BK [2023] QCAT 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BK [2023] QCAT 121 PARTIES: In applications about matters concerning BK APPLICATION NO/S: GAA 9916-22 GAA 797-23 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 6 April 2023 HEARING DATE: 20 January 2023 HEARD AT: Cairns DECISION OF: Member Taylor ORDERS: Pursuant to s118(6) of the Guardianship and Administration Act 2000 (Qld), the time for giving notice of the hearing of the application GAA 797-23 to BK is abridged until the start of the hearing at 11:00 am on 20 January 2023. The following Enduring Power of Attorney for BK is declared invalid pursuant to s 113 of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld) (a) The Enduring Power of Attorney dated 13 July 2022 appointing KR as her attorney for financial, personal, and health) matters. The application by KR for approval of a conflict transaction for BK is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – adult’s mother was originally the adults mother but later removed and the Public Trustee of Queensland appointed as administrator – adult’s mother later applied for a review of the appointment of the administrator and was successful in being reappointed as administrator – mother was simultaneously appointed trustee of a trust over real property for the benefit of the adult – where mother incurred -- 1 of 20 -- 2 substantial legal fees in the process of getting reappointed as administrator – where mother, as administrator, then sought approval of a conflict transaction to reimburse herself the legal fees said to have been incurred CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – PARTIES – FORMATION AND PROOF OF AGENCY – POWERS OF ATTORNEY – FORMALITIES – where administrator already appointed to the principal – where enduring document created in anticipation of administrator being changed – where capacity of principal to make an enduring power of attorney was in question Guardianship and Administration Act 2000 (Qld), s 8, s 9, s 11, s 23, s 37, s 81, s 82, s 118, s 114A, s 152 Powers of Attorney Act 1998 (Qld), s 6A, s 6C, s 41, s 41A, 70, s 110, s 111A, s 113, s 109A, s 114 AMFE [2012] QCAT 301 BP & PM & Ors [2022] QSC 268 Re BAB [2007] QGAAT 19 Re CMB [2004] QGAAT 20 Re FAA [2008] QGAAT 3 HM [2012] QCAT 421 JLG [2019] QCAT 277 MTJ [2014] QCAT 195 PWJ [2013] QCAT 368 SMD (No 2) [2015] QCAT 190 VJE [2011] QCAT 111 WCV [2016] QCAT 114 APPEARANCES & REPRESENTATION: Adult: BK Applicant & Current Administrator: KR – Adult’s Mother REASONS FOR DECISION [1] In satisfaction of s114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other active parties are referred to herein in a de-identified format. Overview [2] At the time of the hearing BK was 27 years of age, diagnosed with asperges syndrome and an intellectual disability, was living with her mother, KR, in the family home. [3] KR had been appointed as BK’s administrator from 12 November 2014, but on 15 June 2020 that was changed with her being removed and the Public Trustee of -- 2 of 20 -- 3 Queensland (the PTQ) being appointed. However on 14 October 2021 that appointment was once again changed with the KR being reappointed. That arose from an application made by KR for review of the PTQ’s appointment with her seeking in that application to be reappointed. [4] Simultaneously, KR was the appointed trustee of a trust in which a parcel of land was held for BK’s benefit. [5] Whilst the appointment of KR as administrator was in force, it is said that on 13 July 2022 BK gave her power of attorney to KR for all financial, personal and health matters. [6] KR asserts that she expended $27,296.02 in legal fees dealing with the circumstances that brought about her application to this Tribunal for review of the appointment of the PTQ, and in the conduct of the application itself the result of which was that she was reappointed as administrator. KR now applies to this Tribunal for authorisation of a conflict transaction, namely the approval to reimburse herself from BK’s funds the amount of those legal fees. Within that application document KR also sought orders concerning the enduring power of attorney. It is those two applications that were heard by me on 20 January 2023 and to which these reasons and the accompanying decision relates. [7] For the reasons I have given herein, my conclusions are that: (a) the enduring power of attorney is invalid on the basis that BK did not have capacity to give it on 13 July 2022. The evidence before me fails to show that BK had the requisite degree of understanding to have made an enduring power of attorney, all as dictated by s 41(2) of the Powers of Attorney Act 1998 (Qld) (POA Act); and (b) there is no basis upon which it could proper for authorisation to be given to KR to reimburse herself $27,296.02, or any part thereof, for the legal fees she has incurred. In my opinion such were not necessary to enable KR to deal with matters in this Tribunal concerning BK and the reappointment of KR as administrator. Rather, these costs were incurred by KR in addressing issues that arise in her role and capacity as trustee of the trust, and whilst related to BK’s financial circumstances it is something that was entirely separate from the issue of her seeking reappointment as BK’s administrator. Relevant Facts and Circumstances [8] There has been a checked history of the appointments of a guardian and an administrator for BK. It is helpful to set out that history. [9] On 12 November 2014, her mother KR, then known as KK,1 was appointed as BK’s guardian for decisions in regard to health care and the provision of services. Simultaneously she was appointed as administrator for all financial matters.2 They were both subject to review within five (5) years. 1 In the hearing KR informed me that after that appointment she reverted to her maiden name. 2 Tribunal Doc H 10. In the footnotes that follow references will be made to various documents on the Tribunal record, but hereafter will only be referred to the document number. -- 3 of 20 -- 4 [10] On 9 March 2020, the appointment of KR as guardian was revoked, and the hearing of the review of the appointment of KR as administrator was adjourned to a later date with associated orders for KR to provide relevant documentation to the Tribunal.3 [11] On 15 June 2020, the appointment of an administrator for BK was changed. KR was removed and the PTQ was appointed. That appointment was reviewable in two (2) years.4 [12] On 4 February 2021, KR engaged a law firm purportedly relative to issues concerning the appointment of the PTQ as BK’s administrator.5 [13] On 18 March 2021, before the PTQ’s appointment was to be reviewed, KR applied to this Tribunal to be reappointed as BK’s administrator.6 As it was expressed therein in terms of the appropriateness of the then current arrangements with the PTQ: The adult is requesting the applicant to be able to once again act as administrator for her and would feel more comfortable for the applicant to act in this capacity on her behalf.7 [14] That prompted the matter to be listed for a review of the appointment earlier than ordinarily would have occurred. [15] On or about 23 June 2021, via a solicitor