CJR [2018] QCAT 76

CITATION: CJR [2018] QCAT 76 PARTIES: CJR APPLICATION NUMBER: GAA12569-16; GAA2372-17; GAA8298-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 2 March 2017, 31 July 2017, 14 November 2017 and then resumed again on the papers HEARD AT: Brisbane DECISION OF: A/Senior Member Guthrie DELIVERED ON: 15 March 2018 DELIVERED AT: Brisbane ORDERS MADE: DECLARATION ABOUT CAPACITY: 1. The application for a declaration about the capacity of CJR is dismissed. ADMINISTRATION: 2. The administration order made by the Tribunal on 3 March 2014 is changed by removing the Public Trustee of Queensland as administrator and appointing WN as administrator for CJR for managing all financial matters except everyday finances. 3. The financial management plan dated 31 July 2017 together with the updated budget dated 17 November 2017 is approved. 4. The Tribunal directs the administrator to provide accounts to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter. 5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in three (3) years. CATCHWORDS: GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – WITHDRAWAL – where review of the appointment of an administrator – where an -- 1 of 11 -- 2 application for a declaration of capacity was lodged – whether adult understood his complex financial situation – where a clinical psychologist’s report regarding adult’s capacity was preferred – where financial decisions need to be made – where a private administrator was appointed Guardianship and Administration Act 2000 (Qld), s 12, s 15, s 16, s 31, Schedule 4 APPEARANCES: SB, applicant WN, proposed administrator CG, proposed administrator Public Trustee of Queensland representative REASONS FOR DECISION Background [1] On 3 March 2014, the Tribunal appointed the Public Trustee of Queensland (PTQ) as administrator for CJR for all financial matters. The appointment of the PTQ was to remain current until further order of the Tribunal. CJR then applied to the Tribunal for a declaration about capacity. The Tribunal commenced a review of the appointment of the administrator. [2] On 2 March 2017, the Tribunal commenced to hear the application for a declaration about capacity and review of the appointment of an administrator. The hearing was ultimately adjourned with directions made that CJR undergo a full capacity assessment. The report dated 29 May 2017 of clinical psychologist, Ms Debbie Anderson, was received by the Tribunal in compliance with those directions. [3] After the parties were provided with the report, SB filed an application for the appointment of an administrator for CJR. The application proposed the appointment of WN and CG as joint administrators. CG is a financial planner. WN and CJR came to know one another through CJR’s engagement with WN during the course of his employment. They share the same employer but do not work in the same location. [4] At the time of the resumed hearing on 31 July 2017, SB sought and was granted an adjournment to enable further information to be obtained in support of SB’s application for the appointment of an administrator. Directions were made about the filing and exchange of supporting evidence and written submissions from all active parties. [5] The hearing again resumed on 14 November 2017. During the course of the resumed hearing, the Tribunal outlined to the proposed appointees the relevant duties of an administrator. The Tribunal also asked WN if she was -- 2 of 11 -- 3 willing to accept appointment as CJR’s sole administrator. WN indicated that she was. [6] The resumed hearing concluded with the Tribunal making some further directions about the provision of an updated budget by the proposed appointees. [7] Upon receipt of the documents in compliance with the directions, the Tribunal decided to reserve its decision without the need for a further oral hearing. [8] In determining the applications before it, the Tribunal has considered all of the information filed in the Tribunal in relation to the applications as well as the information provided to the Tribunal by those who attended on each occasion that the hearing was resumed. WN, SB, CJR and a representative of the PTQ were present at each and every occasion that the hearing resumed. CG attended at each hearing after the application proposing his appointment was filed. A representative from a previous service provider was present on the first hearing date. The salient parts of their evidence is set out in these reasons. Review of the appointment of an administrator [9] This proceeding involves the review of the appointment of an administrator under the Guardianship and Administration Act 2000 (Qld) (the GAA). [10] The appointment review process is set out in s 31 of the GAA. Section 31 provides that the Tribunal may conduct a review of the appointment of an administrator for an adult in a way it considers appropriate. Section 31(2) provides that at end of the review the Tribunal must revoke its order making the appointment, unless it is satisfied it would make an appointment if a new