BAR [2018] QCAT 278

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BAR [2018] QCAT 278 PARTIES: In applications about matters concerning BAR APPLICATION NO/S: GAA12495-17, GAA1191-18, GAA7394-18; GAA7682- 18 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: Date of orders 1 August 2018 Reasons delivered 14 August 2018 HEARING DATE: 25 January 2018; 22 February 2018; 29 March 2018; 2 July 2018 HEARD AT: Southport DECISION OF: Member Joachim ORDERS: GUARDIANSHIP 1. The application by DY for the appointment of a guardian for BAR is dismissed. ADMINISTRATION 2. The administration order made by the Tribunal on 25 January 2018 is changed by removing the Public Trustee of Queensland as administrator and appointing Australian Unity Trustee Limited as administrator for BAR for all financial matters. 3. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. NOTICE OF INTEREST IN LAND 6. Before 31 October 2018 the administrator must: (a) Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. -- 1 of 16 -- 2 (b) Provide confirmation to the Tribunal that this has been completed by providing: 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, 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 notice to the Registrar about the changes or the adult’s interest in another property. ENDURING POWER OF ATTORNEY 8. The following Enduring Power of Attorney for BAR is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998: (a) The Enduring Power of Attorney dated 26 October 2015 appointing SW as attorney for financial, personal and health matters. COSTS 9. The application for costs by BAR is dismissed. DIRECTIONS 10. That the administrators, Australian Unity Trustees Limited, do all things necessary to ensure that the proceeds of the sale of the attorney’s property (which was purchased with funds given to her by BAR) and held by Gall, Stanfield and Smith, Solicitors are returned to the adult. CATCHWORDS: GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where applicant seeks the appointment of a guardian – where appointment of an administrator is being reviewed – where there are allegations of financial abuse – where adult has made a significant gift – where adult is ineligible for Centrelink benefits – where significant sums of money are unaccounted for – whether adult has impaired capacity -- 2 of 16 -- 3 for decision making – whether adult has been unduly influenced – whether there is a need for a substitute decision maker – whether an alternative administrator should be appointed – whether costs should be awarded Guardianship and Administration Act 2000, s 12, s 31, s 127(2) Powers of Attorney Act 1998 (Qld), s 72, s 82, s 87, s 88 Allcard v Skinner (1887) 36 Ch D 145 APPEARANCES & REPRESENTATION: Applicant: Self-represented On 25 January 2018 BAR was represented by J Smith, Solicitor of Gall, Stanfield and Smith Thereafter BAR was represented by M Mallon, Solicitor of Bennet and Philip Lawyers REASONS FOR DECISION [1] BAR is 81 years of age and lives on the Gold Coast. Previously he lived in northern New South Wales for most of his life. He was a farmer. He married NWR and they had a 37 year marriage. During this time he helped NWR raise her two adopted children SY and HL whom he regarded as his own. SY and HL are now adults. HL lives on the Gold Coast and SY lives in Tasmania. Around June 2015, BAR met SW. BAR had been very depressed following the death of NWR as well as being very lonely. The two children report a negative change in their relationship with their father following his meeting of SW. [2] BAR executed an enduring power of attorney in May 2010, which appointed NWR along with the two children as attorneys under an enduring power of attorney. Following NWR’s passing, BAR executed a further enduring power of attorney in June 2010 appointing the children and his daughter in-law as his attorney for personal and financial matters. He subsequently executed a new enduring power of attorney on 26 October 2015 by which he appointed SW as his attorney for personal and financial matters. This had the effect of revoking the earlier enduring power of attorney. [3] On 25 January 2016, SW purports to resign as attorney by writing on a copy of the enduring power of attorney of 26 October 2015, “attention [BAR], revoked 25 January 2016 due to ongoing family and [illegible] ‘issues’ I cannot keep your best interests in sight.” [4] The Tribunal received applications from DY, BAR’s daughter in law and SY’s wife, seeking the appointment of a guardian and an administrator for BAR, specifically seeking the appointment of the Public Guardian as guardian and seeking the appointment of the Public Trustee of Queensland as administrator. These orders were sought in part because of a gift which BAR gave to SW in an amount of $420,000 by way of cheque dated 18 February 2016. The application noted that SW had used these funds to purchase a property at Surfers Paradise and the property was subsequently -- 3 of 16 -- 4 sold with settlement taking place at the end of November 2017. The proceeds of the sale continue to be held in a trust account by her then solicitor Gall Stanfield Smith. The application raised concerns that SW was financially taking advantage of BAR and that BAR’s health was at risk due to non-compliance with health care practitioner’s advice and that decisions need to be made in relation to his accommodation, health care and services. [5] Following an interim order the Tribunal started hearing the application in January 2018. The Tribunal at that time made an appointment of the Public Trustee of Queensland as administrator with the appointment to be reviewed by 28 February 2018. The reason for the short appointment was that the Tribunal, whilst being satisfied on the balance of probabilities in relation to capacity was not satisfied with the quality of the health professional