KR filed submissions in support of her review application in advance of that hearing.8 [16] On 11 October 2021, KR applied to this Tribunal for leave to be represented by a solicitor in the review hearing.9 The premises for that application were expressed as being that the applicant had minimal experience, that the issues were complex, that the applicant would experience significant hardship, and that the proceeding would not be resolved in a timely manner. [17] On 12 October 2021, KR was granted leave to be represented in the hearing, simultaneously with the hearing of that review being adjourned to 14 October 2021.10 [18] On 14 October 2021, the appointment of the administrator for BK was changed by removing the PTQ and once again appointing KR as administrator for all financial matters, such to be reviewed in three (3) years. [19] Whilst that appointment remained current, it is said that on 13 July 2022 BK signed an enduring power of attorney document purporting to appoint KR as her attorney for all personal (including health) matters and financial matters (the EPOA). 3 H 20. 4 H 24. 5 That fact is sourced from a bundle of Tax Invoices to which I refer in paragraph [22] to [24] of these reasons. 6 H 25 7 This is the answer given to Q 5.2 in the application document. 8 H 27. 9 H 34. 10 H 36. -- 4 of 20 -- 5 [20] On 11 August 2022, a copy of the EPOA was filed in the Tribunal.11 KR did not however at any time seek to have her appointment as administrator reviewed, nor did she seek leave to withdraw as the appointed administrator. [21] On 9 September 2022, KR applied to this Tribunal for authorisation of a conflict transaction, namely the reimbursement of legal fees KR had incurred in the amount of $27,296.02. As it is expressed therein, these fees were incurred “on behalf of [BK] during the QCAT application for appointment.” Whilst not expressed on its face, within the body of the application document she also sought an order concerning an enduring document. KR asked that this Tribunal notes the existence thereof, whilst asserting that in her opinion the enduring document was valid. Whilst not expressed as such, as I understand it that application was a reference to the EPOA and the hearing was conducted on that basis.12 [22] On 27 September 2022, KR filed a bundle of copies of Tax Invoices addressed to her issued by a law firm.13 The first of these is dated 4 February 2021 with the first time entry thereon being that date recording the attendance as follows: Initial consultation … with [KR] re matters involving [BK]. [23] The last of these is dated 15 October 2021 with the final two substantive time entry thereon being 14 October 2021 recorded as follows:14 Attendance on your behalf at hearing to instruct counsel on your submissions to be re-appointed administrator. Attendance at decision of your matter where you were reappointed administrator of [BK]’s affairs. [24] The total of all those invoices is $ 27,296.02. Within that bundle of Tax Invoices there is also a Statement of Account dated 28 June 2022. It does not include an entry for the first tax invoice dated 4 February 2021, but does include an entry for all other invoices. In respect of all other invoices it records payment of them having been received by the law firm. There is no equivalent statement or a receipt for payment of the first tax invoice of 4 February 2021.15 [25] It is against this list of facts and circumstances that the hearing before me proceeded. A Preliminary Issue [26] Before the hearing properly got underway, a preliminary issue needed to be dealt with. Given the lack of clarity in KR’s application document as filed on 9 September 2022 11 H 40. Curiously, that document is signed by KR on 12 July 2022 purporting to accept the appointment before it was made by BK. I will return to this later in these reasons. 12 H 41. 13 F 31. 14 The entry for 15 October 2021 appears to be a catch all entry of time, effectively being a ‘care and consideration’ entry, similar entries appearing as the last entry on the other invoices. 15 I do not draw a conclusion that this first invoice has not been paid. To the contrary, I have no reason to consider that it was not paid. In addition to the bundle of Tax Invoices filed, there is also a copy of a letter from the law firm to KR dated 28 June 2022 on the file, such appearing to be part of Doc F 29. It refers to the provision of copies of the invoices. It does not indicate anything therein as to any of the invoices being unpaid, thus I draw the inference that they were all paid. I also note that the February 2021 invoice is noted in that letter as being charged under a miscellaneous file with a number different to the file number for the remaining invoices, thus explaining why it does not appear in the Statement of Account document. -- 5 of 20 -- 6 which was not expressed on its face to be an application for an order concerning an enduring document, the hearing was scheduled and a corresponding Notice of Hearing was issued.16 However that gave notice only of the application for authorisation of a conflict transaction. That is, notice was not given of the application concerning the EPOA. [27] Under s 118(1) of the GAA, at least seven (7) days before the hearing of the application that was to occur before me this Tribunal must have given notice of the hearing to BK. Subject only to certain exceptions found in s 118(3) of the GAA Act, none of which apply in the present circumstances, a failure to have complied with the requirement to give notice to BK invalidates the hearing and the Tribunal’s decision about an application. [28] That provision is not directory, rather it is mandatory. Moreover, it requires not merely notice of a hearing, but notice of a hearing of a particular application. Given that the notice as issued did not include a reference to the application concerning the EPOA, the GAA had not been complied with, thus giving rise to the invalidity of the hearing should it have continued in terms of the application concerning the EPOA. [29] There are however two further provisions of the GAA Act that were operable so as to enable that application to be dealt with in the hearing together with the application for approval of conflict transaction. Under s 118(4), the requisite notice must be given in the way the Tribunal considered most appropriate having regard to the adult’s needs. Under s118(6)(b), as the convened Tribunal I was empowered to reduce the time stated in s 118(1). [30] I raised this with BK at the start of the hearing. I informed her that the application had been made and it was my intention to hear the application concerning the EPOA together with the application for the approval of a conflict transaction. At the same time I informed her that I proposed reducing the time for giving of such notice to the start of the hearing. In my opinion, as provided for by s 118(4), this was the most appropriate having regard to BK’s needs to have the matters raised on the applications resolved together and expeditiously. The alternative was to split the two applications across two hearings, or to adjourn the hearing of the application for approval of a conflict transaction