DEE [2024] QCAT 358

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DEE [2024] QCAT 358 PARTIES: In an application about matters concerning DEE APPLICATION NO/S: GAA12908-23 Application for a Declaration about Capacity GAA12909-23 Appointment of an Administrator GAA12910-23 Appointment of a Guardian GAA13038-23 Application for an Order about an Enduring Power of Attorney GAA13421-23 Application for a Declaration about Capacity MATTER TYPE: Guardianship and Administration matters for adults DELIVERED ON: 26 August 2024 HEARING DATE: 14 June 2024 HEARD AT: Brisbane DECISION OF: Member Hemingway ORDERS: IT IS THE DECISION OF THE TRIBUNAL THAT: DECLARATION ABOUT CAPACITY DEE has capacity for simple personal and financial matters. ADMINISTRATION The Public Trustee of Queensland is appointed as administrator for DEE for all financial matters. The Tribunal dispenses with the requirement for the administrator/s to provide a financial management plan. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in twelve (12) months. Before 13 September 2024 the administrator must: (a) Record the appointment as administrator/s on any property registered in DEE’s name with the Registrar of Titles by lodging the -- 1 of 31 -- 2 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 DEE’s property; and (ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by DEE. (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 DEE changes in any way or DEE acquires an interest in another property the administrator/s 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 Tribunal about the changes to DEE’s interest in another property. GUARDIANSHIP The Public Guardian is appointed as guardian for DEE for the following personal matters: (a) Accommodation; (b) With whom DEE has contact and/or visits; and (c) Health care. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six (6) months. ENDURING POWER OF ATTORNEY The following Enduring Power of Attorney for DEE are 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 2 August 2023 appointing G, H and M as -- 2 of 31 -- 3 attorneys for financial, personal and health matters. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT POWER OF ATTORNEY – HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT POWER OF ATTORNEY – whether adult has capacity, to revoke an EPA, manage her financial affairs, history of romantic scams, vulnerability to influence, diagnosis of dementia, differing medical opinions Guardianship and Administration Act 2000 (Qld) Powers of Attorney Act 1998 (Qld) Human Rights Act 2019 (Qld) Queensland Civil and Administration Tribunal Act 2009 (Qld) Aziz v Prestige Property Services [2007] QSC 265 Briginshaw v Briginshaw [1938] HCA 34 SBJ v Public Guardian and Ors [2022] QCATA In the Marriage of S [1980] Fam CA 27; (1980) FLC 90- 820, cited in Fatisi v Hasila [2020] Fam Ca 209 LER [2013] QCAT 404 Lambourne & Ors v Marrable & Ors [2023] QSC 219 Adamson and v Enever (2021) 9 QR 33 APPEARANCES & REPRESENTATION: Adult: DEE, represented by Ms Delaney, ADA Lawyers Applicant/s: G, son of DEE Current Attorney/s: G, son of DEE H, son of DEE M, daughter of DEE K, husband of DEE P, son of DEE V, brother of DEE S, daughter of K Public Guardian: A Andersen -- 3 of 31 -- 4 REASONS FOR DECISION BACKGROUND [1] These proceedings concern DEE, a recently widowed lady who has remarried. She is a published author and has had an extensive career in librarianship and senior public service roles. She professes a Christian faith and her second husband, K, is a retired Pastor. She met and married K having met him online and having known her new husband for five months. She is aged 74 and has three sons, G, H and P and two daughters, M and R. These reasons are submitted in de-identified form for privacy reasons. [2] On 2 August 2023 DEE made an Enduring Power of Attorney (‘EPA’) appointing three of her children G, H and M as her attorneys who were appointed for all personal and financial matters. [3] DEE was widowed on 31 August 2023 and until 2023 was residing in her own home in suburban Brisbane. After meeting and marrying K, she relocated to a central western Queensland town (870 kilometres from Brisbane). She has been residing there with K in a renovated building located on a property presumed to be owned by K’s daughters. [4] Since the commencement of the relationship with K, she has revoked the EPA dated 2 August 2023 in favour of her children. [5] On 10 November 2023 DEE married K in New South Wales. DEE is now estranged from all her children and siblings. Numerous family members and DEE and K have exchanged hostile messages with each other. The animosity between DEE, K and DEE’s family has escalated in a relatively brief time. [6] DEE owns her own home. K has no assets and relies upon the pension for income. DEE has been the subject of internet romance scams, one shortly before she met and married K. [7] The Tribunal by interim order dated 5 February 2024 appointed G, H and M as administrators and guardians. DEE applied for a stay of the decision of the Tribunal dated 5 February 2024. By order of the Tribunal, the application for a stay of the interim appointment is to be treated as an application for a Declaration of Capacity of DEE. [8] There is an application for the appointment of an administrator and guardian for DEE brought by her son G who currently seeks an independent appointee as administrator and guardian. G seeks the appointment of the Public Trustee of Queensland as administrator and the Public Guardian to be appointed as guardian for DEE. [9] There is application for an Order about an EPA initiated by the Tribunal. Sequence of events [10] DEE underwent a Mini Mental Test on 22 February 2023 scoring 29/30. [11] DEE’s last consultation with her general practitioner of 11 years, Dr Spurling, was on 24 August 2023. [12] DEE’s husband passed away on 31 August 2023, after a three-year period of ill health due to metastatic cancer. -- 4 of 31 -- 5 [13] Just prior to her husband’s death, DEE executed a short form EPA on 2 August 2023 appointing her son G, her son H and her daughter M as her attorneys. The power for financial matters was to commence when she no longer had capacity for financial decisions. The attorneys were to act jointly. M accepted her appointment on 4 August 2023 and G and H accepted their appointments on 5 August 2023. [14] The EPA at page 3 requests the attorneys to exercise their power after multiple medical recommendations. DEE states that she is a Christian and would like biblical precepts to be followed in responding to all things in the EPA. She also requests that C and that her brother V be advised of decisions. In regard to decisions generally she requested that her son P be advised of decisions at page 6 of the EPA. The witness to the EPA was William Tomlins, a Justice of the Peace Qualified. [15] DEE advised her children on 12 October 2023 that she was engaged to K. [16] Dr Spurling authored a letter diagnosing DEE with severe dementia and recommending the activation of the EPA on 13 October 2023. [17] K met with DEE’s son on 18 October 2023 to discuss and attempt to resolve issues. This was unsuccessful. [18] Dr Spurling authored a health professional report on 19 October 2023. [19] On 31 October 2023, DEE purported to revoke the EPA. The revocation was witnessed by a lawyer, Robert Kropp, who is employed at a legal firm in central Queensland. He deposes to the steps taken by him to satisfy himself that DEE had capacity for the revocation.1 [20] Mr Kropp recommended that DEE seek medical advice regarding her capacity to revoke the EPA in order to prevent a challenge to the revocation of the EPA on this basis and to minimise the risk of the revoked attorneys making an application to the Queensland Civil and Administrative Tribunal.2 [21] A medical report was obtained and is dated 31 October 2023 from Dr Jem Dacumos who stated that the results of the Mini Mental Test were unremarkable. [22] Subsequently, K contacted the attorneys to advise that DEE had capacity and had revoked their appointments giving evidence to this effect in the hearing. [23] On 2 November 2023, G commenced proceedings in QCAT for the appointment of an administrator and guardian for DEE. [24] On 6 November 2023, an interim order was made by the Tribunal appointing the previous attorneys G, H and M as administrators and guardians. [25] On 7 November 2023, the Tribunal initiated an application for an order about an EPA. [26] On 10 November 2023 DEE married K in New South Wales. [27] On 14 November 2023, an order was made by the Tribunal for the application for a stay of the decision pending the hearing to treated by the Tribunal as an application for declaration of capacity of DEE. 1 Affidavit Robert Kropp dated 24 January 2024 paragraph 6. 2 Affidavit Robert Kropp dated 24 January 2024 paragraph 8. -- 5 of 31 -- 6 [28] On 14 November 2023, the Tribunal appointed a separate representative for DEE. [29] On 10 January 2024, DEE had a full blood test referred to by Dr Mikli. [30] On 24 January 2024, DEE attended Dr Mikli at a Brisbane location. Dr Mikli wrote a report dated 24 January 2024. [31] On 31 January 2024, the Tribunal commenced the hearing of the applications which were adjourned and then recommenced on the 5 February 2024 when a decision was given renewing the interim order but changing the appointees to the Public Trustee of Queensland, the guardianship order having lapsed on 6 February 2024. [32] DEE attended for a consultation for the preparation of a medio-legal report with Professor Byrne on 11 April 2024 and he authored a report dated 16 April 2024. [33] The matter then came before the Tribunal on 14 June 2024. Orders were made and the reasons for the decision were reserved. Declaration of capacity [34] The Tribunal notes the concerns expressed about the capacity of DEE to enter the marriage with K. However, the jurisdiction to consider the validity of the marriage is outside the scope of this Tribunal. Professor Byrne has expressed the view that DEE had capacity to enter the marriage. The Celebrant proceeded with the marriage after advice from the Attorneys about the Queensland Civil and Administrative interim Order appointing administrators and guardians for DEE. [35] The circumstances surrounding the marriage are relevant to these proceedings as they go to the issue of DEE’s alleged vulnerability and the extent to which her decisions are free and voluntary in terms of the definition of capacity in the Guardianship and Administration Act 2000 (Qld) (‘GAA’).3 The circumstances of the sudden and dramatic estrangement from family, the secrecy and haste with which the arrangements for the marriage were made and the isolation of DEE from her support network are considered in the reasons. These factors are particularly significant regarding the purported EPA revocation. [36] DEE is presumed to have capacity in accordance with section 7 of the GAA and General Principle 1 under Schedule 1 of the Act. That presumption can be rebutted with relevant evidence. Unless there is sufficient evidence to rebut that presumption, it must stand. The standard of proof required to rebut the presumption is on the balance of probabilities.4 [37] The Tribunal has considered DEE’s capacity to make financial and personal and health care decisions. The Tribunal has also considered her capacity to revoke the EPA. [38] The GAA Schedule 4 Dictionary, definition of ‘capacity’; Schedule 4 of the Act defines capacity 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 3 GAA, schedule 4. 