EJ [2023] QCAT 201

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION EJ [2023] QCAT 201 PARTIES: In applications about matters concerning EJ APPLICATION NO/S: GAA8746-22 GAA8747-22 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 30 May 2023 – Decision 5 June 2023 – Reasons HEARING DATE: 23 November 2022 9 March 2023 30 May 2023 HEARD AT: Cairns DECISION OF: Member Taylor ORDERS: LEAVE TO WITHDRAW AS GUARDIAN The application by PR for leave to withdraw as guardian for EJ is granted. LEAVE TO WITHDRAW AS ADMINISTRATOR The application by PR for leave to withdraw as administrator for EJ is granted. PR is not required to pay the Titles Registry fee pursuant to s27(4) of the Guardianship and Administration Act 2000 (Qld). GUARDIANSHIP The Public Guardian is appointed as guardian for EJ for the following personal matters: (a) Provision of services, including in relation to the National Disability Insurance Scheme; and (b) Legal matters not relating to EJ’s financial or property matters. 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 EJ for all financial matters. -- 1 of 26 -- 2 The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 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. NOTICE OF INTEREST IN LAND Before 30 June 2023, the administrator must: (a) Record the appointment as administrator on any property registered in EJ’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 EJ’s property; and (ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by EJ. (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 EJ changes in any way or EJ acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) Give a copy of this order to the Registrar of Titles; and (b) Give a notice to the Registrar about the changes to EJ’s interest in another property. DIRECTIONS The Public Trustee of Queensland is to continue its investigation into the financial affairs of EJ as referred to in Order 8 of the Decision in these proceedings dated 9 March 2023. The Public Trustee of Queensland is to provide a report to the Tribunal of its findings from that -- 2 of 26 -- 3 investigation, copied to PR as the previous administrator, not later than 31 May 2024. The Tribunal again puts PR on notice that it will consider making a compensation order against her personally should the Public Trustee of Queensland’s investigation show that she has failed to comply with the requirements of the Guardianship and Administration Act 2000 (Qld) in the exercise of her powers as administrator. But before doing so, the Tribunal will give PR the opportunity to provide submissions to this Tribunal as to why she should not be required to compensate EJ. The Registrar of this Tribunal is to refer the file in this proceeding to the Public Guardian, drawing the Public Guardian’s attention to concerns held by this Tribunal as to the possible neglect, exploitation, or abuse of EJ during the appointment of PR as her guardian and also as her administrator, inviting the Public Guardian to exercise her discretion under s 19 of the Public Guardian Act 2014 (Qld) to investigate such concerns. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – where a private appointee as guardian and administrator is in personal conflict with the adult’s mother – where the adult’s mother resides with the adult – where there are Court proceedings on foot between the adult’s mother and the appointee – where there are Court proceedings on foot between the adult’s mother, the adult, and the appointee – where there are allegations of the use of restrictive practices without requisite approvals in place - where there are allegations of incompetence and/or inappropriateness of the appointee – where the adult’s mother seeks the removal of the private appointee and the appointment of the Public Guardian and the Public Trustee – where there are concerns as to the possible neglect, abuse, or exploitation of the adult whilst the private appointee was her guardian and administrator – where this Tribunal invites the Public Guardian to exercise her discretion to investigate such concerns. Disability Services Act 2006 (Qld) s 145, s 146,s 178 Guardianship and Administration Act 2000 (Qld) s 5, s 6, s 11B, s 12, s 15, s 26, s 27, s 31, s 35, s 49, s 80ZD, s 80ZH, s 80ZI, s 80ZK, s 114A, s 125, s 153, s 155 Human Rights Act 2019 (Qld) s 13, s 48 -- 3 of 26 -- 4 Aziz v Prestige Property Services Pty Ltd [2007] QSC 265 DMK [2013] QCAT 460 PE [2016] QCAT 285 PL v PT & Ors [2018] QCATA 114 WJB v BLZ [2019] QCATA 92 APPEARANCES & REPRESENTATION: Adult: 30 May 2023 A Zugno – Solicitor of ADA Law as representative appointed under s125 of the Guardianship and Administration Act 2000 (Qld) for EJ. Applicant: 23 November 2022 ES – Mother to EJ J. Seccull – Counsel instructed by Astley Associates 9 March 2023 and 30 May 2023 ES – Mother to EJ C. Ryall – Counsel instructed by Astley Associates Current Guardian and Administrator: 23 November 2022 PR T. Tinker – Solicitor of The Will and All as McKenzie Friend to PR. 9 March 2023 and 30 May 2023 PR T. Tinker – Solicitor of The Will and All as legal representative of PR Active parties: 30 May 2023 B. Rosenquist – Delegate of the Public Trustee of Queensland M. Jones – Delegate of the Public Guardian L. Reibelt – Delegate of the Public Guardian -- 4 of 26 -- 5 REASONS FOR DECISION [1] At the conclusion of the hearing in this matter on 30 May 2023 I announced my decision and informed the parties that written reasons would follow. This was due to there being an absence of remaining time for delivery of oral reasons within the allocated duration for the hearing, and the fact that the hearing had already gone well past the usual conclusion of the sitting time for that day, with no other time being available the following day to return to the hearing for that purpose. [2] It also seemed to me, given the complexities of the issues as they were argued over three separate occasions which together made up the hearing of these applications, and the extent to which the applicant and the current guardian and administrator had gone to compile their voluminous material and place it before this Tribunal, the parties should be afforded the benefit of written reasons. At the conclusion of the hearing I informed the parties not to expect these reasons for a few weeks given the commitments I had ahead of me, however as circumstances unfolded I had the opportunity to prepare and finalise them promptly. [3] These are those reasons. In satisfaction of s114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other private active or interested parties are referred to herein in a de-identified format. Background [4] At the time of the last hearing in these proceedings EJ was 63 years of age, living in her own private residence with her mother ES who is in her late 80’s. EJ has been diagnosed with a mental illness, namely schizophrenia. It is reported she also suffers adversely from depression. [5] There is a long history of appointments of external decision makers for EJ. In recent times this has been clouded by disputes between ES and PR, the appointed guardian and administrator, which have now escalated into Supreme Court proceedings. [6] On 26 October 2012, the Adult Guardian1 was appointed as guardian for EJ for decisions concerning accommodation and the provision of services, and the Public Trustee was appointed as administrator for all financial matters.2 Those however were interim appointments only for three (3) months. [7] On 7 November 2012, PR was appointed as EJ’s guardian for decisions concerning accommodation, health care, and the provision of services, and simultaneously as EJ’s administrator for all financial matters. Those appointments were made current until further order of this Tribunal but reviewable within one (1) year.3 [8] On 11 October 2013, PR’s appointment as guardian was continued without change, again reviewable within one (1) year, and her appointment as administrator was also continued but on this occasion reviewable within five (5) years.4 [9] On 18 September 2014, PR’s appointment as guardian was again continued without change, on this occasion set for review in three (3) years.5 1 Such being as the Public Guardian was then referred to. 2 H 9. 3 H 13. 4 H 36. 