reports and directed that BAR be assessed by a neuropsychologist. [6] Certain directions were given that a report prepared by the Public Trustee on BAR’s finances which the Tribunal thought to be critical in assisting to determine BAR’s capacity be provided to the neuropsychologist. This was not done. Additionally the neuropsychologist did not have the benefit of talking to the son and daughter of BAR. [7] As a result at the subsequent hearing of the matter, which was delayed until 29 March 2018, a further adjournment was required because the neuropsychologist did not have all of the information that the Tribunal wished her to have. The Tribunal requested a supplementary report after the neuropsychologist was provided with the Public Trustees’ report. The appointment of the Public Trustee continued. The Tribunal made an adult evidence order on 29 March 2018 and heard evidence from BAR in the absence of any other party. The resumed hearing took place on 2 July 2018. It is relevant at this point to give some further history in relation to BAR’s financial affairs. [8] On 6 October 2015, BAR attended Centrelink financial information services to discuss the sale of his land and wanted to know if he would lose his pension and if there was anything he can do to keep the pension if the sale went ahead. The financial information service noted that the asset test rules were explained to BAR and advised they will change again in February 2017 such that he will exceed the limit for a pension under the assets test. The gifting rules were explained to him and he was also advised that he would be in a good position and should not try to get rid of assets in order to qualify for the pension as it will just be making himself worse off overall. [9] BAR’s evidence on this point was that he went to Centrelink for the discussion and was told that making the gift was ok. He came away thinking it was all right to make the gift that he did. [10] Following the sale of BAR’s properties, he bought a property to live in at Nerang which cost around $420,000. He sold this in February 2017 after doing around $40,000 worth of improvements for $491,000. The reason he sold this property was so he could move to Adelaide as SW wished to move there to be closer to her friends. In early 2017, he bought into a retirement village in Adelaide. He lived there for only a few months and eventually sold out in December 2017, making a loss of some $60,000 on the transition. Prior to the sale he moved back to the Gold Coast in August 2017 and moved from place to place, including spending some time in hospital after a motor vehicle accident and spending some weeks at SW’s unit in Surfers Paradise. During most of this time SW had returned to the United States. -- 4 of 16 -- 5 [11] BAR had originally held a view that SW would be his carer. He advised that she was a regular companion for him and brought him out of a deep depression. He said that was the reason he gave her $420,000. They went on trips including cruises together and he hopes to go on further trips with SW and that she will be his companion. [12] BAR was subsequently assessed by a neuropsychologist, Kaylene Alderton. She prepared an original report and a supplementary report. A second neuropsychologist, Dr Simone Baker was engaged to assess BAR’s capacity. [13] The application for guardianship is an application under s 12 of the Guardianship and Administration Act 2000 (‘GAA’). The issues for the Tribunal are: does BAR have capacity for his personal matters. If not, is there a need to appoint a guardian and if so who should be appointed and what powers should they be given. [14] With respect to the review of the appointment of the Public Trustee as administrator the Tribunal needs to take into account s 31 of the GAA which provides that at the end of the review I must revoke the appointment unless I am satisfied I would make an appointment if a new application were to be made. This requires me to consider s 12 of the GAA. i.e. BAR’s capacity for financial matters and if he lacks capacity, if there is a need to appoint an administrator and what powers are required. The Tribunal can only replace an existing administrator if the current administrator is no longer competent or another person is more appropriate. [15] BAR prefers Australian Unity Trustees over the Public Trustee if I find he requires an administrator. He felt he would get on with them better and thought their fees were reasonable. He could not tell me what the fees were. [16] The evidence of BAR’s children is that when SW and BAR struck up their relationship, the contact with them deteriorated and BAR commenced spending large sums of money. BAR and SW gave evidence that the children did not have regular contact and did not provide assistance to BAR. The children dispute these claims and have particularised in their submissions the type of contact and support they gave to BAR. [17] SY advises, and I accept, that he, along with his wife and young children flew to Queensland in July 2015 to be with BAR and support him through surgery that he was going to have. BAR subsequently cancelled the surgery because he allegedly did not get a private room preoperatively. At that time BAR told SY that he intended to give his enduring power of attorney to SW and BAR told him of his fondness for SW. It is evident from the material submitted to the Tribunal that there has been a significant souring of the relationship between BAR and his children as a result of the application and as a result of the suspicion with which they viewed SW. [18] The children felt that SW was influencing their father unduly in his decision making, particularly in relation to his financial matters as his finances had deteriorated significantly following the sale of his two properties. Not only had he gifted $420,000 to SW but he had also