to a future date pending notice of hearing of the application concerning the EPOA being given. [31] Whilst I was left with the impression that she did not fully understand the ramifications under the Act which I was explaining to her, and the process which I was engaging to give her this notice, in my opinion this was effective as giving her notice of the hearing and whilst she may not have understood that notice, as provided for under s118(5) of the GAA Act it did not affect its validity. [32] Accordingly I gave a direction consistent with s 118(6) of the GAA Act reducing the relevant time to the start of the hearing. An order will be made reflecting that direction. The Issues [33] There are only two issue arising on the applications and the material before me. They can be succinctly put as follows: 16 H 46. -- 6 of 20 -- 7 (a) Is the EPOA valid, and if the answer to that is yes, what is the effect on the appointment of the administrator? (b) Is the administrator, or the attorney if the EPOA is valid, entitled to be reimbursed $27,296.02 for legal fees she has incurred – i.e. should the conflict transaction be approved? [34] I will deal with these each in turn. The validity of the EPOA, and if valid the effect on the appointment of the administrator Relevant Law [35] This issue is to be determined under two pieces of legislation. The question of validity of the EPOA is answered by reference to the POA Act. The remainder of it is dealt with under the GAA. As is relevant in this proceeding, these two pieces of legislation are to be read in conjunction,17 but if there is an inconsistency between the GAA Act and the POA Act, the GAA Act prevails.18 [36] Under s 41(1) of the POA Act, BK was entitled to make the EPOA only if she was, at the time, capable of doing so freely and voluntarily, and that she understood the nature and effect of the EPOA. [37] Under s 41(2) of the POA Act, for BK to have held that level of understanding, it must be shown that she understood the following matters: (a) she may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; (b) when the power begins; (c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; (d) she may revoke the enduring power of attorney at any time she is capable of making an enduring power of attorney giving the same power; (e) the power she has given continues even if she becomes a person who has impaired capacity; (f) at any time she is not capable of revoking the enduring power of attorney, she is unable to effectively oversee the use of the power. [38] That is, it is a matter of capacity, which under the General Principles as described in POA Act BK is presumed to have.19 However, such is a rebuttal presumption.20 17 GAA Act s 8; POA Act s 6A. 18 POA Act s 6A(4). 19 POA Act s6C – General Principle 1. 20 POA Act s 111A(1). -- 7 of 20 -- 8 [39] Under s70 of the POA Act, given the appointment of an administrator under the GAA Act for BK, an attorney for BK may exercise power only to the extent authorised by this Tribunal.21 [40] Under s110 of the POA Act, it was permissible for KR to apply to this Tribunal for an order about the EPOA.22 Under s113 of the POA Act, this Tribunal may in turn decide the validity of the EPOA, and inter-alia may declare it to be invalid if satisfied BK did not have the capacity necessary to make it, or for another reason, for example that she was induced to make it. Under s 114 of the POA Act, if this Tribunal declares the EPOA invalid, the document is void from the start. [41] The remainder of this issue then turns on the operation of the GAA Act. [42] Under s 9 of the GAA Act, it is noted that both the GAA Act and the POA Act authorise the exercise of power for a matter for an adult with impaired capacity for the matter. Depending on the type of matter involved, this may be done, as is relevant in these proceedings, on a formal basis by one (1) of the following: (a) An attorney for financial matters appointed by the adult under an enduring power of attorney under the POA Act; (b) An administrator appointed under the GAA Act. [43] Similar to the operation of s 110 and s 113 of the POA Act referred to earlier, under s 81(1)(d) and s82(2) of the GAA Act, this Tribunal may make orders in relation to, as is relevant in these proceedings, administrators, attorneys and enduring documents. Evidence & Submissions [44] On 3 November 2022, KR was directed by this Tribunal to provide a written submission to this Tribunal on her application for approval of a conflict transaction. I will return to this later when discussing the question as to whether the conflict transaction should be approved. It suffices to say for present purposes that whilst written submissions were received in the names of KR and BK, neither made any submission about the EPOA. [45] As I mentioned earlier, a copy of the EPOA was filed with the Tribunal. There is nothing remarkable as to its content other than, as I have noted it earlier in a Footnote herein, it records KR signing as accepting attorney the day prior to BK signing so as to give the power to KR. 21 I pause here to note that there are provisions under s23 of the GAA Act that provide for the suspension of the powers of an administrator upon an enduring document, or a purported enduring document, being discovered, and upon being advised of the discovery of same for this Tribunal to review the appointment of the administrator. However these provisions do not apply in these proceedings given that such are only applicable in the circumstance that the Tribunal appoints an administrator without knowledge of the existence of an enduring document, thus requiring the creation of the enduring power to have predated the appointment of the administrator. This is not the current circumstance given that the purported EPOA was created during the period in which KR’s appointment as administrator was current. 22 Under POA s109A, this Tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court, thus any references in the Act to the Court relative to enduring documents may be read as being a reference to this Tribunal. Under s 82(2) of the GAA Act, this Tribunal has concurrent jurisdiction with the Court for enduring documents and attorneys under enduring documents. -- 8 of 20 -- 9 [46] The document also contains, properly so, a Witness Certificate recording the document being signed by BK in the presence of a Justice of the Peace, namely a Mr Scuderi. In signing that Certificate Mr Scuderi declared that, at the time BK signed the document, it appeared to him that BK had capacity to make the enduring power of attorney in the manner I have described it in paragraph [36] herein. There is however some confusion with the signing of it by Mr Scuderi. The Witness Certificate is dated as having been signed on 12 July 2022, but his signature as witness of what is said to be BK’s signing of the document is dated as having been signed on 13 July 2022. [47] Given the knowledge of Mr Scuderi being the witness to the EPOA, on 10 October 2022 a request was made of Mr Scuderi to inform the Tribunal as to what enquiries he made to satisfy himself as to BK’s capacity. He responded with a Statutory Declaration given by him on 14 