4 Briginshaw v Briginshaw [1938] HCA 34. -- 6 of 31 -- 7 (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [39] The capacity of an adult to make decisions may differ according to (a) the type of decision to be made and (b) the support available from members of the adult’s existing support network.5 [40] The Act categorises matters as follows: (a) personal matter (b) special personal matter (c) special health matter (d) financial matter. [41] Financial matter is defined in Schedule 2, part 1 of the Act as follows: A financial matter, for an adult, is a matter relating to the adult's financial or property matters, including, for example, a matter relating to 1 or more of the following— (a) paying maintenance and accommodation expenses for the adult and the adult's dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult. (b) paying the adult's debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law. (c) receiving and recovering money payable to the adult. (d) carrying on a trade or business of the adult; (e) performing contracts entered into by the adult; (f) discharging a mortgage over the adult's property; (g) paying rates, taxes, insurance premiums or other outgoings for the adult; (h) insuring the adult of the adult’s property, (i) otherwise preserving or improving the adult’s real estate: (j) investing for the adult in authorised investments: (k) continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult has become entitled because of the adult’s existing shareholding; (l) undertaking a real estate transaction for the adult; (m) dealing with land for the adult under the Land Title Act 1994 or the Land Title Act 1994; (n) undertaking a transaction for the adult involving the use of the adult's property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult; 5 GAA, s 9. -- 7 of 31 -- 8 (o) a legal matter relating to the adult's financial or property matters; (p) withdrawing money from, or depositing money into, the adult's account with a financial institution adult's property.6 [42] Capacity for a revocation of an EPA is found in section 49 of the Powers of Attorney Act 1998 (Qld). Revocation of an EPA is a special personal matter defined in the GAA.7 Capacity for a revocation of an EPA is stated to be that which is required for the making of an EPA. [43] Justice Lyons states in her decision in Aziz v Prestige Property Services8 as follows: …capacity is determined not on a global basis but rather on the basis of whether a person has capacity for a particular matter. In this case it is not a question of whether the plaintiff has impaired capacity for matters in general but specifically. [44] Her Honour concluded in that case that the adult had impaired capacity for the relevant decision because he did not understand the consequences of his decisions, even after an explanation was given. [45] The question for this Tribunal is whether DEE has capacity in terms of the statutory definition currently for specific future decisions about her financial, personal and health matters and for the revocation of the EPA. [46] Each limb of the statutory definition must be found, or the adult will be presumed to lack capacity for the decision about a matter in question. Having established the issue of capacity, the Tribunal then turns to a consideration of need and appropriateness9 of proposed appointees as found in the GAA. [47] If DEE has impaired capacity for a decision about a matter, then the Tribunal must determine if is there a need for an appointment of a guardian or administrator such that without an appointment, the adult’s needs will not be adequately met, or the adult’s interests will not be adequately protected.10 [48] In considering the evidence about capacity the Tribunal is permitted to consider all relevant credible evidence.11 This is not limited to the medical information about cognition but also the adult’s behaviour and conduct towards family and others including with the various medical practitioners.12 These Reasons will consider the sharp distinction between the understanding and insight, the behaviour and language of the adult in the hearings, in her interactions with family and support network and that demonstrated in the consultations with various medical practitioners. Evidence of medical practitioners [49] The evidence of three medical practitioners has been considered. 6 GAA, sch 2, pt 1. 7 Powers of Attorney Act 1998 (Qld), Schedule 2, s 3(b). 8 Aziz v Prestige Property Services [2007] QSC 265. 9 GAA, s 15. 10 GAA, s 12. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 28(3)(e) 12 LER [2013] QCAT 404, [13]-[14]. -- 8 of 31 -- 9 [50] Dr Spurling is a general practitioner who treated DEE and her late husband as a long- term patient at a medical practice for eleven years. Her practice is located at R suburb. [51] Dr Spurling’s signed evidence is that she treated DEE on a fortnightly basis over an eleven-year period. DEE and her late husband were both patients. [52] Dr Spurling provided a health professional’s report dated 19 October 2023 in which she stated that she last saw DEE on the 18 August 2023. She stated: Medication was changing due to difficulty in adhering to a medication regime. I think she has reduced them in the last 7-8 weeks, and she has not asked for any prescriptions’, which is unusual. I have enclosed her most recent list as written by the adult, as well as a list of medical problems of which there is no objective evidence (as confirmed by the specialist cardiologist). [53] Dr Spurling lists other factors affecting the adult’s ability to make decisions as including non-compliance with medication, hoarding of medications and taking it incorrectly, including more than is required. Dr Spurling stated that her physical health shows no major problems apart from age. Dr Spurling stated that DEE refused an appointment with a psychologist or psychiatrist. Dr Spurling stated that DEE lacks capacity for financial decisions, for example, she cannot understand why she cannot buy a house immediately.13 [54] Dr Spurling states that DEE’s diagnosis was memory loss and apparent dementia. Dr Spurling states that DEE does not understand the concept of consequences on her or her family.14 Dr Spurling states that DEE has short term memory issues, and she does not listen and repeats herself consistently.15 Dr Spurling states that DEE is only able to understand that she can limit the type of decisions an attorney can make but no other aspects of an EPA.16 [55] Dr Spurling concludes that DEE lacks capacity for complex decisions of a personal or financial matter: she has capacity for simple personal decisions, but not financial or lifestyle and accommodation decisions. Dr Spurling states that DEE could not participate in a discussion about her decision-making ability and a discussion about whether another person should be appointed to make decisions for her.17 [56] Dr Spurling states that DEE is extremely vulnerable to exploitation, has deteriorated since her husband’s death. Does not appear to be upset or grieving, but not coping. Memory loss is occurring gradually over about 5 years. I have discussed this and its implications a number of times in the last 2 years. However recently she has refused to acknowledge it. She did feel happy to arrange an EPOA.18 [57] Dr Spurling provided medical reports in the form of a letter dated 13 October 2023, having last seen DEE on 24 August 2023. Dr Spurling states that 13 HPR Dr Spurling 19 October 2023 page 7. 14 HPR Dr Spurling 19 October 2023 page 7. 15 HPR Dr Spurling 19 October 2023 page 8. 16 HPR Dr Spurling 19 October 2023 page 9. 17 HPR Dr Spurling 19 October 2023 page 10. 18 HPR Dr Spurling 19 October 2023 page 8. -- 9 of 31 -- 10 DEE had significant dementia, including short term memory loss. And is being taken advantage of by a man she has known only a few weeks and at risk of causing severe and lasting harm to herself and her family.19 [58] Dr Mikli, a general physician and geriatrician, reported by way of a medico-legal report on 24 January 2024 to her referring doctor, Dr Martin. Dr Martin is a practitioner at the S super clinic. He has not provided a report. [59] Dr Mikli stated that DEE stated that her medical conditions included: partial gastrectomy, Hysterectomy for Prolapse, bladder resuspension, Abdominal Mesh After Birth, Cholecystectomy, BCCs and SCCs, hypertension, asthma (as a child) Gastroesophageal reflux disease, hypothyroidism, and cardiac ablation. Dr Mikli does not refer to any other reports obtained and reviewed prior to her consultation with DEE. She states that she has been told that a previous GP had diagnosed her with advanced dementia. I believe her children have acted on this advice and frozen her assets and forbidden her now husband from visiting her home. Her Mini Mental Test score was 28/30. [60] Dr Mikli stated that DEE had diagnoses of normal cognition for her age with no evidence of dementia and retained capacity for decision making including lifestyle healthcare and finances and to appoint an enduring power of attorney. Dr Mikli’s report affirms information she was told by DEE and K. [61] Dr Mikli also tested DEE by way of a Mini Mental Test for which she scored 28/30 and a Montreal Cognitive Assessment (MoCA) test for which she scored 28/30. She was also able to perform double digit mathematical problems correctly and that although she has a history of minor memory concerns this is consistent with the cognitive changes of normal aging. Dr Mikli states that there is no evidence of mild cognitive impairment or dementia. [62] The Tribunal ordered that DEE attend a geriatrician and a report was provided by Professor Gerard Byrne. Professor Byrne is a consultant psychiatrist and registered medical practitioner with 34 years’ experience. He holds the office of Mayne Professor and Head of Psychiatry within the faculty of Medicine at the University of Queensland. Professor Byrne undertook a consultation with DEE and spoke also with K and G. He considered the reports of Dr Spurling and Dr Mikli, but no clinical notes from Dr Martin, Dr Caitlin Hurlock or Dr Jem Dacumos. [63] Professor Byrne concluded that DEE does not have dementia. He described her condition as being non-amnestic mild cognitive impairment.20 He stated that her executive dysfunction is mild. Her reported ADL and IADL functions remain intact. He stated that in his opinion the mild neurocognitive disorder was not so severe as to threaten her capacity to make simple or complex decisions in relation to her finances, healthcare or lifestyle.21 [64] He affirms the position put forward by DEE that DEE’s first husband was coercively controlling. He further affirms that position put forward by K that K is endeavouring to encourage DEE to a more independent stance. Professor Byrne states that DEE may have health anxiety due to early overprotective actions by her own mother in DEE’s formative years and that this has resulted in frequent medical presentations. Professor 19 Dr Spurling’s report letter dated 13 October 2023. 