CE [2017] QCAT 222

CITATION: CE [2017] QCAT 222 PARTIES: CE APPLICATION NUMBER: GAA4924-17 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 16 May 2017 HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 16 May 2017 DELIVERED AT: Brisbane ORDERS MADE: ADMINISTRATION 1. The Public Trustee of Queensland is appointed administrator for CE for all financial matters. 2. 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. 3. This administration appointment remains current for three (3) months or, 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 4. Before 13 June 2017 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. (b) Provide confirmation to the Tribunal that this has been completed by providing: -- 1 of 7 -- 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, a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 5. 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. CATCHWORDS: MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – Enduring Power of Attorney suspended following investigation – adult’s finances at risk – interim order made by Tribunal Powers of Attorney Act 1998 (Qld), s 66 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] CE is an 89-year old woman with diagnosed dementia. On 16 May 2017, the Tribunal appointed the Public Trustee of Queensland (PTQ) on an interim basis to manage CE’s financial matters. The appointment followed the making of an application for an interim order by the Public Guardian (PG). -- 2 of 7 -- 3 [2] The PG’s application sought the appointment of an administrator for all financial matters for the following reasons: On 20 February 2017, the authority of [SK] to act as a financial attorney under an Enduring Power of Attorney was suspended for 3 months pursuant to section 195(1) of the Guardianship and Administration Act 2000. [CE]’s bank statement for the period February 2016 to February 2017 shows 93 transfers made to [SK]’s account, totalling $84,819. [CE]’s unit in Surfers Paradise was sold in October 2016 and $248,523.22 was deposited into her account. The account’s balance as at 28 November 2016 is $157,340.62. As the suspension lapses on 20 May 2017, this office considers an Interim Order is necessary to protect the adult from immediate risk of harm to her property from abuse and exploitation. [3] SK is CE’s adult daughter and, prior to her suspension, was acting for CE pursuant to an Enduring Power of Attorney (EPOA). [4] The EPOA given to SK was suspended by the PG on 20 February 2017, following an investigation by the PG into allegations that SK was engaging in financial abuse of CE, as well as failing to address healthcare concerns. Public Guardian’s Investigation [5] The PG’s investigation report, dated 11 May 2017, is comprehensive. The investigation traversed three allegations: a) Allegations that SK was not addressing CE’s nursing home debt, at that stage hovering around $25,000.00. This allegation was substantiated by the investigation. b) That SK was selling CE’s unit, and dealing with the proceeds of sale in a manner inconsistent with her legal obligations pursuant to the EPOA. This allegation was also substantiated. c) That SK was not addressing CE’s health care issues, despite the care facility having brought them to her attention. This allegation was not substantiated to the required Briginshaw1 standard of civil proof during the PG’s investigation process. [6] As this interim application seeks the appointment of an administrator, it is not necessary for me to traverse the concerns raised in relation to CE’s personal care. This application relates to the management of CE’s finances. 1 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. -- 3 of 7 -- 4 CE does not have capacity [7] In making the decision to appoint the PTQ on an interim basis, the Tribunal firstly had regard to CE’s decision making capacity. [8] The PG’s investigation report indicates that Dr Carl Rubis completed a health professional report on 23 November 2016. It was Dr Rubis’ opinion that CE had dementia, with progressive cognitive impairment. At that point in time, some 7-8 months ago, he considered the condition to be moderate, but also indicated his professional opinion was that CE could not manage complex or simple financial decisions. Dr Rubis further indicated that on 31 August 2016, CE scored 19/30 on the mini-mental state examination. In his view, this demonstrated that CE did not have enough insight to understand legal and financial obligations. [9] On this basis, the Tribunal considers that the presumption of capacity for financial matters is rebutted, such that the Tribunal can, if necessary, make an appointment of an administrator for CE. There is a need for an administrator to assist CE [10] Amongst the allegations investigated by the PG was the allegation that SK had failed to address her mother’s nursing home debt of approximately $25,000.00 whilst acting as attorney. The PG found this allegation to be substantiated, and the material before the Tribunal incontrovertibly indicates that there was an outstanding balance of $25,173.77 owing to Blue Care, Labrador, as at 30 September 2016, for CE’s care. Further, that statement indicates that no payments were made between 20 March 2016 and 30 September 2016. As at 30 January 2017, Blue Care, Labrador, confirmed that the outstanding balance had been paid in full, and further that accounts continued to be paid in full moving forward. [11] It appears that SK had taken the view that Blue Care, Labrador was providing “poor” care to her mother. SK further advised the PG, during the investigation process, that she was waiting for the sale of CE’s property in order to pay the arrears. [12] Regardless, it was not CE’s best interests for SK to fail to address the debt, in any reasonable or meaningful way, thereby risking the continuation of her mother’s care. SK’s concerns with respect to the quality