RFG
[2012] QCAT 561
•24 October 2012
| CITATION: | RFG [2012] QCAT 561 |
| PARTIES: | RFG |
| APPLICATION NUMBER: | GAA6001-12 / GAA6002-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 24 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for the appointment of a guardian for RFG is dismissed. 2. The Public Trustee of Queensland is appointed as administrator for RFG for managing legal matters relating to her financial or property matters. 3. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 4. The Tribunal directs the administrator to provide reports to the Tribunal when requested. 5. The appointment remains current until further order of the Tribunal. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION FOR ADULTS – no guardian required – whether administrator required for legal matters where present legal proceedings – need for an impartial and independent administrator |
APPEARANCES and REPRESENTATION (if any):
| RFG – Adult S McPherson – Public Trustee of Queensland |
REASONS FOR DECISION
The adult RFG is a 67 year old widow who currently shares accommodation with the applicant CHT at a property in southern Brisbane. In recent times, the adult has been subject to considerable media and public attention as a result of being prosecuted by the RSPCA.
Both CHT and RFG attended the hearing in person. A representative of the Public Trustee, Mr Sean McPherson attended by teleconference.
The initial application in this matter sought that the applicant CHT be appointed as guardian and administrator for RFG. Specifically the applicant sought appointment as a guardian for legal matters not relating to the adult’s financial and or property matters on the basis that “(t)he adult cannot represent herself in court to articulate her case". It was stated in the application that currently the adult cannot look after her own interests in matters very important to her now in court. He also sought appointment as administrator for decisions with respect to legal matters relating to the adult’s financial or property matters. He identified in his application that there were 2 matters relating to defamation claims by RFG in the Supreme Court at Brisbane.
After considerable initial discussion CHT conceded that the application for appointment as a guardian for the adult may not have been well founded.
CHT then made it quite clear to the Tribunal that the purpose of the application was to seek the appointment of CHT as the administrator for RFG for the specific purpose of pursuing a number of matters on her behalf through the courts. These matters included the 2 defamation actions, a breach of fiduciary relationship matter and a costs matter. There were only limited details of these matters made available to the Tribunal.
Does the adult lack capacity for the matter?
The Tribunal only has jurisdiction if it finds that the adult, in this case RFG, lacks capacity for decision-making about her personal or financial matters. The Guardianship and Administration Act 2000 (the Act) defines capacity as:
“capacity”, for a person for a matter, means that 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.
The Tribunal considered the following evidence about RFG’s capacity:
§A Report from Dr SJ received by the Tribunal on 17 July 2012;
§Two letters from Dr SJ dated 25 August 2011 and 23 January 2012;
§A document headed Affidavit signed by the Applicant; and
§A partial transcript of Magistrates Court proceedings before Magistrate Hall (undated).
The Tribunal also had the opportunity to receive oral evidence from the applicant and RFG.
The adult presented to the Tribunal very much as described by Dr SJ in his report of 30 July 2012. She appeared to be of above average intelligence with a good memory for recent and remote events. However she seemed very disorganized in relation to her financial matters. She readily became very anxious and it was clear to the Tribunal that she relied heavily on CHT for advice and support.
The adult has been declared bankrupt and claims she is unable to represent herself properly to her bankruptcy trustee or in any court matters due to her psychiatric illness.
The primary evidence about capacity was provided by Dr SJ who is a specialist psychiatrist who has known the adult since 1983 – prior to presenting his report he had last CHT seen on 28 June 2012 – his final report was dated 30 July 2012.
In his report Dr SJ says that in his opinion the adult is emotionally isolated from most other people and has been inconsistent in the past in taking her psychiatric medications. With regard to her personal health care she is influenced in her decision making by her delusional thoughts and paranoid ideas. She does not appreciate the consequences of these thoughts.
In relation to her lifestyle and accommodation choices he says that she has major difficulties understanding and acting on information that relates to her fixed delusional thoughts and ideas. She also has difficulty understanding her need to take appropriate medications.
In other areas, Dr SJ reports that she is able to understand and make decisions.
With respect to her financial affairs, she is disorganized and her decisions have been driven by her delusional ideas and paranoid ideas. He notes that she is now bankrupt.
Dr SJ then states “I consider that she is capable of making decisions in some aspects of her life but not in others.”
Dr SJ says that he understands that CHT intends to take responsibility for her legal affairs and business affairs. He also adds that she has been assessed in the Magistrates Court in relation to various charges and has been found unfit to plead because of her mental illness.
