ADU [2025] QCAT 385

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ADU [2025] QCAT 385 PARTIES: In applications about matters concerning ADU APPLICATION NO/S: GAA 5734-25 GAA 5736-25 GAA 6717-25 GAA 11284-25 MATTER TYPE: Guardianship and administration matter for adults DELIVERED ON: 7 October 2025 HEARING DATE: 4 August 2025 HEARD AT: Brisbane DECISION OF: Member Taylor ORDERS: GUARDIANSHIP Pursuant to s 12 of the Guardianship and Administration Act 2000 (Qld), the Public Guardian is appointed as guardian for ADU for the following personal matters: (a) With whom ADU has contact and/or visits. (b) To give informed consent, or withhold such consent, for the use of “chemical restraint” and/or “environmental restraint” as those terms are defined in section 15E of the Quality- of-Care Principles 2014 (Cth) (QOCP). The appointment as per Order 1(b) herein is conditional upon: (a) Consent being given only for the sole purpose of controlling the behaviour of ADU; (b) The power to consent being limited to the aged care residential facility in which ADU currently resides; and (c) Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with, as relevant, sections 15FA, s 15 FB, and/or s 15FC of the QOCP with respect to ADU. The appointment under Order 1 herein remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision. -- 1 of 22 -- 2 ADMINISTRATION The Public Trustee of Queensland is appointed as administrator for ADU for all financial matters. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. Before 15 November 2025, the administrator must: (a) Record the appointment as administrator on any property registered in ADU’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: (i) A copy of the title search conducted identifying ADU’s property; and (ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by ADU. (c) If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held. If the ownership of any property of ADU changes in any way or ADU acquires an interest in another property, the administrator must, within fourteen (14) days of such changes: (a) Give a copy of this order to the Registrar of Titles and (b) Give a notice to the Registrar about the changes to ADU’s interest in another property. The Tribunal directs the administrator is to provide accounts to the Tribunal when requested. -- 2 of 22 -- 3 ENDURING POWER OF ATTORNEY The Tribunal notes the existence of the following Enduring Power of Attorney for ADU: (a) The Enduring Power of Attorney dated 16 July 2013 appointing ATA and ATB as attorneys for financial, personal and health matters (the EPOA). such which is overtaken by the making of these appointments, and in accordance with s22(2) of the Guardianship and Administration Act 2000 (Qld), cannot be acted upon to the extent these appointments have been made. The application by ATA for a declaration that the EPOA is valid, and other orders, is otherwise dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES –the adult had given his enduring power of attorney to his defacto wife and his nephew – where the adult is of impaired capacity and resides in a secure aged care facility - where the defacto wife proposed to sell the adult’s house to her niece and in turn secure her own tenancy – where the nephew sought to be appointed administrator to his uncle and so override the enduring power of attorney – where the adult’s son and daughter are in conflict with the defacto wife and complain that the wife is denying them access to their father – where the documentation before the Tribunal shows that restrictive practices are being used against the adult in the aged care residence, consented to by the defacto wife purportedly exercising the enduring power of attorney – whether the existing enduring power of attorney arrangement should be changed – whether either or both of the existing attorneys are appropriate as an external decision maker for financial matters, and/or personal matters to the extent of with whom the adult may have contact and/or visits, and for giving of consent to the use of restrictive practices Aged Care Act 1997 (Cth), s54-9, s 54-10 Disability Services Act 2006 (Qld) s 140 Disability Services Regulation 2017 (Qld) s 12 Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 7, s 8, s 9, s 11B, s 12, s 14, s 15, s 16, s 22, s 28, s 31, s 66, s 82, s 114A; Schedule 2 s 2, s 5 Human Rights Act 2019 (Qld), s 13, s15, s 21, s 24, s 25, s 30 -- 3 of 22 -- 4 Powers of Attorney Act 1998 (Qld), s 5, s 6A, s 6C, s 41, s 47, s 49, s 109, s 111A, s 113, s 116, s 117; Schedule 2 s 2, s 5 Quality of Care Principles 2014 (Cth), s 5A, s 5B, s 15E, s 15FA, s 15FB, s 15FC DBD [2023] QCATA 160 KDV [2025] QCAT 256 Lambourne and Ors v Marrable and Ors (2023) 17 QR 198; [2023] QSC 219 NJ [2022] QCAT 283 PE [2016] QCAT 285 Watkins v Christian [2009] QCA 101 APPEARANCES & REPRESENTATION: Applicant for appointment of an Administrator: Current Interim Administrator: Current Attorney: ATB Applicant for orders concerning an EPOA: Current Attorney: ATA – Adult’s defacto wife AB – Solicitor for ATA Interested Parties: DTA – Adult’s daughter STA – Adult’s son REASONS FOR DECISION [1] There are three proceedings dealt with herein. They are for the appointment of a guardian, the appointment of an administrator, and orders to be made concerning enduring power of attorney documents. They are all interconnected. [2] For the reasons I discuss herein, orders were made changing the enduring power of attorney arrangement to appoint the Public Trustee as administrator for decisions regarding all financial matters, and to appoint the Public Guardian as guardian for decisions in terms of with whom ADU has contact and/or visits, and in terms of giving consent for the use of restrictive practices in an aged care residential facility, such appointments to overtake the enduring power of attorney. The enduring power of attorney arrangement otherwise remained unchanged. [3] In satisfaction of s114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other active parties are referred to in these reasons in a de- identified format. -- 4 of 22 -- 5 Background [4] At the time of the hearing before me, ADU was 86 years of age, diagnosed with Alzheimer’s dementia, and residing a secure dementia ward of aged care residential facility. [5] On 16 February 2013, ADU signed an enduring power of attorney document the Powers of Attorney Act 1998 (Qld) (the POA Act) appointing attorneys for financial and personal, including health, matters, ATA to be his primary attorney, ATB to be his secondary attorney.1 (the EPOA) [6] There has been a relatively long history of steps being taken in this Tribunal by ADU’s daughter DTA, effectively seeking to challenge the authority of ATA to act under the EPOA. At various times applications for the appointment of a guardian or an administrator have been dismissed, and at other times the Public Guardian appointed on limited bases, later to be revoked.2 [7] On 13 May 2025, ATB filed an application for an interim order in this Tribunal seeking the appointment of an administrator.3 The premise for this was expressed as follows, such being in reference to ADU: There is an immediate risk of harm to his financial interests, as [ATA] has proposed selling his property to her niece for $120,000, what I believe is well below market value. … … Selling this property, especially to someone outside of his family and estate, would go directly against his wishes. … … Moreover, there is no demonstrated need for the property to be sold. … [8] Simultaneously, an application was made for the appointment of an administrator on a substantive basis, proposing ATB as the administrator.4 [9] On 15 May 2025, by way of an interim order, ATB was appointed administrator to ADU on a plenary basis, such to remain current for up to three (3) months.5 Contemporaneously with that order, an order was made that the EPOA be overtaken to the extent the appointment was made and as such could no longer be acted upon. This effectively stayed any action by ATA to sell ADU’s house pending the duration of that order. 