CAJ [2016] QCAT 299

CITATION: CAJ [2016] QCAT 299 PARTIES: CAJ APPLICATION NUMBER: GAA6069-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 10 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. NIP is not an interested person in relation to CAJ. 2. The application by NIP for the appointment of a guardian for CAJ is dismissed. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – INTERESTED PERSON – where adult had impaired capacity – where former partner applied for appointment as guardian – where earlier application for guardianship had been rejected – where proposals to remove adult from aged care to return him home had not been found to be appropriate – where second application made based on the same proposals – where evidence that relationship had ended years earlier and no contact had taken place for years – whether applicant was an interested person to give standing to make application Guardianship and Administration Act 2000 (Qld) ss 115(2), 119, sch 4 EEP [2005] QGAAT 45 MAD [2007] QGAAT 56 -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): 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] CAJ appointed his daughter, CD, to be his attorney for personal, health and financial matters in an Enduring Power of Attorney made on 28 December 2006. At a hearing of the Tribunal on 22 May 2014, a finding was made that CAJ now had impaired decision-making capacity. The Public Trustee of Queensland (the Public Trustee) was appointed as the administrator for CAJ for all financial matters. [2] On 6 January 2015 an initial application was filed in the Tribunal by NIP seeking appointment as the guardian and administrator for CAJ. She claimed to be the de facto wife of CAJ. [3] NIP informed the Tribunal that she had been in a de facto relationship with CAJ from 1993 to 1996 and again from 2000 to 2010. She asserted that she had maintained a close and caring relationship with CAJ. However, she conceded in writing to the Tribunal that she had not known of the whereabouts of CAJ for at least two years and not until a short time before she filed her applications in the Tribunal. [4] Other evidence provided to the Tribunal revealed more information about the nature of the relationship between CAJ and NIP. The manager of the aged care facility where CAJ was living stated that CAJ had been a resident in the facility since December 2012 and at the time of his entry into the facility, CAJ was not in a de facto relationship with NIP. The manager stated that CAJ had not been visited or contacted by NIP until December 2014. [5] The Public Guardian provided submissions that an investigation had been conducted into the affairs of CAJ before the application was filed by NIP. The investigation had not found evidence that CAJ was in a de facto relationship with any person. CAJ had not mentioned NIP at all in conversations with the staff of the Public Guardian. The only reference to NIP in any information gathered during the investigation was a reference to a loan in 2011 to a person of that same name of $30,000 in the accounts of the company operated by CAJ. All financial accounts were held in the name of CAJ or his company and NIP was not listed as a signatory on any accounts of CAJ and she had not been listed as his nominee with Centrelink. [6] Other evidence provided by the Public Guardian revealed that NIP had not visited CAJ between 20 September 2012 and 14 December 2014. The Public Guardian was told by the facility manager that NIP had explained that she was the ex de facto partner of CAJ and that they had separated several years ago. -- 2 of 7 -- 3 [7] Both CS and CD, the children of CAJ, stated that NIP was not in a de facto relationship with their father. CD stated that NIP had not seen CAJ for some three years before lodging her application. [8] A hearing of the application by NIP for appointment as the guardian of CAJ was conducted on 18 June 2015. The application by NIP to review the appointment of the administrator for CAJ had been dismissed earlier as no grounds had been established for any change to be made to the appointment of the Public Trustee as the administrator for CAJ. [9] The Tribunal dismissed the application for appointment of a guardian on the basis that decisions about personal matters were already being appropriately made by CAJ’s attorney. It was determined that the plans of NIP to remove CAJ from the aged care facility so she could care for him at his home would not meet his care needs. NIP had not satisfied the Tribunal that she could provide better decision-making support than his appointed attorney. [10] In February 2016, NIP made a request to the Tribunal registry for a copy of financial documents held by the Tribunal relating to CAJ. NIP told a registry staff member that she was trying to get 50% of the bank account held by CAJ as she said it was a joint account although the account was in the sole name of CAJ. She informed the staff member that CAJ had his bank account and she had her own and he would give her money. She wanted copies of documents to assist her in her claim. [11] NIP filed an application in QCAT on 5 April 2016 seeking to be appointed as a guardian for CAJ. She described herself as the de facto