TZN

[2024] QCAT 325

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TZN [2024] QCAT 325

PARTIES:

In applications about matters concerning TZN

APPLICATION NO:

GAA14151-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

15 August 2024

HEARING DATE:

26 July 2024

HEARD AT:

Southport

DECISION OF:

Member Casey

DECISIONS:

1.   The appointment of the Public Trustee of Queensland as administrator for TZN for all financial matters is continued.

2.   The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

3.   The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

4.   This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

5.   Before 15 October 2024 the administrator must:

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

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

(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. 

6.   If the ownership of any property of TZN changes in any way or TZN 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 or TZN’s interest in another property. 

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP – where the Tribunal is satisfied the presumption of capacity is rebutted – where need for the appointment of an administrator

Guardianship and Administration Act 2000 (Qld), Schedule 4, s 7, s 11, s 12, s 14, s 15, s 31

Human Rights Act 2019 (Qld), s 13, s 15, s 24, s 25, s 48

APPEARANCES &
 REPRESENTATION:

Applicant:

NXY (brother, in person)

Others:

TZN, adult (via telephone)

A representative of the Public Trustee of Queensland (via telephone)

A service provider (via phone)

REASONS FOR DECISION

1. TZN (‘the adult’) is 59 years of age and resides in supported independent living accommodation.

2. On 12 December 2019 NXY, the adult’s brother, was appointed as guardian for the adult for the matters of service provision (including in relation to services provided through the National Disability Insurance Scheme) and health care. On the same day the Tribunal appointed the Public Trustee of Queensland as administrator for the adult for all financial matters. The appointments were to remain current until further order of the Tribunal. The appointments were reviewable and were to be reviewed in three (3) years.  

3. On 31 July 2023, upon reviewing the above appointments, the Tribunal continued the appointment of NXY as guardian for the adult for the same personal matters. The appointment was to remain current until further order of the Tribunal. The appointment was reviewable and was to be reviewed in five (5) years. 

4. On the same day the Tribunal continued the appointment of the Public Trustee of Queensland as administrator for the adult for all financial matters. The appointment of the Public Trustee of Queensland was to remain current until further order of the Tribunal.

5. On 23 November 2023 the Tribunal received an application from NXY requesting a review of the appointment of the administrator. NXY was proposing himself as administrator for the adult. 

6. On the same day, the Tribunal received an application from NXY seeking his appointment as interim administrator for the adult. In a decision of 28 November 2023, the Tribunal dismissed NXY’s application for the appointment of an administrator for the adult under an interim order.

7. On 26 July 2024 the Tribunal heard the substantive application of NXY for the review of the appointment of an administrator.

   The Legislation

8. The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (Qld) (‘GAA’) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian for the adult.

9. TZN is presumed to have capacity for personal matters.[1]

   [1]GAA, s 7(a).

10. The GAA defines capacity as follows:[2]

    Capacity for a person for a matter, means the person is capable of -

    (a)     understanding the nature and effect of decisions about a matter; and

    (b)     freely and voluntarily making decisions about the matter; and

    (c)     communicating the decisions in some way.

    [2]Ibid, Schedule 4 (definition of ‘capacity’).

11. The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.

12. The Tribunal, when considering the appointment of an administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.

13. The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing an administrator. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.

14. When conducting a review of an appointment of an administrator, 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] The Tribunal may make an order removing an appointee only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.[4]

    Does the adult have capacity to make financial decisions?

    [3]Ibid, s 31(2).

    [4]GAA, s 31(4).

    The evidence

15. In a report dated 16 May 2023 Suzanne Leaviss, an occupational therapist, states that TZN has an intellectual disability and has a medical history inclusive of cerebrovascular accident (CVA)/stroke. In March 2020 the adult attained a score of 12/30 on the Montreal Cognitive Assessment, which is indicative of a cognitive impairment. The occupational therapist states that TZN has severe difficulties remembering information and that, due to his intellectual disability, he has limited understanding of numeracy or denominations of bank notes and is unable to calculate change when utilising a weekly cash allowance given to him by NXY. Based on her clinical assessment and observation, the occupational therapist provides that TZN is unable to understand and make decisions about simple and complex financial matters.

16. In oral evidence to the Tribunal TZN submitted that he has ‘greater efficiency’ than that described in the report of the occupational therapist. He told the Tribunal ‘I am not that stupid.  I have a card’. TZN said that he is ‘fine’ and that he has ‘a safe place to live’ and has ‘no problems’.

