DA [2020] QCAT 456

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DA [2020] QCAT 456 PARTIES: In applications about matters concerning DA APPLICATION NO/S: GAA2609-19; GAA4913-19; GAA5635-19; GAA5636-19; GAA5637-19; GAA7319-19; GAA12111-19; GAA5956-20; GAA6437-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 26 June 2020 HEARD AT: Townsville DECISION OF: Member Pennell ORDERS: GUARDIANSHIP 1. DAMA is appointed guardian for DA for the following personal matters: (a) Health Care; and (b) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for DA for all financial matters. 4. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 5. This administration appointment remains current for three (3) months, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. NOTICE OF INTEREST IN LAND 6. The administrator shall within 28 days: (a) Record the appointment as administrator on any property registered in DA’s name with -- 1 of 24 -- 2 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 DA’s property; and ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by DA. (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. 7. If the ownership of any property of Aristide D’Ilario changes in any way or DA 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 or DA’s interest in another property. ENDURING POWERS OF ATTORNEY 8. Any purported enduring power of attorney for DA is overtaken by the making of these appointments and, in accordance with section 22(2) of the Guardianship and Administration Act 2000 (Qld) can no longer be acted upon to the extent that these appointments have been made. LIMITATION ORDER 9. The application by DEA for advice, directions or recommendations is dismissed. ADJOURNMENT 10. The hearing of this matter is adjourned to a date to be fixed. (a) The parties will be notified of the date, time and place for the continuation of this hearing. -- 2 of 24 -- 3 CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – presumption of capacity – where the tribunal is satisfied the presumption of capacity is rebutted – enduring power of attorney – revocation of enduring power of attorney to remove one attorney – where any enduring power of attorney is overtaken – conflict transactions – the exercise of due diligence under enduring power of attorney – the protection of the interest of the adult – the obligation of an attorney to consult with another appointed attorney – an attorney’s right to information concerning the adult – the attorney’s to keep own property separate from the adult’s – where attorney fails to fulfil their duty – whether there is a need for the appointment of a guardian – whether it is reasonable to appoint an interim administrator – whether there is an immediate risk to the adult’s property – whether directions to an attorney can remedy the immediate risk to the adult’s property Guardianship and Administration Act 2000 (Qld), s 6, s 7, s 12, s 14, s 15, s 22(2), s 81, s 129 Powers of Attorney Act 1998 (Qld), s, 66, s 73, s 79, s 81, s 85, s 86 PL v PT & Ors [2018] QCATA 114 Zecevic v DPP (Vic) (1987) 162 CLR 645 APPEARANCES & REPRESENTATIONS: Applicant: Mr A Raeburn instructed by Mr P Radford of Connolly Suthers Lawyers. Respondent: Mr D Honchin instructed by Ms L McNamara of Stevenson McNamara Lawyers. REASONS FOR DECISION Introduction [1] DA (‘the adult’) was born in Italy on 11 April 1932. English is his second language. He is currently aged 88 and is a widower. His wife died in January 2019. He has three children, which includes his son DEA, and two daughters, one of which is DAMA. A fourth child is deceased. -- 3 of 24 -- 4 [2] His medical condition includes a history of depression, obesity, glaucoma, cardiomegaly, congestive heart failure, mild mitral regurgitation and a number of other associated illnesses including obstructive sleep apnoea. [3] The proceedings involving the applications relating to the adult are highly contentious between two of his adult children, DEA and DAMA. [4] The positions adopted by DEA and DAMA in respect to their applications for the appointment of a guardian are similar. They both seek to have DAMA appointed as the adult’s guardian. However, in regard to the administration of the adult’s finances, DAMA seeks to be appointed as the adult’s administrator for all financial matters, whereas DEA wants the Public Trustee of Queensland (‘the PTQ’) appointed. [5] There are serious allegations raised by DEA that DAMA has misused the adult’s money, more so in particular to the construction of an extension onto her house, which she is referred to as a ‘granny flat’. DAMA denies any impropriety. Enduring Power of Attorneys [6] To set the background of this matter, originally as far back as 20 years ago,1 the adult and his late wife arranged for joint Enduring Power of Attorneys (EPAs) between themselves (‘the 2000 EPAs’). They were each the others’ attorneys. That all changed in 2016. [7] At some point in the early part of 2016, the adult was hospitalised because of a fall. The family home where he and his wife lived was a high set house. The hospital would not discharge him unless he was moved into a low set dwelling. [8] An agreement was reached between DEA and DAMA whereby a granny flat was to be constructed at DAMA’s residence.2 A builder was engaged and the contract for the construction of the granny flat was signed by DAMA and her husband, ALM.3 The contract price for the construction of the granny flat was $130,792.40,4 although DAMA’s accounting system which she maintained suggests the final costs were $156,682. This final figure included $20,000 to fit out the granny flat so as to cater for the disabilities and associated needs of the adult and his wife. [9] The final amount also include $3,000 paid to ALM for the purchase of the materials, including paint for him to paint the interior and exterior of the granny flat.5 After the completion of the granny flat, the adult and his wife moved in.6 Their family home has remained vacant since that time. [10] In April 2016, discussions took place between DEA and DAMA about the EPAs which were in place for the adult and his wife. It seems they were concerned about their sister, who at that time, was out of favour with the family. DAMA later referred 1 On 13/04/2000. 2 On 09/07/2016 the adult and his wife moved into the granny flat at DAMA’s residence. 3 The building contract for the construction of the granny flat was signed on 26 April 2016. 4 DAMA’s affidavit filed 20 May 2019 at Annexure ‘AA’. 5 DAMA’s financial documents at Folio ‘B’, pp 62 – 66. 6 On 9 July 2016. -- 4 of 24 -- 5 that sister as ‘bitch face’ in a text message to DEA.7 DAMA and DEA discussed what they should do with the 2000 EPAs. [11] It seems DAMA raised the issue first when she sent a text message to DEA – haha! hey, do you want to come to tsv tues to get dad to revoke the old epoa n do another one via a bedside jp. il explain tonight. the epoa frm 2000 states ANY child can act for health AND FINANCES. we need to tighten it up in order to secure their interests.8 [12] DEA responded – So dads EPOA does not allow for any of us to a....9 So first in best dressed. We can talk tonight. [13] A response was sent back by DAMA which indicated – its more complicated than that. unless revoked ALL EPOAs are VALID. talk tonight, i need a nap [14] Three days later, DAMA sent to DEA a further text message outlining that she had made arrangements for the revocation of the adult’s 2000 EPA. She said in that text message – appt made with jp for dad at 3pm at his bedside. pls book flite.10 [15] DEA responded by telling DAMA that he would be arriving at the Townsville Airport at 9:50pm that night. [16] The following day,11 a new EPA (‘the April 2016 EPA’) was completed by the adult. On this occasion he appointed both DEA and DAMA as his attorneys for financial and personal/health matters. The EPA expressly provided for joint decisions by his attorneys for financial matters disposing of $10,000 or more, however in all other situations the attorneys were to act severally. [17] Coincidently, within two weeks after the adult appointed DEA and DAMA as his attorneys,12 a new EPA was completed for the adult’s wife where she appointed DEA and DAMA as her attorneys. The adult’s wife expressed in her EPA that all decisions for her were to be undertaken by DEA and DAMA in the same terms that applied to the adult’s EPA. [18] Two days after the adult’s newest (at that time) EPA was completed,13 his doctor, Dr Leong, provided a medical certificate certifying the adult’s capacity to make financial 7 Exhibit 5. Exchange of text messages between DAMA and DEA on 13/06/2015. 