20 Professor Byrne’s report page 28. 21 Professor Byrne’s report page 28. -- 10 of 31 -- 11 Byrne affirms the view that G’s interpretation of his mother’s symptoms when G resided with his parents, as being more likely attributable to her use of sleeping tablets and the stresses of the deteriorating terminal health of her late husband. [65] Professor Byrne states that DEE is not subject to undue influence. His diagnosis is non-amnestic mild cognitive impairment. This is a mild neurocognitive disorder. Professor Byrne concludes that DEE’s good premorbid IQ and her solid educational and occupational achievement have been protective and have enabled her performance on brief cognitive screening to remain within the normal level. [66] Professor Byrne undertook various tests on DEE. Her mental state examination contains the following summarised observations: She was neatly attired and well-groomed wearing spectacles. Her gait and posture were unremarkable, there were no abnormal involuntary movements or psychomotor abnormalities such as agitation and retardation. She was socially appropriate, showed no disinhibited behaviours and her affect was reactive, smiling and laughing appropriately at times and though anxious at the beginning of the interview became less as the interview progressed. [67] Professor Byrne concluded that DEE was not clinically depressed and denied any perceptual abnormalities including hallucinations, stating none could be inferred from her behaviour. He stated that he elicited no delusional or overvalued ideas. He stated that she could do simple arithmetic and was able to estimate the price of common purchases. He stated that she knew the value of her house and other assets and that she said K assisted her with her finances. [68] Professor Byrne undertook a NART test (National Adult Reading Test) on which she scored a premorbid full-scale IQ of 119. On the Rey Memory test she scored 12/15. On the Hopkins Verbal Learning Test, she demonstrated that her raw scores were consistent with new normal learning (memory) ability. No abnormal forgetting was observed. On the FAB test, she scored such that there was an absence of gross frontal lobe dysfunction.22 [69] Professor Byrne observed that DEE had ceased two psychotropic medicines when she judged they were no longer needed and that it is unclear to me whether it was prudent of her to cease telmisartan (micardis). [70] K was interviewed by Professor Byrne. K declined to provide any personal financial information to Professor Byrne. K told Professor Byrne he would only say that he, K relied upon his age pension to meet his expenses. [71] Professor Byrne states that K indicated that DEE had no memory issues and that she did not require assistance with personal cares. K and Professor Byrne affirmed the narrative that DEE’s family were opposed to her re-partnering so soon after the death of her husband and that this caused stress to DEE from which K was protecting her. [72] Professor Byrne states that he is unclear as to the basis of Dr Spurling’s diagnosis that DEE was suffering from advanced dementia.23 [73] DEE described the circumstances of meeting K via a dating app and in Professor Byrne’s view this was unremarkable. He also states that the romantic scam to which 22 Professor Byrne's report page 16. 23 Professor Byrne's report page 25. -- 11 of 31 -- 12 she was subject immediately prior to her commencing her relationship with K was not significant. [74] Professor Byrne interviewed G as well. Professor Byrne affirmed G’s advice that he lived with his parents for two years up until his father’s death and that DEE’s memory had been deteriorating for 5-10 years. G stated to Professor Byrne that he considered his mother to be repetitive in conversation, to be forgetful and eccentric and to lie. He stated that DEE had texted the children when their father died, and that G considered this to be an odd thing to do. G stated that his mother was mainly a stay-at-home mother and a sweet kind old lady who fussed over you. G said she was a loving mother, but she was a hypochondriac and had Munchhausen syndrome. He confirmed that his father was a gambler which placed stress on the marriage. He had not observed domestic violence between his parents. He stated that he felt his mother tended to exaggerate the difficulties of her marriage. He stated that he sorted out his parents’ finances after his father died which were in a mess. He stated that the home was in poor condition. He stated that his mother was a hoarder and the victim of a romantic scam. He stated that DEE met K on a dating app, and he was concerned about the haste with which she had re-partnered and believed K to be a scammer. He stated that DEE had struck her son H in the face when they told her that they had activated the EPA. On leaving the rooms Professor Byrne observed DEE to strike G lightly on the face. Views of the adult and family [75] The Human Rights Act 2019 (Qld) and the General Principles require that the adult’s views and wishes are taken into account. The following are DEE’s remarks regarding the issue of her capacity. Due to unusual features in this case, which present complex issues, the Tribunal has set these maters out in some detail. [76] In her email to the QCAT registry dated 26 February 2024, DEE states that I have appealed the decision as G does not have my best interests at heart…he is doing everything in his power to break my marriage up, I will not communicate with him again until he accepts my new marital status…but I never will never seek the approval of my son who is trying to destroy my life. [77] In her email to QCAT case manager, dated 13 March 2024 DEE states against my written advice that I do not require representation… that I am getting pressured by Catherine Delaney , a solicitor for ADA Law appointed by QCAT to represent me urging me to proceed with the neuro test ordered by Member Hart , which is part of which I have appealed against. Passing the test will supposedly end this travesty, but I have no confidence in that… but the applicants have to prove that I do not have capacity in order to destroy my husband and end my marriage ,which is their aim. My children’s supposition that my husband married me for my money is LUDICROUS IN THE EXTREME. Anyone who would marry a lady in her 70’s for a mere $300,000 in the bank needs confining to a mental institution not me. Tragically, my family are determined to sacrifice me, their mother, in order to achieve the destruction of my marriage and confinement of me in an aged care dog kennel, throw away the key and forget I exist . [78] DEE’s views concerning the issue of her capacity are further contained in the responses made by her and K to the Member on day one of the hearing. -- 12 of 31 -- 13 [79] When asked “What is your understanding of why we’re here today?” Her response was: [My children] hate the fact that I have remarried. Complete total rejection of my husband. And so because husband and wife in the Christian church are one; that means a complete rejection of me too. And sadly, my siblings seem to have taken the side of my children in also rejecting me as well.24 [80] DEE represents the conduct of her children as follows: they want to put [her] in a hole and throw away the key. Further she says that the children want to confine me in a dog kennel and throw away the key.25 [81] She states that all my children hate me, hate them all [sic].26 [82] She then goes on to say the following: (a) My family would like me to be in a deep dark hole with a key that could be thrown away so they could;27 (b) You know forget about me for the rest of my existence;28 (c) Bury me alive effectively;29 (d) We have everything in common [of Les];30 (e) I’ve got some money in the bank, or I did have before the kids started doing strange things with it (f) Whether the kids have depleted that or not ;31 (g) My husband is my be all and end all;32 (h) I had not realised that all my siblings were in on this;33 (i) So it wasn’t easy, so I understand my children didn’t have the easiest time growing up, but I did my level best to show them love and caring. Why they have turned on me with the level of viciousness that they have, I didn’t understand;34 (j) It’s like they hate me;35 (k) They want to control me. They want me thrown away in a -in a -in an aged person’s mental institution and be able to throw away the key and forget about me…;36 (l) And have nothing to do with me -take over the estate and do whatever. “Mum’s gone, you know we can forget about her.37 24 Transcript QCAT proceedings 31 January 2024 paragraph 35-45. 25 H 56. 26 H 51. 27 Transcript QCAT proceedings 31 January 2024 paragraph 20. 28 Transcript QCAT proceedings 31 January 2024 paragraph 25. 29 Transcript QCAT proceedings 31 January 2024 paragraph 25. 30 Transcript QCAT proceedings 31 January 2024 paragraph 30. 32 Transcript QCAT proceedings 31 January 2024 paragraph 31 32 Transcript QCAT proceedings 31 January 2024 paragraph 15 1-14. 33 Transcript QCAT proceedings 31 January 2024 paragraph 15 1-17. 34 Transcript QCAT proceedings 31 January 2024 paragraph 4 1-18. 35 Transcript QCAT proceedings 31 January 2024 paragraph 15 1-18. 36 Transcript QCAT proceedings 31 January 2024 paragraph 15 1-14 . 