REN

CITATION:	REN [2017] QCAT 64
PARTIES:	REN
APPLICATION NUMBER:	GAA10831-16, GAA10832-16 and GAA 11218-16
MATTER TYPE:	Guardianship and administration matters for adult
HEARING DATE:	28 October 2016
HEARD AT:	Brisbane
DECISION OF:	Member Allen
DELIVERED ON:	14 February 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	GUARDIANSHIP 1. The Public Guardian is appointed as guardian for REN for all personal matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for REN for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. NOTICE OF INTEREST IN LAND 7. That before 28 January 2017 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. ENDURING POWER OF ATTORNEY 9. Any purported Enduring Power(s) of Attorney for REN are overtaken by the making of these appointments and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made. DIRECTIONS 10. The application for directions for REN is dismissed.
CATCHWORDS:	GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult with diagnosed cognitive impairment – where multiple enduring powers of attorney – conflict among family members – appropriateness considerations – whether family members or independent appointees should be guardian and administrator for adult.
APPEARANCES:
The following parties attended the hearing:	REN, RL, RJS, RJ brother of REN, NR sister-in-law of REN, PP nephew of REN, PJ brother-in-law of REN and PJ sister of REN, MD and YD friends of REN, Clinton Miles representing the Public Trustee of Queensland and Becky Hugginson represwenting the Public Guardian

REPRESENTATIVES:
RDA and RJS	were represented by Mr R Williams of Counsel instructed by CRH Law
RL	Was represented by Mr S Whitla, solicitor of McCullough Robertson Lawyers

REASONS FOR DECISION

History of the Application

REN is 84 years old and until recently resided independently with his wife RL. REN is a self-funded retiree with an extensive portfolio of assets held in bank accounts, a trust and a superannuation fund. He has two daughter who reside in England, RDA and RML and a nephew, RJS who is an accountant.
REN has had a diagnosis of dementia since 2014 and it appears that over the course of 2016 his condition deteriorated. This caused problems between REN and RL which are noted in a report from Dr Khateeb, REN’s geriatrician.
RDA says that she has always had a close relationship with her father and they had frequent telephone contact, every Sunday. In July 2016 that contact increased and REN expressed concern that RL had gambled away all her money, that all his money was gone and he was worried about his future. She said that REN did not want to stay with RL any longer and repeatedly asked if he could come to live with her. He also asked for RJS to help him and to take over his financial affairs.
In August 2016 RJS, who knew that he had been appointed attorney by REN under an enduring power of attorney granted in 2004, determined that he should invoke his powers as attorney, following a consultation with REN’s doctor and RJS’s solicitor.
RJS visited REN and RL on 13 August 2016 and requested a discussion with REN alone according to RL. She left the house and they later joined her at the local tavern.
RJS returned on 20 August 2016 while RL was out and REN contacted her and told her that RJS wanted to take some documents away. She returned to the house and RJS informed her he had an enduring power of attorney from 2004 and “He had the law”. RL says she had never heard of an enduring power of attorney. RL says he asked her whether various bills had been paid to which she replied, “Yes”. RJS says that he was acting on REN’s request and because of his concerns for him.
RJS left a letter confirming his concern that REN had lost capacity and that he would be taking over his affairs as attorney. RJS collected various documents including bank statements and disabled a computer which he thought RL may have been using to access REN’s funds.
RL says RJS returned with neighbourhood security officers on 22 August 2016 and brought a further letter this time for her. The letter was from RJS’s solicitors. It confirmed that the enduring power of attorney of 22 November 2004 was the operative and current enduring power of attorney and in lieu of her producing a newer attorney our client has all the rights of REN at law. RJS said he had to take all of REN’s financial documents away today. RL says that RJS said if she was against this he would call the police.
RL told RJS to take what he needed and RJS left with the documents. RJS later returned and asked to speak to REN. RL said she had to leave the house to pick her son up at the airport at 9.00 pm and that REN was usually in bed at that time of night. RJS said it was only a few questions. RJS did not leave until after RL returned from the airport at 11.30pm.
RL says the next day REN said he could not remember what RJS took and he was worried that he had signed documents that he could not understand.
RL also found her computer was not working because a cord was missing. REN’s cheque books are all gone and she found printer ink was significantly depleted indicating that RJS had printed and copied many documents in her absence. Also later found that documents were missing from her computer including her personal documents and her email account was no longer working.

