CM [2015] QCAT 492

CITATION: CM [2015] QCAT 492 PARTIES: CM APPLICATION NUMBER: GAA6837-15; GAA 6838-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 16 October 2015, adjourned to 25 November 2015 HEARD AT: Brisbane DECISION OF: Member McDonald DELIVERED ON: 25 November 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for the appointment of guardian for CM is dismissed. 2. CG is appointed as administrator for CM for managing all financial matters 3. The administrator is to provide a financial management plan to the Tribunal within three (3) months of the sale of the Mount Isa Real Estate 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 two (2) years. 6. That before 25 February 2016 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar -- 1 of 4 -- 2 advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 7. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. CATCHWORDS: Application for Guardianship - application for Administrator - sections 12, 15 Guardianship and Administration Act 2000 (Qld) APPEARANCES: CG REASONS FOR DECISION [1] CG sought appointment as his father CM’s Guardian and Administrator on the grounds that CM, had lost the capacity to manage his own affairs. [2] In considering an application for the appointment of a guardian or administrator the Tribunal must be satisfied the elements of section 12 and 15 and the General Principles of the Guardianship and Administration Act 2000 are satisfied. CAPACITY [3] Before the Tribunal makes an appointment, it must be satisfied that that CM has impaired capacity for the matter (section 12 of the Act). The evidence before the Tribunal pertaining to CM was from Dr P, CM’s general practitioner of 4 months, and dated 11 March 2015. This report identified CM as having been diagnosed with severe dementia as well as a number of physical conditions. Cognitive tests including an MMSE were -- 2 of 4 -- 3 conducted returning a mini-mental state examination of 7/30 on 11/10/15. Dr P considered that CM was unable to make decisions freely and voluntarily, and was unable to make simple lifestyle or financial decision, and only simple personal care decisions. The Tribunal is satisfied that the medical evidence clearly indicates that CM has a severe cognitive impairment arsing from his dementia, and is unable to make decisions freely and voluntarily or understand the nature and consequences of decisions. The presumption of capacity is rebutted. [4] The Tribunal considered whether there is a need for an appointment of guardian, and whether, his interest would not be protected if an guardian were not appointed (Section 12). The oral evidence before the Tribunal is that CM is currently accommodated in a nursing home with his wife, and further, that this is stable with no plans to change this accommodation. Presently, CG is acting as statutory health attorney, without any diffiulties. CG informed the Tribunal that his other siblings were not interested in involvement in decision making and have limited contact with both parents. It is noted that no responses were received to feedback forms or notice of hearings sent to CM’s remaining children. Based on CG’s evidence it appears that he is already the statutory heath attorney and that this is not disputed by other members of the family. Therefore the Tribunal does not find a need for the appointment of a guardian and dismisses the application. [5] The Tribunal considered the need for the appointment of an administrator and whether without this appointment CM’s interests would be adequately protected. The information before the Tribunal indicates that CM is a self funded retiree, reliant upon investment income of funds held in his account, and an allocated pension. He holds real property jointly with his wife, both in Brisbane and Mt Isa. The Mt Isa property is a former business premises from where the adult lived and worked prior to the deterioration in his health. CG indicated it needed to be sold to finance nursing home placements, and was incurring sizeable costs of outgoings. It is apparent that there is a need to deal with this land. CG is resident in the Brisbane house intends to remain there by virtue of direct authorisation from his mother, CI, who jointly owns the premises. CM now has expenses in relation to nursing home costs and payment of pharmaceuticals. There are costs in relation to the premises in Brisbane. [6] There are clearly complex decisions, including land transactions, which need to be made relating to the management of CM’s financial affairs. Given his severe dementia, it is apparent that there is a need for a decision and without an appointment his interests will not be adequately protected. [7] The Tribunal considered the appropriateness of the proposed appointee. The Tribunal must consider whether there is likely to be a conflict of interest between the adult and the proposed administrator. CG gave evidence to the Tribunal that he has been managing his mother’s affairs since December 2014 when she was admitted to full time care. The affairs are largely joint between CM and CI. He gave the Tribunal evidence that his mother authorised him to live in the Brisbane home and not pay rent. -- 3 of 4 -- 4 He stated that he was paying outgoings and provided the Tribunal with written evidence to support these claims. Further, CI provided the Tribunal with a signed statement through a solicitor that stated that she had given CG permission to live in the Brisbane home without rental payment. Her correspondence confirmed that her admission to full time care was as a result of physical illness, not a cognitive impairment. [8] The Tribunal requested the statements of bank accounts and receipts for transactions CG had been dealing with on behalf of the joint estate. CM justified some unusual costs which appeared on the May 2015 statement as being meals on wheels expenses, dinner for his mother and father in Mt Isa on his May visit. Bank statements for the previous 12 months were filed in the Tribunal and indicated that he has been managing larges payments for the business operations, including purchases from Agribusiness Landmark, and well as paying the substantial costs for rates and electricity on the Mount Isa property which is now vacant, pending sale. He advised the Tribunal that the business is closed down now, and he seeks to sell the premises on his parent’s behalf. The Tribunal found no concerns in his operation of the joint accounts to date. There are however substantial expenses in maintaining the Mt Isa premises which are now vacant and this is a significant burden on the adult’s financial affairs. [9] The Tribunal considered whether there was a conflict between CG’s duty as proposed administrator, and his interest living rent free in the Brisbane Property. The transaction is a conflict transaction, and administrators are under a statutory obligation to avoid conflicts transactions. CG has made an application for approval of this conflict transaction, which is listed for a future date. [10] CG informed the Tribunal that he was authorised by his mother the co- owner to live rent free here and pay utilities. He provided the Tribunal with evidence which indicated that he had paid the utilities, rates pest control and carpet cleaning costs during the previous year. Correspondence from CI to the Tribunal indicated that she did endorse the said arrangement. The evidence of CM’s estate indicates that this arrangement does not pose a significant financial burden, once the administrator is able to sell the Mt Isa Property. The Tribunal does not consider that this makes him an unsuitable administrator and will consider the application for approval of the conflict transaction at the upcoming hearing. [11] The Tribunal finds that CG satisfies the considerations under s15 (1) of the Act. He informs the Tribunal that he is available to the adult despite the distance between Mt Isa and Brisbane. His conduct of the joint estate gives the impression that he has made competent financial decisions to date. [12] His application for appointment as administrator for CM is granted. -- 4 of 4 --