VSI v The Public Guardian - [2023] QCATA 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

VSI v The Public Guardian & Ors [2023] QCATA 25

PARTIES: VSI

(applicant/appellant)

v

THE PUBLIC GUARDIAN
PUBLIC TRUSTEE OF QUEENSLAND
VR
MVG
VS
LR

(respondents)

APPLICATION NO/S:

APL019-20 and APL228-20

ORIGINATING APPLICATION NO/S:

APL019-20: GAA4795-19; GAA4796-19; GAA4797-19; GAA9099-19; GAA9100-19; GAA7401-19

APL228-20: GAA3022-20; GAA3023-20; GAA6018-20; GAA6019-20; GAA6020-20; GAA6021-20

MATTER TYPE:

Appeals

DELIVERED ON:

1 February 2023

HEARING DATE:

13 June 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie (presiding)
Member Kanowski

ORDERS:

APL019-20

1.          The following decisions of the Tribunal made on 9 December 2019 are set aside:

(a)    VR did not have capacity for executing the Advance Health Directive dated 25 March 2019;

(b) The following Advance Health Directive for VR is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

The Advance Health Directive dated 25 March 2019 directing VSI her attorney for personal/health matters.

2.          The Appeal Tribunal declares that those decisions of the Tribunal dated 9 December 2019 were invalid.

3.          The direction to the Public Trustee made by the Tribunal on 9 December 2019 that the Public Trustee investigate and if viable and appropriate in all the circumstances, take such action as is required to challenge the will that VR purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015 is set aside.

4.          Except as ordered in orders 1 to 3 above, the application for leave to appeal is refused and the appeal is dismissed.

5.          The application by VSI to add a ground of appeal is refused.

6.          The application for miscellaneous matters (notice to produce) is dismissed.

7.          The stay order made on 15 January 2021 is revoked.

APL228-20

8.          Leave to appeal is refused.

9.          The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where declarations about capacity made – where guardian and administrator appointed – whether presumption of capacity applied – whether appointments necessary

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where directions made to administrator – whether directions valid

Guardianship and Administration Act 2000 (Qld), s 12, s 31

Powers of Attorney Act 1998 (Qld), s 41, s 62, s 63

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 142

BSJ [2022] QCAT 51

Cachia v Grech [2009] NSWCA 232

Camden v McKenzie [2008] 1 Qd R 39

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

In applications concerning RV [2019] QCAT 384
In applications concerning VR [2020] QCAT 208
Maffey v Mueller [2016] QCATA 19
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
MG & Anor v The Public Guardian & Anor [2021] QCATA 89
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Re B (No. 1) [2011] NSWC 1075

APPEARANCES & REPRESENTATION:

Applicant (VSI):

J Frizzo of The Will & All

Respondents:

Public Guardian represented by J Nagabbo

Public Trustee of Queensland: no appearance

MVG self-represented

LR self-represented

VS self-represented

VR represented by M Jones of Counsel

REASONS FOR DECISION

Introduction

VR is an elderly woman. VSI is VR’s son. MVG, LR and VS are the other children of VR.[1]
[1]Some of the names used in the reasons for decision below dated 19 December 2019 were different. Most pertinently, VR was referred to as RV, and VSI was referred to as IV.
VSI appeals decisions made by the tribunal by different members on different dates. The decisions were made under relevant provisions of the Guardianship and Administration Act 2000 (Qld) (the GA Act) and the Powers of Attorney Act 1998 (Qld) (the POA Act).
APL019-20 is the appeal from the decisions made on 9 December 2019 to:[2]
[2]In applications concerning RV [2019] QCAT 384.
(a)declare VR did not have capacity for making the enduring power of attorney dated 20 August 2018 appointing VSI her attorney for financial, personal and health matters (the enduring power of attorney);
(b)declare the enduring power of attorney invalid;
(c)declare that VR did not have capacity to make an advance health directive dated 25 March 2019 directing VSI was VR’s attorney for personal/health matters (the advance health directive power of attorney);
(d)declare the advance health directive power of attorney invalid;
(e)declare VR did not have capacity for transferring, on 20 September 2017, the title of her property at White Rock;
(f)change the appointment of the Public Guardian as guardian for VR so that they became appointed for making decisions about VR’s accommodation and with whom VR has contact and/or visits for a reviewable period of two years;
(g)appoint the Public Trustee of Queensland (the Public Trustee) administrator for VR for all financial matters; and
(h)direct the Public Trustee to, amongst other things, investigate and, if viable and appropriate in all the circumstances, take such steps as required to:
(i) transfer the title to the property at White Rock back to VR; and
(ii) challenge the will of VR purportedly made on 13 July 2017.
APL228-20 is the appeal from decisions of the tribunal made on 25 May 2020 to:[3]
(a)overtake, in accordance with s 22 of the GA Act, the enduring power of attorney dated 22 May 2015 appointing VSI and MVG jointly as attorneys for financial, personal and health matters;
(b)continue the appointment of the Public Guardian as guardian for VR for decisions about accommodation and with whom VR has contact and/or visits for a reviewable period of six months; and
(c)continue the appointment of the Public Trustee as administrator for VR for all financial matters until further order of the Tribunal.
[3]In applications concerning VR [2020] QCAT 208.
VSI also filed an application for miscellaneous matters seeking that the tribunal issue a notice to produce in APL019-20 to a lawyer, CB, to obtain:[4]
(a)All files of VR including, but not limited to, file notes, memoranda, documents, forms, correspondence and emails pertaining to the following matters:
(i)      The transfer of the title of the White Rock property from VR to VSI;
(ii)      The enduring power of attorney of VR dated 20 August 2018;
(iii)     The will of VR signed 17 July 2017; and
(iv)     Any other files opened by the relevant law firm on instructions from VR for the period 1 July 2017 to 9 December 2019.
[4]Application for Miscellaneous matters (notice to produce) filed 14 February 2020 (IN003).
On 15 January 2021 we decided that VSI’s application to stay the decision made on 9 December 2019 was granted only in respect of the that part of the direction of the Tribunal that the administrator take such steps as are required to transfer the title to the property at White Rock back to VR. The application for a stay was otherwise refused.
In addition, we directed that the application for miscellaneous matters (seeking the issue of a notice to produce) filed by VSI would be determined with the application for leave to appeal or appeal (‘the appeal application’). Further, we directed that unless otherwise ordered, the publication of information that may lead to the identification of the adult by the public or a section of the public is prohibited. That direction reflects s 114A of the GA Act and was made to ensure that the appeal proceeding was conducted and determined consistently with the GA Act under which the appealed decisions were made.
Mr Jones of Counsel was appointed to represent the views, wishes and interests of VR in the appeals following submissions on the issue.
At the time of the appeal hearing there was no formal application to adduce new evidence made by any party. Based on the submissions made at the oral hearing, we made a number of directions including a direction that the Principal Registrar give access to the parties to the documents that were before the learned members in the proceedings below that were not already filed in the appeal proceedings. VSI was directed to file and serve an application for leave to adduce additional evidence together with any supporting written submission, such submission to address particular matters. Directions were also made for rights of reply.[5]
[5]Appeal Tribunal directions made 13 June 2022.
From the submissions made in response to those directions, it appears that no formal application for leave to adduce new evidence is made. While further submissions have been made in relation to the appeal based on VSI’s access to the documents before the learned members in the proceedings below, there is no ‘new’ evidence sought to be relied upon.[6]
[6]New in the sense that the document has been obtained by VSI but was not before the learned members in the proceedings below.

The appeal framework

An appeal on a question of law is as of right.[7] An appeal on a question of fact or mixed law and fact may only be made with the leave of the appeal tribunal.[8] The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision;[9] Is there a reasonable prospect that the applicant will obtain substantive relief;[10] Is leave necessary to correct a substantial injustice to the applicant caused by some error;[11] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.[12] If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[13] In deciding the appeal, the appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[14] Both appeals raise questions of law and questions of fact and questions of mixed fact and law.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).
[8]Ibid, s 142(3)(b).
[9]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[10]Cachia v Grech [2009] NSWCA 232 at [13].
[11]Op cit 10.
[12]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(1) and (2).
[14]Ibid, s 147(3).

APL019-20: grounds

VSI sets out four grounds of appeal in his appeal application:[15]
[15]Application for leave to appeal or appeal ‘Grounds of Appeal’ filed 18 January 2020 (AP001).
(a)first, that the tribunal made errors of fact by failing to consider relevant factors in arriving at the decisions that VR did not have capacity to:
(i)      transfer her property to VSI;
(ii)      make an enduring power of attorney on 20 [August] 2018;
(iii)     make an advance health directive on 25 March 2019; and
(iv)     make a will on 17 July 2017;
(b)second, that the tribunal failed to apply the presumption of capacity by misconstruing or disregarding the available medical opinion and other evidence of VR’s capacity at the relevant times;
(c)third, that the tribunal failed to apply the general principle that VR’s right to participate in decisions affecting her life be recognised and taken into account by directing her then solicitor to stop VR attending hearings of the applications, in doing so failing to take practicable steps to provide her with the information and support necessary to take part in the tribunal proceedings; and
(d)fourth, that the tribunal made errors of law and erred by applying a higher standard of understanding regarding the nature and effect of VR’s decisions regarding:
(i)      the transfer of the property to VSI;
(ii)      the making of an enduring power of attorney appointing VSI and the making of an advance health directive; and
(iii)     the test for testamentary capacity.
In written submissions, VSI has argued that if it is accepted that the adult’s enduring power of attorney dated 20 August 2018 was properly declared invalid, which is not conceded, then the learned member erred in law in not appointing VSI as VR’s guardian.[16]
[16]Applicant’s submissions dated 15 June [2021] (AS003), [1]-[12] (inclusive).
In oral submissions, VSI sought leave to add a ground of appeal relating to an apprehension of bias in that the member appeared to prefer an adverse finding about the relationship between VR and VSI.