purchased her a number of vehicles including a Subaru and two BMWs. As a result of these transactions BAR was further significantly out of pocket because of the depreciation of the vehicles when sold, as part of the process of replacing them with a new vehicle. In addition to this, there was a loss on the purchase in Adelaide (which appeared to be an ill-conceived purchase) and subsequent sale. -- 5 of 16 -- 6 [19] Notwithstanding these transactions however, the children argue that there is still some considerable money unaccounted for in the vicinity of $350,000 - $400,000. When I discussed this privately with BAR, he was unable to explain to me where his funds had gone. There was approximately $350,000 that he could not account for. He did not say at anytime that he did not wish to tell me where the money had gone. I have noted that SW provided a statement in which she claims to account for the funds. This document is quite deficient. I note one entry which says withdrawal of $100,000 with no supporting documentation. Certainly BAR spent money on doing up properties and getting his property ready for sale in the first instance. He also spent money on various trips with SW. Notwithstanding, there still remains, in my view, a short of around $350,000 which BAR was unable to explain to me. [20] The first matter I need to consider is BAR’s capacity. Capacity is defined in Schedule 4 of the GAA: (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [21] An adult needs to have all three skills outlined in the definition of ‘capacity’ to have capacity for decision making. Capacity is decision specific. In BAR’s situation I have to determine whether he has capacity to make decisions about his personal matters and his financial matters and no one else’s. All adults in Queensland are presumed to have capacity. That presumption can be rebutted with relevant evidence. [22] BAR’s financial matters consist of a recently acquired unit at Nerang worth approximately $255,000, cash at the Public Trustee of just over $67,000. He has annual expenses of around $28,500. He has no income apart from a small amount of interest. His annual budget is in deficit of $24,000 per year. Additionally he may have some legal issues with Centrelink that need to be dealt with as a result of receiving a pension post the gifting. [23] Ms Alderton provided an initial report to the Tribunal in which she reported her findings following a range of assessments on BAR’s capacity for decision making. Her conclusions were that BAR’s results show that he has good and relatively consistent cognitive function. His results suggest an undiagnosed verbal learning disorder (from childhood) and some mild frontal lobe damage. This might be the result of a couple of car accidents he has experienced or alternatively small bleeds. There is no evidence of dementia of any type at this point in time. [24] This assessment does not make judgment on any other person, does not take into account consideration what people have said or alternatively not said to BAR, and does not take into account what they have done or not done in relation to BAR. The results of this assessment indicate that BAR is competent to understand the nature and effect of decisions that he had made and makes, and he makes those decisions voluntarily. Ms Alderton reported that people might agree or disagree with his decisions or consider that some decisions are not as well thought out as they could be, however he has the right to make decisions that others might consider foolish as does anyone else. She concluded that BAR is able to communicate these decisions clearly and her report finds BAR to be competent. -- 6 of 16 -- 7 [25] As noted earlier, the assessor did not have access to a report on BAR’s finances and the Tribunal requested a supplementary report. In preparing for the supplementary report, Ms Alderton also spoke to SY and HL as well as reviewing the report from the Public Trustee of Queensland. The findings that Ms Alderton made following her further analysis was that she found BAR to be mildly incompetent personally and therefore recommended that the Public Trustee supervise the following indefinitely. She meant the Public Guardian. She recommended a medication review, visits by a community nurse, acceptance of community cleaning, attendance at a general practitioner and cardiologist and neurologist regularly. She made various suggestions in relation to his accommodation. [26] In relation to personal decisions, Ms Alderton stated that BAR understands the facts involved in decisions and understands the main choices that exist, but that he is poor at weighing up the consequences of these choices and has a lowered ability to understand how these consequences might affect him. In relation to the gift, she said she believed BAR understood the nature of his actions, but not the effect at the time he made the decision. He did not plan or understand enough of the consequences of his decisions, he just made an assumption of how the money would be used. She referred to his impulsive behaviour in this regard and noted that the children believe that sometimes BAR does not think things through. Ms Alderton also stated that there appears to be minimal future planning for accommodation and financial security and evidence of behavioural impulsivity. [27] In relation to financial matters, Ms Alderton said that she believed BAR has understood the contracts he has signed in recent years. This includes the sale of two properties and houses, and he has understood the nature of the contracts and the effect of the contracts. He told her that he said he entered into these contracts freely and voluntarily with some reservations about relocating to Adelaide. [28] Ms Alderton states BAR is able to buy a house, sell a house or rent property. The difficulty comes when he has had