TER - [2022] QCAT 334

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TER [2022] QCAT 334

PARTIES:

In applications about matters concerning TER

APPLICATION NO/S:

GAA13620-21, GAA1915-22, GAA2442-22, GAA8947-22, GAA9133-22, GAA9268-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

14 September 2022

HEARING DATE:

5 September 2022

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS:

1.     The administration order made by the Tribunal on 9 April 2021 is changed by removing AJT. as administrator and appointing RH and TT jointly and severally as administrators for TER for all financial matters.

2.     This appointment remains current until further order is reviewable and is to be reviewed in 5 years.

3.     The administrators are to provide an updated financial management plan to the Tribunal within 3 months.

4.     The Tribunal directs the administrators to provide accounts to the Tribunal two months prior to the anniversary of this appointment and annually thereafter.

5.     The application for the appointment of a Guardian by AT and RH is dismissed.

6.     Before 14 December 2022 the administrators must:

(a)     Record the appointment as administrators on any property registered in TER’s 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 TER’s property; and

(ii)      A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by TER.

7.    If the ownership of any property of TER changes in any way or TER acquires an interest in another property the administrators 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 TER’s Turner's interest in another property.

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult with impaired capacity has an administrator appointed for financial matters – where a review of that appointment sought – where concerns of noncompliance with duties of administrator – where administrator removed

Guardianship and Administration Act 2000 (Qld), s 11B, s 12, s 31, s 35, s 37, s 39, s 40

GVZ [2020] QCAT 213.

APPEARANCES & REPRESENTATION:

Adult:

TER

Applicant/s:

RH, TT, AJT,

CC, AT

REASONS FOR DECISION

Administration Review

The Tribunal had listed this mater as a periodic review of the appointment of an administrator for TER, following recognition of an interstate order of VCAT dated 29 October 2020, by QCAT order of 9 April 2021. That order appointed jointly AJT, TER’s wife of 70 years, RH, the adult’s daughter, TT, the adult’s son, as administrator for all financial matters.
During the course of the proceedings, applications issued from each of the appointees for changes to the administration appointment proposing changes to the existing administration arrangements. The adult’s son and daughter seeking removal of AJT, initially, and subsequently, AJT seeking sole appointment and removing TER’s children RH and TT. At hearing it was confirmed by all parties that the existing arrangements were not working, but there was no dispute amongst the parties that TER required a financial administrator.
It is important to note that TER executed an Enduring Power of Attorney of 23 March 2003,[1] appointing all three AJT, his wife, RH, and TT, jointly and severally as his attorney for personal and financial matters. The VCAT order of 20 October 2020 overtook the financial powers, but the personal powers remained on foot.[2] On application, QCAT recognised this administration order on 9 April 2021.[3]
[1]H6.
[2]H2.
[3]H3.
TER and AJT, now aged 91 years, and 90 years respectively, have moved to Queensland from Victoria after being admitted to a Victorian nursing home in 2020. At that time, the family home was sold to finance residential aged care fees, and proceeds were diverted to a Refundable Accommodation deposit. Residential care in Victoria much aggrieved AJT who has been married to TER for 70 years, and she expressed at hearing many times her love and devotion to him. The year 2020, AJT describes, was a difficult time to be in a nursing facility, with significant covid 19 restrictions on contact and high situational risks causing significant stress and separation. AJT, having had financial advice[4] determined to move to Queensland to a farm in which she and TER had an interest, to be cared for by their daughter AT who had qualifications and experience in aged care. The rural property had been owned by TER and AJT outright until they loaned a half share to AT and her then partner, to pay off over time.[5] This is a crucial background fact. TER and AJT remain living on this property and AJT indicates that this has generated a significant improvement in TER’s quality of life, given his access to space and animals on the rural property.[6]
[4]Email RD to RH 16 December 2020 at F1.
[5]Deed at F1.
[6]H29, Submission AJT 26 August 2022.
A dispute between AJT and the co-administrators RH and TT has arisen, particularly following the move to Queensland, with RH and TT expressing concern about AJT acting unilaterally in decision making, and not keeping the jointly appointed administrators informed, or consulting in decision making.[7] AJT indicates that she too believes that the appointment is unworkable with the co-administrators being in Victoria, and the adults bank account being frozen in the context of this dispute with the result that she has had to pay all of the adults personal living expenses since January 2021.
[7]Submission RH 24 August 2022 H29, and 26 August 2022, H33, and 24 February 2022, H6.
The Tribunal must conduct a review in accordance with s 31 of the Guardianship and Administration Act 2000 (Qld) 2000 (‘the Act’). This requires:
(1)The tribunal may conduct a review of an appointment of a guardian or administrator (an “appointee”) for an adult in the way it considers appropriate.
(2)At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
(3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
(a)      continue its order making the appointment; or
(b)      change its order making the appointment, including, for example, by—
(i)changing the terms of the appointment; or
(ii)removing an appointee; or
(iii)making a new appointment.
(4)However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers—
(a)      the appointee is no longer competent; or
(b)      another person is more appropriate for appointment.
(5)An appointee is no longer competent if, for example—
(a)      a relevant interest of the adult has not been, or is not being, adequately protected; or
(b)      the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
(c)      the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21 (1) ; or
(d)       the appointee has otherwise contravened this Act.
It is not disputed that TER, with advanced dementia, continues to need an administrator to manage his financial affairs. There is a presumption of capacity that applies to all adults, (General Principle 1 of the Act). The evidence before the Tribunal indicates that TER’s general practitioner, Dr DU, in an open letter of 19June 2020 stated that TER had impaired cognitive ability in relation to complex financial and legal decision-making and recommended enlivening the enduring Power of Attorney at that time. His report to VCAT dated 6 October 2020[8] indicated that TER was diagnosed by Geriatrician AM with dementia in 2013, and that this is a progressive condition. He expressed the view that he did not have the capacity to make decisions about his finances, but could do so with support, and he noted the expectation of further decline. VCAT found that he lacked capacity to make financial decisions. It is accepted by the parties that TER’s dementia has progressed. I am satisfied that TER continues to have impaired capacity for complex financial matters.
[8]M1.
The evidence before the Tribunal indicates that TER has no income but the loan repayments from TT amounting to $40 per fortnight.[9]
[9]Financial Management Plan filed AJT 2=30 August 2022, F4.