17. NXY submitted that the adult was unable to make financial decisions.

    Determination

18. The clinical evidence establishes that TZN experiences intellectual deficits that preclude him from making financial decisions.

19. Upon consideration of the evidence the Tribunal is not satisfied that TZN understands the nature and effect of decisions pertaining to his financial matters.

20. Accordingly, the Tribunal rebuts the presumption of capacity for TZN for financial matters.

    Is there a need for the appointment of an administrator for the adult?

    The evidence

21. The Public Trustee of Queensland, as administrator for the adult, submitted the following information:

    (a)TZN’s income consists of the Disability Support Pension (approximately $34,000 per annum) and rent assistance.

    (b)TZN owns an uninhabited property in Brisbane which was valued at $460,000 in June 2022. The property was the adult’s principal place of residence until he relocated to supported independent living accommodation in May 2020. The adult inherited the property from his father, whose estate was finalised in March 2021.

    (c)The administrator received a statement of advice from Morgans Financial Ltd in September 2022 to sell the adult’s property and make a $330,000 non-concessional contribution to the adult’s superannuation with the majority of the proceeds from the sale of the property. The statement of advice included a sum of approximately $15,000 as projected expenditure required to sell the property.

    (d)The administrator has budgeted for a capital expense of approximately $120,000 to repair the property for sale.

    (e)The adult’s cash assets total approximately $700.

    (f)TZN owes approximately $3,000 to a funding group in relation to a loan for solar roof panels.

    (g)Expenditure includes accommodation (approximately $16,500 p.a.), property expenses (e.g. rates, water/sewerage, insurance, inspections in relation to building/pest factors and smoke alarms), loan repayments ($1,200 p.a.) and fees to the Public Trustee of Queensland (approximately $6,630 p.a.).

    (h)NXY provides the adult with a living allowance and pays for yard maintenance on the adult’s property and the adult’s pharmaceutical expenses. NXY has also offered to pay the rates for the property in order for the adult to retain the property.

    (i)Without NXY’s current subsidization, the adult’s budget would be in deficit.

    Determination

22. The undisputed evidence is that TZN has assets, income, liabilities and expenditure that require management.

23. Pursuant to section 12 of the GAA, the evidence establishes that there remains a need for the appointment of an administrator for TZN.

    Is the current appointee no longer competent or is someone else more appropriate for appointment?

    Evidence

24. In his application to the Tribunal, NXY states that he sought appointment as administrator for TZN as he is a family member and because he would know what his parents ‘would want naturally for their vulnerable disabled son’. He states that his proposed appointment is supported by TZN and that he is competent to ‘do a better job’ than the Public Trustee of Queensland as he is not a ‘for profit organisation’.  NXY seeks to ‘terminate’ the ‘services’ of the Public Trustee of Queensland and give his brother a better quality of life. He submits that his proposed appointment would maximize the adult’s financial independence and align with the adult’s rights under the Human Rights Act 2019 (Qld) (‘HRA’).

25. In a statement annexing his application, NXY submits that the adult’s financial interests are at risk due to the ‘ridiculous excessive and unnecessary fees, charges and services’ of the administrator, including a monthly personal administration fee of $564. He states that the twice-yearly building and pest inspections of the adult’s property that have been arranged by the administrator are completely unnecessary, unacceptable and out of touch with community standards and expectations. He expresses concern that the administrator would charge additional fees should he and the adult ‘engage in negotiations for items within the property’ should the property be prepared for sale. NXY writes that he has been actively contributing to the adult’s welfare and property for many years by paying for the adult’s pharmaceutical and yard maintenance expenses which would have been otherwise unaffordable to the adult due to the excessive fees charged by the administrator. 

26. NXY provides attachments to his application, including character references from Susie Leaviss, an occupational therapist, and three of his long-standing friends who have known NXY for periods of 12, 25 and 30 years, respectively. The applicant also provided a copy of an email from a Public Trust officer dated 22 November 2023 in which the author stated that the administrator was, at that time, ‘having difficulty staying on top of [the adult’s] accommodation payments as they, along with his asset management fees, exceed that of his disability pension’. The officer wrote that he would be in support of the applicant’s application to the Tribunal as, if successful, the adult ‘will be able to afford the services’ provided by his accommodation provider ‘without being charged administration fees’.