8 Exhibit 3. Exchange of text messages between DEA and DAMA on 15/04/2016. 9 Although the last word on the first line of the text messages only shows the letter ‘a’, judging by the context of the message, it is accepted that the word is ‘act’. 10 Text message sent by DAMA to DEA on 18/04/2016 at 9:34am. 11 19 April 2016. 12 30 April 2016. 13 21 April 2016. -- 5 of 24 -- 6 decisions regarding the sale of his house, and the management of the resulting funds.14 Granny Flat Agreement – Deed of Agreement [19] DEA had received advice from Centrelink. There was a requirement for a granny flat agreement to be entered into by the adult, otherwise the adult and his wife would lose their social security benefits. The time limit for the agreement to be formalised was two years. [20] Grace Law, a solicitor’s firm, was engaged for the purposes of drafting and formalising what is known as the ‘granny flat agreement’.15 As owners of the property where the granny flat is located, the agreement was between DAMA and ALM and the adult and his wife. The agreement was entered into on 4 July 2016. This date coincides with the completion of the construction of the granny flat, and a few days prior to the adult and his wife moving into the granny flat. [21] The granny flat agreement was signed by DAMA and DEA for and on behalf of the adult’s wife pursuant to her EPA. They were her attorneys. The agreement was also individually signed by the adult, along with DAMA and her husband ALM. [22] In exchange for the adult and wife residing at the granny flat ‘for life’, the adult and his wife agreed to transfer their interest in their family home to DAMA. In addition to that, the adult and his wife were required to pay a share of the outgoings for the costs associated with the granny flat, including electricity, gas, water rates, water usage and council rates. [23] There was an acknowledgement in the granny flat agreement that all parties to the agreement had obtained independent legal and financial advice so that they understood the rights and responsibilities created by the agreement. Notwithstanding that clause, DAMA suggested the adult was given the opportunity to seek legal advice, although she did not provide any information relating to which legal practitioner was consulted, or when the adult received the advice.16 [24] Based on the evidence before the tribunal, I am satisfied on the balance of probabilities that independent legal advice was not sought by the adult or his wife, and nor was any independent advice provided to him prior to the signing of the granny flat agreement. [25] Grace Law were also engaged to draft a deed of agreement between DEA and DAMA.17 This agreement was completed the day after the formalisation of the granny flat agreement. The general purpose of the agreement between DEA and DAMA was the immediate transfer of the adult’s family home to DAMA. The transfer of the family home was in exchange for DAMA caring for the adult and his wife during the course of their lifetime, which included the provision of a granny flat located at DAMA’s residence where she and her husband lived. 14 Dr Andrew Leong’s medical certificate attached as Annexure ‘O’ to the DAMA’s affidavit filed 20/05/2019. 15 DAMA’s affidavit filed 20 May 2019 at Annexure ‘R’. 16 DAMA’s affidavit filed 20 May 2019 at paragraph 60. 17 DAMA’s affidavit filed 20 May 2019 at Annexure ‘T’. -- 6 of 24 -- 7 [26] Upon the death of the adult and his wife, it was the intention of DEA and DAMA to list the family home for sale, and when sold, the net proceeds were to be divided equally between them. However, in the event that either the adult or his wife required full time care during the course of their lifetime in an aged care facility, then the family home was to be sold and the net proceeds utilised for the purpose of obtaining suitable care arrangements for the adult and/or his wife. If the adult’s family home was sold, it was also the intention of DEA and DAMA to reimburse DAMA for all expenditure she incurred on the family home, such as insurances, rates, maintenance and repairs. [27] The granny flat agreement, along with the adult’s EPA was filed with the Registrar of Titles on 16 August 201818 for the transfer of the adult’s family home (valued at $250,000) to DAMA. The transfer document indicates the transfer was pursuant to an agreement dated 4 July 2018. The Registrar of Titles recognised the existence of a conflict transaction in the transfer and rejected the application. [28] In a letter later written by Grace Law to DAMA, the Registrar of Titles’ rejection of the transfer was confirmed. Advice was then provided to DAMA of the necessity for her and DEA to make an application to QCAT to obtain approval for a conflict transaction. DAMA sent a copy of Grace Law’s letter to DEA, accompanied by the words – Is this where I say, “I told you so”?19 [29] The rejection by the Registrar of Titles was a concern for DEA and DAMA, which is recorded in a text message between them – I spoke to solicitor. The lack of a conflict clause in mums epoa is a huge problem. We will still lodge transfer, but DERM may require a QCAT ruling. Appt is for 4pm tomorrow. Have attached a range of flight options. Let me know which one suits.20 [30] DAMA explained to the tribunal that because she was so aggrieved as to what transpired between her and DEA with the arrangements for the granny flat agreement and his behaviour, in the time between the signing of the granny flat agreement and the lodging of the transfer documents with the Registrar of Titles, she instructed Grace Law to cease working on the transfer. She went on to say she also contacted the Titles Office and told them not to process any transfer for the adult’s family home because of the conflict transaction. She did not think it was right to proceed without telling the adult what happened with the deed of agreement.21 She later went to Grace Law22 to discuss the adult’s options.23 [31] DAMA raised an allegation that throughout this process, DEA was blackmailing her. Although it is observed she deposed in an affidavit that DEA had pressured her,24 18 DAMA’s affidavit filed 20 May 2019 at paragraph 62. 19 DAMA’s affidavit filed 20 May 2019 at Annexure ‘Y’. 20 DAMA’s affidavit filed 20 May 2019 at Annexure ‘Q’. 21 DAMA’s affidavit filed 20 May 2019 at paragraphs 63 – 64. 22 On 31 July 2018. 23 DAMA’s affidavit filed 20 May 2019 at paragraphs 65 – 66. 24 DAMA’s affidavit filed 20 May 2019 at paragraphs 47 and 68 – 69. -- 7 of 24 -- 8 perhaps the use of the word ‘blackmail’ was an exaggeration as there is no evidence to support the suggestion of blackmail. [32] She went on to tell the tribunal she requested Grace Law to prepare a revocation of the April 2016 EPA because she felt DEA had a mental illness, he was not thinking rationally,25 he went for periods of no contact with the adult and he displayed irrational behaviour at the premises of Grace Law during the completion and signing of the granny flat agreement. The decision to revoke the April 2018 EPA was unilaterally made by DAMA, with no evidence or any input of any consultation with the adult, or him considering or sanctioning the revocation. [33] Notwithstanding DAMA’s suggestion as to why she wanted to revoke the April 2016 EPA, my observation of the timeline is that a deed of agreement existed at that time between her and DEA regarding the transfer of the adult’s family home to her. [34] By 2 August 2018, DEA enquired with DAMA regarding the outcome of the transfer of the adult’s family home to her. She said that around this time, the adult became aware of what had transpired with regard to his family home. DAMA explained to DEA that she had cancelled the transfer because of a conflict transaction, and she knew her father had not been consulted about the deed document. She claimed that DEA insisted she go through with the transfer, because if she did not, then this exposed the adult and his wife to losing their pensions. She went on to say that to keep the peace, and knowing it constituted a conflict transaction, she gave directions to Grace Law to proceed with the transaction.26 If her evidence on this point is to be accepted, then perhaps both DEA and DAMA acted without reasonable diligence. At this point of the proceedings, I do not intent to make a final finding on this point as the proceedings have not concluded. [35] It appears that from this point, the relationship between DEA and DAMA started to break down. DEA requested access to the adult’s financial documentation such as his banking passbooks. Her response was to tell him the adult said – that is none of your business – and I agree.27 [36] DAMA later enquired28 with Grace Law about the costs associated with pursuing a QCAT ruling regarding an amendment to her mother’s EPA.29 In a letter from Grace Law to DAMA dated 26 September 2018, no advice was provided as to whether or not she should proceed with an application. The only advice given by the solicitor related to the costs associated with an application to QCAT. It seems that DAMA did not take up the option of initiating that application.30 [37] By 27 September 2018, a different solicitor was engaged, this time Mackey Wales Law. A new EPA was drafted for the adult (‘the September 2018 EPA’). On this occasion, the adult again appointed DEA and DAMA as his attorneys for financial and personal/health matters. DAMA was listed as the second attorney. 