37 Transcript QCAT proceedings 31 January 2024 paragraph 30 1-18. -- 13 of 31 -- 14 (m) And it looks like they have been feeding a pack of lies to my siblings who think I am up the creek without an oar; (n) The children want to confine me in a dog kennel throw away the key and forget I exist.38 [83] She states that her former general practitioner Dr Spurling is a witch39 and a criminal. [84] DEE represented her online presence on a dating app as including I have a nice little nest egg of money to take care of us for our future.40 [85] DEE states that her late husband was a gambler and that she had to sell possessions from time to time to meet debts. [86] K’s evidence is that he is 77, and widowed. He returned to Australia from New Zealand and resides in a renovated shed on his daughter’s property at Emerald. He does not have any assets apart from the building. DEE described it as not owning the land but the building. He described a failed electrical business which employed numerous staff but had to be closed due to changed government regulation. He stated that he has a debt to the Australian Taxation Office of $70,000, but believes it is not recoverable from him. He is not an Australian citizen but has status as a British citizen and due to Australian government policy, he has permanent residency in Australia. He states that he knew DEE for 5 months having met her online on a Christian dating app. He arranged a marriage and quite possibly the appointments for DEE with Mr Kropp to revoke the EPA and with the doctor in Emerald to provide a medical report as to her capacity to make the revocation. DEE does not drive. [87] His statements to the Tribunal are as follows: I am the only person who actually cares about DEE.41 [88] K is reported to have told the Real estate agent at one stage of the negotiations that he would sue if the offer on a particular property was not accepted.42 [89] In an email to the QCAT Senior Member dated 1 February 2024, K states that DEE could lose her life as the applicants do not care what happens to her so long as they can get rid of me. [90] In his feedback sheet, K comments that: The adult has never needed assistance and is the subject of a targeted vendetta by her children. An outside administrator must never be forcibly involved in a legal normal marriage.43 [91] K states that she is a married woman and has a husband to discuss things with and that QCAT has no right to interfere, making decisions outside the marriage.44 [92] K further states that the adult has antipathy attitude towards me, her husband. 38 DOC H 56. 39 DOC H 43. 40 Transcript QCAT proceedings 31 January 2024 paragraph 35 1-32. 41 DOC H 49. 42 DOC H 41. 43 Feedback response K 14 January 2024 paragraph 6. 44 Feedback response K 14 January 2024 paragraph 4. -- 14 of 31 -- 15 [93] S is K’s daughter and has visited with DEE whilst DEE lived at K’s home in a rural Queensland country town. She comments that the appointment of the Public Trustee or someone who does not have your best interests at heart is an insult to any intelligent thinking adult. She further states that DEE has capacity for financial decisions as she has observed DEE reasoning about the sale and purchase of a home.45 [94] V is DEE’s brother. He comments in his feedback sheet that this person (K) has been extremely negative and controlling and destructive with regard to DEE’s wellbeing and especially her relationship with her family.46 [95] In the Guardian’s report by M dated 23 January 2024, the following observation is made: K has played a major role in the difficulties we have had undertaking our role as interim guardian. Since he entered DEE’s life he has made constant threats and allegations against communication with her has been made impossible without his presence and or influence. Communication has greatly diminished. He took DEE from her residence despite being aware of the interim order and our wishes as interim guardians. He has since apparently married DEE and put himself in a position to benefit financially from her. He has isolated her from her family. We have not been able to find out where she is.47 [96] G is DEE’s son and lived with his parents for two years prior to his father’s death. He states that he assisted his mother in caring for his father and undertaking renovations at the property. He stated that he believed his mother to be confused and to have had serious memory issues for a significant period. He stated that following his father’s death, he and his siblings assisted his mother to clean out the house taking multiple trailer loads to the tip. He stated that his mother was somewhat of a hoarder. He further stated that he is the executor of his father’s will and that he assisted his mother to lodge the Record of Death with the Department of Natural Resources and Land Titles to transfer the property into her sole name, such record being registered on the 28 September 2023. This occurred within 5 weeks of his father’s death. He further states that respecting her stated wish to live near the sea, he and his siblings arranged for her to rent an apartment commencing on 1 October 2023, near her cousin at Redcliffe. During this occupancy DEE stated to her family that she believed her property had been sold and that she owned the property at Redcliffe which she was just renting. At the time that this was occurring, DEE was meeting K, and G believes he moved in with DEE after meeting her online and knowing her for one week. G stated that DEE’s cousin became concerned and that on 12 October 2023, DEE advised family that she was engaged, planned to marry K, and was looking at real estate that they could purchase together. G alleges that K made threats towards family, that he complained to police and that he threatened real estate agents. G states that K insisted that the family were trying to control and manipulate their mother. G states that K admitted that he vetted her messages and only allowed her to read what he deemed suitable. G states that K demanded they withdraw the QCAT application, or he would report them to police. G advised the marriage celebrant of the interim order, but he proceeded with the marriage of DEE and K on 10 November 2023. G states that M advised that 45 Feedback response S dated 14 January 2024 46 Feedback sheet V undated H 19 paragraph 9. 47 Guardianship report dated 23 January 2024 part F. -- 15 of 31 -- 16 following a reply to a Merry Christmas message from M to DEE, M then received a message purported to be from DEE calling M a lying bitch a couple of hours later.48 [97] G states that K became involved very quickly in DEE’s life and at the same time she became estranged from all other family. G observed that DEE did not recall arrangements to clean and list her property or the list price. She and K placed an offer on other properties. It was apparent that the purchase monies would be provided by DEE and that property would be placed in K’s sole name or joint names. K arranged a marriage to DEE. DEE married K in secret in another state shortly after she revoked the EPA in favour of her children G, M and H. Proceedings were commenced in QCAT and an interim order appointed the attorneys as interim administrator and guardians. G, M and H submit that they were unable to act in accordance with the Tribunal order (registered on the title on 8 November 2023) due to the frustration of this by K. They stated that arrangements made by them would be undone immediately by K’s intervention because of an apparent ability to control and influence DEE. DEE stated that she was horrified by the actions of the children in bringing the QCAT application. The acrimony and conflict escalated. DEE was isolated in a remote country town 780 kilometres from her home in Brisbane. K advised Professor Byrne that DEE has not driven a car for fifty years.49 [98] G stated that he was concerned that her memory was deteriorating, she doesn’t remember events clearly or not at all and can be convinced of alternative narratives. his mother had become quick to reject very aggressively anything which goes against what she believes , she has recently claimed that her doctor of ten years to be a witch and is out to get her after being advised of her dementia.50 [99] H states that following a conversation with K about moving forward with a property purchase, K agreed he would not make an offer to purchase but immediately completely ignored this conversation and did the opposite.51 [100] M stated that the children remained concerned at the far-reaching financial decisions being taken by DEE and only wished to protect her in view of her erratic and irrational conduct. [101] DEE’s sister-in-law observed that she noticed that DEE appeared to her to have a split personality, sweet one minute then would become enraged if her views were challenged.52 She states that she was aggressive and belligerent saying that anyone who challenged her was a threat to her. [102] In the Guardianship report addendum 1, the guardian remarks as follows: I have been trying to maintain contact with her via texts and to ensure she is okay and to let her know I am here if she needs help. Her responses have changed even within the same day. One day she will reply by sending love and hugs and the next day a long aggressive message claiming that I am attempting to steal her money and then the following few days again it will be a positive message of love you too.53 48 Submission G dated 4 January 2023 but likely misdated. 49 Professor Byrne’s report. 50 G Feedack form 24 January 2024 51 H submissions dated 4 January 2023 but likely misdated. 52 Email record of conversation with D dated 19 January 2024. 53 Guardianship report dated 23 January 2024. -- 16 of 31 -- 17 [103] At paragraph Part H page 8 of the guardianship report, the guardian remarks that: Prior to K’s arrival we all had open communication with DEE and were able to discuss plans and decisions with her , even though she would forget things we were able to approach things slowly and delicately taking into consideration her wishes. That has all ceased. Following K’s arrival DEE has become very combative with family believing we are trying to steal ‘her estate’ and leave her broke. Does DEE have impaired capacity [104] The determination of DEE’s capacity has some complexity due to her concealment of relevant information from the clinicians. Both Dr Mikli and Professor Byrne were consulted by DEE and K on a single occasion and as evidenced in the discussion below were provided with selective versions or misleading accounts of her circumstances. The concern of the Tribunal is the extent to which the clinicians had the full picture of relevant factors in the preparation of their reports and have given appropriate weight to different aspects of their findings and inquiries. [105] The relevance of this inquiry goes to the definition of capacity in the GAA and whether the presumption is rebutted because it appears to the Tribunal that DEE, heavily influenced by K, was not making free and voluntary decisions and did not understand the consequences of her choices.54 [106] Dr Mikli and Professor Byrne both administered cognitive tests and concur that DEE does not have dementia. Dr Dacumos’ Mini Mental Test was to the effect that DEE scored 100% accuracy on 31 October 2023. Dr Mikli tested DEE and she scored 29/30 on the Mini Mental Test on 24 January 2024. Her Montreal Cognitive Assessment was 28/30 on the same date. Dr Mikli stated that her tests results were consistent with the cognitive changes of normal aging. [107] The first two paragraphs of Dr Mikli’s report contain a selective version of events from DEE and K in that they omit relevant information such as the reasons for the actions of bringing an application to QCAT. Dr Mikli does not have a copy of Dr Spurling’s reports and is not aware of details such as the length of the relationship between DEE and K prior to their secret marriage. She is also not told by DEE and K about DEE’s intention to gift her property totally, or in part to a person she has known for five months. At the time of this proposal for a gift to K by DEE, she had known K for two weeks, having met him on the internet. [108] Dr Mikli affirms what she is told by DEE and K which is that DEE has been mistreated by family who are vehemently opposed to K and her re-marriage. Dr Mikli is aware of some of the relevant factors, but not all, stating that DEE told her that her accounts had been frozen, but not why this had occurred or that arrangements were made for funds to be made available to her. Dr Mikli does not appear aware of the family estrangement and background to it, or the resulting monitoring of all her calls and texts by K. Dr Mikli is unaware of the fact that DEE’s whereabouts have been concealed from family and that she has been completely isolated and estranged from children and siblings within a five-month window from when K came into their lives. Dr Mikli was not made aware that until that time the family relationships had been cordial. 