27. In his oral evidence to the Tribunal, NXY submitted that he had contacted the Queensland Law Society and ten law firms to seek advice to advance his application to the Tribunal. NXY said that he had been unhappy with the financial management plan he had submitted to the Tribunal and that the budget he submitted was ‘below par’ as he was ‘under a lot of pressure on the night’ that he completed the form as ‘there was a lot of crime going on’ in his area and he ‘was not getting any sleep’.  NXY said that he had made enquiries to Morgans Financial Ltd in order to obtain a ‘better financial plan’ to support his application. however, the cost was prohibitive.

28. NXY told the Tribunal that, if appointed, he would arrange for the adult’s regular expenses (e.g. property rates, accommodation fees) to be direct debited and that he would utilise the adult’s funds to fully repay the loan in relation to the solar panels. He further submitted that, if appointed as administrator for TZN, he would continue to regularly attend the adult’s property and would utilise his own savings to obtain a ‘skip bin’ and pay friends in order to remove items from the house. NXY reported that his father and the adult were ‘hoarders’ and that he had already boxed approximately 10 cubic metres of items into cartons which remain inside the dwelling.

29. The applicant disputed the evidence of the Public Trustee in relation to their stated administrative fees charged to the adult. In NXY’s view, the fees are an ‘unbelievably crippling’ expense of $9,000 per annum. He said that the administrator had advised him that a real estate commission for the sale of the adult’s property would be charged at a rate of 5% of the sale price and that, if he were successful in his application and made the decision to sell the adult’s property, he would negotiate a maximum real estate commission of 2.2% of the sale price. NXY said that the administrator had also advised him of plans to ‘do some kind of reverse mortgage off the value of the house’ to pay for services such as storage of items and house cleaning, and that such a decision would be unacceptable to both him and the adult. NXY said that he no longer sought to cooperate with the administrator as he had found the behaviour of the administrator adversarial.

30. NXY submitted that he and the adult had ‘gone backwards and forwards about selling the house or not’. During the hearing, NXY said that he ‘supposed the idea’ was ‘to clear it out and sell’ as, given the adult’s deteriorating physical health, the adult would be unlikely to reside at the property in the future. He said that he had neither bought nor sold real property and that, should he be successful in his application, he would follow the advice of his friends who have experience in purchasing and selling real estate.

31. NXY further submitted that he and the adult wanted to make a decision about the sale or retention of the property ‘away from everyone else and to have all these people out of our lives’.  

32. When advised that administrators appointed by the Tribunal have reporting responsibilities to the Tribunal under the Guardianship and Administration Act 2000 (Qld), NXY stated that he was unaware of such responsibilities and sought further explanation. When provided with an example of reporting requirements of an administrator, NXY stated that he was ‘a bit overwhelmed’.

33. NXY explained that he had not previously sought an appointment as administrator for the adult prior to the finalisation of the estate of their father and that he had ‘only wanted an administrator for 12 months’. He added that, in hindsight, all he had ever required was ‘a conveyancing order when it [the property] came from Dad’s will into my brother’s name, not a QCAT order’. 

34. In response, the PTQ representative made the following oral submissions.

    (a)The value of the adult’s property is likely to be greater than the stated value, as a property valuation has not occurred since 2022. 

    (b)Property valuations are usually carried out annually, however due to the prohibitive cost to the adult, property inspections have not been conducted in subsequent years.

    (c)Real estate commissions paid by the Public Trustee of Queensland would likely be approximately 2.8% of the sale price of a property and the property department of the Public Trustee of Queensland has not yet provided a recommendation in relation to the adult’s property.

    (d)The administrator has attempted to work with the adult and the applicant, in line with the HRA, so that items are not destroyed or removed incorrectly.

35. Within the Tribunal Briefing Report dated 10 July 2024, the administrator provided the following information.

    (a)The administrator has been unsuccessful in contacting the applicant to discuss the adult’s budget which was reviewed on 10 July 2024.

    (b)Upon receiving the statement of advice from Morgans Financial Ltd in September 2022, the administrator has made multiple unsuccessful attempts to contact the applicant and the adult to progress the sale of the adult’s property.  When contact was made with the applicant in November 2023, the applicant advised that he had no objections to the sale and sought to remove personal items from the property in the first instance. By December 2023, the applicant told the administrator that he no longer wanted the property to be sold.