of her mother’s care should have been dealt with separately from the issue of payment for care. [13] It was also established during the investigation that, during the same interval of time that CE’s care fees were not being paid, SK was accessing CE’s funds for her own benefit. Self-evidently, this was not in CE’s best interests. This raises significant concerns about SK’s suitability to act as her mother’s EPOA. -- 4 of 7 -- 5 [14] The Tribunal has concerns about the way SK managed, or more aptly, inappropriately managed, the proceeds from the sale of CE’s Surfer’s Paradise unit, sold in October 2016 for $445,000.00. [15] The proceeds of sale (which appear to have been $248,523.22) were also deposited into CE’s bank account in October 2016. Just one month later, the account balance had dwindled to $157,340.62. [16] The access of these funds by SK, whilst acting pursuant to the EPOA, was not for purposes of paying for CE’s care – the debt for her care was not paid at this time, despite the funds having been accessed. [17] The PG put the allegations to SK, and received the following response: Returning from a secure teaching position overseas it has been very distressing to encounter lack of permanency with sporadic contract teaching positions. For a while I struggled to pay the extra $1,000 or so funds for mum’s nursing home fees whilst I was unemployed and used up my savings. [18] SK’s utilisation of her mother’s funds for her own benefit is entirely inappropriate and inconsistent with the formal legal obligations that accompany the appointment as an EPOA. [19] If CE had capacity and was responsible for managing her own affairs, of course she could gift her daughter money during her daughter’s time of need. However, once CE lost capacity due to her dementia and SK stepped into the formal role of acting as her attorney, this was no longer possible. [20] SK has failed entirely to understand her obligation to act in her mother’s best interests, and to preserve her financial savings for her own care. Although SK asserts that she has used some of the funds to assist with aspects of CE’s care, including some allied health therapy, the quantum of that expenditure goes nowhere near the level of SK’s withdrawals from her mother’s assets. [21] It appears that SK’s justification for her conduct is based on a letter she presented to the PG dated March 2016, wherein CE has allegedly written: Dear Katie, you are welcome to utilise any of my funds as and when needed to pay bills and whatever. [22] As was indicated in the PG’s investigation report, irrespective of this letter, SK’s utilisation of her mother’s funds for her own purposes is considered a “conflict transaction”. As an EPOA, it was SK’s obligation to maintain her mother’s assets separately and not to enter into any conflict transactions, in order to be compliant with the Powers of Attorney Act 1998 (Qld). [23] Further, the Tribunal considers the information contained in the PG’s investigation report – that as at 4 May 2017, SK had not provided asset and income information to the nursing home on behalf of her mother – concerning. This failure, together with the non-payment of a bond to the -- 5 of 7 -- 6 nursing facility, is resulting in CE’s nursing home fees being charged at the maximum rate, thereby depleting her assets. [24] It is clear that there is a need for there to be an administrator appointed to prevent the further depletion of assets. Why is this urgent? [25] The Tribunal considers that, because of the information presently before it, that SK has breached s 66 of the Powers of Attorney Act 1998 (Qld), in that she has failed to act with reasonable diligence in protecting her mother’s financial interests. [26] SK’s EPOA was suspended on 20 February 2017, for 3 months. When the suspension is lifted, which will be prior to the Tribunal conducting a full hearing in this matter, it would be possible for SK to recommence her accessing CE’s accounts for her own purposes. In circumstances where it appears obvious that an attorney has engaged in financial abuse, I do not consider it appropriate to take a “hope and see” approach whilst the parties wait for the Tribunal to conduct a hearing. Rather, I consider it to be the case that there is immediate risk to CE’s finances. Although the 3 month suspension alleviated the immediacy of the risk, it only did so for the duration of the suspension period. The Public Trustee is the only appropriate option for appointment [27] As the Tribunal has found that CE lacks capacity, could not manage her own financial affairs without assistance, and that her finances are at immediate risk of harm once SK’s suspension is lifted, the Tribunal finds that there is a need for there to be an appointment of an administrator on an interim basis. The remaining question is to whom the appointment should be made. [28] The only option presently before the Tribunal, save for SK, is the PTQ. The Tribunal does not consider that SK is appropriate, given her conduct whilst acting pursuant to the EPOA. As such, the PTQ is the only appropriate option. [29] As the appointment of the PTQ is made on an interim basis pending a full hearing of the matter, the maximum duration is three months. Orders ADMINISTRATION 1. The Public Trustee of Queensland is appointed administrator for CE for all financial matters. 2. 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. -- 6 of 7 -- 7 3. This administration appointment remains current for three (3) months or, 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 4. Before 13 June 2017 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: 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 Titles Registry, from the Registrar of Titles confirming no property is held. 5. 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. [30] The hearing of this matter is scheduled for 11 August 2017. -- 7 of 7 --