enough. In this scenario, he is likely to sell the house with little consideration to the consequences or thought to relocation costs and practicalities. She goes on to say that if BAR does not like people there he is likely to sell rather impulsively so he can move elsewhere. She states that BAR has understood the nature of his actions but not the effect that this would have on his future finances at the times when decisions have been made. She says there is nothing wrong with wanting to relocate, upgrade, downsize, change your mind and alike but planning is required when consideration to timeliness, costs and practicalities. She goes on to say at this point in time BAR can pay his bills and such things as electricity, gas, water and phone. He has not shown enough evidence of financial planning to manage his body corporate and rates and recommends the Public Trustee be responsible for proper payment of these accounts. [29] Further, Ms Alderton states there is evidence that hundreds of thousands of dollars have been wasted and unaccounted for at the time of this assessment. He has caused himself financial harm in terms of his overall income streams including Centrelink, even if this matter has been misunderstood or resolved. She states BAR is moderately impaired in his competency relating to money and finances. She states that BAR does not have a history of managing money of large sums and he is unaccustomed to financial planning and financial security into old age. BAR is unlikely to seek or weigh up professional advice however, he told me of two payments made to two individuals that he did not think deserved the money but due to their reported character -- 7 of 16 -- 8 he gave them money. Ms Alderton has said that BAR does not have a full understanding of financial matters, government payments and financial planning. She concluded by saying that the Public Trustee be requested to be a safeguard and a sounding board, and again referred to BAR’s limited competency in relation to financial matters. [30] Dr Simone Baker, who is also a neuropsychologist, conducted a further assessment before the last hearing. She had the benefit of Ms Alderton’s two reports and also conducted interviews with the two children. She also undertook a comprehensive clinical interview and administered a small battery of tests including the financial competence assessment inventory. Dr Baker concluded that BAR had capacity to manage his own financial affairs and to understand the cause and effect of his decisions without assistance. She also concluded he has capacity to make decisions about all financial matters. She concurred with Ms Alderton’s first report. In relation to the supplementary report she did not agree that BAR exhibited some minor incompetency. [31] Dr Baker also noted however, at paragraph [87], that on the basis of BAR’s self-report there was evidence of vulnerability from undue influence from others, namely SW. By BAR’s own admission he is profoundly in love with SW and as such has made impulsive and ill-informed decisions. However, BAR acknowledges that he has made bad choices and displayed intact knowledge as to the consequences and impact of these choices on the conduct and execution of his financial affairs. [32] Ms Alderton and Dr Baker attended the hearing and heard each other’s evidence and had an opportunity to comment on it. [33] Ms Alderton stated that BAR doesn’t regret decisions that he has made, but that he has not thought through the consequences. She described him as impulsive and belligerent and not weighing things up. She advised BAR was deeply fond of SW and saw a future with her, although SW had made it clear she doesn’t want a relationship and just wants to be a friend. She further explained that BAR doesn’t care about the consequences of his decisions and puts this down to his impulsiveness. She referred to him as having an impulsive personality, but no cognitive impairment. She advised that at the time of BAR’s deep depression he would have been vulnerable. [34] In her report, Ms Alderton refers to incompetency rather than incapacity. When questioned by BAR’s lawyer, she said incompetent meant that a person is impaired and they don’t have the ability. She described BAR as cognitively competent, perhaps having some learning difficulties, slow in processing and being impulsive. She said that does not make him incompetent. She concluded that he does have capacity. There is no evidence of dementia, and she did not see her supplementary report as a change in her opinion. She said that BAR has not made good decisions and this is a personal area of weakness. She argued that people can make bad decisions and have competency. [35] When asked why she thought BAR could not account for his funds given that she says he has a good memory, she opined that he has little interest in money. She agreed with Dr Baker’s findings. She concluded by saying that BAR hasn’t got the common sense to manage his money and, that he would do it all again, reflects on his personality. -- 8 of 16 -- 9 [36] Dr Baker gave oral evidence that in her opinion BAR has intact decision-making capacity for personal and financial matters. She also indicated that in spite of this, he could make poor choices. She referred to his strong and deep regard for SW and deep gratitude when he was extremely distressed and feeling isolated. She noted that BAR could provide some breakdown of his finances but may have made decisions not to reveal all of it. She indicated that she gained an understanding of BAR’s ability to understand the nature of decisions he made by applying the financial competency assessment inventory and using a semi-structured interview. She referred to Ms Alderton’s report as very comprehensive in terms of BAR’s general abilities and executive functioning noting that his cognitive profile showed