MTC - [2022] QCAT 432

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MTC [2022] QCAT 432

PARTIES:

In applications about matters concerning MTC

APPLICATION NO/S:

GAA349-21, GAA8869-21, GAA5131-22, GAA5133-22, GAA8108-22, GAA8114-22, GAA8122-22, GAA9525-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 December 2022

HEARING DATE:

13 December 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.     The administrators for MTC may give The Philosopher statue to DTA.

2.     The administrators for MTC must not make the proposed loan in the amount of $138,675 to SNA.

3.     The applications for directions by SND are dismissed.

4.     The administration order made by the tribunal on 13 December 2018 is changed by removing the Public Trustee of Queensland as administrator and appointing SNB, SNE and DTA jointly and severally as administrators for MTC for all financial matters.

5.     The financial management plan dated 3 and 4 September 2022 is approved.

6.     The tribunal directs the administrators to provide accounts to the tribunal:

(a)     for the first year of their appointment, by 31 January 2024;

(b)     within six weeks of being notified of a review of their appointment, for the previous 12 months; and

(c)     otherwise as requested by the tribunal.

7.     This appointment remains current until further order of the tribunal. The appointment is reviewable and is to be reviewed in five years.

8.     The application for a non-publication order is refused.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – POWER TO AUTHORISE PAYMENT OUT OF ESTATE – where directions are sought about whether to give, provide or lend property – whether such payments appropriate

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION ETC. – where family members seek to become administrators instead of public trustee – whether family members more appropriate

Guardianship and Administration Act 2000 (Qld), s 11(1), s 11B, s 12, s 31, s 54(1), s 81(1)(d)(i)

Human Rights Act 2019 (Qld), s 24

CGB [2019] QCAT 93

APPEARANCES & REPRESENTATION:

Public Trustee:

M Crothers, Principal Lawyer with the Official Solicitor to the Public Trustee

Parties not appearing:

MTC, DTA and Public Guardian

Other parties:

Self-represented

REASONS FOR DECISION

Introduction

These proceedings relate to an elderly woman. For privacy reasons, she will be referred to only as MTC. She has six children: five sons who will be referred to as SNA, SNB, SNC, SND and SNE (in the order they appear in direction 2 of the tribunal’s directions dated 8 August 2022), and a daughter who will be referred to as DTA.
Since 2018, the Public Trustee has been MTC’s administrator for all financial matters. SNA also has administrators appointed for all financial matters. His administrators are his wife, who will be referred to as WFA, and one of his daughters.
The proceedings are under the Guardianship and Administration Act 2000 (Qld) (Guardianship and Administration Act). The active parties to the proceedings involving MTC, under section 119 of the Act, variously as applicants, existing appointee, parties proposed for appointment, statutory persons who are automatically parties, or parties joined, are:
(a)MTC;
(b)each of MTC’s children;
(c)the Public Trustee; and
(d)the Public Guardian.
The proceedings were heard on 13 December 2022. MTC had been notified of the hearing, as required, but she did not attend. SNA did not attend but WFA attended on his behalf. All of MTC’s other children attended except DTA who had advised that she would be undergoing surgery. However, she did not seek an adjournment as she wanted the hearing to proceed. Representatives of the Public Trustee attended. Several spouses and close relatives of active parties also attended.

What needs to be decided?

The applications to be determined are:
(a)GAA5131-22 which is an application for directions brought by the Public Trustee;
(b)GAA8869-21, GAA8108-22, GAA8114-22 and GAA8122-22 which are applications for directions brought by SND;
(c)GAA349-21 which is a periodic review of the appointment of an administrator for MTC;
(d)GAA9525-22 which is an application for review of the appointment of an administrator for MTC brought by SNB, SNE and DTA, in which they propose themselves for appointment as administrators; and
(e)GAA5133-22 which is an application for a non-publication order brought by the Public Trustee.

