WHZ

[2010] QCAT 616

CITATION:   WHZ [2010] QCAT 616

PARTIES:   Re W H Z

APPLICATION NUMBERS:         GAA 5044-10 and GAA5049-10

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   18 August 2010

HEARD AT:   Brisbane

DECISION OF:   D Liddell       Presiding Member
  J Casey         Member

DELIVERED ON:   1 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   1         That W.H.Z does not have capacity for all financial matters.

2The application for review of the appointment of the Public Trustee of Queensland as administrator for W.H.Z and the appointment of HJZ in his place is dismissed.  The appointment of the Public Trustee of Queensland as Administrator for W.H.Z is continued until further order of the Tribunal. 

CATCHWORDS: Application by Adult for a Declaration of Capacity for all financial matters and Review of appointment of administrator, alternate administrator proposed – sections 31 of Guardianship and Administration Act 2000 – application dismissed and appointment of original administrator continued..

APPEARANCES and REPRESENTATION:

The following persons were present at the hearing of the applications:

W.H.Z  the Adult

HJZW.H.Z’s brother and applicant for   review

Ms Lisa Doyle and
Ms Kelly Durston (for part of the hearing)  representing The Adult Guardian

Ms Catherine Chan  representing the Public Trustee of Queensland

ISSUES AND LEGLISLATION

The issues for the Tribunal are:

(a)Does W.H.Z have capacity for financial matters and if not

(b)     Is there a need for an Administrator and If so,
         (c)     Who should be appointed?

The legislation relevant to these issues is found in the Guardianship and Administration Act 2000 (the Act), in particular the Dictionary in Schedule 4 of the Act which defines the terms capacity and impaired capacity as follows:

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

(a)   understanding the nature and effect of decisions about the matter; and
(b)   freely and voluntarily making decisions about the matter; and
(c)   communicating the decisions in some way.

Impaired capacity, for a person for a matter, means the person does not have capacity for the matter.

Section 82 of the Act provides that the Tribunal has certain functions assigned to it including: (a) making declarations about the capacity of an adult…..It is under this section of the Act that W.H.Z seeks a declaration that he has the capacity for financial matters.

Section 31 of the Act is relevant to the review of the appointment of the Public Trustee of Queensland as administrator for W.H.Z. It requires the Tribunal to revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made at the present time. The Tribunal may make an order removing an appointee and replacing that appointee with another person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment

The Tribunal when considering the appointment of an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. 

REASONS FOR DECISION

1. On 5 October 2009 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for W.H.Z until further order of the Tribunal for all financial matters.  By the same order it also appointed the Adult Guardian as his guardian for two years for accommodation, provision of services and health matters.  From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal.  Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal.

CAPACITY

1. The first matter to be considered by the Tribunal is whether W.H.Z has capacity for decision-making about his financial affairs.  There is a presumption under the Act that adults have capacity to make their own decisions.  That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether W.H.Z has decision making capacity for financial matters or not.

1. At the hearing on 5 October 2009 the Tribunal had before it two health professional reports.  One was dated 30 January 2003 and was from a GP who stated she had known W.H.Z for six years.  The other was dated 19 August 2009 from a second GP, Dr B.  Dr B also provided the 2010 health professional’s report for today’s hearing.  He said he has known W.H.Z for 28 years.  The report from 2003 was still relevant at the time of this hearing and at the time of the hearing in 2009 to the extent it indicated W.H.Z had a mild to moderate cognitive impairment as a result of an acquired brain injury that had occurred in the early 1980s.  His condition was stable in 2003.