APL228-20: grounds

VSI argues seven grounds of appeal:
(a)The Tribunal failed to apply the principle of substituted judgement in circumstances where it was reasonably practicable to work out what VR’s views and wishes were.
(b)The Tribunal failed to adequately apply the principle of maintenance of existing supportive relationships.
(c)The Tribunal made errors of fact by failing to consider relevant factors in arriving at the decision to continue the appointment of the Public Guardian.
(d)The Tribunal erred by finding that the Public Guardian is the most appropriate guardian in circumstances where:
(i)      The Public Guardian’s first decision following appointment was to substantially disrupt VR’s chosen accommodation which is in breach of the Public Guardian’s duty to apply the substituted decision-making principle;
(ii)      Since making that decision the Public Guardian has failed to take reasonable steps to facilitate contact between VSI and RV;
(iii)     The Public Guardian has demonstrably failed to navigate the conflict between VSI and his siblings;
(iv)     The Public Guardian has demonstrably failed to put together any plan that ensures that contact can occur despite evidence from VSI that he made numerous requests and proposals for contact;
(v)      The Public Guardian in submissions admitted that the accommodation decision was a “trial” and has failed to adequately revisit the decision following the so-called trial despite evidence from VSI that he made requests for a review of the decision and for the making of a new accommodation decision that VR be returned to her home of choice;
(vi)     The Tribunal noted that “the accessibility of a decision-maker for the adult depends on where the adult lives”;
(vii)   The Public Guardian in submissions stated, “…there are difficulties with the informal contact arrangements” and a “formal contact decision is futile because it can’t be enforced”;
(viii)     The Public Guardian in submissions stated, “… a formal appointment of the Public Guardian is not appropriate”;
(ix)     “The fact that conflict between members of the family is not sufficient reason for appointing the Public Guardian as guardian for VR”.
(e)The Tribunal made errors of fact by failing to consider relevant factors in determining that VSI is not appropriate for appointment, for example:
(i)      That there is no conflict between VR and VSI and no suggested incompatibility of personality between VR and VSI so as to preclude VSI’s appointment as guardian;
(ii)      The evidence that VSI organised supporting services and was active in looking after VR’s health care whilst VR was in the care of VSI;
(iii)     That there is no suggestion that VSI had not properly applied the General Principles during the period that he was caring for VR prior to 13 December 2019;
(iv)     That there is an appropriate relationship between VR and VSI which stands in favour of VSI over an independent guardian;
(v)      That VSI has devoted himself to a very considerable extent to the welfare of VR;
(vi)     That, whilst accusations were levelled at VSI in the verbal submissions of his siblings, there is no evidence before the Tribunal to show whether there is any substances to those allegations;
(vii)   The Tribunal found that VSI “has difficulties communicating with his mother” when the difficulties encountered by VSI were caused by the appointee’s accommodation decision;
(viii)     That VSI has had limited access to his mother when VSI had had only one very brief and unsatisfactory personal contact, and very limited and very unsatisfactory telephone contact, and in fact VSI has had very limited and very inappropriate and unsatisfactory access to his mother;
(ix)     By failing to find that the Public Guardian’s accommodation decision was manifestly wrong and made without any proper basis or foundation in circumstances;
(x)      Where the Public Guardian failed to apply the principle of substituted judgement and the accommodation decision was in fact manifestly wrong and made without proper basis, namely a trial;
(xi)     By failing to find that the Public Guardian’s accommodation decision was manifestly wrong and made without any proper basis or foundation in circumstances where the Public Guardian failed to maintain VR’s existing supportive relationships and failed to respond satisfactorily to VSI’s reasonable proposals in particular in relation to contact; and
(xii)   That the financial powers of an administrator can be divided into general day to day financial matters and financial matters associated with the White Rock property.
(f)The Tribunal made errors of fact in finding that the Public Guardian’s accommodation decision will have to some extent disrupted her lifestyle, when the decision has had a fundamental impact on her lifestyle in that VR no longer has access to her existing supportive network.
(g)The Tribunal made errors of law by:
(i)      failing to apply the principle that every person lawfully within Queensland has the freedom to choose where to live;
(ii)      failing to give sufficient weight to VR’s choice of accommodation;
(iii)     by finding that a conflict of interest in relation to financial matters, if it does exist, is a factor relevant to the appropriateness of the appointment of a guardian where on the evidence VR’s views and wishes in relation to where she lives and who makes decisions for her is known;
(iv)     failing to remove the appointee Public Guardian in circumstances where the appointee is demonstrably not competent with regard to this particular appointment because:
(i)VR’s interest in maintaining a relationship with VSI is not being adequately protected;
(ii)VR’s interest in living where she has chosen to live for the past 30 years has not been protected;
(iii)the Public Guardian has neglected its duties in general and specifically by failing to:
I.implement a formal contact arrangement between VR and VSI; and
II.make a formal decision regarding the living arrangements of VR despite the appointment being in place for six months; and
III.apply the general principles, particularly the principle of substituted judgement, the maintenance of existing supportive relationships and the maintenance of environment and values;
(v)      failing to remove the appointee where another person is more appropriate for appointment;
(vi)     continuing the appointment of the Public Guardian in circumstances where there is an appropriate person available for appointment;
(vii) failing to apply the considerations set out in section 15(1) of the GA Act in determining that VSI is not appropriate for appointment;
(viii)     by applying a lower standard in relation to the duty owed by the Public Guardian;
(ix)     by finding that any appointed family member would have difficulty meeting the General Principles and that by inference the Public Guardian would have less difficulty where the Public Guardian admitted it is having difficulty implementing informal contact arrangements and that it believes making a formal decision is futile;
(x)      failing to appoint different appointees for administration for different financial matters; and
(xi)     failing to appoint alternative appointees for administration so a power is given to a particular appointee only in stated circumstances.

APL019-20: the orders relating to the will and the advance health directive power of attorney

It is convenient to deal firstly with the orders below about the will and the advance health directive power of attorney. These documents are referred to, directly or indirectly, in appeal ground 4.
The learned member declared that VR did not have capacity for executing the advance health directive dated 25 March 2019. Further, the learned member declared that the advance health directive was invalid. VR also directed the Public Trustee as appointed administrator ‘to investigate and, if viable and appropriate in all the circumstances, to take such action as is required to challenge the will that VR purportedly made on 13 July 2017 revoking her previous will, dated 27 May 2015’.
Rule 21(3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (the QCAT Rules) provides that the principal registrar must within the period stated in rule 19 give a copy of the application to the adult unless sub-rule (4) applies. Rule 21(4) of the QCAT Rules provides that the principal registrar is not required to give a copy of the application to the relevant adult if the tribunal considers certain circumstances are present in the case including that notifying the adult of the proceeding might be prejudicial to the physical or mental health or wellbeing of the adult.[17] We can find no order or direction made by the tribunal that VR not be given a copy of any application filed in the tribunal concerning her.
[17]QCAT Rules, rule 21(4)(a).
The applications filed in the Tribunal concerning VR that were before the learned member were:
(a)Applications filed by the Public Guardian on 4 March 2019 as follows:[18]
(i)      Application for the appointment of a guardian (GAA4796-19);
(ii)      Application for the appointment of an administrator (GAA4797-19);
(iii)     Application for a declaration about capacity (GAA4795-19) referring to issues concerning VR’s capacity to make the enduring power of attorney dated 20 August 2018 and VR’s capacity to transfer the White Rock property on 20 September 2017;
(b)Applications filed by MVG on 26 July 2019 as follows:[19]
(i)      Application for the appointment of a guardian (GAA9099-19); and
(ii)      Application for the appointment of an administrator (GAA9100-19).
[18]Tribunal’s file regarding applications concerning VR documents marked H9 and H10.
[19]Tribunal’s file regarding applications concerning VR document marked H23. It is noted that these applications were filed after the first day of hearing on 13 June 2019 but before the hearing resumed on 21 August 2019.
There was no formal application for directions under s138 of the GA Act before the learned member. The application for a declaration about capacity did not make any reference to VR’s capacity to make the will dated 13 July 2017 nor did it refer to VR’s capacity to make the advance health directive power of attorney being in issue.
The provision of copies of the outlined applications to VR by the principal registrar would not have provided her with any notice that the validity of her will or advance health directive power of attorney were matters before the tribunal.
Section 118(6) of the GA Act provided, at the relevant time, that subject to s 118(2), failure to comply with the requirement to give notice to the adult invalidated a hearing and the tribunal’s decision about an application. Section 118(2) provided that the tribunal was not required to give notice to the adult in very limited circumstances such as where the tribunal considered that notice to the adult might be prejudicial to the physical or mental health or wellbeing of the adult. We cannot find any written direction or order of the learned member making it clear that in VR’s circumstances, notice of the hearing was not required.
VR was given notice of the outlined applications by written notices of hearing dated 20 May 2019,[20] 6 August 2019[21] and 28 August 2019[22] as well as the orders made by the learned member at the end of each of the first two days of the hearing.[23]
[20]H15 on the tribunal’s file concerning VR.
[21]H24 on the tribunal’s file concerning VR.
[22]H32 on the tribunal’s file concerning VR.
[23]Order made 13 June 2019 (H21) and order made 21 August 2019 (H27).
VR was not present at the hearings conducted on 13 June, 21 August and 12 November 2019. However, the learned member gave VR leave to be represented in the proceedings.[24] CB, solicitor, represented VR and was present on each day of the hearing. We can find nothing in the transcripts of the hearing which could be considered to be notice to VR via her representative that her capacity to make the will and the advance health directive were matters before the Tribunal.
[24]According to In applications concerning RV [2019] QCAT 384, the order giving VR leave to be represented in the proceedings was made 13 June 2019 (see order 6).
In his reasons the learned member said:[25]
Although not the subject of an application to the Tribunal, in the course of the proceedings it has become apparent that some of the Adult’s children question whether some of the directives of the Adult’s Advance Health Directive dated 25 March 2019 actually reflect her views, and whether she had the requisite capable (sic) to make the Directive on that date.
…
The Tribunal is empowered to make declarations about the Adult’s capacity to make the Advance Health Directive and regarding the validity of the document.
…
In view of this compelling and authoritative evidence, and despite the absence of the evidence of the witnessing JP, I find that on 25 March 2019, the Adult did not have capacity to make an Advance Health Directive. As authorised under section 133 of the PAA I propose to declare the Advance Health Directive invalid as I am satisfied that the Adult (as principal) did not have the capacity necessary to make it.
[25]In applications concerning RV [2019] QCAT 384, [302], [305], [317].
We do not consider that the fact that the Tribunal may have power to make orders on its own volition negates the requirement to give appropriate notice to VR. There is nothing in any notice of hearing, order of the Tribunal or in the copies of the applications filed in the Tribunal that would have alerted VR that the learned member may make a declaration that the advance health directive power of attorney was invalid. It follows that the hearing and the decision about the advance health directive power of attorney was invalid.
The learned member erred in law in making orders about the advance health directive power of attorney.
Therefore, we set aside the following decisions:
(a)RV did not have capacity for executing the Advance Health directive dated 25 March 2019.
(b)The following Advance Health Directive for RV is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:
The Advance Health Directive dated 25 March 2019 directing [VSI], her attorney for personal/health matters.
Further, we declare that the decision of the tribunal dated 9 December 2019 that VR did not have capacity for executing the Advance Health Directive dated 25 March 2019 was invalid. We also declare that the declaration that the advance health directive was invalid is invalid.