no evidence of intellectual disability or impairment of executive functioning. She suggested that the point of difference in her report and Ms Alderton’s supplementary report may be due to different language leading to confusion. [37] Following the oral evidence of the psychologists, the Public Trustee provided the Tribunal with a file note of a discussion held by an officer of the Official Solicitor’s office with a former solicitor of BAR’s, Mr William Campbell. This file note gave rise to concerns about BAR’s ability to make decisions freely and voluntarily. As a result, the Tribunal sought and obtained oral evidence from Mr Campbell. This evidence is summarised below. [38] Mr Campbell stated that he had a discussion with BAR on 20 October 2015 about BAR’s will. He described it as a general discussion. He received a report from a General Practitioner, Dr Buring, on 10 December 2015 saying that there was no evidence of impairment. The next day, BAR returned to see Mr Campbell where he took more detailed instructions from BAR in terms of his will. These instructions included part of his estate going to each of his step children and some of his estate going to SW. [39] Following the consultation, BAR returned to the waiting room where SW was waiting and Mr Campbell could hear her speaking in a raised voice from his room and his receptionist also reported a loud discussion between BAR and SW. Within a few minutes, BAR returned to Mr Campbell’s office. Mr Campbell reported that BAR said to him that “[SW] is not happy with what I am doing”. She did not want BAR’s children to be included in the will and BAR advised that he now wanted to leave everything to SW. Mr Campbell had a very clear recollection of the discussion given that the instructions were diametrically opposed to those given minutes earlier. BAR said that he needed to keep SW happy. Mr Campbell advised that his clear recollection was because of the very unusual circumstances. Mr Campbell advised BAR had been a client of his personally for around five years, but of the firm for many, many years. [40] Mr Campbell refused to prepare the new will and considered that BAR was not acting freely and voluntarily in his subsequent instructions. Mr Campbell stated that he had talked to BAR about duress in the past in respect of SW, but BAR had conceded to Mr Campbell that he was weak and thought it was worth doing what SW wanted him to do. Mr Campbell confirmed that the following paragraph in the file note from the Official Solicitor was an accurate report: I noted that [SW] had purchased a Surfers Paradise unit in April 2016. In terms of capacity Bill thought that [BAR] had capacity in 2016. He saw [BAR] in February 2016 on his own. [SW] was not present. The only caveat to the capacity comment is that Bill thought that [BAR]’s will was being overborne -- 9 of 16 -- 10 by [SW]. Bill advised [BAR] is a weak little man who is easily controlled. He cannot recall a clearer case of elder abuse which he believes was blatant. He described [SW] as having a very domineering personality and being quite forceful. (Scott Argles for the Official Solicitor) [41] Both BAR and SW do not agree with the evidence of Mr Campbell. BAR’s solicitor submitted that BAR strongly disagrees that he is strongly influenced by SW. He denies saying that he is weak and would do whatever she wanted. BAR and SW were not happy with the way SW was treated by the firm and went elsewhere. Mr Mallon submitted that BAR can make decisions freely and voluntarily without influence from anyone. Submissions [42] DY submitted that this was clearly a difficult matter and the Tribunal should be guided by Ms Alderton’s supplementary report that BAR was able to make some, but not all, of his financial decisions. She acknowledged that there was no need for the appointment of a guardian. [43] SY considered that we were simply dealing in semantics and that the evidence is clear that BAR can’t manage his money. He submitted that BAR did have the ability to live out his days in comfort but that has all changed and he now has no assets and no way of getting himself out of the hole. SY said there is a need to make sure that BAR is protected and that someone needs to look after him. He stated that BAR can make his own medical decisions. [44] Karen Rush from the Public Guardian advised that the Public Guardian had no submissions to make regarding capacity, and that if the Tribunal does find that BAR lacks capacity there may be a need for an accommodation decision, as he may not be able to afford to live in his house. [45] HL submitted that BAR’s past behaviour shows that he is unable to manage his money. She submitted that his dreams to travel had gone and that if shown not to have capacity the Public Trustee should be appointed as he will fall out with Australian Unity. [46] SW advised that she knows BAR has capacity and she will certainly make sure that he is not left high and dry. [47] Mr Mallon submitted that BAR has capacity for all financial matters and wants the appointment of the Public Trustee revoked. In relation to Mr Campbell’s evidence he submitted it should be rejected on the basis that Mr Campbell is not a doctor and is not in a position to indicate whether undue influence was used. He further submitted that Dr Baker addressed the issue of undue influence in paragraph [87] of her report. Mr Mallon submitted that the Public Trustee has had multiple case officers, that BAR’s bills have not been paid on time, and gave examples of dentists and glasses bills. [48] Mr Mallon points out that Ms Alderton’s report of 20 February 2018 indicates that BAR is competent and that the test results indicate that he is able to understand the nature and effect of decisions, that he is free and makes these decisions voluntarily, and that whilst people might disagree with his decisions or