25 DAMA’s affidavit filed 20 May 2019 at Annexure ‘W’. 26 DAMA’s affidavit filed 20 May 2019 at paragraphs 68 – 69. 27 DAMA’s affidavit filed 20 May 2019 at paragraph 71 and Annexure ‘B’. 28 On 3 September 2018. 29 DAMA’s affidavit filed 20 May 2019 at Annexure ‘AF’. 30 DAMA’s affidavit filed 20 May 2019 at Annexure ‘AH’. -- 8 of 24 -- 9 [38] In regard to the adult’s preference as to how DEA and DAMA, as the attorneys, were to make their decisions, he expressly provided for DAMA to – enter into transactions where their interests and duty could conflict with my interest. I expressly allow my second attorney to contract with themselves, and with their relatives, friends, business associates and any entities in which my second attorney has any interest or control. The EPA went on to indicate the adult preferred his attorneys to – act jointly in regard to financial matters in disposing of $10,000 or more, however for all other matters they are to act severally.31 [39] The inclusion of the conflict transaction clause within the adult’s September 2018 EPA appears to have been undertaken in response to the Registrar of Titles identifying an absence of a conflict transaction clause in the April 2018 EPA. [40] DAMA suggested she had no knowledge of any plans for the new September 2018 EPA being completed. Although she went to the offices of Mackey Wales Law along with the adult and DEA, she did not enter the premises. Instead she waited outside at a coffee shop. It was later that she went into the solicitor’s office expecting to have a conversation about how to proceed with a QCAT application, only to find that a new EPA had been compiled which gave her power to engage in a conflict transaction. [41] I am not convinced that she was oblivious to what transpired. It was DAMA who had made previous inquiries with Grace Law about an application to QCAT. If her evidence was to be accepted on this point, then it does not explain why she did not accompany the adult into the offices of Mackey Wales Law from the outset to obtain that advice. [42] She went on to say she only signed the EPA as she assumed that it was the adult’s wishes because he had “obviously received legal advice”. She does not explain when that advice was provided, or by whom.32 In any event, she made her own decision to be a nominated attorney in the September EPA by signing the document. [43] It appears that following the signing of the September 2018 EPA and up until their mother died on 16 January 2019, the relationship between DEA and DAMA deteriorated further to a point where it had almost completely broken down. [44] DAMA and DEA no longer trusted each other. DAMA said that DEA was overbearing, domineering and aggressive. She also raised historical allegations that she sexually abused her when she was a child. DEA denied all of those allegations. [45] Within less than two weeks after the death of the adult’s wife, Townsville experienced significant flooding and the adult was placed into an aged care facility. During that period, DEA engaged his solicitor to source a psychologist to undertake a capacity assessment on the adult. If there was any part of a relationship remaining between the parties, the engaging of a psychologist and the events that followed completely fractured and dissolved their relationship. 31 DAMA’s affidavit filed 20 May 2019 at Annexure ‘LM’. 32 DAMA’s affidavit filed 20 May 2019 at paragraph 89. -- 9 of 24 -- 10 Revocation of the September 2018 EPA – Cognitive Assessments [46] On 18 January 2019, DEA’s solicitor wrote to Psychologist Sandra Wickham (‘Ms Wickham’) outlining the terms of reference for a capacity assessment report. [47] On 7 February 2019, Ms Wickham went to the aged care facility where she met with the adult. She was accompanied by DEA who acted as an interpreter. A clinical interview between Ms Wickham and the adult lasted two hours. She carried out a cognitive assessment evaluation, being a Mimi Mental State Examination (MMSE). Her report indicated the adult returned a very low MMSE score of 7 out of a maximum of 30. [48] DAMA suggests the adult later told her he did not clearly understand the process and nor was there an interpreter present, remembering of course, English is the adult’s second language. I accept DEA would have acted in the capacity of an interpreter. [49] In her assessment, Ms Wickham gave an overall opinion that the adult was suffering from significant cognitive deficit, most likely related to vascular dementia. This assessment ultimately proved correct in accordance with the later assessment undertaken by Neuropsychologist, Deidre Bradshaw (‘Ms Bradshaw’). [50] Ms Wickham further assessed the adult lacked the capacity to make informed decisions regarding an EPA or a will. She opined that his condition was progressive, and his capacity is more than likely to decrease, with little scope of future progress to the point where cognitive capacity for such decisions could be restored. This part of her assessment was also later shown to be correct by Ms Bradshaw. [51] Two days after Ms Wickham’s assessment,33 DAMA became aware of Ms Wickham’s assessment of the adult. She then took him to Dr Leong where another MMSE was undertaken. Dr Leong’s assessment was the adult had capacity. Armed with that assessment, DAMA took the adult to a Justice of the Peace (‘JP’) where the adult revoked the September 2018 EPA appointing DEA as an attorney. This left DAMA as the sole attorney. [52] Soon after, DEA commenced litigation in the tribunal. He initially sought the appointment of a guardian and an administrator for the adult. After the proceedings had commenced, DAMA’s solicitor engaged Dr Riccardo Caniato (‘Dr Caniato’) to carry out a cognitive assessment of the adult.34 Dr Caniato was commissioned to provide a specialist report, which he completed three (3) days prior to the listed 20 June 2019 hearing. [53] In his assessment report, Dr Caniato opined that notwithstanding the most likely diagnosis of frontotemporal or vascular dementia, the adult had capacity to make the decision to revoke and change the September 2018 EPA. [54] To assist the tribunal, Dr Leong provided a health professional report. In his opinion, the adult had suffered from frontotemporal dementia since 2005.35 In regard to the 33 On 9 February 2019. 34 On 17 May 2019. 35 Filed 15 May 2019. -- 10 of 24 -- 11 many MMSEs carried out by Dr Leong with the adult over a period of some 14 years, the recorded scores for those tests showed some fluctuation. Those scores were – 2005 22/30 2007 20/30 2009 23/30 2010 26/30 2018 25/30 2019 27/30 [55] With regard to the extent of the adult’s ability to understand and act on information which was relevant for making decisions about personal healthcare, lifestyle and accommodation choices and financial affairs, it was Dr Leong’s assessment the adult could make decisions regarding personal health care and he remained compliant with medication given to him. In relation to his lifestyle and accommodation choices, the adult was able to make choices regarding accommodation because he told Dr Leong he was happy to live in his current residence. Dr Leong said the adult was able to make decisions relating to financial matters, but he leaves the payment of bills and the operation of his bank account and other financial transactions to his daughter. The adult was not familiar with the management of his own financial affairs. Overall, Dr Leong’s assessment showed the adult being capable of making simple decisions in regard to personal healthcare, lifestyle and accommodation choices and financial affairs, but being