Background

The tribunal appointed the Public Trustee as administrator for MTC for all financial matters in 2018. MTC’s financial affairs were complicated, including involvement in a long-term rural business partnership with SNA, being one of two members of a superannuation fund, and owning shares, horses, real property, water allocations and equipment. Tax returns were long overdue. As MTC was no longer able to live in the homestead and carry on the rural enterprise, there were numerous issues to be resolved. These included how the occupation of the homestead by SNA and his family should be dealt with, how the partnership should be wound up, whether property should be sold, and how personal items belonging to MTC would be distributed. Many of the issues were the subject of mediation in 2020 involving the Public Trustee as administrator for MTC, WFA and her daughter as administrators for SNA, and MTC’s five other children. This resulted in a deed of family arrangement that was signed by or on behalf of the parties and subsequently sanctioned by the Supreme Court.
The Public Trustee as administrator has sold MTC’s real property as well as several other assets. The partnership has been wound up. Outstanding tax returns have been lodged. Superannuation assets were rolled over into another fund. MTC’s assets now consist of shares, investments and superannuation, with a total value of more than $4m, and a $450,000 refundable accommodation deposit for her residential age care place. MTC has no liabilities.

Public Trustee’s application for directions: GAA5131-22

The Public Trustee seeks directions:
(a)authorising the giving of a statue called The Philosopher belonging to MTC to DTA; and
(b)authorising or not authorising a loan from MTC to SNA for payment of legal fees.
Section 54 of the Guardianship and Administration Act allows the tribunal to make an order that an administrator may make a gift. The application for directions about the proposed gift is, in substance, an application for such an order.
The application relating to the proposed loan, on the other hand, is properly described as an application for directions. It seeks a determination as to which of two financial decisions the administrator should make.
In relation to the tribunal’s power to make a direction, the Public Trustee notes that one of the functions that Parliament has conferred on the tribunal is to give directions in relation to administrators.[1]
[1]Guardianship and Administration Act, s 81(1)(d)(i).
The Public Trustee also points to section 138 of the Guardianship and Administration Act which says, relevantly, that ‘once an application about a matter has been made to the tribunal, the tribunal may … give … directions about the matter it considers appropriate’.[2] Section 138 goes on to say that if the tribunal gives a direction, it may continue with the application or adjourn the application.[3] The structure of section 138 seems to contemplate that a direction would be a procedural one to assist in the determination of an application, rather than a substantive one of the type sought by the Public Trustee in the present case.
[2]Ibid, s 138(1)(a).
[3]Ibid, s 138(2).
So, I am not convinced that section 138 has application. Nonetheless, I consider that section 81(1)(d)(i) confers jurisdiction on the tribunal to make a substantive direction of the type sought by the Public Trustee. In my view, whether the tribunal makes a direction must be discretionary. It would be open to the tribunal to decline to make a direction on the basis that an administrator is, as in the present case, fully empowered to make its own decision. An administrator, in the absence of a tribunal order to the contrary, is authorised to do anything in relation to a financial matter ‘that the adult could have done if the adult had capacity …’.[4] MTC would, if she had capacity, have been able to make a loan, or not make a loan, to SNA.
[4]Ibid, s 33(2).
However, it seems that the Public Trustee prefers the tribunal to make the decision because it is a matter of controversy within the family. As it is a difficult decision, and nobody has objected to the tribunal deciding it, I will proceed to make a direction on the topic.

Proposed gift to DTA

The Philosopher statue is valued at $2,500. It is in DTA’s possession, and she has asked that it be given to her. According to the Public Trustee, MTC is unable to ‘enjoy the statue’[5] in the residential aged care facility where she is now living. None of the active parties oppose the gift. Some family members think MTC would, if she had capacity, want DTA as her only daughter to have the statue for sentimental reasons. The Public Trustee points out that such a gift would have no impact on MTC’s financial well-being.
[5]Submissions of the Public Trustee at document H48 on the tribunal’s file, [33(c)].
Section 54(1) of the Guardianship and Administration Act says:
54 Gifts and donations
(1) Unless the tribunal orders otherwise, an administrator for an adult may give away or donate the adult’s property only if—
(a)the gift or donation is—
(i)a gift or donation of the nature the adult made when the adult had capacity; or
(ii)a gift or donation of the nature the adult might reasonably be expected to make; and
(b) the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
The Public Trustee submits that a tribunal order would be needed before the proposed gift could be made: there is no evidence that a similar gift had been made by MTC, and it is not clear that it is a gift that MTC might reasonably be expected to make. The Public Trustee submits that the proposed gift should be authorised in the circumstances.
While I consider it arguable that the proposed gift is one that MTC might reasonably be expected to make, I generally accept the submissions of the Public Trustee. I will make an order authorising the proposed gift.