RDA phoned RL on 26 August to say that she would like to visit and that she planned to arrive on 29 August 2016. RDA was completed by RL, REN and RL’s son from the train station on 29 August. RL says she prepared the home for RDA’s arrival and she was very welcoming.
RL says that on 30 August 2016 Megan Lees, a good friend of RJS’s wife, came to the house to discuss care arrangements for REN. RL noted that it was suggested that there be people there all day every day.
On 1 September 2016 RDA took REN to see Prof Byrne and to visit REN’s brother. After that RL met them with her son at a restaurant.
RJS while sorting through REN’s documents on 1 September 2016 found an enduring power of attorney granted by REN to RL on 22 August 2011 which would commence for financial matters upon written certification that REN had impaired capacity””. RL says RJS phoned her to advise her of this and she asked him to return REN’s cheque books and her computer cord.
On 2 September 2016 RL, REN and RDA visited Arcare to look at the facilities and discuss the possibility of placing REN there.
On 4 September RJS came to the house and gave RL the original 2011 enduring power of attorney and one to RDA. RL says RJS asked REN to sign a bank form to add RJS as signatory to his account. RL said he should not do that and RJS ripped the form up. RL says RDA was very angry about the 2011 enduring power of attorney.
On 5 September 2016 RL says RDA became angry with her at breakfast about REN’s medication. RL says RDA was very aggressive towards her and made her feel uncomfortable. RL says REN complained to her that RDA was requesting a lot of money and she said he did not have to give it to anyone. Because RDA was being aggressive to RL she says her on sent her a message that RL would stay in a hotel that night. RL knew that RDA was leaving on 6 September 2016 and she would return to the house after RDA left.
REN wandered from the house in the middle of the night of 5 September 2016. RL says that he was in RDA’s care at this time. RL says she received a call from RJA at 4.30am on the morning of 6 September advising her that REN had wandered from the house. She returned home and says her and REN were lying in bed when security asked REN if he wished to go to hospital. An ambulance was called and REN was admitted to hospital, where he stayed until his release on 7 September 2016.
RL says she collected EN from hospital on 7 September 2016 and that he was not very happy. He said he wanted to go to Dr Love’s office and then that he wanted to go to RJS’s house. RL agreed to that and RJS came to collect him and packed some luggage for him. RL says she told RJA about taking REN to a follow up appointment the next day.
RL says she saw RJS and REN at the local pharmacy on 9 September 2016 and that REN took her away RJS’s sight and kissed her and said he loved me.
On 10 September 2016 RJS came to RL’s home and picked up some further belongings for REN. She says he told her that he intended to put REN in an aged care facility and he did not tell her where it was.
RL says on 12 September 2016 she became aware that RJS was in hospital with appendicitis. She did not know where REN had been placed and she telephoned RJS’s mother to ask the location and she would not tell her. She says he was very concerned about REN. RL then contacted a solicitor and found REN through police intervention.
On 14 September 2016, Megan Lees drove REN to the medical center. Dr Love spoke to REN and RL separately and then RL took REN home.
On 15 September 2016 RL says she took RL to see a solicitor. REN could not remember how or when he was placed at an aged care facility. He remembered being very distressed and banging on the walls. RL says that night REN spoke to RDA for two hours.
RL says her and REN were happy at home for the following week and largely resumed their usual routine.
RL notes that RJS and RDA say that she refused them access to REN on 18 September 2016. She says RJS called and REN was asleep and while preparing to go out dinner there were two other calls. Each time she answered the caller hung up. RL says when they returned home security was at the house advising that RDA had contacted them to say that RL was not allowing REN to speak with her. REN then telephoned RDA.
RL says that on 22 September 2016 she took REN to Brisbane to see Dr Byrne. RJS phoned on the way home and she says REN told RJS that he was happy at home with RL and does not require RJS’s assistance anymore. On the same day RJS says that due to various concerns he had he completed a referral from to the Public Guardian.
On 29 September 2016 RL took REN to Dr Love’s office. She says Dr Love commented that REN was looking better. RL says that night REN had a long conversation with RL on the phone.
RL says that after REN had gone to bed he noticed the kitchen light was on. She went to the kitchen and found REN holding a knife and he lunged at her. RL said she fled the home in her underwear and told security what had happened. The security contacted the police. RL says that at no time did she threaten REN with a knife. RL says security told her to stay at a hotel that night. RDA and RJS’s legal representative have characterised RL’s actions as separation on a final basis.
RL returned home on 30 September to collect some items and REN had no reaction to her.
On 1 October 2016 RL returned home with security with some milk and bananas for REN. She says RDA was on the phone to REN and she overheard RDA tell REN not to let her in. REN then told her to go away. RL says she has only been back a couple of time to pick up some belongings and only RJS was at the house on these occasions and he checked her bags before she left. RL says she understands the locks have now been changed and that she cannot access the house.
On 6 October 2016 REN executed a revocation of the enduring power of attorney appointing RL and made a new enduring power of attorney appointing RJS and RDA as his attorneys for financial and personal/ health matters.
Applications were then made by RDA and RJS to the Tribunal for the appointment of guardian and administrator including an application for an interim order.
When the Tribunal is considering applications for the appointment of guardians and administrators it does so in accordance with s12 of the Guardianship and Administration Act 2000 (GAA Act). This requires the Tribunal to be satisfied:
a) Whether or not REN has capacity to make decisions?;
b) Whether there is a need for decisions and without appointment REN’s needs will not be adequately met or interests adequately protected?; and
If there is a need for a decision-maker to be appointed who that person should be in accordance with the eligibility requirements in s14 of the GAA Act and the appropriateness considerations in s15 of the GAA Act?