unable to make complex decisions about those matters. [56] Although it was apparent that DAMA relied upon the opinions of Dr Caniato and Dr Leong so far as capacity for the adult, DEA disputed the adult actually had capacity when he revoked his September 2018 EPA. If the overall opinions of Dr Leong and Dr Caniato were to be accepted, in my view, it was arguable the adult had capacity at that time to make decisions about financial matters. [57] In regard to the adult’s capacity, there clearly were competing reports before the tribunal from Ms Wickham, Dr Caniato and Dr Leong. With that in mind, the tribunal gave directions pursuant to section 114(1)(a) of the Guardianship and Administration Act 2000 (Qld) (‘the Guardianship and Administration Act’) for the adult to undergo a full capacity assessment, this time from an independent expert. The parties jointly engaged Ms Bradshaw to undertake that task. [58] In her neuropsychological report, Ms Bradshaw made a number of observations and comments about her assessment of the adult, with the assessment being conducted over a two day period.36 The adult confirmed with Ms Bradshaw the good relationship he enjoyed with his daughter, DAMA. He also said he had a good relationship with the son, DEA. This is somewhat contrary to the picture painted by DAMA where she said the relationship between the adult and DEA had broken down. [59] When commenting on the number of MMSEs undertaken by the adult over the preceding years, Ms Bradshaw commented – Of note, MMSE done over many years has reflected improvement and not a decline. This is likely a consequence of repeated exposure to this gross measure of cognition.37 36 5 November 2019 and 6 November 2019. 37 Neuropsychological report of Deirdre Bradshaw at paragraph 9.3, p 12. -- 11 of 24 -- 12 [60] This suggested the adult had become familiar with the process of undergoing an MMSE, and this familiarity impacted upon the accuracy of the testing. [61] Ms Bradshaw’s opinion was the adult had significant cognitive impairment and did not have current capacity. This was based on the adult’s – somewhat confused presentation, impaired performances on test of reasoning, problem-solving and processing speed, and limited understanding for EPOA and financial knowledge.38 [62] Overall, it was Ms Bradshaw’s opinion that – the adult did not currently have capacity to understand the nature and the effect of decisions about all matters, nor can he freely and voluntarily make decisions about all matters and communicate decisions about all matters adequately.39 [63] Ms Bradshaw went on to explain her neuropsychological assessment indicated the adult did not have the ability to understand, evaluate, reason and communicate all decisions in accordance with his own self interests and morals. She said he would not be able to take into account all relevant factors in making decisions and would have difficulty accurately advising his lawyers or attorney, and would not be able to judge risks adequately.40 The adult’s cognitive dysfunction is largely irreversible, albeit his cognition may fluctuate somewhat due to his medical comorbidities.41 [64] In commenting on the assessment undertaken by Ms Wickham, it was Ms Bradshaw’s opinion a number of factors existed which influenced that assessment. Because the assessment was undertaken at a period of time shortly after the death of his wife with whom he had been married to for 60 years, it was understandable the adult suffered from severe grief at the time the assessment was carried out. The environment for the assessment was unfamiliar to him, and although DEA acted as an interpreter, that added bias.42 The tribunal proceedings [65] The proceedings were instituted by DEA on 28 February 2019. DAMA responded by filing her own material on 12 April 2019. On 15 April 2019, the matter was before the tribunal, and directions were made to progress the matter further. On that occasion, the tribunal directed – The attorneys for [the adult] must file a full account of all transactions in respect of his finances since 19 April 2016 with copies of all supporting documents attached, on or before 13 May 2019.43 [66] When complying with that direction, DAMA provided an unpaginated eleven volume set of financial records consisting of 1,049 pages. Each of the eleven volumes commence with a brief explanation of the contents of the volume and an excel spreadsheet outlining various things such as expenses, assets, income and liabilities. 38 Neuropsychological report of Deirdre Bradshaw at paragraph 9.5, p 12. 39 Neuropsychological report of Deirdre Bradshaw at paragraph 9.6, p 13. 40 Neuropsychological report of Deirdre Bradshaw at paragraph 9.6, p 13. 41 Neuropsychological report of Deirdre Bradshaw at paragraph 9.14, p 14. 42 Neuropsychological report of Deirdre Bradshaw at paragraph 9.11, p 14. 43 Direction No. 6 of the Tribunal’s directions dated 15/04/2019. -- 12 of 24 -- 13 There were other financial records annexed to a 119 page affidavit which she later filed in January 2020. [67] DAMA conceded during the most recent part of tribunal hearing44 that she checked the various folios and found some financial records were recorded in the incorrect folios. This would had added to the complications of DEA interpreting her financial material, however she was reluctant to accept criticism saying she was only human, and she made mistakes. [68] What followed after the filing of the material by the parties was the listing of the matter for a hearing on 20 June 2019. Two and a half hours were allocated for the hearing, clearly this was a miscalculation of the time these proceedings would take. [69] On 3 May 2019, DEA instructed his solicitor to write to DAMA’s solicitor. He queried the withdrawal of $14,300 from the adult’s bank account made on 20 October 2016. DAMA’s solicitor did not respond. [70] On 31 May 2019, DEA’s solicitor sent a follow-up request to DAMA’s solicitor for the information sought pursuant to the previous letter. [71] In a response dated 10 June 2019, DAMA’s solicitor wrote back to DEA’s solicitor and said – We also refer to your correspondence of 31 May 2019 in which you state we have not replied to your letter of 3 May 2019. On our instructions, you have been provided with all bank statements and an explanation in our client’s voluminous material served upon you on 15 May 2019.45 [72] In her evidence to the tribunal, DAMA’s explanation for that response was she expected DEA to be able to interpret the financial records she provided. Afterall, he was an accountant. [73] Notwithstanding the method of her accounting being somewhat unique and confusing, along with her concession that she had erred by placing some of the financial records in the incorrect folios, her response was puzzling. It seems that only the author who created those folios clearly understood the formation of the accounts. That author of course being DAMA. The flavour of her response to DEA’s request was in effect a way of telling him “what you want is in the financial records, go find it” (my emphasis). [74] When the matter was first before the tribunal for a hearing on 20 June 2019, there was clearly insufficient time to ventilate all the issues of this matter. There were competing allegations made by both parties. An interpreter was organised to appear on the telephone at the hearing to assist the adult. That arrangement was problematic as the adult has hearing difficulties, and the phone connection was not clear. Overall, the appearance of an interpreter by phone was a failure. Oral evidence was required from both DEA and DAMA. Understandably they were to be cross-examination on their evidence. The time allocated for the hearing on that occasion was utilised by way of formalising further directions. 44 The most recent part of the hearing took place on 17 – 18 June 2020. 