5 H 44. -- 5 of 26 -- 6 [10] On 22 September 2017, PR’s appointment as guardian was once again continued without change, on this occasion set for review in five (5) years.6 [11] On 4 October 2018, PR’s appointment as administrator was also continued without change, and once again set for review within five (5) years.7 [12] As I understand it, during these periods of appointment there was a strong and positive friendship between ES and PR. However that friendship deteriorated to the extent that they are now each involved in Queensland Supreme Court action against each other, one such action also involving EJ as a named defendant. Whilst not in any way making a definitive finding about what I understand to be issues in those Supreme Court proceedings, by way of background to that deterioration the following are the asserted facts as best I can make them out from my reading of the material on the Tribunal file:8 (a) In late 1988 or early 1989, ES and her then husband (now deceased) purchased land and constructed the house on it in which EJ now resides with ES. It is alleged that was done in EJ’s name but on trust for her parents. (House 1) (b) On or about 30 April 2015, following the death of her husband ES sold her residence and moved in with her daughter in House 1. At that time $500,000 was paid from the proceeds of that sale to PR and her husband allegedly to be held on trust for EJ and ES, said to be a ‘special disability trust’(the Trust Fund). It does not appear to be in dispute this payment was made, but PR asserts this was a gift. (c) On or about 16 June 2015, ES purchased the house opposite EJ’s house for the purposes of PR residing there. In the process of doing so PR’s husband became a registered title holder as to 50% of that property, allegedly on the basis he would undertake certain renovation works to the house as owner-builder. The remainder was being held by ES. Later, in or around April 2019, ES’s half share was transferred to PR and her husband but said to have been done without any consideration. ES alleges that she was coerced by PR into agreeing to this transaction on the threat by PR that if she did not agree PR would cease caring for EJ. Subsequently, PR’s husband died and PR became the sole registered title holder of that property. (House 2) (d) At some point in time ES also provided a sum of around $100,000 to PR and/or her husband as a loan to assist them in a business venture, (the Loan), plus later advances to PR in what is said to be ‘dribs and drabs’, or alternatively there was cash withdrawals by PR from EJ’s account, in total estimated to be in the order of $250,000 or more for the asserted purpose of caring for EJ and meeting her expenses (the Advances). It is however alleged that PR did not use these funds 6 H 48. 7 H 50. 8 I have drawn these facts from the pleadings and/or affidavits filed in the Supreme Court proceedings, copies of which have been provided to this Tribunal (see H 52 and H 55) and the Applicant’s Outline of Submissions handed up at the start of the hearing on 23 November 2023. I should however say that the material as filed is prolix, confused and confusing, on many occasions the same document appearing as a separately filed document or appearing as an attachment to or within a different document filed, and at times being only an extract of part of the document or what on its face appears to be an amended version. The confusing nature of this material created challenges in being able to comprehend it with clarity. -- 6 of 26 -- 7 for that purpose. It is also alleged that the Loan has not been repaid nor has any of the Advances been accounted for. (e) It is also alleged by ES that she paid to PR approximately $32,000, also at irregular intervals but generally at the same time as the Advances, as payment for the provision of PR’s services as carer for EJ (the Carer Payments). (f) In April 2022, EJ moved out of House 1 where she had been living with her mother since April 2015 and moved into House 2 with PR. There is a dispute as to why this occurred, PR alleging that ES “kicked [EJ] out of her home”.9 (g) Shortly thereafter on 31 May 2022, PR, purportedly in her capacity as administrator for EJ, served a notice on ES directing her to vacate House 1 by midnight on 1 August 2022 (the Notice to Vacate). It is apparent that this occurred as a result of PR having conferred with EJ’s support network and PR then deciding that EJ “should return to live at her home on her own with appropriate support.”10 [13] What then appears to have occurred as a consequence of the Notice to Vacate is that ES and PR have taken their dispute to the Supreme Court. [14] On 4 July 2022, ES commenced the first of the two Supreme Court proceedings. This was against PR as the sole defendant. Therein ES sought a declaration of ownership of House 2, that PR gives her exclusive possession of House 2, that PR transfer to her title of House 2, and that PR pay to her $850,000 in restitution of the Trust Fund, the Loan, and the Advances. (the SC1 Proceeding) [15] On 26 July 2022, ES commenced the second of the two Supreme Court proceedings. This was against her daughter EJ as first defendant, and PR as second defendant. Based on a subsequent amended statement of claim filed in this proceeding, therein ES seeks a declaration that EJ holds House 1 on trust for her, an order for performance of the trust such that the title to the property be transferred to ES, and a declaration that the appointment of PR as guardian and administrator for EJ ended as a result of PR becoming a paid carer consequent upon the Carer Payments having been made. (the SC 2 Proceeding) [16] Both proceedings are defended in their entirety by PR.11 [17] On 16 August 2022, ES applied to this Tribunal for a review of the appointment of PR as both guardian and administrator to her daughter, seeking an order that the Public Guardian and the Public Trustee of Queensland be appointed in her place as guardian and administrator respectively (the Applications for Review).12 The premise of these applications was, as it was raised in the SC Proceeding, that PR had become a paid carer of EJ and thus her appointments had been automatically revoked pursuant to 9 This is as it is expressed in a letter from PR’s solicitor to this Tribunal dated 13 September 2022 – See Doc H 58. 10 Ibid. 11 See the letter from The Will and All, PR’s solicitor, dated 13 September 2022 to this Tribunal – Doc H 58. 12 H 51. -- 7 of 26 -- 8 s26(1)(a) of the GAA, but also that PR was no longer competent as the appointee in either role due to conflict.13 [18] On 26 August 2022, ES sought and was granted an injunction against PR to restrain PR from taking any step to enforce the Notice to Vacate.14 [19] On 23 November 2022, the Applications for Review were first heard by me. Due to the volume of material that had been placed before this Tribunal, its confused and confusing nature, and the time taken for oral submissions from Mr J Seccull of Counsel who appeared for ES, given the short time allocated for the hearing it was not possible for me to hear from PR in terms of the question of her remaining the appropriate appointee. Thus the hearing was part heard, adjourned to be reconvened at the next available opportunity which regrettably was not until 1:00 pm 9 March 2023. [20] Whilst it is unclear to me from my reading and efforts to comprehend that voluminous and confusing material filed, it is apparent that at some time during these events EJ returned to live in House 1 with ES. However, it is alleged that on 14 February 2023, EJ was forcibly removed from House 1 by Officers of the Queensland Police Service whilst in the care of her support workers, directed by, or at least with the knowledge of, PR.15 [21] On 3 March 2023, PR applied to this Tribunal for an adjournment of the hearing listed for 9 March 2023. The adjournment application was not determined before 9 March 2023, rather it was left to be determined by me at the start of the hearing on 9 March 2023. [22] The premise of that application was said to be the fact that an urgent application was filed in the SC 2 Proceeding, such listed to be heard before the Supreme Court at 10 am on 9 March 2023. It was said that application concerned “an immediate and direct risk of harm to [EJ]” although the nature of the harm was not specified.16 As I understand it, that urgent application was made by PR seeking relief to the effect that the injunction restraining her from enforcing the Notice to Vacate be lifted and/or that ES be required to vacate House 1 so as to enable EJ to return to live in House 1 given that she was at that time displaced from her usual accommodation, such having occurred as a result of the forcible removal by the Queensland Police. As I also understand it, that application was not granted or at the very least the hearing of it adjourned pending the outcome of the Applications for Review in this Tribunal.17 13 The first of these two premises is as expressed in the second of the Supreme Court proceeding but also pressed in the applications before me as expressed in the Applicant’s Outline of Submissions handed up at the start of the hearing on 23 November 2022. It, together with the second premise, is raised in the Affidavit of ES file 19 September 2022 (Doc H 71) and 12 October 2022 (Doc H 84), and also an affidavit of AC filed in support of ES’s application (This is an attachment to Doc H 82). 14 H 55 & H71 – Exhibit QCAT 8 attached thereto. 15 H 103. 16 See application by PR dated 3 March 2023 filed in this Tribunal. 