In relation to the will, the learned member said:[26]
[26]In applications concerning RV [2019] QCAT 384, ‘Adult’s capacity to make her 2017 Will’ dealt with at [319]-[339] (inclusive) but quoted paragraphs are [318], [320], [321], [322], [328], [334].
I turn to another matter disclosed in the course of the hearings.
…
This amendment of the Adult’s will, while not the subject of a current application to the Tribunal, has created conflict in the family and appears likely to be legally challenged. While it is not within the Tribunal’s authority to rule on the validity of the will, as I have outlined above, the Tribunal is empowered to make a declaration about a person’s capacity for a matter, including their capacity to make a will.
It appears particularly appropriate that I consider the Adult’s capacity to make a will, as it was made only two months and one week prior to the Adult transferring the title to her home to [VSI], a matter for which I have found that she lacked capacity. With respect to the transfer of title I have found that while the Adult may have had capacity to understand the nature and effect of her decision, she most probably was not capable of freely and voluntarily making the decision.
There appear to be many similarities between the Adult’s making her new will and her transfer of title to her home.
…
Courts have also held that testamentary capacity also requires the capacity to withstand the pressures or dominance of anyone who would exert undue influence regarding their distribution of their estate.
…
The evidence presented in this case establishes all the elements of undue influence and very little if any evidence to rebut the presumption of undue influence flowing from the facts.
While the learned member did not make a declaration that VR did not have capacity to make the 2017 will, the direction the learned member made to the administrator regarding a potential challenge to the will seems to reflect the reasons of the learned member that he had doubts about VR’s capacity to make the will. VR was not, in our view, given any notice that such a matter could be the subject of a decision or direction of the Tribunal. It was not a matter that was mentioned in any of the applications filed in the Tribunal nor can we locate any reference in the transcript to the active parties being given notice that the 2017 will could be the subject of a decision or direction by the tribunal.
Further, and in any event, it appears to be common ground between the parties to the appeal that the Public Trustee cannot comply with the direction made by the learned member regarding the challenge to the will.
Section 33(2) of the GA 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 for the matter when the power was exercised. ‘Financial matter’ is defined in part 1 of Schedule 2 as a matter relating to the adult’s financial or property matters.
A guardian may be appointed to make decisions about personal matters. A ‘personal matter’ as defined in part 2 of schedule 2 makes it clear that it does not include a ‘special personal matter’. A ‘special personal matter’ for an adult includes a matter relating to making or revoking the adult’s will. Those legislative provisions make it clear that neither an administrator nor a guardian can make decisions about making or revoking a will. The Tribunal has erred in law in making the direction about the will to the Public Trustee as appointed administrator. The hearing and decision insofar as it related to the validity and/or challenge to the 2017 will was invalid and in any event, the direction made was wrong in law.
We set aside the direction to the Public Trustee made by the tribunal on 9 December 2019 that the Public Trustee investigate and if viable and appropriate in all the circumstances, to take such action as is required to challenge the will that RV purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015.

Application for notice to produce

In the appeal, VSI has applied to the Appeal Tribunal for the production of documents by lawyer CB including files held by his firm in relation to the transfer of the White Rock property and in relation to VR’s enduring power of attorney which CB witnessed.
CB was not a party to the proceedings concerning VR. Section 63 of the QCAT Act provides that the tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document relevant to the proceeding to produce the document to the tribunal or a party to the proceeding. However, a document or a part of a document for which there is a valid claim to privilege from disclosure does not have to be produced.[27] Given the documents sought from CB would likely be subject to a claim for legal professional privilege which only VR could waive, and the fact that VSI has not applied for leave to adduce new evidence, we refuse the application to issue a notice to produce.
[27]QCAT Act, s 63(2) and s 63(3).

Transfer of the White Rock property in September 2017

In September 2017, VR transferred her property at White Rock, where she and VSI lived, to VSI. It is convenient to consider a number of issues in respect of the transfer, arising in relation to various appeal grounds and submissions.

Management of the hearing

For reasons that follow, we have decided to dismiss the appeal against the decision to make a declaration that VR did not have capacity to transfer the White Rock property to VSI. However, we have reservations about how the hearing was conducted in a number of respects. While we do not consider that the matters relating to the hearing likely affected the outcome in any material way or caused the hearing to be procedurally unfair to any active party including VR, we make some observations about those matters which may be of some benefit to the members in hearing matters of this kind.
On 13 June 2019, the first day of the QCAT hearing, the learned member decided to give VR leave to be represented in the proceedings.[28] The learned member knew at the relevant time that VR’s representative in the QCAT proceeding would be CB. At various times during the course of the three days of hearing, the learned member questioned the independence of CB in acting for VR to the point where he ultimately proposed the appropriate course was for CB to withdraw from representing VR.[29] However, that did not occur and the learned member did not change the order he had made. In our view that was an option for the learned member and/or he could have considered appointing a representative for VR under s 125 of the GA Act. VR transferred her ownership of the White Rock property to VSI on 20 September 2017. VR’s lawyer for the transaction was CB. CB had witnessed both VR’s and VSI’s signatures on the transfer of the White Rock property from VR to VSI.[30] CB had also represented VSI as well as VR during the Public Guardian’s investigation that led to the Public Guardian filing the application for a declaration about VR’s capacity to make the transfer. CB had also prepared and witnessed the enduring power of attorney made by VR on 20 August 2018.
[28]In applications concerning RV [2019] QCAT 384, order 6 made 13 June 2019 and reasons given at [340]-[351] (inclusive).
[29]Transcript 21 August 2019, T1-11 to T1-21 (inclusive).
[30]Tribunal’s file in relation to proceedings concerning VR, F6.
It is also apparent from the transcript that CB made submissions or conveyed information to the Tribunal on behalf of VSI, referring to the ‘instructions’ he had obtained from VSI.[31]
[31]Transcript 13 June 2019, T1-13, 19-46; T1-14, 18-25.
CB was also a source of relevant information for the tribunal as VR’s legal representative in the transaction. While one of the objects of the QCAT Act is to have the tribunal deal with matters in a way that includes informality, the objects also refer to being quick, economical and fair.[32] The hearing was conducted over a period of three days. The transcript shows that it was difficult for the learned member to manage the hearing due to the conflict between family members but we also consider the lack of clarity in relation to CB’s role in the hearing added to confusion, increased conflict and likely made it more difficult to manage the hearing efficiently. There was no clear delineation of roles in terms of when CB was essentially giving evidence and when he was representing VR in relation to the issues before the Tribunal, i.e., her capacity to make the transfer and when it seems he was also relaying ‘instructions’ from VSI who had not been given leave to be legally represented.
[32]QCAT Act, s 3(b).