Proposed loan to SNA

The proposed loan is in the amount of $138,675.
The background is as follows. Under the deed of family arrangement, it was agreed that:
(a)MTC would lend $600,000 to a protective trust to be created for SNA, at 2% interest;
(b)the loan would be secured by way of mortgage over any real property or other interest acquired by the trust;
(c)the loan would be repayable on the earlier of:
(i)      within six months of SNA’s entry into residential aged care;
(ii)      within six months of SNA’s death; and
(iii)     upon MTC’s death, in which case it would be brought into account as an adjustment against SNA’s entitlement from MTC’s estate.
The $600,000 loan has not been made. WFA explains that it was intended to provide accommodation for SNA. However, WFA’s brother has since provided suitable accommodation. Accordingly, WFA and her co-administrator do not intend to borrow the funds for SNA under the deed of family arrangement. WFA also says that ‘the administrators opted not to take the loan as they did not believe it to be in [SNA’s] best interests due to the conditions placed on the loan’.[6]
[6]Statement of WFA and her co-administrator at document H64 on the tribunal’s file, [16].
WFA proposes that, instead, MTC through her administrator should lend SNA $138,675 for legal costs. WFA says this is the amount owing to the solicitors who undertook various pieces of legal work for SNA: it is the amount still owing, after she herself paid as much as she could afford. WFA argues that the legal costs were reasonably and necessarily incurred on SNA’s behalf for representation in the negotiations between SNA (through his administrators), MTC (through her administrators), and SNA’s siblings over the partnership and other financial matters. WFA points to the long business relationship and close personal relationship between MTC and SNA. According to WFA and her co-administrator, SNA and MTC worked and lived side by side for many decades; SNA did not take a wage and no benefits were put toward a superannuation fund, but MTC made SNA the beneficiary of her superannuation fund. Further:
It is clear [MTC] cared deeply for her son and wanted him looked after financially. If this were not the case, she would not have made him a partner, or left him a significant amount of money in a binding death [benefit]. As such, no person could honestly dispute that she would not want to help him now, whilst he is living with an horrific terminal illness.[7]
[7]Ibid, 3.
WFA told the tribunal at the hearing that SNA has no assets, and that, to her knowledge, no person other than SNA is liable for the debt owed to the solicitors.
Various of SNA’s siblings oppose the proposed loan, for a number of reasons. These include that:
(a)SNA’s administrators could have sought provision for the payment of legal fees in the mediation, but they did not;
(b)instead, they agreed to a different settlement of SNA’s claims, namely the $600,000 loan;
(c)the deed of family arrangement was intended as a final settlement of all intra-familial claims, noting that under the deed ‘each of the Children release and discharge [MTC], the Partnership and each other from any claims which any of them may have against … Each other’;[8]
(d)the proposed loan will primarily benefit the solicitors; and
(e)the solicitors took a commercial risk in undertaking legal work for SNA, and they can wait for payment (which, no doubt, envisages the share of MTC’s estate that SNA stands to inherit when she dies, under a statutory will ordered by the Supreme Court).
[8]Deed of family arrangement [2.6(a)] in document H48 on the tribunal’s file.
The Public Trustee does not take a firm position for or against the proposed loan, but it points to a number of relevant considerations.
The Public Trustee notes that an administrator must exercise a power ‘honestly and with reasonable diligence to protect the adult’s interests’.[9] The Public Trustee submits that the proposed loan would not financially benefit MTC. It acknowledges, though, that it would not significantly impact MTC because of the overall value of her assets.
[9]Guardianship and Administration Act, s 35.
The Public Trustee queries whether the proposed loan would be an ‘authorised investment’. Under section 51(2) of the Guardianship and Administration Act, an administrator may invest only in authorised investments. However, the Public Trustee acknowledges that if is not an authorised investment permitted under the Trusts Act 1973 (Qld), the tribunal could authorise it. Authorisation by the tribunal of an investment is contemplated in the definition of ‘authorised investment’ in Schedule 4 to the Guardianship and Administration Act.