54 GAA, schedule 4 . -- 17 of 31 -- 18 [109] The Tribunal considers K’s financial position as highly relevant as DEE stated that as they are a married couple he is there to advise her and she relies upon him for financial advice. She stated that as a Christian married couple, they will share resources, principally her financial resources. DEE lacks insight into the very real concerns arising from the vulnerable stance she has adopted. [110] Dr Spurling stated that DEE had advanced dementia. Dr Spurling was the usual General Practitioner attended by DEE and her late husband. She had regular consultations with her and was aware of the proclivity for DEE to self-medicate, to be non-compliant with medications and to reject medical advice. Dr Spurling suggested psychiatric review or that DEE might consider counselling (when her husband died) or consultations with a psychologist. These were rejected by DEE. Dr Spurling commented upon the fact of the frequent medical complaints by DEE which were found not to have any clinical basis in an actual condition. In her report she states that DEE was repetitive and does not listen.55 [111] Dr Spurling’s report is dated 19 October 2023. In paragraph 2, page 3 she states that DEE had an appointment on 20 October 2023. It is unknown if this appointment was kept. Dr Spurling knew and treated the adult for a very significant time period and was very familiar with her presentations as well as her behaviours which the Tribunal considers to be relevant to the determination of her capacity. [112] Dr Spurling’s view was that DEE’s language is repetitive and dramatic, and the Tribunal observed the same behaviour in the hearing. DEE tended to revert to scripted responses without appearing to understand the questions. Frequently she would rebuke the Tribunal for asking her questions and was incapable of any objectivity regarding her circumstances. DEE’s responses demonstrate her view that that the actions of her children were evidence of their rejection of her relationship with K. She was clearly determined to the point of obsession with protecting K from any criticism. [113] The Tribunal notes the use of dramatic and extreme language by DEE and K which is at odds with events and the facts of the case. Both DEE and K use similar hyperbolic language. Anyone challenging the views of DEE or K is subjected to a very personal attack. For example, K states that he has nothing but contempt for that man in regard to DEE’s brother.56 The Tribunal notes the repetitive narrative which appears to have contributed to the extreme alienation of DEE from her family where DEE describes them as hating her, their conduct is vicious, wanting to put her in a hole and throw away the key. At same time, DEE describes herself as falling head over heels in love with K.57 K states that he is the only one who cares for DEE. [114] The use of the extreme and exaggerated language dramatizes the situation and plays into the narrative that DEE and K are being unfairly treated when they are just a simple Christian couple who wish to be left alone to continue their life together. [115] The significance of this extreme hyperbole undermines the claim that DEE has full capacity and suggest that she is being influenced and manipulated to hold these extreme views which are both recent and novel. 55 Dr Spurling’s report dated 19 October 2023. 56 Transcript14 June 2024 at page 1-57 57 DEE’s statement. -- 18 of 31 -- 19 [116] What is curious is that the emotive and hyperbolic statements made and described above are absent from the consultations had with Dr Mikli and Professor Byrne. The tenor of her comments to Professor Byrne are restrained and considered. [117] Professor Byrne has been told a version of events with relevant information omitted. This omission of vital financial information has meant that Professor Byrne was unaware that K misrepresented his circumstances and assets to DEE. For example, DEE believed that K owned the property on which his demountable building is located at J. DEE did not appear to comprehend the significance of this even when explanations were given. K disclosed in the hearing that he does not own the real property when pressed on the first day of the hearing, but he withheld this relevant information from Professor Byrne. [118] In the early stages of their relationship when DEE indicated an intention to place the name of the property in K’s name, she stated, when asked if K was contributing to the apartment, by a sibling, her response was that that was a conversation that she should have with K after he had already signed the paperwork (a joint intention to buy property signed within one week of meeting him).58 [119] K further did not disclose debts, in particular a debt of $70,000 to the Australian Tax Office which may or may not be recoverable from him. This fact together with DEE’s stated intention to gift assets to K after having known him for a brief time is information relevant to an assessment of her capacity to understand the consequences of her financial choices. [120] It appears from the evidence of the Public Trustee of Queensland that DEE is currently paying all expenses for the couple and that K is not contributing to expenses although he has claimed to the contrary. [121] The information concerning the dating app given to Professor Byrne is incomplete in that it does not mention the content of the post that DEE disclosed to potential partners which was she had a nice little nest egg for any prospective partners. It shows a lack of judgment of risk and vulnerability relevant to her capacity to self-protect. Professor Byrne considered the fact of DEE being scammed as commonplace. Professor Byrne may have considered the scam in a different light had he known how DEE was exposing herself to potential significant financial abuse by making such a statement on the internet. This reduces the weight that can be given to his view on this aspect. [122] DEE has stated her intention to gift a half share or the whole of her property to K. This intention without regard to the consequences of such a decision is evidence of a decision that is not rationally reached. This calls into question DEE’s judgment in regard to her capacity to make sound financial decisions. The Act states that a person does not have to make a decision with which others agree59 but that they need to reach the decision rationally and to understand its consequences. [123] K, in his submission at H 58, states that he is unconcerned with the piddling amount of her assets (cash) and does not include the real property registered to her sole name to form part of her asset pool. K minimises DEE’s financial resources when he is well aware of her resources. 58 Guardianship report dated 23 January 2024. 59 GAA, s 5(b). -- 19 of 31 -- 20 [124] Of utmost concern is K’s evidence that he wished to have property in his name because of the experience of a friend. K stated in the hearing60 why he wishes to be placed upon the title to DEE’s property citing the example of an acquaintance who was thrown out of his home of many years after the death of his partner and the taking over of her property by her children who changed the locks and excluded him. [125] In the Tribunal’s view, K clearly has a vested interest in DEE’s financial decisions which affect him directly. He has now married DEE and this affects the legal relationship between them. The marriage to K was arranged in secrecy and great haste and without any opportunity for DEE to speak with family or friends. When asked in the hearing if there were any preparatory classes prior to the wedding, she scoffed at the idea. There is no evidence of her having obtained any financial advice prior to the wedding. [126] K stated in the hearing on 14 June 2024 that he intended to commence a business of supplying electrical services to feedlots in Toowoomba. He stated that he would initiate this business by cold calls. He selected Toowoomba as the place to relocate as he was sick of the heat and wanted to move to Toowoomba. At the hearing it was stated that they were attempting to purchase a property at Bribie Island. K stated that if he moved to Bribie Island, which was where they were now looking for a property, he would fly up to conduct the business on the downs as he was a pilot. When asked who would fund this new venture, he stated that the (yet to be created) business would provide the funds. The Tribunal has limited confidence that the erratic decision making by K on the fly makes him a suitable person to advise DEE regarding the future financial decision she is wanting to make. [127] There are some specific and relevant remarks in Professor Byrne’s report. He indicated that DEE’s Judgment was not able to be assessed in his report, or that an assessment of her functional capacity might require an Occupational Therapist report. He further stated that he wondered if the cessation of DEE’s blood pressure medication was prudent. It is these decisions that give concern to the Tribunal regarding DEE’s capacity to make decisions in a free and voluntary manner or to appreciate the consequences of her decisions. [128] In contrast to the calm demeanour of DEE with Professor Byrne, there were concerning behaviours of DEE on both days of hearings, in particular on 14 June 2024. Allowing for her understandable distress at the proceedings inquiring into her private and personal affairs, DEE was volatile and unable to, or refused to, answer any inquiries from the Tribunal, seeing the process as an attack upon K whom she must protect. She was unable to explain many basic aspects of real estate sale and purchase, of timeframes, expenses, conditions of sale, and settlement length and said she would take advice from K and lawyers. Her responses show extreme naivete. For example, she was also unable to state the difference between a retirement village and a residential aged care facility. Her answer focussed on meal provision. [129] DEE was unable to comprehend that her reliance upon K for financial advice was evidence of her lack of competence to understand the consequences of her financial and personal choices or that K had a vested interest in keeping her away from family or friends who had concerns for the decisions she was taking. 