VJE
[2011] QCAT 111
•6 April 2011
| CITATION: | VJE [2011] QCAT 111 |
| PARTIES: | VJE |
| APPLICATION NUMBER: | GAA1758-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 6 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for authorisation of a conflict transaction is dismissed. |
| CATCHWORDS: | ADMINISTRATION – request by administrator to use adult’s funds to purchase a motor vehicle – conflict of interest Guardianship and Administration Act 2000, s 37 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 26 November 2010 the tribunal appointed GAJ as administrator for all financial matters for VJE. GAJ is one of four daughters of VJE.
In a financial management plan submitted to the tribunal, GAJ set out her strategy for managing the financial affairs of VJE including the sale of her house and the use of the sale proceeds to fund entry into appropriate aged care hostel accommodation for VJE.
On 28 February 2011 GAJ lodged an application in the tribunal seeking authorisation from the tribunal to purchase a motor vehicle in her name using $20,000 from the funds of VJE. GAJ submitted that her own motor vehicle was in a very bad condition and was undriveable. GAJ wanted to make use of a new car to visit her mother regularly and to carry out requests relating to her mother’s welfare.
On 8 March 2011 the tribunal made directions for GAJ to provide further information about the proposed purchase and to provide written responses from her sisters about the purchase to the tribunal. The tribunal made a direction that the determination on the application for authorisation of the conflict transaction would be made on the papers.
GAJ informed the tribunal that she did not have the income or financial resources to purchase a motor vehicle for herself. She submitted that she needed to visit her mother regularly and public transport was very difficult. GAJ submitted that she could not walk long distances due to a knee problem. GAJ submitted that the funds to be used for the purchase of a motor vehicle in her name could be off set against her prospective interest as a beneficiary of her mother’s estate.
One sister supported the use of the funds of VJE to purchase a motor vehicle for GAJ. However her two other sisters objected to the proposed use of VJE’s funds for this purpose.
An administrator is required to exercise decision-making power for an adult with impaired capacity honestly and with reasonable diligence to protect the adult’s interests.[1] An administrator has a positive obligation to keep their property separate from the adult’s property.[2] An administrator is prohibited by the Guardianship and Administration Act 2000 from entering into an unauthorised transaction where the duty of the administrator owed to the adult conflicts with the interests of the administrator.[3]
[1] See section 35 of the Guardianship and Administration Act 2000.
[2] See section 50 of the Guardianship and Administration Act 2000.
[3] See section 37 of the Guardianship and Administration Act 2000.
GAJ has asked the tribunal to give her authorisation to enter into a conflict transaction that is otherwise prohibited by law. In the information provided to the tribunal GAJ has not provided evidence that the proposed transaction will have any direct benefit for VJE. There is no argument presented that the use of $20,000 of her funds is necessary to protect VJE’s interests. The use of the funds appears to be for the sole benefit of GAJ.
There is no evidence that VJE supports the proposed use of her funds for this purpose. In her application GAJ has stated that she had not informed VJE about her application seeking authorisation of this conflict transaction due to the adult’s dementia. It is not stated whether GAJ had attempted to discuss her proposal to make use of $20,000 for the purchase of a motor vehicle with VJE.
[10] VG informed the tribunal that she had discussed the proposal with VJE on 13 March 2011 and that VJE did not support the proposal. VG stated that she recognised the limitations on her mother’s short term memory functioning but she considered that her mother was coherent and had insight during her conversation on this issue.
[11] The General Principles recognise that it is the right of an adult to participate to the greatest extent practicable in decisions affecting the adult’s life. The adult’s wishes and views should be sought and taken into account in decision-making.
[12] In particular, the General Principles state that the principle of substituted decision-making must be used so if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be about a matter, then a decision-maker must take into account what would be considered to be the adult’s views and wishes about that matter.
[13] The tribunal must apply the General Principles when making decisions about the proposed conflict transaction. There is no evidence that VJE had made large financial gifts to her family when she had capacity to make her own financial decisions. There was no evidence presented to the tribunal that would reasonably lead to an inference being drawn that, from the perspective of her past actions, VJE would have wanted to gift $20,000 to GAJ.
[14] The tribunal was presented with evidence that VJE had in fact expressed her views about the proposed transaction and that she did not support the proposed gift of $20,000 to GAJ. Although the tribunal must exercise some care in giving appropriate weight to that part of the evidence, it has been taken into account as the only evidence of the adult’s views on the proposed gift. A copy of the letter containing this evidence was sent to GAJ and she has not challenged the evidence.
[15] The tribunal concludes that there is a conflict of interest between the duty of GAJ to protect the financial interests of VJE and the interests of GAJ to obtain funds from her mother in order to purchase a motor vehicle. That conflict can only be resolved by authorisation of this tribunal. The tribunal will not provide that authorisation as the evidence has not convinced the tribunal that a gift of $20,000 would be in accordance with the views and wishes of VJE. The tribunal concludes that such a gift will not protect or further VJE’s financial interests. The application by GAJ is dismissed.