ADG [2022] QCAT 221

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ADG [2022] QCAT 221 PARTIES: In an application about matters concerning ADG APPLICATION NO: GAA5364-22 MATTER TYPE: Guardianship and administration matters for adults DATE OF ORDER: 9 June 2022 DATE OF REASONS: 21 June 2022 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The application by DTA for the appointment of an administrator for ADG under an interim order is dismissed. CATCHWORDS: GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where daughter wishes to become administrator – where other persons already appointed as financial attorneys – whether immediate risk – whether interim administrator should be appointed Guardianship and Administration Act 2000 (Qld), s 129(1) Powers of Attorney Act 1998 (Qld), ss 34, 82(1), 109A APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] For privacy reasons, certain people will be referred to by pseudonyms in these reasons: (a) the adult whom the application concerns will be referred to as ADG; (b) his friend will be referred to as GZB; (c) his sister will be referred to as STA; and (d) his daughter will be referred to as DTA. [2] On 27 May 2022 DTA filed an application in the tribunal seeking the appointment of an interim administrator for ADG, until the determination of her earlier application -- 1 of 3 -- 2 for the appointment of an administrator. In that earlier application, filed in March 2022, DTA proposes that she be appointed administrator. [3] On 9 June 2022 I dismissed the interim application. DTA has requested reasons, which I now provide. Background [4] On 16 February 2022 ADG made an enduring power of attorney in New South Wales appointing GZB and STA, jointly and severally, as his attorneys for financial matters. The attorneys’ powers were to commence when they accepted appointment by signing the document. GZB signed to indicate his acceptance on 16 February 2022, and STA similarly signed on 20 February 2022. [5] An enduring document made in another state that complies with the requirements of that state is to be treated in Queensland as if it were made in Queensland.1 The February 2022 enduring document appears to comply with the New South Wales requirements. There is no suggestion that it does not. Accordingly, I consider it is effective in Queensland. [6] Since making the enduring document, ADG has moved to Toowoomba where he is living in an aged care facility. DTA also lives in Toowoomba. GZB lives on the Sunshine Coast, and STA lives in Canberra. [7] DTA has not yet provided any evidence specifically about ADG’s capacity for financial decision-making. However, letters written by Professor Susan Kurrle, a geriatrician in Sydney, indicate that ADG has Alzheimer's disease with declining function. [8] DTA advised in her substantive application in March 2022 that ADG had recently relocated to Queensland. She said her appointment as administrator would ‘make it easier long term and to be able to make decisions that are for the best for the adult knowing what the adult wants’.2 [9] By May 2022, however, when DTA filed her interim application, she insisted there is urgency. She said an interim appointment was needed so bills could be paid, and so that she could deal with Centrelink and Medicare on behalf of ADG. [10] A financial attorney has the same powers as an administrator under Queensland law, so the tribunal sought an explanation from DTA about why she was seeking appointment as an interim administrator when ADG already has financial attorneys. [11] DTA’s explanation included that the attorneys are ageing; GZB had been handling ADG’s banking very well to date but he wants DTA to take over financial management; and STA has indicated she is unable to continue as attorney. [12] STA told the tribunal by email on 8 June 2022 that she is no longer attorney for ADG. She has not provided any corroboration for this assertion but, in any event, I accept she is not presently acting as attorney. 1 Powers of Attorney Act 1998 (Qld) (‘POA Act’), s 34. 2 Document H1 on the tribunal’s file, page 10. -- 2 of 3 -- 3 [13] That is not the end of the matter, though, because the joint and several appointment of the attorneys means that GZB can continue to make decisions alone as attorney, even if he can no longer make decisions jointly with STA. [14] GZB told the tribunal by email on 8 June 2022 that he and STA are current attorneys for ADG; he and ADG have been very good friends for more than 50 years; he is currently looking after ADG’s banking; and that he had been suggesting to DTA for some time that she obtain ‘guardianship’.3 (I assume GZB means ‘administration’ as well as guardianship. In Queensland, a guardian makes personal decisions while an administrator makes financial decisions). GZB supports the idea of DTA becoming the decision-maker as he sees this as being in ADG’s best interests. This is because ADG’s dementia will worsen over time and ‘he needs a family member to be there in a legal capacity’.4 Legislative framework [15] An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.5 Clearly, then, an interim order cannot be made simply for the sake of convenience. Why was an interim administrator not appointed? [16] I am not satisfied that there is any immediate risk of harm to ADG. He has a financial attorney, GZB, who is available to act. GZB can pay bills, liaise with Centrelink and Medicare if required, and so on. [17] As I have mentioned, the tribunal does not yet have specific evidence about whether ADG lacks financial decision-making capacity. However, if ADG has lost that capacity, it is not open to GZB to simply relinquish the role of attorney. When an adult has impaired capacity, an attorney can resign only with leave of the Supreme Court or the tribunal.6 Unless an attorney applies for and is granted such leave, or their appointment as attorney is overtaken by the appointment of an administrator, the attorney is obliged to continue acting as attorney. Conclusion [18] In the absence of an immediate risk of harm to ADG, I decided to dismiss DTA’s interim application. 3 Document H7 on the tribunal’s file. 4 Ibid. 5 Guardianship and Administration Act 2000 (Qld) (‘G&A Act’), s 129(1). 6 POA Act, s 82(1), s 109A. -- 3 of 3 --