60 Transcript 31 January 2024 @1-36 para 10. -- 20 of 31 -- 21 [130] At H 58, her sister-in-law describes her as having a split personality horrid one moment then sweet the next which was a bit concerning. She stated to the Tribunal that at the funeral [DEE] was terrified of being on her own. [131] DEE’s position is restated often and is exemplified by the following comment: Tragically , my family are determined to sacrifice me, their mother in order to achieve the destruction of my marriage and confinement of me in an aged care dog kennel, throw away the key and forget I exist.61 [132] DEE’s distress at events is a factor for the Tribunal, but her alleged physical attack by DEE on her sister in the lobby after the first hearing shows a level of volatile behaviour which is relevant to the way she is perceiving events. This exchange required the intervention of security.62 [133] There are two instances where DEE slapped her sons G and H which have already been noted above. At the conclusion of the final day of hearing DEE stated that she was having a heart attack in the course of the Tribunal giving the decision. Security was called to arrange immediate medical attention. DEE declined the calling of the ambulance. Conclusion [134] In Lambourne’s case his Honour observed, quoting Young J, that: (a) A person is allowed to make whatever decision she likes about her property, good or bad with happy or disastrous effect so long as she is capable;63 (b) A decision which is objectively bizarre may allow a submission which tends to show a lack of capacity. This is a case about capacity not wisdom.64 [135] DEE’s decisions and absence of insight indicate to the Tribunal extreme difficulty in making rational decisions and that the chain of events demonstrate her undoubted vulnerability. The Tribunal takes the view that her trust in K and desire to gift him significant real property entitlements and marrying him are not decisions reached rationally but are in the realm of bizarre, as His Honour Justice Young opines. [136] The decision of QCAT in LER65 is relevant to the Tribunal’s determination of capacity. The Member observed that: It can be seen that the definition of capacity is not purely dependant on a medical diagnosis but looks to the functional process involved in decision making. For that reason, evidence as to how other people have observed LER’s functioning is relevant and indeed essential in this case to a determination as to his capacity.66 [137] The material indicates general family disharmony and protracted conflict against a background of the recent bereavement of the adult. Prior to the involvement of K, relationships between the support network of family and friends were harmonious. In this regard the Tribunal prefers the evidence of DEE’s children, who have had a 61 H 56 comment by DEE. 62 H 51. 63 Re C (TH) and the Protected Estates Act [1999] NSWSC 456. 64 Lambourne and Ors v Marrable and Ors [2023] QSC 219, [41]. 65 [2013] QCAT 404. 66 At [13]-[14]. -- 21 of 31 -- 22 lifelong relationship with their mother, to that of K and his daughter. G lived with his parents for two years. The children assisted DEE to organise her affairs following the death of her first husband. They are best placed to know the actual state of the relationship of the parents and the degree to which DEE’s claims are accurate or somewhat exaggerated. They acted impartially in her interests and patiently managed her personal style. M and P impressed the Tribunal with their objectivity and sincerity. The Tribunal finds that the motivation of the children was sincere in taking the steps they did to assist DEE who lacks insight or the capacity to evaluate different viewpoints. The Tribunal rejects the contentions of DEE and K that the children are acting due to opposition to her remarriage, for financial gain and to place her in care. [138] The practical outcome of DEE’s choices under K’s influence have resulted in complete isolation from all family and friends and her network in suburban Brisbane. Under his control, she has been persuaded to move to a remote location in Western Queensland. Her calls and texts are monitored. There is no communication with family that is unsupervised. The very fact of this monitoring by K demonstrates to the Tribunal that he views DEE as highly suggestible such that he must restrict contact she has with family unless there is a view contrary to his interests expressed to her. This fact of itself indicates an absence of capacity for decisions both financial and personal. [139] K denies any deficits in memory or functional capacity to Professor Byrne; however, G’s evidence is to the contrary. The Tribunal finds that K’s account of DEE’s capacity to manage is not an accurate portrayal of her abilities. DEE married K in in a secret ceremony in New South Wales. She was unable to give details of how this was arranged, and the two witnesses were not known to her, but were friends of K as was the celebrant. The effect of marriage upon the EPA dramatically affects DEE’s circumstances. On the face of it the marriage revokes the EPA in favour of her children, thereby severing the link between the support from family and friends which has some independence.67 [140] There is no independent evidence that DEE understood the consequences of this decision, or why she would attempt the revocation and then marry 10 days later. The fact of the marriage did not revoke the Tribunal interim order, despite K’s expectations that it should. He stated in his feedback to the Tribunal that: [t]he adult has never needed assistance and is the subject of a targeted vendetta by her children. An outside administrator must never be forcibly involved in a legal normal marriage.68 [141] The Tribunal has also considered the weight to be given to the circumstance where there are conflicting medical opinions. [142] The QCAT Appeal Tribunal has found that a preferred medical opinion did not necessarily require a finding about capacity to be based upon cognitive tests. Dr Spurling’s opinion is not discounted because she has not based her views about DEE’s capacity upon cognitive tests. The decision on this point is found in the decision in SBJ v Public Guardian and Ors69 where the Tribunal considered differing medical opinions and stated that in the context of those reports that:70 67 Powers of Attorney Act 1998 (Qld), s 52. 68 K’s Feedback sheet paragraph 4-6. 69 [2022] QCATA 117. 70 At [6]. -- 22 of 31 -- 23 Dr Schwabe’s professional medical opinion about the capacity of WIJ is admissible and not irrelevant evidence. It is not necessary that the evidence be based on scientific or legal tests. Dr Schwabe was qualified to express an opinion on the issue of capacity which she did. Dr Henshaw’s professional medical opinion about the capacity of WIJ is also admissible and not irrelevant evidence. The fact that Dr Henshaw used cognitive tests as one of the bases for his conclusion does not render that evidence irrelevant. [143] The effect of this decision is that this Tribunal is entitled to prefer the evidence of Dr Spurling for the reasons stated and to give less weight to the opinions of Professor Byrne and Dr Mikli, or the results of the cognitive tests obtained at various dates. [144] The Tribunal finds that the medical evidence of Dr Spurling is to be preferred over the evidence of Professor Byrne and Dr Mikli. Dr Spurling knew the adult prior to her marriage to K; she treated her late husband and DEE as patients for 11 years. Her report shows a familiarity with DEE’s affairs and clinical behaviours as she has on- going contact with the Adult and is best placed to comment upon her capacity to make complex personal and financial decisions, the consequences of which she understands. [145] The Tribunal notes the eminence of Professor Byrne in his field of assessing his patients with declining cognitive capacity. It is the Tribunal’s view that DEE and K presented selective information to Professor Byrne which has had the effect of compromising his opinion. [146] In September, DEE sent a photograph of her three sons to a scammer. She described her sons as future son in laws. She sent the scammer money in the form of gift cards. It is not the fact of being scammed that the Tribunal is concerned about, but the proximity of that event to the commencement of the relationship with K, within a week of that scam. This aspect of her behaviour was withheld from Professor Byrne. Concealment of the full facts was a practice engaged in by DEE and K. For example, DEE’s children contacted K’s daughter, who had met DEE and been told that DEE had capacity for her financial decisions, and K’s daughter stated that she was unaware of the recency of the bereavement of DEE. [147] Dr Spurling’s opinion is somewhat reduced by her comments about the effect of DEE’s decisions on her family. The Tribunal gives these remarks little weight as the Tribunal is not concerned with the effect of DEE’s financial decision upon the family, but rather her financial decisions as they would impact her and her choices going forward. [148] The Tribunal finds that DEE was relatively recently bereaved and has made decisions, it appears, based upon K’s interests, not her own. DEE’s proposal was to gift him a full or half share of her real property and create a joint account enabling him to access her funds. She had known him for a brief period. This decision is not simply improvident, it is bizarre. In the decision in Adamson and v Enever,71 Applegarth J stated that: Capacity is decision specific. A person may lack capacity for some decisions but not others. For instance, a person may lack capacity to manage and invest a very large sum but have capacity to manage a smaller amount. A person may 71 (2021) 9 QR 33. -- 23 of 31 -- 24 lack capacity to agree to a complex settlement of a large commercial dispute but not to settle a simpler claim.72 [149] DEE is heavily influenced in this complex financial proposal by K. There is his direct evidence on the first day of hearings that he was motivated by a desire to obtain certainty for accommodation. He wanted protection from being ousted in the future from a property they might share. K stated in the hearing73 why he wishes to be placed upon the title to DEE’s property citing the example of an acquaintance who was thrown out of his home of many years after the death of his partner and the taking over of her property by her children who changed the locks and excluded him. [150] DEE is convinced of the position that the family are against her and the siblings are in on this. [151] Of most concern is the