Whether there was sufficient evidence before the tribunal

Section 130 of the GA Act provides that to hear and decide a matter in a proceeding, the tribunal must ensure as far as it considers it practicable, it has all the relevant information and material. At the tribunal’s request or by order, a person who has custody or control of information or material that the tribunal considers is necessary to make an informed decision about the matter must give the information or material to the tribunal unless the person has a reasonable excuse. Section 130(5) and (6) make it clear that a reasonable excuse for a person to fail to give the information or material is that the giving of the information or material might tend to incriminate the person but the section overrides any restriction in an Act or the common law about the disclosure or confidentiality of information and any claim of confidentiality or privilege including a claim based on legal professional privilege.
It would, therefore, have been open to the learned member to require production of CB’s file relating to the transfer of the White Rock property.
While it was open to the learned member to request under s 130 of the GA Act any documents to hear and decide the matter, the applicant before the learned member relating to the transfer was the Public Guardian, so they bore the onus of establishing that the presumption of capacity for the transaction was rebutted.[33]
[33]See BSJ [2022] QCAT 51, [50].
The details of the Public Guardian’s investigation in relation to the transfer of the White Rock property from VR to VSI was considered by the learned member.[34]
[34]In applications concerning RV [2019] QCAT 384, [47]-[59].
The documents obtained by the Public Guardian during the course of their investigation were also before the Tribunal. That material included statements and affidavits from VSI and VR which were not contradicted at the hearing. In addition, CB was present at the hearing and the learned member was able to obtain information from him and VSI about the events surrounding the transfer and the transfer itself. For those reasons and for the reasons we have given for dismissing the appeal, we do not consider that the learned member erred by not requesting CB provide his firm’s file in relation to the transfer.

Considerations arising from the grounds of appeal

The statements obtained by the Public Guardian in the course of the investigation included those from VSI and VR. Some of those statements indicated that the reason for the transfer offered by VSI and CB was that it was a decision taken following a verbal confrontation between VSI and his sister LR, physical assault by his brother, VS, and repeated indications that LR intended to ‘kick him … out of the home and place [VR] in aged care’. VSI told the Public Guardian that that both he and VR had become concerned for their welfare.[35] Further it was stated by VSI that VR and VSI discussed and agreed that she transfer the property to him in order to ensure that no one could sell the home, and therefore that the living and care arrangements between them could continue.[36]
[35]Ibid, [48].
[36]Ibid, [49].
The Public Guardian also identified in the investigation that the transfer and a new will made a few months earlier were at odds with the will VR had made two years earlier. It had provided for the whole of her estate to be divided amongst all of her children.[37]
[37]In applications concerning RV [2019] QCAT 384, [52].
The Public Guardian also referred to the two medical reports that were available relating to VR’s capacity for decision making dated either side of the date of the transfer. Of particular note is the report of Dr SM on 12 October 2018 which states that VR was diagnosed with dementia in October 2015 by Dr GM and that Dr SM had stated that VR had ‘clinically declined in the last two years’.[38] Dr SM referred to VR’s diagnosis of dementia and her progressive impaired decision-making capacity, describing the level of impairment as moderate. Dr SM expressed the opinion that VR was not able to manage any decisions about financial matters and was only able to manage simple decisions with respect to other personal matters on her own.[39]
[38]Ibid, [53].
[39]Ibid.

In considering the material before him including the Public Guardian’s investigation, the learned member referred to the close relationship between VR and VSI, not just as mother and son but also as caree and carer.[40] The learned member discussed the medical evidence and identified that he had no medical reports regarding VR’s capacity at or around the time of the transfer.[41] His finding that VR’s cognition was impaired to a far greater degree in 2018 than it had been in 2016 was open on the medical evidence.[42]
[40]Ibid, [61].
[41]Ibid, [66].
[42]Ibid.
The learned member relied on the statement of the nominated doctor in the Advance Health Directive dated 11 August 2017 to find that VR ‘would in all likelihood also be capable of understanding the nature and effect of the transfer of her property to [VSI]’.[43] Later the member concluded that there was insufficient evidence for the learned member to be satisfied on the balance of probabilities that on 20 September 2017, when VR signed the transfer, that she was not capable of understanding the nature and effect of that decision. So, to the extent of that part of the definition of capacity, the presumption could not be rebutted.[44] The learned member also differentiated between whether VR was capable of understanding the nature and effect of the transfer and whether she in fact fully understood the nature and effect of the decision. For those reasons and those that follow, we do not consider the learned member erred as claimed in the same way the learned member was found to have done in the Appeal Tribunal’s decision in MG & Anor v The Public Guardian & Anor[45] where the Appeal Tribunal said:
By contrast, the Member said:
…it is necessary to distinguish between the mere capacity to understand information, and actual understanding. Merely having the capacity to understand is not sufficient consideration for actual understanding. An individual may have the intellectual capabilities to understand information, but nonetheless may misunderstand information…
The Member did not apply the presumption of capacity and, in effect, reversed the onus of proof by requiring TCAR to demonstrate she had capacity for the property transaction. Further, the Member did not apply the statutory test for capacity, as set out in schedule 4 of the GA Act, and erred in finding that evidence of ‘actual understanding’ of the financial implications of the transaction was required.[46]
[43]Ibid, [69].
[44]Ibid, [89]. In relation to the last sentence of that paragraph we consider there is a slip in the reasons with the word ‘not’ being left out before the word ‘rebutted’. We do not consider that that sentence of the reasons can be read any other way and be consistent with the reasoning of the learned member which led to that conclusion.
[45][2021] QCATA 89.
[46]MG & anor v the Public Guardian & anor [2021] QCATA 89, [44], [45].
The learned member’s reasons reflect that he considered there was sufficient evidence to rebut the presumption of capacity on the basis that VR was not capable of making the decision to transfer the property to VSI freely and voluntarily.[47]
[47]In applications concerning RV [2019] QCAT 384, [90].
It was not disputed that VR had not received any legal advice separate from her interactions with CB which resulted in CB witnessing both VR’s and VSI’s signatures on the transfer document.[48] CB’s evidence was that she clearly indicated she wanted to transfer the title to VSI.[49] VSI’s evidence as outlined earlier in these reasons was that he and his mother had ‘agreed’ to the transfer. VSI had also referred to the concern he and VR had about their welfare, in particular from VR’s perspective that other family members would place her in an aged care facility. The learned member also referred to VR’s cognitive impairment, deteriorating memory and her growing incapacity to attend to her activities of daily living.[50] That evidence together with the clear evidence of a dependent relationship having developed between VR and VSI was evidence capable of rebutting the presumption of capacity and supporting a finding that VR was not capable of freely and voluntarily making the particular decision to transfer the White Rock property to VSI.
[48]Ibid, [73].
[49]Ibid, [71].
[50]Ibid, [86](a).
We accept that some of the learned member’s statements could be construed as placing an onus on VSI to prove that VR had capacity to decide to transfer the White Rock property to him, such as:
I note the existence of ample evidence suggesting that the Adult transferred her property under the influence, if not at the bidding of her son [VSI], who stood to gain from the transaction but did not take any steps to ensure that his mother’s interests were protected by ensuring that her decision was freely and voluntarily undertaken and truly reflected her wishes.[51]
[51]Ibid, [78] bolding added.
However, in our view, ultimately, the learned member had the opportunity to hear from all of the active parties and others present at the hearing. His reasons insofar as they specifically related to the transfer of the White Rock property, when read as a whole, do not reveal any finding of fact made by the learned member that the evidence was not capable of supporting. It was therefore open for the learned member to reach the conclusion that the weight of the evidence supported the conclusion that VR was not capable of freely and voluntarily making the decision to transfer the White Rock property to VSI.
Further, the learned member appears to have also relied on principles of undue influence, and placed an onus on VSI that he ought to have ensured VR received independent legal advice and that ‘some if not all of her information and advice came from [VSI], to whom she was effectively gifting her house’.[52] The learned member then added: ‘There is little doubt that an independent lawyer would have not only been able to reassure the Adult as to her concerns but would also have ensured that she understood the implications of transferring the title to her house.[53]
[52]In applications concerning RV [2019] QCAT 384, [78].
[53]Ibid, [73].
At the time of the decision, the learned member was unaware that there was in fact in existence an earlier enduring power of attorney made in 2015 appointing VSI and his sister MVG as attorneys.