October 2022.23 The content of that document is relatively short and it is convenient to extract the relevant parts therein which I do here: I recall that [BK] and her mother [KR] attended the Court office were I was performing voluntary JP duties. [KR] have me the unsigned document that had otherwise been completed. [BK] did not have a great deal to say at the time, but I asked her a number of questions, including do you know what you are doing in making this document. She said that her mother had ben looking after her all the time and I interpreted that as yes as she nodded as she said that. … I asked do you know that your mum put her name as carer would you agree? (sic). She said that she agreed to her mother being her carer and looking after her all the time. I asked do you want your mother to be given the power of attorney immediately. She said yes ! I explained to her that she could cancel her power or change it at any time whilst she was capable. She nodded yes. From her answers, i (sic) believed that she understood what I was talking about and had sufficient capacity to make that decision. [48] That of itself was insufficient for me to consider the question of BK’s capacity to have made the EPOA, thus at the hearing I raised the creation of the EPOA with both BK and KR. [49] BK’s explanation of the document was that it was for her Mum to look after her and help her, and that she signed it so as that could occur and because she did not want the PTQ involved. When I said to her that her Mum was already appointed at the time as her administrator, thus managing her finances and not the PTQ, and thus asked her again why sign the EPOA, she said it was because she did not want the PTQ to come back in. 23 H 42. -- 9 of 20 -- 10 [50] When I pressed the point with BK as to why sign an EPOA when an administrator is already appointed, her answer was simply that she had discussed it with her Mum. [51] I then asked her to explain her understanding of what the giving of the EPOA meant. She was not able to do so in any meaningful way, simply saying that it meant her Mum can look after everything and manage it. When I asked her what she knew about the EPOA and what she may be able to do with it in the future, she did not give any answer. [52] I then asked KR as to why the creation of the EPOA came about, and in particular discussed with KR the question of BK’s capacity to give her power of attorney on an enduring basis. Her responses can be readily summarised be these few points: (a) When the PTQ was appointed there were issues concerning funding; (b) She agreed that BK did not have capacity to make any decisions concerning financial matters, but said that at the first hearing BK told the Tribunal that she wanted her mum to look after everything; (c) She believed BK had capacity to give the EPOA but said that BK did not understand big words and that she might not understand the meaning of ‘enduring’; and (d) BK has doctors that say she can make decisions. Consideration of the Issue [53] In all respects the evidence and submissions before me is entirely insufficient to establish that BK had capacity to give the EPOA. It does not show me that BK had the requisite level of understanding as required under s 41(2) of the POA Act. [54] The testing of that understanding by Mr Scuderi, being the question and answer process he engaged in with BK, was entirely inadequate. Moreover, whilst he stated he ultimately held the belief that BK had an understanding and thus capacity, it appears to me that he got to that conclusion based on responses from BK that were in most instances nothing more than a nod of her head, such being inadequate to be able to know with clarity that BK understood the relevant issue. In my opinion there was simply no testing by Mr Scuderi from which he could reach any level of satisfaction beyond nil that BK knew what it was she was engaging in when purporting to give her power of attorney to her mother. In my opinion he should have concluded that she did not have capacity. The absence of her capacity was shown to me from the responses I received from BK when I engaged with her in questions during the hearing. [55] As to the assertion by KR that BK has doctors who say she has capacity, I note there is a report of Dr JC on file dated 13 April 2021 in which the Doctor opines that BK has the requisite level of understanding in terms of giving an enduring power of attorney.24 However that report is bare in its detail. It does not contain any information to indicate to a reader of that report the premise upon which the Doctor formed that opinion. As such it carries little to no weight on its own. It must be considered in conjunction with other evidence, such which was drawn from the statement by Mr 24 M 001 – see answers to Q 8.2 -- 10 of 20 -- 11 Scuderi and the engagement I had directly with BK during the hearing, as well as the responses to the few questions I posed of KR. [56] On hearing BK’s responses to my questions and the issues I raised with her, and then later hearing from KR as to why the EPOA came about, I was left with the impression that the creation of the EPOA was something generated by KR which BK simply went along with absent any understanding of its nature and effect. As Mr Scuderi stated in his declaration, it was KR that presented the document to him completed other than being signed.25 There was no indication in any of the evidence before me, written or oral, that BK had been engaged in the completion of the EPOA document in any way other than when she met with Mr Scuderi. In particular, there was no independent evidence of BK coming to her own conclusions as to the need for, or benefits of, giving her power of attorney to her mother. [57] In all respects, it seemed to me that KR embarked on the course of having the EPOA created in an effort to put a block in place to the spectre of the PTQ being reappointed at some time in the future, such which had occurred in the past and such which could readily occur again in the future given this Tribunal’s oversight role in the conduct of administrators appointed under the GAA Act. It also seemed to me that KR then simply took BK along with her down that path. There was no demonstration of BK’s requisite level of understanding that would satisfy the requirements of s41(2) of the POA Act, and moreover there was no demonstration that BK was capable at the time of making the EPOA freely and voluntarily. [58] Accordingly, my finding is that BK did not have capacity to make the EPOA when she signed it on 13 July 2022. It thus follows that under s113 of the POA Act and s82(2) of the GAA Act I declare it to be invalid. There will be an order to that effect. Should the conflict transaction be approved ? Relevant Law [59] Once again this issues arises for consideration under both the GAA Act and the POA Act, as each piece of legislation provides for governance on external decisions makers in terms of conflict transactions. The provisions are almost identical. However, given my finding that the EPOA is invalid, I need not consider this issue in terms of the POA Act as there is no attorney under the POA Act to seek approval of a conflict transaction. [60] Under s 37(1) of the GAA Act, as administrator KR may enter into a conflict transaction only if this Tribunal has authorised the transaction, conflict transactions of that type, or conflict transactions generally,26 such authorisation being given under s 152 of the GAA Act. [61] Under s 37(2) of the GAA Act, a conflict transaction is one in which there may be a conflict, or which results in a conflict, between – (a) The duty of KR towards BK; and 25 I pause here to once again note the unexplained inconsistency in the dates of signing. Noting Mr Scuderi’s comment that it was KR that gave him the document, it left me with the thought that maybe KR had already signed the document leaving only BK to sign it in front of Mr Scuderi, although I make no definitive finding on this point. 