17 This is as it was explained to me, or at least as I understood it from the explanation, by Mr Ryall of Counsel for ES who appeared before me on 9 March 2023, and also as I have read it in the e-mail sent by ES’s solicitor to the Case Manager in the Tribunal Registry dated 3 March 2023 at 3:18 pm. For completeness I should also note that such appears to be consistent with the content of the correspondence between the respective solicitors for ES and PR, copies of which is exhibited to an Affidavit of ES sworn 6 March 2022 filed in this Tribunal within these proceedings. -- 8 of 26 -- 9 [23] On 9 March 2023, the parties returned before me for continuation of the hearing of the Applications for Review. Given that the ‘urgent application’ had been dealt with that morning in the Supreme Court, PR did not press her application for an adjournment. I thus gave an order formally dismissing it. [24] At the conclusion of that reconvened hearing, I once again adjourned it as being part heard given I considered that there was still insufficient clarity in the material and arguments before me to enable me to reach a conclusion on the Applications for Review. However, given the extent to which it was readily apparent the dispute between ES and PR was at the very least hindering a workable arrangement in terms of guardianship and administration, I gave orders under s155 of the GAA Act suspending the appointment of PR, thus putting the Public Guardian and the Public Trustee of Queensland into place as guardian and administrator during the suspension period of three (3) months. Given that period of time was the maximum permissible, with prior arrangements having been made with QCAT Scheduling I listed the hearing then for continuation at 2:15pm on 30 May 2023. [25] At the same time I directed that under s 125 of the GAA Act a representative be appointed to EJ so as to assist me to understand the true circumstances EJ was in, and as best it could have her views wishes and preferences expressed to this Tribunal. My concern was that no one was talking on EJ’s behalf in the arguments that were being raised in these proceedings. The direction for the appointment of a representative also included that the representative was to file, and provide copies to the other active parties, any submissions sought to be relied on in the reconvened hearing prior to the hearing. [26] I also directed the Public Trustee of Queensland to investigate the conduct of PR during the period of her appointment as administrator, in terms of expenditure from EJ’s personal accounts, given that it seemed to me there were questions that needed to be answered in respect of financial management. This was so notwithstanding the extent to which the accounts had already been reviewed by the Tribunal’s Financial Assessment Team. What I wanted to know with clarity, to the extent possible, was whether there had been any conduct by PR that could be said to be a failure by her to have complied with the GAA Act in the exercise of her powers as administrator. I required the Public Trustee to report back to me, with a copy to the other active parties, prior to the reconvened hearing. [27] At that time I also gave a direction for the Public Guardian to conduct a similar investigation into the conduct of PR as guardian, and also to report back to me before the reconvened hearing. That direction was the subject of an appeal to this Tribunal’s Appeal Division on the basis that such was given in excess of jurisdiction. At the time of the hearing on 30 May 2023 that direction was stayed by the Appeal Tribunal pending final determination of the Appeal, but with the indication from the Appeal Tribunal being that the appeal would be allowed pending any contrary submissions from other relevant parties. Accordingly the hearing on 30 May 2023 proceeded without any such report. [28] In accordance with those directions I received submissions dated 25 May 2023 from Ms Zugno, a Solicitor at ADA Law, being the appointed representative for EJ (ADA Submissions), and a report from Mr Rosenquist as delegate of the Public Trustee dated 19 May 2023 (PTQ Report). Whilst there was not a report on investigation by the Public Guardian, there was a report dated 23 May 2023 provided by a delegate of -- 9 of 26 -- 10 the Public Guardian, Ms Jones, as to her conduct as guardian during the suspension period (the OPG Report). [29] On 18 May 2023, notwithstanding the stance she had taken in the previous two hearings such being to effectively oppose the Applications for Review in a vehement effort to remain as guardian and administrator to EJ, PR applied for leave to withdraw as EJ’s guardian and administrator (Application for Leave to Withdraw).18 [30] On 30 May 2023, the proceedings then returned to this Tribunal on 30 May 2023 just prior to the end of the suspension period. It was the substantive Applications for Review and the Application for Leave to Withdraw that were then heard and determined by me against this background. The Issues in this Proceeding [31] The primary issue in these proceedings was whether EJ is of impaired capacity in terms of personal matters and financial matters. If I were to find that she is of impaired capacity then I needed to consider what decisions were required to be made such that there was the requirement for the appointment of a guardian and/or administrator. Associated with this was the question as to who the appropriate appointees should be. The Relevant Law [32] Before embarking on discussing my consideration of those issues, to assist in understanding the reasons that follow herein it seemed to me it should be helpful to note the relevant law under which I have considered the applications before me and made my decisions. The Guardianship and Administration Act 2000 (Qld) [33] The primary legislation is the GAA Act. Relevantly, it provides that an adult’s right to make decisions is fundamental to their dignity, and that the right to make decisions includes the right to do so with which others might not agree. It is also premised on the position that if an adult with an impaired capacity to make decisions is to be restricted or interfered with in terms of decision making, it should be done to the least possible extent.19 [34] In that regard the legislation seeks to strike a balance between the right of an adult with impaired capacity to be afforded the greatest possible degree of autonomy in decision making, with the adult’s right to adequate and appropriate support for decision making.20 Thus it sets out general principles to be applied in any decision making process, including the decision as to whether to appoint an independent decision maker, in this instance such being a guardian and separately an administrator.21 [35] On all occasions, an adult’s views and wishes should be sought and considered to the greatest extent possible. Although, that being said, a person performing a function under the GAA Act in terms of decision making must do so in a way that is consistent with the adult’s proper care and protection. It requires the principles of substituted judgment to be engaged, that is to make the decision the adult would have made if 18 See PR’s Application for Miscellaneous Matters – Guardianship filed 18 May 2023. 19 GAA – s5. 20 GAA – s6. 21 GAA – s11B. -- 10 of 26 -- 11 they had capacity, such to be based on any previously expressed views, wishes, and conduct of the adult when they had capacity. Thus, it is not a ‘best interest’ test such that decisions are to be made in what the decision-maker believes to be in the best interest of the adult, but it is a regime that requires consideration of what the adult’s decision would have been if they presently had capacity.22 [36] The proceedings before me concern the review of appointments of a guardian and an administrator. That being so, under s 31 of the GAA Act I am required to revoke the appointment at the end of the review unless I am satisfied that I would make an appointment if a new application for appointment was to be made. To put it another way, if the evidence before me satisfies the appointment criteria under s 12 of the GAA Act which would be applied if it was a new application before me, then an appointment may be continued or changed. In that regard, to the extent any such change involves a change of an existing appointee, I may make an order removing the appointee only if I consider that person is no longer competent, or another person is more appropriate for appointment. [37] In implementing that criteria, I may appoint an independent decision-maker where: 23 (a) there is no one available to make decisions; (b) the decisions that are being made on an informal basis give rise to an unreasonable risk of harm; (c) there is conflict among family members; or (d) there is conflict between family and a service provider. [38] However, there remains the overriding requirements of s 12 of the GAA Act, namely that I may make a guardianship order only if I am satisfied that: 24 (a) EJ has impaired capacity for the matter; (b) there is either: (i) a need for a decision in relation to the matter; or (ii) EJ is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to her health, welfare, or property; and (c) without an appointment: (i) EJ’s needs will not be adequately met; or (ii) EJ’s interests will not be adequately protected. Human Rights Act 2019 (Qld) [39] I have also, as I am required to do, considered and applied the provision of the Human Rights Act 2019 (Qld) (the HRA). 22 See WJB v BLZ [2019] QCATA 92, [23]-[23]. 23 PE [2016] QCAT 285, [18]. A ‘guardianship order’ includes an order appointing a guardian or appointing an administrator. 