Enduring power of attorney made 20 August 2018

The learned member made a series of findings relating to the enduring power of attorney. The learned member found that VR lacked the capacity to understand the nature and effect of the enduring power of attorney.[54] The learned member went further finding that even if he was wrong in that regard, he would find that VR was not capable of freely and voluntarily making the document.[55] The learned member also found that the circumstances surrounding VR’s execution of the enduring power of attorney satisfied elements of undue influence.[56]
[54]Ibid [254].
[55]Ibid [255].
[56]Ibid, [265] and [86].
We do not accept that the learned member applied the incorrect standard of proof in deciding that VR did not have capacity to make the enduring power of attorney. The learned member properly considered the relevant legislative provisions relating to capacity to make an enduring power of attorney in s 41(2) of the POA Act and then said:[57]
This demanding level of understanding required by those making an EPA is reflected in the Principal’s statement of understanding and in the instructions for the witness and in the witness’s certificate. I note that the form used for the Adult’s EPA clearly spells out these requirements.
[57]Ibid, [227].
And further:[58]
While on the surface, the Adult’s decision to hand-over control of personal and financial decisions to a son may appear to be a relatively simple decision, understand the nature and effect of an EPA as spelt out in the [POA Act] is far from simple. The verbal expression of her wishes as reported by all her doctors is clear. It is not, however, an expression of a view that needs to take into account the complexities involved.
[58]Ibid, [251].
The learned member clearly was cognisant of the particular understanding that a principal must have when making an enduring power of attorney.
VSI submits that the learned member erred by disregarding the available evidence of Dr ST and that of CB who was the lawyer who witnessed the document. VSI submits that the learned member also erred in ‘preferring’ the equivocal medical evidence that, it is submitted, largely supports the proposition that VR was capable of making an enduring power of attorney on 20 August 2018, consistently with her ‘independently’ expressed views. VSI submits that the learned member erred in finding that despite Dr ST’s report, despite evidence about the adult’s independently stated wish that her son be able to look after her and her affairs, and despite the execution of the witness’s certificate, the learned member stated ‘there is no evidence suggesting that she understood all the components that institute understanding the nature and effect of the EPA’.[59] These are questions of law for which leave to appeal is not required.
[59]Submissions of the Applicant dated 6 January 2021, [42], [43] and In applications concerning RV [2019] QCAT 384, [252].
Dr ST’s report dated 8 July 2019 was before the learned member.[60] The report completed by Dr ST is in the Tribunal’s standard form. In that report Dr ST states that Dr ST had first seen VR on 14 May 2019 and had last seen her on 8 July 2019. In response to the question, ‘To what extent does the adult have the ability to understand and act on information relevant for making decisions and to what extent does the adult appreciate the consequences of the decision or lack of decision regarding … personal health care’, Dr ST states VR ‘has full capacity, assisted by Blue Care for physical aspect – help shower and dress, chooses her clothes, does her own make up.’ In relation to lifestyle and accommodation choices, Dr ST states ‘clear about where she wants to live and for [VSI] to look after her. Has capacity to make day to day simple lifestyle choices.’ In relation to financial affairs ‘lacks capacity and is unable to operate a bank account or ATM or make complicated financial decisions.’ In response to the question, ‘In your opinion is the adult capable of making decisions freely and voluntarily’, Dr ST has ticked the box to answer ‘No’ and has written ‘as above’. In response to question 8 of the report, Dr ST has indicated that the adult executed an enduring power of attorney on 20 August 2018. Dr ST has then indicated in response to the question at 8.2 that VR understood the particular matters set out which reflect the relevant understandings set out in s 41 of the POA Act at that time.
[60]Med 6 on the Tribunal’s file relating to the proceedings.
The learned member correctly stated the relevant law in relation to capacity to make an enduring power of attorney including the relevant legislative provisions in force at the relevant time. He noted that capacity is time specific.[61]
[61]In applications concerning RV [2019] QCAT 384, [224], [225], [226] and [229].
The learned member summarised all of the medical reports before him.[62] Those reports spanned the period 2015 to 2019. Dr ST’s report is summarised including that Dr ST has ‘indicated that when the Adult executed her enduring power of attorney on 20 August 2018, she was fully capable of doing so’.[63]
[62]Ibid, [131]-[178] (inclusive).
[63]Ibid, [172].
When considering the medical evidence of VR’s capacity for making the enduring power of attorney, the learned member stated:[64]
The capacity that is relevant to the validity of the EPA is the Adult’s capacity at the time she executed the document on 20 August 2018. Evidence as to her capacity before or after is only relevant to the extent that it sheds light on her likely capacity at the time of the document’s execution.
[64]Ibid, [229].
The learned member went on to consider the two reports closest to the date of the enduring power of attorney.[65] The learned member correctly outlined and took into account that medical evidence which comprised two reports regarding VR’s capacity to make an enduring power of attorney and generally in the form of the medical report of Dr SM, general practitioner, dated 12 October 2018 (following a consultation on 12 September 2018) and that of Dr SA, specialist in geriatric medicine dated 9 November 2018.[66] Dr ST’s report was referred to again after those reports are summarised.[67]
[65]In applications concerning RV [2019] QCAT 384, [230].
[66]Ibid at [231]-[240] inclusive and documents at Med 1 and part of Med 6 on the Tribunal’s file regarding the original proceedings.
[67]Ibid, [240].
There was no evidence before the learned member that there was in fact an assessment of VR’s capacity on 20 August 2018. Dr ST’s report makes it clear that she had not seen VR prior to 14 May 2019, after the enduring power of attorney was executed. Dr ST’s report was at best an opinion in retrospect of VR’s capacity to make an enduring power of attorney on 20 August 2018 based on reports and tests of others. Given the learned member considered Dr ST’s report, we do not accept the submission that the learned member disregarded that report.
Further, we reject the submission that the learned member erred in preferring the two reports referred to in the reasons. In relation to the report of Dr SM, the learned member said “As the Adult’s GP since 2013, Dr [SM’s] views reflect extensive knowledge of the Adult’s conditions. It was Dr [SM] who had referred the adult to specialists who first identified her diminishing cognition, memory problems and finally her dementia.”[68] In relation to the report of Dr SA, the learned member said “Doctor SA specialises in Geriatric Medicine. The Adult had been referred to her for cognitive assessments. She diagnosed severe mixed dementia.”[69]They were reports made contemporaneously by the health professionals, based on the particular author’s own assessment of VR and therefore deserving of more weight than any other reports before the learned member. Dr SM’s opinion was that VR could not make an enduring power of attorney and VR was also incapable of making any financial decisions and capable of only ‘simple or partial decisions regarding health, care and accommodation’.[70] Dr SA concluded that while VR appeared to have capacity to make simple lifestyle choices, she lacked the capacity to manage her financial matters or decide on complex lifestyle choices or health related matters. The learned member was entitled to take that evidence into account in considering whether the presumption of capacity was rebutted in relation to VR’s execution of the enduring power of attorney.
[68]Ibid, [233].
[69]Ibid, [235].
[70]Ibid, [234].
We have earlier discussed section 130 of the GA Act. While it was open to the learned member, using that power, to request CB’s file relating to the enduring power of attorney, we do not consider that the learned member erred in not doing so. There was already extensive evidence before the learned member, and CB himself was in attendance at the hearing. Further, we note that the Public Guardian brought the application seeking a declaration in relation to the enduring power of attorney, and so had the onus of establishing that the presumption was rebutted.
The learned member’s reasons accurately reflect the evidence provided by the witness to the enduring power of attorney, CB, both in writing and confirmed in oral evidence before the learned member.[71] The learned member referred in particular to CB’s evidence that “he did not ask for doctors’ reports about the Adult’s capacity, as there were no indications that she was suffering from any illness that could preclude her signing the EPA”. Further, “when he had attended the house on an earlier occasion for the purposes of unrelated business, the Adult had asked him to attend in the near future in regard to an EPA”. CB said “he was not aware of any issues regarding the Adult’s mental health or cognitive function and no third party had volunteered information on her condition”. CB observed that “the Adult had no trouble recalling things, appeared to have a good memory and did not repeat herself.”[72]
[71]In applications concerning RV [2019] QCAT 384 at [241]-[250] inclusive and see H1 of the Tribunal’s file regarding the original proceedings and Transcript of hearing on 13 June 2019, 1-16, 47-43; T1-17, 30-44, T1-18, 1-13.
[72]Ibid at [247] and [249] and [250].
When CB provided certification as a legal practitioner, cognisant of the importance of signing the certificate that VR appeared to have capacity to make the legal documents, he would no doubt have been aware of s 41 of the POA Act and the definition of capacity in Schedule 3 of the POA Act. CB would have been aware that the principal, in giving a power to another person to make decisions for them about particular matters must, at the time the power is given, have capacity for that decision making themselves. If they do not, they cannot give that power to someone else. In those circumstances, relevant questions would have included those around VR’s health and financial affairs. CB’s evidence is that he did not ask VR any such questions.
When the evidence of CB and the medical evidence are considered together, we cannot accept the submission that the learned member has erred in finding that VR was not capable of understanding the nature and effect of the enduring power of attorney on 20 August 2018.
It is not necessary for us to further examine the learned member’s findings in relation to the other limbs of the definition of capacity and undue influence. We are not persuaded that the learned member erred in his findings and orders relating to the enduring power of attorney.

Conclusions on APL019-20 appeal grounds 1, 2 and 4

Ground 1 partly relates to the will, and we have indicated above that the direction relating to the will was wrongly made.
Ground 1 otherwise contends that the tribunal made errors of fact by failing to consider relevant factors in arriving at the conclusion that VR did not have capacity to transfer the White Rock property or to make the enduring power of attorney. We are not persuaded that the learned member erred. As will be apparent from the discussion above, the learned member considered the various strands of evidence before him and made findings after weighing up the evidence. We consider the findings were open, and it was not incumbent on the learned member to obtain additional evidence.
Ground 2 contends that the learned member failed to apply the presumption of capacity, and that he misconstrued or disregarded available medical and other evidence. As will be apparent from the discussion above, we are satisfied that the learned member applied the presumption of capacity, and that he took into account the evidence before him. We are not persuaded that he erred.
Accordingly, to the extent that leave to appeal is required for grounds 1 and 2, we refuse it because no error has been demonstrated.
Ground 4 contends errors of law in relation to the standard of understanding required in respect of decisions about the transfer of the property, the making of the enduring power of attorney and the advance health directive, and in relation to testamentary capacity. So far as the advance health directive and the will are concerned, we have declared the relevant orders invalid on another basis. So far as the remainder of ground 4 is concerned, we are not persuaded that error has been shown. We are satisfied that the learned member correctly applied the relevant statutory criteria.

