RST
[2023] QCAT 500
•8 December 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
RST [2023] QCAT 500
PARTIES:
In an application about matters concerning RST
APPLICATION NO/S:
GAA 4348-22 Appointment of an Administrator
GAA 4349-22 Appointment of a Guardian
GAA 4350-22 Application for Directions
GAA 4351-22 Application for an Order about an Enduring Power of Attorney
GAA 10179-22 Application for leave to Resign as Attorney
GAA 10180-22 Application for Directions
GAA 10194-22 Appointment of an Administrator
GAA 10195-22 Appointment of a Guardian
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
8 December 2023
HEARING DATE:
23 March 2023
HEARD AT:
Toowoomba
DECISION OF:
Member Hemingway
ORDERS:
APPLICATON FOR DIRECTIONS
1. The application by VA for directions for RST is dismissed.
2. The application by VA for an Order about an Enduring Power of Attorney is dismissed.
GUARDIANSHIP
3. The Public Guardian is appointed as guardian for RST for the following personal matters:
(a) Accommodation;
(b) Health care.
4. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.
ADMINISTRATION
5. The withdrawal of the application for the appointment of an administrator by KM has been approved by the Tribunal pursuant to s 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
6. The Public Trustee of Queensland is appointed as administrator for RST for all financial matters.
7. The administrator is to provide an updated financial management plan to the Tribunal within four (4) months, such plan to show evidence of the administrator having obtained advice from a licensed financial planner.
8. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
9. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years.
NOTICE OF INTEREST IN LAND
10. Before 23 June 2023 the administrator must:
(a) Record the appointment as administrator on any property registered in RST name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
(b) Provide confirmation to the Tribunal that this has been completed by providing:
(i) A copy of the title search conducted identifying RST’s property; and
(ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by RST.
(c) If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.
11. If the ownership of any property of RST changes in any way or RST 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 to RST's interest in another property.
ENDURING POWER OF ATTORNEY
12. Pursuant to s 82(1) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld) the Tribunal gives leave to PY to resign as attorney for RST under the Enduring Power of Attorney dated 11 January 2019.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT POWER OF ATTORNEY – whether adult had capacity, to transfer rural land by way of an inter-vivos gift son for no monetary consideration and to create a discretionary trust – where undue influence alleged – where adult now limited funds – where mutual allegations by applicants of elder abuse – where contact and visits with family restricted – family conflict – where attorney seeks to resign
Guardianship and Administration Act 2000 (Qld)
Powers of Attorney Act 1998 (Qld)
Human Rights Act 2019 (Qld)Queensland Civil and Administration Tribunal Act 2009 (Qld)
Aziz v Prestige Property Services [2007] QSC 265
Briginshaw v Briginshaw [1938] HCA 34
BSJ [2022] QCAT 51
Banks v Goodfellow (1870) LR QB 549
Baker & Ors v Afoo & Ors [2014] QSC 46[97]
Crago v McIntyre [1976] 1 NSWLR 729 at 740-741
Gibbons v Wright (1954) 91 CLR 423
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
In applications concerning RV [2019] QCAT 384, [90]
MG & Anor v The Public Guardian & Anor [2021] QCATAMichaletos v Stivactas [1992] ANZ Conv 90
APPEARANCES & REPRESENTATION:
Mr Crofton of Counsel for VA
Mr Hallewell for KM
RST – the adult
KM – the applicant and son of RST
PY – RST’s attorney and nephew
VA – the applicant and son of RST
QZ and MT – sons of RST
REASONS FOR DECISION
Background
These proceedings concern an elderly woman who, for privacy reasons, will be referred to as RST. She has four sons who will be referred to as KM, VA, QZ and MT.
RST is aged 84, widowed in 2019 and until 2023 was residing in her own home together with her son KM and KM’s wife on a multi-titled rural property. She is now placed in permanent aged care with 24-hour assistance for her care.
There is an application for the appointment of an administrator and guardian for RST brought by her son KM who seeks to be appointed administrator and guardian. However, KM sought to withdraw his application to be appointed as RST’s administrator by correspondence from his legal representative on the 16 February 2023. He seeks appointment as her guardian if one is required.
There is also an application for the appointment of an administrator and guardian by RST’s son, VA. VA seeks the appointment of the Public Trustee of Queensland as administrator and the Public Guardian to be appointed as guardian.
Further there is an application for directions by VA and an application for an Order about an Enduring Power of Attorney brought by VA. Further there is an application for Leave to Resign as Attorney brought by PY.
Sequence of events
RST lived on a rural property comprised of several separate titles. Her husband and sons worked the property for more than thirty years.
RST executed an Enduring Power of Attorney on the 11 January 2019 appointing her nephew PY and friend CR as her attorneys . The power was to commence immediately and the attorneys were to act severally. PY accepted his appointment on the 22 January 2019.[1] CR accepted her appointment on 20 February 2019.[2]
[1]Enduring Power of Attorney dated 11 January 2019.
[2]Ibid.
On 16 January 2019, RST’s husband died after a long period of ill health due to cancer.
In March 2019, RST received an inheritance from the sale of a property in New South Wales of approximately $760,000. The whereabouts of these funds is unknown.
On 17 June 2019, RST consulted Dr Carroll, a general practitioner who provided a letter to confirm RST’s capacity. Dr Carroll concluded that RST had capacity to make her own decisions. Dr Carroll stated that she had seen RST for a period of six months and that RST had been able to explain her medical concerns and when making up treatment plans and that she had been able to have a reasonable conversation about options and weigh up the options sensibly.
Following the death of RST’s husband, proceedings were commenced by VA against RST and the estate of her late husband in the Queensland Supreme Court in May 2019. The claim was for the Recovery and Possession of Land. VA wrote to his mother regarding the claims concerning the estate property, challenging her capacity prior to the commencement of these proceedings.
On 21 June 2019, a mediation between RST and her sons VA, QZ and MT reached an agreement entitled Heads of Agreement at a mediation in the Supreme Court arising the claim. A mediator’s certificate was filed on the 26 June 2019 in these proceedings stating that the parties had resolved their dispute.
At the centre of the dispute was the claim that one son, MT, who had worked the property for no remuneration for thirty years, was entitled to certain property to compensate him for this work. Other claims related to the right to access and work the land. Other claims related to stock, bloodline and equipment.
As part of the Heads of Agreement, RST consulted Dr Wong for the preparation of a medico-legal report on the 16 July 2019. This medico-legal report was prepared in accordance with the Heads of Agreement following the mediation. Dr Wong concluded that RST had capacity for financial decisions. The substance of her report is discussed below with reference to the current and historical capacity of RST.
CR gave notice on 27 November 2019 of her desire to resign as attorney under the Enduring Power of Attorney dated 11 January 2019. This letter to RST was received at the Tribunal on the 22 September 2022.
On 6 December 2019, RST executed a Deed and Transfer of two lots of land to her son KM. The real property descriptions of the two blocks are as follows, Lot 1 on RP 89626 and Lot 2 on RP 103181 described as the “Top Block” in the heads of agreement document. Briese lawyers acted in the preparation of the Deed.
The residence in which the adult resided is located on one lot. The consideration for the transfer of real property did not include a monetary consideration, though the property was valued at approximately $1.4 million dollars. The Deed was executed by RST in consideration of her “natural love and affection and pursuant to a Deed,” for the transferee.[3] The transfer was free of the mortgage in favour of the Suncorp bank of approximately $230,000.
[3]Copy of Transfer of Land dated 6 December 2019.
The Deed required KM and his wife to provide personal services to RST. It also provided that RST might also receive services to which she was entitled under an aged care package or through private funding, ceasing on her death or if she entered full time aged care on high care basis. The Deed refers to both a Life Interest in favour of RST and a Right to Reside being granted to her.