1 H 8. The reference in these Footnotes to M, H, or F # documents are those documents which appear in the Tribunal file. 2 See H 14, H 19, H 27, H 32, H 33, H 36. The covered the period 29 April 2019 up to 1 December 2021. 3 H 41. 4 H 40. It was unsigned, however given it was made together with the application for an interim order, and proposed ATB, I infer the substantive application was also made by ATB and so proceeded on that basis. 5 H 44 -- 5 of 22 -- 6 [10] On 22 May 2025, DTA sought to appeal that interim order decision within the Queensland Civil and Administrative Appeal Tribunal.6 [11] Shortly thereafter, on 27 May 2025, ATA filed an application within this Tribunal seeking an order that the EPOA was valid and an order to remove ATB as interim administrator, thus effectively seeking to re-enliven her power under the EPOA.7 [12] It was thus ATB’s substantive application for the appointment of himself as administrator, and ATA’s application for orders about the EPOA that came before me for determination. [13] In the process of hearing those applications it became readily apparent to me that there was conflict between ATA and DTA together with STA concerning the care of ADU and ATA’s conduct has his attorney under the EPOA, particularly that which was asserted to be a restriction being imposed by ATA on DTA and STA having contact with ADU. For that reason, I initiated an application for the appointment of a guardian to ADU. It also became apparent that the complexities of the family dynamics and much of the factual narrative behind the competing applications was such that it would require me to give it detailed consideration before reaching a decision on the applications, such which could not practicably be done during the time allocated for the conduct of the hearing. [14] Accordingly, at the conclusion of the hearing I gave orders renewing the appointment of ATB as administrator on an interim basis, appointing the Public Guardian as guardian to ADU on an interim basis for decisions concerning with whom ADU has contact and/or visits, such to remain current for three (3) or any earlier order, once again declaring that the EPOA is overtaken to the extent those appointments had been made. I otherwise reserved my decision on the substantive applications that were then before me. [15] My reasons for the decisions I ultimately reached are those contained herein. What are the Issues? [16] It was not in issue that the EPOA had been validly given. The issue was whether it should be allowed to continue to operate leaving ATA as the primary external decision maker for ADU, or whether a change should be made to place another person into the position of that decision maker in some manner. [17] In matters such as these, a fundamental issue is always the question of whether the adult, in this instance ADU, at the date of the hearing was of impaired capacity for the purposes of personal and/or financial matters, capacity being defined in the GAA Act in the following manner: impaired capacity, for a person for a matter, means the person does not have capacity for the matter. 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 6 APL 203-25. This appeal is not relevant in this proceeding, it in no way bearing upon the decision I am required to make on the substantive application. I mention it here solely for the sake of completeness as part of the chronology of events and the narrative behind them. 7 H 46. -- 6 of 22 -- 7 (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [18] If I was to find that he was of impaired capacity, it then gave rise to the questions whether: (a) ATA and/or ATB should retain the obligations cast upon them by their appointments under the EPOA; or (b) ATB or some other person should be appointed as ADU’s administrator; and/or (c) A person should be appointed as ADU’s guardian, and if so, what would be the ambit of the guardian’s decision-making power. [19] As I discuss it later in these reasons, what also became apparent during the conduct of these proceedings was an issue concerning the use of restrictive practices against ADU, and in turn the issue of who should be left to give consent, or refuse consent, to the use of such practices. [20] Related to these questions was the necessity that an adult’s views wishes and preferences should be sought and considered to the greatest extent possible. This is because, a person performing a function under either the GAA Act or POA Act in terms of decision making, such being that which I was being asked to do on the applications that were before me, must do so in a way that is consistent with the adult’s proper care and protection. It requires the principles of substituted judgment to be engaged, that is to make the decision the adult would have made if they had capacity, such to be based on any previously expressed views, wishes, and conduct of the adult when they had capacity. Thus, it is not a ‘best interest’ test such that decisions are to be made in what the decision-maker believes to be in the best interest of the adult, but it is a regime that requires consideration of what the adult’s decision would have been if they presently had capacity. [21] If I were to find that ADU was of impaired capacity, be it entirely or in part, then the secondary issues arose for consideration, namely (a) whether there was the need for a decision to be made in relation to a particular personal matter, or that ADU was likely to do something in relation to a personal matter that involved, or was likely to involve, unreasonable risk to his health or welfare; and similarly (b) whether there was the need for a decision to be made in relation to a financial matter, or that ADU was likely to do something in relation to a financial matter that involved or was likely to involve unreasonable risk to his finances or property; and that the EPOA could no longer effectively operate such that there was the requirement for the appointment of a guardian and/or an administrator. Associated with this was the further questions as to who the respective appointees should be. The Legislative Framework [22] Before embarking on a detailed discussion on the