45 Exhibit 10. -- 13 of 24 -- 14 [75] The adult’s capacity was a significant issue given the conduct of both DEA and DAMA in February 2019. The circumstances surrounding those events have already been discussed earlier in these reasons. Each of the parties had cognitive capacity reports, and although DAMA suggested the adult had recent capacity to revoke his September 2018 EPA, DEA did not accept this. [76] Directions were provided so the adult could be suitably assessed by an independent expert with respect to his cognitive capacity. Those directions were not complied with and this issue is discussed later in these reasons. [77] It was identified that on occasions, there had been some intermingling of the finances of DAMA and the adult. When she purchased items, or goods and paid for various other products or services on behalf of the adult and his wife, she paid for those expenses from her own funds. She would late calculate those expenses and be reimbursed accordingly. [78] DAMA had cared for her parents since 2013. Over a period of time she paid all the expenses relating to Anglicare and physio treatment for the adult and his wife. Towards the end of 2015, she told her parents it had cost her about $20,000 for those expenses. Her parents explained to her they did not want to “live off the shoulder”. This meant that they wanted to pay their own way. She was reimbursed accordingly. It was not denied by DAMA that she did not tell her parents that DEA had already paid her $12,000 as half payment towards those expenses. She told the tribunal she did not feel the need to tell her parents about DEA’s contribution. [79] DAMA identified the various financial institutions relating to the financial accounts held by herself and the adult. DEA’s position is that her accounts are important as they will show a complete record of all of the transactions undertaken which are subject to the reimbursements she received from the adult. She does not dispute that up until June 2019, there was some mingling of money between her accounts and the adult’s accounts. DAMA’s position is she has already provided those bank statements. The records relating to her private accounts are heavily redacted. She explained the redacting was to protect her privacy. There were a number of private purchases identified in those account statements which DEA should not be privy to. [80] DEA argued those financial documents in the form of bank statements would be appropriate for the determination of this matter. On 14 February 2020, directions were given to DAMA to produce to the tribunal those bank statements. DAMA filed an appeal against that decision. Until that appeal is determined, it is not appropriate to make any further comment about those bank statements. [81] DAMA’s filing of an application of a stay of the February 2020 directions and an application appealing that decision led to DEA filing further applications. Those applications related to him seeking advice, directions or recommendations46 and the appointment of an interim administrator.47 [82] In regard to his application for advice, directions or recommendations, because DEA was concerned about DAMA’s filing of her appeal and an application for a stay, he still wanted the hearing to proceed on the allocated dates of 17 and 18 June 2020. The continuation of the hearing on those dates went ahead as scheduled. Because it did, 46 Filed on 14/05/2020. 47 Filed on 07/05/2020. -- 14 of 24 -- 15 the basis behind DEA’s application for advice, directions or recommendations is no longer warranted and that application should be dismissed. [83] The filing of the application by DEA for interim administrator relates directly to DAMA’s appeal and application for a stay. He insists the adult’s finances are at risk and the PTQ should be appointed on an interim basis as the administrator. He suggested the appeal is consistent with DAMA having something to hide, and it was designed to further delay the proceedings. On the other hand, DAMA said she was exercising her legal right to appeal the tribunal’s decision. Directions – failure to abide [84] Before I consider DEA’s application for interim appointment of an administrator, it is appropriate to briefly return to and discuss what I see is a failure to abide by the tribunal’s directions relating to an independent cognitive assessment of the adult. [85] The tribunal’s directions of 20 June 2019 relating to the arrangements to be made for the selection of a medical expert to undertake an assessment of the adult was explicitly drafted and explained to the parties. It seems there was a failure to have to adult assessed in accordance with the directions given. The procrastination over the selection of a suitable expert to undertake the assessment led to the scheduled hearing in October being adjourned until February 2020, a delay of four months. [86] DAMA attributes the blame for the delay on DEA. She asserts that he did not comply with the tribunal’s directions in a timely fashion with respect to the cognitive assessment of the adult. She went on to say this was to a detriment to the adult as the assessment was unnecessarily delayed. She had fulfilled her obligation to provide a panel of suitably qualified medical practitioners to DEA for him to select from,48 but he took him two weeks to reply, whereupon he said he had not enough time to consider the panel she provided. This is not my observation of what took place. In my view, if a fault lies with anyone, it is not with DEA. [87] DEA’s solicitor49 filed an affidavit on 9 October 2019 addressing the delay relating to the adult’s assessment. A detailed explanation was provided, along with supporting documentation in the form of correspondence exchanged between the parties. [88] The directions specifically provided for DAMA to give to DEA a panel of experts by 2 August 2019. He was to choose his preference for which expert to be commissioned to undertake the assessment. It was not until 29 July 2019, over five weeks later, and three days before the expiration of the time of the direction that DAMA finally got around to providing a list of experts. Ms Bradshaw was nominated in the list. DAMA does not explain why it took so long to provide that list. [89] Whatever reasons may be suggested, those directions were given for a specific reason. The commencement of the hearing in October 2019 was contingent upon the assessment being carried out. Because of the failure to provide a list of experts to DEA at the earliest opportunity, this necessitated further delay of the proceedings. That is, the October 2019 hearing dates were vacated. 48 DAMA’s affidavit filed 9 January 2020 at paragraph 30. 49 Mr Paul Radford from Connolly Suthers Lawyers. -- 15 of 24 -- 16 Legislative pathway [90] The purpose of the Guardianship and Administration Act is to strike an appropriate balance between the adult’s right to the greatest possible degree of autonomy in decision making; and his right to adequate and appropriate support for decision making.50 That purpose is achieved through a number of ways, including encouraging members of the adult’s existing support network to be involved in decision making. [91] Provided for in the general principles of the Guardianship and Administration Act is a presumption that a person who reaches the age of 18 years has the capacity to make their own decisions.51 That presumption can be rebutted by evidence, however – it is not the mere availability of the evidence that results in the presumption being rebutted. The presumption is rebutted when, as a result of the application of the law, a determination is made that the person has impaired decision making capacity for a matter.52 [92] The Guardianship and Administration Act empowers the tribunal to appoint guardians for personal matters and administrators for financial matters for adults provided it is satisfied the adult has impaired capacity for the relevant matter.53 The determination of capacity is just one of the considerations the tribunal is required to make when exercising its discretion to make an appointment order for a personal matter or a financial matter. The application of that discretion requires a number of steps to be undertaken in deciding whether or not there is a requirement, or a need for the appointment of a decision maker for the adult.54 [93] If the satisfaction threshold is reached so far as the issue of impaired capacity, the tribunal is then required to assess whether there is an actual need for a decision to be made with respect to a relevant matter. Or in the alternative, the tribunal has to be satisfied there is evidence to meet the threshold that the adult is likely to do something in relation to that relevant matter which involves or is likely to involve an unreasonable risk to their health, welfare or property. In addition to that, tribunal must be satisfied that without the appointment of a decision maker for the adult, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected. [94] In my view, simply because the presumption of capacity has been rebutted for an adult, that does not automatically result in the making of an appointment order. There must be consideration given to, and reasoning applied as to whether there are decisions that need to be made which relate to a relevant matter for the adult at that time. [95] If at the conclusion of all those considerations the tribunal is satisfied for the need of an appointment order, the terms of the order are at the discretion of the tribunal. Appropriateness considerations 50 Guardianship and Administration Act 2000 (Qld), s 6. 