FT [2015] QCAT 321

CITATION: FT [2015] QCAT 321 PARTIES: FT APPLICATION NUMBER: GAA4470-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 1 July 2015 DELIVERED AT: Brisbane ORDERS MADE: SY must send to The Public Trustee of Queensland a full and unredacted copy of the Will of FT dated 16 April 2009 by 4:00pm on 10 July 2015. CATCHWORDS: GUARDIANSHIP – where administrator appointed for all financial matters of adult – where attorney in place to make personal and health care decisions – where request made by administrator for a copy of the Will of the adult – where request refused by attorney DIRECTION – where direction sought by administrator for attorney to provide copy of Will – whether information required for informed exercise of administrator’s power – whether any reasonable excuse for refusal Guardianship and Administration Act 2000 (Qld) ss 44, 44(2), 44(3), 44(5) and 44(6) 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 of 4 -- 2 [1] FT is 88 years of age. The Public Trustee of Queensland has been appointed as his administrator for all financial matters. His daughter, SY, is his attorney for personal and health matters. [2] FT and SY are registered owners as tenants in common of land situated at Stanton Road, Neurum. [3] FT made a will in 2009. The administrator made a request to SY in June 2014 for a copy of FT’s will. SY refused to accede to that request. However more recently she has provided a copy of what purports to be the will of FT but with most of the wording on the will blocked out. The testamentary intentions of FT cannot be ascertained by reading the document provided by SY. [4] The administrator applied to QCAT for a direction that SY provides a copy of FT’s will to the administrator. SY has responded to that application in the following terms: Without full disclosure as to why you want the Will of FT, I am only supplying you with proof that a Will exists. That is all that you should require. [5] This response did not satisfy the request made by the administrator and The Public Trustee seeks an appropriate direction from the tribunal. [6] The Public Trustee submitted that SY appears to object to the release of a copy of the Will as she is not satisfied that possession of a copy of the Will is necessary for the Public Trustee to make an informed exercise of his power as administrator for all financial matters for FT. [7] However, section 44 of the Guardianship and Administration Act 2000 (Qld) provides an administrator with an entitlement to possess all information which is necessary to make an informed exercise of the administrator’s power. A person who has custody or control of information must give that information to the administrator unless the person has a reasonable excuse.1 If a person does not comply with the request made by the administrator, the tribunal may order the person to give the information to the administrator.2 [8] The Public Trustee has submitted that an administrator is not required to provide a person, who has information about an adult who is subject to an administration appointment, with full disclosure of the motive behind a request for information under section 44 of the Act. It was submitted that in some circumstances the motive may be confidential or privileged to the adult. [9] I accept those submissions and find that The Public Trustee was not required to satisfy SY of the appropriateness of his reasons for the request when the request was first made for a copy of the Will of FT. SY could only 1 Guardianship and Administration Act 2000 (Qld) s 44(2). 2 Ibid s 44(3). -- 2 of 4 -- 3 refuse the request if she had a reasonable excuse for that refusal. Full disclosure by The Public Trustee of the reason why the Will is sought was not a prerequisite for SY formulating a reasonable excuse for refusing to comply with the request for a copy of the Will. Full disclosure would have probably assisted SY in formulating her response to the request but it was not a pre-condition to her decision. [10] However when a direction is sought under s 44(3) of the Act, the tribunal should be satisfied whether it is appropriate for the administrator to have possession of the requested information in order to make an informed exercise of decision-making power by the administrator. The Public Trustee has submitted that he has no reason to attempt to defeat the testamentary intentions of FT. The Public Trustee does express concerns however that he has been compelled to make decisions without the benefit of referring to FT’s will. [11] In particular, The Public Trustee in August 2014 made a decision to sever the joint tenancy of the property at Stanton Road, Neurum. It is reasonably likely that the administrator may need to make further decisions about the real property interests of FT in his role as decision-maker for all financial matters for FT. [12] The Public Trustee submitted that his overriding concern must be the proper care and protection of FT in his lifetime. To exercise that care, an administrator will necessarily have regard to the succession plan for his estate that has been instigated by FT in his Will. It was submitted that it is consistent with the General Principles and with decided legal authority, that a substitute decision-maker must have regard to an adult’s competent testamentary intentions. [13] I accept those submissions. I find that The Public Trustee should have regard to the testamentary intentions of FT when exercising financial decision-making power for him. I am satisfied that it is entirely appropriate for a copy of the Will of FT to be provided to The Public Trustee so decisions are not made that inadvertently frustrate the testamentary intentions of FT. In particular, ongoing decisions about the real property interests of FT should be made with regard to his overall testamentary intentions. [14] I am satisfied that I should make an order under section 44(3) requiring SY to provide a full and unredacted copy of the Will of FT to The Public Trustee. Under section 44(4), SY must comply with such a direction unless she has a reasonable excuse. SY was given by my directions made on 3 June 2015 an opportunity to disclose any reasonable excuse. She did not file any response in the tribunal. [15] SY did however send to The Public Trustee a response as outlined in paragraph 4 of these reasons. The Public Trustee has submitted that her response does not disclose any reasonable excuse. I agree. It is not a reasonable excuse for SY to continue to refuse to provide a copy of the Will because she has not been told why the request was made. The Public -- 3 of 4 -- 4 Trustee has a right to a copy of the Will in order to make an informed exercise of his powers as an administrator. [16] The Act itself sets out a statutory basis for an excuse in s 44(5), namely to avoid self incrimination. Release by SY of a copy of the Will to The Public Trustee will not expose her to any breach of her lawful duties as an attorney given the provisions in section 44(6) which override any restriction about disclosure of the information in any other Act or at common law. I accept the submissions of The Public Trustee that there is no legal objection against disclosure of the copy of the Will arising out of the duties of SY as a fiduciary for FT. [17] I therefore direct that SY must send to The Public Trustee of Queensland a full and unredacted copy of the Will of FT dated 16 April 2009 by 4:00pm on 10 July 2015. -- 4 of 4 --