issues arising in these proceedings, it seemed to me it should be helpful to any reader of these reasons to understand the operation of the legislation under which I made the decisions, and gave the orders, I did. I do so here. -- 7 of 22 -- 8 The GAA Act & the POA Act [23] As it is expressed in the GAA Act, it together with the POA Act provides a comprehensive scheme to facilitate the exercise of power for financial and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult.8 [24] The GAA Act and the POA Act are to be read in conjunction with each other,9 however, to the extent there is any inconsistency between them the GAA Act prevails.10 [25] Under s 82(2) of the GAA Act this Tribunal has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents, and in turn under s 109A of the POA Act this Tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court, and so that Act applies in these proceedings as if references in the Act to the Supreme Court were references to this Tribunal. [26] Both the GAA Act and the POA Act authorise the exercise of power for a matter for an adult with impaired capacity for the matter. Inter-alia, as is relevant to these proceedings, this may be done on a formal basis by one of the following:11 (a) an attorney for personal matters, and/or an attorney for financial matters, appointed by the adult under an enduring power of attorney under the POA Act; (b) a guardian appointed under the GAA Act; (c) an administrator appointed under the GAA Act; (d) this Tribunal. [27] Whilst the POA Act provides mechanisms where a person (the attorney) is authorised to make particular decisions and do particular other things for another person (the principal), which as relevant to these proceedings is the EPOA,12 the GAA Act provides for the appointment by this Tribunal of a guardian to make decisions on personal matters for the person, and an administrator to make decisions on financial matters for the person. [28] The GAA Act notes that an adult’s right to make decisions is fundamental to their dignity, and that the right to make decisions includes the right to do so notwithstanding that others might not agree with those decisions.13 It is also premised on the position that if an adult with an impaired capacity to make decisions is to be restricted or interfered with in terms of decision making, it should be done to the least possible extent.14 [29] A person performing a function under the GAA Act in terms of decision making for an adult, such including this Tribunal in its role as appointer of external decision 8 GAA Act s 7(b). 9 GAA Act s 8(1); POA Act s 6A (1). 10 GAA Act s 8(2); POA Act s 6A (4). 11 GAA Act s 9. 12 POA Act s 5(1). 13 I pause here to observe that this is a relevant consideration in these proceedings to the extent ADU chose to appoint ATA and ATB as his attorneys by virtue of the EPOA. 14 GAA Act s 5. -- 8 of 22 -- 9 makers, must do so in a way that is consistent with the adult’s proper care and protection. Noting once again the requirement for the least restrictive option to be exercised, the legislation seeks to strike a balance between the right of an adult with impaired capacity to be afforded the greatest possible degree of autonomy in decision making, with the adult’s right to adequate and appropriate support for decision making.15 Thus it sets out general principles to be applied in any decision making process, including the decision as to whether to appoint an independent decision maker.16 [30] The POA Act sets out those same general principles, such to be applied by a person exercising a power under an enduring document of which ATA and ATB are each one as provided for under the EPOA.17 [31] There are some other related provisions of the POA Act that are necessary to note. [32] When performing a function or exercising a power under the POA Act, which in this instance will be the power to determine the validity of the EPOA as I discuss it later herein, this Tribunal is to presume ADU has capacity for such until the contrary is proven.18 However relevant to this issue, there is one important qualification that is necessary to make. The test for capacity to that extent under the POA Act is not the same as the test for capacity under the GAA Act. Under the POA Act, a principal has capacity to make an enduring power of attorney only if the principal can do so freely and voluntarily and understands the nature and effect of the enduring power, the relevant section specifying, non-comprehensively, matters which must be understood by the maker.19 [33] Finally, returning to the GAA Act, the relevant criteria for appointing a guardian and/or administrator empowers the Tribunal to make a guardianship order or an administration order if satisfied that: 20 (a) the adult has impaired capacity for the matter; (b) there is either: (i) a need for a decision in relation to the matter; or (ii) the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and (c) without an appointment: (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected. 15 GAA Act s 6. 16 GAA Act s 11B. 17 POA Act s 6C. 18 POA Act s 111A, and as relevant to the making of the revocation – s47 and s 49. 19 See POA Act s 41 and s 47. See also Watkins v Christian [2009] QCA 101,[20]. I pause here to observe that the presumption of capacity under s 111A of the POA Act is that informed by the provisions of s 41 of the Act, whereas the presumption of capacity under the General Principals found is s 6C of the Act relies on the same test for capacity as laid out in the GAA Act. 20 GAA Act s 12(1). -- 9 of 22 -- 10 [34] In implementing those criteria, the Tribunal may appoint a decision-maker where: 21 (a) there is no one available to make decisions; or (b) the decisions that are being made on an informal basis give rise to an unreasonable risk of harm; or (c) there is conflict among family members; or (d) there is conflict between family and a service provider. [35] This Tribunal must review an appointment of a guardian in accordance with an order of the Tribunal, but at least every five (5) years.22 At the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.23 That then requires a consideration of the criteria to which I have just referred. [36] If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either continue the order making the appointment; or change the order including by changing the terms of the appointment, or removing an appointing, or making a new appointment.24 [37] As is relevant here, the appropriate appointee is a person who is at least 18 years and not a paid carer, or health provider, for the adult;25 and having regard to the matters mentioned in s 15(1) of the GAA Act, a person this Tribunal considers appropriate. The provisions of s 15(1) are the appropriateness considerations, which include inter- alia whether the person is likely to apply the general principles as they are laid out in the GAA Act, whether the adult and the person’s interests are likely to conflict, whether the adult and the person are compatible, whether the person would be available and accessible to the adult; and the person’s competence to perform functions and exercise powers under an appointment order.26 Related to this are the provisions of s 16 of the GAA Act which requires the person who has agreed to a proposed appointment to advise the Tribunal of his or her appropriateness by giving of a declaration addressing the prescribed matters thereunder.27 [38] Similar provisions apply for the appointment of an administrator.28 [39] But, given the existence of the EPOA, the threshold issue is whether, if it is valid, it should be left to continue to operate, or whether it should be changed or revoked or otherwise overtaken by an order appointing a guardian and/or an administrator. [40] The powers this Tribunal is seized of to make orders in regards thereto are found in part in a 113 of the POA Act whereby it may make declarations about validity of an enduring power of attorney, and in part in s 116 read together with s 117 of that Act, such being the means this Tribunal may order the removal of a power from an attorney 21 PE [2016] QCAT 285, [18]. 