AAB [2025] QCAT 92

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AAB [2025] QCAT 92 PARTIES: In an application about matters concerning AAB In applications about matters concerning AAB APPLICATION NO/S: GAA089-22 GAA090-22 GAA092-22 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 13 March 2025 HEARING DATE: 27 May 2022 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: GUARDIANSHIP AAL is appointed as guardian for AAB for the following personal matter: (a) Accommodation; (b) Health Care; and (c) Provision of Services. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION The Public Trustee of Queensland is appointed as administrator for AAB for all financial matters. The administrator is to provide a financial management plan to the Tribunal within four (4) months. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. NOTICE OF INTEREST IN LAND Before 27 August 2022 the administrator must -- 1 of 10 -- 2 (a) Record the appointment as administrator on any property registered in AAB’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 AAB’s property; and (ii) A copy of the Titles Registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by AAB. If the ownership of any property of AAB changes in any way or AAB acquires an interest in another property the administrator must, within fourteen (14) days of such change: (a) Give a copy of this order to the Registrar of Titles; and (b) Give a notice to the Registrar about the changes to AAB’s interest in another property. ENDURING POWER OF ATTORNEY THE FOLLOWING Enduring Power of Attorney for AAB is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 (Qld) can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 21 September 2021 appointing AAR as attorney for financial, personal and health matters. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OR PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP – ADMINISTRATION AND FINANCIAL MANAGEMENT – ENDURING POWERS OF ATTORNEY – where attorney appointed under enduring power of attorney – whether adult has capacity for personal and financial matters – whether attorney acting in accordance with statutory duties – whether need for guardian and or administrator Guardianship and Administration Act 2000 (Qld), s 5, s 7(a), s 11, s 11b, s 12, s 14, s 22 -- 2 of 10 -- 3 Powers of Attorney Act 1998 (Qld), s 110, s 116 APPEARANCES & REPRESENTATION: Adult: AAB Applicant/s: AAL Proposed Guardian/s: AAL - niece Proposed Administrator/s: AAL - niece Current Attorney/s: AAR - Son Public Trustee: Daniel Young REASONS FOR DECISION [1] AAB is 82 years old and resides in an aged care facility. Her son, AAR, is her attorney under an enduring power of attorney made on 21 September 2021. This application has been made by her niece AAL, who amongst other issues is concerned that AAR is not allowing AAB’s extended family to visit her and that the aged care facility (‘ACF’) where AAB resides is not appropriate accommodation for her. AAL had sought to assist AAB in the ACF but was stopped by AAR who banned her and then her extended family from visiting her. AAL was also subject to and witnessed AAR exhibiting threatening behaviour towards her and AAB both at the ACF and at a doctor’s surgery. AAB’s sister does not feel AAR was respecting her rights and she had not been consulted about her transition to aged care. It was her wish to continue living in the community. AAR and his family resided in a house owned by AAB and her husband and there were some allegations that he had improved the house with AAB’s money and transferred AAB’s car to himself. AAB at the request of AAB filed an application to have the Tribunal consider whether a guardian and administrator should be appointed for AAB and also an application for a declaration about an enduring power of attorney. The Legislation [2] The Tribunal may appoint a guardian and administrator in accordance with s 12 of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’) as follows: [3] The Tribunal may, by order, appoint a guardian and administrator for a financial matter, for an adult if the Tribunal is satisfied – (a) The adult has impaired capacity for the matter; and (b) There is a need for a decision in relation to the matter or 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 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. -- 3 of 10 -- 4 [4] When the Tribunal is performing a function or exercising power and the Tribunal is required to make a decision about an adult’s capacity the Tribunal is to presume the adult has capacity for the matter until the contrary is proven in accordance with s 11(1) of the GAA Act. The Tribunal’s functions are set out in s 81 of the GAA Act and include considering applications for appointments of guardians and administrators, making declarations about capacity and making declarations, orders or giving directions in regard to enduring documents. [5] Capacity is defined in the Schedule 3 Dictionary of the GAA Act as “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 freely and voluntarily making decisions about the matter; and communicating them in some way”. It is matter-specific and so is separate for personal and financial matters and simple and complex matters. [6] If the Tribunal determines that a guardian or administrator should be appointed for AAB then the person or persons to be appointed must fulfil the requirements of s 14 of the GAA Act and the Tribunal must consider the person appropriate for appointment in accordance with s 15 of the GAA Act. [7] The Tribunal is also required, when