APL019-20 appeal ground 3

This ground relates to the absence of VR from the hearing.
VSI argues that leave to appeal should be given because the learned member excluded VR from the proceedings on the basis that she was represented by CB, and that the learned member ‘determined that [VR’s] attendance would be detrimental to her health and best interests and excused her from attendance at the hearings’.[73] Linked to that argument is the submission that ‘the Tribunal must afford the wishes and views of the person paramount consideration unless doing so is likely to significantly adversely affect their interests’.[74]
[73]Written submissions of the applicant dated 6 January 2021 (AS001) at [28] referencing the learned member’s reasons for decision In applications concerning RV [2019] QCAT 384, [192].
[74]Written Submissions of the applicant dated 6 January 2021 (AS001) at [27].
The relevant part of the learned member’s reasons referred to by VSI should be considered in its entirety. The learned member was considering whether the presumption of capacity for VR was rebutted at the time of the hearing. He said:[75]
In view of medical comments as to the stress that family disagreements and the Tribunal action have caused the Adult, I determined that attendance would be detrimental to the Adult’s health and best interests and excused her from attendance at the hearings. While I read the Adult’s brief written submissions, asking why her children have involved the Public Guardian, and noting that she wants to remain in her home under [VSI’s] care, I have not had the opportunity to observe the Adult’s communication capacity.
[75]In applications concerning RV [2019] QCAT 384 at [192].
The tribunal must apply the General Principles in exercising a function under the GA Act.[76] At the time of the hearing, the General Principles included that an adult is presumed to have capacity for a matter (Principle 1); that certain matters must be recognised and taken into account including an adult’s right to participate to the greatest extent practicable in decisions affecting their life, and the importance of preserving, to the greatest extent practicable an adult’s right to make his or her own decisions (Principle 7). Principle 7 went on to state:
[76]GA Act, s 11. Section 81 of the GA Act was amended from 30 November 2020 inserting s 80(2) which provides that in performing its functions or exercising its powers under this Act in relation to an adult, the tribunal, must, to the greatest extent practicable, seek and take account of- (a) the views, wishes and preferences expressed or demonstrated by the adult; and the views of any member of the adult’s support network.
…
(3)     So, for example -
A.the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult’s life; and
B.to the greatest extent practicable, for exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account; and
C.a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive to the adult’s rights.
(4)     Also, the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult’s views and wishes.
(5)     However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult’s proper care and protection.
(6)     Views may be expressed orally, in writing or in another way, including, for example, by conduct.
The learned member excused but did not prohibit VR from attending. As the learned member stated, he took into account the written submissions of VR. These were in the form of an affidavit prepared by CB. The learned member also relied on secondary sources of information regarding VR’s views and wishes. These were communicated principally by her representative, her children, and the Public Guardian. These views and wishes were as at the commencement of the hearing and, further, as the hearing progressed over the three separate dates.[77] VR was represented by a lawyer, CB. We do not consider that the learned member has failed to apply the General Principles or has otherwise erred.
[77]Affidavit of VR dated 7 November 2018 (H5) on the Tribunal’s file concerning VR; reports of the Public Guardian, information received from family members and the medical reports before the Tribunal.

Proposed additional ground of appeal in APL019-20 relating to apprehended bias

VSI submits that the tribunal ‘erred by creating an apprehension of bias during the proceedings and in the decision.’[78] In oral submissions, VSI also argued that there was apprehended bias in that the learned member appeared to prefer an adverse finding about the relationship between VR and VSI.
[78]Written submission of VSI dated 6 January 2021 (AS001) [102].
VSI refers to the following paragraph of the learned member’s decision relating to relations between VSI and one of his siblings:[79]
The strained relationship turned to verbal abuse, threats and finally physical assault resulting in a Domestic Violence Protection Order being ordered by consent without admissions against [VSI] on 14 December 2018. The order listed [LR] as the Aggrieved.
[79]In applications concerning RV [2019] QCAT 384, [18].
VSI says the inference in that paragraph is that VSI was the cause of domestic violence, and notes that other evidence of VSI being assaulted by his brother did not make its way into the reasons when the evidence of the assault was before the learned member.[80] The paragraph is set out under the heading ‘Background to the proceedings’. In our view, nothing in that paragraph indicates that the learned member misunderstood VSI’s connection with the order. There was no evidence of any other order of this kind having been made by a court.
[80]Written submissions of VSI dated 6 January 2021 (AS001), [104]-[110].
VSI also submits that the learned member’s reference in the reasons to CB being VSI’s ‘friend’ also ‘creates an apprehension of bias held by the Member against [VSI] in circumstances where there was evidence from [CB] to the contrary, particularly where the Member was considering the nature of the independent legal advice sought and obtained by the adult from [CB].’[81]
[81]Ibid, [111].
The relevant paragraph of the reasons where CB is referred to as VSI’s friend actually refers to BC as VSI’s ‘friend and lawyer’. [82] We consider it was open to the learned member to describe VSI’s relationship with CB in this way. CB had given evidence that he was introduced to VSI by his fiancée. Further, CB had acted for VSI in the Public Guardian’s investigation, and during the course of the hearing CB referred to instructions he had received from VSI.
[82]In applications concerning RV [2019] QCAT 384, [257].
We have earlier discussed the management of the hearing below. However, on the matter of apprehended bias we must consider the principles in Ebner v Official Trustee in Bankruptcy.[83] As Carmody J said in Maffey v Mueller:[84]
To prove apprehended bias, the applicant must establish that:
A fair minded lay observer might reasonably apprehend that he judge might not bring an impartial mind to the resolution of the question the judge is required to decide…
[This] requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[85]
[83](2000) 205 CLR 337.
[84][2016] QCATA 19 at [48]-[49].
[85] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, [6], [8].
We do not consider that VSI has established a logical connection between the matters identified and the ‘feared deviation from the course of deciding the case on its merits’. VSI had lodged material in response to the Public Guardian’s investigation which was before the learned member. The reasons for decision reflect that that evidence was taken into account by the learned member. As the Appeal Tribunal said in PL v PT & Ors:[86]
…
Hearings of applications under the Guardianship Act are inquisitorial in nature. It is appropriate to outline at the commencement the issues required to be determined according to the legislative framework (although it is not necessary to talk about the particular sections that are relevant) and then systematically consider the relevant issues. Because there are no respondents to the applications who, in other types of applications outside the guardianship jurisdiction of QCAT, would put forward evidence contrary to the applicant’s evidence, the member hearing the proceeding to ensure, as far as the Tribunal considers it practicable, that QCAT has all relevant information when hearing and deciding applications.[87]
[86][2018] QCATA 114 at [37].
[87]Camden v McKenzie (2008) 1 Qd R 39 at 47.
This will mean that the presiding member must test the evidence themselves during the course of the hearing. The learned member heard, and discussed in his reasons, the competing evidence and contentions of different family members in detail. We see no indication of pre-judgment.
The claim of apprehended bias fails. Accordingly, we refuse the application for leave to add a ground of appeal relating to apprehended bias.

Decision on 9 December 2019 to appoint the Public Guardian as guardian for VR for decisions about accommodation and with whom VR has contact and/or visits for a reviewable period of two years