22 GAA Act s 28. 23 GAA Act s 31(2). 24 GAA Act s 31(3). 25 GAA s 14(1)(a). 26 GAA s 15(1). 27 GAA s 16. 28 GAA s 14(1)(b), s 15, s 16. -- 10 of 22 -- 11 and give the power to another or a new attorney, or to change the power of the enduring power of attorney, or to revoke the enduring power of attorney in its entirety. [41] However, there is another power this Tribunal is seized of in terms of its ability to deal with an enduring power of attorney document, such being found in s 22 of the GAA Act. It empowers this Tribunal, should it have knowledge of the existence of an enduring power of attorney, to give power to a guardian or an administrator that would otherwise reside with an attorney under the enduring document, and once done the attorney may exercise power under the enduring document only to the extent authorised by the Tribunal. [42] That however does not apply to power for a health matter. But, in that regard, there is another provision of the GAA that is relevant. Under s 66 of that Act there is a prescribed order of priority in terms of dealing with health matter decision making. Absent an advanced health directive giving direction about the matter, priority is given to a guardian appointed by this Tribunal for health care decisions, but if no such appointment is made then it remains with the attorney appointed under the most recent enduring document. [43] It should thus be readily seen that there are several complexities in these proceedings arising in terms of the factual narrative behind them and the way that narrative is entwined with the legislation. The Human Rights Act [44] Whilst substantively the issues in these proceedings were dealt with under those two pieces of legislation, they were also considered with reference to the Human Rights Act 2019 (Qld) (the HR Act), the main objective of which is to protect and promote fundamental human rights. [45] However, the rights as enshrined therein are not absolute. They may be limited in certain circumstances, but only as far as is reasonable and justifiable. One such set of circumstances is in the operation of other relevant legislation. The limitation that arises is that, whilst the relevant provisions therein must be interpreted in a way that is most compatible with the provisions of the HR Act, the interpretation of that other legislation as it related to the HR Act remains consistent with the purpose and objects of that other legislation. [46] Relevant to the issues arising in these proceedings pieces of there are various pieces of such legislation, namely the GAA Act, the POA Act, and as I will discuss it later herein the Disability Services Act 2006 (Qld) and the Aged Care Act 1997 (Cth) and the associated Quality of Care Principles 2014 (Cth). That being so, this is the approach I adopted in considering the issues in this proceeding as they arose under those statutes in reaching the decisions I did. Consideration of the Issues [47] The criteria against which I assessed and considered the issues, in terms of the question of the need for appointing a guardian and/or an administrator, is as I have explained in in paragraph [33] herein. Often these requirements are dealt with as a step-by-step process, with the Tribunal first evaluating capacity, then need, then finally considering if the lack of an appointment will impact the adult’s needs and -- 11 of 22 -- 12 interests.29 I adopted that same approach in my consideration of the issues by reference to the evidence and the relevant law. Associated with this was the issue of the EPOA and the consideration of it under the relevant provisions of the POA Act. I deal with each of these in turn under the sub-headings which follow here. Capacity [48] The starting point is that under both the GAA Act and the POA Act, ADU is presumed to have capacity.30 However this is a rebuttal presumption, such which can only be rebutted by the presentation of evidence that shows the contrary. On the evidence that was before me, in my opinion that presumption was rebutted to the extent of the GAA Act, but not to the extent of the POA Act. The test of capacity under the POA Act [49] Firstly, I turn to the issue of ADU’s capacity as it relates to the issues as they arise under the POA Act, namely ADU having signed the EPOA and so granting power for decision making to ATA and in turn ATB. I touched on this briefly in paragraph [32] herein and expand it further here. [50] It is necessary to consider the provisions of s 41(1) and s 41(2) of the POA Act which describe the premise for a finding of capacity to make an enduring power of attorney. For completeness and ease of reference I extract those provisions here in full: 41 Principal’s capacity to make an enduring power of attorney (1) A principal has capacity to make an enduring power of attorney only if the principal— (a) is capable of making the enduring power of attorney freely and voluntarily; and (b) understands the nature and effect of the enduring power of attorney. (2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters— (a) the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; (b) when the power begins; (c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; (d) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; 29 Consider WJE [2019] QCAT 231, [22]-[25]; HT [2019] QCAT 116, [17]-[21]; TBM [2019] QCAT 404, [7]. 