SJT

Case [2023] QCAT 454

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

SJT [2023] QCAT 454

PARTIES:

In an application about matters concerning SJT

APPLICATION NO/S:

GAA 9804-23  

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

24 November 2023

HEARING DATE:

On the papers

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1. Pursuant to s138 of the Guardianship and Administration Act 2000 (Qld), the Tribunal gives the following advice:

(a)     The PTQ is not entitled to reimbursement for any of the legal expenses he has incurred in the conduct of his administration of SJT’s financial affairs.

(b)     The PTQ is not entitled to reimbursement of the cost of a building and pest inspection report he obtained relative to SJT’s house.

(c)     The PTQ is entitled to reimbursement of expenses he incurred on SJT’s behalf for a property valuation ($484), smoke alarm testing and installation ($594), and vehicle insurance ($1,094.74).

(d)     JST, as SJT’s administrator, should promptly pay from SJT’s funds the sum of $2,172.74 to the PTQ in reimbursement of those expenses.

(e)     There is no identified basis upon which the PTQ may lodge a caveat on SJT’s property as a means of security pending payment of this reimbursement.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT - GENERALLY

Where the Public Trustee of Queensland was appointed as administrator to an adult – where the adult was substantially in arrears in payment to his local council of his rates for the house property in which he lived – where the council notified the Public Trustee of its intention to sell the house to recoup the rates – where the Public Trustee decided it would be better for him to sell the house rather than the local council – where the Public Trustee decided that in order to sell the house the adult should immediately vacate the house – where the Public Trustee engaged the services of the Official Solicitor to the Public Trustee in terms of those  decisions – where the Public Trustee also incurred expenses associated with the decision to sell, as well as expenses for repairs to the house and insurance on the adult’s car – where the appointment of the administrator was later changed from the Public Trustee to the adult’s son – where the Public Trustee seeks relief in this Tribunal that he be entitled to reimbursement from the adult as to all expenses incurred – where the Public Trustee seeks an order of this Tribunal that the current administrator pay to him the amount of those expenses from the assets of the adult – where the Public Trustee seeks permission of this Tribunal that he lodge a caveat over the adult’s property to secure his interest pending reimbursement of the expenses - where there are questions as to whether the Public Trustee applied the General Principles under the Guardianship and Administration Act 2000 (Qld) when making the decision to sell the house and in turn incurring…

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AGLC
SJT [2023] QCAT 454
Case
[2023] QCAT 454
Decision Date

CaseChat Overview and Summary

The case of SJT involved the Public Trustee of Queensland (PTQ) seeking reimbursement for expenses incurred while administering the financial affairs of an adult, SJT, who had impaired capacity. The PTQ had made decisions to sell SJT's house and other properties, which led to the accumulation of certain expenses. The PTQ sought reimbursement from SJT for these expenses, as well as permission to lodge a caveat over SJT's property to secure its interest pending reimbursement. The legal issues before the Court were whether the PTQ applied the General Principles under the Guardianship and Administration Act 2000 (Qld) when making the decision to sell SJT's house and incurring the expenses, and whether the PTQ was entitled to reimbursement and the lodging of a caveat.

The Court held that the PTQ had not applied the General Principles when making decisions regarding the sale of SJT's properties. There was no evidence that the PTQ had analysed alternative courses of action, assessed their consequences for SJT, or sought SJT's views on the decisions. The Court also found that the PTQ had not considered the General Principles, such as CRG's right to participate in decisions affecting his life and the importance of preserving his right to make his own decisions. As a result, the Court concluded that the PTQ was not entitled to reimbursement for most of the expenses incurred, except for a property valuation, smoke alarm testing and installation, and vehicle insurance. The Court further held that there was no basis for the PTQ to lodge a caveat on SJT's property as a means of security pending reimbursement.

The Court ordered that the PTQ was not entitled to reimbursement for the majority of the expenses incurred in the administration of SJT's financial affairs, except for the specified expenses totalling $2,172.74. The Court also ordered that SJT's current administrator should promptly pay this amount to the PTQ from SJT's funds. The Court found that there was no basis for the PTQ to lodge a caveat on SJT's property as a means of security pending reimbursement.

Orders

Orders of the court

1. Pursuant to s138 of the Guardianship and Administration Act 2000 (Qld), the Tribunal gives the following advice:

(a) The PTQ is not entitled to reimbursement for any of the legal expenses he has incurred in the conduct of his administration of SJT’s financial affairs.

(b) The PTQ is not entitled to reimbursement of the cost of a building and pest inspection report he obtained relative to SJT’s house.

(c) The PTQ is entitled to reimbursement of expenses he incurred on SJT’s behalf for a property valuation ($484), smoke alarm testing and installation ($594), and vehicle insurance ($1,094.74).

(d) JST, as SJT’s administrator, should promptly pay from SJT’s funds the sum of $2,172.74 to the PTQ in reimbursement of those expenses.