Capacity

Professor Byrne provided a report to the Tribunal in regard to REN’s capacity to make personal and financial decisions. Professor Byrne noted REN’s medical conditions included dementia which had a date of onset of 1 January 2014. He noted that cognitive assessments had performed being the Mini Mental State Examination for which REN scored 17/30 on 6/10/16 and 20/30 on 22/9/16. Professor Byrne stated that REN lacks capacity to make decisions about his personal health care, lifestyle and accommodation choices and financial matters due to moderately severe dementia. That because of the presence of moderately severe dementia, REN is liable to be influenced by those he is with at the time. He stated that did not have impairments which affected his ability to communicate. That REN had executed an enduring power of attorney on 5 October 2016 and that he did not understand those matters necessary to make an enduring power of attorney. In his opinion REN would be able to make simple decisions only in regard to personal health care, lifestyle/accommodation choices and his financial affairs. He stated that the history of REN’s condition was slowly progressive dementia since about 2014.
RJS in his referral to the Public Guardian on 22 September 2016 noted his concerns in regard to REN’s behaviours which he says indicate impaired decision-making capacity. That during conversations after about 15 minutes REN cannot remember what has been discussed and what actions were decided and he asks the same questions without knowing the matter has just been recently discussed. REN is unable to prepare his own meals and is incontinent. That REN had asked him to take over his financial affairs, because he said he no longer knew if he had any money left or what was happening with his financial matters. He expressed concern that all his money was gone and his wife too had run out of money due to gambling at Poker Machines. RJS states “it turned out that REN has large amounts of money in investments, but has forgotten this and believes he has no money. REN was unable to tell him whether his bills were paid and that there were 20 bottles of medication on his dining room table but he could not tell him which ones he was taking.
RL noted that REN was diagnosed with Alzheimer’s in 2014 and referred to Dr Khateeb. She said that he often complained that his mind was not working well. She said that she had only noticed a significant change in his ability and personality in 2016.
RDA states that she first noticed a decline in REN’s cognitive function in 2010 and that in 2012 she noticed a marked deterioration in REN’s cognitive when he visited her at Easter. REN got lost at the airport when he arrived in London unaccompanied from Hong Kong in 2013. RDA says she contacted RL who said she thought his mind had gone and she’d wondered if he would be ok. RDA denied at the hearing that REN would be subject to influence.
REN acknowledged at the hearing that his memory was not as good as it used to be. Dr Love stated at the hearing that REN’s medical condition was serious, that there had been a deterioration in the last 12 months and that he was susceptible to influence.
I am satisfied that as a result of the effects of Alzheimer’s dementia that REN has impaired capacity for both personal and financial decisions.

