WE
[2010] QCAT 698
•1 September 2010
| CITATION: | WE [2010] QCAT 698 |
| PARTIES: | WE |
| APPLICATION NUMBER: | GAA5623-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 1 September 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julia Casey, Presiding Member Janice Logan, Member, |
| DELIVERED ON: | 1 September 2010 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The administration order made by the Tribunal on 23 March 2009 is changed by removing WR as administrator and appointing The Public Trustee of Queensland as administrator for WE for all financial matters. 2. The administrator is to provide a Financial Management Plan to the Tribunal within four months. 3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 4. This appointment remains current until further order of the Tribunal. 5. The Tribunal directs that The Public Trustee of Queensland investigate the actions of WR while she was administrator for WE and that The Public Trustee of Queensland provide a report to the Tribunal by 1 March 2011 in relation to the actions of WR while she was administrator for WE and that the former administrator, WR, provide any information requested by The Public Trustee of Queensland within two weeks of receiving such a request. |
| CATCHWORDS: | Management of adult’s funds – failure to keep records – where administrator paid gift of $25,000 to self – failure to obtain approval for a conflict transaction – administrator not an appropriate person Guardianship and Administration Act 2000, ss 15, 31, 37, 49, 50, 54 |
APPEARANCES and REPRESENTATION (if any):
WR, Administrator, appeared by telephone.
REASONS FOR DECISION
Presiding Member:
These are the reasons for a decision regarding WE, who is a 65 year old gentleman who resides at Scarborough. WR, the adult’s daughter, was appointed by the Guardianship and Administration Tribunal on 23 March 2009 to manage all of WE’s financial matters for a period of two years. The Queensland Civil and Administrative Tribunal has initiated a review of the appointment of the Administrator. The matter was heard in Brisbane on 1 September 2010. The Tribunal Members were Ms Julia Casey and Ms Jan Logan.
WR attended the hearing by telephone. The relevant legislation includes the Guardianship and Administration Act 2000 and the Queensland Civil and Administrative Act 2009. The issues for the Tribunal based upon the legislation are:
Does WE have the capacity to make financial decisions;
If not, is there a need for the appointment of an administrator; and
If so, who is the most appropriate person for appointment?
The Tribunal had the benefit of reports from 2009. The first one was from Sue Hannah, a clinical nurse. It is dated 12 February 2009. At the time of the report, WE was in a mental health unit at Caboolture Hospital as an involuntary patient. Sister Hannah submitted in her report that WE’s longstanding bipolar illness is exacerbated by alcohol abuse. In her opinion, WE was unable to make financial decisions simple and complex at that time.
The Tribunal also had a letter to the Guardianship and Administration Tribunal, dated 4 March 2009, by Dr Wikitoria Puriri, a consultant psychiatrist at Redcliffe/Caboolture Mental Health Services. The report states that, over the previous 12 months, the adult’s mental state had been particularly unstable with multiple psychiatric hospitalizations exacerbated by reduced insight, poor medication compliance and excessive chronic alcohol abuse.
It was Dr Puriri’s opinion that WE is unable to manage his money at times due to fragile bipolar affective disorder complicated by alcohol problems. He was quite compromised when unwell and spent impulsively. He gave examples of that in his letter. The doctor concluded that the adult was vulnerable to pressure from others for money which, in itself, caused him stress, prompting excessive alcohol consumption which, in turn, resulted in repeated hospital admissions. His ability to purchase copious amounts of alcohol is made easier by his access to plentiful funds. He is at risk of losing his Housing Commission unit should he become unwell again. The doctor has strongly supported the appointment of an administrator for this gentleman.
The Tribunal received evidence from WR this afternoon regarding WE’s capacity to make decisions. She told the Tribunal that the adult remains on an involuntary treatment order. In the period under review he has had further hospitalization, the last admission being in July 2010. Once again, that admission was to the mental health unit and it was associated with excessive alcohol consumption. WR concurred with the medical evidence that her father is unable to make financial decisions due to his mental illness.