(e) There is no identified basis upon which the PTQ may lodge a caveat on SJT’s property as a means of security pending payment of this reimbursement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In discussing the application of this Principle, Henry J expressed the following view:[27][43] Principle 9 requires that in performing the function or exercising the power the decision-maker must do so in a way that promotes and safeguards and is least restrictive of the adult’s rights, interests and opportunities. Given how significantly [the adult’s] cognitive capacity is impaired this principle does not relate in any practical sense to the process part of dealings with her prior to arriving at the decision. Rather, it relates to the content of the decision to be reached. In this context the best treatment of her rights and opportunities aligns with a decision which promotes, safeguards and is least restrictive of [the adult’s] interests. To have that quality the decision sought (ie. to authorise the transaction) should be in [the adult’s] interests and be more in her interests than the status quo or some other apparently available course. Putting it another way, the decision to authorise should be in her best interests.[27]Ibid,523. Emphasis added. His Honour then continued considering the question of what was, on the issues before the Court, in the best interests of the adult, expressing this view:[28][44] The decision whether to authorise the sale transaction is a decision about a financial matter with the consequence that consideration of what is in [the adult’s] best interests requires consideration of what is in her financial best interests.….[28]Ibid,524. Having considered the question of what was in the adult’s financial best interests, and determining that on the evidence before the Court the sale would be financially beneficial, his Honour then expressed this further view on the question of what was in the adult’s best interest:[29][64] Other than [the adult’s] financial interests the only other consideration with the potential to bear upon whether the proposed transaction is in [the adult’s] best interests is her emotional well-being, in that the maintenance of her connection to the property may provide some comfort to her. It is, however, an inescapably vague consideration because of Victoria’s significantly impaired cognition. To the extent it is relevant it can only be sensibly considered by reference to its effect in a theoretical moment of correct understanding. In that equation the level of emotional distress [the adult] may feel at no longer being the owner of her home is likely to be outweighed by the comfort she would draw from the knowledge that the sale will lift the ongoing managerial and financial burden of ownership of her home in a way which safely preserves her substantial asset pool, while at the same time preserving the state of her home and her possessions in it for her, for so long as she may be able to visit there.[29]Ibid,527. Emphasis added. With all that being said, I thus turn to the evidence that is before me. I considered it in terms of the extent to which I am able to ascertain it may properly be said the PTQ applied the General Principles. Following that discussion I discuss the relief the PTQ seeks and the extent to which I have determined he is entitled to it.

Ratio Decidendi

Legal Principle Established

In delivering the leading decision of the Court, Boddice JA expressed the following observations:[23][23]Ibid – paragraphs as noted. Footnotes omitted. Emphasis added. Both Bond JA and Callaghan J agreed in terms of both his Honour’s reasons and orders.[32] Section 33 of the Act provides that an administrator is authorised to do anything in relation to a financial matter that the adult could have done if the adult had capacity when the power was exercised, unless QCAT orders otherwise. [33] Relevantly, s 34 of the Act provides that an administrator must apply the General Principles. The General Principles are not fixed rules, but rather considerations which must genuinely be taken into account to the extent appropriate in the circumstances. [34] …[24][24]Herein his Honour extracted the General Principles as they were expressed in the Act at that time.[35] Section 35 of the Act provides that an administrator must exercise the power for an adult “honestly and with reasonable diligence to protect the adult’s interests”. [36] Correspondingly, s 51 of the Act imports the “prudent person investment rule”. That imports the duties at s 22 of the Trusts Act which require the Public Trustee to “…exercise the care, diligence and skill a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons…”. [37] The applicant submits that the Public Trustee’s decisions to sell the bush retreat and to rent out and subsequently sell the unit did not comply with the Act or its General Principles ……[39] At the initial hearing before QCAT and at the hearing before QCATA, the Public Trustee did not lead any direct evidence of its decision-making in 2004 to initially tenant the unit; in respect of the decision in 2005 to sell the bush retreat; and in respect of the decision to sell the unit in 2007. [40] There was evidence of a submission, made by the Public Trustee in 2011, in which it was recorded that on 5 February 2004 the Public Trustee met with CRG’s biological father and his wife; that the biological father had quit his job to look after CRG; that the biological father was requesting money but the Public Trustee had insufficient funds at that time; and that it was agreed with the biological father “that the unit … should be rented and that the [bush retreat] should be considered for sale”. The submission did not record any consideration of alternative options. [41] Consistent with its obligations as administrator to act with reasonable diligence to protect CRG’s interests under s 35 of the Act, to apply the General Principles, and to exercise the relevant care, diligence and skill a prudent person would exercise in managing the affairs of others under s 22 of the Trusts Act, the Public Trustee had an obligation to analyse and assess the courses of action which may be reasonably taken by a prudent person and to assess the financial consequences of those actions, when determining whether to tenant CRG’s unit in 2004; to sell the bush retreat in 2005; and to sell the unit in 2007. [42] Relevantly, one course of action would include retaining the unit, whilst disposing of the bush retreat, thereby leaving CRG with his own home in the future. Such a course of action would have particular regard to the consequences to CRG in not having available to him his own residence within which to reside, and the financial implications of the investment of the proceeds of those funds on the availability of any government entitlements. [43] There was simply no evidence before QCAT or QCATA as to any analysis or assessment of what were reasonable alternative courses of action, or as to their consequences for CRG, in respect of such decisions. Even the 2011 submission failed to outline any consideration of options, such as retaining the unit while selling the bush retreat to realise cash or as to the consequences of such steps to CRG and their financial implications in relation to the receipt of ongoing government benefits.[44] Further, in undertaking that analysis and assessment, the General Principles required the Public Trustee to recognise and take into account CRG’s right to participate, to the greatest extent practicable, in decisions affecting his life; the importance of preserving, to the greatest extent practicable, his right to make his own decisions; and, in exercising the principle of substituted judgment, to take into account what others considered would be CRG’s views and wishes, if it was reasonably practicable to work out CRG’s views and wishes from those persons. [45] There was no evidence that the Public Trustee sought CRG’s views or even attempted to do so, prior to making the decisions to rent to unit, sell the bush retreat and, ultimately, sell the unit.…[50] There was also no evidence that the Public Trustee had, in determining that the unit should be sold in 2007, sought the views of CRG’s support network, …, or other members of his family. [51] That being so, there was no evidential basis upon which QCATA could conclude that the Public Trustee had, in exercising the power to initially tenant the unit and to subsequently sell the bush retreat and the unit, complied with its obligation as administrator under the Act to apply General Principle 7.