51 Guardianship and Administration Act 2000 (Qld) ss 5-7, Schedule 1, General Principle 1. 52 PL v PT & Ors [2018] QCATA 114, [3]. 53 Guardianship and Administration Bill 1999, Explanatory Notes. 54 Guardianship and Administration Act 2000 (Qld), s 12. -- 16 of 24 -- 17 [96] In respect to the issues surrounding the appropriateness of DAMA to be appointed as the adult’s guardian and/or administrator, the Guardianship and Administration Act provides the tribunal with the discretion to appoint her as a decision maker. However, that appointment is conditional upon her fulfilling the criteria as provided for under the legislation.55 The tribunal must have regard to those appropriateness considerations.56 DAMA has provided information relating to her appropriateness.57 Discussions [97] When he initially filed his application in February 2019, DEA sought the appointment of himself as the interim administrator for the adult.58 He suggested his appointment would allow him to fully investigate what DAMA had done with their father’s money. The tribunal declined to make any interim appointment at that time. His later position was to seek the appointment of the PTQ. [98] Recently, he reinvigorated his position on this point by filing a fresh application for the appointment of an administrator on an interim basis. He said the adult’s finances were at an immediate risk and the PTQ should be appointed as on an interim administrator. [99] He pointed out a concern about DAMA’s consistent failure to produce all financial records, including bank statements. He went on to say that had DAMA not intermingled the adult’s funds with hers and her husband’s, then she would not find herself in this position. It is noted that DAMA does not deny that prior to June 2019, she did intermingle the private finances of herself and her husband with the adult’s finances. [100] In his original application,59 DEA outlined that on in April 2016, the adult made an EPA appointing him and DAMA as joint attorneys. DAMA said the drawing up of the 2016 EPA was contrary to the previous EPA which existed for the adult. She recalled being uncomfortable with the signing of the 2016 EPA as – none of us had had the opportunity to seek legal advice or understand the terms and ramifications of the EPOAs, especially dad, who was in hospital at the time he signed the EPOA.60 [101] DAMA’s comment is contrary to evidence contained within an exchange of text messages between DEA and DAMA where they discussed the making of the April 2016 EPAs. I am satisfied the evidence reveals, on the balance of probabilities, that DAMA was enthusiastic and complicit in planning that EPA. [102] It respect to the granny flat agreement, it was DAMA who in about July 2018 engaged Grace Law for the purposes of formalising the granny flat agreement.61 DEA was provided with a copy of that agreement, a transfer document and a statutory declaration. He, along with DAMA later went to offices of Grace Law for the purpose of signing those documents. The granny flat agreement was a decision made between 55 Guardianship and Administration Act 2000 (Qld), s 14. 56 Guardianship and Administration Act 2000 (Qld), s 15. 57 DAMA’s affidavit sworn 13 February 2020. 58 Application filed 28 February 2019. 59 Filed 28 February 2019. 60 DAMA’s affidavit filed 20 May 2019 at paragraph 17. 61 DAMA’s affidavit filed 20 May 2019 at paragraph 45. -- 17 of 24 -- 18 DEA, DAMA, ALM, and the adult and his wife. This was seemingly with the same solicitor representing all parties. It appears that no independent advice was provided to the adult. [103] If DEA’s evidence is to be accepted on a prima facie basis, an inference could be drawn of an obvious conflict between the adult and the appointed attorneys, being DEA and DAMA. Grace Law was representing the adult and his wife, as well as both appointed attorneys in the formalisation of the granny flat agreement. Or at the very least, Grace Law was representing the adult, his wife and one of the attorneys, being DAMA. [104] DAMA, as the adult’s attorney has been involved in the decisions made by the adult relating to this matter. She has been able to provide specific details when the adult consulted his medical practitioner along with why the consultations took place and the results. Yet when she suggests the adult had been provided with independent legal advice relating to the granny flat agreement, she provides no information about the legal advice, or from who it was received. [105] DEA said he was concerned with the drafting of the agreement, particularly where the agreement provided for the transfer of the adult’s family home to DAMA. He suggests this point was not consistent with his parent’s wishes that the family home be shared equally, yet still he signed the agreement. I am convinced that he was just as involved as DAMA was in the arrangements for the granny flat agreement. [106] It appears the attempted transfer of the family home to DAMA was undertaken by lodging the requisite forms with the office of the Registrar of Titles. Attached to those documents was DAMA’s statutory declaration, which annexed a medical certificate from Dr Leong. The medical certificate suggested the adult was capable of making financial decisions. Clearly the medical certificate was directly relevant to the transaction relating to the granny flat agreement and the transfer of the family home because the certificate is worded – This is to certify that I have examined [the adult] today and find that he has the capacity to make financial decisions regarding the sale of his house and management of the resulting funds.62 [107] DEA suggested DAMA told him of the difficulties she experienced in getting the transfer registered and that a backup plan was required to validate the granny flat agreement. DAMA said that despite knowing that lodging the documents with the Titles Office was a fruitless exercise as it constituted a conflict transaction, she gave directions to her solicitor to proceed with the transaction.63 Conflict between DEA and DAMA [108] Already discussed are some of the conflicts arising between DEA and DAMA. Over the period of time following the granny flat agreement, and the making of the 2018 EPA, the relationship between the siblings deteriorated. DAMA described it as being fractured. They distrusted each other and they have extraordinarily little in the way of positive things to say about each other. The acrimonious relationship now existing 62 DAMA’s affidavit filed 20 May 2019 at Annexure ‘O’. 63 DAMA’s affidavit filed 20 May 2019 at paragraph 69. -- 18 of 24 -- 19 led to allegations by both parties of improper conduct towards each other. DEA alleges that DAMA has misappropriated to her own benefit a significant amount of the adult’s finances. DAMA denies ever having used funds (cash) belonging to the adult for her own purposes.64 [109] Their relationship became even more acrimonious in early 2019. Two events occurred. Following the death of their mother, DAMA received correspondence from DEA’s solicitor. Attached were extracts of pages from the adult’s Commonwealth Bank passbook. DAMA had left an old passbook in her mother’s handbag. The handbag was in the coffin with their mother. DAMA perceived the extracts from the passbook belonged to the passbook from her mother’s coffin. [110] The other matter which impacted upon the relationship between DEA and DAMA occurred when DEA arranged for the adult to undergo a cognitive assessment by Ms Wickham. This led to DAMA taking the adult to Dr Leong where a MMSE was undertaken with the adult. He was then taken to a JP and the September 2018 EPA revoked. This left DAMA as sole attorney. [111] What has transpired over the past 16 months is the involvement of the parties in a highly contentious dispute. This has escalated the distrust between them. An example of the parties’ behaviour which has contributed arose from allegations of DEA where he suggested DAMA held the adult prisoner. This arose after DEA was not able to contact the adult by telephone. He reported this to the police so that a welfare check could be carried out. [112] Other examples are DAMA filing an application early in the proceedings seeking to have DEA’s former