application for an appointment were to be made. [11] Essentially, this means that in reviewing the appointment of an administrator, the Tribunal must go through the same process it would go through if it was considering a new appointment. That requires the Tribunal to consider whether the criteria in s 12 of the GAA is satisfied. [12] Section 12(1) of the GAA provides that the Tribunal may appoint an administrator for a financial matter for an adult if the Tribunal is satisfied that: a) the adult has impaired capacity for the matter; b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s property; and c) without an appointment either the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected. -- 3 of 11 -- 4 [13] In terms of s 12(1)(a), the starting point is that CJR is presumed to have capacity1 for his decision making. [14] The definition of ‘capacity’ is set out in Schedule 4 of the GAA and states: capacity, for a person for a matter, means the person is capable of— (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. [15] Section 12(2) of the GAA provides that the appointment may be on terms considered appropriate by the Tribunal. [16] Section 31(3) of the GAA then provides: (3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either— (a) continue its order making the appointment; or (b) change its order making the appointment, including, for example, by— (i) changing the terms of the appointment; or (ii) removing an appointee; or (iii) making a new appointment. [17] Section 31(4) of the GAA provides: (4) However, the tribunal may make an order removing an appointee only if the tribunal considers— (a) the appointee is no longer competent; or (b) another person is more appropriate for appointment. Does CJR have impaired capacity for financial matters? [18] In support of his application for a declaration about capacity, CJR filed a report by Dr Hossain, his General Practitioner for a period of nine years. In his report dated 22 August 2016, Dr Hossain indicated that CJR has full- time employment dealing with paperwork and records which he has been doing for 23 years and which he has no problem doing. Dr Hossain opined that that proved CJR was competent to make decisions, without help, regarding his personal healthcare, lifestyle and accommodation choices, 1 GAA Act, s 5, s 7, Schedule 1. -- 4 of 11 -- 5 and his own finances. Dr Hossain also indicated that CJR was capable of making decisions freely and voluntarily. [19] The particular matter to be considered here are financial matters. It is therefore necessary for the Tribunal to consider CJR’s financial circumstances. CJR’s financial circumstances are not simple. He has two Bank of Queensland (BOQ) accounts. He also has superannuation in the amount of $228,230.00 in his public sector superannuation scheme. He has a term investment account of $45,000.00, and approximately $290,000.00 in the PTQ’s growth trust, as well as a PTQ cash account of $2,259.00. In all, CJR has as at 23 February 2017, $567,958.72 recorded value of assets. [20] At the first hearing, the Tribunal was concerned that Dr Hossain’s opinion failed to take into account the particular matters about which CJR would be required to make decisions. CJR confirmed that Dr Hossain was not aware of the extent of CJR’s financial circumstances. [21] At the initial hearing, a representative from CJR’s previous service provider gave evidence that CJR was vulnerable to suggestions by others, that he readily disclosed the extent of his finances to others and sought advice on financial decision-making from many people with whom he came into contact. It was said that his willingness to share his personal circumstances and inability to adequately assess the intentions of others made him vulnerable to financial abuse. The evidence of the PTQ was that CJR manages his everyday finances including his wages. [22] The report from Ms Anderson made reference to CJR being assessed in 2002 at the request of his workplace. At that time he achieved an overall score on the ‘general intelligence test in the extremely low range (FSIQ of 67, 1st percentile)’. The report also states that in relation to measuring memory and new learning, his auditory memory index, visual memory index, visual working memory index, immediate memory index and delayed memory index resulted in either extremely low, borderline or low average results. [23] In relation to high cognitive functions, CJR’s abstraction, mental flexibility and problem solving skills were evaluated using the complex card-sorting task. On this, despite feedback following every response, he was only able to discover and sort the cards according to one of the six abstract categories, which is a borderline level of performance according to the report. The report further states that on indicators of efficiency of problem solving his pattern of performance tended to be perseverative, which meant he stuck with a particular response and could not change it. Thus, his overall level of mental flexibility and problem solving was in the extremely