Having regard to the medical evidence and WE’s current condition as described to the Tribunal, the Tribunal made the following findings of fact:
WE has bipolar affective disorder.
He is vulnerable to financial exploitation.
He receives full assistance with financial decisions.
He is unable to make financial decisions.
Consequently, the Tribunal rebuts the presumption that WE has capacity for financial matters.
When considering the appointment of an administrator, the Tribunal must be satisfied as to the need for the appointment as set out in section 12 of the Guardianship and Administration Act 2000, along with the appropriateness of the proposed appointee as set out in section 15 of the Act.
[10] The Tribunal considered the evidence. The Tribunal determines that WE has cash assets. He has a DVA pension and he has expenses including accommodation and living expenses that require protection and management and that there is a need for a decision in relation to financial matters and that, without an appointment of an administrator, his financial needs will not be met nor his interests adequately protected.
[11] When conducting a review of the appointment of an administrator, the provisions of section 31 provide that the Tribunal may make an order removing an appointee and replacing that person, only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.
[12] The Tribunal received a completed Accounts by Administrator Form on 17 August 2010. From this document and evidence provided by the administrator, the evidence regarding the adult’s financial circumstances follows.
[13] $43,735.68 has been deducted by the administrator over the accounting period. It is unclear from the documentary evidence what this is for. The evidence we heard from the administrator today was that some of those transactions may be associated with the management of the funds. The arrangement she has had with the adult regarding living expenses is that the adult’s living expenses were paid for by the administrator’s credit card and the administrator reimbursed herself each month. The administrator also used her credit card for her own purposes, so it became very unclear how these funds were used and which transaction was for what.
[14] Also there were various payments from the adult’s account to the account of the administrator. There is a significant amount of approximately $12,700 that was transferred in July 2009. The administrator has provided no clear explanation as to the reason for this transaction.
[15] In her oral evidence to the Tribunal, WR spoke to the fact that the adult has a Commonwealth Bank Term Deposit with funds of $17,000. No copy of a bank statement was given to the Tribunal to that effect.
[16] The administrator has stated in her Accounts by Administrator Form and again provided oral evidence to the Tribunal that she gifted herself $25,000 of the adult’s money for the purchase of a home. The purchase of the home was for the administrator. The adult’s name is not on the title deed. His interest in the property is not recorded. The administrator considers this was a gift from the adult. The adult has not previously gifted to the administrator an amount of $25,000 to purchase a home at any time in his life time. The administrator did not seek approval from the Tribunal before she entered into this conflict transaction.
[17] The Tribunal is satisfied that WR has not provided evidence to the Tribunal that she is an appropriate person to appoint as administrator, after taking into consideration the provisions of section 15 of the Guardianship and Administration Act 2000. She has entered into a conflict transaction without the approval of the Tribunal. She is in breach of section 37. She gifted the adult’s money to herself in breach of section 54. She did not keep her property separate from the adult’s, a breach of section 50. She did not keep appropriate records; she is in breach of section 49.
[18] With regard to the provisions of section 15 of the Guardianship and Administration Act 2000, the Tribunal is not satisfied that she is appropriate and competent to perform functions or exercise power under the appointment order. The Tribunal is of the view that an independent administrator free from any potential conflict of interests would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs in accordance with the general principles.
[19] The Tribunal concluded, pursuant to section 31 of the Guardianship and Administration Act 2000, that The Public Trustee is more appropriate for appointment at this time. The Tribunal makes the following orders:
That the administration order made by the Tribunal on 23 March 2009 is changed by removing WR as administrator and appointing the Public Trustee of Queensland as administrator for WE for all financial matters.
The administrator is to provide a Financial Management Plan to the Tribunal within four months.
The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
This appointment remains current until further order of the Tribunal.
The Tribunal directs that The Public Trustee of Queensland investigate the actions of WR while she was administrator for WE and that The Public Trustee of Queensland provide a report to the Tribunal by 1 March 2011 in relation to the actions of WR while she was administrator for WE and that the former administrator, WR, provide any information requested by The Public Trustee of Queensland within two weeks of receiving such a request.
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