employer produce all records, notes and documents held by the employer in relation to DEA’s employment.65 I am unsure as to how that would have assisted a case for either of the parties, or indeed assisted the tribunal to reach an appropriate decision. The perception for the filing of that application is that it was nothing more than a fishing expedition in an endeavour to hopefully gather material which would depict DEA in a less than favourable way. [113] So too was the cross examination carried out of DEA surrounding the circumstances of whether or not he had appeared in the Pine Rivers Magistrates Court as a defendant. Although entitled to ask the questions surrounding that issue, the perception given by the questioning was it was an attempt to elicit information from DEA to damage his credibility. DEA’s explanation was that he had been prosecuted for motor vehicle offences, but he was not required to appear personally in that court. He pleaded guilty in writing and his matter was heard ex parte. His explanation is accepted. The adult’s family home [114] It seems because of the bitter dispute between the parties, DAMA neglected her responsibilities as an attorney to manage the major financial asset for the adult, being his family home. On her own financial calculations, the adult’s family home is contributing a deficit of a little over $8,000 per annum to the adult’s financial position. [115] For quite some time, the adult has expressed his wish for the family home to be sold. This is confirmed by the notations made by Dr Leong on a medical certificate for the 64 DAMA’s affidavit filed 20 May 2019 at paragraph 7. 65 Application filed 18 June 2019. -- 19 of 24 -- 20 adult in April 2016. This medical certificate suggested the adult had capacity at the time and the certificate was obviously used to validate the April 2016 EPA. It is now some four years from the first recorded evidence of the adult’s wishes. DAMA was aware of those wishes. [116] In July 2018, the adult told DAMA he wanted to sell the family home. The primary reason at that time centred around the health concerns of his late wife and he wanted to make provision for her.66 This was another example of a clear expression of his wishes. DAMA said she had received advice from a financial adviser about the sale of the family home, although it was not clear when that advice was given. [117] A title search for the adult family home reveals the adult and his late wife are still recorded on the title as joint tenants.67 On a number of occasions during her evidence, DAMA attributed blame towards DEA for not affecting probate on their late mother’s estate. Even when discussing why steps had not been taken to have the adult’s family home transferred solely to him, DAMA would not accept that as the adult’s attorney, this was her responsibility. [118] At some point after her mother’s death, she personally visited the office of the Registrar of Titles and queried the status of the title of the family home. She discovered the adult’s name was spelt incorrectly on the title, and because she was the sole attorney, she exercised her authority and took steps to correct the spelling mistake. However, when presented with an opportunity at that time to rectify the transfer of the property solely into the adult’s name, she took no action. [119] From a very early stage in these proceedings, DAMA was granted leave by the tribunal to be legally represented. In the past, she has taken the opportunity to receive legal advice with respect to the arrangements surrounding the granny flat agreement where it benefited her, but the same opportunity was not taken with regard to providing a benefit to the adult when it came transferring the family home solely to him. Whether it was ignorance of her responsibilities or laying blame with her brother, neither of those things have assisted in reducing or effectively managing the overall deficit the maintaining of the family home has on the adult’s financial position. Her evidence was she knew of the adult’s desire to sell the family home. He had expressed this to her on more than one occasion. Dad again articulated that he wanted to sell [address of family home] in order to make provisions for Mum. I attended Grace Law’s offices again on 31/07/2018 to discuss Dad’s options given I had cancelled the transfer.68 [120] The house has remained vacant for well over four years. If she was oblivious of her responsibilities as attorney for the adult, she cannot deny there has been every opportunity available for her to obtain legal advice on that issue. [121] The Land Title Practice Manual (Queensland) provides that – As vesting occurs on death under the principle of holding property as ‘joint tenants’, such property is unrelated, in a strict sense to the administration of the 66 DAMA’s affidavit filed 20 May 2019 at paragraph 65. 67 Exhibit 6. 68 DAMA’s affidavit filed 20 May 2019 at paragraph 65. -- 20 of 24 -- 21 deceased joint tenant’s estate. The surviving joint tenant/s, and not the personal representative of the deceased joint tenant, applying to the Registrar to have a lot or interest vested in them on proving the death of the deceased joint tenant.69 [122] DAMA says that she has been reasonably diligent with managing the adult’s finances and property. However, what is concerning is that during the past 16 months when she has been the sole attorney, she has taken no steps to arrange for the title of the family home to be transferred solely to the adult, and nor as she taken any steps to dispose of that significant asset; or place the family home in a position so that it produces income, or reduces the overall expenses to the adult. Conclusion [123] In regard to consideration given to the appointment of an interim administrator, the Guardianship and Administration Act provides that if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the property of the adult, the tribunal may exercise its discretion to make an interim order.70 [124] DEA and DAMA entered into an agreement with each other; and DAMA had an agreement with the adult. Those agreements relate to the granny flat and to disbursement of the adult’s family home. The steps they took were designed to alleviate any risk of Centrelink reducing the financial benefits which were available to the adult. [125] In reaching a decision in this matter, I am mindful of the personal conflict between DEA and DAMA, which in my view is a conflict which has directly impacted upon the adult, particularly with the failure of DAMA to effectively manage her responsibilities as they relate to the adult’s family home. [126] I am also mindful that pending the outcome of DAMA’s appeal, it is unknown whether further evidence will be taken in regard to these proceedings. Until it becomes known, and all of the evidence is before the tribunal, it would not be appropriate to make any finding at this stage of the proceedings as to whether DAMA acted honestly and appropriately, or dishonestly and inappropriately. [127] However, the evidence to date, along with the helpful submissions made on behalf of both parties allows me to reach a determination on a final basis with respect to the appointment of a guardian, as well as the appointment of an administrator on an interim basis. [128] The starting point is the adult is presumed to have capacity. Discussed earlier in these reasons were the various cognitive assessments undertaken of the adult by Ms Wickham, Dr Leong and Ms Bradshaw. I place greater weight upon the report from Ms Bradshaw with regard to the adult’s current capacity. Not only is her report the most recent, but it was also a complete analysis that is free from any influences that the adult may have been under during the previous two assessments by Dr Leong and Ms Wickham [129] Ms Bradshaw’s assessment of the adult was he did not currently have capacity to understand the nature and the effect of decisions about all matters, nor could he freely 69 Exhibit 7. 