performing its functions, as is every decision maker including guardians, administrators and attorneys, to apply the General Principles set out in s 11B of the GAA Act in accordance with s 11B(1) of the GAA Act. These include: (a) General Principle 2 – same human rights and fundamental freedoms, in particular at (3)(a) – respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; (b) General Principle 3 – Empowering an adult to exercise human rights and fundamental freedoms, particularly at 3(a) – empowering an adult to exercise the adult’s human rights and fundamental freedoms; (c) General Principle 4 – Maintenance of adult’s existing supportive relationships particularly at 4(1) the importance of maintaining an adult’s existing supportive relationships must be taken into account, and 4(3) the role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected. (d) General Principle 8 – Maximising an adult’s participation in decision-making at 8(1) an adult’s right to participate to the greatest extent practicable in decisions affecting the adult’s life must be recognised and taken into account. Per General Principle 8(2) – an adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life. Per General Principle 8(3) an adult must be given the support necessary to enable the adult to communicate the adult’s decisions. Per General Principle 8(6) an adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision; (e) General Principle 9 – Performing of functions and exercise of powers – a person or other entity in performing a function or exercising a power under the GAA Act, in relation to an adult, must do so in a way that promotes and safeguards -- 4 of 10 -- 5 the adult’s rights, interests and opportunities; and in the way that is last restrictive of the adult’s rights interests and opportunities; (f) General Principle 10 – structured decision-making: General Principle 10(1) states in applying General Principle 9, a person or other entity in performing a function or exercising a power under the Act in relation to a relevant adult must adopt the approach set out in subsections (2) to (5): (i) General Principle 10(2): first the person or entity must recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decisions; and if possible, support the adult to make a decision; (ii) General Principle 10(3): second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult; (iii) General Principle 10(4): third, if the adult’s views, wishes and preferences cannot be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be. The person or other entity must recognise and take into account what the person or other entity considers the views, wishes and preferences and preferences would be; (iv) General Principle 10(5) fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4) the person or other entity may perform the function, exercise the power or make the decision. [8] There are also some earlier acknowledgements in s 5 of the GAA Act that it is (a) an adult’s right to make decisions is fundamental to the adult’s inherent dignity; (b) the right to make decisions includes making decisions with which others may not agree; (c) the capacity of an adult to make decisions may differ according to (a) the type of decision to be made including, for example, the complexity of the decision to be made; and the support available from members of the adult’s existing support network. [9] The Tribunal has also been asked to make a declaration about the enduring power of attorney (‘EPA’) made by AAB on 21 September 2021 appointing AAR as her attorney for personal health and financial matters, in particular whether the enduring power of attorney was made properly. The Tribunal may make a declaration about capacity in respect of a matter in accordance with s 146 of the GAA Act, the section refers to the definition of capacity in the schedule 4 Dictionary of the GAA Act. The definition of capacity is the GAA Act is a general one as seen above. I note that capacity in respect of an EPA is defined in s 41 of the Powers of Attorney Act 1998 (Qld) (‘POA Act’) though s 8(2) of the GAA Act states that if there is an inconsistency between this Act and the POA Act this Act prevails. The Tribunal may also make an order in regard to the validity of an EPA in accordance with s 113 of the POA Act and also an order removing an attorney or changing or revoking a document in accordance with s 116 of the POA Act. [10] A copy of the EPA was filed: it was handwritten and appointed AAR as attorney for personal health and financial matters and the powers began immediately. The EPA -- 5 of 10 -- 6 states that decisions are to be made jointly but there is only one attorney nominated. The attorney was instructed to notify himself about the exercise of powers under the EPA. The EPA was executed by AAB on 21 September 2021 and witnessed by a justice of the peace. AAR accepted his appointment as attorney on 21 September 2021. [11] I note that no evidence was sought from the witness to the EPA in terms of how they satisfied themselves that AAB had capacity to make the EPA. there were no obvious defects in regard to the EPA which would have impinged on its validity though the attorney was directed to make decisions jointly which did not apply where there was only one attorney. Having regard to the other orders made in respect of AAB I determined that the only order that should be made in regard to the EPA was that it was overtaken to the extent of those orders. Capacity [12] Before the Tribunal is able to make any determination in regard to AAB’s