The Public Trustee acknowledges that MTC and SNA have had a close relationship, and that she has trusted him. It notes that the deed of family arrangement recites an assertion by SNA that ‘he is a dependent of [MTC] and should be supported from her assets’.[10] An administrator ‘may provide from the adult’s estate for the needs of a dependent of the adult’.[11] However, as the Public Trustee points out, SNA’s claimed dependency status was advanced as a consideration in the mediation, and was one of the claims settled under the deed of family arrangement. While in my view this would not preclude later consideration of the needs of a dependent, the fact that SNA’s claimed dependency was taken into account in the settlement tends to weigh against later provision for his needs, particularly for a liability that existed, substantially and otherwise foreseeably, at the time of the settlement.
[10]Deed of family arrangement [J(5)] in document H48 on the tribunal’s file.
[11]Guardianship and Administration Act, s 55(1).
The Public Trustee also urges the tribunal to carefully consider whether the proposed loan should be made from a public policy perspective: the tribunal should not set a precedent that could be relied on for the making of dubious claims against incapacitated persons of means.
The Public Trustee drew my attention to the case of CGB.[12] In that case, the tribunal directed the Public Trustee as administrator for CGB to pay substantial sums from CGB’s funds to his children for their legal costs incurred in administration proceedings before the tribunal. The tribunal regarded those costs as having been incurred in CGB’s interests. CGB was wealthy; he could afford to pay; and there was a ‘realistic possibility’[13] he would have agreed to pay had he retained capacity.
[12][2019] QCAT 93.
[13]Ibid, [62(f)].
I must apply the general principles in Chapter 2A of the Guardianship and Administration Act.[14] Some of principles relate to matters such as equality of opportunity, maintenance of existing supportive relationships, and taking an approach that is least restrictive of the adult’s rights, but these are not impacted one way or another by the decision to be made. Some relate to maximising the adult’s participation in decision-making, but it is common ground that MTC no longer has any ability to participate in decision-making. The general principles of particular relevance, in my view, are:
(a)the importance of maintaining the adult’s values;[15] and
(b)using the principle of substituted judgment if that is reasonably practicable.[16]
[14]Guardianship and Administration Act, s 11B(1)
[15]Ibid, general principle 5(1).
[16]Guardianship and Administration Act, s 11B, general principle 10(4).
It is apparent that family has always been important to MTC, as it is to most people. It can be inferred that she has had a value of caring for family members. That factor would favour providing financial assistance to SNA if he truly needs it.
The principle of substituted judgment involves working out from the adult’s views, wishes and preferences when they had capacity what their views, wishes and preferences would be about the decision to be made, if it is reasonably practicable to do so. Different family members have expressed different views about what MTC would have decided had she foreseen the present choices. For example, WFA contends that MTC would clearly have wanted to assist SNA, whereas some of SNA’s siblings say that MTC was always frugal and would not have made a loan that benefits lawyers.
I do not consider there is any practicable way of working out what MTC would have chosen to do in such a situation. It is not a situation she could have foreseen. It is dissimilar to choices she would have had to make in the past.
I have also considered whether any of MTC’s human rights under the Human Rights Act 2019 (Qld) (‘Human Rights Act’) would be impacted by the decision to be made. I do not consider that any of the rights are engaged other than in a contextual way, similar to factors highlighted in the general principles: particularly rights involving the protection of families[17] and the recognition of cultural rights.[18]
[17]Human Rights Act, s 26.
[18]Ibid, s 27.