In answer to the specific question “in your opinion, can the adult understand and make her own decisions about the following", Dr SJ does not respond in any way to the issues of lifestyle or financial affairs. He does indicate that the adult can understand and make complex personal health care decisions. He also indicates that she understands some aspects of the requirements of an EPOA namely:
§That an adult can limit the types of decisions their attorney can make;
§When the attorney’s power begins; and
§That the attorney can use their power even after the adult loses capacity.
Two pieces of correspondence from Dr SJ were provided to the Tribunal – a letter dated 23 January 2012 and letter dated 25 August 2011. These letters appear to relate to the adult’s capacity to instruct a legal representative. In the earlier letter he concludes that he does not believe that the adult has the mental capacity to instruct a legal representative and in the second letter he reaches a similar conclusion that she remains unfit on psychiatric grounds to instruct a legal representative.
Findings
The adult has a generalized anxiety disorder and a delusional disorder of the persecutory type.
The adult is not able to understand the nature and effect of decisions about her legal matters and she is not capable of communicating those decisions because of her psychiatric disabilities.
Conclusion
The Tribunal determines that RFG does not have capacity to make decisions about financial matters.
Is there a need for a Guardian?
The only issue before the Tribunal was an application that a guardian be appointed for legal matters not relating to the adult's property and financial matters. After lengthy discussion with the applicant, this application was not pursued at the hearing and is therefore dismissed.
The next issue is – Is there a need for an administrator?
Section 12 of the Act provides that before the Tribunal can appoint an administrator to make financial decisions for an adult with impaired decision making ability, the Tribunal must be satisfied that there are circumstances that establish a need for an administrator. Need is established if the Tribunal determines that 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 finances or property and without an appointment the adult’s needs will not be adequately met or her interests will not be adequately protected.
The Tribunal when considering the appointment of an administrator must be satisfied not only as to the need for an appointment as set out in section 12 of the Act but also as to the appropriateness of the proposed appointee as set out in sections 14, 15 and 16 of the Act.
The evidence from CHT and RFG identifies that there are a number of legal matters relating to the adult’s finances and property that remain unresolved. Two of these matters are already apparently listed in another jurisdiction. It is CHT’s contention that he is capable of successfully progressing these matters on the adult’s behalf. He also indicated to the Tribunal that there are two other matters involving a breach of a fiduciary relationship and a further matter involving a dispute over legal costs to be sorted out.
Based on the evidence provided to the Tribunal, the Tribunal finds that there are outstanding matters of a legal nature that need to be investigated and appropriate decisions made. The Tribunal is unclear as to the role of the trustee of bankruptcy in relation to these matters. There was no evidence presented by the applicant regarding this issue. In any event the Tribunal has formed the view that the adult does need assistance in dealing with the trustee in bankruptcy.
The Tribunal had the significant benefit of having the adult attend the hearing and give evidence regarding the various matters. The Tribunal is satisfied that given the adult’s psychiatric disability, she is vulnerable to financial abuse and/or exploitation.
CHT has made it abundantly clear to the Tribunal that he wishes to obtain authority to run the adult’s cases for her. RFG also made it quite clear to the Tribunal that she supports the application. At the present time CHT is frustrated because the courts won’t let him speak for the adult in any capacity and he has been sent out of court on occasions.
The applicant presented to the Tribunal as a resolute and articulate man who is prepared to do whatever he can to obtain what he discerns to be justice for his friend RFG. He has been a friend and supporter of the adult since 2008.
He advised the Tribunal that he had purchased the adult’s former property and that they both continue to reside there.
He is determined to proceed with these matters on behalf of the adult regardless of any financial or other risks to the adult. In fact, he does not acknowledge that there are any risks and submits that there are no risks because “there is nothing more that they can do to her”.
The Tribunal has reached the conclusion that the applicant and adult appear to have an unrealistic view of what might be achieved and what is possible to be done on behalf of the adult in relation to the outstanding matters.
The applicant refers to a history of harassment and assaults directed at RFG arising primarily out of an RSPCA prosecution, which commenced in January 2008, including assaults by police. He submits that these matters have been largely ignored by the police.
He informed the Tribunal that RFG is not able to execute a power of attorney because the Magistrates Court has determined that she is not fit to plead to certain criminal charges. The applicant alleges that the Magistrate threatened to send the adult to jail if she did not plead guilty. Ultimately the matter was resolved on the basis that the adult was determined to be unfit to plead.
CHT admitted that he has no legal qualifications but submitted that he has studied a lot and that he is confident that he can successfully deal with the adult’s matters. He did not produce any legal opinions or advice to demonstrate that the adult’s legal matters have any prospects of success or can be successfully pursued.