30 As it is relevant here, that presumption is found in GAA Act s 11B (3) General Principle 1, and POA Act s 111A. -- 12 of 22 -- 13 (e) the power the principal has given continues even if the principal becomes a person who has impaired capacity; (f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power. [51] In terms of that provision, as was observed by Martin SJA in Lambourne and Ors v Marrable and Ors:31 [52] Section 41 imposes a two-part test for the assessment of capacity and excludes the definition of “capacity” contained in the Dictionary. [53] Section 41 must be read together with the presumption of capacity provided for in s 111A. It follows, then, that when a court is required to make a decision about an adult’s capacity it is presumed that the principal … understands the nature and effect of an EPOA and is presumed to understand the matters set out in s 41(2). [52] Martin SJA earlier said of that presumption:32 [43] This presumption is to be applied by the court but it may be rebutted if “the contrary is proven.” Such proof need only meet the civil standard but, given the nature of the matter and the consequences of a finding of a lack of capacity, the proof must be to the Briginshaw standard. I respectfully adopt what Sofronoff P said in Leigh v Bruder Expedition Pty Ltd about that standard: “[23] … it must be borne in mind that the case does not establish a third standard of proof which lies between the civil and criminal standards. Briginshaw establishes that, when applying the civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding whether evidence actually proves a fact to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.” [53] That being said, once again for ease of reference it is apposite to also extract s 111A of the POA Act: 111A Application of presumption of capacity (1) If, in performing a function or exercising a power under this Act, the court or tribunal is required to make a decision about an adult’s capacity for a matter, the court or tribunal is to presume the adult has capacity for the matter until the contrary is proven. (2) … [54] Later in his reasons in Lambourne, his Honour made this observation as is relevant to the issue under discussion here:33 31 Lambourne and Ors v Marrable and Ors (2023) 17 QR 198; [2023] QSC 219,[52] and [53]. 32 Ibid,[43]. Footnotes omitted. 33 Ibid;[116] to [120]. Footnotes omitted. -- 13 of 22 -- 14 The type of evidence which assists in deciding whether the assumption of capacity has been rebutted [116] The applicants gave evidence of their observations of Harvey at various times which, they argue, is relevant to the execution of the revocations and the later EPOAs. Evidence was also received from persons who knew Harvey as well as from experts in the field of geriatrics. [117] The means by which a person’s capacity may be assessed has been considered in cases in which a party bears the burden of proving capacity. In this case, the burden is reversed but the consideration of what may be relevant and helpful in discharging that burden will, inevitably, involve consideration of similar types of evidence. [118] Assistance can be found in the analysis of Lindsay J in Scott v Scott. In that case, his Honour dealt with the Powers of Attorney Act 2003 (NSW). It did not provide for the same presumption of capacity as the Act does and, so, in resolving the issues, Lindsay J referred to the tests for assessing capacity. His remarks help to identify the types of evidence which can be relevant to a consideration of whether a lack of capacity has been established: “[199] … There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed. [200] An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject’s mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spacial [sic] and relational dimensions.” [119] I also bear in mind the caveat expressed by Lindsay J about the elevation of statements in analogous cases: “[206] … care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable “standard” or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and -- 14 of 22 -- 15 form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the court must be on the substance of the inquiry whether the particular subject had, in fact, the requisite capacity — understanding — to effect a particular transaction.” [120] That statement has similar force in a case such as this where the inquiry is whether the applicants have rebutted the presumption of capacity. [55] Noting from these passages that which are relevant facts and circumstances to consider in terms of any question as to the validity of an enduring document, all that needs be said in terms of these proceedings is that there was nothing raised within the documentary material or the oral presentations in the hearing before me to raise any question about ADU’s capacity to have given the EPOA. Noting the starting point is that ADU is afforded the presumption of capacity to have executed the EPOA unless the contrary is proven, nothing before me reached that requisite degree of proof. It must follow that there is no basis in that regard to declare it invalid. There was no other basis raised within that which was before me in terms of the question of validity of the EPOA. Thus, there was no basis to that extent to declare it to be invalid, nor was there any need to declare it to be valid. [56] But that of itself was not sufficient to have disposed of the remainder of that which arose in these proceedings, the more fundamental question being whether it should be allowed to continue to operate. I return to that question later in these reasons, such which arises when considering the question of the need for the appointment of a guardian and/or an administrator. [57] However, more importantly, the very fact that he gave his power of decision making, primarily to ATA, and secondly to ATB, is a fact which demonstrates his wishes by the demonstration of a decision being made at the time he had capacity to make that decision. It is a wish that should be respected and taken account of in considering the issues on which I was required to make decisions. [58] Before reverting to that issue, I conclude here my discussion on the issue of capacity. The question of capacity under the GAA Act [59] The remaining issue under the heading of capacity was the issue of ADU’s capacity in terms of his understanding the nature and effect of decisions required to be made in respect of personal and/or financial matters, or his ability to freely and voluntarily make decisions about those matters, or to communicate such decisions. That is, the question of his capacity which goes to whether there is the need for an external decision maker, and ultimately whether the exercise of all powers under the EPOA may validly commence, or in the absence of the EPOA being able to effectively operate a guardianship and/or an administration order should be made. That can succinctly be dealt with in these reasons. [60] The question of capacity is a legal question, not a medical question, but it is one answered with reference to and consideration of medical opinion evidence. To the extent such evidence was before me, there was a health professional’s report dated 20 May 2019 which records ADU’s medical conditions at that time as including a diagnosis of Alzheimer’s dementia, with a bare reference to earlier medical records -- 15 of 22 -- 16 which indicate some evidence of cognitive decline with January 2014.34 Therein the Doctor also expresses the opinion that ADU is “unable to make decisions for self (sic) outside of those that are routine and simple.” [61] There is also a more recent health professional’s report held on file although not filed separately in support of any of the applications that were before me. It appears as an annexure to a statutory declaration sworn by ATA’s solicitor dated 30 July 2025 and filed effectively in