Guardianship

At the time of the hearing REN was residing in his home being supported by RDA. It was made clear that RDA intended to return to England following the hearing and that if she were appointed as REN’s guardian that it was her intention that he accompany her and reside with her and her daughter in England. According to RDA and RJS it was REN’s wish that he return to England with RDA. This was on the background that there had been a separation between REN and RL.
For her part RL says that she does not wish to separate from REN but that she can no longer care for him at home and that she would like him to be placed in a local aged care facility. She does not believe that REN should return to England and that he would only express a desire to return to England because RDA has indicated that she will keep him at home and has told lies about RL.
I also note that respite was arranged for REN by Megan Lees on 14 September 2016 and that after one night he wished to return to RL. Ms Lees in a report to Dr Love of 19 September 2016 stated that while in respite there were said to have been instances of REN being aggressive to staff. Ms Lees had earlier made a home visit and discussed support arrangements with REN, RL, RDA and RJS and had suggested that home support may be possible 24/7 and had also looked at more limited support for REN and RL. She noted that there was to be an ACAT assessment.
RDA alleges that RL was not providing care for REN in particular she did not supervise his medication and left him at home alone when he was not able to provide himself with food and drink and did not arrange service provision for him. In her final statement she alleges that his bedroom and ensuite were filthy as were his clothes. I note that there is no mention of any of these in the report that Megan Lees provided to Dr Love.
There is clearly a need for an accommodation decision as REN is not able to reside by himself and RDA is returning to England. If REN is to remain in his own home service provision will be required. REN’s Alzheimer’s will also require active management in particular to moderate his behaviour and so health care decisions will be required. REN has over the last couple of months undergone a period of instability in terms his relationships with his wife, RL being removed from his life and his daughter, RDA and nephew, RJS becoming more prominent in his life. Decisions will need to be made as to what contact various people should have with him.
RL came into possession of REN’s passport and someone will be required to be able to formally request that. This would be a legal matter not relating to financial or property matters. There was a request for directions in this regard as to who had the authority to request the passport.
I am satisfied that at this point in time REN’s personal needs are complex and that it is appropriate that a decision maker is required for all personal decisions.
Currently RJS and RDA are attorneys appointed under an enduring power of attorney made on 6 October 2016. I note that Prof Byrne did not consider that REN had capacity to make an enduring power of attorney at the time. RL was appointed attorney under an enduring power of attorney made on 22 August 2011. I note that RJS and RDA acted as interim guardians under an order of the Tribunal made on 19 October 2016.