consider that some are not -- 10 of 16 -- 11 as well thought out as they could be, he has the right to make decisions that others might consider foolish as does anyone else. [49] Mr Mallon heavily criticises the supplementary report in that it contradicted many of the conclusions found in the first report. He submits that no reason is provided by Ms Alderton as to why she changed her opinion on BAR’s capacity after completing the first report. He also criticised her for using the term competent, rather than capacity in both reports. In my view this was clarified in her oral evidence and that the terms were essentially interchangeable, although she did not describe it in exactly those terms. [50] On the other hand, Mr Mallon urges the Tribunal to conclude from Dr Baker’s report that Ms Baker has full capacity for both personal and financial matters. He submitted that there is no medical evidence provided to the Tribunal which states conclusively that BAR does not have capacity to make decisions about his personal and financial matters. He submits there is no need for an appointment of a guardian or an administrator, even if I found that BAR lacked capacity. He submits that there is no evidence demonstrating a real risk that BAR’s needs will not be adequately met nor his interests adequately protected in the absence of an appointment or an administrator in circumstances where BAR lacks capacity. [51] Alternatively, Mr Mallon submits that if I find there is a need for an appointment that Australian Unity Trustees should be appointed as BAR has had ongoing problems with the Public Trustee and believes that Australian Unity Trustees are better placed to protect his interests and manage his financial affairs. BAR submits that their fees are reasonable. The Tribunal’s view on BAR’s capacity [52] For a person to have capacity all three limbs of the definition must be satisfied. That is, to have capacity for decision-making for a person’s matters, the person must understand the nature and effect of decisions, be able to make decisions freely and voluntarily and be able to communicate the decisions in some way. [53] It is my view, based on the evidence, that BAR certainly understands the nature of the decisions he has to make and he can communicate these decisions in some way. [54] I am quite disturbed about the evidence given by Mr Campbell. I do not accept the submissions of Mr Mallon with regards to that evidence. Mr Campbell’s evidence was that BAR was clearly unduly influenced by SW when he returned to his waiting room to tell SW what the outcome of his first meeting was in respect of the will preparation. Mr Campbell refused to take BAR’s subsequent instructions on the basis that they were not being given freely and voluntarily, and that in his opinion BAR had been overborne by SW. [55] The evidence is clear that there was a discussion of a somewhat heated nature in the waiting room of the solicitor. Following that heated discussion, BAR returned with instructions to Mr Campbell which were diametrically opposed to those that he had just given. [56] I have formed the view that on that occasion BAR was not capable of making decisions freely and voluntarily. -- 11 of 16 -- 12 [57] I accept the evidence of the psychologists that BAR is not cognitively impaired to the extent that he understands the nature of the decisions before him. There is some speculation as to whether he understands the consequences of the decisions or if he is simply a bad decision-maker who does not care about the consequences of the decisions he makes. [58] It is clear to me that BAR has made decisions that he would not otherwise have made if SW had not been influencing him. It is extraordinary that a person would give another approximately just under one third of one’s estate for providing companionship and friendship for a short period. BAR was in a very vulnerable position following the death of his wife. On the reports from his family he was in a depressed state which the psychologists agree would have made him vulnerable. In these circumstances he has given away $420,000, and in addition to this he has provided a number of cars to SW. [59] The psychologists did not have the opportunity to hear Mr Campbell’s evidence regarding undue influence. Dr Baker, however, does comment on the issue of undue influence, commenting on BAR’s self-reporting. She concluded there was evidence of vulnerability from undue influence from others, namely SW. [60] I do not accept Ms Alderton’s view that the findings in her supplementary report are consistent with her original findings. I do not accept that it is merely a matter of semantics. I do not accept her view that her comments in her supplementary report can all be put down to impulsiveness. For instance, she says that BAR understands the main choices that exist, but that he is poor at weighing up the consequences of these choices and has lowered ability to understand how consequences might affect him. [61] She says in relation to the gift, BAR understood the nature of his action but not the effect at the time he made the decision. In relation to selling or renting property, she says he is likely to sell with little consideration to the consequences or thought to relocation costs or practicalities. BAR has understood the nature of his actions but not the effect that it would make on his future finances at the time when the decisions were made. Later she says he is unlikely to seek or weigh up professional advice. [62] It is my view that Ms Alderton has formed a somewhat different view of BAR after receiving the Public Trustee’s report and having discussions with his children. Her supplementary report contains, on any reasonable reading, quite different conclusions from her first report. In this regard, I accept the submissions of the applicant who indicated that the explanation