26 GAA Act s 37(1). -- 11 of 20 -- 12 (b) Either – (i) The interests of KR or a person in close personal or business relationship with KR; or (ii) Another duty of KR. [62] Subject only to one restriction, this Tribunal has unfettered discretion to determine whether to authorise the transaction. That restriction is that, as this is a power that the Tribunal is exercising, the General Principles are to be applied.27 In doing so, there must be a balance. That is, while there must be encouragement of self-reliance and substituted judgement, the Tribunal must act consistent with the adult’s proper care and protection, such including protection of financial interests.28 [63] The Tribunal must also consider the nature of the transaction, and what the adult’s views and wishes are in deciding whether the conflict transaction should be approved.29 [64] The Tribunal may also consider: (a) if the transaction was made for the benefit of the adult (whether wholly or in part) and the level of benefit to the administrator;30 (b) if the transaction was entered into in good faith and the administrator was mindful of the best interests of the adult;31 (c) the quality of relationship between the adult and the administrator;32 (d) whether the transaction is shown to be a prudent financial decision and appropriate to the adult’s personal and financial circumstances, considering the administrator’s own contributions.33 In that situation, there should be a solid financial basis for the transaction, as a conflict transaction should not be detrimental to the adult’s financial position unless there is a very good reason to otherwise act;34 (e) if the conflict is with regards to costs, whether it was in the adult’s interests to allow the charges or if they were unnecessary.35 [65] Finally, evidence must also be led to demonstrate the benefit to the adult or the necessity to protect interests, and what the adult’s views and wishes are in relation to the transaction.36 27 MTJ [2014] QCAT 195, [5]. 28 HM [2012] QCAT 421, [7]. 29 Re FAA [2008] QGAAT 3, [107]–[114]; Re CMB [2004] QGAAT 20, [26]. 30 PWJ [2013] QCAT 368, [106]; Re BAB [2007] QGAAT 19. 31 Consider for example KNF [2017] QCAT 144, [39]; AMFE [2012] QCAT 301, [13] (even where the decision was unwise due to being based on bad legal advice). 32 KNF [2017] QCAT 144, [39]. 33 WCV [2016] QCAT 114, [4]; JLG [2019] QCAT 277, [14]. 34 Re BAB [2007] QGAAT 19; JLG [2019] QCAT 277, [14]. 35 SMD (No 2) [2015] QCAT 190, [108]. 36 Consider VJE [2011] QCAT 111, [9], [13]-[15]. -- 12 of 20 -- 13 Evidence & Submissions [66] As I noted it earlier in paragraph [44], on 3 November 2022 KR was directed to provide a written submission on her application. I thus now return to that Direction and the response to it. [67] The Direction was given in terms of submissions being required on “legal costs incurred by [KR] in the proceeding before the tribunal in which the appointment of an administrator was reviewed.” A corresponding order was also made providing for any other person who wished to make a written submission to do so.37 [68] In response to that Direction, two written submissions were received by the Tribunal. One is said to be from BK, the other is shown as having come from KR. They are both short. It is convenient to set them out in full: (a) From KR:38 I have incurred expenses associated with [BK]’s Public Trustee affairs. As these costs are [BK]’s responsibility, I am seeking reimbursement of these funds which total $27,296.02. [BK] has been aware of and involved in decisions regarding these costs, and attended the solicitor with me to discuss the legal fees when the fees were incurred. [BK] is supportive of these funds being returned to me, as was the understanding when the costs were incurred on her behalf. This ongoing issue has caused significant stress to both myself and [BK], and is aggravating [BK]’s medical conditions as a result. I would like these funds to be reimbursed from the term deposit when the term deposit is up for renewal. Taking funds from term deposit will not have an adverse effect on [BK]’s everyday living. (b) From BK:39 My name is [BK]. I would like for the money that my mum [KR] has paid in legal fees to be given back to her. My mum paid this money to get my QCAT guardianship at my request and I would like to pay mum back. [69] As I noted it in paragraphs [22] to [24] herein, copies of Tax Invoices from the law firm engaged were also provided. These invoices show individual entries by date and description, but not duration of individual charge, of the attendances provided by the law firm.40 [70] That was the extent of the written evidence. [71] During the hearing I heard from both BK and KR on this issue. 37 H 43. 38 H 45. This is in the form of a letter addressed to QCAT “To whom it may concern” dated 21 November 2022.This was sent to the Tribunal Registry under cover of an e-mail of the same date from ADH, shown thereon as being - Director LIFE UR WAY, whom I understand to be a service provider to BK. 39 H 44. The submission is in the form of a letter addressed “To who (sic) it may concern” and is undated. This was sent to under cover of an e-mail from ADH dated 24 November 2022, separate from the KR submission. 40 The $ amounts for each individual attendances are not shown on the invoice although I column appears thereon for same. As I understand it this information has been redacted. -- 13 of 20 -- 14 [72] Initially I had a discussion with BK to ascertain her understanding of the purpose of this proceeding and the hearing that day. My first question of her was “why are we here?” to which she replied “So Mum can get money back”. In response to my question as to what money she was talking about, she said it was when her Mum went to court last year after she went to the PTQ. [73] I then asked her why her Mum needed lawyers. Her response was “To get my money back from the PTQ”. Finally I asked her whether she ever discussed with her Mum about getting lawyers, she said yes and when I asked her when she said she could not remember. When I then asked here why she had that discussion she said she did not know. [74] After then discussing the EPOA with her, and having a discussion with KR on both the EPOA and this issue, I returned to this issue once more with BK. On that second occasion she had little more to say, simply asserting that she wanted her Mum