low range. [24] The report also states that on a more practical measure of planning and problem solving CJR exhibited quite significant difficulties. He was unable to complete any of the items within the minimum number of moves, and the overall planning efficiency of his responses scored in the extremely low -- 5 of 11 -- 6 range. Importantly, he made an extremely high number of errors compared to his age peers. [25] The report states that clinical observation suggested that CJR tended to be repetitive in his approach to these tasks, meaning that despite reminders about the rules, he was unable to change his behaviour and learn from his mistakes. [26] In relation to financial skills, the financial capacity assessment inventory was also administered. This test is comprised of simple items where, for example, the individual is required to count coins and respond to bills and so on. On this, CJR’s overall performance was stated to have been poor. The report further states: Whilst his debt management skills were strong, he struggled with demonstrating knowledge of everyday financial information and engaging in financial judgment tasks. For example, he found it difficult to differentiate between details presented in various insurance policies. Thus while he demonstrated average simple financial reasoning and ability to express a choice, his understanding and appreciation of many aspects of financial knowledge was well below average. [27] The report further states: This was reflected in his responses at interview. Essentially he was very keen to return the money to a fixed term investment but he found it difficult to understand how it would provide an income, although he knew that he needed to obtain money that was equivalent to his wages in order to retire. He was able to say that a fixed term investment had the advantages of having a fixed rate of interest, that the bank looks after the money and he could only access it in emergencies. He could not identify any disadvantages. In response to questions around vulnerability such as how he would respond if someone offered to improve his assets, he reported that he would use his strong maths skills to work out if this was reasonable or not. It seemed that he also wanted to make use of an independent financial advisor as he felt that the fees involved in the Public Trustee were excessive. It seemed that he had very rigid and simplistic ways of managing his budget but I also note that this appeared to occur under the supervision of various support services. The question that really arises is his ability to operate independently in that reasoning and problem solving. [28] The report goes on to state: The information that the neuropsychological assessment can contribute to answering this question is as follows: across time I have had the opportunity to assess [CJR] twice and on both occasions his scores on the general intelligence test were in the extremely low range, at a level that would ordinarily be exceeded by more than 98% of the standardisation sample. Whilst he had an isolated strength area in terms of concentration and maths, he also demonstrated quite significant visuo spatial difficulties. Again, he would be reliant on his auditory memory skills, that were low average, but the issue is that he was extremely rigid in his thinking. This meant that he tended to get stuck on a certain idea and maintain it. He found it very difficult -- 6 of 11 -- 7 to change his behaviour even following feedback. At some level this might be protective, for example it seems to help him stick to a very tight budget, but the difficulty is whether he can accommodate new information into his thinking should the financial landscape change over time. It would be my concern that he would struggle with this. [29] The report concludes: Whilst it is admirable that [CJR] would like to have a greater role in the management of his money and to see a better return, the difficulty is that he is likely to be extremely rigid in dealing with it. It may be that this is protective, but it may also be that he becomes focussed on incorrect information and this could lead him to be unable to use feedback to recognise that the decision needs to be changed. Thus, unfortunately, it is my view that [CJR’s] cognitive presentation is such that it does raise concerns about his ability to independently manage large sums of money. [30] The Tribunal had the opportunity to interact with CJR on three separate occasions over time. CJR presented as very rigid in his thinking. He was focused on his concerns regarding the PTQ not being able to provide him with money for holidays as the reason for his wanting to change his administrator. When it was put to him that the alternative financial management plan presented by WN and CG did not seem to provide any further additional sums for holidays, CJR seemed unable to address or express an opinion about whether that would make any difference to whether or not he wanted the PTQ to remain as his administrator. It seemed CJR was fixed on desiring