24 GAA s 12(1). -- 11 of 26 -- 12 [40] The main objective of this legislation is to protect and promote fundamental human rights. However those rights are not absolute. They may be limited, but only as far as is reasonable and justifiable.25 [41] That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with those human rights. One such statute is the GAA Act.26 Thus, the relevant human rights afforded EJ under the HRA must be considered in the exercise of any power or performance of any function under the GAA Act, such being done in a way that is compatible with them, but only to the extent that is also possible whilst meeting the statutory purpose of the GAA Act. The Relevant Evidence [42] With that being general legislative framework under which I considered the applications, before turning to the substantive issues on which I was required to decide I will note the relevant evidence on which my decisions was based. [43] As I have already mentioned but repeat here for convenience, the material filed in these proceedings was voluminous. Whilst this was particularly so in terms of the that filed for ES, it was also the case for PR. It was entirely unnecessarily so. [44] It also seems as though the solicitor for ES adopted the practice of filing numerous affidavits sworn by himself, seemingly as ‘evidence’ in the proceedings, writing letters to this Tribunal providing copies of correspondence he had sent to PR’s solicitor or others, or otherwise just simply writing to the Tribunal raising issues of concern or informing the Tribunal of events as they were unfolding.27 None of these affidavits or letters were ultimately relied on by ES in her application and submissions made in the hearings before me. Moreover, and concerningly, on one occasion the solicitor had addressed one of his letters, which was primarily addressed to the Queensland Police Service, as a ‘cc’ to me personally as the sitting Tribunal Member. On one other occasion he had sent copies to my Hearing Support Office of other correspondence he had sent.28 Such a practice is entirely inappropriate and unacceptable. Not only is it contrary to proper practice by Solicitor it serves only to waste this Tribunal’s resources and confuse the proceedings. [45] Put simply, the material in its entirety from both the perspectives of ES and PR can readily be described as prolix, confused, and confusing. It raised several challenges for me to find that which was within it as being the relevant information. During the hearing on the first occasion I sought assistance from both Mr Seccull of Counsel who appeared for ES, and Ms Tinker who appeared as a McKenzie Friend assisting PR, to identify with some precision the relevant material thus indicating what I need not have regard to. It was narrowed down to the following, with both Mr Seccull and Ms Tinker confirming that ES and PR respectively had copies of each other’s documents: (a) For ES: 25 HRA s 13. 26 HRA s 48. 27 For example see H 97, H 99, 28 See H 97, H 102, and H 103. -- 12 of 26 -- 13 (i) The affidavit of ES sworn 19 September 2022 including reliance on her affidavit in the SC2 Proceeding contained therein.29 (ii) The affidavit of CA sworn 6 October 2022;30 (iii) The affidavit of ES sworn 12 October 2022.31 (b) For PR: (i) The affidavit of PR sworn 11 November 2022;32 and (ii) The letter from The Will and All to this Tribunal dated 13 September 2022.33 [46] Mr Seccull also relied on a Health Professional’s Report of Dr Coetzee going to capacity issues.34 [47] In that regard I also heard briefly during the first hearing from Ms N. Barnes, EJ’s treating Psychologist who had been attending on EJ for the prior two (2) years and had last seen EJ three (3) weeks prior. [48] Mr Seccull also provided me with a written Outline of Submissions at the start of the hearing on 23 November 2023.35 [49] Subsequent to the hearing on 23 November 2023 and shortly before the hearing on 9 March 2023, further relatively substantial material was filed for ES. This was an affidavit of a Ms LS sworn 1 March 2023, an affidavit of ES sworn 1 March 2023 to which was exhibited a copy of a letter which her solicitor had previously sent to this Tribunal, and an affidavit of ES sworn 6 March 2023 to which was exhibited correspondence between her solicitor and PR’s solicitor concerning what became the ‘urgent’ application made by PR to the Supreme Court in SC 2 Proceeding to which I referred in paragraphs [21] and [22] herein. The bundle of material also contained copies of two affidavits of ES sworn 6 March 2023 filed in that Supreme Court proceeding and again seemingly directed to addressing that ‘urgent’ application, one of these containing the same information contained in the 6 March 2023 affidavit filed in these Tribunal proceedings.36 Faced once again with repetitive and thus confusing material I asked Mr Ryall of Counsel who appeared for ES at the hearing on 9 March 2023 as to what extent I should have regard to this additional material. His response was that it was not being relied on by ES. This was yet another example of the entirely wasted time and resources of this Tribunal by the conduct of ES’s solicitor. [50] For present purposes, in my opinion it is not necessary for me to set out here in any detail the content of the evidence and the submissions that was thus ultimately before me. To the extent necessary I will note the relevant parts of it later in these reasons when I discuss the substantive issues arising on the applications I was required to 29 H 71. 30 H 82. 31 H 84. 32 H 95. 33 H 58. 34 MED 001. 35 A copy of this was subsequently provided to the Tribunal Registry as an attachment to a letter from Astley Associates – see H 97. 36 See H 117. -- 13 of 26 -- 14 determine, and for present purposes it suffices to simply note the essence of that evidence and submissions. On my reading of it this is as follows. [51] ES’s case was that PR is no longer appropriate, nor competent, as an appointee for guardian or administrator to EJ, such being because of the dispute that has arisen between PR and ES involving EJ as evidenced by the existence of the Supreme Court proceedings and the issues on which each are premised. Further or alternatively that PR became a paid carer for EJ and accordingly her appointment as guardian and administrator had been revoked under s 26(1) of the GAA Act. [52] PR’s case was, at least prior to her Application for Leave to Withdraw, was that she was competent and the appropriate appointee, denying that she had become a paid carer. [53] With that being the essence of the contest in the Applications for Review, in my opinion it is helpful to also note here some of the more relevant and pertinent issues as they were raised in the ADA Submissions, the PTQ Report, and the OPG Report, all of which form the basis of that which I discuss later in these reasons. [54] The ADA Submissions were extremely beneficial to me. Ms Zugno is to be commended for the thoroughness and conciseness with which she approached the role with which she was tasked. Her submissions assisted me greatly to gain some clarity on what was a very confusing and at times obscure background. [55] Of great concern to me is that her submissions informed this Tribunal that restrictive practices had been engaged in during the giving of care to EJ whilst PR was appointed as her guardian. This includes what appears to be containment or seclusion, and restriction to objects. As I will discuss later, during the hearing on 30 May 2023 it also became apparent that chemical restraint had been used, and possibly was continuing to be used, in control of EJ’s behaviour. This is despite there not being any approval for any such practice nor even the appointment by this Tribunal of a Guardian for Restrictive Practice to give consent to such practice where possible to do so. Ms Zugno also submitted on her review of the file that whilst she can see a Positive Behaviour Support Plan was previously prepared for the care of ES, its validity has expired but moreover it did not contain any reference to the use of restrictive practices. [56] The OPG Report also informs me of an issue of concern. It is that EJ has a NDIS plan and that funding thereunder was being over-utilised due to the use of independent service providers in support of EJ rather than NDIS registered service providers, and the need for improved service delivery of that support in the residence EJ shares with ES. The report also highlighted apparent concerns being recently raised regarding support being provided to EJ by a named support worker in instances when that support worker had been instructed not to provide such services. [57] The content of the PTQ Report was also somewhat alarming and of concern to me. In summary, it informs me of the following identified from the PTQ’s initial investigation: (a) The conduct of PR as administrator to transact heavily in cash transactions, despite advice from this Tribunal to cease or at least minimize this practice, suggests a disregard of the requirements of s 35 of the GAA Act, and the practice has meant the records that have been kept are minimal and lacking in substance thus raising questions of compliance with s 49 of the GAA Act; -- 14 of 26 -- 15 (b) It is apparent that as administrator PR has not considered the issue of NDIS funding in conjunction with her role as guardian so as to minimise personal expenses for EJ, such as some home maintenance expenses that could have been funded through NDIS, and so unnecessarily depleting EJ’s financial resources, thus suggesting a contravention of s 35 of the GAA Act; (c) Noting the existence of legal proceedings involving EJ, it is unclear as to the extent to which the proceedings involve PR in her capacity as administrator thus on behalf of EJ versus her involvement in her own capacity. This is because PR has paid just under $26,000 in legal expenses to date from EJ’s funds, and has incurred a further amount just under $12,000 which is yet to be paid, in apparent connection with these proceedings. It is also unclear as to whether these expenses are for the SC 1 Proceeding or the SC 2 Proceeding or both. Additional there remains the issue of a potential adverse costs order against EJ in the SC 2 Proceeding. Discussion