of CAJ from 1992 to the present. [12] It had already been decided by the Tribunal in June 2015 that NIP was not appropriate for appointment as a guardian for CAJ. Her plans to take CAJ out of residential aged care were not considered favourably by the Tribunal as his care needs were being appropriately attended to at the facility where he had been a resident since 2012. [13] However, her 2016 application did not include any new evidence that would be sufficient to establish that a decision about his accommodation and care services had to be made for CAJ and that a guardian was required to make such decisions. She stated in the application that no one was making personal decisions for CAJ which was clearly incorrect as his attorney was in place and had told the Tribunal in June 2015 of the decisions she had made. [14] A reasonable inference could be drawn from the timing of the application that this application amounted to an attempt by NIP to improve her claim for some financial assistance from the funds of CAJ. It followed her assertion in February 2016 that she was trying to get 50% of moneys in his bank account and her request for copies of his financial records that had been filed in the Tribunal. -- 3 of 7 -- 4 [15] NIP was informed by the Tribunal registry in a letter dated 7 April 2016 that there was no cogent evidence that she was an interested person in CAJ. She was informed that unless evidence was filed supporting a finding that she was an interested person, her application for guardianship would be considered for dismissal after 29 April 2016. [16] NIP had filed numerous documents that revealed that she had been in a relationship with CAJ but the documents did not provide any satisfactory basis for a finding that the relationship had continued past 2006. A statement dated 14 February 2011 by NIP asserted that she had lived in a house at Beachmere owned by her since 2005 and that she had received income from payments made by foreign students residing in the house with her. She asserts in the statement that she was evicted from the house in 2008. [17] NIP also provided a copy of a letter that she had sent to the Public Trustee. The undated letter refers to a claim she was making to the Public Trustee. In the letter NIP sets out the assistance she had given to CAJ in relation to his past property holdings. She states that she hopes the regional manager of the Public Trustee can consider the matter as she wants to transfer CAJ back to his last home at Toorbul where she would be there to care for him. She states that she wants CAJ to have a good life and to enjoy their money that they had earned for a long period of time. [18] Her letter to the Public Trustee manifested that she believed that she had some basis for a claim against CAJ’s funds due to the assistance she had given to him in the past. In her application for guardianship, NIP described herself as being in an ongoing de facto relationship with CAJ which contradicted earlier statements by her that she was a former partner in a relationship that had ended in 2010. [19] Unlike civil claims involving a dispute over a contract in QCAT, the parties in applications under the Guardianship and Administration Act 2000 (Qld) (the GAA Act) are more than an applicant and an adult about whom the application relates. Other persons specified in the GAA Act are automatically parties. The GAA Act creates statutory parties of the Public Trustee and the Public Guardian. Other parties are current unpaid carers of the adult, current decision-makers for the adult in question and the proposed decision-makers.1 Family members, who may not always come within those specified categories, are not automatically parties to an application regarding adult with impaired capacity. [20] However, there are limits imposed on who can file an application about an adult in QCAT and become a party. Section 115(2) of the GAA Act provides that an application can be made by the adult or by an interested person. The term “interested person” is defined in schedule 4 of the GAA Act as a person who has a sufficient and continuing interest in the adult. The issue is whether NIP is an interested person and whether she has standing to file 1 GAA Act s 119. -- 4 of 7 -- 5 an application about CAJ. Does her interest relate more to recovering some financial benefit from CAJ than in his welfare? [21] The evidence before the Tribunal is that the relationship between NIP and CAJ ended some years before September 2012 and possibly as early as 2006. A statement from CS filed in the Tribunal asserted that in 2008 he moved from the Sunshine Coast to live on the Toorbul property to care for his father who was living by himself. CS states that he lived there with his father until August 2012. [22] If can be inferred from the statement of NIP made in 2011 and the statement of CS that CAJ and NIP were not living together as a de facto couple by the end of 2005. It can also be inferred that after she was evicted from her property at Beachmere in 2008, NIP did not go to live with CAJ as he was living by himself at Toorbul in 2008 until his son moved in to live with him that same year and his son continued to live with CAJ until 2012. [23] I