decision making, the threshold issue of whether or not she has capacity to make decisions about the matters in question needs to be determined. [13] A report in regard to AAB’s cognition was provided from Dr Gray, an advanced trainee in Geriatric Medicine. The report dated 22 December 2021 notes that AAB has known dementia and that collateral from AAR indicated that there had been a further decline in AAB’s cognition since she was last reviewed in clinic with worsening recall and irritability, with difficulties recalling if she had eaten a meal, or showered, or if she had recently been visited by people. Upon examination AAB was aware that AAR had been helping her with her finances for a number of years and had only a superficial understanding of her financial position, in that she and her husband owned two homes but she was unsure of their worth and could not describe her income and expenses even in rough terms. She was aware she had heart problems but was unable to elaborate on this and could not name the medication she took for it. She was unable to recall being told she had dementia previously but subjectively reports she has some minor problems with her memory. It was noted that AAB became quite upset during her interview, as she was unable to recall when she had last seen her husband who resided in the same facility as her but in a different wing. AAB had been moved to the dementia secure unit within the facility, owing to some absconding attempts when she first arrived at the facility. AAB was quite repetitive in conversation with recurrent discussion about her early family life looking after relatives. On examination AAB was alert and attentive, but repetitive in conversation and irritable at times. Her Mini Mental State Examination ( ‘MMSE’) was 20/30 (4/10 orientation, 5/5 attention, 0/3 recall with nil improvement with cueing). It was noted that AAB had scored 20/30 on her MMSE in September of that year. [14] Dr Gray’s opinion was that AAB had mixed Alzheimer’s vascular dementia with some behaviours and psychological symptoms of dementia manifesting as irritability and low mood. AAB has tolerated Donepezil that was started at the last review with a stable MMSE. Overall, Dr Gray felt AAB lacks capacity for complex decisions regarding health, lifestyle and finances and as such her Enduring Power of Attorney should be enacted. [15] Dr Gray noted in her report that AAB was feeling generally sad and angry that she was living in a nursing home, she did not understand why she was there, and when prompted that she was needing help to manage at home and her son was finding it -- 6 of 10 -- 7 difficult to provide this care, she responded that she did not need help with these things and that she can manage herself. AAB felt that she had been institutionalised and because of this her memory was deteriorating. AAB said she wanted to go home and felt that if she could get meals on wheels, she would be able to manage. In her report Dr Gray stated that AAR noted that some relatives who previously had not been in contact regularly in recent years had re-emerged in AAB’s life, including one of AAR’s cousins AAL and there had been concerns that AAL had been attempting to get AAB to sign legal documents. These visits had been causing distress to AAB and he has since asked that AAL not be allowed to visit AAB at the aged care facility. [16] AAL responded to Dr Gray’s report amongst other things. She noted that she was AAB’s primary aged care representative and has access to AAB’s myagedcare database entries. She states that AAB in August was waiting for a level 3 home care package to enable her to continue living at home. There were a number of supports to assist her to remain at home including webster packs for medication and an electric GPS beeper for AAB to use when she went for a walk to help her return home safely. She states that none of these items were looked into as AAB was placed into respite care on 26 October and on 26 November 2021 this was changed to permanent care. She notes that the letter given to AAR to enact the EPA, which means as Dr Gray’s report was done on 22 December 2021 AAR did not have this prior to putting AAB into the aged care facility. She states her name is mentioned as getting AAB to sign legal documents, but states she tendered the documents as a statutory declaration that AAB signed so that AAL could take her to see her general practitioner and to respond to AAB’s request that she get legal advice for her. She states AAR threatened he would stop her from visiting AAB and AAB completed a statutory declaration on that as well. [17] AAL states that she believes that there are some factual errors in Dr Gray’s report as well. AAB was given a MMSE 31 August 2021 not September 2021 as mentioned in the report. She states AAR was present at the test which was in AAB’s home. AAB scored 23/30. She also has commentary on the result and that the next MMSE scored 20/30 which she thought indicated that being in the nursing home had a negative impact on AAB’s mental health. AAL notes that the next report form Dr Korinhona of 4 April 2022 has the most recent MMSE. [18] The report of Dr Korinhona dated 1 April 2021 confirms that AAB has mixed Vascular/Alzheimer’s dementia diagnosed in December 2021 and has been commenced on Donepezil. With an initial Psychogeriatric Assessment Score score of 8 indicating mild dementia AAB was said to have settled in well into the aged care facility. The nursing staff indicated that AAB was independent with her personal activities of daily