There is uncertainty in regard to the validity of the enduring powers of attorney and I note that RL has nominated that she would prefer that the Public Guardian act as guardian for REN.
The Public Guardian may only be appointed as guardian if there is no other person appropriate for appointment.
I have no doubt that RDA was concerned for her father’s welfare in particular in regard to his medication and being left at home by RL. RJS was also similarly concerned. It is also clear that they did nothing to assist RL to continue in her role and when RL was forced to leave the house as a result of threatened violence from REN characterised it as a permanent separation. They had also prior to any appointment determined that REN should reside in England.
RL says that she does not believe that RDA and RJS are appropriate to act as guardian for REN on the basis of their behaviour towards her. That they have been aggressive, have locked her out of her own home, separated her from her husband. Mr Whitla for RL submitted that the appointment of RDA and RJS as guardians is not appropriate. They refused to recognise RL as REN’s wife, unnecessarily created conflict in the matter, based their actions in a longstanding dislike of RL and generally acted in a manner which has caused a decline in REN’s health and cognitive function. That such conduct is contrary to the appropriateness considerations on s15(1) of the GAA Act and in particular the requirement that the guardian apply the general principles set out in schedule 1 and the health care principles.
At the hearing RDA acknowledged that she had changed the locks at the house and said her father was frightened. When asked at the hearing why we should believe that REN wants to go back to England she referred to Dr Love said he had confirmed this. When Dr Love was asked to confirm that REN wanted to live with RDA and stated “Said that and he also said he wanted to live with RL”. Even if REN expressed a wish to live somewhere it is clear from the episode in respite that his views are subject to rapid change
RDA denied at the hearing that the only reason she brought the application was to break up REN and RL’s marriage. RDA said she liked RL when she first met her but she saw that RL was nasty to her father and that she is vicious. RDAs attitude to RL can be clearly seen in her statement of ’24 October 2016 where she states
Historically, REN having helped RL leave her relatives in China, escape and seek asylum in Germany, felt a sense of obligation to her. He has repeatedly stated over the years that wished that he had never met her and that he regretted getting involved with her and that it was the biggest mistake of his life. Nevertheless, because of her inadequacies and (I think) his loneliness and her refusal to relieve him of his sense of responsibility and obligation to her as foreigner in the west, he failed to rid himself of her.
RJS acknowledged at the hearing that an attempt was made in correspondence from solicitors acting for RL as attorney to try to arrange a meeting to discuss REN’s future care and that instead applications were made to the Tribunal by RJS and RDA. That is not to say that it may not be appropriate in certain circumstances to bring such an applications. In this case though even if there were concerns REN was no longer in the care of RL so it cannot be said that there was any imminent danger.
An attorney is required to comply with the general principles when exercising power under an enduring power of attorney under s 76 of the Powers of Attorney Act 1998. A guardian must also act in accordance with the general principles in accordance with s 34 of the GAA Act. In particular a decision maker must ensure maximum participation, minimal limitations and substituted judgment, General principle 7. This ensures that an adult has a right to participate in decisions and the adult’s right to make his or her decisions must be taken into account. The importance of maintaining an adult’s existing supportive relationships must be taken into account, general principle 8.
I am in no doubt that the manner in which RJS took over decisions for REN was in breach of GP 7 and there was no mention in any of the material presented by him that he had any regard to them. This can be seen in the way he came into REN’s house and demanded that documents be handed over and left a letter which made I clear that he was now in charge. There was no room for REN to be involved in decisions nor was there any consultation with RL except for questioning her about whether bills were paid in respect of a house which was jointly owned.
Clearly REN was having great difficulty as a result of the effects of dementia and was prone to paranoia and hallucinations. At the time that he threatened RL with a knife and she was forced to leave the house I would expect that those involved would have tried to maintain the relationship between REN and RL in accordance with general principle 8. Instead they changed the locks and were happy to portray that the parties had separated and that REN was frightened of RL.
I have read the report form Dr Khateeb which said in February 2016 that REN and RL were “at each other’s necks” and were considering separating. The fact is though that they hadn’t and there is correspondence from Dr Love which after referring to Dr Khateeb’s report stated that
I wish to add that I have consulted REN and RL on six occasions and have seen them in the practice together on many occasions. I have never seen any aggressive behaviour or discontent between them and that they have always treated each other with respect in my presence.
Dr Love confirmed at the hearing that REN and RL were always respectful. He did confirm that REN was afraid of RL on 7 September 2016. Having regard to REN’s dementia this fear cannot necessarily be attributed to any act of RL’s
The appropriateness considerations at s15(1)(a) of the GAA require the Tribunal to consider whether the person will apply the general principles. In this case in particular I do not consider that RDA and RJS will apply those principles. They have already determined that REN should go to England without making any attempt to maintain his relationship with his wife RL. Having regard to his dementia I think that any decision requires careful discussion with REN to ensure that he understands all of the options and their implications and that his decision is based on his consistent view.
While REN and RL are portrayed by RDA and RJS as having separated. That is not RL’s view and she continues to want to have a relationship with REN. She is clear though that she can no longer care for him at home. REN must be supported to ensure that he is able to express his true views and wishes. This means that any paranoias or delusions he may have are not reinforced. So that if there is no reason for him to be fearful of RL this is not reinforced.
I am satisfied that as RDA and RJS are not appropriate for appointment as guardians as they will not apply the general principles that the Public Guardian is the only appointee available in accordance with s14 (2) of the GAA Act.
I appoint the Public Guardian as guardian for REN for all personal matters. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