He has substantial savings in his sole account which reflect the return of the Refundable Accommodation Deposit obtained after leaving the Victorian nursing home. This were initially generated through the proceeds of the sale of the house. With these funds having been liquified, there is no eligibility for a Centrelink pension presently, given the assets test. Correspondence of financial advisors before the Tribunal indicates that this was a factor that AJT was aware of when deciding to move to Queensland to the family property to be cared for by AT. He is reliant on the funds of this account to provide for his living expenses given the pension eligibility issues. It may also be that past gifting behaviour within the previous 5 years may have impact on eligibility into the future.
AJT filed a spreadsheet of TER’s regular costs, which indicated expenses for pharmaceuticals, care provision outgoings on the property, podiatry, personal expenditure and medical care.[10] I find that there is clearly a need for decisions around effectively managing TER’s expenses and managing his assets. This is particularly important given TER’s negligible income, and reliance on his savings to fund his ongoing needs. I am satisfied that without that ongoing appointment of an administrator TER’s interests are adequately protected. The grounds for the appointment of an administrator continue to be made out.
[10]F3.
In dispute, however, is who is the appropriate administrator moving forward.
RH and TT argue that AJT has acted without consulting them in the joint VCAT appointment. They claim that there have been multiple requests for AJT to provide them with information but that she has refused. They express concern that AJT does not understand the obligations on an administrator, demonstrated by failing to consult and provide requested information.[11] They express concern about the prudence of AJT’s decisions noting that AJT made the decision to gift the (jointly owned) car to AT, and only reimbursed the adult when concerns were raised about TER’s interest in the vehicle. They argue that decisions about loan repayments of AT are not transparent, and they were unclear whether TER continues to receive an income from AT ‘s loan repayments. They expressed concern at AJT acting unilaterally in these decisions. These concerns raise the issues of AJT’s compliance with the obligations to act in terms of the order, which is a joint appointment.
[11]Submissions RH 26 August 2022 H32.
AJT indicates that the arrangements are unworkable because she cannot work with RH and TT, who are based in Victoria.[12] She said that she is has been managing TER’s finances for. 70 years, (a fact which is disputed by RH and TT, who indicate that daughter CG has been supporting both AJT and TER in their financial management over the previous 10 years.) AJT indicates that unworkability has been shown by the co-administrator’s refusing to unfreeze the account so that she can be re-imbursed, and AJT having to personally fund TER’s living expenses over the past 18 months at a cost in excess of $64,906.[13]
[12]Submissions AJT, 24 August 2022, H29.
[13]Spreadsheet for period 2 January 2021, 1 May 2022, F3.
Documents were submitted to the Tribunal that indicated a long history of loans and gifting by TER and AJT to each of their four children. The history indicates that a number of loans were forgiven in 201 and 2016.[14] This was after VACT appointed the joint administrators for TER. AJT indicated at hearing most recently, AT’s loan for the purchase of an interest in the rural property on which they reside was forgiven, after the relocation to Queensland. AJT indicated that this had occurred in the context of the carer support provided by AT to herself and TER. AJT confirmed that she had not consulted with the co-attorneys about this decision. Given that TER is not eligible for a Centrelink pension, he has no other income but the loan repayments, and the significance of this decision takes on some centrality in TERs financial affairs.
[14]Correspondence RH to Aged care., 20 June 2019.
A loan agreement was entered into between TER AJT and AT and a third party, to transfer a half interest in the property in return for a loan to purchase this interest. The date of the document is unclear but notes a settlement date of 7 September 2005. A handwritten notation on the front of the deed notes 5 February 20210.[15] The deed secured a balance of loan $80,000 , noting that at that point $129,983.34 of a total loan of $209,983.34, had been repaid. A repayment period of 5 years was specified. AJT indicated at hearing that upon the move to Queensland that she decided to forgive the balance that was outstanding, which she told the Tribunal was $100,000. She indicated that records were kept of repayments. AT told the Tribunal at hearing that she had made repayments over the years and that she had paid $88 per week. AT indicated that she had made multiple outlays on the property and that this had been affectively compensating her for costs she has carried for the property, including building a unit on the premises. There is insufficient information before the Tribunal to determine whether the loan was offset by AT’s outlays, and the Tribunal makes no finding about this. Irrespective of any offset, the loan existed in which TER had an interest. AJT as administrator for TER must financial decisions with reasonable diligence to protect the interests of TER[16] in collaboration with joint attorneys.
[15]Loan Agreement Submissions of RH filed 4 April 2022, H16.
[16]s 35 Guardianship and Administration Act 2000 (Qld).
Forgiveness of a loan was treated as a conflict transaction on the case of GVZ [2020] QCAT 213. Administrators are required by s 37 of the Act to avoid conflict transactions, and to seek authorisation of the Tribunal if contemplating undertaking a conflict transaction:
An administrator for an adult may enter into a conflict transaction only if the tribunal has authorised the transaction.
Forgiveness of the loan was a transaction entered into without the requisite approval of the Tribunal. This is a breach of AJT’s obligations contained at s 37 of the Act, irrespective of whether there was some imputed offset of the debt contemplated.
