RPE
[2024] QCAT 109
•14 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
RPE [2024] QCAT 109
PARTIES:
In an application about matters concerning RPE
In applications about matters concerning RPE
APPLICATION NO/S:
GAA559-19
GAA561-19MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
14 March 2024
HEARING DATE:
12 May 2022
HEARD AT:
Brisbane
DECISION OF:
Member Allen
ORDERS:
GUARDIANSHIP
1. The application by NCN for the appointment of a guardian for RPE is dismissed.
ADMINISTRATION
2. The Public Trustee of Queensland is appointed as administrator for RPE for all financial matters.
3. The administrator is to provide a financial management plan to the Tribunal within four (4) months.
4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years.
ENDURING POWER OF ATTORNEY
6. The following Enduring Power of Attorney for RPE is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 (Qld), can no longer be acted upon to the extent that this appointment has been made:
(a) The Enduring Power of Attorney dated 16 January 2017 appointing RJC as attorney for financial, personal and health matters.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – APPOINTMENT OF GUADIAN AND ADMINISTRATOR – where adult appointed son as attorney – where son provided financial support to adult – where son reimbursed himself from proceeds of sale of property – where prior to this adult had made undisclosed major gift to son – whether son had acted honestly and with reasonable diligence to protect adult’s interests – where son had attended to adult’s personal needs appropriately – whether adult had impaired capacity – whether need for decision-maker for personal and financial matters
Guardianship and Administration Act2000 (Qld), s 5, s 11, s 11B, s 12, s 14, s 15, s 22
Human Rights Act 2019 (Qld), s 13
Powers of Attorney Act 1998 (Qld), s 66, s 73, s 86, s 87, s 88
APPEARANCES AND REPRESENTATION:
Applicant
Self-represented
Attorney
Self-represented
Public Trustee of Queensland
REASONS FOR DECISION
INTRODUCTION
RPE is 75 years old and now resides in a nursing home. She has one son RJC and a sister NCN. NCN and a niece LMK had been appointed RPE’s attorneys under an enduring power of attorney (‘EPA’) for personal/health and financial matters of 29 May 2015. At the time NCN was of the view that RPE had capacity and the EPA was not acted upon. RPE had separated from her husband RJR and they were going through a property settlement. RJR passed away in August 2016 before the property settlement was finalised and RPE inherited his estate.
NCN became concerned about RPE’s financial dealings involving her son RJC and that he might be taking advantage of her following the death of RJR. RPE was said to own the real estate from which RJC ran a business that had previously been run by RJR. In particular RPE had been using lawyers to manage her affairs, including dealing with the separation from her late husband, as well as negotiations with RJC in order to reach a commercial resolution, and recently without explanation she changed lawyers to ones who had represented RJC. RPE had also stopped discussing her finances with NCN. NCN described RPE as frail and vulnerable and noted that her eyesight was failing, and she would not know what she was signing.
At this stage in 2016 an application for administration and interim order was filed, but without supporting medical evidence, and it was not progressed.
In July 2017 NCN advised the Tribunal that she was concerned that RPE had lost a lot of weight, she noted that RPE had a thyroid problem which caused her to lose weight some years ago, and there was an endocrinologist to manage the problem. RPE told NCN that RJC now handles all of her finances and he had withdrawn her access to money last year. NCN says that was when she had started giving RPE cash and paying her credit card accounts. She stated RPE had told her “She was going to have her name taken off everything so she could go on the pension”. NCN stated that RJC does not pay RPE any rent in relation to the building the business is run from. NCN noted that RR’s house had been sold but she did not know where the money had gone; the house had been for sale at $330,000. Further, she noted that the business was carrying debt of $300,000 and the plan was for RPE to be bought out of the ownership of the building, valued at $700,000 in 2015, and have her indemnified against any debt owing from the business. The debt would have been paid and RPE and RR would share the remaining $400,000 and this had not been done by the time RR had died. NCN stated that she has not been informed whether they have been removed and replaced as attorneys and that because they do not have proof that RPE has been deemed unable to make financial decisions, they cannot do anything.
In December 2018 NCN advised the Tribunal that she believed RJC now had the EPA although her and her sister had not been advised. She advised that the manager of the aged care facility where RPE resided confirmed that RJC had a more recent EPA than the one she had. She believed that RJC and his wife had had RPE sign over the ownership of the building where the family business is located. She stated that she now has proof that RPE has been diagnosed with Alzheimer’s diseases. NCN noted that RJC has had RPE admitted to a nursing home and is selling her home unit and there is a ‘for sale’ sign on it. NCN had her solicitor search the Titles Registry and there was no registration of EPA for RJC holding RPE’s EPA to allow him to sell the property. NCN believed that RPE is signing papers although she is not legally capable, and that when she was visiting her at the nursing home RJC’s wife had arrived to have RPE sign documents. Following this NCN filed a further application to the Tribunal for appointment of a guardian and administrator. She nominated the Public Guardian as guardian and the Public Trustee of Queensland as administrator.
RJC filed an affidavit in February 2019 in response to NCN’s application. He states that he was very close to his parents and lived with them until he married in 2009. He states he had worked together with his parents in the family business for the last 20 years and that the last 5 years had been a very difficult and emotional time for their family: in January 2014 his son was diagnosed with profound hearing loss; his parents had separated in early 2014 after being married for over 40 years; the family business had been investigated by a TV show which suggested it had been involved in dishonest business practices and throughout 2014 the business was under investigation by the Office of Fair Trading (‘OFT’); the family business was cleared by the OFT in December 2015 and RJR passed away in August 2016. He states that until his death RJR had always provided for RPE and now RJC had attempted to assume that role and care and provide for RPE to the best of his abilities.