am satisfied from the evidence that NIP and CAJ were not in a de facto relationship in December 2014 when NIP made contact again with CAJ after many years of non-contact of any kind. [24] By December 2014, CAJ exhibited quite severe cognitive impairment. He had suffered a heart attack in 2012, he had been diagnosed in 2013 with vascular dementia and a brain tumour. By March 2013, he had been assessed as having a moderate degree of cognitive impairment. According to CAJ’s general medical practitioner, Dr David Lai, in a report dated 13 March 2013, CAJ was unable to understand nor appreciate the consequences of his decisions about personal and financial matters. Dr Lai considered that CAJ was not capable of making decisions freely and voluntarily. Dr Lai considered that CAJ could not make any simple or complex decision. [25] The evidence satisfied the Tribunal that CAJ did not have capacity to make a decision to resume a relationship with NIP in December 2014 or at any time since December 2014. While he may have at best recognised NIP as someone from an earlier time in his life (despite there being no cogent evidence on this point), there is no convincing evidence that he had exhibited any desire to re-engage in a relationship with her. [26] In fact, there is no evidence that he had any desire to enter even into a friendship with NIP. He may have wanted to go home to Toorbul and may have agreed to the suggestions made by NIP that she could care for him there. However, he could not understand the evidence that his care needs were higher than could be met at his home with any carer (skilled or unskilled). He could not appreciate the consequences to his welfare and remaining cognitive capabilities should he be removed by NIP from his aged care facility. [27] It can also be inferred that he could not recall some of the circumstances that were associated with the end of his former relationship with NIP. A letter written by his daughter, CD, in 2011 to CAJ records that he had asked -- 5 of 7 -- 6 CD to look into an allegation he had made that there had been theft of some money by NIP. A figure of $30,000 was stated in the letter. This allegation was made in 2011, at a time before there is any objective evidence that CAJ’s cognitive capacity had been impaired by his vascular disease. [28] More recent evidence from CD in the form of text messages between CD and NIP suggests that the allegation of theft had not been resolved by 2015. It is unlikely that CAJ, if he were to have had retained his decision-making capacity after 2012, would want to resume a friendship with a person whom he had alleged had stolen $30,000 from him. This same person was actively seeking to obtain money from CAJ via the Public Trustee around the time she filed a second application in QCAT to be appointed as his guardian. [29] A friendship is a relationship between two or more persons in which mutual feelings of affection and interest are shared for each other. A friendship cannot exist unilaterally. I am satisfied that CAJ did not have the capacity to enter into a friendship with NIP in December 2014 or subsequently. He could not understand the motives that NIP might have to resume a friendship after many years of non-contact and he would be unable to appreciate the implications of her quest to access his financial assets for her own benefit. The moderate degree of his cognitive impairment could not enable CAJ to understand the real nature of the friendship being offered by NIP or of her likely motives of coming back into his life after so many years of absence. [30] The Tribunal was satisfied that that CAJ did not have capacity to make a decision to resume a friendship with NIP in December 2014 or at any time since December 2014. She was not a friend of CAJ at the time she filed her application for appointment as his guardian in April 2016. [31] The Tribunal was satisfied that NIP did not have a sufficient and continuing interest in CAJ in April 2016. It has been determined that a relevant interest referred to in the definition of an interested person must be a concern for the emotional, financial or physical welfare of the adult in question.2 NIP had claimed to be interested in the physical welfare of CAJ and in her first application for appointment as a guardian, she was critical of the care he was receiving in the aged care facility. [32] Her claims were not accepted at the hearing on 18 June 2015 and her application was dismissed. In her second application, she merely repeated the claims made earlier which had been rejected by the Tribunal. NIP has not satisfied the Tribunal that she is interested in the physical or emotional welfare of CAJ. Quite the contrary – in pursuing the quest to move CAJ from aged care back to his home with no objective or medical evidence that such a move would benefit CAJ suggests that the motives of NIP are personal to her and not based on considerations of the welfare of CAJ. 2 EEP [2005] QGAAT 45; MAD [2007] QGAAT 56. -- 6 of 7 -- 7 [33] The Tribunal concludes that NIP has no standing to make an application about CAJ as she is not an interested person. The application for the appointment of NIP as the guardian of CAJ is dismissed. -- 7 of 7 --