The evidence indicates that it was also a unilateral decision of AJT. Administrators are obliged by s 39 of the Act, to act in terms of the order, in this case, to act jointly.
A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal.
Further administrators are obliged by s 40 of the Act to consult with one another in their decision:
If there are 2 or more persons who are… administrator …for an adult, the persons must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.
RH and TT indicate that they were not consulted in this decision, nor the decision to transfer the vehicle in which TER had a half interest. That decision was also an unauthorised conflict transaction, and AJT is in breach of her obligations as administrator contained at s 37 of the act in relation to the transfer of the vehicle to AT, irrespective of subsequent steps to compensate TER.
RH and TT raise concerns that these transactions have not been transparent, and AJT has not provided information requested in relation to TER’s financial matters pertaining to the loans. While AJT has indicated to the Tribunal that loan repayments were documented, these records were not presented to the Tribunal nor to the co-administrators.
AJT has gained no benefit from these transactions. TER and AJT have had joint finances for their 70 years of marriage, and she asserts that it is her right to make determinations with the assets of the couple. The spreadsheet before the Tribunal indicates AJT is effectively managing day to day financial decisions for them both, paying an agreed care fee to AJT for the provision of care to both TER and AJT, and managing effectively TER’s day to day expenses. I am cognisant of the imposition it must be upon AJT to consult with other parties around the couple’s day to day management. However, this is an imposition placed upon AJT when VCAT appointed joint administrators on 29 October 2020. The aforementioned obligations have applied to AJT and co-administrators since QCAT recognised this order on 9 April 2021. They are strict obligations, and ignorance of the existence of these is not an excuse.
I find the evidence indicates that AJT has contravened sections 37, 39 and 40 of the Act, and grounds exist for removal of her as administrator pursuant to s 31(5) (d) of the Act. I note the submissions of BM that AJT has TER’s day to day maters well in hand, and joint appointment unnecessarily complicates the operation of the day-to-day management.[17] While that has proved to be the case, AJT is in breach of obligations she holds as administrator, and that undermines her competence to act as administrator, moving forward. The Tribunal recognises that this dispute has impacted family relations and has contemplated the appointment of the Public Trustee. Strong opposition to this proposal came from AJT, RH and TT. It is recognised that the Public Trustee fees would place a significant burden upon TER and would detrimentally affect his financial position. RH submits that she can work collaboratively with AJT around decision and undertakes to actively involve AJT the administration. I accept this undertaking and consider that it continues to be appropriate for RH and TT to continue to act as administrators. As part of that they are obliged to take urgent steps to repay outstanding outlays carried by AJT for TER’s living expenses identified in the spreadsheet filed in the Tribunal. [18] RH and TT argue that geographic distance does not pose a barrier to their appointment with technology aiding transactions over the internet. I consider the appointment of the Public Trustee in these circumstances would be overly restrictive, when family members RH and TT continue to be competent and appropriate administrators. The administration order is changed to remove AJT from the appointment.
[17]Submission BM 5 April 2022.
[18]Exhibit.
Guardianship Application
In the days prior to this matter going to final hearing, AT filed an application to appointed as TER’s guardian. At hearing she stated her reasons for this were that she lives with him and is responsible for organising his appointments in the community and providing care, she argued this was the reason she should be appointed as Guardian.
RH also filed an application for the appointment of a Guardian in response to this, proposing herself in that role. However, she indicated at hearing, it was her position. That the Enduring Power of Attorney she has been acting under continues, and that there is no need for the appointment of a Guardian. She submitted copious evidence of her current and historical involvement in decision making around health and service provision matters. It is apparent from this extensive material that she is actively and appropriately involved in these decisions.

At gave no other rationale for the overtaking of this Enduring Power of Attorney by a guardianship appointment, other than location, which noting documentation submitted by RH, does not appear to be a barrier to the effectiveness of the EPA. There were no other submissions from any other party as to the effectiveness or otherwise of this appointment.
The Tribunal may only appoint a Guardian on the following grounds contained at Section 12 of the Act:
(a)the adult has impaired capacity for the matter; and
(b)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
(c)without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
The Tribunal must consider the adults wishes,[19] which are clearly stated in his appointment of Enduring Power of Attorney in 2003, and which has not been changed since that time. This is a clear expression of his wishes.
[19]General Principle 10, s 11B
The evidence indicates that the personal decision-making powers under the EPA of 23 March 2003, are effective to protect TER’s interests and ensure his needs are met.
Consequently, there the grounds for an appointment of a Guardian are not made out pursuant to section 12. The Tribunal must therefore dismiss the applications for the appointment of a Guardian.