RJC states early in 2014 NCN was invited to his house to assist with his son knowing that she was a teacher and hoping that she could assist with his son. He states NCN was more interested in questioning him and his wife about his parent’s separation and he was very upset about the violation of trust and they had not spoken to NCN since. He noted that NCN had approached him at RJR’s funeral asking questions in relation to his estate and he told her it was not the time or place to be asking those sorts of questions. After the funeral RPE had engaged a lawyer to assist with, among other things, the administration of RJR’s estate and a review of her testamentary dispositions. Around the end of 2016 NCN had made a complaint to the Queensland Law Society about that lawyer in relation to the administration of RJR’s estate. The complaint was baseless, but the lawyer recused himself from acting for RPE and she was required to engage another solicitor for the testamentary matters.
RJC states that after RJR passed away, RPE’s health deteriorated quite rapidly. He believed the stress over the last 5 years had been a major factor in the decline of her health. Since that time RJC listed the areas where he had assisted RPE including organising and driving her to doctors’ and dentists’ appointments; organising webster packs for medication; preparing meals and obtaining groceries; paying bills and utilities notices; performing maintenance at her unit; performing home duties such as laundry, gardening and cleaning; arranging for Meals on Wheels to deliver meals three days a week; arranging for Anglicare/Alzheimer’s Association to visit RPE to assist her with taking tablets, going to the shops and socialising and driving her to the Club on Wednesdays so that she could socialise with friends.
RJC had at RPE’s request assisted her to consolidate her bank and credit card accounts in 2016 and noted that he had discovered that she had incurred significant credit cards debts which she was unable to repay. He helped her repay those debts out of his own pocket and he had not been repaid. He also discovered that RPE had not completed tax returns for the past three years. He assisted her in completing and filing her outstanding tax returns which, in turn, confirmed her eligibility to receive a disability pension allowance and a concession card for her medication.
RJC states that on 16 January 2017 RPE had revoked the EPA which she had previously granted to NCN and on 16 January 2017 RPE granted RJC an EPA for financial and personal/health matters with the financial power to begin immediately. The attorney’s acceptance had not been completed on the copy attached to the affidavit. RJC stated that since being appointed as RPE’s attorney he has assisted her in making decisions in relation to her financial and personal matters, and that every decision made has been made in consultation with her and with her best interests in mind. He is aware that RPE’s mental faculties are declining; however, she often has moments of lucidity and in those moments, they are able to discuss her opinions on certain matters. He states that in accordance with his legal duties as attorney he has kept detailed records of all RPE’s accounts.
In September 2017 RPE was admitted to hospital with symptoms including weight loss, vomiting, nausea and confusion. An ACAT assessment was arranged on the hospital’s recommendations and RPE was granted a level 3 home support package. The ACAT assessment dated 23 November 2017 was attached. The assessment lists diagnoses of Alzheimer’s disease – STML and confusion and legally blind-macular degeneration. She scored 25/30 on a SMMSE adjusted for blindness with 0/3 for recall. Her son reported difficulty using appliances and that she had become housebound due to declining cognitive functioning and blindness. She forgot appointments, events and conversations, and was very repetitive. RPE was approved for a level 3 home care package as well as residential respite and high care residential permanent. After this the home care arrangements mentioned above were put in place. RJC noted that the stay in hospital was expensive and the costs were not completely covered by her health fund, and he paid $900 out of his own pocket.
RJC, after attending an appointment with RPE’s endocrinologist, was concerned that the medical advice she was receiving was not accurate. He got a referral to a hospital and further investigations showed that the current treatment was incorrect. RPE had to undergo dental treatment before a new treatment for her thyroid could be used. was also concerned.
In August 2018 RPE suffered a serious fall at home while the Meals on Wheels delivery people were present and they notified RJC, who had his wife, who was nearby, attend. His wife called an ambulance and RPE was taken to hospital. The hospital advised that RPE had broken her hip and whilst in hospital RPE contracted a urinary tract infection and was in hospital for two and a half weeks. The doctors advised at discharge that RPE would require 24-hour care and would not be able to return home. While they considered caring for RPE at their home this was not possible due to RJC and his wife both working, their need to care for their children, and the lay out of the house which was multi-level. They realised that her needs would be best accommodated in an aged care facility and consulted with her throughout the process, and they eventually settled on a facility. The facility was chosen because it was close to RJC’s house which would allow them to visit her as often as possible. They also knew of other family members in facilities run by the same operator so they were comfortable about the level of care RPE would receive.
There was a deposit required of $280,000 and RPE could not afford that without selling her unit, which RJC discussed with her, and she acknowledged this. The settlement for the sale of the unit occurred on 17 December 2018. The majority of the funds from settlement went to the nursing home in satisfaction of the required deposit. Some of the funds were also applied to the prepayment of RPE’s debts. The balance of the funds was deposited to RPE’s account.
RPE commenced permanent care at the nursing home on 30 October 2018. It was decided that she would benefit from allocation to a shared room. The room is spacious and has large windows which she enjoys looking out of. The shared room also allows RPE an opportunity to socialise.
RJC stated in response to the application by NCN that the allegation of conflict of interest that is alleged between his interests as the holder of the EPA and RPE’s interests is not substantiated at any point in the application and is one which he most vehemently and strenuously denies. He denies allegations involving the relationship between his wife and RPE and that she had assaulted RPE. He states that while it is alleged RPE rarely sees her grandchildren, he has never prevented her from doing so, and they always ensure that RPE is included in special events such as Christmas and birthdays. He denies that he has attempted to isolate RPE from her sisters. It is alleged that RJC decided that RPE was no longer fit to drive and took her car. He denies this and says that her license was revoked by her eye specialist, due to her severe macular degeneration. Since she could no longer drive, it was decided to sell the car. The doctor prepared a report in order to assist RPE’s application for the disability support pension on account of her being legally blind.
It was alleged that RJC had stopped RPE accessing money from the family business. He denies that allegation. As RPE’s condition worsened she began to misplace her purse and wallet. On more than one occasion she gave her card and pin number to complete strangers. On the advice of the Alzheimer’s Association, it was decided that a spending limit should be placed on her debit card and that they should provide her with a cash allowance on a weekly basis.
