and Administration Act 2000. MMA’s daughter-in-law read from an advocate’s report considered at a South Australian Guardianship Board hearing. In summary, the advocate stated that MMA wished her financial affairs to be transferred to Queensland once financial management anomalies had been resolved in South Australia.
The Tribunal has taken into consideration South Australian findings subsequent to the completion of the audit of the Public Trustee’s administration of MMA’s affairs. The Tribunal is satisfied that matters raised in the audit report have been resolved. Furthermore, the representative of the Public Trustee of South Australia indicated that the Public Trustee does not intend to reinstate any inquiries concerning matters raised by the audit report.
The Tribunal recognises the tensions that remain between the MMA’s son and daughter-in-law and the South Australian Public Trustee in regard to most, if not all, aspects of her financial affairs. Such tensions do not assist in the efficient administration of MMA’s affairs, and incur additional costs to all parties. This situation strongly suggests need for a decision in regard to the appointment of an administrator in Queensland. The Tribunal finds that without an appointment MMA’s needs in regard to financial affairs will not be adequately met or her interests adequately protected and the most appropriate and competent appointment is required.
Who is the most appropriate appointee to act as administrator?
The son devoted considerable time during the first hearing to criticisms of the Public Trustee of South Australia including instances of mismanagement and misappropriation of his mother’s assets. These criticisms taken together paint a picture of distrust that led him to challenge decisions made by the Public Trustee and the veracity of the evidence that has been, and was being, presented to the Tribunal.
In the hearing on 21 November 2013, the representative of the South Australian Trustee stated that the Public Trustee of Queensland would be an appropriate appointee as administrator. She raised the issue of proximity of the Public Trustee to MMA thereby allowing that administrator to deal with matters expediently on a day-to-day basis.
The representative of the Public Trustee of Queensland submitted that the Queensland Public Trustee was well placed to manage MMA’s affairs and that if her assets were transferred to Queensland it was unlikely that she would incur any asset losses. He stated that it was also not unreasonable that some assets might remain invested in South Australia.
When considering the most appropriate appointee the Tribunal took the following matters into consideration. Firstly, the son expressed no reservation about the appointment of the Public Trustee of Queensland apart from a concern about the slightly higher cost of management fees in Queensland. Indeed, it appears to the Tribunal that up until the lodgement of the application under consideration, he favoured the appointment of the Queensland Trustee. Secondly, the Queensland Trustee is competent and capable, and able to visit MMA and liaise with her residential careers in person. The Queensland Trustee can respond in a timely manner to any financial needs that MMA might have and develop a personal rapport with her to the greatest extent that is possible (given her cognitive capabilities) to ensure that her needs are met and finances protected.
The primary contrary arguments of the MMA’s son and daughter-in-law relate to their view that MMA would lose appeal rights and other legal redress against the Public Trustee of South Australia and (possibly) the Guardianship Board if their mother’s assets are transferred to the control of the Queensland Trustee. They argued that her rights would, therefore, be infringed as reimbursements and/or compensations were rightly due from Public Trustee of South Australia.
These concerns appear to be based upon legal advice that the son says he received from a solicitor in South Australia. The Tribunal has not received any cogent submission supporting a conclusion that MMA will lose any rights by the appointment of an administrator in Queensland, and does not accept that this would be the result of such an appointment.
Having taken all written and oral evidence into consideration, the Tribunal is satisfied that there is a need for the appointment of a Queensland administrator. The Public Trustee of Queensland generally appears to have the son’s and daughter-in-law’s confidence and the views said to reflect MMA’s are consistent with theirs. The representatives of the South Australian and Queensland Public Trustee stated that the transfer of assets to Queensland would not necessarily lead to depreciation of MMA’s assets and that collaboration between Public Trustees and advice taken by the Queensland Trustee would specifically address this issue.
As there is no other nominee for administrator in Queensland the Tribunal finds that the most appropriate appointee is the Public Trustee of Queensland. The Tribunal appoints the Public Trustee of Queensland until further order with additional orders and/or directions given as in the published orders of the Tribunal.
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