on the Evidence and the Relevant Law [58] I first turned to dealing with the requirements of s 12 of the GAA as I have laid them out in paragraph [38] herein in terms of the evidence that was before me. Is EJ of impaired capacity? [59] I firstly dealt with the question of EJ’s capacity. [60] The issue of capacity is not to be decided as a fact premised on the opinions in a medical report that there is no capacity. The issue of capacity is a question of law, to be decided by the application of the definition of capacity under the GAA Act.37 That is, the question was whether at the time of the hearing EJ was of impaired capacity such that she would be unable to understand the nature and effect of decisions about relevant matters, or would not be able to freely and voluntarily make decisions about relevant matters, or would not be able to communicate the decisions in some way.38 It is only necessary for one of these elements to be absent for there to be a finding of impaired capacity.39 [61] I was not concerned with an issue of global capacity but rather it was an issue of capacity in respect of a specific matter. A ‘matter’ for the purposes of the GAA Act is a ‘type of matter’.40 As relevant in this proceeding such is listed in the Act under the headings: 41 (a) ‘personal matter’ to include decisions such as where EJ lives, what services are to be provided to EJ, health care decisions for EJ, and decisions concerning EJ’s legal matters not relating to finances and property; and (b) ‘financial matter’ to include decisions dealing with paying of EJ’s bills and managing her financial affairs, including legal matters relating to financial or property matters. 37 See also PL v PT & Ors [2018] QCATA 114, [3]. 38 See GAA s 12 and the definitions of ‘impaired capacity’ and ‘capacity’ in Schedule 3 therein. 39 Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, [65]. 40 GAA Schedule 4. 41 GAA Schedule 2 Part 1 and Part 2. -- 15 of 26 -- 16 [62] Notwithstanding that the hearing was conducted over three separate days with the first and last separated by almost six months, in my opinion I could readily proceed on the findings I was able to reach on the evidence as it was presented on the first day in terms of capacity. There was nothing new presented in the subsequent two occasions the parties were before me to indicate that anything had changed. At its highest on the third hearing when I heard from Ms Zugno as representative for EJ, she referred to me to specifics in historical material that was already before the Tribunal at the time of the first hearing. [63] Whilst EJ did not appear before me on any of the three occasions these proceedings were conducted, and thus I was not able to engage with her in a question and answer process for me to assess first hand her capacity, in my opinion there was enough material before me to determine the issue with certainty. [64] Regrettably, an updated Health Professional’s Report was not provided by ES in support of her Applications for Review. But that did not mean there was sufficient information before me to deal with the issue. As I noted it earlier, ES’s Counsel referred to and relied on an historical report of Dr Coetzee, a General Practitioner whose report is dated 12 September 2012. Therein the Doctor reports EJ’s medical conditions as including schizophrenia and depression, and that EJ has no insight into her conditions such that she is unable to understand and act on information relevant for making decisions nor appreciate the consequences of a decision make or a lack of decision, such applying to personal health care, lifestyle and accommodation choices, and financial affairs.42 [65] As I also noted earlier, I also heard from Ms Barnes during the hearing on the first day, a Psychologist who had been attending on EJ for the last two years. Ms Barnes opined that EJ’s decision making capacity in terms of complex matters was limited, but was generally OK on simple matters dependant on the manner in which the issue was framed upon which a decision was required. When I asked her if she could differentiate the opinion in terms of personal and financial matters, the essence of her response was that she could not and in all respects EJ simply was unable to understand the nature and effect of decision making. [66] From my discussion on the first day of hearing with PR, my understanding was that she agreed with these views of the medical professionals based on her own observations of EJ. [67] For completeness I should also make a brief reference to other medical information which was on the file and appropriately referred to by Ms Zugno in the ADA Submissions. In a report given by a Dr MacLeod, also a General Practitioner, dated 26 September 2013, Dr MacLeod opined that EJ was unable to make good decisions, was self-destructive and exhibited abusive behaviour as well as schizophrenic unpredictable behaviour.43 [68] All that being said, my decision was made having considered that medical evidence as well as that which I have heard during this hearing. [69] Whilst my decision is one that must be, and is, made on the opinions I have formed on that material as at the date of this hearing, I considered the relevant medical history 42 MED 001. 43 H 32. -- 16 of 26 -- 17 disclosed from that material and in particular the nature and extent of any mental illness that is identified therein. I also considered what (if anything) I considered likely to occur in the near future based on that medical history, and the probability (if any) that ES could be unable to make decisions in for the near future. Findings of Fact [70] On the basis of the evidence that was before me to which I have just referred, I was able to readily find the following facts were established: (a) EJ is affected by a medical condition which directly affects adversely her cognitive abilities; and as a result (b) EJ is unable to understand the nature and effect of decisions, or is otherwise unable to freely and voluntarily make decisions,44 about relevant personal and financial matters for which a guardian and an administrator had been appointed, and as I will discuss will continue to need to be appointed. [71] I was thus able to readily conclude that the presumption of capacity which EJ is afforded under the GAA Act for personal and financial matters had been rebutted. Is there the need for a Guardian ? [72] I thus turned to the question of the need for a guardian. Such was to be answered by reference to whether there was a need for a decision to be made concerning a personal matter for EJ, or that EJ was likely to do something involving or likely to involve unreasonable risk to her health or welfare, and that without an appointment EJ’s needs may not be adequately met or her interests may not be adequately protected. [73] On the basis of that which I noted in paragraph [56] herein it was readily apparent to me that there was such a need, at least in terms of the provision of services including in respect of the NDIS. [74] Also, given the existence of the SC 2 Proceeding it seemed to me that the need for decisions in respect of personal matters could also extent to decisions on legal matters not concerning property of finances. This was the subject of relatively lengthy discussion between me and Ms Tinker in the second hearing, as well as me and Mr Ryall in the second and third hearings. It was entirely unclear to me the manner in which the SC 2 Proceeding, in which both EJ and PR are named as defendants were being conducted in terms of EJ’s involvement. [75] Whilst it seemed to me readily apparent that, at least in terms of the proceeding as started by ES, it was in terms of a property issue concerning EJ and thus falling within the ambit of the administrator’s authority given PR was appointed administrator on a plenary basis, it was not so clear, and to the contrary entirely vague and uncertain, as to the nature of the ‘urgent application’ brought by PR seeking relief requiring ES to vacate so as EJ could move back into House 1. As it was described to me, whilst the issue of where EJ was to reside fell within the ambit of a decision concerning accommodation being within PR’s power as the appointed guardian, the decision to take the legal step of making the application necessary in the Court to implement that decision would, in my opinion, fall within the ambit of a legal matter 44 I pause here to observe that the issue of being able to freely and voluntarily make decisions arises in the negative because of EJ’s schizophrenia. -- 17 of 26 -- 18 not relating to property or finances. As such it fell outside the ambit of PR’s role as guardian given she was not appointed to make decisions in terms of such legal matters. [76] When I raised this with Ms Tinker, somewhat surprisingly to me she was unable to address me in any meaningful manner on it seemingly not understanding the difference. It also became apparent to me that Ms Tinker may have been confused, or at the very least was not clear, on who her firm’s client was in the SC Proceeding, whether it was PR in her personal capacity, or PR in her capacity as EJ’s administrator. When I discussed it with Mr Ryall, my understanding of what he said to me was that this very issue was raised in the Supreme Court proceeding, particularly noting the absence of the appointment of a litigation guardian for EJ in the SC 2 Proceeding.45 For these reasons I formed the view