living and with mobility with a single point stick. It was noted that there had been no further attempts at absconding. AAB was said to be very repetitive, becoming emotional when talking about wanting to go home. She was fixated on her son having feelings of abandonment. AAB wants to go home as she feels she can look after herself. When pressed about her care needs were she to go home she was not able to elaborate in detail how she was going to look after herself or about her financial obligations. AAB indicated that she was bored and would like to have things to do during the day. She stated that there is no physical activity she can do as she is in a locked ward. Her MMSE was 25/30 with orientation 6/10, registration 3/3, attention 5/5, recall 2/3, language 9/9. Her last MMSE was noted to be 20/30. It was noted that she had difficulty with the clock drawing. Suggestions were that mood be monitored -- 7 of 10 -- 8 and could suggest addition of an SSRI and also a diversional therapist for leisure activities. [19] Various parties including friends and family of AAB filed feedback with the Tribunal that confirmed that she had short memory loss and that she would be able to make simple decisions such as whether to get a vaccination and simple purchases of clothes, and entertainment. AAR’s feedback form indicated that AAB and her husband are at the stage where decision making is no longer something they want to do. They have complete trust in AAR and have given AAR the right to take care of any decisions. [20] While it is clear that following the trial of a memory enhancing drug that AAB had improved in regard to her capacity there were still major issues with her short-term memory. This was particularly apparent from the report provided by the social worker LMC that showed AAB needed to be reinformed regularly about such matters as why her niece AAL was unable to visit her. LMC confirmed at the hearing that AAB has short term memory loss. In accordance with the general principles in s 10B of the GAA Act AAB was required to be kept informed of all decisions and her views and wished were required to be taken into account when decisions were being made. While she would not be able to make complex decisions there were many simple decisions that she would be able to make and she should have the means to be able to make and carry out these decisions. I am satisfied that AAB has impaired capacity for any complex personal, health and financial decisions. Guardianship [21] AAB is currently residing in a dementia-specific unit of an ACF and she was transferred to that unit soon after she arrived at the ACF for respite care due to her attempting to abscond from the facility. AAB has made it clear to all parties who have filed material for the hearing that she does not wish to live in an ACF and would prefer to reside in her own home with supports. I note that AAR does not raise this as an issue in his feedback to the Tribunal. She was approved for a level 3 package through myagedcare. If she were to remain in an ACF many parties have expressed concern about the facility that she is currently residing in terms of its condition. There is also the issue about whether AAB should be in a dementia-specific locked unit, in terms of the limit of her rights in having her freedom of movement limited. AAB is also unable to communicate with the other residents, most probably due to their advanced dementia, and she feels threatened by other residents entering her room uninvited. AAB is well able to join in activities and she had an expectation that there would be activities at the ACF. There are no activities available in the locked unit. There was some effort made to escort AAB to activities in the open area of the facility; this of course would be dependent on staff availability. There is therefore a need for decisions to be made in regard to accommodation and the provision of services for AAB. [22] AAL had visited AAB for a period of time during November 2021 and assisted her with her personal needs, and had taken her out of the ACF for coffee and also to attend doctors’ appointments. AAR’s reaction to this was angry and he confronted AAL and AAB at the doctors and later in the facility in AAB’s room. Very soon after this AAB was restricted in the visits she could have with AAB by not being able to take her out of the ACF and ultimately she was banned by AAR. Her husband attended on AAL’s behalf at one stage and he was banned and another niece of AAB’s attended for a visit, and when AAR discovered that she was a niece she was also banned, as was AAL’s mother who was married to AAB’s brother. AAL arranged for a social worker to visit AAB at her request and the social worker filed material. -- 8 of 10 -- 9 [23] AAB asked AAL to arrange to attend the doctors and she was able to get her covid vaccination. AAB also had a pacemaker and follow up appointments were required with the cardiac clinic. AAB also had a rotten tooth which required attention. AAB was not able to organise any of these appointments for herself and there is a need for assistance in regard to health care in that regard and also in the making of complex health care decisions. AAR had not appeared to assist AAB in these health care matters though he had attended her appointment with the geriatrician Dr Gray. There is a need for decisions in regard to health care. [24] The Tribunal notes that AAR is appointed attorney for personal and health care matters and in accordance with s 12 of the GAA Act if AAB’s needs are being met by her attorney