On 19 March 2020, RST became Trustee of the RST Family Trust, a discretionary trust in which Kym Briese of Briese Lawyers was the Settlor and Appointor of the Trust and the discretionary beneficiaries were RST and KM and various relatives. A power to exclude discretionary beneficiaries, who would otherwise be entitled to be considered under the provisions of the trust was also included. KM stated in the financial management plan dated 3 November 2022 that RST had received distributions under the trust.
RST had a stroke in April 2020. It is contended by her son, VA that she may have suffered an earlier stroke. In this regard Dr Thambyrajah who reports that her CT scan on 15 February 2021 shows and old CVA consistent with her prior MCA stroke with some global atrophy.
On 15 February 2021, Dr Thambyrajah indicated that KM and his wife were residing with RST. She was dependant on them for all aspects of her personal care for which they employed carers and attended to some care themselves including transport, arrangement of appointments, contact with other friends and family.
On 8 April 2021, KM transferred the property (the subject of the Deed) to the name of himself and his wife as joint tenants.
On 29 April 2022, VA made application to QCAT for the appointment of the Public Trustee as administrator and the Public Guardian as guardian for RST.
On 4 May 2022, KM was appointed Trustee of the RST Family Trust pursuant to a Deed of Appointment and Retirement on the retirement of RST. The basis of RST’s retirement was her incapacity. The Deed provides that subsequent trustees under the Deed are KM’s wife and his wife’s daughter.
On 16 September 2022, KM applied for appointment as sole Guardian and Administrator.
On 7 October 2022 all active parties were given leave to be legally represented.
On 3 November 2022 KM disclosed the existence of the RST Family Trust in the financial management plan dated 3 November 2022. He further stated in the plan that:
…for the sake of completeness, I am the trustee of the RST Family Trust. The Trust is a discretionary trust. The Adult is a beneficiary of the trust, among other beneficiaries. The Adult has received distributions from the Trust in the past. Whether the adult receives any further distributions is a matter for my discretion…
On 7 February 2023 RST entered respite care.
On the 10 February 2023, the attorney PY, stated that he believed RST had lost capacity.
On 13 February 2023, KM sought leave to withdraw his application for appointment of himself as administrator proposing the appointment of the Public Trustee of Queensland.
T Facility reports that RST was a respite resident on the following dates 21 May 2021 to 7 June 2021, 3 August 2021 to 25 August 2021, 12 October 2021 to 19 October 2021.
RST has, at the date of the hearing entered full time nursing care in March 2023.
The funds held by the RST Family Trust were disclosed at the hearing on 23 March 2023 at the Direction of the Tribunal.
The Tribunal must apply the relevant legislation to the facts of the case and determine the respective applications.
If RST is found to have had impaired capacity, is there a need for the appointment of a guardian or an administrator and if so, who should be appointed?
RST is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) and General Principle 1 under Schedule 1 of the Act. That presumption can be rebutted with relevant evidence. Unless there is sufficient evidence to rebut that presumption, it must stand. The standard of proof required to rebut the presumption is on the balance of probabilities.[4]
[4]Briginshaw v Briginshaw [1938] HCA 34.
The Act provides that the Applicants must rebut the presumption of capacity establishing that the adult lacked one or more of the following requirements found in the definition of capacity in the Act.[5]
[5]The Act, sch 4.
Schedule 4 of the Act defines capacity as: capacity, for a person for a matter, means the person is capable of—
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
The capacity of an adult to make decisions may differ according to the type of decision to be made and the support available from members of the adult’s existing support network.[6]
[6]Ibid, s 9.
The Act categorises matters as follows:
(a)personal matter
(b)special personal matter
(c)special health matter
(d)financial matter.
This hearing is examining the issue of RST’s capacity for decisions about personal and financial matters both at the date of the hearing and at the date of the financial transactions noted in the preceding paragraphs. KM and VA seek the appointment of the Public Trustee of Queensland as administrator on the basis that RST currently lacks capacity to manage her own financial affairs.
Financial matter is defined in Schedule 2, part 1 of the Act as follows:
A financial matter, for an adult, is a matter relating to the adult's financial or property matters, including, for example, a matter relating to 1 or more of the following—
(a)paying maintenance and accommodation expenses for the adult and the adult's dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult.
(b)paying the adult's debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law.
(c)receiving and recovering money payable to the adult.
(d)carrying on a trade or business of the adult;
(e)performing contracts entered into by the adult;
(f)discharging a mortgage over the adult's property;
(g)paying rates, taxes, insurance premiums or other outgoings for the adult;
(h)Insuring the adult of the adult’s property,
(i)otherwise preserving or improving the adult’s real estate:
(j)Investing for the adult in authorised investments:
(k)Continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult has become entitled because of the adult’s existing shareholding;
(l)Undertaking a real estate transaction for the adult;
(m)Dealing with land for the adult under the Land Title Act 1994 or the Land Title Act 1994;
(n)undertaking a transaction for the adult involving the use of the adult's property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult;
(o)a legal matter relating to the adult's financial or property matters;
(p)withdrawing money from, or depositing money into, the adult's account with a financial institution adult's property.[7]
[7]The Act, sch 2, pt 1.
Justice Lyons states in her decision in Azizv Prestige Property Services[8] as follows:
…capacity is determined not on a global basis but rather on the basis of whether a person has capacity for a particular matter. In this case it is not a question of whether the plaintiff has impaired capacity for matters in general but specifically.[9]
[8][2007] QSC 265.
[9]Ibid.
Her honour concluded that the adult had impaired capacity for the relevant decision because he did not understand the consequences of his decisions even after an explanation was given.
The question for this Tribunal is whether RST has capacity currently for specific decisions about her financial and personal health matters and for previous financial and personal health care decisions. Her current financial position is impacted by earlier choices she is alleged to have made with full understanding and capacity.
Each limb of the statutory definition must be found or the adult will be presumed to lack capacity. Having established the issue of capacity, the Tribunal then turns to a consideration of need and appropriateness[10] of proposed appointees as found in the Act.
[10]The Act, s 15.
That is to say does RST have impaired capacity and is there a need for an appointment of a guardian or administrator such that without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.[11]
[11]Ibid, s 12.
Evidence of medical practitioners
RST was a long-term patient at a medical practice. She had consultations with Dr Stark and subsequently with Dr Carroll. Both are general practitioners.
On 14 December 2016, Dr Stark tested RST’s capacity and stated that RST had testamentary capacity.[12] This is a brief report comprising two lines and does not reference any cognitive testing. Dr Stark is noted to be the long-term general practitioner of RST. KM discontinued Dr Stark as the attending practitioner and retained a different doctor, Dr Carroll for RST.
[12]Letter of Dr Stark dated 14 December 2016.
Dr Carroll stated in her letter dated 15 November 2018 that she has had seen RST four times and that RST had been seen by her colleague Dr Stark since 2000. In this letter Dr Carroll reports discussing with RST her reasons for entering into a new Enduring Power of Attorney which appeared to satisfy Dr Carroll who stated she believed RST capacity to execute a new Enduring Power of Attorney. The Tribunal notes that this consultation for the purpose of entering a new enduring power of attorney and was undertaken against the background of the imminent passing of RST’s late husband, in fact five days prior to his death on 19 January 2019. Dr Carroll does not record any knowledge of this factor as having any relevance to her assessment.
On 17 June 2019, Dr Carroll stated that RST had capacity for financial decisions. This opinion was given two days prior to the mediation between RST and her sons concerning the estate of her late husband and in respect of her own property.