response to ATB’s application. Therein it also records ADU’s diagnosis of Alzheimer’s dementia, but also depression and paranoid delusions.35 [62] It is a well-known fact that dementia is a degenerative condition. Unlike, for example, victims of a stroke there is no recovery for victims of Alzheimer’s dementia in terms of cognitive abilities. Such is evidently the case given that ADU is now accommodated in a secure dementia ward, such being indicative of a person who has, sadly, lost all cognitive function. [63] For all these reasons I was readily able to find that the presumption of capacity ADU is afforded under the GAA Act was rebutted for both personal and financial matters. On that basis it was appropriate to proceed and consider making a guardianship and/or an administration order. As discussed earlier, once the capacity threshold is dealt with the issue then turns on the need for decisions to be made such that requires the appointment of an external decision maker. In terms of these proceedings, it was here that the question arose of whether the EPOA should be allowed to continue to operate. The Need for Decisions on Personal Matters and/or Financial Matters [64] It was abundantly clear to me that ADU was in need for decisions to be made for the protection of his property and finances, and without those decisions being made he was at risk of harm. This arose from the very foundation for the applications by ATB, namely ATA’s proposal to sell ADU’s house to her niece. [65] In the statutory declaration sworn by ATA’s solicitor to which I referred earlier, it was stated that ATA was considering selling ADU’s house to her niece, but expressly that her niece was going to permit ATA to stay residing in the house for as long as she wishes. However, and critically, there was no indication in any of the material before this Tribunal as to the purpose for the sale in terms of ADU’s needs or his otherwise ascertainable wishes. Whilst ATA informed me during the hearing that she had since abandoned the idea of selling the house, there was no explanation as to why it was being contemplated at all. At its highest it seemed to me that it was a step being taken by ATA to secure residency for herself regardless of the needs, wishes, and interests of ADU. [66] There were also allegations made by DTA and STA that ATA had sold some of ADU’s other assets, such as his artwork and other indigenous artefacts, albeit such being refuted by ATA. [67] As to personal matters, as I also heard from DTA and STA that the primary issue was of contact and visits, they each asserting that ATA was preventing, or at the very least restricting, them from visiting and having contact with ADU. But there were no other 34 M 1. 35 See Annexure A included as part of H 52. -- 16 of 22 -- 17 issues arising for which decisions on personal matters were required, for example accommodation or the provision of support services. [68] On the information that was before me, I accepted the complaints made by DTA and STA as having some foundational bases. It was enough to raise the issues as such requiring attention in these proceedings. There was without doubt tension between ATA and DTA / STA such that the issue could not be left unaddressed. But it did not require me to descend into a detailed fact-finding process to ascertain the extent to which access had been denied or personal items had been sold. [69] When the allegations were considered in conjunction with the undisputed fact of ATA’s intentions to have sold ADU’s house, it raised serious questions that in my opinion dictated the need for decisions to be made regarding personal and financial matters, and such which in the circumstances dictated the need for the appointment of an external decision maker. I return to this later in these reasons where I discuss the question of whether such decision making should be left to be done pursuant to the EPOA. [70] However, and critically, there was another issue evident on the documentary material before me, albeit one not discussed during the hearing, that is a personal matter and for which a guardian must be appointed. It involves the use of restrictive practices against ADU. [71] In the Health Professional Report dated 12 May 2025 to which I referred earlier herein as being annexed to the statutory declaration sworn by ATA’s solicitor, such being a report of a SK described therein as being “… the DON of the facility [ADU] resides in” and shown therein to be the holder of a Bachelor of Nursing degree, the following notations appear within Part F therein, such being in terms of the use of restrictive practices and the following questions posed therein:36 What restrictive practices are being used, or are intended to be used? [ADU] currently is prescribed a psychotropic medication and is therefore classed as chemically restrained. [ADU] also resides in a secure facility. Requiring swip (sic) card access to depart, and as such is classed as being environmentally restrained. Do you consider the use or intended use of restrictive practices is appropriate, and if so, why? Yes. [ADU] demonstrates significant aggressive and inappropriate behaviour when not receiving his antipsychotic medication. … [ADU] is a significant risk of absconding the facility should he be unable to leave. Whilst he is supervised with his mobility, he can be very quick and he is at risk of leaving and sustaining a fall. He is also at risk of becoming lost or wandering onto the road. To what extent does the Adult have the ability to understand and act on information relevant for making decisions about the use of restrictive practices on the Adult …? 36 This forms part of H 52. -- 17 of 22 -- 18 I don’t believe [ADU] has any ability to understand restrictive practices or make a decision regarding this. [ADU] depends on [ATA] to make these decisions for him. [72] Based on that last comment, and the way ATA had explained to me during the hearing she was involved in health care decision making for ADU, I inferred that ATA was making the decisions concerning the use of medication to control ADU’s behaviour, such being chemical restraint, as a health care decision. I extend this inference to also conclude that she had decided for ADU to be accommodated in a secure dementia ward as either a health care or an accommodation decision, and that she had done so reliant on the existence of the EPOA affording her the authority to do so. [73] If that inferential conclusion is correct, ATA acted in error, demonstrating a failure to understand the limit of authority afforded her under the EPOA. Restrictive Practices in Aged Care [74] Subject to one qualification, management of the use of restrictive practices in Queensland is governed by the provisions of Chapter 5B of the GAA Act read in conjunction with Part 6 of the Disability Services Act 2006 (Qld) (the DS Act). That qualification being that these provisions do not apply to recipients of care in a residential aged care facility,37 such being the subject of Commonwealth legislation, namely the Aged Care Act 1997 (Cth) (AC Act) and the Quality-of-Care Principles 2014 (Cth) (QOCP). [75] ADU resides in aged care. Under s 54-9 of the AC Act, a restrictive practice in relation to a care recipient in aged care is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient. In turn, under s 15E of the QOCP, chemical restraint and environment restraint are expressed as being restrictive practices, with each being defined therein as follows: Chemical restraint is a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour, but does not include the use of medication prescribed for: (a) the treatment of, or to enable treatment of, the care recipient for: (i) a diagnosed mental disorder; or (ii) a physical illness; or (iii) a physical condition; or (b) end of life care for the care recipient. Environmental restraint is a practice or intervention that restricts, or that involves restricting, a care recipient’s free access to all parts of the care recipient’s environment (including items and activities) for the primary purpose of influencing the care recipient’s behaviour. [76] Critically, the AC Act and the QOCP require that informed consent be given to the use of restrictive practices, and if the person who is the recipient of aged-care and in turn subject to such restrictive practice is unable to give such consent, then it must be 37 Disability Services Act 2006 (Qld) s 140(2)(a) and Disability Services Regulation 2017 (Qld) s 12. -- 18 of 22 -- 19 given by a ‘restrictive practices substitute decision-maker’.38 Such a person may be the ‘restrictive practices nominee’ where that person is nominated in writing in the prescribed manner by the adult care recipient as an individual who can give the requisite informed consent.39 However in the absence of a ‘restrictive practices nominee’ then it must be an individual or body appointed for the restrictive practice in relation to the adult care-recipient under the law of the State of Territory in which the care recipient is provided with aged care, unless there is no clear mechanism for appointing such or where there is there, an application for same has been made and there is a significant delay in deciding the application.40 [77] The question of whether there is such a mechanism available in Queensland has been the subject of detailed consideration in this Tribunal, both at first instance and its appeal jurisdiction, with the outcome being that whilst not a circumstance to which Chapter 5B of the GAA Act applies it remains an issue that can be determined under the GAA Act and for which a guardian can then be appointed to give the requisite consent consistent with the requirements of the QOCP. 41 [78] As it arises in these proceedings, a health care decision, or an accommodation decision, such which may be made by a guardian appointed under the GAA Act or an attorney appointed pursuant to an enduring document made under the POA Act, does not include a decision for the use of chemical restraint or environmental restraint. Neither are health care decisions under the GAA Act or the POA Act.42 Nor could the decision for ADU to reside in a secure facility, such which restricts freedom of his movement being considered an accommodation decision.43 [79] It is here that the ATA’s conduct as attorney comes into question. As I discussed it earlier herein, it is readily apparent on the material before this Tribunal that she has in the past given consent to the use of restrictive practices against ADU purportedly reliant on the fact she had been given an enduring power to make decisions for ADU in terms of personal and health matters. She has been in error in doing so. More critically and concerningly, the aged care provider has seemingly been acting on that consent, such being inconsistent with its obligations under the AC Act and the QOCP. [80] To remedy that erroneous conduct, consistent with the requirements of s 5B of the QOCP it is necessary to appoint a guardian, such which may be done under the GAA 38 AC Act s 54-10(f) read together with QOCP s 5B. 39 QOCP s 5A. 40 QOCP s 5B. 41 See also NJ [2022] QCAT 283 and DBD [2023] QCATA 160. 42 GAA Act Schedule 2, s 2 and s 5, and POA Act Schedule 2, s 2 and s 5. See also DBD [2023] QCATA 160. Whilst DBD dealt with issues solely pursuant to the GAA, the reasoning of the Appeal Tribunal therein may readily be read in terms of an interpretation of the relevant provisions of the POA Act because the definitions of ‘personal matter’ and ‘’health care’ therein are the same other than to the extent that the GAA definition for ‘personal matter’ includes references to restrictive practices under Chapter 5B of the GAA Act, such not being included in the POA Act definition. 43 Contrast this to the reasoning of this Tribunal in KDV [2025] QCAT 256 where the decision to accommodate the adult in a secure facility was for him to receive necessary high care and have access to a psychiatrist for the purposes of reviewing medication in relation to a diagnosed mental illness. -- 19 of 22 -- 20 Act, to give that requisite consent,44 such which may be done by this Tribunal on its own initiative notwithstanding the absence of an express application for same.45 [81] All this then leaves the remaining question, namely should: (a) the requisite decision making be left to those appointed under the EPOA as is or with a change made; or (b) a guardian and/or an administrator be appointed to ADU with a prescribed limitation on the ambit of the relevant decision-making power? Should the EPOA be left to operate? [82] The primary issue is whether the requisite decision making, other than the need for decisions on the use of restrictive practices, should be left to be dealt with pursuant to the EPOA. The solicitor for ATA submitted that ATA had not done anything wrong as attorney, had informed the Tribunal that she no longer intended to sell ADU’s house, and that there is no conflict amongst family members such to necessitate any change being made. However, notwithstanding that submission, the solicitor also submitted that if there are concerns about visitation that ATA would welcome the Public Guardian to be appointed to make decisions regarding contacts and visits. [83] In contrast to that last point, DTA submitted that there was conflict and that the current arrangements do not work. [84] In somewhat of a middle ground between the two, ATB submitted that if ATA is now not going to sell the house, then it may all be left as is, however noted that emotional personalities are getting in the way. [85] Under the POA Act, as an appointed attorney ATA was required to have applied the General Principles as they are laid out in s 6C of that Act. But I was not satisfied that ATA properly understood that and was able to do so. As I noted it earlier, I accepted that she has at times acted in a manner that has restricted access of ADU’s family members with having unfettered access visitation with him, thus in effect depriving him of the role of his family and the support that they may afford ADU. Such is contrary to General Principle 4. Moreover, given ADU is a first nations gentlemen, it may also fall foul of General Principle 5. [86] There is also the fact that ATA was considering selling ADU’s house, not for any purpose to provide for the needs of ADU, or in any way having demonstrated that such would have been consistent with what he would have done had he had capacity to make the relevant decision, but rather being a step to be taken to secure her own interests. Such is entirely inconsistent with General Principles 9 and 10. [87] There was clearly conflict between ATA and other members of ADU’s family, including to some extent ATB. Moreover, notwithstanding ATA’s stated view was that there is no conflict, it seemed to me that the conflict which does exist is so pervasive that it would inevitably affect the quality and timeliness of decisions to be made for ADU to the extent of financial matters, and I had significant doubt that the 44 Once again see NJ [2022] QCAT 283 and as it was discussed further in DBD [2023] QCATA 160. 