Prior to the hearing of the application the Public Guardian completed an investigation into the conduct of RJC as attorney for RPE. On 8 July 2021 the Public Guardian provided its investigation report. The investigation was based on 5 allegations which were made against RJC in his role as attorney for RPE. The allegations were that:
(i) RJC is accessing RPE’s funds for his own benefit, or for the benefit of someone other than RPE;
(ii) RJC is preventing RPE from accessing and utilising her funds;
(iii) RPE receives inadequate care and support when staying/visiting with RJC and RR;
(iv) RJC is failing to ensure that RPE is receiving appropriate medical treatment and support whilst in the aged care facility. In particular:
A.Not arranging for RPE to visit an ophthalmologist.
B.Not ensuring RPE’s personal care needs are adequately managed (e.g. hairdresser appointments, finger and toe nail care).
(v) RJC is restricting RPE’s contact with family/friends.
The Public Guardian found that the first allegation was not substantiated though there were concerns in relation to RJC and RPE having significantly intertwined finances, therefore limiting a comprehensive analysis of RPE’s financial management and expenditure raising issues about keeping property separate as required by s 86 of the Powers of Attorney Act 1998 (Qld) (‘POA Act’); RJC potentially inappropriately and dishonestly claiming reimbursement of approximately $15,151.15 from RPE raising issues about the keeping of accurate records and accounts of all dealings and transactions pertaining to RPE’s finances in accordance with s 85 of the POA Act; and RPE potentially lacking capacity to sign/execute documents pertaining to the sale of her unit in November 2018. Allegations 2, 3, 4 and 5 were found not to be substantiated.
Allegations 1 and 2 involved information that in approximately 2016 RPE signed over a commercial property to RJC which was valued at $700,000 and that she gave it to him expecting that he would look after her. RPE is living in a shared room in an aged care facility despite having enough assets to ensure she has a comfortable room. RPE previously owned a business with her late husband RJR; the business was established in 2000 and she separated from her husband in 2014. RPE was not deemed eligible for the aged pension because she owned too many assets. RPE was of the belief that RJC would assist her to dispose of her assets. RPE purchased a home in her sole name in 2015 for $430,000. RJC was going to purchase the business from RPE and RJR for $700,000. RPE and RJR would receive $200,000 each and the remaining $300,000 would go towards company debt. In June 2016 RJC was conducting business rent free from the premises which belonged to RPE and RJR. At that time RJC stopped RJR’s access to money from the business. RJR passed away on 19 August 2016 and RPE was the sole beneficiary of his estate. By November 2016 RJC had taken completely taken over RPE’s affairs. RPE’s private property was sold on 27 November 2018 for $394,000. There was concern that RPE had signed for the sale of this property, despite having impaired vision and a diagnosis of dementia.
The Public Guardian’s investigation confirmed the purchase of RPE’s unit for $430,000 on 23 October 2015 and its sale on 27 November 2018 for $384,000 after having been on the market for 47 days. The investigation confirmed that Centrelink records showed she received an aged pension of $926.00 paid into a bank account in her name, and that RR had been a correspondence nominee since 24 February 2017. She had financial investments of $231.49 with assets declared of financial investment $204,814.21, household and personal effects $200, motor vehicles $3,000. The aged care facility confirmed that RPE entered the facility on 30 October 2018 and her Refundable Accommodation Deposit (‘RAD’) of $280,000 was paid on 19 December 2018 and that her aged care fees were up to date. RJC provided financial details that RPE had a bank account with a balance of $8,579 as at 11 February 220. She received the fortnightly pension and had a life insurance policy of $258,773. She had furniture and household items valued at $2,550.
Bank statements for the period from 17 August 2017 when the doctor noted a cognitive decline Alzheimer’s dementia for RPE were examined by the Public Guardian. There was a series of withdrawals on which further information was requested and supplied. There was a series of further withdrawals from 28 May 2018 to 21 August 2018 which were described as loan repayments in the amount of $15,151.15. RJC stated that these related to repayment/reimbursement of monies which have been loaned to RPE or else paid directly towards RPE’s expenses which she could not otherwise afford to pay at the time. Of this amount $13,871 related to financial services and advice provided to RPR by accountants with receipts provided. There was also an amount of $1,533.00 relating to the cost of legal services provided to RPE by lawyers; a receipt was provided though it was in the name of RJC’s company. Another set of bank statements was analysed, and this was the account the pension was paid into and the aged care fees and incidentals were paid out of.
The Public Guardian performed ASIC searches on RJC Developments Pty Ltd and RJR and RPE Pty Ltd. CJR was the current director and sole shareholder of RJR and RPE Pty Ltd as at 31 July 2017. RPE became a director on 22 March 1994 and ceased to be a director of RJR and RPE Pty Ltd as of 31 July 2017 with RJR also being a former director. RJC was also the sole director of RJC Developments Pty Ltd with first registration 7 May 2007.
RJC provided the Public Guardian with an affidavit which reflected the affidavit he had filed in the material. He went into further detail in regard to the sale of the unit and the disbursement of the proceeds of sale, stating that $280,000 was paid to the facility for the RAD and an amount of $76,486.27 was payable to himself, being repayment of various loans which he had made to RPE. A two-page document was provided outlining various costs. An amount of $16,193.91 was payable to RJR and RPE Pty Ltd being repayment of various loans made to RPE, as were legal fees for the sale in the amount of $933.46. RPE received the balance deposit of $1,998.00 and the balance proceeds of sale of $5,430.67.