a change from the PTQ but could not articulate why the proposed alternative would be better. He was simplistic in his responses to the Tribunal and repetitive in his exchanges. [31] CJR’s presentation to the Tribunal was consistent with Ms Anderson’s report. Ms Anderson has had the opportunity to assess CJR on multiple occasions and she has administered particular relevant testing to arrive at her conclusions regarding CJR’s decision-making capacity. Ms Anderson had an appreciation of CJR’s financial circumstances. The Tribunal prefers the evidence of Ms Anderson to that of Dr Hossain. [32] The Tribunal finds that CJR has an intellectual impairment. Due to his intellectual impairment, he exhibits rigid thinking. The Tribunal finds that CJR is unable to properly weigh new information and multiple options and choose between those options to make a decision. Applying those findings to the definition of capacity, the Tribunal concludes that CJR does not understand the nature and effect of decisions about his relatively complex financial circumstances. The Tribunal concludes that CJR has impaired capacity about complex financial matters. The presumption of capacity for complex financial matters is rebutted. [33] CJR is able to manage his everyday finances and the weight of the evidence supports a finding that CJR is able to maintain a budget for his everyday income and expenses. The Tribunal concludes that CJR has capacity for simple financial decision-making such as his everyday expenses. -- 7 of 11 -- 8 [34] As these findings and conclusions are reflected in the order the Tribunal has made out of the review of the appointment of the administrator, the Tribunal formally dismisses the application for a declaration about capacity. Is there a need for decisions to be made about CJR’s financial matters? [35] The Tribunal has already set out CJR’s financial circumstances and has found that those circumstances are relatively complex. There is a need for decisions to be made regarding the management of his financial matters. CJR has now turned 60 years of age and decisions will need to be made about the investment of his financial resources, particularly in respect of his level of superannuation. The Tribunal therefore concludes that there is a need for decisions to be made about CJR’s financial matters. Further, as the Tribunal has already found, CJR has impaired capacity for complex financial decision-making. His options for investment must be considered, weighed and a decision made. The Tribunal concludes that without an appointment his needs will not be adequately met, or his interests not adequately protected. [36] In terms of s 31(3) of the GAA, the Tribunal considers that there are appropriate grounds for an appointment of an administrator to continue. However, the Tribunal has before it a new application for the appointment of an administrator proposing CG, financial planner, and WN as administrators. Therefore, the Tribunal must consider who should be appointed as administrator for CJR. In doing so, the Tribunal must consider s 31(4) of the GAA Act and determine whether or not in this case there is another person more appropriate for appointment than the PTQ. Is another person more appropriate for appointment? [37] In this case, both CG and WN have signed the relevant statutory declaration pursuant to s 16 of the GAA. The Tribunal must also consider the appropriateness considerations in s 15 of the GAA. [38] Section 15 provides that in deciding whether a person is appropriate for appointment as an administrator for an adult, the Tribunal must consider the following matters: (a) the general principles and whether the person is likely to apply them; (b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it; (c) the extent to which the adult’s and person’s interests are likely to conflict; (d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult; (e) if more than 1 person is to be appointed—whether the persons are compatible; -- 8 of 11 -- 9 (f) whether the person would be available and accessible to the adult; (g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order. [39] CG is a registered financial planner and works for a particular financial group that prepared the statement of advice which accompanied the financial management plan filed in support of the application for the appointment of an administrator. CG proposes that he be appointed jointly with WN. In the application, it was contemplated that CG would be paid for his services as administrator. [40] At the second resumed hearing, the Tribunal raised its concern about CG being paid for his services if appointed. In response, CG indicated that he would carry out his duties as administrator providing advice as a financial planner to CJR free of charge. However, the Tribunal remains concerned that if CG was appointed, CJR’s and CG’s interests may come into conflict, whether or not he receives payment for his services. [41] WN indicated at the hearing that she was prepared to be appointed solely as administrator for