45 GAA Act s 12(3) noting that whilst subsection (5) therein states that section does not apply for the appointment of a guardian for a restrictive practice matter under Chapter 5B, it is not that Chapter under which the restrictive practice matter in this proceeding falls because it is the use of restrictive practices in aged care that is the relevant issue. -- 20 of 22 -- 21 family could be left to reliably put aside their ongoing conflicts with each other to make decisions in the interests of ADU, when to do so might require them to co- operate and collaborate. [88] Such circumstances left me with the impression, and led me to the conclusion, that ATA was not appropriate to continue in the role of attorney with power to make decision for ADU concerning with whom he may have contact, nor in terms of financial decisions for ADU. As to the latter, the very act of considering the sale of ADU’s house to her own niece for the purposes of ensuring she had security of tenancy was a demonstration of the extent to which her interests and those of ADU were likely to conflict. It is also a demonstration of her failure to have considered views of, or even sought consultation from, other members of ADU’s family. [89] Thus, to the extent that there are decisions required to be made about finances and with whom ADU has contact, there is the need to change the arrangements in terms of the EPOA being left to operate. However, nothing was raised before me either in the documentation filed or otherwise during the hearing by way of any oral submission that suggested the need for any other change. [90] ATA has been and will continue to make decisions about health care, albeit now with the benefit of what I have had to say herein about decisions which are effectively a restrictive practice decision, as well as any other personal matter decision which might arise. Such is consistent with respecting ADU’s wishes to have ATA and ATB as his decision makers by having given them his enduring power of attorney, being as I noted it in paragraph [57] herein. Who is the appropriate appointee as the requisite external decision maker? [91] In my opinion this can be addressed succinctly with limited discussion because the outcome turns predominantly on the extent to which there is a demonstrated level of conflict within the family members, an issue I have already touched on in some substance in these reasons. [92] Whilst under s 14(2) of the GAA, there is a limitation on this Tribunal appointing the Public Guardian as a last resort, there is no equivalent limitation on the appointment of the Public Trustee as administrator. That being so, based on what I read within the material filed and that which was discussed during the hearing, in all respects I was not satisfied that any family member was appropriate to be appointed as the decision- maker in terms of contact/visits for ADU, nor finances, nor the giving of consent for the use of restrictive practices, such including ATA and ATB. Nor was there any other person presented as being ready and willing to step up and take on those roles. [93] For these reasons I concluded that the EPOA should not be left to continue to operate to the extent that decisions were required in terms of with whom ADU has contact or visits, nor in terms of finances, and that the Public Guardian and the Public Trustee should be appointed in those roles respectively. [94] Accompanying this was also the identified need for a substituted-decision maker for the giving of consent to the use of restrictive practices. Given ATA’s demonstrated failure to have understood the fact that she did not have any such authority under the EPOA to have given such consent, I found her not to be appropriate to be left to make such decisions as an appointed guardian. For that reason, I considered the Public Guardian was the appropriate appointee. -- 21 of 22 -- 22 Concluding Comments [95] For all the reasons I discussed herein, a change to the EPOA arrangement was necessary. As such orders were made to give effect to the conclusions I had reached. Corresponding orders were made in terms of the conduct of the administration, as well as dealing with the EPOA. [96] Given the conclusions I reached, it was unnecessary for me to make any declaration as to the validity of the EPOA, nor make any orders removing ATB as interim administrator, such being as sought by ATA in her application. Accordingly, an order was made otherwise dismissing her application. [97] As for the terms of the orders for appointment of the guardian and the administrator, whilst the appointments were made current until further order of the Tribunal, I considered it to be appropriate to set the review period of two (2) years. The appointment of the Public Trustee could have been made without any limitation for review, whereas the appointment of the Public Guardian could have been made for a review to be conducted in five (5) years, such being the maximum permissible period. However, given that the issues for the guardianship order involve addressing the results of family conflict as well as the use of restrictive practices, it seemed to me that the circumstances could change within the next two (2) years such that a review at that time might permit a return to leaving the EPOA to operate in its entirety with the possibility of only orders concerning a guardian to deal with the continued use of restrictive practices. Accordingly, orders were made to that effect. [98] Finally, to conclude these reasons I need make only one more comment, such being in terms of the HR Act. Whilst the orders I made have the effect of engaging and limiting ADU’s rights as noted in the HR Act,46 having considered the findings of fact as expressed herein as to the criteria set out in the GAA Act, the POA Act, and the QOCP, in my opinion such a limitation is reasonable and justified. ADU is of impaired capacity, has relatively substantial finances, and needs 24/7 personal care. Such is consistent with s13 of the HR Act. 46 Consider s 15 – Recognition and equality before the law; s 21 – Freedom of expression; s 24 – Property rights; s 25 – Privacy and reputation, s 27 and s 28 – Cultural rights, s 30 – Humane treatment when deprived of liberty. -- 22 of 22 --