RJC advised the following in regard to the family business. He had worked with RPE and RJR in the family business over the last 20 years. It was always RPE and RJR’s intention to pass the business on to RJC. As at the June 2016 the business had debts totalling $299,858. The family business recorded a loss of $104,360 for the 2014.15 financial year and a loss of $114,001 for the 2015/16 financial year. RJC and RPE sought legal and financial advice in relation to the business. They were informed that the business could not continue to trade and would need to be wound up, in which case the business debts would have fallen to RPE to repay. Ultimately RJC stated it was decided that the business would be transferred to him and that he would take responsibility for the business debts. RPE and he both obtained independent legal advice in relation to the transfer of the business.
RJC was asked by the Public Guardian to provide further details in regard to the loan repayments he had received from RPE. He provided significant further information including that NCN had loaned RPE an amount of $60,000 for the purchase of the unit of which $40,000 had been paid back and he paid the remaining amount. There was also material from RJR and RPE Pty Ltd showing payments made on behalf of RPE. RJC was asked to provide some evidence of the arrangement between himself and RPE in regard to the loans provided to RPE. He produced a letter from RPE witnessed by RJC and RR dated 31 August 2016 stating that RJC and RR were assisting her financially by paying her everyday expenses and that at the time she sells her unit, funds will be used to repay them or upon her death the unit will go to them. RJC stated that the company bookkeeper and solicitor were aware of this arrangement.
The Public Guardian made requests for information to the solicitor and bookkeeper. The solicitor stated that even prior to the arrangement discussions were held with RPE about the parlous financial condition and that she conveyed to him in a meeting in or about June 2017 the poor condition of the companies, the numerous PSSRs and other encumbrances, registered charges etc, registered over the company, the failure to comply with taxation requirements, lodge returns, keep proper books etc. He noted that most of the proceeds pertaining to the unit were direct to the aged care facility in payment of the deposit but a component, pursuant to the authority executed by RPE, went to RJC in repayment and the balance to RPE. RPE did indicate that she had received assistance from RJC over a period of time and there was a schedule annexed to her authority setting out some loans made by RJC in favour of RPE. The solicitor also confirmed that, after receiving correspondence from RPE’s doctor confirming her cognitive capacity, at around that time the firm conducted on behalf of RPE a transaction relating to RPE’s resignation as a director of RJR & Sons Pty Ltd and RJR and RPE Pty Ltd, and provided assistance with respect to a share sale agreement provided to her for her review and consideration by the solicitors at the time representing RJC. The advice related to implementing of instructions in the form of resignation of directors, assistance with finalising share sale agreements, drafting provisions relating to the absorption of extensive liabilities by the buyer and finalisation of those transactions.
The bookkeeper stated that he was aware of the arrangement in that RJC and RR were paying for expenses on behalf of RPE. He became aware of this when he asked about withdrawals from the business bank account with references unrelated to the business. He did not speak to RPE about the arrangement and was not approached by her about this.
The Public Guardian queried RJC as to why RPE signed for the sale of her property given that she likely lacked capacity to understand the nature and effect of the financial/property decision at this time. RJC responded that during the sale of the unit RPE was interviewed by several parties such as a JP, real estate agent and solicitor to assist her. No issues or concerns were raised. RPE did have capacity as noted in the letter from the doctor as at 2 June 2017. The agent said that RPE knew she had to sell the unit so she had money for the nursing home, and that in her opinion as a real estate agent she understood what she was signing as she read it out to her and showed her all of the forms and contracts. The solicitor also indicated that RPE, although suffering from impaired vision, had capacity in late 2017/early 2018.
The accountants advised that their contact with RJC around 2017 principally related to the death of his father, the maintenance of RPE, and the survival of his father’s ailing business of which he has been a long-term employee. There was no advice given in regard to RPE’s private properties. However general advice was given to RJC, the solicitor and bookkeeper in relation to keeping the business afloat and strategies on how to reduce mounting debt and/or supplier accounts. All advice or services was given for the benefit of both RJC and RPE. The main services provided related to ASIC matters and the completion of income tax returns for RPR and RJR with the two companies RJR and RPE Pty Ltd and RJR & Sons Pty Ltd for the years 2016 to the present. There has always been one invoice supplied to RJR and RPE Pty Ltd each year which includes all work in progress for the R group as a whole.
There were also concerns raised with the Public Guardian that RPE receives inadequate care and support when staying with/visiting RJC and RR. It was alleged that RPE had had two major falls on August 2018 and January 2018. There were also allegations that RR had physically assaulted RPE in 2011 or 2012 and on another occasion in 2013. Further details were not provided and there is insufficient evidence of RPE’s capacity at that time. RR denied these allegations and said she had assisted RJC in caring for RPE. RPE told the Public Guardian’s representative in August 2019 that RJC was fantastic, a nice man, who liked people and helped people and that he helped her all the time. She said he got her walker for her and did the shopping. She spoke about RJC’s home and said she had plans to move into it. RJC confirmed that RPE had had a fall at his house in January 2019 and been hospitalised. He denied the allegation that RR had assaulted RPE. The aged care facility stated that they had seen no evidence of inadequate care when RPE was out with RJC and his wife. They had not witnessed any injury when she returned from such outings. They had not witnessed any concerns in relation to the interactions between RJC and RPE or with RR.