to look after everything. [75] In the discussion I had with KR, the following are the notable points arising therefrom: (a) She acknowledged that the first consultation with the law firm occurred on 4 February 2021, and that it was on 11 October 2021 that she applied for leave to be represented in the review hearing. (b) She stated that she applied for leave to be represented on BK’s behalf, although acknowledging that her application for review was not expressed as such, nor was the application for leave to be represented. (c) When I asked who it was for whom the lawyer was acting, particularly in the hearing on 14 October 2021, she said it was BK. (d) When I asked her if she had a Fee Agreement / Costs Agreement with the lawyer that showed the client as being BK, noting that no such document had been filed in this Tribunal, she said she could not recall if one was given, nor can she recall if she holds a copy of such a document. (e) She acknowledged that throughout the period of engagement of the lawyer the PTQ was the appointed administrator, however at no time did she discuss with the PTQ the need for a lawyer to be engaged for BK for any reason. (f) When I asked her why she thought it was necessary to engage a lawyer in terms of dealing with issues in this Tribunal concerning the PTQ, and simply not just come back to the Tribunal to raise the relevant issues that ultimately brought about her Application for Review, she said that she thought the Tribunal would not change the appointment of the administrator. (g) In conclusion of that discussion I noted to KR that her application for leave to be represented identified as one reason why she sought representation was that “the issues are complex”, asking her to explain to me what the complex issues were. Her response was that there was an issue of ‘real property’ as the PTQ was trying to force her to sign over property she held in trust for BK so as to take further fees, and that BK wanted to get her money back from the PTQ and that is what BK told the lawyers. [76] Finally and for completeness I should also note the following. In addition to hearing from BK and KR, I also heard briefly from VG whom I was informed was BK’s -- 14 of 20 -- 15 grandmother, and ADH whom, as I noted in a Footnote earlier in these reasons, I understood to be a Director of LIFE UR WAY, a service provider to BK. [77] The contribution from VG was in the majority of little assistance to me, although she did say as a general statement that BK does not know nor understand the circumstances she finds herself in, which I understood to be in reference to the issues being dealt with in the hearing. [78] Similarly, the majority of that which ADH had to say was of little assistance to me. ADH did however make two statements that were directly relevant to the issue I had to decide and which I consider to be worthy of observation. She informed me that from her own observations she is of the view that BK’s relationship with her mother is good, and that if today her wishes were different to her mother’s then BK would express that. She also referred to the letter provided by BK to this Tribunal, stating that this letter was done by BK “at her own instigation”. However there was an unexplained confusion in this statement. ADH referred to a letter dated 30 September 2021, although as I understood her comments she was referring to BK’s submission of 24 November 2022 to which I referred in paragraph [68](b) earlier. Consideration of the Issue [79] From the outset it must be said that the quantum of legal fees incurred by KR is, in my opinion, quite astounding for the issues involved. It is exorbitant. I am at a loss to comprehend what was done that required such an amount of time for the lawyer’s attendances so as to deal with the issues at hand. [80] I am not in any way suggesting that the work for which the accounts was raised was not done as it is recorded on the Tax Invoices from the law firm. I am sure it was. But I am unable to be able to reach an understanding that is was all reasonably necessary for the purposes of what KR says she engaged the law firm for. Concerningly, there is no evidence provided by KR to show that the costs were reasonable, nor that they were reasonably incurred.41 [81] As to the assertion by KR that she engaged the law firm on BK’s behalf, I do not accept that. Quite clearly these costs were incurred by KR in her own capacity. She was not the appointed administrator at the time and so could not have engaged the lawyers in that capacity and thus effectively on BK’s behalf, nor is there any evidence that she retained the lawyers otherwise on BK’s behalf. [82] If KR found herself struggling to be able to cope by dealing herself with the issues that she felt BK was facing, and so needed assistance on BK’s behalf, KR could readily have sought that assistance from one of the many advocacy groups, some of which are law firms, that provide such assistance on a pro-bono basis.42 Yet, she did not and chose, for an entirely unexplained reason to engage the law firm and provide it with instructions that seemingly then has given rise to the work it done and the fees it charged. [83] That being so, given she is now the administrator any seeks the reimbursement of those fees from BK’s funds on the basis she asserts they were incurred on BK’s behalf such, or even if she asserted that the reimbursement was to be gift that she considered, 41 Consider SMD (No 2) [2015] QCAT 190, [108]. 42 For example – ADA Law, Rights in Action, Independent Advocacy NQ, the Cairns Community Legal Service. -- 15 of 20 -- 16 using the principles of structured decision making, BK would make, it would be a conflict transaction such which requires the approval from this Tribunal that KR now seeks. This is because it falls squarely between the duty KR has towards BK as her administrator and KR’s own interests. That then brings into play the operation of the General Principles under the GAA Act, primarily the need to seek BK’s views, wishes and preferences, and to provide for the protection of BK’s financial interests.43 [84] It also requires consideration of the nature of the transaction in issue, evidence that has been led to demonstrate benefit to BK or the necessity to protect her interests, as well as BK’s view and wishes. Other relevant consideration are those which I have noted in paragraph [64] herein. [85] Given that the effective transaction, being the engagement of and payment for legal services, has already occurred and what is being sought now is an approval for reimbursement, in my opinion these considerations should be viewed in the following way: (a) Was the engagement of the legal services for the benefit of BK, or more for the benefit of KR?; (b) Did KR engage the legal services, and pay for same, in good faith mindful of the best interests of BK?; (c) What is the quality of the relationship between BK and KR? (d) Was the engagement of the legal services, and the resulting need for payment of same, a prudent financial decision and appropriate to BK’s personal and financial circumstances considering the extent to which KR was already involved? [86] On my review of the