reaction of DEE to family concerns. She demonstrated a lack of insight into the issues the Tribunal and family have attempted to raise with her. Instead, she has viewed the fact that concerns have been raised by others and an application made to this Tribunal as an attack upon her choice of partner. [152] The Tribunal regards K as highly influential in DEE’s life and that in many respects she adopts his point of view and that for this reason her decisions are not free and voluntary. He controls communication with her. She has relocated to a distant town in western Queensland after her stated intention was to relocate to the seaside. This has resulted in total isolation. She has not driven for 50 years. She is completely estranged from family and friends and describes them repeatedly in horrific terms which are unrelated to their conduct as evidenced in the material. Her views are unconnected to reality. [153] The Tribunal considers the evidence of Dr Spurling to be relevant and credible and to give the most accurate assessment of DEE’s capacity for the required decisions. The fact that she did not conduct the tests which were undertaken by Professor Byrne and Dr Mikli does not diminish the weight of her evidence due to her long-standing familiarity with DEE’s cognitive state and clinical presentations. [154] The Tribunal finds that DEE has capacity for simple financial and personal decisions only based upon the above discussion of the evidence. Enduring Power of Attorney [155] Just prior to her husband’s death, DEE executed a short form Enduring Power of Attorney on the 2 August 2023 appointing her son G, her son H and her daughter M as her attorneys. She told Professor Byrne that this was at the request of her late husband.74 Under the EPA, the power for financial matters was to commence when she no longer had capacity for financial decisions. The attorneys were to act jointly. M accepted her appointment on 4 August 2023 and G and H accepted their appointments on 5 August 2023. [156] The EPA, at page 3, requests the attorneys to exercise their power after multiple medical recommendations. DEE states that she is a Christian and would like biblical precepts to be followed in responding to all things. DEE also requests that R and that 72 At [6]. 73 Transcript 1-36 para 10. 74 Professor Byrne’s report page 28. -- 24 of 31 -- 25 her brother V be advised of decisions. Regarding decisions generally, she requested that her son P be advised of major decisions at page 6 of the EPA. [157] The witness to the EPA was William Tomlins, a Justice of the Peace Qualified. [158] On the 31 October 2023, DEE purported to revoke the enduring power of attorney. The revocation was witnessed by a lawyer, Robert Kropp, who deposes to the steps taken by him to satisfy himself that DEE had capacity for the revocation.75 [159] The legislation requires that a revocation must be made in accordance with the Powers of Attorney Act 1998 (Qld).76 [160] DEE purported to revoke her power of attorney and obtained medical advice about her capacity to do so on the recommendation of Mr Kropp. DEE failed to give a complete account of the background to this revocation to the new medical practitioner, or to Mr Kropp. The Tribunal has considered other factors which go to her capacity to execute the revocation on 31 October 2023. These are listed below. There is no evidence that any of these matters were brought to the attention of Dr Jem Dacumos or Mr Kropp. In the Tribunal’s view they go to the issue of DEE’s capacity to execute the revocation in a free and voluntary manner or with a full understanding of the consequences of the decision. Both limbs of the definition of capacity must be satisfied. (a) Dr Spurling authored a letter dated diagnosing DEE with severe dementia on 13 October 2023. DEE did not tell Mr Kropp that she had been Dr Spurling’s patient but that her late husband was his patient. She represented the interactions with Dr Spurling as exaggerating the frequency of contact as evidencing her belief that it was inaccurate; (b) Dr Spurling authored a health professional report on 19 October 2023 recommending the activation of the EPA. Mr Kropp was told that the attorneys were not acting in her interest but gives no detail of what the attorneys were doing which was problematic, rather she talks again about their attitude to her relationship with K and moving on with K but she omits any reasons why they held concerns on this aspect; (c) DEE was taken to K’s current hometown in central western Queensland, a remote location, and undertook the revocation and medical consultation with practitioners who were unaware of any relevant background of her circumstances; (d) DEE was given a Mini Mental Test on which she scored 30/30 by a practitioner to whom she was introduced for this purpose; (e) DEE excluded her children G, H and M and her brother and two others, X and Z from decision-making and consultation by the purported revocation; (f) Strangely the impending marriage of DEE and K within 10 days of the purported revocation was concealed from Mr Kropp and Dr Dacumos. The effect of marriage on the EPA would be to revoke it;77 (g) The fact that when the revocation took place DEE did not indicate her intention to transfer significant assets to K or control of them to K who had been known to her for five months. She had in fact signed an intention to purchase a property the first week when she had met K; 75 Affidavit Robert Kropp dated 24 January 2024 76 Powers of Attorney Act 1998 (Qld), s 82. 77 Powers of Attorney Act 1998 (Qld), s 52. -- 25 of 31 -- 26 (h) DEE did not indicate her estrangement and intense conflict with her family since K became involved in her life; (i) Mr Kropp deposes to having spoken privately with DEE whilst K retrieved the certified copy of the EPA from the car; (j) Mr Kropp affirms the view that DEE had a heart condition, but this does not accord with Dr Spurling’s report which states that there was no clinical finding of such a condition by the cardiologists;78 (k) DEE mentions her late husband but not the date of his passing or the length of her relationship with K or that they were to marry within 10 days in New South Wales.79 (l) Mr Kropp states that DEE was able to identify details about the attorneys and her assets, but Mr Kropp does not state the substance of what he was told by DEE in these respects; (m) Mr Kropp appears to correlate DEE’s capacity to be reflected by her ability to speak about their shared interest in English literature; (n) Mr Kropp states that DEE spoke in measured and rational terms, a feature of her communication which was absent in her language of her written submissions and during the hearing. [161] Dr Spurling had previously opined that DEE did not have capacity to execute an EPA and so under the legislation she would not have capacity to execute a revocation of an EPA.80 [162] The Tribunal cannot rely upon the steps taken by Mr Kropp as he was misinformed, and vital information was withheld from him about the voluntariness of her decisions. [163] Likewise the Mini Mental Test administered by Dr Dacumos is only one aspect of DEE’s capacity to execute the revocation. [164] In the hearing, DEE avoided an explanation of how she came to the decision to revoke the EPA. She obfuscated and evaded, failing to provide any details. The Tribunal concluded that she did not recall or that that she did not make the arrangements to execute the revocation. A reasonable inference on the facts is that she did not understand the consequences of the decision to revoke other than on a superficial level of getting back at her children. On the balance of probability, and in keeping with her responses throughout the hearing, the Tribunal concluded that this decision was not free and voluntary or a decision she undertook fully appreciating the consequences. [165] Watson SJ stated in In the Marriage of S81 he observed that: The decision to marry is important. For some people of greater importance than any other decision taken during a lifetime. Its voluntariness is fundamental.82 [166] DEE married in New South Wales on 10 November 2023. The effect of marriage on the EPA is that marriage revokes the EPA to the extent that it gives power to someone other than the spouse.83 78 Dr Spurling’s report page 3 paragraph 2. 79 Powers of Attorney Act 1998 (Qld), s 52. 80 Dr Spurling’s report 13 October 2023. 81 In the Marriage of S [1980] Fam CA 27; (1980) FLC 90-820, cited in Fatisi v Hasila [2020] Fam Ca 209. 82 At [20]. 83 Powers of Attorney Act 1998 (Qld), s 52. -- 26 of 31 -- 27 [167] The question arises as to whether DEE sought advice from Mr Kropp about the legal effect of marriage on the EPA but there is no evidence on this point. The question arises as to whether she fully appreciated the consequences of the impending marriage to K as it is not referred to by Mr Kropp. The fact remains that she did not raise this matter, which calls into question the extent to which she understood the far-reaching legal relationships she was creating. [168] The Tribunal does not accept that DEE had capacity to execute the revocation of the EPA in terms of the Powers of Attorney Act 1998 (Qld) and the weight to be given to the medical evidence obtained at the time is reduced by fact that important and relevant information was withheld from the witness to the EPA and the medical practitioners who stated that she had capacity on the relevant date. [169] The Tribunal has made an order overtaking the EPA as stated. This Tribunal has no jurisdiction to inquire into the circumstances of the marriage or whether the provisions in Sections 23B(1)d(i)(ii)(iii) and section 88D(2)(d) of the Marriage Act 1961 (Cth) are invoked by those circumstances. It has been said that the more serious the decision the greater the level of capacity required. There are some actions by DEE which raise a question about her capacity to marry K, which necessarily involves an understanding of the legal consequences of marriage. [170] Professor Byrne states that he considered DEE had capacity to marry.84 However he appears to base this opinion on her presentation which is quite dissimilar to her conduct in the Tribunal hearing and towards family and friends where her views are extreme. He does not comment upon whether she appeared to understand the financial and legal implications of the marriage, stating at page 20 of the report DEE did not provide me with information about her second husband’s financial situation other than to say that he was on an age pension, and she may not have been able to do so. [171] Because of these qualifying comments, the Tribunal is of the view that the questions over her capacity to marry and to appreciate the consequences of this choice are far from settled. [172] In any event the Tribunal is not satisfied that the effect of the Powers of Attorney Act 1998 (Qld) section 5285 is activated, but any deliberations regarding the marriage are outside the jurisdiction of this Tribunal. Administration [173] An administrator may only be appointed if the grounds under s 12 of the GAA are established to the Tribunal’s satisfaction: (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 health, welfare or property; and, (c) without an appointment— (i) the adult’s needs will not be adequately met; or 84 Professor Byrne’s report page 27. 