There were concerns that RJC was failing to ensure RPE was receiving appropriate medical treatment and support while in the aged care facility, in particular not arranging to visit an ophthalmologist and not ensuring that her personal care needs were adequately managed. RJC provided evidence showing that RPE had attended various appointments with an ophthalmologist in January and October 2017 and 63 other medical appointments. He also provided invoices from the aged care facility showing various hair dressing appointments. There were also various statements made about RPE’s condition at times when she was visited such as being in a night gown at 3:00pm, having a swollen leg, that she needed to see a dentist, that she had said a resident had hit her, and there were comments from staff saying she wasn’t eating. On the Public Guardian’s visit they were advised she had a UTI, but she was improving. A smell of urine weas noted and that RPE shared her room. RPE was sitting on her bed eating a sandwich and having a drink. RPE said she was ‘pretty good’ though sad about the passing of her husband. When asked if she liked living there, she said ‘I do’, and that staff were ‘real people’. She said her family made her happy and it was noted the room had family photos and cards from RJC and drawings from his children. The facility advised that there are inhouse hairdressing, podiatry and optometry facilities and that RPE had attended appointments unless she refused to, and while RJC and RR needed to approve haircuts they had never denied a haircut because they did not want to pay. A nurse at the facility advised that RPE’s overall health and wellbeing was recently reviewed by her GP, she is acutely unwell at the moment, she does get confused all the time due to her dementia. It was noted that RPE had been transferred to the dementia-specific unit. While RPE had reported an assault a nurse in the lounge at the time did not see any proof of it. The Public Guardian confirmed that RJC had provided extensive information regarding the assistance he has provided RPE and continues to provide to RPE to ensure her personal and medical needs are met.
There was an allegation that RJC was restricting RPE’s contact with family/friends, and that RPE is only allowed out of the care facility with RJC. RPE, when asked by the Public Guardian on their visit if anyone visits her, stated that RJC and his wife do, and when questioned said that she is visited by NCN and her husband. She said that NCN brings her food and that they are close. She mentioned a friend and talked about another sister. When asked what she would do if she wanted to contact family and friends, she said she would go to the counter and use the phone. She said she did not want a phone in her room. RJC denied he was restricting RPE’s contact with family and friends and advised that he takes her out or visits her as often as possible and regularly brings his children along. They always include her in family functions such as parties, birthdays, Christmases etc. He noted that the facility is open 24 hours a day, seven days a week: anyone wishing to visit RPE is welcome to do so, and he cannot stop them. He noted, though, that in the past RPE’s relationship with NCN has been somewhat strained. In particular he has witnessed NCN harass and intimidate her. As a result of the matter being discussed between RPE and the facility manager the facility has taken steps to ensure RPE’s safety. As a result of an incident certain safeguards were put in place to ensure her safety and wellbeing. These include the facility notifying RJC when anyone attempts to remove RPE from the facility. RJC noted at times RPE does not want to go out. He has no objection to RPE spending time with her family and friends. The facility confirmed that RJC had requested that RPE is not taken out of the facility by anyone unless he is contacted first and that this was triggered when RPE’s sister allegedly took her to a doctor’s appointment one day without his knowledge. They confirmed that he has not requested visiting restrictions on anyone visiting RPE at the facility. It appears that NCN visited RPE regularly and had taken her out of the facility in the past as at 5 July 2021 but not recently. The facility noted that due to RPE’s dementia she has been aggressive at times and that she needs to be left alone at those times. The facility manager stated he is not aware of any times where NCN has been denied in taking RPE out of the facility.
RJC filed an affidavit in the Tribunal in response to the Public Guardian’s investigation. In it he stated that in 2016 after RJR passed away, he became responsible for the running of the business and assisting RPE in meeting her financial obligations. Between 2016 and 2018 RPE had limited financial resources of her own and relied on his wife RR and him meeting the business expenses and RPE’s living expenses using funds held in the business accounts, and funds from their own, personal accounts. In December 2018 RPE sold her property. From the proceeds of the sale, $280,000 was paid to the aged care facility as a deposit. $76,487.27 was paid to RJC to satisfy various earlier loans to RPE, and all professional fees and expenses relating to the sale of the property were distributed as required. The remainder was deposited to RPE’s bank account. RJC states from on or around June 2019, RPE’s finances have been kept separate from his own personal finances and those of the business. As a son, he promised RPE that even after she received the proceeds of the sale from her property he would continue to provide support and assistance. Since their finances were properly separated in 2019, he has continued to provide support when the need arises, RJC states that between August 2016 and September 2018 he provided significant financial assistance to RPE in the amount of $15,151.15, and made a large number of payments on her behalf, between May 2018 and 21 August 2018 he reimbursed himself for these payments using finds held in RPE’s personal bank account. During the course of the Public Guardian’s investigation he provided additional information regarding these transactions and answered any questions that they had. Since 2020, all transactions are completed electronically to ensure that they can be identified, traced and verified. He said that all statements, records and correspondence relating to RPE’s financial affairs are dealt with on a monthly basis.
In regard to RPE’s capacity in 2018 RJC stated that on 2 June 2017, RPE’s general practitioner provided a letter confirming RPE’s capacity. Between this date and December 2018, RJC had a number of detailed and lengthy conversations with RPE about the need to sell her property. They had also considered the possibility of keeping it. However, they could not afford to do so, and neither could RPE. RPE understood that the property was a financial burden. RJC states that during the conveyance of the property, RPE was actively engaged with her solicitor, real estate agent and a Justice of the Peace. Each time the sale was discussed with any of these professionals, RPE attended in person. No questions or concerns were raised by RPE’s solicitor or real estate agent at that time. He recalled collecting RPE from the aged care facility and accompanying her to meet a Justice of the Peace. He remembered the Justice of the Peace asking RPE a number of questions including general background questions and also questions about the sale of the property, her reasons for selling the property and her plans for the future. He states RPE was able to answer all of the questions. The JP satisfied herself that RPE was willing and able to sign the contract of sale and that she understood what she was signing.
The Tribunal received a copy of correspondence between the doctor who performed the capacity assessment on 2 Jun 2017 and the Public Guardian. They stated the purpose of the appointment was for RJC to get a letter from them stating whether RPE was capable of signing legal documentation as instructed by their solicitor. They note this was only their second consultation with RPE so they carried out a MMSE to help them objectively determine her cognitive capability. This was going to be her documented evidence that she had been formally assessed at the time of writing her capability letter. Her score was 25/30. The doctor had a general conversation with RPE regarding her understanding of what the consultation was about and that she was comfortable with this. The doctor did not undertake any other tests in regard to RPE’s cognition. The doctor had not seen her since that consultation but noted that she had presented to the same practice in August 2017 and was seen by another doctor with an acute illness that required her to be referred to hospital where further assessments were done. This was a geriatrician. The first doctor, paying regard to the other doctor’s assessments, stated they were done months after the first doctor’s assessment and when RPE’s health had deteriorated, as such they did not change the first doctor’s opinion on 2 June 2017.