Dr Wong, a physician in Geriatric medicine, reported by way of a medico-legal report on 16 July 2019. Dr Wong stated that RST stated that her medical conditions included rheumatoid arthritis, cataract removal, IOL implants, cholecystectomy, fall, metatarsal fracture, hiatus hernia, hypertension, hysterectomy, bilateral total knee replacements, bilateral pterygium, Q fever, radial fracture on right, shoulder injury, vaginal repair and vitamin D deficiency. Dr Wong stated that RST was able to list her medications with ‘good accuracy.’
On 16 July 2019, Dr Wong stated RST had capacity to make financial decisions. Dr Wong stated that RST could self-administer her medications from a webster pack, and also Orencia solution (prescribed to reduce the symptoms of moderate to severe rheumatoid arthritis) from a pre-filled pen. Her Montreal Cognitive Assessment (MoCA) test score at this time was 25/30.
Dr Wong stated that RST retained the capacity for financial personal and health matters meeting the test in schedule 4 to the Act. Dr Wong stated that:
RST displayed good understanding of her current finances, debts and expenses including expected legal fees. She stated that she did not attend the mediation meeting. She demonstrated insight and good judgment. She described the property including 4 blocks and the characteristics of each block very well. She displayed a good understanding.[13]
[13]Letter of Dr Wong dated 15 November 2018, p 2.
Dr Wong commented that RST demonstrated insight and good judgement and that RST was not suffering impaired capacity because of the following factors. RST was not:
(a)More forgetful of recent events;
(b)More likely to repeat herself;
(c)Less able to grasp new ideas;
(d)More anxious about having to make decisions ;
(e)More irritable or upset if she cannot manage a task;
(f)Easily influenced by others about her decision -making ;
(g)Less concerned with the activities of other people;
(h)Losing things or getting lost;
(i)Undergoing a change in behaviour and/or change in personality;
Dr Wong went on to comment that RST’s Montreal scores show Mild Cognitive impairment.[14]
[14]Medico-legal report of Dr Wong dated 16 July 2019.
On 6 December 2019, RST transferred her real property to KM for no monetary consideration and with RST meeting the cost of the transfer and discharge of the mortgage. Briese lawyers asserted that RST had retained capacity for this transaction.[15]
[15]Letter of Whitsunday Law dated 16 November 2020.
In March 2020, RST became the Trustee of the RST Family Trust. One month later, in April 2020, RST was hospitalised with a Cerebral Vascular Accident. She remained in hospital until June 2020.
Between December 2019 and March 2020, when the next medical intervention occurred, RST had divested herself of the majority of her real property and cash assets.
On the 14 September 2020, Briese Lawyers advised that RST had suffered an ‘extension stroke’ in which her cognitive abilities at this time were impaired.[16] The lawyers foreshadowed in correspondence that the appointed attorney may commence management of RST’s affairs in the near future.[17]
[16]Letter of H Lawyers dated 15 October 2020.
[17]Ibid.
RST was reviewed by Geriatric Adult Rehabilitation and Stroke Service (‘GARSS’) on 15 February 2021 and it is stated that:
She has moderate to severe depression and anxiety which was impacting her function. Psychology was recommended however KM and LT felt that due to her memory this was not an effective solution. On review Dr Zhu concluded that she has an on-going progression of symptoms of dementia with worsening cognition and occasional lability of mood. There was no convincing evidence of a depressive disorder or psychotic illness.[18]
[18]Transfer of Care Report, p 5.
At the review, on 15 February 2021, Dr Thambyrajah of GARSS reviewed her in respect of her cognitive concerns and behavioural disturbances. KM and his wife were present. KM and his wife made various comments to the doctor in the course of the consultation reflecting negatively on relationships within the family related to “a recent out of court medication settlement” and that symptoms are significantly worsened when dealing with stressful situations such as familial conflict.”
Further Dr Thambyrajah reports that:
Her son, KM, lives with RST and her daughter in law in the house she previously lived in with her husband. Unfortunately, she has had significant stressors related to two of her sons…who do not currently live with her, reportedly attempting to gain ownership of various assets of hers, including livestock, various farm machinery and land, which has caused her significant distress. She continues to reportedly get ongoing distressing letters on behalf of her children from their solicitors.[19]
[19] Report Memory Clinic Letter of Dr Thambyrajah dated 15 February 2021, p 2, Med 2.
Dr Thambyrajah reports that RST states her memory is poor and she is aware of confusion and cloudiness. She states she has good and bad days. She reported remembering Dr Wijayratne for her stroke and that she feels like she forgets things and that she occasionally loses items. KM told the doctor that RST has episodes of hallucinations and delusions of people putting things in the letterbox which appear to be related to a recent out of court mediation settlement. KM and his wife reported somnolence and bladder and bowel incontinence. Her cognition was assessed. RST denied any elder abuse by KM and his wife. She scored 63/100 on the Addenbrookes Cognitive Examination with significant deficiencies in attention and fluency. Her Geriatric Anxiety Index is 14/20 and her Geriatric Depression Score was 18/30 Dr Thambyrajah concluded that RST retains capacity for decisions regarding healthcare and lifestyle choices and also day to day finances.
RST was then transferred to a VP Village where she had five falls in two weeks. This placement was considered unsuitable. She was transferred to T Facility where she remained until 21 June 2021. In the period to date, RST has been on respite at T Facility, in hospital, or residing at home with KM and his wife, apart from a period when KM’s wife underwent surgery and was hospitalised.
On the 6 October 2021 the Transfer of Care Report by Dr Zhu indicated that RST had an a ‘an ongoing progression of dementia, with worsening cognition.’[20]
[20] Older Persons Mental Health Unit Transfer of Care Report of Dr Zhu dated 6 October 2021, p 5.
The report states that a clinical review of RST was offered but was refused by KM, after her discharge. KM refused a further offer of psychological support by the OPMHU (‘Older Persons Mental Health Unit’) and again on release home. Dr Zhu’s report refers to extreme carer stress. The report states that KM stated that there was a need to obtain more funding for RST for her home care,[21] the evidence for which was that she was in receipt of a level 3 home care package and was waiting for availability of a level 4 home care package. On 30 July 2021, RST was placed in respite in the T Facility.
[21]Ibid.
On 23 September 2021, Dr Carroll stated that RST had lost capacity for decisions about her health and finances.
On 27 September 2021, there was a clinical review of RST. Her physical symptoms included bladder and bowel incontinence, significant anxiety and depression, elements of vascular and mild cognitive impairment.
On 6 October 2021, RST was discharged from the Older Persons Mental Health Unit.
On 7 October 2021, Briese lawyers advised that RST had impaired capacity based upon a medical report and that PY would be engaged to act for RST and would engage with the lawyers for VA.[22]
[22]Letter of H Lawyers dated 7 October 2021.
On 26 October 2022, Dr Carroll diagnosed RST as having; dementia (Alzheimer’s) HTN (Hypertension) rheumatoid arthritis, Osteoporosis, Anxiety and Depression, Iron deficiency in RST and stated the RST had no capacity for simple or complex personal health care or financial decisions or for making or understanding an Enduring Power of Attorney. She states that the dementia commenced in 2021.[23]
[23]Report of Dr Thambyrajah.
In view of the intervening medical assessments by Dr Zhu and Dr Thambyrajah since 19 January 2019, and the references to mental dysfunction against a background of anxiety and depression, it was the 26 October 2021 when Dr Carroll concluded that RST had lost capacity.
Views of Family and Friends
CR provided a letter dated 6 August 2022 in which she states that she has been a friend of the family for 50 years. Her contact with RST has been telephone contact with RST and sporadic visits apart from the time in 2019 immediately following the death of RST’s late husband when she stayed with RST. More recently she was told information about the reasons for the family conflict by KM. She then states that the upheaval in the family was caused by RST’s sons apart from KM. She stated that KM and his wife care for his mother appropriately and that RST would not be alive today apart from their care. She states her belief that VA and MT were attempting to gain control of RST’s care and to become her attorneys. She does not state that she has spoken with RST’s sons (apart from KM) to gain their views. She does not specifically refer to RST’s cognitive capacity.
