ADP [2021] QCAT 288

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ADP [2021] QCAT 288 PARTIES: In applications about matters concerning ADP APPLICATION NO/S: GAA15040-20 GAA15041-20 GAA15042-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 24 August 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kanowski ORDERS: The application by SNA and DLA for the appointment of a guardian for ADP is dismissed. The application by SNA and DLA for the appointment of an administrator for ADP is dismissed. The application for an order about an enduring power of attorney is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where applications for appointment of guardian and administrator – where health professional evidence indicates capacity – whether applications should be dismissed Guardianship and Administration Act 2000 (Qld), s 12, Schedule 4 Powers of Attorney Act 1998 (Qld), s 41 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 APPEARANCES & REPRESENTATION: Written submissions received only from DLA This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) -- 1 of 4 -- 2 REASONS FOR DECISION Introduction [1] ‘ADP’ is 87 years of age. He has two sons: ‘SNA’, whose partner is ‘DLA’, and ‘SNB’, whose wife is ‘DLB’. [2] ADP lives with SNB and DLB. [3] On 1 December 2020, SNA and DLA applied to the tribunal for a guardian and an administrator to be appointed for ADP. The application proposed the appointment of SNA and DLA as guardians and administrators. SNA and DLA contended that SNB and DLB were acting improperly toward ADP in many ways, including financial abuse, restriction of contact with relatives and friends, and threats to place him in aged care against his wishes. [4] ADP has made a series of enduring powers of attorney over time, including one on 6 November 2020 appointing SNA as his attorney and DLA as his successive attorney. He revoked this on 8 December 2020. On 5 January 2021 he made a new enduring power of attorney, appointing a friend, ‘MVS’, as his attorney. The solicitor who witnessed that enduring power of attorney made a detailed file note. This indicated that the solicitor had no doubt about ADP’s capacity to make the enduring power of attorney. [5] In addition to SNA and DLA’s applications, the tribunal initiated an application for an order about an enduring power of attorney. This was in case it became desirable for any orders to be made about the enduring power/s of attorney when the applications for the appointment of a guardian and of an administrator were decided. [6] The applications for the appointment of a guardian and of an administrator, and for orders about an enduring power of attorney, have not yet been heard. I have decided to dismiss the applications, without them proceeding to a hearing and determination. My reasons follow. Further background [7] An adult has capacity to make decisions about a matter if they are capable of understanding the nature and effect of decisions about the matter; of freely and voluntarily making decisions about the matter; and of communicating the decisions in some way.1 [8] An adult is presumed to have capacity for a matter.2 The presumption can, however, be rebutted. [9] A principal has capacity to make an enduring power of attorney if they can make it freely and voluntarily, and if they understand the nature and effect of the document.3 Certain topics which a principal needs to understand are set out in the POA Act.4 [10] A report by ADP’s general practitioner, Dr Adam Hall, dated 9 December 2020 indicated that ADP has a number of physical ailments, including impaired vision. There was no diagnosis of a condition such as dementia, but Dr Hall noted that in June 1 Guardianship and Administration Act 2000 (Qld) (‘G&A Act’), Schedule 4, definition of ‘capacity’. 2 Ibid, s 11B, General principle 1. 3 Powers of Attorney Act 1998 (Qld) (POA Act’), s 41(1). 4 Ibid, s 41(2). -- 2 of 4 -- 3 2020 ADP had been admitted to hospital with an episode of delirium secondary to certain physical ailments. Dr Hall considered that ADP had capacity to make an enduring power of attorney, and that he had capacity to make decisions in all personal and financial matters except for complex financial ones. Dr Hall said that he sensed that ADP was starting to struggle with financial decision-making, and he suspected that ADP no longer had full ability to manage his financial affairs without guidance and support. Dr Hall commented that ADP’s poor vision added to the difficulty. [11] In a follow-up letter dated 9 March 2021, however, Dr Hall said he had met with ADP again to further assess his capacity to make complex financial decisions. Dr Hall said he was now satisfied that ADP had demonstrated capacity for such decisions. [12] In the course of the proceedings before the tribunal, the tribunal directed ADP to undergo a full capacity assessment by a geriatrician. He did so, on 7 April 2021. The geriatrician, Dr Sanjay Gangadharan, provided a detailed report of the same date. Dr