70 Guardianship and Administration Act 2000 (Qld), s 129. -- 21 of 24 -- 22 and voluntarily make decisions about all matters and communicate decisions about all matters adequately. Therefore, by applying the law relating to capacity as provided for in the Guardianship and Administration Act to the evidence of Ms Bradshaw, I am satisfied the presumption of capacity has been rebutted and the adult has impaired capacity. [130] In addressing the issue of appointing a guardian, it must be recognised that DAMA has been his carer since 2013. He lives in a granny flat attached to her residence. Undeniably she has a close relationship with him and has been intricately involved in all matters relating to his personal decisions for quite some time, particularly following the death of his wife. [131] The adult is an elderly man who has lost capacity to make decisions for himself with regard to his personal matters. His medical condition is further complicated by his failing health. By way of assistance to him, services are provided by Anglicare. [132] Having regard to the evidence, I am satisfied there is a need for a decision in relation to the personal matters concerning the adult. I am also satisfied that without the appointment of a guardian for decisions relating to healthcare and the provision of services for the adult, there is a likelihood that he will do something which will involve an unreasonable risk to his health or welfare. I am further satisfied that without the appointment of a guardian, his needs will not be adequately met and nor will his interests be adequately protected. [133] When applying the appropriateness considerations as to whether or not a person is appropriate for the appointment of a guardian, consideration must be given to a number of matters as provided for within the Guardianship and Administration Act.71 Having regard to the facts, circumstances and evidence of this matter, and applying the appropriateness considerations, I am satisfied the most appropriate person for the appointment of a guardian for the adult is DAMA. I am also satisfied that she should be appointed for the purposes of making decisions for the adult in regard to the personal matters of health care and the provision of services. That appointment should be a reviewed within one year. [134] In regard to the appointment of an interim administrator, the Guardianship and Administration Act provides that if the tribunal is satisfied on reasonable grounds that there is an immediate risk of harm to the property of the adult, a discretion is afforded to the tribunal to make an interim order appointing an administrator. Any consideration for the appointment of an interim administrator must be based on the emphasis of two particular points. Firstly, there must be evidence to the satisfaction of the tribunal of an immediate risk of harm to the adult’s property; and secondly, any determination with respect to that risk must be based on reasonable grounds. [135] The term ‘reasonable grounds’ is described as a motive for a person’s conduct or the basis for a state of mind, such as belief or suspicion. That motive or basis, from an objective viewpoint, must be just and appropriate in all the circumstances.72 [136] The question for the tribunal from an objective viewpoint is, does the belief exist that there is an immediate risk of harm to the adult’s property. When looking at the evidence already before the tribunal arising from these proceedings, I am satisfied the 71 Guardianship and Administration Act 2000 (Qld, s 15. 72 Zecevic v DPP (Vic) (1987) 162 CLR 645. -- 22 of 24 -- 23 answer to that question is not only is there an immediate risk, but that risk has been ongoing. [137] The evidence shows that for a period of over four years, the adult has expressed more than once to DAMA that he wanted to sell the family home. DAMA as his attorney had the responsibly to act on his wishes. It would be remiss of me not to point out that DAMA is not alone in that criticism. DEA should not escape criticism himself because he too should have acted upon the adult’s wishes. [138] In his submissions to the tribunal, DEA’s Counsel pointed out a number of areas of concern with regard to DAMA’s administration of the adult’s finances. The tribunal was told that she did not exercise her powers pursuant to that EPA with reasonable diligence to protect the adult’s interest.73 Examples were provided such as the adult’s family home not being sold or placed in a position where it derived an income. Another example was her failure transfer the family home solely into the adult’s name following the death of his wife. DAMA said that she acted with diligence at all times. In regard to those two examples just given, I disagree with her. As already outlined in these reasons, she may very well have been waiting for DEA to execute his responsibilities with respect to her mother’s estate, however that does not prevent her from undertaking her responsibilities as sole attorney under the February 2019 EPA on behalf of the adult. Her reluctance to take that action has effectively contributed to the significant expenses incurred on a yearly basis for the adult to maintain the family home. [139] In regard to DAMA’s responsibility to avoid conflict transactions,74 she tried to minimise her involvement in the obvious conflict transaction relating to the granny flat agreement. There were other issues raised with regard to her failure to consult with her co-attorney,75 and a failure to keep the property separate from the adult’s property.76 On that last point, I am satisfied that as from June 2019, she maintained a separation of the adult’s property from her own, however prior to that there was evidence of intermingling of her property and the adult’s. [140] In the submissions made on behalf of DAMA; the tribunal was told that she was not aware that she could undertake the steps to dispose of the adult’s family home. She was fearful of making decisions on behalf of the adult during the course of the proceedings. It was earlier discussed in these reasons that from a very early stage in these proceedings she had been represented by a solicitor. It is not accepted that she would not be aware of her responsibilities as an attorney, nor would be sufficient for any person to rely upon the proposition that simply because proceedings are afoot in the tribunal, this will abrogate their responsibility to act according to the authority and responsibilities they possess under an EPA. [141] DAMA submitted there was no immediate risk of harm, however there would be if the PTQ was appointed as interim administrator because of the fees and charges associated with that appointment. In my view, the test is whether the tribunal is satisfied on reasonable grounds of an immediate risk of harm. Any fees and charges are incidental to an appointment of the PTQ. 73 Powers of Attorney Act 1998 (Qld), s 66. 74 Powers of Attorney Act 1998 (Qld), s 73. 75 Powers of Attorney Act 1998 (Qld), s 79. 76 Powers of Attorney Act 1998 (Qld), s 86. -- 23 of 24 -- 24 [142] Notwithstanding the identified errors made by DAMA, her Counsel urged that those errors could be rectified by the tribunal exercising its function to issue further directions for her to undertake. I am not convinced that issuing further directions would suffice given what transpired with the June 2019 directions relating to the expert cognitive assessment report. [143] In my view, the key issue surrounding the immediate risk of harm to the adult’s property relates to his family home. It is presently unoccupied, not producing an income and incurring a debt of over $8,000 per annum. Given his current financial position, that loss is not justifiable or acceptable. [144] I am satisfied on the reasonable grounds that if an interim administrator is not appointed in relation to the adult’s financial matters, there is an immediate risk of harm to his property. Although DAMA meets the threshold for the tribunal to be satisfied that she is appropriate to be appointed as the adult’s guardian, for those reasons already discussed, that threshold is not met for financial matters and I am satisfied that I should appoint the PTQ as interim administrator. The PTQ’s appointment remains current for the maximum period of three months as provided within the legislation. The administrator is also directed to provide a written account their actions to the tribunal no later than three working days prior to the hearing; and are to record their appointment as administrator with the Registrar of Titles in 28 days. [145] Pursuant to the provisions of the Guardianship and Administration Act, the appointment of a guardian and an interim administrator overtakes any purported EPA for the adult.77 Adjournment [146] DAMA has filed an appeal against the tribunal’s decision of 14 February 2020. The outcome of the appeal will impact on whether additional evidence is required. Until that occurs, it is appropriate to adjourn the proceedings until a date to be determined after the finalisation of the appeal. 77 Guardianship and Administration Act 2000 (Qld), s 22(2). -- 24 of 24 --