The Tribunal received a copy of a report from Dr M dated 4 September 2017. It noted that RPE had been sent to the emergency department by her local doctor with a number of acute/subacute complaints. Apart from her physical issues it was noted that she had a six-month history of weight loss and progressive cognitive decline. An MRI brain scan was performed, which showed parietal and posterior frontal atrophy consistent with a posterior variant of Alzheimer’s dementia. This was no major surprise to her family and he gathered her mother was also diagnosed with Alzheimer’s dementia. During admission she had a cognitive assessment from their occupational therapist (‘OT’) and scored 17/30 on MOCA. It was also noted that she had about a three-month history of visual decline. RJC advised that she had a longstanding history of macular degeneration.
A Health Professional Report was completed by Dr G on 17 December 2018 and filed in the Tribunal. Dr G stated that RPE had a diagnosis of Alzheimer’s disease with a date of onset of 4 September 2017 and referred to the report from Dr M of that date noting a MOCA score of 17/30. Dr G considered that RPE had no understanding in regard to health care, lifestyle and accommodation and financial matters. She did not currently have the capacity to make an EPA and could not understand and make any simple or complex decisions. It is noted that RPE does not have a communication impairment.
The Public Guardian filed a medical report from Dr L dated 4 June 2019. It noted that RPE had a diagnosis of Alzheimer’s type dementia which was stable and with a moderate level of impairment. She was able to make all health care decisions and she understood the need to be in aged care but would not be able to make significant choices. She is able to make all personal choices. Due to her short-term memory problems she is not able to manage financial affairs. While not currently capable of making an enduring power of attorney she would have been capable of making one on 15 January 2017.
The financial documents filed showed that RJR and RPE had net assets as at 31 December 2015 of $176,688. They showed that RJR & Sons Pty Ltd owned the business’ real estate valued as at 31 December 2015 at $700,000.
Following the filing of this material the Tribunal directed that further material be filed, in particular the Public Guardian’s full investigation report and source documents; RJC was directed to file RPE’s and the company’s income tax returns for the years 30 June 2016 to 30 June 2020; any documents filed and orders made in regard to the property settlement between RPE and RJR; any letters of advice to RPE by PHV lawyers in regard to the share sale agreement in respect of the companies and the agreements themselves; and a statement of assets and liabilities and distribution statement in respect of the estate of RJR. Further directions were made for RJC to provide an account in respect of the funds which RPE received upon the death of RJR, in the amount of $548,248.18, including supporting documents.
RJC filed a further affidavit in response to the directions stating that the probate of his father’s will was completed on 5 December 2016. He became RPE’s attorney on 16 January 2017 and at no stage over the last 4.5 years had he performed duties as her attorney. RPE at the time of his father’s death was in full control of her affairs. She arranged without involvement of a solicitor for the finalisation of the estate. He exhibited a copy of the doctor’s report from 2 June 2017. On 30 December 2016 RPE made the decision on her own to gift the funds from RJR’s estate to him. RPE wanted to help his family to get ahead in life, to help her son with his disability and to see her late husband’s legacy continue. He stated that RPE and him always had a good relationship. She wanted to see her own son achieve success and turn the business around. He exhibited a copy of RPE’s letter discussed below. He also exhibited a copy of the estate statement of assets and liabilities and distribution statement. He stated that in the course of administering the estate, funds totalling $532,513.77 were deposited into RPE’s account: on 13 January 2017 she received $236,745,50 from his father’s life insurance policy; on 27 January 2017 she received $197,919.83 from the distribution of his father’s estate; and on 3 February 2017 RPE received $97,847.44 from a bank account previously held by his father. RPE arranged to transfer the funds totalling $525,767.27 into his account. As at 4 February 2017 RPE retained $6,746.50 in her account. RPE received a further amount of $1,735.41 into her account from another bank account. RJC stated that prior to the sale of a house which was part of his father’s estate he made payments totalling $96,767.81 including costs for completing construction of a shed. He repaid $2,757 for the cost of his father’s wake. He set aside $6,000 to cover RJR’s burial place next to his mother which can only be done at the time of her death. He repaid his grandmother $11,656 for the cost of his father’s funeral.
The share sale agreement dated 28 July 2017 was between RPE and RJC Developments Pty Ltd. The sale was in respect of RPE’s shares in RJR & Sons Pty Ltd – two 1 class shares and 100 fully paid ordinary shares and RJR and RPE Pty Ltd 4 fully paid ordinary shares. RPE was at the time the sole director of both companies. The consideration in respect of the sale of shares was for the purchaser to assume all outstanding liabilities of whatsoever nature or kind, including ATO liabilities in the name of the company or directed to RPE personally in her capacity as a director. It is noted that the debts in regard to RJR and RPE Pty Ltd are estimated at $200,000. RPE was also required to hold company meetings to register the transfer of shares and to resign and appoint new directors. There was no cash consideration in respect of the share sales.
The statement of assets and liabilities and distribution statement of the estate of RJR showed that the following amounts were distributed to RPE: from the estate $197,919 was paid into RPE’s bank account on 27 January 2017 and a bank account in the amount of $97,847.44 was paid to her. RPE received the proceeds of a life insurance policy over RJR’s life in the amount of $236,513.77. A further payment of $1,735.41 was made on 3 March 2017. She was also distributed shares in the companies.
There was a letter provided dated 30 December 2016 stating that RPE had gifted CJR the funds from RJR’s estate including this life insurance policy. “Noting that even though we were married at the time of his death we were separated and we had discussions that we want RJC to have the family business and for him to take over”, she understood that the business is not very financially stable and the funds can be used to assist RJC in the business and with his family. She stated that “I trust that my son in turn will look after me in my time of need”.