KM maintains that he provided care for his mother going beyond what was expected to care for her. He assisted with her medications and personal care. He maintains that she was upset by her other sons’ action in going to court to challenge the Estate and her following the death of their father. He states his actions were in accordance with his mother’s wishes and that he consulted her regularly these matters. He states that they have a close bond and that he respected her desire to live at home for as long as possible in the care of he and his wife. He states that they have attended to her complex personal needs with the assistance of long-term carers and Blue Care. He attended appointments with her and carried out the instructions of medical staff. He secured a home care package for her at level four. He took her to appointments when she could no longer drive. He stated that he had regular contact with the attorney PY and kept him informed. He agreed that he was his mother’s paid carer. He denies excluding her other sons and their families from the property or engaging in any conflict or on-going disputes with them regarding land use, stock control, property and equipment that was not in accordance with protecting his mother interests. He maintains that they breached the Heads of Agreement reached at mediation.
I have considered the information supplied by the carers of RST. Both paid carers indicate that KM’s and his wife’s care of RST was exemplary. They say that KM was attentive to RST and all her needs. They deny any abuse of RST by KM and his wife. One carer states she cared for RST and her late husband for a period of 12 years. This would mean that she commenced involvement in 2011.
The evidence of her RST’s son QZ is that RST suffered her first stroke on 25 October 2018.[24] He further deposes that RST was at times in dementia wards or secure dementia wards. He states that she was rushed to hospital in late 2018 which he and VA believe was a stroke. He believes his mother had cognitive decline due to her dementia. He states that as his mother aged at times, she had been violent and aggressive and would become enraged if her views were challenged. He described an incident where she grabbed to steering wheel of the car and attempted to cause an accident, later joking about the event. He states that his mother would become enraged by any comments against KM. He stated that the family had been close prior to KM assuming control of his mother’s affairs. He stated that he was unable to visit his mother, telephone her or to have unsupervised time with her without KM or his wife being present. He states that she was completely isolated and under the control of KM and the carers. As evidence of declining capacity and confusion, she would call KM by her late husband’s name. He states that she was heavily influenced by the carers. He states that his mother believed the house was still hers after it was transferred to KM. He states that she was aggressive and belligerent saying that anyone who challenged KM was a threat to her.
[24]Affidavit of QZ dated 18 November 2022, para 20.
VA states that he believes his mother was controlled and not cared for appropriately by KM. He states that this contributed to her physical decline. He states she did not receive appropriate care and nutrition and that his mother complained directly to him about KM’s and his wife and their propensity to overspend. He alleges her weight declined to 38 kilograms in their care due to the dietary deficiencies of the food KM provided. He states that despite repeated requests from him, the attorney PY failed to take appropriate steps to intervene and allowed KM to control his mother and events for his own benefit.
PY states that he believed RST retained capacity until 26 October 2022. He received most information from KM about his aunt’s condition and cognitive capacity. He was in regular contact with VA and KM. He stated that he was unable to visit his aunt due to COVID restrictions but was kept informed about her financial and medical wellbeing from his conversations with her. In his email to VA of the 24 March 2019, he states his knowledge of the fact that RST had received a significant sum by way of inheritance. He was contacted by the hospital about an ambulance transfer being arranged for her.
Does RST have impaired capacity at present?
The three limbs of the statutory definition must be satisfied.
RST is now confined to a nursing home with full care and supervision at all times. Her dementia is of a type which has behavioural disturbances as a feature and this medication was for behaviour management. Her diagnoses are dementia of the vascular type and her medications involved risperidone for ‘sundowning.’
At present based upon this information RST does not have any ability to make decisions in free and voluntary manner or to communicate those decisions. The Tribunal concludes that at the date of the hearing that RST lacks capacity for decisions about a matter lacking the capacity for understanding the nature and effects of decisions.
The evidence for this conclusion is the report of Dr Carroll dated 26 October 2022 and other medical reports which chart a degeneration over time consistent with her declining age and increasing frailty. Dr Carroll states that the adult had a diagnosis of dementia and has no free and voluntary decision-making capacity and lacked capacity for simple and complex decisions. All parties concur that this is the case at present.
The need for appointments as requested in the applications and the appropriateness of any appointees will be discussed subsequently; however, the issue of capacity is relevant in respect of earlier financial decisions taken by the adult. These bear on the appropriateness considerations of any proposed appointee who may need to consider a potential investigation of the financial decisions taken by RST.
Did RST lack capacity for the creation of the Deed and the Transfer of land in 2019 and the creation of a discretionary trust in 2020?
There are two issues with respect to capacity at play in these decisions. One is whether the presumption of capacity as defined in Schedule 4 of the Act is rebutted, and the other is the allegation that the Deed of Transfer of land and creation of the Discretionary Trust were undertaken as a result of undue influence exerted on RST by KM, because of her dependence upon him and isolation from all others.
Capacity for the gift of real property and creation of Deeds
Dr Wong’s report dated 16 July 2019 concludes that RST retained capacity to make decisions, as she understood the nature and effect of decisions for financial and personal and health matters. Dr Carroll states that on 26 October 2022 RST had lost capacity for complex financial decisions and that the dementia commenced in 2021. Dr Carroll’s report does not directly address the complex changes in her financial circumstances that RST engaged in prior to this time.
The relevant documents were executed by RST as follows. On the 6 December 2019, RST executed a Deed and Transfer of two lots of land to her son KM. On 19 March 2020, RST became Trustee of the RST Family Trust. On 4 May 2022, KM was appointed Trustee of the RST Family Trust pursuant to a Deed of Appointment and Retirement on the retirement of RST.
Dr Wong and Dr Carroll’s reports should be considered along with the other information concerning the capacity of RST to effect these transactions subsequent to Dr Wong’s report, but within a brief time period. Dr Wong does not adequately confirm RST’s capacity for the gift of the rural property for no monetary consideration or the creation of the Deed of a Discretionary Trust which gave rise to an entitlement by KM to execute the Deed of retirement of the trustee with the legal and financial consequences which flowed from t6he Deed of Trust.
Dr Wong based her medical opinion on what she was told by RST in a single consultation. RST stated the reason for the assessment was that one son felt that ‘she was not competent to run her life.’ VA asserts that there are factual inaccuracies of some statements made by RST to Dr Wong concerning her qualifications, employment history and the length of her late husband’s illness, as well as the date of her appointment of PY as attorney. The appointment of the new attorney PY predated the death of her husband and was not subsequent to it.
Dr Wong’s cognitive assessments (Addenbrooke’s) show mild cognitive impairment. Dr Wong’s opinion states that she believed that the RST was able to demonstrate an understanding of what real property she owned on the 16 July 2019. RST reported to Dr Wong that she lives in her home on one of the four blocks on the farm with KM. RST did not indicate any intention to dispose of that property in the course of the consultation. Dr Wong was concerned with the future financial plans of RST but this aspect, i.e. the divestment of her real property and cash assets, is not dealt with in the report. There are several possible conclusions. One is that RST did not know about the proposed transfer when she discussed her future financial arrangements with Dr Wong or that the information and its implications were not appreciated by RST who did not raise it in the consultation.
In respect of RST’s understanding of her financial affairs, Dr Wong concluded that RST describes the steps she would work through, including meeting with the bank and reviewing statements. In particular, she demonstrated to Dr Wong’s satisfaction, an ability to budget and plan for the future. But her future was quite different from that described to Dr Wong. It was a future where she was effectively homeless and fully dependant on KM.