1. The 2009 health professional's report indicated W.H.Z had suffered traumatic brain damage as a result of an assault in the early 1980s.  Another factor that impacted on his cognitive ability was his long history of substance abuse that consisted of the use of speed, LSD, alcohol and marijuana.  The Doctor didn’t know the degree of W.H.Z’s current consumption of these substances.  The report further indicated W.H.Z could not make complex financial decisions.  Whether he could make simple financial decisions was not addressed.  He was stated to be very unreliable and the Doctor doubted that he could make decisions freely and voluntarily.  His condition was still stable in 2009.  The Tribunal found he was vulnerable to exploitation in relation to his financial matters

1. The 2010 health professional’s report indicated W.H.Z had a recent mini mental state examination score of 23/30.  He was capable of operating a bank account and could “probably” make decision freely and voluntarily.  He could make simple but not complex financial decisions.  His short term memory is slightly impaired.  This short term memory loss, would in the Tribunal’s view contribute to W.H.Z’s vulnerability. 

2. In his application and accompanying history of W.H.Z lodged with the Tribunal HJZ stated that W.H.Z has a history of substance abuse and aggression.  In July 1980 he suffered a serious head injury as a result of an assault and was a patient at the Princess Alexandra Hospital intensive care unit for four weeks.  He was treated as an outpatient until December 1980.  Because of his deterioration in mental state he became aggressive and was admitted to Wolston Park Mental Hospital for a period of time

3. The Tribunal heard evidence from W.H.Z, HJZ and the Public Trustee of Queensland about W.H.Z’s financial arrangements.  W.H.Z told the Tribunal that he was sick of the Public Trustee of Queensland managing his finances.  He hadn’t paid a rate account as a result W.H.Z received late payment notices.  He asked his brother HJZ to take over his financial affairs but he would really like to handle them himself.  He is in receipt of a disability support pension.  The Public Trustee of Queensland provides him with $150 a week for living expenses and pays the rates on the estate house where W.H.Z resides under the terms of his mother’s will.  The trust fund pays the insurance.  W.H.Z is able to manage a bank account and spend his weekly income appropriately.  The Public Trustee of Queensland has recently reduced W.H.Z’s weekly allowance because he told the Public Trustee of Queensland that he had a large amount of money in his girlfriend’s bank account and had saved a large amount that he kept in the house.  He also said he was paying his brother HJZ $250 a week to remain living in the house.  However at the hearing both W.H.Z and HJZ said this information was not correct.  W.H.Z was not paying his brother $250 a week and W.H.Z denied having a large amount of money at home or in his girlfriend’s bank account.  He had put small amounts into her account so they could go to Q-Pac and the Jazz Club.  Prior to her death Mrs Z had looked after W.H.Z at home and gave him a right to occupy the house, subject to conditions, to provide some security for him on her death

CONCLUSION

1. The Tribunal finds that W.H.Z suffered a traumatic brain injury in 1980 as a result of an assault as a result of which he spent four weeks in intensive care and then was treated as an outpatient for a further period of time.  The injury resulted in cognitive impairment which interfered with W.H.Z’s ability to understand and act on information relevant for making decisions about his finances and legal affairs, particularly complex matters.  W.H.Z also has a history of extensive poly-substance abuse that according to the medical evidence has also contributed to his cognitive impairment.  He has a history of aggression and spent some time in Wolston Park mental health facility.  His mini mental state examination score in 2010 was 23/30.  He is unreliable and vulnerable.  In all the circumstances the Tribunal determined that the statutory presumption that W.H.Z has capacity to make decisions about financial matters is rebutted. 

IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?

1. W.H.Z resides in a house previously owned by his mother pursuant to the terms of her will.  He resided in the house with his mother prior to her death.  The will appoints HJZ and Mr RG to be executors and trustees of the will and gives the house to the trustees on trust to permit W.H.Z to reside there for life provided he pays the rates and taxes, the insurance and keeps the house in good repair (clause 3(a) of the will).  If W.H.Z fails to pay the rates, taxes and insurance or fails to keep the house in good repair the Trustees may terminate his right of occupancy and sell the house.  However the residue of the estate is to be held in trust to pay the income of the trust towards the abovementioned outgoings and maintenance and repairs to the house with any surplus being divided equally between W.H.Z and HJZ.  Should the income from this trust fund not be sufficient to meet the outgoings referred to in clause 3(a) W.H.Z is to meet the difference. 

