PCA

[2014] QCAT 393

CITATION: PCA [2014] QCAT 393

PARTIES: PCA

APPLICATION NUMBER: GAA6062-14

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Endicott

DELIVERED ON: 2 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: The application for a confidentiality order for PCA is dismissed.

CATCHWORDS:

GUARDIANSHIP – where attorney in conflict with adult’s family – where directions made for attorney to provide financial documents each year to the tribunal

CONFIDENTIALITY – where order sought to keep documents before the tribunal confidential and not to be accessed by adult’s family – whether order necessary to avoid any serious harm or injustice – whether public interest in keeping information confidential

Queensland Civil and Administrative Tribunal Act 2009 ss 66, 164, 230
Guardianship and Administration Act 2000 s 109

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. PCA is 81 years of age.  He lives with his wife who is his attorney for personal, health and financial matters.  WD, who is the son of Mrs P from an earlier marriage, is also an attorney for PCA but as a successive attorney only.

2. There is considerable conflict and distrust between Mrs P and the children from PCA’s first marriage who had sought to replace Mrs P as a decision maker by having the tribunal appoint a guardian and administrator for PCA.  The tribunal dismissed the application for the appointment of an administrator on 9 May 2013 but appointed the then Adult Guardian to make contact decisions for PCA. In all other respects, the attorney remained in place to make all other personal, health care and financial decisions for PCA.   

3. The tribunal had made directions on 9 May 2013 to Mrs P to provide each year to the tribunal copies of PCA’s bank statements, passbooks and term deposits together with other specified documents.  In early April 2014, Mrs P stated that she had provided copies of the financial documents on the condition that the documents are confidential and that she did not permit the documents to be released to her husband’s family.  She asserted that she was being continuously harassed by his children and she wanted confidentiality to avoid any further sneering comments about what their money was spent on.

4. On 1 May 2014 the tribunal made a further order requiring Mrs P to provide copies of specified financial documents to the tribunal each year.

5. Mrs P applied to the tribunal for a confidentiality order so that the documents she provides to the tribunal are not able to be accessed by her husband’s family.  Comments about the application for confidentiality were sought from PCA and from his family.  PCA’s children opposed an order being made.  Their comments included reference to the fact that Mrs P had removed in 2013 some $280,000 out of the joint account she held with her husband and had been placed into an account in her sole name without any consultation with the family.  The family expressed concern that she may do something similar again that would reduce their father’s assets.

6. QCAT is a court of record.[1]  The tribunal must keep a record for each proceeding containing all documents filed in the registry for the proceeding.[2]  A party to the proceeding may inspect the record without charge and another person may inspect the record on payment of a fee.[3]  These provisions would require the registry to allow the family to access filed documents on the tribunal’s file about PCA unless an order was made limiting access to those documents.

   [1] QCAT Act s 164.

   [2] QCAT Act s 230.

   [3] QCAT Act ss 230(2), (3).

7. The tribunal has power to make a confidentiality order over documents or information provided to the tribunal. Section 109 of the Guardianship and Administration Act 2000 (Guardianship Act) permits the tribunal to withhold access to documents before the tribunal by an active party or other person if the tribunal is satisfied that such an order is necessary to avoid serious harm or injustice to a person. Without such an order, documents before the tribunal are accessible before a hearing by active parties under section 103 for the purpose of preparing their case and are also accessible by a wider range of persons after a hearing under provisions contained in the Guardianship Act as well as the QCAT Act.

8. Mrs P has made her application for a confidentiality order to avoid what she perceives is harassment from her husband’s family.  It is a reasonable inference to make that the financial records provided to the tribunal comprising bank statements and term deposits for any account held in the name of PCA solely or jointly with Mrs P will be available for scrutiny by his family.  That scrutiny is not unintended.  It is the result of the tribunal taking express measures, which are not commonly made about attorneys but are commonly made about administrators, to have information readily available to the tribunal, and to the person’s family, about how a principal’s financial affairs are being managed.    

9. The disclosure of specific documents about PCA’s financial affairs as directed by the tribunal is designed to promote openness and accountability by PCA’s attorney and to minimise the distrust and conflict existing between the attorney and the members of PCA’s family.  There is a valid interest in the family knowing how PCA’s funds are being managed by his attorney given the history of the applications already filed in this tribunal since early 2013.  There are still matters to be determined by the tribunal and issues about whether PCA’s assets are being appropriately managed by his attorney are currently before the tribunal.  

10. I was not persuaded that any confidentiality order was necessary under section 109 to avoid serious harm or injustice to a person. Mrs P has not explained how serious harm or injustice will arise if her husband’s family are able to access the bank statements relating to PCA that are before the tribunal. I am aware that Mrs P’s own financial affairs will be disclosed to some extent as a consequence of joint bank statements being before the tribunal. However, she has the means to minimise any disclosure of her own separate affairs. She can have her separate income paid into an account in her sole name and she can use that sole account to meet expenditure that is solely her responsibility.

11. The management of income and assets belonging to PCA is of interest to the tribunal, equally so when the income and assets are solely owned by PCA or when they are jointly owned with his wife.  Bank statements and other documents are intrinsically confidential in nature but they are not being provided on a confidential basis.  They are before the tribunal solely due to the directions made by the tribunal and for a proper purpose, as outlined already in these reasons.  To achieve that purpose, they should be subject to the same level of accessibility as other documents before the tribunal.    

12. It is in the public interest that attorneys are held accountable for their actions in managing the financial affairs of their principal.  Part of that accountability in this case would require the attorney to keep the principal’s family involved in decisions about PCA.  As it appears that disclosure by Mrs P to PCA’s family of information about the financial affairs of PCA would be personally distressing for Mrs P, disclosure to the tribunal is a more appropriate way to ensure that family members interested in the affairs of PCA have access to information about the manner in which the attorney is discharging her role.

13. I was not satisfied that grounds were established under the Guardianship Act or section 66 of the QCAT Act for an order to make confidential the financial documents before the tribunal that are provided as a result of a direction made by the tribunal. The application for a confidentiality order was dismissed.