given by Ms Alderton for the differences should not be accepted. In other words, that Ms Alderton had meant something different from what she had actually written. DY stated that the supplementary report was clear that her father had partial capacity, but for complex matters needed assistance and advice. [63] It is reasonable, in my view, to assume that the reasons why Ms Alderton appeared to change her opinion was because she had three additional sources of information, namely the Public Trustee report, and the interview information from the two children. Mr Mallon submits that Ms Alderton made wide ranging statements in her supplementary report without any evidence or material referred therein to substantiate her views, and he submitted that only little weight can be given to her reports for these reasons. At worst, he submits the supplementary report is wholly unreliable and -- 12 of 16 -- 13 cannot be considered. I do not accept all this. The supplementary report is more in accord with the other evidence and my below findings. [64] I must start with the position that BAR has capacity. This presumption can be rebutted. The following matters are those which I consider weigh against BAR’s argument that he has capacity for financial matters: (a) I have come to the view that the event in Mr Campbell’s office was a clear example of BAR being overborne and not being able to make a decision freely and voluntarily; (b) His inability to explain where approximately $350,000 of his funds have gone concerns me greatly. If one can’t explain where a significant amount of money has gone, then this certainly goes to the ability to understand the nature and effect of decisions made; (c) He gave evidence that he believes Centrelink had told him that it was all right to gift the money to SW. This was clearly an incorrect understanding of what he was told; (d) He has said he would do this all over again, including the giving of the $420,000 to SW. On one level this could be regarded as rather foolish. On another level it could be considered to be an inability to learn from one’s mistakes, or appreciate the consequences of his decision; (e) The lack of consideration of the consequences of the property purchases and sales; (f) Further, Ms Alderton has said he understands the nature but not the effect of actions on his future finances; (g) Dr Baker’s report evidences vulnerability due to undue influence, although I accept, that for the most part, he has good cognition and at times has made impulsive and ill informed decisions; (h) BAR could not tell me the fees of his alternative administrator, Australian Unity Trustees, nor could he tell me the Public Trustee’s fees. I reject the Solicitor’s submissions on that point, namely that BAR considered the fees to be reasonable. BAR had no idea what the fees were when I asked him. This is a matter that he ought to have recalled and considered as part of any rational decision making regarding appropriateness; (i) I consider that the gifting behaviour of BAR to be out of the ordinary. I find it quite exceptional. It is, however, not the only factor that I am considering and I take into account the comments in Allcard v Skinner (1887) 36 CHD at 183 regarding not setting aside gifts out of folly, imprudence or want of foresight; (j) I also take into the evidence from the children that their relationship with BAR has suffered significantly since SW came onto the scene; (k) I take into account the history of multiple purchases of cars which were undertaken solely at SW’s request according to BAR; -- 13 of 16 -- 14 (l) I take into account that BAR does not weigh things up before making a decision; and (m) Finally, I accept BAR was in a deep depression and vulnerable at the time SW came into his life. He was highly dependent on her for emotional and personal support. [65] The matters that I have just raised cannot simply be explained away by impulsivity. I accept that BAR can be impulsive and I accept that he can make some bad decisions. The neuropsychologist reports indicate that he does not have a cognitive impairment. That, however, does not mean that he can necessarily make decisions freely and voluntarily, and on occasions not consider the consequences of his decisions. [66] It is possible, that on occasions, BAR does consider the consequences of his decisions, but not care about them. It was put to me that he decided not to take HL’s advice regarding her concerns about gifting in light of the Centrelink rules. I am however inclined to the view that he was so besotted with SW that he was willing to do whatever she wanted to please her. [67] Having considered all the evidence and the submissions, I have formed the view that BAR does not have capacity for any significant financial matters and I will be appointing an administrator. I consider that this has been the case since December 2015 as evidenced by the incident in Mr Campbell’s office. [68] Because I have come to this view, that BAR does not have capacity for financial matters, it is not possible for SW to resign to him as attorney (sections 72 & 82 of the Powers of Attorney Act 1988). SW must seek leave of the Tribunal to resign. At the last hearing, I invited her to do so in the event that I made this finding. She did not do so. [69] I have concluded that there is a need for decisions and without an appointment BAR’s needs will not be adequately met or his interests adequately protected. Further I cannot be satisfied that he will not do something involving or likely to involve unreasonable risk to his finances or property. His assets need to be protected and action taken to recover former assets. [70] As for personal matters, the applicant conceded that there was no need for the appointment of a guardian. The weight of evidence was that BAR could make reasonable decisions about his non-financial