Legislation
Applications for the appointment of guardians and administrators are determined in accordance with s 12 of the Guardianship and Administration Act2000 (Qld) (‘GAA Act’). That requires the Tribunal to be satisfied of the following matters:
(a)Whether or not RPE has capacity for decisions about personal and financial matters;
(b)Whether there is a need for decisions in relation to personal and financial matters or RPE is likely to do something in relation to personal or financial matters that involve, or are likely to involve, unreasonable risk to her health, welfare for personal matters or property for financial matters;
(c)Without an appointment RPE’s needs will not be adequately met; or her interests will not be adequately protected.
Capacity is defined in the Schedule 4 dictionary to the GAA Act as meaning the person is capable of understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. The definition is matter-specific and there is a continuum of capacity from simple to complex. In accordance with s 11 of the GAA Act RPE is presumed to have capacity until the contrary is proven. The Tribunal is required when exercising its power under the GAA Act to do so in accordance with the General Principles set out in s 11B of the GAA Act. The Tribunal is also required to ensure that the right of an adult to make decisions should be restricted, and interfered with, to the least extent possible both in accordance with s 5 General Principle 9 of the GAA Act and s 13 of the Human Rights Act 2019 (Qld). When making its decision the Tribunal must comply with General Principle 10 - Structured decision-making, in particular in relation to taking into account any views, wishes and preferences expressed by the adult.
If the Tribunal determines there is a need to appoint a decision-maker it must ensure that they are eligible for appointment in accordance with s 14 of the GAA Act and appropriate for appointment in accordance with s 15 of the GAA Act. Where the Tribunal appoints an administrator and there is an attorney under an EPA the attorney may exercise power only to the extent authorised by the tribunal in accordance with s 22(2) of the GAA Act and s 70 of the POA Act.
An attorney appointed under an EPA is required to ensure that they act honestly and with reasonable diligence to protect the principal’s interests under s 66 of the POA Act; avoid conflict transactions under s 73 of the POA Act; keep property separate under s 86 of the POA Act; there is a presumption of undue influence under s 87 of the POA Act, and provision for limited gifts and donations under s 88 of the POA Act.
Capacity
RPE resides in a dementia secure area of an aged care facility with a diagnosis of Alzheimer’s dementia. That diagnosis was first made by Dr M in September 2017, at a time when RPE had been hospitalised, as a result of a capacity assessment of scoring 17/30 on a MOCA and an MRI which showed parietal and posterior frontal atrophy consistent with a posterior variant of Alzheimer’s dementia. This was said to be no major surprise to RPE’s family. An ACAT assessment at around the same time noted the diagnosis of Alzheimer’s disease – STML (short term memory loss) and confusion and legally blind-macular degeneration. An MMSE had been carried out for the ACAT with a score of 25/30 adjusted for blindness with 0/3 for recall. A Health Professional Report was filed in the Tribunal from Dr G dated 17 December 2018 which confirmed the diagnosis of Alzheimer’s dementia and stated that RPE did not have the ability to understand any decisions. It is noted that she does not have a communication impairment. The Public Guardian filed a Health Professional Report from Dr L dated 4 June 2019 which also confirmed the diagnosis of Alzheimer’s type dementia as being stable and moderate. That report stated RPE was able to make health care decisions, and understands the need for nursing for nursing care but would not be able to make significant and was unable to make significant decisions and because of her short-term memory problems was unable to manage her financial affairs.
Prior to the diagnosis of Alzheimer’s dementia in September 2017 RPE was assessed by a local doctor on 2 June of that year. They had a discussion with her and performed a MMSE with a score of 26/30 which they said did not show significant cognitive impairment. They were later asked by the Public Guardian to reconsider their opinion having regard to Dr M’s report and stated it was done months after their assessment and when her health had deteriorated. As such it did not change their assessment and opinion. Unfortunately there is no information in regard to the result that RPE had in regard to recall in that assessment. The MMSE performed by the ACAT team in September was only one point less than the June assessment but the recall score was 0/3 reflecting short term memory loss.
There was no disagreement at the hearing with the reports and that RPE had Alzheimer’s dementia with short term memory loss which has deteriorated since the reports were prepared. I note that RPE was for a long period still able to express her views and wishes but as a result of short-term memory loss she did not have the ability to plan and execute her decisions and therefore does not understand the nature and effect of decisions. If she was provided with the information necessary in regard to options for decisions she would be able to express her views and wishes. While the latest Health Professional Report indicates that RPE would be able to make all health care decisions this is not reflected in the reports of Dr M and Dr L nor by her current situation. I am satisfied that RPE does not have capacity for personal and financial decisions as a result of Alzheimer's dementia which was diagnosed on 4 September 2017.
Guardianship
At the hearing the Tribunal was advised that RPE now resides in a single ensuite room in the dementia secure area of the aged care facility she has been residing in since October 2018. That accommodation is stable and appropriate. NCN had raised issues with the fact that RPE had originally been placed in a shared room and was concerned having regarded to her assets that this was not appropriate as she should have been able to afford a single room. Clearly that is no longer an issue. NCN also raised concerns with the medical care that RJC had in place for RPE and alleged that he was limiting family and friends’ access to RPE. The Public Guardian was not able to find any evidence that RJC was attending to RPE’s medical care and while the facility manager was instructed to advise RJC before RPE left the facility there was no evidence that there had been any denial by RJC of a family member taking RPE out of the facility. The facility manager did advise that sometimes RPE did not want to leave the facility and sometimes it was not appropriate for her to leave having regard to her state of dementia.