CJR, and CJR expressed to the Tribunal that he was happy for that to occur. It was clear that CJR favoured the appointment of WN over the appointment of the PTQ. WN attended all of the hearings before the Tribunal. The Tribunal had the opportunity to observe WN interact with CJR. The Tribunal has formed the view that WN is compatible with CJR. The Tribunal is also satisfied that WN will be accessible to CJR. She was able to outline to the Tribunal how she would keep in contact with CJR. The Tribunal is satisfied that WN is likely to apply the general principles including maximising CJR’s participation in decisions affecting his life.2 [42] The Tribunal raised with WN its concerns about the fact that she was employed by the same employer as CJR and that she may find herself in a situation where she would have to make decisions as CJR’s administrator with which CJR would not agree. Further, the Tribunal raised with her that when/if that occurred their working relationship and rapport might be negatively impacted. The Tribunal was impressed by WN’s response. WN recounted that she had, in the past, made difficult decisions in the workplace concerning CJR, such as sending him home from work due to concerns around his behaviour, and other personal matters. WN described the very personal conversations she had had with him in the employment context. She considered that she was able to handle these situations appropriately and that CJR was willing to listen to her. She did not foresee any difficulties in managing her two roles in CJR’s life. She pointed out that she does not work with CJR on a day-to-day basis and is actually situated in a different office of the particular employer. 2 GAA, Schedule 1. -- 9 of 11 -- 10 [43] The Tribunal also has concerns that the financial management plan provided by WN with the assistance of CG does not seem to contemplate the additional sums for holidays on which CJR is focussed. The Tribunal acknowledges that CJR’s budget may be revised from time to time. Overall, the financial management plan does not cause particular concerns for the Tribunal in terms of the management of CJR’s financial circumstances. It appears prudent and quite conservative. [44] There is some difference in terms of the fees that CJR would likely pay depending on who is appointed as his administrator. CJR has been paying fees to the PTQ of approximately $7,000.00 per year according to the calculations provided by the proposed appointees. It is noted that an administration fee is charged despite CJR managing his own wages and living expenses. The proposed fees in the event that WN is appointed were estimated to be approximately $3,700.00 per year. Taking into account the cost of financial planning and advices that may need to be obtained in relation to CJR’s financial circumstances, as discussed at the hearing, the Tribunal finds it likely that CJR will pay less overall in terms of fees for the management of his financial matters in the hands of WN than with the PTQ. [45] The Tribunal has also taken into account that where there is an alternative to the PTQ being appointed, then that should be carefully considered by the Tribunal. For those reasons, the Tribunal considers that WN is more appropriate than the PTQ for appointment as administrator for CJR. In reaching this view, the Tribunal has not found any issue with the competency of the PTQ. What should be the term of the appointment? [46] The Tribunal may appoint a private appointee for a period of up to five years. The Tribunal considers that it would be worthwhile reviewing the situation at an earlier point in time. The Tribunal considers that a term of three years would be most appropriate. This will give WN an opportunity to obtain access to CJR’s financial resources from the PTQ, make any changes that would be required to the structure of his resources and do some forward planning for CJR. At that point, the Tribunal can conduct a review. [47] Now that CJR has reached 60 years of age, it may be that his finances are further simplified with changes to the amount of contribution to his superannuation policy. It is possible with changes to his financial circumstances over time that at some point there will be no further need for the appointment of an administrator. [48] For those reasons the Tribunal makes the following orders: DECLARATION ABOUT CAPACITY: 1. The application for a declaration about the capacity of CJR is dismissed. -- 10 of 11 -- 11 ADMINISTRATION: 2. The administration order made by the Tribunal on 3 March 2014 is changed by removing the Public Trustee of Queensland as administrator and appointing WN as administrator for CJR for managing all financial matters except day to day finances. 3. The financial management plan dated 31 July 2017 together with the updated budget dated 17 November 2017 is approved. 4. The Tribunal directs the administrator to provide accounts to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter. 5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in three (3) years. -- 11 of 11 --