There is no directly relevant ground of appeal in APL019-20, but we will discuss the submissions because similar arguments are raised in APL228-20.
VSI submits that he was the adult’s statutory health attorney until the decision of the Tribunal on 9 December 2019 pursuant to s 63 of the POA Act.[88] He submits that it is not disputed that he had acted in VR’s best interests in the past with regard to her care and wellbeing and that he devoted himself to a very considerable extent to her welfare.[89] VSI submits that he was compatible with VR, he was wishing to act as guardian, and there was no finding that he was not able to do so. VSI relies on the Supreme Court of New South Wales decision in Re B (No.1) where the court said:[90]
The plaintiff has two brothers, Harry and John. They are all children of Mrs B. John proposed that his son James be guardian of Mrs B. The Tribunal concluded that there was a history of disagreement and distrust between the brothers that had an adverse effect on Mrs B and that it was not possible for important and necessary decisions to be made within the family due to the level of conflict. The Tribunal formed the view that it was in Mrs B’s best interests that the Public Guardian be appointed as her guardian for a period of 12 months.
The Tribunal did not decide that the plaintiff was not a proper person to be appointed as Mrs B’s guardian. It did not decide that his plans for his mother’s care or accommodation were not in her interests. Nor did it make any such findings concerning Mrs B’s grandson James. Unless the Tribunal had concluded that neither the plaintiff nor Mrs B’s grandson could properly be appointed as Mrs B’s guardian (and it made no such finding) it ought not to have appointed the Public Guardian.
[88]Applicant’s submissions dated 15 June 2021 (AS003), [6].
[89]Ibid, [7].
[90][2011] NSWC 1075, [4] and [6].
VSI submits that the learned member made an error of law by appointing the Public Guardian in circumstances where there was an appropriate family member available and willing to be appointed guardian. Further, he was a person that the adult herself, through her actions and expressed decisions, chose to be her carer and guardian.[91] VSI submits further that if it was considered appropriate for the tribunal to make a decision to appoint a guardian for the adult at all, then it was appropriate to formalise the then current statutory guardian arrangement and appoint VSI as guardian for the adult in order to maintain the status quo.
[91]Applicant’s submissions dated 15 June 2021 (AS003), [11].
Section 62 of the POA Act authorises a statutory health attorney for an adult’s ‘health matter’ to make any decision about the health matter that the adult could lawfully make if the adult had capacity for the matter. ‘Health matter’ is defined in schedule 2, section 4 as a matter for a principal relating to health care, other than special health care of the principal. ‘Health care’ is then defined in Schedule 2, section 5. Essentially health care of a principal is care or treatment of, or a service or a procedure for, the principal to diagnose, maintain or treat the principal’s physical or mental condition and carried out by or under the direction or supervision of a health provider. A statutory health attorney for a person cannot make decisions of any other kind for the principal.
The learned member did not appoint the Public Guardian to make health care decisions for VR. VSI or any other person from the list in s 63 of the POA Act who was readily available to exercise power for the health matter could have made decisions about health care for VR if she did not have capacity to make those decisions for herself.
VSI had not make a formal application to be appointed as a guardian for VR. VR’s capacity to make the enduring power of attorney dated 20 August 2018 was in issue, so VSI might have considered making the appropriate application as his siblings did prior to the date of the second day of the hearing which ultimately spanned three separate dates. However, we accept that VSI never resiled from his position that he should be his mother’s decision maker.
The learned member considered the decisions that needed to be made by VR in relation to personal matters. In relation to services and health care:[92]
While [VSI’s] siblings have criticised [VSI] for being culturally inappropriate in attending to his mother’s personal needs as her paid carer, there is in large measure consensus that the Adult has been and continues to receive appropriate care, and access to services and health care.
At the hearing on 12 November 2019, the Adult’s children and the Limited Guardian advised that all required services were now being accessed by the Adult, and that family members were in agreement about, and able to ensure that all required decisions regarding the Adult’s personal health, that she was incapable of making, were made for her.
Consequently, all interested parties have agreed that the Adult’s needs regarding access to services and personal health care can be met informally, without the need for a Guardian or attorney with authority for those matters. I find the evidence supports this view.
[92]In applications concerning RV [2019] QCAT 384, [283], [284] and [285].
No guardian was appointed to make decisions about VR’s health care or services. VSI’s role as part of VR’s existing support network meant he was part of the decision making for VR on an informal basis. That is contemplated by s 9(2)(a) of the GA Act. The learned member focussed on the decisions that he found needed to be made at the time of the last day of the hearing that he considered could not be made informally by VR’s existing support network. These were decisions about where VR should live (accommodation) and with whom VR should have contact.[93]
[93]In applications concerning RV [2019] QCAT 384, [286].
While we accept that the learned member did not make a clear finding that VSI was not appropriate for appointment in line with s 15 of the GA Act, it is clear from the learned member’s reasons that he did not consider that any family member was capable of adhering to the General Principles in making the decisions about where VR should reside and with whom she should have contact and ultimately how that might be co-ordinated.[94] The learned member specifically referred to the General Principles and said:[95]
However, their appointment as guardians would not, in my opinion, be currently able to maintain all of the Adult’s existing relationships as required by General Principle 8. I particularly refer to the maintenance of the Adult’s relationship with [VSI], as she has lived with [VSI] for many years and in that time has come to rely on his assistance and care
…
These Tribunal proceedings, it is accepted, have caused the Adult much stress, anxiety and no doubt sadness, and led me to excuse her from attendance. I also accept that verbal confrontations relating to access and other issues relating to her and her care by [VSI] have caused her distress.
It would undoubtedly be in the Adult’s best interests if the confrontation between her children was minimised or eliminated as soon as possible. This I conclude can only be achieved through the appointment of neutral guardian and administrator, who are not part of the family dynamic.
Such appointments are not intended to exclude the family from acting for the Adult in the future or having input into decision made by the appointed Guardian and Administrator. Instead, the appointments of an external guardian and administrator should be seen as necessary only as long as the family situation makes the appointment of a family members not conducive to the best interest of the Adult.
…I also propose to appoint the Public Guardian as guardian for the personal matters of contact and visits and for decisions regarding accommodation.
[94]GA Act, s 15(1)(a) and the General Principles then in Schedule 1.
[95]In applications concerning RV [2019] QCAT 384, [295], [297], [298], [299] and [300].
We do not consider that the learned member has failed to consider VSI as an option for appointment as guardian. Rather, the learned member did not consider he was appropriate for appointment at the time and in the circumstances of the case. Contrary to VSI’s submission, the learned member did not make any finding that VSI was culturally inappropriate for appointment. Indeed, the learned member said that while that criticism had been made of VSI by his siblings, ‘there is in large measure consensus that the Adult has been and continues to receive appropriate care, and access to services and health care.’ We do not accept the learned member has erred as submitted.
VSI submits that the learned member, in appointing the Public Guardian for accommodation decisions, erred in failing to take into account VR’s views and wishes that she live with VSI.[96] Further, he submits that the learned member failed to apply principle 7 in particular of the General Principles.[97] He also argues that the appointment of the Public Guardian was in breach of s 19 of the Human Rights Act 2019 (‘the HRA’)[98] which recognises a person’s right to choose where to live.
[96]Written submissions dated 6 January 2021, (AS001), [15].
[97]Ibid, [88] and [89].
[98]Ibid, [98].
Having found that VR had impaired capacity in relation to particular personal matters and that particular decisions needed to be made for VR including contact decisions, the learned member considered that for those decisions to be made, accommodation decisions (temporary or permanent) might need to be made to facilitate contact between VR and various family members. The learned member had found that VR was well cared for by VSI. The learned member was aware of VR’s wishes and her close relationship with VSI. It is not the case that the learned member failed to take VR’s wishes into account as set out in Principle 7. The Public Guardian as the appointed guardian was also required to apply the General Principles in making decisions for VR. The learned member did not decide where VR should live, only that such decisions needed to be made and that VR was unable to make those decisions for herself. That does not mean that her views and wishes should not be sought and taken into account when any decision affecting her is to be made.

At the time of learned member’s decision the HRA had not commenced operation. The learned member has not erred in failing to apply the HRA.

Other matters in relation to APL019-20

When the learned member declared the enduring power of attorney dated 20 August 2018 invalid, he was unaware that VR had made an enduring power of attorney on 22 May 2015 appointing VSI and his sister, MVG, as attorneys for financial, personal and health matters. The effect of the decision to declare the 2018 enduring power of attorney invalid was that that document was void from the start. It follows that the 2015 enduring power of attorney was operative.
It was the discovery of the 2015 enduring power of attorney that caused the review of the appointments made by the learned member on 9 December 2019 due to the operation of s 23 of the GA Act. The decision in those reviews is the subject of APL228-20.
What is now clear is that VSI and MVG were VR’s attorneys at the time of transfer by VR of the White Rock property. This raises the potential for other applications to be brought or at least consideration by the administrator for VR whether any other application or action should be taken in relation to the circumstances of the transfer.
APL228-20
The appeal grounds are extensive, and we have set them out in paragraph [15] above.

Principle of substituted judgment

VSI argues that the learned member failed to comply with Principle 7 of the General Principles in the GA Act by not taking into account VR’s view and wishes. We reject that argument. The learned member commented, for example, when discussing who should be appointed guardian:[99]
The appropriate starting point for the Tribunal would be the adult’s wishes as to who she thought appropriate to support her. Unfortunately the evidence before the Tribunal is that the adult’s wishes are not clear as she responds in a favourable manner to whoever it is she is with at the time.
[99]In applications concerning VR [2020] QCAT 208, [23].
The learned member also referred to the history of VR’s living arrangements, which included her choice over many years to live with VSI. In our view, the learned member had adequate and proper regard to VR’s views and wishes, as expressed and as demonstrated in the past by conduct.

Continued appointment of the Public Guardian

VSI submits that it is not appropriate for a tribunal to make an order continuing the appointment of the Public Guardian for an adult in circumstances where a family member could properly be appointed for the adult. He relies on the decision of the Supreme Court of New South Wales in Re B (No.1).[100] VSI relies particularly on the following passage:[101]
As there appears the question on the present application is whether the plaintiff can properly be appointed as his mother’s guardian. If he can properly be so appointed, then the Public Guardian should not continue to exercise the functions of guardian … It is preferable to appoint as a guardian a family member or other person having a close personal relationship with the person in need of guardianship.
[100][2011] NSWSC 1075 [6] and written submission dated 15 June 2021.
[101]Ibid at [3] citing W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [26].
Further, VSI relies on the report of the Public Guardian dated 20 August 2019 which acknowledges that amicable agreements had been reached between VSI and MVG about VR spending weekend time with MVG. VSI further states that the Public Guardian’s report declares that VSI actively facilitated contact between VR and her children.
A fair reading of the Public Guardian’s report as a whole, in our view, is that there remained a very significant level of family conflict. For example, in addition to the parts referred to by VSI, the report also states:[102]
Due to the views expressed by [VR], the delegate guardian has worked with [VR] and her family to try to support and encourage contact between [VR] and her children without the requirement of a descriptive formal contact decision.
[VR] and her family have been informed that [VR’s] views and wishes continue to be considered and respected. This is a highly conflicted family dynamic and has involved the delegate guardian being required to spend excessive time negotiating and passing on messages between all family members.
[102]Document H30 on the tribunal’s file for VR.
The learned member made findings of fact that we consider were open on the evidence including that there has been significant conflict between family members over where VR should live, and that there has been significant conflict between family members around VR’s contact with VSI.[103] We note that the learned member’s reasons reflect that VSI’s solicitor agreed there was a ‘need for a guardian and the big issues were around contact between VSI and his mother and where she lived’.[104] VSI acknowledged that the 22 May 2015 enduring power of attorney was ‘unworkable because of the significant conflict between the attorneys.’[105] The learned member made a clear finding of fact in relation to the unworkability of that enduring power of attorney.[106]
[103]In applications concerning VR [2020] QCAT 208, [20].
[104]Ibid, [15].
[105]Ibid, [3].
[106]Ibid, [5].
The learned members reasons are consistent in our view with the evidence before him:[107]
There are significant differences of opinion between family members making it difficult for a family member to undertake the role. This supports the appointment of an independent guardian. A substantial part of the hearing was hearing the long terms grievances between certain family member and VSI. This suggested that the conflict was well entrenched. …
[107]Ibid, [28].
And later:[108]
The Tribunal in relation to the submissions of VSI (paragraphs 22 to 30) makes the following points. An appointed Guardian must follow the General Principles. The Tribunal agrees with VSI that this means taking all reasonable steps to ensure that contact be maintained between VSI and his mother. There is clear evidence that VSI has had limited access to his mother. The conflict between family members has exacerbated these difficulties. The different family members are blaming each other for this state of affairs. The Public Guardian must navigate these difficulties and put together a plan to ensure that contact can occur. This may require some ground rules around contact and/or a communication plan. The guardian may need to make the adult’s rights clear to all family members and emphasise that they all need to work in the adult’s best interests.
The Tribunal is of the view having weighed up all the evidence that on the balance of probabilities the Public Guardian is more appropriate to be appointed as guardian for VR. The significant factors being the level of conflict between family members and the existence of a significant conflict of interest between the adult and VSI.[109]
[108]Ibid, [38] and [39].
[109]The ‘conflict of interest’ being referred to at [29] in relation to the decision of the learned member below subject to APL019-20 to declare that VR did not have capacity to make the transfer of the White Rock property to VSI.
VSI submits that the learned member also erred because the tribunal appointed the Public Guardian but did not find that VSI was not a ‘proper person’ for appointment.[110]
[110]Written submission dated 15 June 2021.
The learned member was conducting a review and so was required to apply s 31 of the GA Act as in force at that time. Section 31(4) of the GA Act provided that 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.
While the learned member’s reasons as set out above may have been a little imprecise, we consider that ultimately what he decided was that VSI was not more appropriate than the Public Guardian at the time of the decision. We consider that that conclusion was open to the learned member on the evidence before him. We do not consider the learned member has erred.