RST told Dr Wong that PY, her nephew, was the executor of her new will. Dr Wong does not address the making of a new will. Arguably, it is an important consideration, which Dr Wong with her significant geriatric experience might have explored appropriately with RST. RST’s capacity to manage financial decisions arguably should include whether she had the necessary testamentary capacity to make a new will. This is particularly the case when Dr Wong was told by RST that one son queried her capacity, and this was the reason RST believed she was consulting Dr Wong.
Dr Wong’s report is also silent on the proposal to dispose of RST’s property on the basis where RST retained both a right to reside and a life interest in the property.
In December 2019, within twelve months of her husband’s death, whilst bereaved, RST had entered into this transfer of her home, valued at $1.4 million dollars, in exchange for an ill-defined right of residence and a life interest. The costs of these legal transactions were borne exclusively by her. These interests are complex legal rights with differing consequences. It is unclear how RST might be assisted to enforce her entitlements without any funds to do so. There is no evidence as to RST’s understanding of this future arrangement.
At the date of the hearing the evidence given in cross examination was that no funds had been received by the RST in respect of the life interest in contravention of the Deed. Dr Wong’s assessment does not address the issue of RST’s capacity to engage in these particular transactions or to independently enforce any legal right or claim. The consequences of these choices are not foreshadowed or discussed in Dr Wong’s report, nor is any evidence of RST’s reasoning in this regard provided in the material.
Dr Wong’s report states that RST could plan for the future. The report does not address how RST would plan for the future and what that might mean for her in her particular circumstances. The subsequent transfer of real property and possible substantial cash reserves (as these are not disclosed) calls into question the extent to which RST comprehended what she was about to do and how that would impact future care needs and choices.
The Tribunal concludes that there is no medical evidence to support a finding of capacity for decisions of such dramatic import upon the finances and well-being of RST.
The evidence is that one month following the creation of the discretionary trust, RST suffered a stroke. In the period leading up to this event, it is the case that RST was quite unwell. Ms Briese’s letter dated 7 July 2020 states that RST:
…was very ill during her hospitalisations and her cognitive capacities were impaired...and RST is regularly obtaining updated assessments of her capacity as she does any significant dealings with her property.[25]
[25]Letter of K Briese to Whitsunday Law dated 7 July 2020, p 2.
At the date of this letter, RST had divested herself of her assets, to the knowledge of Ms Briese who settled the Trust and transferred the land. No medical reports for the period 6 December 2019 to 19 March 2020 exist.
Undue influence
Undue influence of RST is alleged against KM. The doctrine of undue influence is explained in the statements of Dixon, J in Johnson v Buttress.[26] His honour describes the circumstances giving rise to the presumption as:
[Applying] whenever one party occupies or assumes towards another of a position naturally involving an ascendancy or influence over that other or a dependence or trust on his part.
[26][1936] HCA 41.
KM must show that he took no advantage of the RST when she made the gift to him or when she executed the Deed of a Family Trust. In Baker & Ors v Afoo & Ors[27] His Honour comments that:
the question whether the presumption is rebutted is one of fact, based on the circumstances of the case at hand.
[27][2014] QSC 46 [96] ('Baker’).
KM, though not the attorney for RST, was in a position of special influence with RST as she was totally dependent on him for all cares and aspects of her life. She no longer drove, was described as being bed-bound, and had numerous distressing and physically debilitating symptoms of her illnesses. RST was not able to feed herself. When not cared for at home, she was frequently hospitalised or on respite. She received level four care from professional carers at home. Dr Thambayrajah reported that KM and his wife sought additional funding for her care due to the carer stress which the doctor reported as being extreme. It is a reasonable conclusion that circumstances were tense.
Provided she has the requisite capacity, RST is entitled to make decisions with which others may disagree. This right is preserved in the Act. The Tribunal can only infer her motivation for making the changes to her asset structure by way of gift and alienation of other assets into the Trust structure. She does not share any of her thoughts on this subject with Dr Wong or Dr Carroll. There is no evidence of what legal and financial advice she was given. On the face of it, the measures were designed to prevent any challenge to her will upon her death. Her motivation, however, does not mean she was not unduly influenced by KM.
The decision in BSJ[28] citing the decision in Baker[29] is a case on point in this respect. As the member reflects in BSJ:
BSJ’s motivation does not minimise his age, infirmity and dependence on ML. Establishing a motivation for the transfer does not show independence and a footing of equality.[30]
[28][2022] QCAT 51, [153] (‘BSJ’).
[29]Baker [96].
[30]BSJ [97].
The Tribunal finds that RST’s dependence on KM was complete and intensified by her relative isolation from other family. RST was frequently highly distressed by the conflictual family interactions. CR reports this opinion. The conflict was amplified by her isolation from her sons and their families apart from KM. The Tribunal accepts that this was the result of a deliberate course of action by KM.
The correspondence and submissions throughout the case show that the narrative of disharmony and confrontation between the brothers are repeated endlessly as being the view of the adult. There is scant evidence that this was how she truly felt. QZ indicated that his mother had the symptoms of a dementia illness including frustration, aggression and anger if challenged. These are likely behaviours for a person with complex physical impairments and cognitive decline as reported in the tests undertaken by Dr Wong and the later medical reports by Dr Zhu and Dr Thambyrajah.
The letter from CR is an example of how the narrative of the misconduct of VA, QZ and MT has been promulgated to RST. In her letter CR says ‘she has been made aware.’ CR does not describe any conversations with VA, QZ or MT, but rather repeats information given to her by KM concerning VA and his conduct.[31]
[31]Letter of CR dated 6 August 2022.
KM was also the conduit between RST and PY. PY was unable or unwilling to visit his aunt though he states he was aware of the decisions she took regarding her property. He knew of the cash inheritance in March 2019.
KM must establish that the transfers of real-estate and funds into the Trust were free and voluntary, and not the result of an absence of capacity or the result of undue influence upon RST by KM. At the time of the execution of Deed and Trust, KM asserts that RST had capacity for the financial and personal decisions she made.
RST was vulnerable and dependant on KM and his wife for physical and emotional support. She was within the first year of the loss of her husband. KM took advantage of this, evidenced by the structured approach to the removal of all assets from RST for KM’s personal advantage. The Tribunal finds that RST was not capable of instructing the sequence and timing of the actions of transferring real property to KM’s name from where he transferred it to the name of himself and his wife as joint tenants. Further it is also implausible that RST envisaged the eventual control of her funds to be at the discretion of KM and further trustees under the discretionary trust thus depriving her of choice and control. The notion that she understood and instructed the transfer of assets, and accepted the right to reside or the life interest in return, is implausible based upon the medical evidence and all other circumstances including the special relationship of complete dependence between her and KM.
KM’s actions were kept secret. The existence of the discretionary Trust was only disclosed in November 2022 in the Financial Management plan filed in these proceedings. Only when compelled did KM disclose the full picture of his mother’s affairs. Secrecy is a factor which ensures the presumption is unable to be rebutted by him. The isolation of the adult and absence of any evidence of independent advice are also factors. RST did not appear to have independent advice or impartial support. She lacked capacity to understand the ultimate outcome of the legal relationships she entered into. RST did not have support from her attorney PY who failed to act until the transactions were completed. KM has failed to rebut the presumption of undue influence.
Discussion of inter-vivos gift
RST divested herself of her valuable property and residence by way of an inter-vivos gift to KM by Deed dated 19 December 2019.
It is contended that the standard of capacity required to make an inter-vivos gift of property is that which is required for the making of a will.[32] Banks v Goodfellow [33] is regarded as the authority for the test for testamentary capacity. This test is considered to be relevant to the question of capacity where an adult makes an inter-vivos gift of property. Testamentary capacity is generally considered to have the following requirements:
(a)Understanding the nature of making a will and its effects.
(b)Understanding the extent of the property of which they are disposing.
(c)Being able to comprehend and appreciate the claims to which they ought to give effect.
(d)Having no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
[32]BSJ.