85 Powers of Attorney Act 1998 (Qld), s 52. -- 27 of 31 -- 28 (ii) the adult’s interests will not be adequately protected. [174] In this case the first two limbs for the test of capacity are not made out and this has been established to the Tribunal’s satisfaction by the foregoing discussion. Therefore, the presumption of capacity is rebutted.86 I am satisfied based upon the evidence discussed that presently DEE has impaired decision-making capacity for financial matters. [175] The Tribunal, being satisfied that the presumption of capacity is rebutted and that there is a need for an appointment of an administrator due to the complexity of her affairs, must consider whether the adult’s needs and interests are adequately met by informal arrangements. [176] Apart from K and advisers arranged by K, DEE is now estranged from her entire family and friends who have been her support network. She is now married to K and regards him as the appropriate adviser. The Tribunal has heard of K’s discussion with DEE where he required of DEE that property be placed in his name to give him financial security. [177] The Tribunal finds, in these circumstances where K is focussed upon his own future and not that of DEE, that the informal reliance of a husband and wife will not be adequate and formal orders for the appointment of an independent administrator are required. [178] The Tribunal has made a finding that DEE has capacity to make only simple, not complex, financial decisions. The financial decisions required to be made relate to the maintenance, payment of property expenses, the sale and transfer of real property. The feasibility and appropriateness of her stated intention to gift the whole or a share of her principal asset to K will need to be considered. [179] In these circumstances her stated intention to rely upon K for financial advice does not adequately deal with her need for independent administration of her affairs as K has a clear personal interest in the outcome. Taken together with Professor Byrne’s remark that DEE may not know K’s financial situation calls into question her reliance on him as he lacks the appropriateness qualifications as defined in GAA.87 [180] Her decision to marry has seriously affected her future financial security, particularly if the relationship were not to have longevity. Her isolation and protracted hostility between family and K is problematic for the future. [181] In the absence of an appointed attorney, there will be a need for an administrator to be appointed. [182] G and family consent to the appointment of the Public Trustee of Queensland as administrator for DEE. The Tribunal finds that the Public Trustee meets the appropriateness considerations of section 15 of the GAA. They are available, competent, have no conflict, and are able to act impartially in the interest of the adult. [183] The Tribunal concludes that the adult’s financial affairs require appropriate administration by an independent appointee such as the Public Trustee of Queensland. 86 GAA, sch 4. 87 GAA, s 15. -- 28 of 31 -- 29 There is no more suitable appointee and informal arrangements are not sufficient to protect the adult’s interests. Does DEE require a Guardian [184] The Tribunal must consider if there is a need for the formal appointment of a guardian. In usual circumstances the decisions should be managed informally if that is appropriate, or by a statutory health attorney for health care decisions, if there is a need and no suitable person is appropriate in terms of section 15 of the GAA. [185] The evidence establishes that the proposed actions of K, should he be considered as the statutory health attorney, may not extend to appropriate actions towards DEE’s family. For example, were she to fall ill, the Tribunal is not confident that K could communicate effectively with DEE’s family given the extent of the conflict. The conflict has escalated and the level of animosity between the parties after only a very short time is surprising. It has been months not years, which is a notable feature of this case. The Tribunal is not satisfied that the decisions taken by K would prioritise her interests. DEE lacks insight into this aspect. DEE has discontinued some medications against medical advice and the Tribunal is concerned about the voluntariness of these decisions. She is reported to be non-compliant with medications and refuses various services. She has abandoned her long-time medical practitioner and lost trust in her as DEE perceives she sees K in a negative light. In fact anyone critical of K is attacked. In the circumstances a decision maker for health is appropriate to be appointed. [186] The Tribunal is satisfied that DEE requires the assistance of a guardian to choose suitable accommodation if indeed she decided to sell her home and move. The guardian will be able to liaise with the administrator to explore the feasibility of any move, without the need to prioritise the interests of K which is DEE’s focus. The guardian can focus on the needs and wishes of DEE which are not impacted by the need to take care of K. [187] Contact is currently restricted between D and her family. In fact, contact between DEE and anyone else is regulated by K, whether in person or on the telephone or by email. K monitors DEE’s calls and justifies this on the basis of protecting her from abuse by others. But he also monitored calls with the ADA advocate and with the Public Trustee of Queensland. K repudiated the Order of the Tribunal by refusing cooperation with the appointed guardians and administrators removing DEE, so that the guardians reported not knowing where she was.88 This deliberate isolation of the adult from family and withholding of her whereabouts is regarded as highly concerning. It demonstrates a lack of insight on the part of K to prioritise DEE’s interests over his own and a lack of capacity on the part of DEE to assert her will. [188] DEE has a family of three sons and two daughters and their families, who have been effectively excluded by K from meaningful contact with her. Evidence exists from DEE’s family that their relationship with DEE had deteriorated. Her whereabouts have been withheld from family and she has been relocated to western Queensland from suburban Brisbane. She is at the centre of a protracted family conflict with opposing views of her past and present relationships with her adult children and a 88 Guardian’s dated report page 7. -- 29 of 31 -- 30 narrow narrative promulgated by K that her children are opposed to her choice of partner. [189] There is no evidence that K has consulted positively with DEE’s family, and the isolation of DEE is concerning. The Tribunal accepts that contact and visits with family not approved by K have been restricted in contravention of general principle three and four.89 DEE is not seeing her grandchildren or her children, apart from relatives of K. [190] For the reasons discussed above, the Tribunal is of the view that an independent guardian is required. The Public Guardian meets the appropriateness considerations of section 15 of the GAA. They are impartial and competent to perform this role. The Public Guardian is aware of the need to exercise appropriate decision making (if required) in circumstances such as these, where the adult exhibits behaviours consistent with a diagnosis of dementia, so that her verbal comments may not be entirely indicative of her views or reflect her interests. [191] Under the Human Rights Act 2019 (Qld) (‘HRA’), the Tribunal must: interpret statutory provisions to the extent possible, consistent with their purpose, in a way that is compatible with human rights; to the extent that the Tribunal is performing a function of a public nature and acting in an administrative capacity, act and make decisions in a way compatible with human rights, and must in making a decision, give proper consideration to a human right relevant to the decision.90 [192] In making these decisions I have considered the terms of the HRA, sections 31, 24, 48 and 58, which require the Tribunal to turn its mind to specific rights impacted by the making of Orders. [193] Also relevant is the requirement, when acting as a public entity, to act in a way compatible with human rights. When the Tribunal makes a decision which may not be in accordance with the HRA it must demonstrate that the decision is reasonable and justifiable in the circumstances and is the least restrictive decision which could be made. [194] Under section 31 of the HRA, the Tribunal must accord the Adult a fair hearing. DEE was present for the hearing and had the opportunity to make and receive submissions and to participate in discussions. The adult’s property rights under sections 19 and 24 HRA have been advanced by the appointment of an independent qualified administrator to examine accommodation options with her. [195] Her right to health services under section 37 HRA is advanced by the appointment of a guardian who can liaise with her in particular in regard to her decisions to cease particular medications and refusal of certain allied health services against medical advice. Her right to privacy and reputation under section 25 HRA is advanced by the de-identification of these proceedings under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 89 GAA, s 11B. 90 HRA , s 58. -- 30 of 31 -- 31 [196] The Tribunal must decide when limiting a person’s human rights that is reasonable and is the least restrictive and available way to achieve the purpose and is justifiable in the circumstances.91 [197] The Tribunal has appointed independent administrators and guardians formally for a time-limited period. They will determine multiple urgent matters which the adult lacks capacity to decide for herself, as she is not able to make free and voluntary decisions, or to understand the consequences of decisions taken or that she wishes to take. [198] The matters requiring decisions affect the entire financial resources of the adult, her closest relationships and any future options she may have in the event of care needs, against a background of declining cognition. The importance of the decisions is reflected in the appointment of impartial decision-makers who can involve relevant parties with the adult to resolve concerns in the interest of the adult, in circumstances where she lacks the requisite insight into the consequences of her choices. The Tribunal is therefore satisfied that the HRA has been complied with in the conduct of the hearing and the final determination of the applications. 91 HRA, s 13. -- 31 of 31 --