Other matters raised in the appeal grounds relating to guardianship

We do not accept that the learned member failed to adequately apply the general principle concerning the importance of maintaining an adult’s existing supportive relationships. It is apparent, for example, from the passage quoted in paragraph [119] above that the learned member was mindful of the importance of maintaining VR’s relationship with VSI.
VSI contends that every person in Queensland has the freedom to choose where to live, and that the learned member failed to apply that principle. This appears to be a reference to the right in section 19 of the HRA. However, it is recognised in section 13 of that Act that rights can legitimately be limited in some circumstances. The learned member considered it necessary for a substitute decision maker to be appointed in VR’s case. This conclusion was open to the learned member, notwithstanding the limitation on VR’s right.
The other grounds relating to guardianship essentially reproduce arguments that were advanced before the learned member and take into account by him. He referred in his reasons to various passages in the written submissions that had been filed on VSI’s behalf on these topics. An appeal is not an opportunity to simply re-run arguments that did not succeed at first instance. Error must be shown. VSI has not shown error. The learned member reached a conclusion about who the appropriate guardian was. We do not accept that the learned member failed to consider relevant factors. It is also apparent that the learned member did not decide to continue the appointment of the Public Guardian merely because there was family conflict. The member did – properly in our view – regard the level of conflict as a substantial factor favouring the appointment of an independent guardian, but he also considered other factors which favoured the appointment of family members, including VSI.[111]
[111]In applications concerning VR [2020] QCAT 208, [26], [27], [35]
The learned member was not obliged to find that the accommodation decision made by the Public Guardian, to relocate VR from the home she had shared with VSI for many years, was manifestly wrong. The learned member observed that where the actions of a guardian had been, for example, ‘manifestly wrong’,[112] that would go to the appropriateness of the guardian for continued appointment. The learned member, after considering the history, reached a conclusion that ‘the Tribunal does not accept that [the accommodation decision] means that the Public Guardian has failed to act in the adult’s best interests’.[113]
[112]In applications concerning VR [2020] QCAT 208, [34].
[113]Ibid, [32].
The learned member, having considered the various criticisms advanced by VSI about the decisions of the Public Guardian about both accommodation and contact, nonetheless found that the Public Guardian remained appropriate. That conclusion was open on the evidence.

Other matters raised in the appeal grounds relating to administration

VSI contends that the learned member should have appointed one administrator for day to day financial matters and another for other financial matters. We do not consider that the learned member erred in deciding that responsibility for all of VR’s financial decisions should remain with the Public Trustee rather than being split between VSI for day to day finances and the Public Trustee for matters relating to the earlier tribunal decision. The learned member was conducting a review of the appointment of the Public Trustee as administrator for VR in circumstances where it was found that the enduring power of attorney dated 2015 was unworkable.
The learned member considered the evidence at the relevant time regarding the need for an administrator, referring to the adult’s finances as being relatively simple as she receives a pension to meet her daily needs. However at the time of the decision, the decision of the learned member dated 9 December 2019 had not been stayed and VSI had registered a mortgage over the property securing his own liabilities over the property.[114] It was VSI who submitted that he should be appointed to manage day to day finances and the Public Trustee to deal with the property transfer subject to the resolution of the appeal.[115]
[114]Ibid, [44].
[115]Ibid, [2020] QCAT 208, [44].
The learned member went on to give brief reasons for not deciding to appoint two administrators for different decisions stating:[116]
[116]Ibid, [47]-[52].
The Tribunal notes that s 31 provides on review of an administrator that an administrator can only be replaced if the appointee is incompetent or another proposed appointee is more appropriate.
The issue for the Tribunal is that the only options are to appoint VSI or the Public Trustee of Queensland. RL (daughter), MG (daughter), VS (son) and MA (son-in-law) all support the appointment of the Public Trustee of Queensland and VSI (son) supports himself.
The Tribunal relies on the discussion of appropriateness set out above in relation to the appointment of a guardian. Those considerations are relevant in this case to the appointment of an administrator.
The Tribunal is of the view that a split appointment should only occur in limited circumstances and the circumstances here don’t support a split in the responsibilities.
The Tribunal is of the view on the balance of probabilities that the Public Trustee of Queensland is more appropriate to be appointed as administrator.
The Tribunal finds:
(a)VSI has a significant conflict of interest;
(b)the status of the adult’s legal interest in her former property is uncertain;
(c)The Public Trustee of Queensland is a professional independent administrator who can best support the adult with her financial affairs.
Given the decisions made 9 December 2019 that VR did not have capacity to transfer the White Rock property and the directions made to the Public Trustee on that date, and the change of circumstances after the hearing with VSI registering a mortgage over the property, we consider it was open for the learned member to conclude at the time of the hearing that VSI was not more appropriate for appointment than the Public Trustee, and that the appropriate appointment was a plenary one. No error is established.

Conclusion on the appeal grounds advanced for APL228-20

Error has not been established. Accordingly, to the extent that leave to appeal would be required, it is refused. The appeal is dismissed.

Conclusion

VSI’s first appeal has succeeded in respect of the orders about the will and the advance health directive power of attorney. The appeals are otherwise unsuccessful.

CITATION:	VSI v The Public Guardian & Ors [2023] QCATA 25
PARTIES:	VSI
(applicant/appellant)
v
THE PUBLIC GUARDIAN PUBLIC TRUSTEE OF QUEENSLAND VR MVG VS LR
(respondents)
APPLICATION NO/S:	APL019-20 and APL228-20
ORIGINATING APPLICATION NO/S:	APL019-20: GAA4795-19; GAA4796-19; GAA4797-19; GAA9099-19; GAA9100-19; GAA7401-19 APL228-20: GAA3022-20; GAA3023-20; GAA6018-20; GAA6019-20; GAA6020-20; GAA6021-20
MATTER TYPE:	Appeals
DELIVERED ON:	1 February 2023
HEARING DATE:	13 June 2022
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie (presiding) Member Kanowski
ORDERS:	APL019-20 1. The following decisions of the Tribunal made on 9 December 2019 are set aside: (a) VR did not have capacity for executing the Advance Health Directive dated 25 March 2019; (b) The following Advance Health Directive for VR is declared invalid pursuant to s 113(2) of the *Powers of Attorney Act* 1998 and s 82(2) of the *Guardianship and Administration Act* 2000: The Advance Health Directive dated 25 March 2019 directing VSI her attorney for personal/health matters. 2. The Appeal Tribunal declares that those decisions of the Tribunal dated 9 December 2019 were invalid. 3. The direction to the Public Trustee made by the Tribunal on 9 December 2019 that the Public Trustee investigate and if viable and appropriate in all the circumstances, take such action as is required to challenge the will that VR purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015 is set aside. 4. Except as ordered in orders 1 to 3 above, the application for leave to appeal is refused and the appeal is dismissed. 5. The application by VSI to add a ground of appeal is refused. 6. The application for miscellaneous matters (notice to produce) is dismissed. 7. The stay order made on 15 January 2021 is revoked. APL228-20 8. Leave to appeal is refused. 9. The appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where declarations about capacity made – where guardian and administrator appointed – whether presumption of capacity applied – whether appointments necessary HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where directions made to administrator – whether directions valid Guardianship and Administration Act 2000 (Qld), s 12, s 31 Powers of Attorney Act 1998 (Qld), s 41, s 62, s 63 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 142 BSJ [2022] QCAT 51 Cachia v Grech [2009] NSWCA 232 Camden v McKenzie [2008] 1 Qd R 39 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 In applications concerning RV [2019] QCAT 384 In applications concerning VR [2020] QCAT 208 Maffey v Mueller [2016] QCATA 19 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 MG & Anor v The Public Guardian & Anor [2021] QCATA 89 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Re B (No. 1) [2011] NSWC 1075
APPEARANCES & REPRESENTATION:
Applicant (VSI):	J Frizzo of The Will & All
Respondents:	Public Guardian represented by J Nagabbo Public Trustee of Queensland: no appearance MVG self-represented LR self-represented VS self-represented VR represented by M Jones of Counsel