2. The will further provides that should the house be sold during W.H.Z’s lifetime the proceeds of sale shall form part of the residuary trust and the income is to be paid as to one half to W.H.Z and the other half to HJZ.  On W.H.Z’s death the capital of the trust fund is to be paid to HJZ.  If HJZ predeceases W.H.Z all of the income from the trust is payable to W.H.Z for life.  Under the terms of the will W.H.Z is never entitled to any part of the capital from the proceeds of sale of the house. 

3. At the hearing there was some confusion over the terms of the will, W.H.Z’s  legal position under the will and whose responsibility it is to pay the outgoings on the house and to keep it in good repair.  The Tribunal heard that when Mrs Hudson died eleven years ago the trust fund stood at approximately $28,000.  That fund has been largely expended and HJZ told the Tribunal there was approximately $1070 left in the fund.  This meant that the trust cannot continue to pay the insurance on the house.  He said the funds had been expended on repairs to the house over the eleven years that W.H.Z had been living there alone and on rates and insurances.  There are records available showing how the fund was spent.  The trustees wish to sell the house because it is in a bad state of repair and needs approximately $70,000 spent on it to bring it up to good condition.  The minimal amount that needs to be spent just to make it presentable is $40,000.  The fund is unable to undertake these repairs and nor can W.H.Z.  HJZ produced a builder’s report detailing the repairs required.  The trustees are also concerned that the insurance company might refuse to insure the house because of its condition thereby leaving them personally liable should there be a fire or other loss.  HJZ produced a valuation report on the property that values the property at $400,000.  The Trustees wish to sell the property and make alternate living arrangements for W.H.Z.

4. In the Tribunal’s view clause 3(a) of the will has to be read subject to clause 7 which provides that the trust must pay the rates and insurance on the house and pay for repairs and maintenance from the income of the trust and if there is insufficient income W.H.Z is to make up the difference.  It appears however that the trustees have expended the capital of the trust so that there is no longer an income from the trust to meet the outgoings on the house.  It seems to the Tribunal that the expenditure of the capital of the trust rather than just the income as directed by the will might be a breach of trust.  What W.H.Z’s rights might be in these circumstances and what his right to remain in the house is in current circumstances needs to be investigated and if necessary legal advice taken on his behalf.  W.H.Z does not have the capacity to adequately protect his own interests in what is a complicated legal and financial situation.

5. In addition while W.H.Z has been looking after his living expenses in a satisfactory manner in the Tribunal’s view his lack of capacity also extends to fully managing his disability support pension and paying the outgoings and other expenses in relation to the house or of budgeting his pension to ensure that he can continue to pay the outgoings as required by his mother’s will so he can continue to reside in the house as he wishes to do.

1. Consequently, the Tribunal determines that there is a need for decisions about W.H.Z’s financial and legal affairs that are of such a complex nature that he does not have the capacity to attend to himself and without an appointment of an administrator he is likely to do something involving or likely to involve unreasonable risk to his finances or property and his needs will not be adequately met or his interests will not be adequately protected.

SHOULD THE APPOINTMENT OF THE CURRENT ADMINISTRATOR BE CONTINUED?

1. HJZ made application to review the appointment of the Public Trustee of Queensland as W.H.Z’s administrator, he himself wishing to be appointed administrator for W.H.Z. 

2. In his application HJZ said decisions currently have to be made for W.H.Z about legal matters relating to his property and the estate of their mother.  He clarified his application at the hearing by saying he has no interest in managing W.H.Z’s day to day financial affairs and wants to make decisions for him only about his interest in their mother’s estate.