that the appointment of a guardian for decisions in respect of legal matters not relating to property and finances was prudent, at least for the initial period until such time as the SC 2 Proceeding is resolved. [77] On the issue of accommodation decisions, whilst the prospect of same was contemplated by the Public Guardian and noted in the OPG report, on the strength of what Ms Zugno noted in the ADA Submissions EJ wishes to remain living in House 1 with ES. Whilst, as noted by Ms Zugno, the house has been modified to accommodate EJ’s needs it is not currently suitable to accommodate EJ’s care support workers on a 24/7 basis, but the resolution of that does not dictate the need for decisions in respect of accommodation just yet. Notwithstanding that last fact, and the fact of the SC 2 Proceeding remaining on foot such which goes to the issue of ownership of House 1 not as to whether EJ may continue to reside within it, there was nothing before me that suggested an accommodation decision needed to be made now or in the near future. [78] As to the issue of health care, as the Public Guardian appropriately and properly pointed out, the Public Guardian can function as Statutory Health Attorney of last resort should circumstances arise that a health care decision needs to be made for EJ that cannot otherwise be made on a lawful basis within EJ’s support network. Moreover there was nothing before me to suggest that a health care decision needed to be made now or in the near future. [79] Accordingly in my opinion there was no need for the appointment of a guardian for accommodation or health care decisions, and none was pressed by the active parties before me. [80] There was however the issue of the use or restrictive practices that had been identified in the ADA Submissions. Therein, Ms Zugno noted it is open for me to appoint a guardian for restrictive practice notwithstanding that there is no application before the Tribunal.46 Moreover, not only was the issue raised in the ADA Submissions, but I also see it had been the subject of documentation filed in this Tribunal from what appears to be the commencement of EJ’s involvement with this Tribunal. Accordingly I took some time to discuss this with those before me at the third hearing, my concern 45 In that regard I note the provisions of the Uniform Civil Procedure Rules 1999 (Qld), r 93 to r 95 which requires formal steps to give effect to the appointment of a litigation guardian notwithstanding that there may already be an appointment under the GAA Act which provides for decisions to be made in terms of legal matters. 46 See GAA Act s 80ZD(6). -- 18 of 26 -- 19 being that restrictive practices were seemingly in use without the requisite approvals being in place. [81] Whilst Ms Zugno had referred to the report of Dr Coetzee, on my reading of that report I also observed that he had reported therein that restrictive practices were being used at that time, namely locked doors in accommodation because EJ wanders and is a safety risk for herself. He also provided a copy of a ‘Health Summary Sheet’ printed 12 September 2012 as an attachment to his report. I note from reading of that sheet, as at 28 February 2012 a prescription had been issued for the use of Risperidone medication on a nightly basis for EJ, such which I know to be medication used to control adverse behaviour which puts a person, be it the person themselves or other persons, at risk of harm as a result of such behaviour. [82] There was also a similar issue arising from the report of Dr MacLeod to which I referred at paragraph [64] wherein she reports in September 2013 on the use of Risperidone and other medication to control EJ’s behaviour as opposed to treating a diagnosed mental illness or physical condition. [83] In my discussions with PR during the third hearing on 9 March 2023, which occurred given the extent to which Ms Zugno had identified the use of restrictive practices in her submissions, PR confirmed that Risperidone was still being used to control EJ’s adverse behaviour but on a PRN basis.47 When I raised with her my concern about the use of locking EJ into her room, such being effectively ‘containment’ or ‘seclusion’,48 and that the use of Risperidone with EJ falls within the ambit of ‘chemical restraint’,49 both which fall within the ambit of restrictive practice, she stated that she had been told by medical practitioners that as long as the Risperidone was being used PRN only it was not chemical restraint, and that in terms of the containment / seclusion it was not being done under her instruction, although I understood from her response she was aware of it occurring. [84] All that being said, my decision on the issue of the use of restrictive practices turned on my discussion with Ms Jones of the Public Guardian who impressed upon me that for present purposes the Public Guardian is aware of the issues but needs some further time to determine the facts and circumstances before any decision is made as to the most appropriate way forward. Ms Jones submitted that the least restrictive manner presently would be to leave it to the regime of short term approvals that can be given under either the GAA Act s 80ZH, s 80ZI, or s 80ZK, or the Disability Services Act 2006 (Qld) s 178. Moreover there remains the issue of the appointment of service providers that is currently being addressed as part of the reorganization of NDIS service providers for EJ, and until such time as that occurs the proper applicant should be the appointed service provider(s) who will administer any restrictive practice that may be required. [85] I agree with that approach. In my opinion until all the facts and circumstances are known with clarity and certainty, it would be premature to make any determination as to the need for a guardian for restrictive practice. Accordingly I did not order any such appointment. 47 PRN means ‘pro re nata’ or ‘when required’. 48 See Disability Services Act 2006 (Qld) s 146. 49 See Disability Services Act 2006 (Qld) s 145. -- 19 of 26 -- 20 Findings of Fact [86] Similar to the question of capacity, on the basis of the evidence and submissions that were before me to which I have just referred I was readily able to find that decisions were required in terms of the provision of services including NDIS, and legal matters not relating to property and finances. [87] Of course such decisions could be left to be made informally with the assistance and involvement of a support network around EJ maximising her participation in decision- making, and exercising structured decision making.50 However, on the evidence that was before me, in my opinion there was not an adequate support network in place, at least presently, in that regard. As it seemed to me, at best her support network was ES and her support carers. But given ES’s frail condition and age as I personally observed it to be on the three occasions in the hearings before me, I was concerned about leaving the task to fall upon her, but moreover it is her Applications for Review that seek the appointment of a guardian, in particular the Public Guardian, to make the requisite decisions. [88] Accordingly I could readily find as a fact that the appointment of a guardian was necessary in terms of decision making for the provision of services including in relation to the NDIS, and for legal matters not relating to property and finances. [89] Before turning to the question of who the appropriate appointee for guardian was, I turned to the question of the need for the appointment of an administrator. The reason for this was that in my opinion the question of an appropriate appointee could be dealt with in terms of both guardian and administrator at one time once the decision was made that there was the need for an administrator. Is there the need for an Administrator ? [90] Similar to the question in terms of guardianship, such was to be answered by reference to whether there was a need for a decision to be made concerning a financial matter for EJ, or that EJ was likely to do something involving or likely to involve unreasonable risk to her finances, and that without an appointment EJ’s needs may not be adequately met or her interests may not be adequately protected. [91] In my opinion this question could be answered with minimal discussion. I was without doubt that there is a current and on-going need for the appointment of an administrator to manage EJ’s financial circumstances. Such is readily identified by reference to the PTQ Report. Moreover, there remains the issue of the SC 2 Proceeding which will need to be resolved in some manner in terms of EJ’s property and exposure to costs. [92] There is also in my opinion the need for retrospective assessment of EJ’s finances given the allegations raised by ES in her Applications for Review as to financial mismanagement by PR, and the issues of concern raised by the Public Trustee identified in its initial investigation. [93] On the issue of continued management of the finances by PR engaging in cash withdrawals and the absence of transparency arising from same, on two occasions during the hearings before me PR sought to explain this seemingly seeking to have it excused on the basis that EJ held a passbook account which dictated such cash withdrawals. Whilst that may be so, it does not explain why PR did not change the 50 See General Principles 8 and 10 in s 11B of the GAA Act. -- 20 of 26 -- 21 account