matters. As a result I will dismiss the application for the appointment of a guardian. Who should be appointed administrator [71] The options for the tribunal are to continue the appointment of the Public Trustee of Queensland or appoint Australian Unity Trustees. The applicant argues that the Public Trustee should be retained because despite BAR’s poor relationship with them this will in time transfer to Australian Unity. BAR submits that the Public Trustee have had a number of trust officers, his bills don’t get paid on time, fees are high, and that the relationship is poor. The Public Trustee rejects that BAR’s bills are not paid on time and expressed some surprise at most of the other comments. [72] BAR says he prefers Australian Unity as he believes they are better placed to protect his interests and manage his financial affairs. He also submitted that their fees are -- 14 of 16 -- 15 reasonable. I was referred to the general principles under the Act by Mr Mallon when considering this matter. [73] As noted earlier I can only replace an existing appointee if I find that the current appointee is no longer competent or that another person is more appropriate. I do not find that the Public Trustee is no longer competent. The Public Trustee has appeared to me to have done a professional job. [74] I am concerned, however, that there appears to be somewhat of a breakdown in the relationship between BAR and the Public Trustee and that he has some distress over their appointment. There does not appear to be great differences in costs although BAR could not articulate these. I will accept the submissions made by BAR and on his behalf and appoint Australian Unity Trustee as his administrator on the basis that they are more appropriate for BAR at this time. Post hearing submissions [75] At the end of the hearing on 2 July 2018, I reserved my decision and sought submissions from the applicant regarding a costs application from BAR. I also invited parties to provide submissions regarding any particular orders I should make about the gift, Section 87 of the Powers of Attorney Act 1998 (presumption of undue influence) and the Enduring Power of Attorney of 26/10/15, if I found BAR lacked capacity for financial matters. [76] I have already addressed the issue of the Enduring Power of Attorney of 26/10/15. An Attorney cannot resign to an adult with impaired capacity. [77] As I have made a finding about from when BAR had impaired capacity I reject any submissions regarding his having capacity at the time of the gift. [78] In relation to the gift I accept that BAR has maintained his desire for SW to have this. I consider, however, that based on the totality of the evidence he did not have capacity to make it. I therefore reject submissions that no order should be made about it. [79] The circumstances of the purported resignation of SW as attorney are irrelevant to my consideration. I accept that SW did not make the gift pursuant to S88 of the Powers of Attorney Act 1998 but am unable to conclude she breached that section by accepting the gift as the Public Trustee submitted. [80] In relation to s 87 of the Powers of Attorney Act 1998 (Qld) SW denies she used undue influence in relation to the gift or anything else. She denies using the EPA at all. She thought reasonably she had resigned as attorney. I am disinclined to use that section against her, despite the Public Trustee’s submissions on that point. [81] The Public Trustee proposed directions that I should make to SW or the solicitors holding the proceeds of the sale of her unit. I am not satisfied that I have powers to direct a solicitor in relation to their trust account disbursement. An alternative proposal was to direct SW to instruct the solicitors to hold the funds pending a resolution of the dispute as to ownership, either by a court determination or agreement. I find that potentially restricting to an administrator and favoured directing the administrator to “do all things necessary” to ensure the proceeds are returned to BAR. I was satisfied that this, along with providing the solicitors a copy of the order, would provide the most flexible option. -- 15 of 16 -- 16 [82] The submission from the family alleges a possible relationship between Australian Unity Trustees and Mr Mallon as a result of an overheard conversation arranging lunch. I am not persuaded on this point which suggests some form of collusion. [83] I have considered the other submissions of the family and the submissions of SW. These did not persuade me to make orders other than those I have made. Final Matter [84] Following the hearing the Tribunal received a copy of a file note from Jennifer Smith of the Public Trustee summarising a telephone conversation she had with a Deborah Cramer. Ms Cramer had known SW for some time and had met BAR. This file note was critical of SW’s influence over BAR. Parties were invited to comment on the file note. [85] The general view of the parties was that, as it was untested the Tribunal should not take it into account in making a decision on the application and that the Tribunal had sufficient information on which to base a decision. [86] I agree with those submissions and have not considered the material at all in making my decision. Costs [87] BAR seeks an order that the applicant pay his costs in relation to the proceedings. Submissions have been invited with regard to this. [88] The Tribunal has power to order an applicant to pay an active party’s costs in exceptional circumstances pursuant to s 127(2) of the GAA. As to what is exceptional is a matter of discretion and is to be considered on a case by case basis and is to be considered according to the circumstances of the case. [89] In circumstances where the Tribunal’s findings support an application, it can hardly be exceptional. This application must fail. -- 16 of 16 --