There may have been some indirect benefit for MTC arising from the fact that SNA was legally represented, but the representation would primarily have been for his own benefit including in pressing his claims against MTC.
I am satisfied that the proposed loan should not be made. It was suggested to WFA by SNA’s solicitors, and it would primarily benefit them rather than him. According to WFA, SNA has no assets, so it does not seem to be a viable option for the solicitors to sue SNA and satisfy any judgment from a sale of his assets. Presumably interest may be accruing on the debt, so if eventually SNA is in a position to pay, after an inheritance, he will end up paying extra. However, any loan by MTC to SNA would also, in the ordinary course, attract interest. Further, even if some interest expenditure could be avoided, that is not sufficient to warrant MTC making a loan to SNA after he, via his administrators, settled all claims against her. Further, it may be that SNA (and in turn his estate) will never be in a position to pay the debt to the solicitors. If he predeceases MTC, SNA loses any share of MTC’s estate under the statutory will.
There would have been a stronger argument for financial provision to be made for SNA if he needed funds for accommodation or other living expenses, and if without the funds he would clearly suffer. However, that is not the case. I will direct the administrator not to make the proposed loan.

SND’s applications for directions: GAA8869-21, GAA8108-22, GAA8114-22, and GAA8122-22

SND originally sought a range of directions, but the only ones pressed at the hearing were:
(a)that WFA provide to him a painting of Horse A;
(b)that the Public Trustee provide to him a painting of Horse B, or pay him $157,000 from MTC’s funds.
It is undisputed that both paintings belonged to MTC when the Public Trustee was appointed administrator, and were hanging or at least stored at the homestead.
The application for a direction about the Horse A painting must fail. It is common ground that the painting is in the possession of WFA and her immediate family. None of those persons is MTC’s administrator. The tribunal has no power under the Guardianship and Administration Act to direct someone who, relevantly, is not an administrator to do anything. The distribution of MTC’s personal items was provided for under the deed of family arrangement. If SND believes that a party is in breach of the deed, he can consider his civil remedies.
The painting of Horse B is mentioned in Annexure B to the deed of family arrangement. The annexure says there are two paintings of Horse B: SNA’s administrators were to choose one for SNA, and the other painting was to go to SND. It seems, then, that the painting for SND should have been given to him by SNA’s administrators. He says this was never done. WFA says the painting was left at the homestead when her family vacated, and she does not know what became of it.
The Public Trustee says it does not know the whereabouts of the painting, and so it would be futile to direct it to provide the painting to SND. I accept this. This remains the case notwithstanding SND’s argument that the Public Trustee should have taken more steps to secure MTC’s property.
SND advances the alternative position that the Public Trustee should pay him $157,000, if it cannot produce the painting. This is curious, because it has not been suggested, let alone proved, that the painting is worth $157,000, or anything near that amount. SND’s argument seems to be that $157,000 is the value of two portions of the claims for more than $1m he had made in the family mediation; he agreed to settle for less than that; and because he has not received part of what he settled for namely the painting, part of his initial claim is somehow revived. Effectively, then, SND is seeking compensation from MTC on the basis that he has not received his correct entitlement under the deed. That is a claim that SND can pursue as a civil claim in court if he wishes, though it is not immediately obvious why MTC would be liable. There is no proper basis for a direction to an administrator. A direction should be made when an administrator needs guidance. It is not a vehicle for resolving civil claims.
The applications for directions by SND are dismissed.

Reviews of the appointment of an administrator: GAA349-21 and GAA9525-22

Under section 31(2) of the Guardianship and Administration Act, I must revoke the appointment of an administrator unless satisfied that I would make an appointment if a new application for appointment had been made. This requires consideration of section 12(1) of the Guardianship and Administration Act:
12Appointment
(1) The tribunal may, by order, appoint … an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a)the adult has impaired capacity for the matter; and
(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c)without an appointment—
(i)the adult’s needs will not be adequately met; or
(ii)the adult’s interests will not be adequately protected.