then there is no need for appointment of a guardian. It is clear though despite AAR asserting that he consults AAB about decisions this is not the case as she did not want to remain in the ACF and she wanted to have contact with AAL and her family and friends. In denying AAB contact with her family and friends AAR has also breached the general principes by not maintaining her existing relationships. AAR has also neglected his duties in terms of not ensuring that AAB had appropriate accommodation and support. An ADA Law advocate spoke to AAR and he made it clear that he did not accept that keeping AAB in a locked unit is an excessive constraint though he did agree that she should be able to attend some activities. He has also neglected her health care and made decisions in regard to contact which could have been made by AAB and which she did not support. AAR has clearly assumed that AAB did not have capacity to make any decisions despite the fact that she is well able to articulate her views and wishes and when there is a decision required, the POA Act in its general principles, in particular 8, makes it clear that an adult’s right to participate to the greatest extent practicable in decisions about the adult’s life must be recognised and taken into account. By not consulting AAB AAR is in breach of the general principles. AAB has also made it clear to many people including an ADA Law advocate that she did not want to be her attorney any longer. For these reasons I am satisfied that AAB’s needs are not being met under the EPA granted to AAR. [25] AAL nominated herself as guardian and the Tribunal may also consider the Public Guardian for appointment if there is no one else appropriate available in accordance with s 14(2) of the GAA Act. AAL is supported by other family and friends and has a good relationship with AAB. Despite the actions of AAR, she did everything she could to ensure that AAB’s needs were met including paying for a social worker to attend AAB to provide support to her. AAL is a teacher and highly regarded in the community; I am sure that she is an appropriate person to act as guardian for AAB and will carry out her duties in accordance with the general principles, as it was AAB’s distress at being in the locked unit and the clear signs of her needs not being met that kept her involved despite the angry interventions of AAR. [26] I appoint AAL as guardian for AAB for accommodation, provision of services and health care for one year. Administration [27] AAB owned two houses with her husband one of which was occupied by AAR and his family. AAB’s residence was put up for auction by AAR without consulting AAB though she stated she would be happy to reside in a retirement village if she was able to live in the community. There was also a sum of money in the bank of approximately $34,000. AAB and her husband were in a receipt of a part pension. There were refundable accommodation deposits to be paid in respect of AAB of $360,000 and her -- 9 of 10 -- 10 husband of $405,000. AAB also had a car which was in use by AAR. AAB’s aged care fees were $1,500 per month. AAB did not have access to a bank and a small amount of money was left at the ACF for her use. This money was inadequate to provide her with expenses for clothes, hygiene products and social outings. AAL provided clothes to her. There are clearly assets and income which require management and due to her inability to make complex decisions in regard to financial matters AAB needs a decision maker in that regard. However, AAB would be able to make simple purchases for her and manage a debit card that was topped up regularly for her personal needs. [28] AAR is currently appointed as attorney to make financial decisions. Consideration needs to be given to whether that is meeting AAB’s financial needs and whether AAR is appropriate to continue to carry on the role. AAR has made major financial decisions without consulting AAR and has not ensured that she has adequate funds to meet her personal financial needs. As the occupier of a house owned by her and her husband is also in a position of conflict and there is no conflict clause in the EPA, if AAB required additional funds a decision may need to be made about the house and this would be a conflict transaction. AAB has also expressed that she does not wish AAR to be her attorney. [29] AAL has proposed herself as administrator and while she clearly has the skills necessary and would be able to meet AAB’s financial needs there is a complication having regard to the need to deal with AAR, who clearly has a hostile relationship with her, in regard to such things as the house and property jointly owned by AAB with her husband, as AAR is his decision maker. For these reasons it is appropriate that the independent decision maker, the Public Trustee of Queensland, be appointed as AAB’s administrator for all financial mattes for 1 year with a financial management plan within 4 months and accounts as requested and the usual clause in regard to land. Enduring Power of Attorney [30] When the Tribunal appoints decision-makers and there is a power of attorney in place it is appropriate to limit the power of the attorney having regard to those appointments. I therefore order that the EPA dated 21 September 2021 appointing AAR as attorney for financial, personal and health matters for AAB is overtaken by the making of these appointments in accordance with s 22 of the GAA Act, and it can no longer be acted upon to the extents that these appointments have been made. -- 10 of 10 --