type when alerted by this Tribunal’s Financial Management Team as to the concerns held and a recommendation not to continue with such a practice. As the appointed administrator PR had the authority to make this change. [94] There is also the issue of the legal fees that have been incurred and paid for out of EJ’s finances plus those that remain to be paid. This will require further investigation to ascertain whether any of these legal fees were incurred for the purposes of PR’s defence of Court proceedings or the conduct of her response to the Applications for Review or her Application for Leave to Withdraw, all such being conducted in her own capacity. [95] In the ADA Submissions, I was alerted to the fact that EJ had expressed a preference to manage her own finances. I discussed this briefly with Ms Zugno and was readily able to conclude that whilst such preference had been expressed there remained questions as to whether EJ was capable of doing so even with the assistance and support of another person. As I expressed my view to Ms Zugno, given my finding that the presumption of capacity for financial matters EJ is afforded under the GAA Act had been rebutted, in my opinion it must follow that she is unable to manage her own finances and that the appointment of an administrator was appropriate. I also said that in my opinion of EJ wished to manage her own finances she should appear before this Tribunal on an application for review of the appointment of an administrator so as to be able to demonstrate to the Tribunal that she had the capacity to do so. Ms Zugno did not cavil with that view or opinion. [96] The remaining issue that arose, and in my opinion is appropriately discussed here, is the submission from the Public Trustee that given the initial findings from the investigation so far I should consider appointing an Auditor under s 153 of the GAA Act. [97] I indicated to Mr Rosenquist who appeared before me for the Public Trustee that I was not inclined to do so. This was because: (a) such an appointment would fall within the commercial realm of the practice of auditors whom I doubt would be prepared to waive or reduce their fee in any considerable manner should the cost of the audit prove to be beyond what I understood to be the limited financial means of EJ, already seemingly somewhat depleted given the NDIS issues and the cost of the legal matters to which I have already referred; and (b) in my opinion it was a task that the Public Trustee should be able to do, and whilst it would also incur a cost to EJ it is a cost that could more readily be managed by the Public Trustee in its role as EJ’s administrator. [98] Mr Rosenquist did not cavil with that approach. He confirmed that the Public Trustee’s office had the resources to do so although indicating that it might take some time to work through all the material and finalise a report. To that end it was determined in my discussion with Mr Rosenquist that a 12 month period for the investigation would be adequate. Ms Zugno supported that approach. Findings of Fact [99] On the basis of the evidence and submissions that were before me to which I have just referred, I was readily able to find that decisions were required in terms of all financial affairs for EJ, and that there was not an adequate support network in place to assist EJ -- 21 of 26 -- 22 in that regard and so the appointment of an external decision maker in the form of an administrator was warranted. For these reasons as order was made for the appointment of an administrator. [100] I also made an order for the Public Trustee to continue its investigation into the management of EJ’s finances by PR during her appointment as administrator, and once again put PR on notice of a possible compensation order being made against her should that investigation show adverse circumstances. Who is the appropriate appointee for Guardian and Administrator ? [101] As I indicated it earlier, in my opinion it is convenient to deal with these two issues as one. It is also proper in my opinion to deal with PR’s Application for Leave to Withdraw. PR’s Applications for Leave to Withdraw [102] In her applications, PR made the following statement as to the reason for seeking leave to withdraw: … due to the regular interference of the adult’s mother [ES] and the strain on [PR]’s family due to the various Tribunal and Supreme Court proceedings brought against her by the adult’s mother … seeking to claim [PR]’s home. The difficulty of dealing with the adult’s mother, who lives with the adult, has made the appointment of [PR] as guardian and administrator unworkable. [103] Whilst in a letter from ES’s solicitor to this Tribunal dated 19 May 2023 in which objection was raised to leave being granted, suggesting that an order for removal of PR as guardian and administrator was necessary, that point was not pressed by Mr Ryall appearing for ES in the third hearing. He properly noted and accepted that should I grant PR leave to withdraw as both guardian and administrator then the outcome is as ES was seeking in her Applications for Review on the basis that the only alternative was to appoint the Public Guardian and Public Trustee. However, Mr Ryall did make one submission, namely that the premise upon which the applications are founded is not agreed to. [104] Before a guardian or an administrator may withdraw from an appointment under the GAA Act, they must seek and be granted the leave of this Tribunal.51 The GAA Act does not provide guidance as to the grant of leave, but it has been observed that this Tribunal should consider:52 (a) whether there is a need for further decisions necessitating an appointment; (b) the appropriateness and competence of the appointee; (c) the personal circumstances of the appointee; and (d) whether the original appointment was ultra vires. [105] It is readily apparent that it is the third of those categories that PR is reliant upon as the premise for her now wanting to withdraw on the occasion of the third hearing, in 51 GAA s 27. 52 DMK [2013] QCAT 460, [42]. -- 22 of 26 -- 23 contrast to the stance she has exhibited in the first two hearings where she vehemently argued to remain in place as the appointee. [106] I do not accept PR’s premise for now saying she wants to withdraw. On all of the evidence and submissions that was before me, in my opinion nothing had changed since the second hearing in March 2023 that would have resulted in the circumstances arising as they were expressed by PR in her application. Those circumstances, be it the alleged interference by ES and/or the alleged difficulties in dealing with ES, were the same as they were then when PR was pressing her case to remain as the appointee. What however was readily apparent to me was that, on all of the information that was before me as I have discussed it in these reasons, in my opinion PR was not appropriate or competent to remain in the position of appointee for either guardian or administrator. [107] Whilst there is clearly conflict between PR and ES that had a bearing on the issue at hand, that of itself that would not always be sufficient. It seems to me that something more was required to persuade me. [108] That something more was found elsewhere in the material before me and in my opinion sufficient for me to express the view of an absence of appropriateness and competence. It is that which I have discussed at some length already as to the issue identified by Ms Zugno in the ADA Submissions, namely the use of restrictive practices without the requisite approvals or consent in place and PR’s apparent knowledge of same, as well as the apparent mismanagement of finances and the NDIS plan issues as identified in the PTQ Report and the OPG Report. [109] Additionally, and in my opinion somewhat critically, is the presence of the Supreme Court proceeding involving EJ and the manner in which it seems PR has managed that as either guardian or administrator or both. [110] Whilst I make no definitive finding about any of it given that further investigation is warranted and necessary before such a finding can be made, the mere presence of these issues and the questions that arise from them is enough in my opinion to dictate the need for a change in guardian and administrator. As Mr Ryall stated in the second hearing, correctly in my opinion, PR should have stepped aside at the latest when the Supreme Court proceedings arose rather than stand ground pushing to remain in place as the external decision maker. [111] I would even go one step further. In my opinion when it became apparent to PR that she should, in her role as administrator, take the substantive step of issuing the Notice to Vacate on ES, recalling ES is EJ’s mother, PR should have at that point sought leave to withdraw and the appointment of at the very least the Public Guardian and the Public Trustee in order to deal with the issues as they presented at that time. In my opinion such would have been conduct entirely consistent with the General Principles, in particular General Principle 4 being the ‘maintenance of EJ’s existing supportive relationships’ more particular GP 4(3) being the role of families, such in this case being her mother, in EJ’s life to support EJ which should be acknowledged and respected.53 53 See GAA s 11B. In this regard see the written submission from Mr Seccull of Counsel handed up on 23 November 2022 – paragraph 55. -- 23 of 26 -- 24 [112] When