3. .The Tribunal documents disclose that HJZ has, on occasions, made contact with W.H.Z for the purpose of attending to their mother’s will but he has met with hostility from W.H.Z who refuses to cooperate with him.  HJZ had to have his phone number changed because of continued threats and abuse from W.H.Z.  He told the Tribunal that he had not had much contact with W.H.Z over the years and it was only after his retirement last year that he had taken a greater interest in W.H.Z and his living arrangement.  HJZ had applied to be appointed W.H.Z’s administrator at the Tribunal hearing in 2009 but the Tribunal had determined there was a conflict of interest between his and W.H.Z’s interests relating to their mothers will and W.H.Z’s right to occupy the house.  Also there was conflict and hostility between them that made it inappropriate to appoint him.  Both W.H.Z and HJZ told the Tribunal that this conflict had now abated and they could work together and were friends again.

4. W.H.Z and HJZ may or may not have been personally reconciled but the Tribunal doesn’t solely rely on their personal relationship in determining that the Public Trustee of Queensland should remain as administrator for W.H.Z.  The Tribunal considers that HJZ is not an appropriate administrator for W.H.Z because of the very real conflict of interest they have in relation to their mother’s will and the sale of the house.  HJZ wants the house sold.  W.H.Z wants to continue to live there.  HJZ is a trustee of the property and trust fund under the terms of his mother’s will.  He and his co-trustee have expended the capital of the trust fund when it seems to the Tribunal that the income only of the fund should have been used to maintain the house or pay any outgoings associated with it.  On sale of the property the income from the capital fund represented by the net sale price is to be divided half each to W.H.Z and HJZ giving HJZ a pecuniary interest in having the house sold.  The Tribunal does not consider that he is objectively in a position to protect W.H.Z’s rights in relation to the trust, his right of occupancy of the house and the other terms of his mother’s will.

5. The provisions of section 31 of the Act have to be taken into account in coming to a determination. That section requires the Tribunal to revoke its order appointing the Public Trustee of Queensland as W.H.Z’s administrator unless it is satisfied it would make an appointment of an administrator for him if a new application for an appointment of an administrator were to be made now. In addition The Tribunal may make an order removing the Public Trustee of Queensland and replacing him with another person only if the Tribunal considers that the Public Trustee of Queensland is no longer competent or a person other than the Public Trustee of Queensland is more appropriate for appointment

6. In relation to the requirements of section 31 of the Act the Tribunal is satisfied that was a new application for the appointment of an administrator to be made for W.H.Z today it would appoint an administrator because it has found the presumption that W.H.Z has the capacity to manage his financial matters has been rebutted and there is a need for the appointment of an administrator to manage his finances and legal matters. Secondly while both W.H.Z and HJZ has levelled criticism at the Public Trustee of Queensland the object of that criticism is not such as to warrant a finding that the Public Trustee of Queensland is not competent to carry out the duties of an administrator for W.H.Z. The Tribunal does not consider that HJZ is a more appropriate appointee as administrator for W.H.Z because of the conflict between his interests as one of the trustees of his mother’s estate and W.H.Z’s interests under the will and because of his personal conflict (that is not as trustee) and interest in the will and in having the property sold.

CONCLUSION

1. In all the circumstances the Tribunal concluded that HJZ’s application for review of the appointment of the Public Trustee of Queensland as Administrator for W.H.Z should be dismissed and the Public Trustee of Queensland’s appointment as administrator under the order of 5 October 2009 should be continued until further order of the Tribunal.

2. The Tribunal also recommends that the Public Trustee of Queensland take such steps as it may consider appropriate to better protect W.H.Z right of occupancy in the house.

DECISION

1. The decision of the Tribunal is:

A           That W.H.Z does not have capacity for all financial matters.

B           HJZ’s application for review of the appointment of the Public Trustee of Queensland as administrator for W.H.Z and the appointment of HJZ in his place is dismissed. 

C           The appointment of the Public Trustee of Queensland as Administrator for W.H.Z is continued until further order of the Tribunal.