[33](1870) LR QB 549.
The Tribunal accepts this reasoning. There is no evidence that in the relevant period, that the medical reports address this aspect of the financial decisions taken by RST in gifting real estate and Trust funds to KM’s eventual sole control. This occurred within five months of Dr Wong’s assessment, which with respect does not contemplate the disposal of almost her entire estate. If the evidence of her son, QZ, and of VA is accepted, RST continued to believe that her property remained hers. So that if she did not believe that the property had been disposed of, then she could not be said to satisfy the test of testamentary capacity of ‘understanding the extent of the property of which she was disposing.’
The material indicates general family disharmony and protracted conflict but no stated intention by RST that she intended to benefit KM exclusively and place the power of the Trustee into the hands of KM’s wife and subsequently his stepdaughter.
There is no evidence that RST understood the consequences of the transfer of her home and land or that she understood that she was meeting the total cost of this transaction. The transfer of funds to a discretionary trust had the effect of stripping her of all assets such that she was fully dependent upon the terms of the Deed and KM as he stated unequivocally in the financial management plan.[34]
[34]Financial Management plan dated 3 November 2022.
Ms Briese prepared the documentation related to these transfers of interests. Ms Briese responded to the Tribunal’s request for Inquiry feedback comments. Ms Briese reflects on one aspect of the outcome of the transactions when she states that RST’s future accommodation decisions will need to be made by RST. This anticipates the possibility of RST making such decisions and having a capacity to finance such decisions. But RST no longer had financial capacity to make any accommodation decisions as she had divested herself of her property.[35] The fact that RST no longer had options regarding future accommodations decisions was arguably known to Ms Briese at the date of Ms Briese’s comment.
[35]Feedback sheet of K Briese dated 8 August 2022, p 3.
There is no evidence of any long-held intention that KM would receive the benefits he received during RST’s lifetime.[36] There is no evaluation by RST which would evidence any other claims upon her estate by others including her sons. There are clearly claims of this nature on the undisputed evidence of family which ought reasonably to have formed part of her consideration to exclusively benefit KM, his wife, and her family.
[36]BSJ [2].
The Tribunal takes the view that RST did not have the requisite capacity to gift either the real estate to KM or to settle funds in a discretionary trust created by her. Both actions were taken in secret. The medical evidence regarding capacity does not support a finding of capacity in respect of the magnitude of the gift or the financial significance of her divestment of the majority of her assets; particularly as she had made a will in February 2019. Whether she had testamentary capacity and was free of pressure (which would include the imminent passing of her husband), is contentious. These factors go to a concern as to whether she had testamentary capacity and made decisions about her estate on a free and voluntary basis.
The decision in BSJ is relevant in this respect.[37] In that case the analysis of similar facts concludes that in applying the test of testamentary capacity to an inter-vivos gift that the adult had not received adequate advice to enable them to consider their future needs for care and maintenance as follows:
(a)“A person in the plaintiff’s position at that time should have been asked what was the extent of her Property and the question of her future care and maintenance should have been discussed and the adviser should have pointed out to her the possible disadvantages of divesting herself of her major assets and relying completely on the defendant.”[38]
(b)Further, that the advice to the adult was deficient because of the established understanding of extensive case law involving elderly people giving away their property to a member of the family, expecting to continue to have a home and to be cared for, only to find that circumstances change, and they no longer have a home of their own, or any significant assets to deal with the setback.
[37]BSJ.
[38]Michaletos v Stivactas [1992] ANZ Conv 90.
There is no evidence of any independent written advice received by RST in regard to the two transactions. In RST’s circumstances, RST has not appeared to demonstrate (like BSJ) an ability to evaluate and discriminate between the respective strengths of the claims of her children to her estate.
In BSJ,[39] the Tribunal found in the terms expressed in Crago v McIntyre[40] that by making the gift to ML, the adult has failed to do justice, not only to himself, but also to those who may become dependent upon him, or to whom he might owe or acquire a moral duty to provide, and further found that the adult did not understand the effect of his decision to transfer the Property to ML as a gift during his lifetime.
[39]BSJ [210].
[40][1976] 1 NSWLR 729, p 739.
The circumstances in BSJ are similar to those in RST, in that actions were taken in secrecy, there was no long-standing intention to gift property in her lifetime and there is an absence of independent advice or consideration of claims upon her as testator. KM was in a special position of influence, though not the attorney. RST was completely controlled by him and he has not discharged the presumption of undue influence arising from these circumstances.
There are multiple factors relevant to the question of RST’s capacity at the time she took the new legal and financial decisions with significant and far-reaching consequences which the Tribunal has addressed in the fore-going reasons.
PY failed to visit his aunt or to take appropriate steps regarding his appointment as attorney. He had a duty to RST which he avoided by maintaining the position that RST had capacity for her decisions.[41] He appears to be unaware of his aunt’s precarious health or to give any weight to the effects on her capacity of her advancing age and the intense family estrangement. The Tribunal gives minimal weight to his views finding that he ignored the significant financial transactions of RST preferring to rely upon his conversations with the frail and bereaved person and the information supplied by KM.
[41]Powers of Attorney Act 1998 (Qld), s 33.
Enduring Power of Attorney
RST made an Enduring Power of Attorney appointing PY, her nephew, and CR, her long-time friend. RST had appointed PY and CR jointly as her attorneys for financial and personal/health matters on 11 January 2019 with their power to be exercised severally and to commence immediately.[42] PY accepted his appointment on 22 January 2019.
[42]Enduring Power of Attorney dated 11 January 2019.
PY made determinations of his aunt’s capacity based upon his own understanding of this factor.
On 12 June 2021, PY stated his intention not to assume the role of attorney or to take ‘sides.’
On 6 August 2021, and again on the 10 August 2021, PY states he asked KM ‘to keep him informed’ but that he did not wish to assume the role.
PY’s action or inaction was informed by discussions with KM and VA. There is extensive correspondence by email between PY and RST’s son, VA. PY makes reference to his views of that correspondence in his feedback form as follows:
RST’s financial assets are being continually eroded by legal challenges against her by her sons. This continued harassment is taking its toll on her health and bank accounts that were intended to be for her lifestyle in her old age. Even after arbitration in RST’s favour her three sons have continued to not abide by any of the signed papers and continue to cause RST grief and stress on an almost daily basis. An appointed administrator may have the legal right to enforce decisions in regard to financial matters for RST such as the day to day running of her property. Something that I as her EPOA have not been allowed to achieve by the above three sons.[43]
[43]Inquiry Feedback Form of Doc H dated 11 August 2022, 19.003.
In his affidavit, PY states that he did not begin acting as RST’s attorney until 23 September 2021, following notice from Dr Carroll that RST no longer had capacity with regard to her health or finances.[44] He states in his affidavit that he instructed Briese Lawyers to advise Whitsunday Law that RST had lost capacity. He stated that:
…part of the purpose of this letter was to formally close the window for mediation or negotiation of outstanding issues.[45] He goes on to state that ‘even before RST was deemed incapable, I had been fully appraised of what monies were being expended to modify the home etc to make it wheelchair accessible and better suited to my aunt’s increasing needs.
[44]Affidavit of PY dated 18 November 2022, para 18.
[45] Ibid, para 19.
PY attributes any cognitive decline in RST as being attributable to the continued harassment and threats made by RST’s sons apart from KM. He states that he holds no reservations whatsoever in relation to RST’s capacity prior to the “extension stroke” in 2021. He does concede that there have been windows of time from 2020 to September 2021 during which RST lacked capacity.
PY makes no reference to the transfer of the real property to KM or the management of her inheritance when he describes the financial affairs of his aunt and the probable impact of this upon her. He does not make any comment of his discussions, if any, with KM of the impact of this upon her finances, but continues to praise KM unequivocally.