documentary material that is filed in this Tribunal and having heard from BK, KR, VG and ADH in the hearing, in my opinion the second and third of those questions can readily be answered in the affirmative. However, in my opinion such is not the case for the first and fourth questions. That opinion is formed on the following bases. [87] I have read the ‘Applicant’s Submissions’ provided for the review hearing in October 2021 filed on or about 23 June 2021. With the greatest of respect to KR and her legal advisers at the time, I am unable to discern from those submissions issues that were ‘complex’ such as to have required the extent of involvement of a lawyer for KR and/or BK that is reflected in the record of attendances as shown in the Tax Invoices from the law firm. It seems to me that the issues raised therein concerning the conduct of the PTQ were something that could have been readily discussed by KR herself with the Tribunal in a review hearing that would have involved the PTQ, on which the PTQ could have responded, with KR being afforded the opportunity of reply, and then the Tribunal deciding. As I noted it earlier, this could also have been done with the assistance of an advocate from one of the advocacy groups who could have spoken on behalf of KR and/or BK quite adequately. Once again with the greatest of respect to KR and her legal advisors, I was unable to ascertain from the material the need for solicitor and counsel to be involved to the extent they were. 43 See General Principles 8 and 9. -- 16 of 20 -- 17 [88] In the hearing before me KR stated that one of the issues to be dealt with that gave rise to her review application was that the PTQ was trying to force the signing over of land she held on trust for BK. However there is nothing in the submission that suggests this to so, moreover, to be a complex issue requiring legal argument. To the contrary, as was stated in that submission: [T]he Public Trustee, as it is entitled to do, is seeking the transfer of property comprising vacant land at [address given] from the application who holds it on trust for the adult to it.44 [89] As this submission was made on KR’s behalf, it is difficult to understand why she is now saying the PTQ was forcing her to transfer the property. By this submission she acknowledges the PTQ was entitled to seek the transfer. [90] I have also had the benefit of reading the transcript of the hearing on 14 October 2021, that hearing not presided over by me. There are a few aspects of that hearing and that which was said during it that seem to me directly relevant. [91] First, I particularly note that much of what was discussed between the learned Member was with KR herself, not the lawyers present whom announced their appearances as “solicitor for the applicant” and “counsel for the applicant”, not as appearing for the adult,45 although having said that I do not overlook the extent of discussion between the Member and the Counsel for KR. [92] Second, in terms of the apparent complex legal issue of the transfer of the land, as I understand the discussion which ensued with the Member during that hearing, the issue was that KR who was the protagonist, she refusing to agree to the transfer and so the PTQ was considering what further steps should / could be taken.46 [93] It is also apparent that what was discussed between KR’s Counsel and the learned Member was to explain that orders existed in other proceedings concerning family law matters between KR and BK’s father who were both trustees of the land in question, and as part of the settlement between them 100% of the legal title as trustee over that property was to be given to KR but that there was a refusal by the father to do so.47 [94] Third, it is also apparent that an issue which was raised concerned the terms of the trust on which the land was held. KR was suggesting she wished to build a residence on that land for BK which she considered the PTQ would not do.48 However, as the representative of the PTQ in that hearing pointed out to the learned Member, the terms of the trust do not go so far as to permit that to be done by the trustee. Moreover, the PTQ’s representative informed the Member that the terms of the trust deed did not contain any restriction requiring the trustee to hold it for a certain period of time or until the occurrence of a certain event, and that BL was entitled to and could request transfer at any time.49 Associated with this were issue identified by the PTQ’s representative in the hearing as to limitations on the type of grants and duty concessions that BK could obtain should ultimately BK wanted to have something 44 See H 27 – para 2(a). 45 T 1-2 – Lines 8 and 12. 46 T 1-6 – Lines 33 to 41. 47 T 1-7 – Line 37 to 39; T 1-8 – Line 3 to 10. 48 See KR’s written submission H 27 – para 4. 49 T 1-10. -- 17 of 20 -- 18 built on the land whilst it was still held in trust, something that would have to be addressed and considered by the administrator appointed under the GAA.50 [95] Fourth, the discussion which then subsequently ensued between the learned Member and at various times either KR or her Counsel concerned future planning and decisions that would at some time need to be made in terms of the land, and associated issues arising from an inheritance received by BK.51 [96] On my reading and understanding of that which was discussed in that hearing, whilst I agree it is complex in terms of there being issues of real property held on trust, such were not complex in terms of whether KR should be the relevant appointee as administrator. As I read the transcript and the written submissions, the relevant issue was more to do with the question of compatibility between BK and the administrator, such dealing with concerns about the relationship between BK and the PTQ in contrast to the relationship between BK and KR and which would be better overall for BK.52 [97] In all respects it seems to me that to the extent there were complex legal issues for KR at that time they were those for KR in her capacity as trustee of the trust which held the land, and that she was confusing these with the issues that arose for the review application. In the absence of a Costs Agreement / Fee Agreement having been provided, nor anything other documentation that informs me otherwise, I am unable to discern the ambit of KR’s instructions to her lawyer such that it could be said that were limited to one or the other or covered both. Thus I am left to draw an inference in that regard from that which is before me. [98] The inference I draw is that the essence of the instructions KR gave her lawyers was that it was the former, that being issues concerning her as trustee of a trust, not as administrator. I also infer it is that which consumed the majority of the attendances with the lawyers. I also draw the inference that the lawyers were engaged by KR in her own capacity and not on behalf of BK. The issues as they were raised in the hearing of 14 October 2021 strongly that to be the case. [99] Moreover, in my opinion this is all readily able to be inferred from the content of the written submissions filed on or about 23 June 2021 and many of the entries in the law firm’s Tax Invoices of the various attendances. In regard to the latter, the following is noted from my reading of those tax invoices: (a) All invoices are addressed to KR; (b) Many entries refer to ‘client’, in particular the entry of 8 February 2021 in terms of correspondence with the PTQ as to the firm’s involvement on behalf of the ‘client’ and the corresponding entry of 9 February 2021 which refer to communications from the PTQ acknowledging the law firm’s involvement on behalf of KR; (c) Attendance on searches over the relevant real property; (d) Entries of 22 and 23 February 2021 concerning engagement of Counsel and communications with KR as to her approval for engagement of Counsel; 50 T 1-11. 