In relation to his suitability for appointment as an administrator, the applicant readily admitted that in 1986 he had been involved in a company that went into administration and that on a subsequent occasion he had been appointed as a Power of Attorney that was revoked and he was replaced by the Adult Guardian and the Public Trustee of Queensland. While these matters may be significant there was very little detail available to assist the Tribunal to determine what weight should be given to them.
There was further evidence in the form of a letter from WB solicitors dated 18 July 2012 that indicates that the adult has recently commenced proceedings in another jurisdiction. With respect to this matter the solicitors have demanded that the proceedings be discontinued on the basis that the trustee in bankruptcy for the adult has no interest in prosecuting this action. Further it asserts that the adult is not entitled to commence legal proceedings because she is an un-discharged bankrupt.
While the Tribunal remains unconvinced regarding the nature of the adult’s claims and the likely prospects of success it appears that there may be significant amounts of money involved. In a document dated 16 July 2012 the applicant states that on 9 January 2008 the RSPCA came to the adult’s property with the media in tow and seized all of the adult’s “world famous poodles then worth $5 million due to a Chinese buying fad for red and brown poodles.”
He says that he has seen the courts exercise “extreme prejudice and corruption” against RFG and as a result he understands how she has become so emotionally distraught, frustrated and panicked in court as to be unable to represent herself. He submits that as a result of these incidents, most of the adult’s present concerns have arisen.
The Tribunal is satisfied that RFG is a highly vulnerable person who experiences ongoing “delusional thoughts and paranoid ideas.” Based on this evidence the Tribunal finds that she is a person who is vulnerable to financial abuse and exploitation.
The Tribunal therefore finds that there is a need for a decision maker to be appointed for decisions about RFG’s outstanding legal matters relating to her property and finances and without an appointment she is likely to do something in relation to those matters that involves or is likely to involve unreasonable risk to her finances or property and without an appointment her needs and interests will not be adequately protected.
Who is appropriate for appointment as administrator?
The options for the Tribunal are the applicant CHT or the Public Trustee of Queensland.
Section 15 of the Act outlines appropriateness considerations to which the Tribunal must have regard in deciding whether a person is appropriate for appointment as administrator for an adult. The relevant provisions are as follows:
(a)the general principles and whether the person is likely to apply them;
(b)the extent to which the adult’s and person’s interests are likely to conflict;
(c)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;
(d)whether the person would be available and accessible to the adult;
(e)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
Section 15(1)(b) refers to the extent to which the adult’s and the person’s interests are likely to conflict. The evidence at the hearing indicated that some financial transactions between the adult and the applicant had occurred. These include the sale of the adult’s property to the applicant and the establishment of a new business involving more dogs with the adult being involved in some capacity in that business. Apparently this has allowed the adult to remain living in her previous home.
The applicant is now anxious to pursue various legal matters on behalf of the adult that on the applicant’s and adult’s own evidence would involve considerable sums of money. It is not clear what the impact on the adult might be if these actions were not successful. It is possible that it may cause further significant financial harm to the adult. Even if that were not the case, the appointment of the applicant as financial decision-maker for the adult raises a concern for the Tribunal regarding the applicant’s impartiality regarding the purchase of the adult’s property and the pursuit of the outstanding matters.
The applicant made it very clear to the Tribunal that he does not trust the Public Trustee. He expressed concern about the willingness of the Public Trustee to properly pursue the matters that have been identified and claimed that he is the only person who can progress these matters.
He appeared indifferent to the importance of obtaining appropriate legal advice before pursuing these matters in other jurisdictions. The Tribunal is not satisfied that the applicant demonstrated any insight into the applicant’s various psychiatric conditions and their impact on her current desire to pursue these matters.
The reality and the perception of impartiality and transparency in the decision-making process is critical when working with vulnerable adults. In the Tribunal’s view, it can only be achieved in this case by the appointment of a decision-maker who is independent of external influences and able to make decisions dispassionately and with the adult’s best interests in mind.
Without in any way impugning the integrity of the applicant who seeks appointment, the Tribunal concludes that the circumstances of this case demand an appointee who is independent and impartial. The Tribunal is satisfied that the Public Trustee is such a potential appointee.
The Tribunal does not accept the applicant’s submissions regarding the Public Trustee’s willingness to properly pursue matters where appropriate.
The Tribunal is satisfied that the Public Trustee is an independent impartial decision maker who has extensive experience and expertise. The Public Trustee is considered to be the appropriate appointee as administrator in this case.
The orders of the Tribunal are:
1.The application for the appointment of a guardian for RFG is dismissed.
2.The Public Trustee of Queensland is appointed as administrator for RFG for managing legal matters relating to her financial or property matters.
3.The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
4.The Tribunal directs the administrator to provide reports to the Tribunal when requested.
5.The appointment remains current until further order of the Tribunal.
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