Subsequent to the transfer of her home and other blocks of land to KM, PY makes no mention of any inquiries he undertook on RST’s behalf with respect to this issue or to the implications of the creation of the discretionary trust by KM. The Tribunal has not been made aware of any expertise PY has for his claim that KM ‘is a highly valuable asset in the day to day running of the farm.’[46] This aspect is disputed by the Applicant, VA, and a contrary view is put by him.
[46]Ibid, para 30.
The Tribunal is satisfied that PY has taken a partisan approach to the circumstances of this case and his appointment as attorney, failing to prioritise the principal’s interests. In this respect I refer to the feedback comments of the principal of Briese Lawyers, whom he instructed to write to Whitsunday Law in October 2021.
Briese Lawyers remarked at paragraph 5 of the Inquiry Feedback Form dated 8 August 2022, in response to the question ‘what decisions about financial matters need to be made by an administrator appointed by the Tribunal?’:
At this stage -nil. Should the adult require full time care, then rural properties registered in her name may need to be sold to fund accommodation bonds and meet her care needs.[47]
[47]Inquiry Feedback Form of K Briese dated 8 August 2022.
PY is silent on the implications of the distribution of RST’s available cash reserves to an inter-vivos discretionary trust created by KM.
The Attorney PY seeks to resign as attorney under the Enduring Power of Attorney dated 11 January 2019 pursuant to the Powers of Attorney Act 1998 (Qld).[48] Leave of the Tribunal is required for this resignation.
[48]Powers of Attorney Act 1998 (Qld), s 82.
CR purported to resign in November 2019, one month prior to the transfer of the property to KM. She sought to resign indicating her intention to do so by her written correspondence in these proceedings. RST did not indicate to CR an intention to transfer significant assets to KM and so it is reasonable to conclude that RST may have had capacity to understand CR’s resignation, the evidence being that her capacity fluctuated. The level of capacity required to understand the withdrawal of CR is not of the same complexity as a decision to transfer significant assets. In any event, arguably RST understood PY was still her attorney.
PY reviewed the financial accounts of RST but failed to provide them to this Tribunal together with his sworn evidence in November 2022. This absence of relevant information has prolonged and exacerbated a difficult set of circumstances for the adult and for the family.
PY states that he knew of the decision to transfer ‘some property to KM and his wife.’ He states that ‘I have no doubt that this was made when she had full capacity.’[49] There is no evidence to support his claim at this time apart from information from KM, who had a direct financial interest, and PY’s own opinion. PY comments about the fact of RST’s fluctuating capacity at times when she is in hospital or unwell.
[49]Affidavit of PY dated 18 November 2022, [13].
Relevant to the issue of PY’s role is Ms Briese’s remark that she spent time with RST and commented that RST had periods when she was ‘heightened.’[50]
[50]Inquiry Feedback Form of K Briese dated 8 August 2022.
The balance of PY’s affidavit is directed to towards negative commentary concerning VA. In particular, whilst admitting he knew of the transfer and making a claim about the finances of RST, he does not attach any of the financial records to which he was privy.
PY specifically refers to his aunt RST requesting that he not disclose bank account details and health records; but this undertaking would not preclude a full and frank disclosure to this Tribunal in November 2022, thereby saving costs for RST.[51] I find that PY has failed to prioritise the interests of RST, relying upon others and failing to make a genuine attempt to resolve issues. The attachments to his affidavit omit vital information and focus instead on a version of the family conflict.[52] The Powers of Attorney Act1998 (Qld) expressly permits the disclosure of what would be considered the confidential information of the principal.[53]
[51]Affidavit of PY dated 18 November 2022, [22].
[52]Affidavit of PY dated 18 November 2022, par 21, para 9.
[53]Powers of Attorney Act 1998 (Qld), s 74(2)(b).
It is clear to the Tribunal that PY failed to make appropriate inquiries of KM concerning his financial interest in the transactions RST entered into with him. There is no evidence that PY understood them or the consequences. It is true that RST appointed, and he accepted his immediate appointment by RST but he took no steps to satisfy himself of the capacity for a vulnerable and physically elderly lady at the centre of an entrenched family conflict. For these reasons the Tribunal rejects PY’s submissions that he was even-handed between the brothers or that he had satisfied himself appropriately as to his principal’s capacity at relevant times.[54] The Tribunal finds that PY failed to act with reasonable diligence.[55]
[54] Ibid, s 56.
[55]Ibid, s 66.
This Tribunal has power to give leave to the attorney to resign when a principal has impaired capacity.[56]
[56]Ibid, s 56.
The Tribunal gives leave to PY to resign, notwithstanding that he remains accountable for any actions he has taken as attorney.[57] The Tribunal notes that an attorney is relieved of personal liability in some circumstances where they have acted reasonably.[58]
[57]Ibid, s 106.
[58]Ibid, s 105.
Administration
The Enduring Power of Attorney is no longer operative due to resignation of both attorneys. If the Tribunal considers that RST requires assistance for financial decisions because need is established, then it is necessary to consider the appointment of an administrator.
An administrator may only be appointed if the grounds under s 12 of the Guardianship and Administration Act 2000 (Qld) are established to the Tribunal’s satisfaction:
the adult has impaired capacity for the matter; and
there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and,
without an appointment—
the adult’s needs will not be adequately met; or
the adult’s interests will not be adequately protected.
In this case the first two limbs for the test of capacity are not made out and this has been established by the foregoing discussion. Therefore, presumption of capacity is rebutted.[59] I am satisfied based upon the evidence discussed that presently RST has impaired decision-making capacity for financial matters.
[59]The Act. sch 4.
The Tribunal, being satisfied that the presumption of capacity is rebutted and that there is a need for an appointment of an administrator/s due to the complexity of her affairs, must consider whether the adult’s needs and interests are adequately met by informal arrangements.
Decisions have been taken by the adult in secrecy which have severely compromised her future financial security. The appointed attorney took no steps to assist the adult, despite his claims of regular visits and discussions with the adult. He was aware of the fact of the transfer of valuable land and funds to KM’s control.
In the absence of an appointed attorney, there will be a need for an administrator to be appointed.
The adult’s affairs are complex and require investigation by an impartial appointed administrator. KM has withdrawn his application to be appointed as administrator and the Applicant VA is in favour of the appointment to an independent administrator, being the Public Trustee of Queensland.
The Applicant, KM, has sought leave to withdraw his application to be appointed administrator for RST. The Tribunal gives leave for the withdrawal of his application, but this does not preclude the Tribunal from taking into account KM’s actions, as they are relevant to the remaining applications, and KM’s conduct in regard to RST’s financial and personal affairs. KM has a clear conflict in terms of section 15 of the Act. If he had not withdrawn, his application would have failed for this reason.
KM consents to the appointment of the Public Trustee of Queensland as administrator for RST. The Tribunal gives minimal weight to KM’s views in light of the finding that his conduct amounts to undue influence by him upon RST. VA’s application is on foot.
The Tribunal finds that the Public Trustee meets the appropriateness consideration of section 15 of the Act. They are available, competent, have no conflict, and are able to act impartially in the interest of the adult.
The Public Trustee is the most appropriate appointee The Tribunal finds that the adult’s affairs are complex and that the adult’s assets and control of them has been removed without her informed consent. The Tribunal finds that she lacked understanding of the consequences of the staged removal of her assets and control of them and that these actions require further investigation. The Tribunal finds that the appointed attorney PY was requested to make the investigation and failed to do so despite an awareness of the transactions. In these circumstances the Tribunal considers an independent appointee is required.
The Tribunal concludes that the adult’s financial affairs require appropriate administration by an independent appointee such as the Public Trustee of Queensland. There is no more suitable appointee and informal arrangements are not sufficient to protect the adult’s interests.