While there will be ongoing decisions needing to be made for RPE in regard to such things as her health care and provisions of services within the facility she has an appointed attorney to make those decision and there is nothing to suggest in regard to personal matters that RJC is not performing his role diligently and appropriately. While NCN does not want RJC to have any decision-making role in regard to RPE, RPE made the decision to appoint him to the role when she had capacity. The Tribunal must have regard to her expressed views and wishes in accordance with the general principles.
As there is an appointed decision-maker, RJC, under the EPA of 16 January 2017, who has a history of making appropriate personal and health care decisions for RPE, I am not satisfied that without an appointment RPE’s needs will not be adequately met, or her interests will not be adequately protected.
The application for the appointment of a guardian is dismissed.
Administration
At the time of the hearing RPE’s assets comprised an RAD of $280,000, a bank account with approximately $3,000 in it, some chattels and a life insurance policy. RPE was in receipt of the aged pension. She has assets and is in receipt of an income with expenses to pay. I am satisfied there is a need for decisions in regard to financial matters.
NCN had raised concerns about RPE’s finances for some years, in particular in regard to dealings with family businesses, that RPE owned the business’ real estate and RPE’s late husband’s estate, and the sale of RPE unit. NCN was concerned that RJC had benefited from RPE’s finances and made application to the Tribunal. An investigation was carried out by the Public Guardian. RJC provided material to the Public Guardian which showed that following the letter of 2 June 2017 RPE had entered a share sale agreement in regard to her shares in the family companies, the consideration for which was the taking over of the liabilities of the companies which were substantial. RJC did not deal with the business’ real estate, and it was not pursued by the Public Guardian. RJC claimed that he had supported RPE for some time and advised that NCN had also lent RPE $60,000 towards the sale of her unit. He produced to the Public Guardian a letter from RPE dated 31 August 2016 stating that RJC and his wife were assisting her financially and at the time she sold her unit funds would be used to repay them. RPE’s unit was sold in December 2018 and RJC was paid $76,486.27 from the sales proceeds with $16,193.91 payable to RJR and RPE Pty Ltd in repayment of loans. From the sale price of $384,000 RPE received a total of $7,428.67. The solicitor who undertook the conveyance advised that they had received a copy of the letter with the distribution instructions and details of advances made to RPE. The solicitor would appear to have relied on the capacity letter of 2 June 2017 at the time of the conveyance. While the Public Guardian had some concerns about keeping property separate, they were not satisfied the allegations were proven. They did not pursue the issue in regard to the estate of RJR presumably because it occurred prior to the time that RPE had lost capacity.
The Tribunal, though, required details from RPE in regard to the estate of RJR amongst other things. As can be seen from the above RPE was the sole beneficiary of the estate and a life insurance policy and received an amount of $532,513.77 and she gifted an amount of $525,767.27 to RJC in accordance with her letter of 30 December 2016. I note that RJC had made payments in regard to the estate of $96,767.81. RPE stated in the letter that she trusted that her son in turn would look after her in her time of need. RPE had earlier on 31 August 2016 signed a letter acknowledging that RJC and his wife were assisting her financially by paying her everyday expenses and at the time she sold her unit, funds would be used to repay them. When the unit was sold in December 2018 the letter of Augst 2016 was relied upon to have an amount of $76,487.27 repaid to RPE and $16,193.91 was repaid to RJR and RPE Pty Ltd. RPE was left with $7,428.67 from the proceeds of sale. Between 28 May 2018 and 21 August 2018 RJC had reimbursed himself an amount of $15,151.15 from RPE’s bank account. RJC was able to demonstrate to the Public Guardian that all of the relevant amounts had been paid on RPE’s behalf and therefore it seemed appropriate that when she had funds, he should be able to seek reimbursement. RPE also undertook the sale of the unit on her own behalf and issued the disbursement instructions in regard to the settlement proceeds. The lawyer, real estate agent and JP appeared to be relying on their interactions with RPE and, the lawyer in particular, the capacity assessment of 2 June 2017. As RJC knew that capacity assessment had been overtaken by the capacity assessment of September 2017 and while at the time of the sale RPE may have been able to give the impression she had capacity when carrying on a discussion she had short-term memory loss and a diagnosis of Alzheimer’ dementia.
At no stage did RJC disclose to the Public Guardian that he had received $525,767.27 as a gift from his mother. This sheds a different light on the payments he made to support her. He was in effect simply reimbursing her some of the money she had gifted him as was her expectation in her letter of 30 December 2016, when she said, “looking after me in my time of need”. If she had recall of the very substantial gift she had made to RJC, would she have also wanted to reimburse him and the family company the bulk of her share of the unit sale? I note that letter of 30 December 2016 could be seen to overtake the letter of 31 August 2016 in that the gifting of the estate proceeds by RPE to RJC obviated the need for any reimbursement to RJC from the proceeds of sale of the unit. This substantial gift was not disclosed to the lawyer at the time of the sale of the unit and reliance was placed on the letter of 31 August 2016. In the circumstances having regard to his duties as an attorney was it appropriate for him to seek such reimbursement when to do so would leave RPE with virtually no assets and when he had received substantial gifting from her? While the payment from the sale was not a conflict transaction because he did not undertake it as attorney it raises issues of undue influence and acting honestly and with reasonable diligence. At the time of the sale RPE clearly did not have capacity having regard to the medical reports and RJC should have ensured that RPE did not enter transactions against her interests including substantial payments to him at a time when he had already received substantial gifts from her which she would not have been in a position to recall. RJC had already reimbursed himself $15,151.15 from RPE’s accounts before this. The question of whether RJC should retain the monies that he has received from RPE at times when she had impaired capacity requires investigation. His seeking of monies from her when he had already received a large gift from her shows that there are issues with his ability to act honestly and with reasonable diligence to protect her interests.
I am therefore not satisfied having regard to the actions of RJC that without an appointment RPE’s needs will be adequately met and her interests adequately protected. The Public Trustee of Queensland is available for appointment as RPE’s administrator, and I appoint them as set out in the order.
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