Administration

REN is a self-funded retiree and holds the following assets:
A House on the Gold Coast valued at $1,000,000.00 (jointly owned with RL)
Bank of Queensland Cash  $177,268.39
HSBC Cash  $20,352.21
Macquarie Trust Cash Account  $132,229.56
Macquarie Super Fund Cash Account         $1,186,422.38
Macquarie ENR Trust  $ 501,951.73
Total investments  $2,018,224.10
RJS alleged that REN had requested him to administer his financial affairs even though RL had been appointed and he wished to change his power of attorney. That RL does not understand the details of REN’s financial assets and is ignorant to the needs of managing REN’s financial assets. RL maintains that her husband’s money is separate to hers and that she does not have any involvement in managing his money, however given REN is no longer able to manage his financial assets and RL is ignorant and non-active in attending to the needs of these assets, such as decisions regarding SMSF and Trust investments the assets are not being managed and compliance reporting obligations are not being met.
He alleged that when he commenced to enact his enduring power of attorney he met strong resistance from LR and that she was not aware of his appointment or any other enduring power of attorney in existence and did not recall that she had been made attorney in 2011. He states LR has little understanding of her responsibilities as a power of attorney, has no understanding of REN’s financial affairs and does not think to act in REN’s best interests but her own.
“While RDA and RJS made allegations of RL financially abusing REN. RL was able in her statement to explain the majority of the entries. She indicated that there had been occasion where REN had offered her $25,000 in June 2016 which she had accepted. Otherwise any money she had received was reimbursement. There were allegations that RL was using REN’s money to gamble. While RL admitted that she gambled she stated that any withdrawals made on REN’s account at the tavern were used for his purposes.
RJs confirmed at the hearing that there were no transactions in which RL had misused REN’s bank account.
I note that RJS had knowing that RL was attorney for REN procured a signing authority from REN to enable him to access REN’s bank account. REN’s accountant Mr Hetherington in an email of 4 October 2016 to RDA stated that REN was concerned, possibly even traumatised by what he views as the actions of RJS in regard to the removal of records and he had shown his bank statements which show that funds have been withdrawn at the request of Stephen. Mr Hetherington knowing the history of the powers of attorney and REN and RL offered to help resolve the future problems to get what is best for REN. I note that following this RDA and RJS filed their application with the Tribunal without any discussion with RL
RJS set out his qualifications to be an administrator in his statement. He has significant expertise as an accountant and financial controller in commercial businesses ranging in size from family businesses to large publicly listed companies. He says he has a thorough understanding of statutory reporting obligations and the day to day financial management of businesses and personal affairs. He would be able to keep accurate records of REN’s financial transactions and communicate effectively with the professional service providers REN currently has engaged.
It is clear that RL knowing that REN had dementia took no steps to ensure that his financial interests were protected. Even after the events of August 2016 when she became aware that she was his attorney she did not steps to activate her power of attorney by getting a letter from REN’s doctor to confirm that REN had impaired capacity”. They had maintained separate financial affairs apart from their joint ownership of their house.
RL does not wish to be considered as a decision maker for financial matters for REN and prefers that the Public Trustee of Queensland be appointed. She stated
She does not believe that RDA and RJS are appropriate people to act as administrator for REN, on the basis of their behaviour towards me and REN over the past three months. They have been aggressive, have locked her out of her own home, separated her from her husband, whom she loves and arranged for REN to sign documents they know he does not understand. This behaviour has not been in REN’s best interests.
Mr Whitla for RL relevantly submitted that appointment of RDA and RJS is not appropriate on the basis that they have, prior to and while acting a REN’s administrator
a)    Refused to participate in conciliatory efforts to find a suitable outcome of this matter.
b)    Fabricated stories about RLs conduct in relation to REN’s financial affairs and in relation to the relationship between RL and REN.
c)    RL believes arranged foe REN to sign a document appointing RJS as a signatory to REN’s BoQ account, with the knowledge that he did not have capacity to sign such a document
d)    Transacted on RFN’s BoQ bank account in an unauthorised manner
e)    Acted generally on behalf of REN without appropriate authority
f)     Denied RL access to her home and possessions
g)    Denied RL access to REN with the intention of isolating him and influencing him in this matter.