Capacity

Capacity is defined in Schedule 4 to the Guardianship and Administration Act:
capacity, for a person for a matter, means the person is capable of—
(a)     understanding the nature and effect of decisions about the matter; and
(b)     freely and voluntarily making decisions about the matter; and
(c)     communicating the decisions in some way.
Capacity is presumed,[19] but the presumption may be rebutted.
[19]Guardianship and Administration Act, s 11(1).
In 2018, general practitioner Dr Bryan Wong reported that MTC has Alzheimer's dementia; that she cannot make decisions freely and voluntarily; that she lacks the capacity to make even simple decisions; and that she is ‘unable to have any meaningful conversations’.[20]
[20]Dr Wong’s report which is document M1 on the tribunal’s file, 8.
There are no more recent reports, but it is not suggested by anyone that MTC’s cognition has improved. I find that the presumption of capacity for financial decision-making is rebutted in MTC’s case.

Need

MTC has substantial assets. There is clearly a need for financial decisions to be made for her. Without an appointment, her interests will not be adequately protected.
The ongoing appointment of an administrator would impact MTC’s property rights under section 24 of the Human Rights Act:
24Property rights
(1) All persons have the right to own property alone or in association with others.
(2) A person must not be arbitrarily deprived of the person’s property.
The appointment of an administrator does not deprive an adult of their ownership of property. However, it does remove the adult’s ultimate control over their property, including how assets are used and whether assets are retained or sold.
Section 13 of the Human Rights Act says:
13Human rights may be limited
(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a)the nature of the human right;
(b)the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c)the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d)whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e)the importance of the purpose of the limitation;
(f)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g)the balance between the matters mentioned in paragraphs (e) and (f).
In MTC’s case, the purpose of appointing an administrator is to enable effective management of her financial resources in circumstances where they would otherwise go unmanaged. MTC is no longer able to make choices about her property, and it is necessary and reasonable for an administrator to be appointed to ensure that her property is well-managed. The limitation of MTC’s property rights is, therefore, reasonable and justified.

Who should be appointed?

SNB, SNE and DTA propose that they be appointed as administrators instead of the Public Trustee, subject to one caveat. They consider that management of MTC’s investments, ensuring her bills are paid, and so on, are tasks well within their competence. They say they would obtain periodic financial advice about whether the investments should be adjusted. However, they would prefer that the Public Trustee remain administrator while there are any contentious matters –notably the negotiation of a loan to SNA for his legal fees – still to be attended to. They argue that once contentious matters are out of the way, they would be more appropriate than the Public Trustee as administrator. They would not charge for their services whereas the Public Trustee charges fees. They contend that MTC’s preference, if she still had capacity, would have been for family members to administer her finances rather than a government agency. Some support for that proposition might be garnered from the fact that MTC had made enduring powers of attorney in 2003 and 2013 appointing SNA and SND as her attorneys. Those enduring documents were, however, declared invalid by the tribunal in 2018.
SNC and SND support the proposed appointment of their siblings, though SND’s view is that the change of appointment should occur even if there are contentious matters to be dealt with. The Public Trustee takes a neutral position about whether there should be a change in appointment. WFA submits that the Public Trustee should remain administrator. WFA points out that MTC’s children each have a substantial interest in maximising their inheritance, and so she questions whether they can put MTC’s financial interests ahead of their own.
I can remove the existing administrator, the Public Trustee, only if I consider that it is no longer competent or another person is more appropriate for appointment.[21]
[21]Guardianship and Administration Act, s 31(4).
While various parties have criticisms of particular actions of the Public Trustee, nobody submits that they are generally incompetent. Several family members acknowledge that the Public Trustee has been successful in sorting out very difficult financial issues for MTC. I do not consider that the Public Trustee is incompetent.
The real issue is whether the family members are more appropriate for appointment. I am satisfied that they are eligible for appointment under section 14 of the Guardianship and Administration Act, which for example excludes paid carers and bankrupt persons. Section 15 of the Guardianship and Administration Act says:
15Appropriateness considerations
(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—
(a)the general principles and whether the person is likely to apply them;
…
(c)the extent to which the adult’s and person’s interests are likely to conflict;
(d)whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e)if more than 1 person is to be appointed—whether the persons are compatible;
(f)whether the person would be available and accessible to the adult;
(g)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.
(2)The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.
(3)Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.