    (c)The progression of the sale of the property was halted until a meeting could be held with the adult and the applicant. The meeting took place in April 2024, at which time the applicant was provided with the keys to the adult’s property in order to remove personal items so that efforts to sell the property could continue.

    (d)The administrator subsequently attempted to contact the applicant on multiple occasions through email, telephone and post to arrange for the keys to be returned to the administrator. The applicant responded on 16 July 2024 and indicated an intention to return the keys. The applicant had not yet returned the keys to the administrator. 

    (e)If reappointed, the Public Trustee of Queensland would seek immediate access to the property and proceed with the recommended sale.

    Determination

36. The undisputed evidence before the Tribunal is that, in the current circumstances, the adult has insufficient financial liquidity to meet his expenses, which currently include the costs associated with retaining his real property and the administration of his estate by the Public Trustee of Queensland.

37. The Public Trustee Act 1978 (Qld) provides for the Public Trustee of Queensland to charge reasonable fees. The Tribunal is of the view that the fees and charges levied by the administrator have not been unreasonable. The applicant’s estimations of the Public Trustee of Queensland’s fees, charges and negotiated real estate commission (should the adult’s property be sold) are unsubstantiated.

38. NXY is correct in saying that if he were to be appointed as the adult’s administrator, the adult could no longer be charged administration fees. 

39. The Tribunal accepts the evidence provided by NXY that his proposed appointment is supported by the adult and has provided character references in support of his application. The Tribunal also accepts that NXY has a close and continuing relationship with the adult and is a significant source of support. For example, the applicant has provided financial assistance to the adult by paying for the adult’s pharmaceutical, yard maintenance and living/personal expenses. Such actions have been assistive in preserving the adult’s funds. NXY has also provided assistance to the adult by commencing to pack items within the property in preparation for their removal.

1. Notwithstanding the above, by the applicant’s own evidence, he remains undecided as to whether the adult’s property should be sold. 

2. NXY has been unable to establish a suitable financial management plan. As such, there is no evidence before the Tribunal of the applicant’s proposed costings for either the sale or retention of the adult’s property nor any investment proposal for the proceeds of the property sale should such a sale occur.

3. It is of concern to the Tribunal that the applicant, who is devoid of experience in buying or selling real estate, would seek to make a decision in relation to selling or retaining the adult’s property based on advice from friends who have real estate experience, in preference to advice obtained from an accredited source. 

4. The applicant’s submissions were focussed on the removal of the appointment of the Public Trustee of Queensland. By his own admission the applicant was unaware that, if appointed as administrator for the adult, he would be required to produce documentation and information to the Tribunal in relation to his decisions and actions as administrator. NXY said he was overwhelmed when advised of reporting requirements to the Tribunal of administrators appointed under the GAA. As such, the Tribunal is not satisfied that NXY understood, and would be likely to comply with, reporting requirements to the Tribunal, should he be appointed as administrator.

5. In contrast, during the period under review, the Public Trustee of Queensland has attended to managing the adult’s assets, income, liabilities and expenditure in accordance with a budget that has been informed by advice sought from Morgans Financial Ltd. 

6. The administrator has consistently attempted to engage and consult with the adult and the applicant in order to action the financial advice and sell the property. 

7. The evidence establishes that the administrator has attempted to diminish the financial burden of property costs in the period under review by reducing the frequency of valuations and pest inspections.

8. Given the above evidence, the Tribunal is satisfied that the Public Trustee of Queensland has discharged effective decision making for the adult in a way that is consistent with the general principles.[5] 

   [5]GAA, s 11B.

9. Accordingly, the Tribunal determines that the current administrator remains competent and that NXY is not more appropriate than the Public Trustee of Queensland for appointment as administrator for the adult.[6]

   [6]GAA, s 31.

10. Accordingly, the Tribunal continues the appointment of the Public Trustee of Queensland as administrator for TZN for all financial matters. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 

11. The Tribunal gave consideration to the relevant human rights as set out in the HRA. As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. TZN’s rights to recognition and equality before the law,[7] privacy[8] and property[9] are likely engaged and limited by the guardianship appointment. Taking into account the findings above in relation to the criteria set out in the GAA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA.

    [7]HRA, s 15.

    [8]Ibid, s 25.

    [9]Ibid, s 24.