And that such conduct is contrary to the appropriateness considerations in s15 (1) of the GA Act and in particular that the administrator apply the general principles set out in schedule 1

I have no doubt that there is a need for a decision maker to manage REN’s complex financial affairs. The latest enduring power of attorney appointing RDA and RJS is subject to doubt in regard to its validity and should not be acted on. RL does not wish to be an attorney for financial matters under the enduring power of attorney she was appointed under.
RDA and RJS have asked to be appointed administrators for REN. RJS has the accounting skills to deal with REN’s financial affairs. He has not though shown in any way that he would apply the general principles. His heavy handed approach in taking over REN’s finances caused mush distress to REN and RL. He did so without consultation with RL, REN’s wife and the joint owner of the home. He came into the house presented a letter and took everything away. There was no sense of ensuring that REN would be involved. He acted on the suspicions of REN and did not try to get any collateral information from RL about their financial dealings nor involve her except for demanding to know whether bills had been paid.
RDA supported RJS in his actions and made no attempt to resolve matters which was offered by Mr Hetherington. She will return to England and has shown that she does not support maintaining the relationship between REN and RL. One of the maters that was suggested as one for financial decision was a property settlement between REN and RL. There is no evidence that RL and REN have separated except that RL has been locked out of her house and RDA says they have separated. RDA therefore has also not shown she would apply the general principles.
I am also concerned that there is a potential for conflict of interest. REN has a trust with a corporate trustee. Whoever is administrator will be able to control the trust and it is probable that RDA is a beneficiary of it and could make distributions in her own favour.
I understand that RDA and RJS were rightly concerned that REN’s financial affairs were not being managed by him due to dementia and RL who was the appointed attorney was also not taking up her duties. The methods they used though were not appropriate and an outcome could have been achieved with diplomacy instead of forcing a separation between REN and RL. They have not applied the general principles and neither of them are appropriate to be appointed as administrator for not consulting with REN, not maintaining the relationship with RL and acting in a heavy handed adversarial manner.
REN requires an administrator and the Public Trustee is an independent party available for appointment.
I appoint the Public Trustee of Queensland as REN’s administrator for all financial matters. The Public will be required to file a financial management plan; accounts and a notice with the registrar of titles. The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year.

Enduring powers of attorney

An attorney may exercise power only to the extent authorised by the Tribunal where the power is given to a guardian or administrator by the Tribunal. In this case as there is uncertainty as to who holds the valid enduring power of attorney. Any purported enduring power of attorney is overtaken to the extent of these orders and may not be acted upon to the extent these appointments have been made.

Directions

An application for directions was made in regard to the release of REN’s passports. Independent decision-makers have been appointed with plenary powers and therefore the application is dismissed

[2017] QCAT 64

14 February 2017