Does RST require a Guardian
There is no current attorney for personal and health care decisions in place due to the resignation of PY and CR.
The Tribunal must consider if there is a need for the formal appointment of a guardian. In usual circumstances the decisions should be managed informally if that is appropriate, or by a statutory health attorney for health care decisions, if there is a need and no suitable person is appropriate in terms of section 15 of the Act.
KM seeks appointment as guardian. He is opposed by VA.
It is accepted that RST has impaired capacity for personal decisions and now resides in a residential aged care facility. RST is aged 84 and is highly vulnerable, having declining cognition and multiple physical diagnosis impacting her well-being. After numerous falls, hospitalisations, and periods of respite she has been placed in permanent residential care. She has historically been heavily influenced by KM and displays significant antagonism to her other children.
She has a family of four sons and their families, three of whom have been effectively excluded by KM from meaningful contact with her. The opportunity for this time is lost forever. She is at the centre of protracted family conflict with opposing views of her past and present relationships with her adult children.
KM seeks appointment as guardian. However, he has stated he is unable to communicate with his brothers. The accepted evidence is that over a long period of time he has isolated his mother from his brothers and their families, restricting phone access and supervising visits from them or excluding them from the property now transferred to him. There is no evidence that KM has consulted with family and the isolation of RST from extended family is of a significant duration. VA states that this has continued for a period of seven years.
Evidence exists from RST’s other sons that their relationship with RST had deteriorated. Evidence indicated that the visits to RST had been restricted and supervised. Most notably that the photographs of family, apart from KM and his family had been completely removed from RST’s home. The Tribunal finds this particular action to be evidence showing the lack of appropriateness of KM to be guardian. It undermines his assertions of the love and care he provided to his mother and is evidence of extreme and cruel psychological manipulation of a frail and elderly woman. Depriving an extremely ill woman of these comforts is in contravention of her human rights and the general principles.
The Tribunal accepts that contact and visits with family not approved by KM have been restricted in contravention of general principle three and four.[60] RST is not seeing her grandchildren or her sons, apart from relatives of KM.
[60]Ibid, s 11B.
This Tribunal accepts the evidence of VA and his brothers that KM isolated RST from family members.
Any option for a change of accommodation has been removed by the making of the gift to KM and transfer of funds to the discretionary trust as there are no funds available to allow her choice and control. KM has demonstrated a propensity for self-interest over the adult’s financial independence and wellbeing.
No accommodation decision is possible as a result of the financial transactions RST has engaged in, with KM as the beneficiary. KM’s actions have been to conduct these financial transactions in secret. PY does not appear to have raised an objection to this asserting that RST understood what she was doing. For this reason, the submissions of both PY and KM as to RST’s views of her children (apart from KM) are given limited weight by the Tribunal.
There is controversy regarding RST’s accommodations placement and in the circumstance that there is no one appropriate to be appointed who fulfills the provisions of section 15 of the Act, the Public Guardian may be appointed as a last resort.[61]
[61]Ibid, s 15.
Until financial decisions taken by RST can be investigated, there are limitations on choices and options available to her for a choice of facility. Her family live at some distance and have differing views as to her accommodation decision. Therefore, an accommodation decision is required.
It is clear from the material that the family dynamic is not harmonious and that the sons would have difficulty communicating with one another in view of the decisions taken since the death of their father in 2019. Prior to their father’s death, it alleged that the family relationships were harmonious. Relationships have been destroyed by these events.
VA’s position is weakened by the tenor and content of the letter he wrote to his mother following the death of his father. The letter offends general principles, is confrontational, aggressive, and does not prioritise the interests of the adult. VA would not be suitable for appointment as guardian due to this letter’s contents and because of the inability of the brothers to communicate with each other. VA does not seek appointment as guardian but seeks an independent appointee, the Public Guardian.
For these reasons above the Tribunal is of the view that KM does not meet the appropriateness considerations of section 15 of the Act. He has a clear conflict of interest and demonstrates self-interest instead of prioritising the interests of his mother.
Linked to decisions about accommodation are decisions regarding the adult’s health care decisions. The need for appointment of a guardian for health care derives from the fact that the adult has complex health issues about which numerous children have differing views. The statutory framework for the appointment of a statutory health attorney would potentially leave KM in this role.[62] The Tribunal finds that this may necessarily exclude some family from a role in their mother’s decision-making. An impartial entity is required to assist the adult to manage this dynamic.
[62]Powers of Attorney Act1998 (Qld), s 63.
For this reason, the Tribunal considers that an independent appointment of the Public Guardian is appropriate. They meet the appropriateness considerations of section 15 of the Act, being independent, and are focussed on the adult. The Public Guardian is aware of the need to exercise appropriate decision making (if required) in circumstances such as these where the adult exhibits behaviours consistent with a diagnosis of dementia, so that her verbal comments may not be entirely indicative of her views.
Under the Human Rights Act 2019 (Qld) (‘the HRA’), the Tribunal must:
interpret statutory provisions to the extent possible, consistent with their purpose, in a way that is compatible with human rights;
to the extent that the Tribunal is performing a function of a public nature and acting in an administrative capacity, act and make decisions in a way compatible with human rights, and must in making a decision, give proper consideration to a human right relevant to the decision.[63]
[63]The HRA, s 58.
In making this decision I have considered the terms of the HRA, in particular sections 31, 24, 48 and 58, which require the Tribunal turn its mind to specific rights impacted by the making of Orders. Also relevant is the requirement, when acting as a public entity, to act in a way compatible with human rights. When the Tribunal makes a decision which may not be in accordance with the HRA it must demonstrate that the decision is reasonable and justifiable in the circumstances and is the least restrictive decision which could be made.
Under section 31 of the HRA, the Tribunal must accord the Adult a fair hearing. RST was not present for the hearing.
Ms Briese states that RST could become heightened, but that RST ‘could participate (in the hearing) on some days depending on how she was.’[64] The Tribunal does not share Ms Briese’s view that RST could attend and participate in the hearing in a way that allowed her to express her views in a free and voluntary manner. This conclusion is based upon the discussion of the family conflict and the findings of the Tribunal regarding this factor.
[64]Letter of Ms Briese dated 11 August 2022.
Dr Carroll expressed the view that RST could participate in the hearing by saying ‘who she would like as decision-maker.’ RST has been the subject of undue influence and she now has impaired capacity. The Tribunal would have concerns about the reliability of any comment she might make in this regard were she to have attended the hearing. The Tribunal is satisfied that RST would not be able to freely and voluntarily participate in a discussion about her decisions-making despite Dr Carroll’s view.[65]
[65]Report of Dr Carroll dated 26 October 2022.
The Tribunal is of the view that RST had periods of lucidity, and at other times, as she described herself to Dr Thambyrajah on 15 February 2021: ‘on her bad days, she gets cloudy in the head and confused regarding the situation.’[66]
[66]Medical report of Dr Thambyrajah.
The Tribunal has expressed a conclusion that RST’s periods of lucidity do not extend to consent to the complex financial transactions she has undertaken and are heavily influenced by the actions of others with a direct financial interest in outcomes.
A Certificate of Advice of the hearing was provided to the Tribunal dated 15 February 2023. It stated that the adult said they will not be attending the hearing. The certificate was certified by a staff member of the facility though their identity is not indicated on the certificate.
The Tribunal is satisfied that RST had received notice of the hearing, but that at the date of the hearing she had impaired capacity such that she would not be able to participate without distress to her. The Tribunal has determined on the basis of the information as to the adult’s current cognitive condition and the relationship between her and her sons that her absence from the hearing has not disadvantaged her interests and that all aspects and relevant factors have been considered in some detail.
The Tribunal is therefore satisfied that the HRA has been complied with in the conduct of the hearing and the final determination of the applications.
0
5
4