I raised the issue of the application of the General Principles, and in particular the Principle to which I have just referred, with Ms Tinker during the second hearing when discussing the question of appropriateness of PR to remain in place as the appointee, she was unable to meaningfully respond to me on it. I was left with the impression that PR simply did not have a response. [113] The relevance of the General Principles and whether a person is likely to apply them is one of the matters that this Tribunal must consider in deciding whether a person is appropriate for appointment as a guardian or administrator.54 Once again when I asked Ms Tinker to address me on the application of the General Principles, she did not make any submission to me to indicate to me a basis upon which I could conclude that PR would be likely to apply them. This was in the face of the material before me that suggests quite clearly PR had not been applying them and would continue not to apply them. [114] All that being said, if PR had not filed her Application for Leave to Withdraw, as I informed Ms Tinker during the third hearing I would have given orders removing PR as both guardian and administrator. In my opinion to leave her in place would have been entirely inappropriate. But given her applications, and the fact that leave to withdraw was not opposed or otherwise objected to by Mr Ryall or Ms Zugno, there was simply no utility in not granting leave. The ultimate outcome would be the same. The only difference is that there would not be an order effectively removing PR from those roles, such which would be a factor for consideration by this Tribunal should PR seek appointment as a guardian or administrator for an adult in the future.55 However my discussion on the question of her appropriateness just given provides a basis for consideration of the question should it arise in the future. [115] All that being said, I granted leave and gave the requisite order giving effect to that withdrawal. [116] PR also sought an order that she not be required to pay the Titles Registry Fee for giving advice to the Registrar of Titles of her withdrawal. Such is an issue arising under the GAA Act s 27(4) that mandates the withdrawing administrator must pay the fee unless the Tribunal orders otherwise. In this instance, given that ultimately my decision was that the Public Trustee be appointed as administrator, such which would necessitate the requisite Notice of Interest in Land being filed with the Land Titles Registry, the advice of withdrawal and requisite fee became a non-issue, however for completeness I gave the order as requested by PR should there remain any issue with the Land Titles Registrar concerning her effectively withdrawing rather than the appointment being changed. [117] Finally, before leaving this issue, for completeness I should say something about the allegation that PR became a paid carer as a result of the alleged Carer Payment and accordingly PR’s appointment being automatically revoked. I have not, and I need not, make any finding about this given the Application for Leave to Withdraw and my decision on that application. However even if that application had not been made, I would not have made any finding on it. In my opinion there is insufficient evidence presently before this Tribunal to show the relevant facts one way or the other. It is nothing more that bare assertions at present. Whether the issue gets clarity in any way 54 GAA Act s 15(1)(a). 55 Consider GAA Act s 15(4)(b). -- 24 of 26 -- 25 as part of the Public Trustee’s investigation remains to be seen. But, even in the absence of any such finding being able to be made, it would not change the decision I would have reached to remove PR as guardian and administrator for the reasons I have discussed. The Public Guardian and the Public Trustee are the only available alternatives [118] That having occurred, and in the absence of any other person standing up to take on the roles of guardian and administrator, given the findings I have made earlier in terms of the need for an appointment it was in order that I appoint the Public Guardian and the Public Trustee of Queensland in those roles. Orders were given to that effect. [119] As to the duration of those appointment I considered the following to be appropriate. [120] In terms of the guardianship, given the issues that have already been identified for address and resolution on personal matters, I raised with Ms Zugno and with Ms Jones that in my opinion it would be in order to review the appointment in one (1) year by which time the issues of the SC 2 Proceeding should be resolved, the NDIS rearrangements should be in place and known to be working, and the issue of restrictive practices should be addressed, such that at that time a change in the appointment might be warranted. They each agreed with me. [121] As to the terms of the appointment of the administrator, I saw no reason to consider that anything would change in the near future as to the continuing need for management and oversight of EJ’s financial affairs. Accordingly I did not set a review period leaving the appointment of the Public Trustee current until further order. Such a step was not subject to any contrary view by Ms Zugno or Mr Rosenquist. An Invitation to the Public Guardian to Investigate [122] All of that then dealt with the applications before me. However in my opinion there was one remaining issue that needed to be addressed given the concerns I had. [123] Whilst the Public Trustee will continue to investigate the financial aspects of the administration of EJ’s financial affairs by PR, a concern for this Tribunal remains in terms of questions arising from and surrounding PR’s role as guardian, particularly the issues concerning the use of restrictive practices and the alleged forced removal by the Queensland Police of EJ from her home. [124] The Public Guardian is afforded a discretion under s 19 of the Public Guardian Act 2014 (Qld) to investigate complaints of allegations that an adult has been neglected, exploited, or abused. In my opinion the issues raised in these proceedings which are reflected in these reasons as to questions concerning PR’s performance of her role as not only guardian but also administrator warrants such an investigation. In my discussions with L. Reibelt who appeared before me in the last hearing as a delegate of the Public Guardian, as I understood it, she similarly held some concerns particularly given the allegation of restrictive practices being used and the admission by PR of the use of Risperidone to manage EJ’s behaviour. [125] Accordingly I gave an order requiring the Registrar of this Tribunal to refer this matter and the entire file in these proceedings to the Public Guardian inviting her to exercise that discretion and engage in the requisite investigation. Ms Reibelt did not take issue with such an order being made. -- 25 of 26 -- 26 Conclusion [126] The entirety of the circumstances that has brought these complicated matters to this Tribunal are extremely unfortunate and disappointing. When persons are appointed as guardians and administrators for an adult with impaired capacity they take on an important and onerous task. They are to be commended for doing so. However, they are also to be held to account when the circumstances of their performance of those roles raises questions and the spectre that something may not be right. This is particularly so when the questions opens the door to the possibility that the purpose of the GAA Act to strike the appropriate balance between the right of that adult to be afforded the greatest possible degree of autonomy in decision-making, and the adult’s right to adequate support for decision-making, is not being met or at the very least cannot be shown to have been met with certainty and clarity. [127] For this reason, the orders I made at the conclusion of the hearing as reflected in these reasons were in my opinion entirely necessary. It of course remains to be seen whether the investigation by the Public Trustee ultimately shows financial mismanagement, and/or whether any investigation conducted by the Public Guardian shows neglect, exploitation, or abuse. But, in the meantime the change of appointments should diffuse the circumstances as they have developed and permit the care of EJ to be continued in a manner that is appropriate to her needs and without the disruption, stress, and grief that seems to have pervaded her circumstances in recent times. [128] Whilst the orders I have made have the effect of engaging and limiting EJ’s rights as noted in the HRA,56 having considered the findings of fact as I have expressed them in these reasons as to the criteria set out in the GAA Act, in my opinion such a limitation is reasonable and justified, all such being in accordance with s13 of the HRA. [129] EJ is entitled to adequate support services to enable her to live independently, such being consistent with a free and democratic society based on human dignity, equality and freedom. The decisions I have reached in this proceeding are, in my opinion, the least restrictive options which are consistent with that entitlement. 56 For example, the right to recognition and equality before the law, the right to freedom of movement, the right to taking part in public life, the right to privacy and reputation, the right to liberty and security of person. -- 26 of 26 --