51 T 1-11 to T 1-17. 52 I note that this issue seems to have loomed fairly large in the learned Member’s reasons for ultimately changing the appointment of the administrator back to KR. See T 1-25 – Lines 5 to 25. -- 18 of 20 -- 19 (e) An entry on 8 March 2021 recording instructions being sought from KR; (f) Various references in the entries to BK but not being expressed to suggest BK was the client; (g) The entry of 28 April 2021 as to a telephone call with the PTQ’s solicitor in which Supreme Court proceedings were foreshadowed seeking relief that the property be transferred back to BK. [100] I should also say something about the letter/submission from BK wherein it is said she stated she wanted to pay her Mum back in terms of the legal fees. I have a few concerns about this letter and thus the weight that can be attributed to it as properly expressing BK views and preferences. [101] Firstly, there is the statement by ADH as to BK providing a letter of her own volition. This does not help me as it is entirely unclear to me as to what letter ADH was referring to. [102] Secondly, the letter said to be from BK states that her Mum “paid this money to get my QCAT guardianship at my request”, such a statement being entirely inconsistent with the actual circumstances of it being a review application, such indicating to me a lack of understanding by BK as to actually what the law firm was engaged to attend to. [103] That lack of understanding was also demonstrated in the opening discussion I had with BK as I have summarised it earlier in these reasons as to what her understanding was of the purpose of this proceeding, the hearing, and the engagement of lawyers. That being so, I am unable to accept as being correct the statement made by KR that BK told the lawyers engaged that she wanted to get money back from the PTQ. [104] In my opinion that lack of understanding is also consistent with the fact that there is an administrator appointed on a plenary basis for BK, such which only could be the case if BK lacked capacity for all financial matters. Such could only occur in the circumstance that BK was unable to understand the nature and effect of decision required to be made concerning her financial circumstances, or may not be able to freely and voluntarily make those decisions. In such a circumstance it is difficult to reach a conclusion that BK thus understood the nature and effect of her decision to reimburse her Mum for the engagement of lawyers, nor was able to inform the lawyers in the manner suggested by KR. [105] The matter to be decided here is whether the transaction should be approved to enable KR to be reimbursed the legal fees incurred. In my opinion that requires something more than merely a preference that KR should get her money back, but rather it should entail an understanding of why that should be so and the reason for which the expense was originally incurred. As Henry J relatively recently noted when considering the application of the equivalent to the GAA Act General Principal 8 under the POA Act when considering the question of approval of a conflict transaction: Views, wishes or preferences deriving from deficient or erroneous comprehension are irrelevant.53 [106] Considering this all of this, my engagement with her that suggested to me BK lacked any proper understanding of why the lawyers had been engaged, and thus why the 53 BP & PM & Ors [2022] QSC 268, [40]. -- 19 of 20 -- 20 expense had been incurred that she now says she wants to pay her Mum back for. Similar to the issue of the EPOA I am left with the impression that BK may have simply followed her mother’s advice/suggestion to provide the letter and make the relevant statements in this hearing. I do not give the submissions from BK any weight. [107] Finally, there is an entire absence of any evidence that has been led to show the benefit to BK, or the necessity to protect her interests, that has been obtained by engaging the law firm and incurring those legal expenses. Conclusion [108] For the reasons I have just given, I have reached these conclusions. [109] Whilst KR’s engagement of legal services was directed to being for BK’s benefit, such being consistent with my earlier expressed views that such was entered into in good faith with KR mindful of BK’s best interests, the engagement was more for the benefit of KR in her role as trustee over the land in question. [110] To the extent the law firm was engaged and subsequently attended on the matters presumably raised by KR in her instructions to the firm, I am unable to conclude that overall it was a prudent financial decision and one appropriate to BK’s personal financial circumstances. As I have earlier indicated, it seems to me that the relevant key issues were not so complex that BK could not have dealt with them herself directly with the Tribunal, much of which she actually did in the hearing on 14 October 2021. [111] For those reasons there is not a solid financial basis for the transaction. [112] Given that which is involved here is legal costs, the charges incurred were not only excessive but unnecessary in terms of the issue more properly the subject of what became the review hearing, and moreover it seems that the real reason for these costs being incurred is that arising out of the family relationship and the dynamics arising from the family law dispute between KR and BK’s father associated with the existence of the trust in which the property was held and the inheritance BK had. [113] In all respects I do not consider that the transaction KR seeks approval for, namely the reimbursement of the legal fees incurred, would be a transaction that would be in accordance with the General Principles, namely GP 9 being the exercise of a power in a way that would promote and safeguard BK’s rights, interests and opportunities, and be least restrictive to the same. [114] That being said, I make this further short observation although do so not in any way expressing an opinion or finding on it. As trustee KR may be entitled to be reimbursed from the trust for expenses incurred as trustee, such which might include some or all of the legal fees she has incurred. But this is something that does not fall within the purview of this Tribunal or the ambit of the application I am determining. [115] For all these reasons, the proper outcome is that KR’s application for approval of a conflict transaction should be dismissed. There will be an order to that effect. -- 20 of 20 --