I am satisfied that SNB, SNE and DTA are likely to apply the general principles; that they are compatible with MTC and with each other; and that they are available and accessible to MTC. Their careers are, respectively, as veterinary surgeon, rural agent and nursing sister, so they would bring a range of practical experience. I accept that they will seek out professional advice as necessary. Their financial management plan proposes no radical departure from the existing investments. Overall, I am satisfied that they are competent. I do not consider that there are likely to be conflicts of interest that would diminish their suitability. While it is true that they expect to inherit from MTC’s estate, along with their siblings, I do not consider that this is likely to cause them to neglect MTC’s needs. As I am directing that the proposed loan to SNA not be made, I do not consider that there are contentious matters left to resolve that might be beyond SNB, SNE and DTA, or which might give require the brokering of conflict transactions.
Section 15(4) of the Guardianship and Administration Act requires me to consider matters such as any criminal history, previous bankruptcy, or previous removal from appointment. There is no evidence of, or suggestion of, such factors in the cases of SNB, SNE and DTA.
I consider that the family members are now more appropriate than the Public Trustee as administrator, given that the most difficult and contentious financial issues have been resolved, there will be a saving because family members will not charge administration fees, and financial control will be in the hands of family which appears to accord with MTC’s preference.
Accordingly, I will change the appointment of the administrator by removing the Public Trustee and making SNB, SNE and DTA the administrators. They requested a joint appointment but I consider a joint and several appointment would be preferable. I am satisfied they would confer and cooperate in any event, but for practical reasons the power to act severally would be advantageous.
The appointment will be until further order, with a review in five years. The new administrators will be required to lodge accounts from time to time. Their financial management plan is sound and I will approve it.

Application for a non-publication order: GAA5133-22

The Public Trustee seeks a non-publication order under section 108 of the Guardianship and Administration Act prohibiting publication of any information placed on the tribunal’s files relating to MTC’s financial, testamentary and business affairs or relating to the details of, or settlement of, the family dispute. The Public Trustee points out that the documents filed include confidential information about MTC’s affairs, and that the deed of family arrangement includes a confidentiality undertaking not to disclose the terms of the deed. Publication of such information, the Public Trustee submits, may cause serious harm and injustice to MTC and her children. The Public Trustee notes that under section 230 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), any person may inspect a file.
However, in my view that provision is displaced by a provision specific to proceedings under the Guardianship and Administration Act, namely section 103 of the Guardianship and Administration Act. It permits access to documents only by active parties and other persons with a sufficient interest in the proceeding, and only then for a reasonable time after the hearing. That is a modifying provision in an enabling Act, that prevails over the broader provision in the QCAT Act: section 7(2) of the QCAT Act. Accordingly, I do not accept that there is general public access to the tribunal’s file for MTC. That position is reinforced in QCAT Practice Direction No. 8 of 2021: Accessing and obtaining copies of documents in guardianship proceedings.
The Public Trustee has not sought a confidentiality order under section 109 of the Guardianship and Administration Act, even though it was aware that persons other than active parties were in attendance at the hearing. The Public Trustee observed that the people present would already know the details of MTC’s affairs. I accept that this is highly likely. Similarly, I consider that anyone else who might be entitled to access documents under section 103 of the Guardianship and Administration Act would be highly likely to already know such information, and already to have known the information for a considerable time.
The tribunal can make a non-publication order only if satisfied it is necessary to do so to avoid serious harm or injustice to a person.[22] I am not satisfied that such an order is necessary. The only persons who might access the information in question would already have knowledge of it. There is no suggestion that they have disseminated the information more broadly. There is no reason to suppose that this would change.
[22]Guardianship and Administration Act, s 108(1).
Accordingly, the application for a non-publication order is refused.

Conclusion

Accordingly, I have changed the administration appointment, made an order about gifting the statue, made a direction that the administrators not make the proposed loan to SNA, and dismissed SND’s applications for directions. I have refused the application for a non-publication order.