Gangadharan described ADP’s understanding of his financial affairs as excellent. Dr Gangadharan considered that ADP has capacity to make financial decisions, including complex ones. Dr Gangadharan also commented favourably on ADP’s understanding of issues relating to enduring powers of attorney. [13] On 17 June 2021, the tribunal made directions for active parties to make submissions by 15 July 2021 as to why the applications should not be dismissed in view of Dr Gangadharan’s assessment. The tribunal noted in the directions that the further conduct of the matter would then be considered by the tribunal, and that the tribunal may dismiss the applications without further notice. [14] The only submission received was from DLA. It is dated 13 July 2021. DLA indicates that she does not doubt Dr Gangadharan’s assessment. However, she remains concerned about the treatment of ADP by SNB and DLB, such as their recording of his phone calls, and how they will treat him in the future as his memory further declines. DLA also says that ADP’s current attorney, MVS, has very little to do with ADP or his affairs due to health issues in her family and ADP’s reluctance to bother her. DLA says that she and SNA have tried, unsuccessfully, to contact MVS. DLA concludes: ‘I request you assist further where legally possible, rather than dismiss’. [15] DLA’s comments about MVS’s involvement are broadly consistent with MVS’s account in an email to the tribunal dated 14 April 2021. MVS indicated that ADP is managing his own financial affairs, which she had discussed in some detail with him. MVS said she is confident that ADP remains, ‘at this stage, … very competent in managing his financial affairs’. MVS said she had arranged with ADP to meet regularly with him to ensure he is receiving quality care. She also said that ADP understands that he can contact her at any time if he has concerns about his finances or welfare. [16] I note that the enduring power of attorney appointing MVS gave her immediate power to make financial decisions for ADP. However, such an appointment does not preclude ADP and MVS reaching an agreement that, while he retains capacity to make his own financial decisions, he rather than she will make them. -- 3 of 4 -- 4 Should the applications be dismissed? [17] The tribunal may dismiss, prior to any substantive hearing, an application that is lacking in substance.5 [18] I regard the applications for the appointment of a guardian and of an administrator for ADP as lacking in substance, in view of the health professionals’ evidence that has emerged since the applications were filed. [19] The tribunal can appoint a guardian or an administrator only if a person has impaired capacity for a matter.6 ‘Impaired capacity’, for a person for a matter, means that the person does not have capacity for the matter.7 [20] The health professional evidence is now uniformly to the effect that ADP has capacity to make his own personal and financial decisions. This includes the assessment of a specialist geriatrician. [21] Accordingly, I consider that the applications for the appointment of a guardian and of an administrator have no prospect of success. The presumption of capacity would not be rebutted. The applications are lacking in substance. They should be dismissed, so that ADP and all other parties are not subjected to the stress and inconvenience of an unnecessary hearing. [22] The other application, relating to enduring power/s of attorney, was initiated by the tribunal in case some orders were required in conjunction with the main applications. As those main applications are being dismissed, there is no substance left in the application relating to the enduring power/s of attorney. It too should be dismissed. [23] DLA has urged the tribunal to assist, if possible. However, the tribunal does not have some broader role to resolve family disputes or to safeguard people generally from harm. The tribunal’s role is limited to performing the functions assigned to it by legislation, such as the appointment of a guardian or an administrator as substitute decision-maker for a person with impaired capacity. [24] ADP has an attorney. DLA’s concerns about the current attorney’s level of involvement appear to be misconceived, given that it is open to ADP to manage his own affairs if he chooses. However, should concerns arise about the actions of the attorney in the future, I see from documents on the file that SNA and DLA are aware of the power of the Public Guardian to investigate complaints about the actions of attorneys. That power is available where the principal has impaired capacity.8 Conclusion [25] In the course of the proceedings before the tribunal to date, it has become apparent that ADP retains capacity. Accordingly, the applications are dismissed under section 47 of the QCAT Act. 5 QCAT Act, s 47. 6 G&A Act, s 12(1)(a). 7 Ibid, Schedule 4, definition of ‘impaired capacity’. 8 Public Guardian Act 2014 (Qld), s 12(1)(c), s 16, s 19. -- 4 of 4 --