DAM [2019] QCAT 291

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DAM [2019] QCAT 291 PARTIES: In applications about matters concerning DAM APPLICATION NO/S: GAA14316-18, GAA14317-18, GAA14318-18, GAA1316-19, MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 2 October 2019 HEARING DATE: 17 June 2019 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: GUARDIANSHIP 1. The appointment of The Public Guardian as guardian for DAM for the following personal matters is revoked. (a) Accommodation; (b) With whom DAM has contact and/or visits; (c) Health care; (d) Provision of services; ADMINISTRATION 2. The appointment of The Public Trustee of Queensland as administrator for DAM for all financial matters is continued. 3. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 6. Before 28 January 2020 the administrator must: (a) Record the appointment as administrator on any property registered in the adults name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: -- 1 of 3 -- 2 i) A copy of the title search conducted identifying the adult’s property; and ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. (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 the adult changes in any way or the adult 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 the adult’s interest in another property. DIRECTIONS 8. The applications for directions for DAM are CATCHWORDS: APPEARANCES & REPRESENTATION: BJT The Public Trustee dismissed. HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – review of appointment – directions – where adult had entered real estate transactions which benefitted daughter – where administrator seeking contribution from other owner – where request for direction to administrator to stop pursuing the daughter Guardianship and Administration Act 2000 (Qld), s 12, s 31, s 35 L Bowen, of counsel, instructed by G Pharmacis R Whiteford, of counsel REASONS FOR DECISION The Tribunal made an order on 17 February 2017 appointing the Public Guardian as guardian and The Public Trustee of Queensland as administrator for the adult. The adult had previously resided in a coastal city but had moved to a country area to live with her daughter and her family. This necessitated the sale of the coastal property but as the country property was bought prior to the sale bridging finance was given subject to DAM selling her coastal property. There was a concern that these transactions were disadvantageous which was why the initial applications were made to the Tribunal. The Public Trustee has, since its appointment, arranged for the sale of the coastal property and paid out the mortgage on the country property. It is noted that this -- 2 of 3 -- 3 property is owned by both DAM and her daughter, BJT, and that in paying out the mortgage, BJT has been advantaged. The Public Trustee sought contribution from BJT for the paying out of the mortgage and she made an application to the tribunal seeking that The Public Trustee be directed not to pursue this matter and then later made an application to the tribunal for the review of the appointments of the guardian and administrator. BJT alleged that, in pursuing her for a contribution in regard to the house, they would force the sale of the property which would make DAM homeless. The Public Trustee submits that where such a transaction has occurred and a benefit has been placed on a party that they have a duty under s 35 of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’) to act honestly and with reasonable diligence to protect the adults interests. They do not accept that the only way of dealing with The Public Trustee’s actions in regards to seeking contribution is to sell the house forcing the adult to become homeless. It was argued for BJT that it was DAM’s intention that BJT benefit from the transaction. I am satisfied that The Public Trustee is acting appropriately in ensuring that DAM’s interests are protected in regard to ensuring that if the funds used to pay off the mortgage on the house owned by DAM and BJT which were wholly supplied by DAM are if necessary partially reimbursed to DAM or that her equity in property as a result of her funding of it is recognised. The application for directions is dismissed. When reviewing appointments the Tribunal does so in accordance with s 31, s 12 and s 114 and s 15 of the GAA Act. That requires the Tribunal to be satisfied that the adult has impaired capacity and that is a need for decisions in regard to particular matters which require the formal appointment of a decision maker. If I am satisfied that there is a need for a decision-maker I am, in accordance with s 31(4) of the GAA Act, to continue the appointment of the current decision maker unless the current appointee is no longer competent or there is another party more appropriate. DAM has a diagnosis of Alzheimer’s dementia and her score on the Montreal Cognitive Scale was 17 out of 30 on 14 September 2017 with a major deficit in short term memory. I am satisfied that as a result of Alzheimer’s dementia, DAM does not have capacity for personal and financial matters. At the hearing it was noted that DAM receives extensive support from DVA and they monitor her supports and needs. There were no issues raised about BJT’s care of DAM and overall there was a view that there were no decisions which would require a guardian. I accept that that there is no need for a guardian and the appointment of the Public Guardian is revoked. As mentioned above, I consider that The Public Trustee is acting competently and appropriately to protect DAM’s interests in regard to any claim against BJT in respect of the property. DAM has assets and income to be managed and so there is a need for an administrator. Clearly in a situation where BJT is subject to action by the administrator there is would be a conflict of interest in allowing her to assume the role. So she is not more appropriate than The Public Trustee. I am satisfied that The Public Trustee is both competent and that there is no one more appropriate for an appointment. I continue the appointment of The Public Trustee. -- 3 of 3 --