BRR [2015] QCAT 171

CITATION: BRR [2015] QCAT 171 PARTIES: BRR APPLICATION NUMBER: GAA10775-14, GAA4099-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Mc Donald DELIVERED ON: 20 May 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The conflict transaction is not approved. 2. The administration order made by the Tribunal on 9 November 2012 is changed by removing NM as administrator and appointing The Public Trustee of Queensland as administrator for BRR for all financial matters. 3. This appointment remains current until further order of the Tribunal. It is reviewable and is to be reviewed in 2 years. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. That before 20 August 2015 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 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 -- 1 of 3 -- 2 for each property held by the adult; and ii. a copy of the current title searches. CATCHWORDS: Guardianship and administration matters for adults – Conflict transaction – failure to comply with tribunal’s order Guardianship and Administration Act 2000 ss 31, 36, 37 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] On 9 November 2012 NM was appointed as administrator for BRR for all financial matters. In the course of her administration, NM submitted documentation in relation to the management of BRR financial affairs as required by the order of 9 November 2012. An application for authorisation of a conflict transaction was raised by the Tribunal when it became evident that NM was not contributing to the costs living in the premises owned by BRR. [2] The Tribunal considered the application at a hearing attended by NM on 12 March 2015. NM stated that she was BRR’s partner of 10 years and they had resided together at the unit owned by BRR during that time. She informed the Tribunal that she had not previously been assessed by Centrelink as BRR’s partner because he had not declared her as his partner to them. Resultantly, she stated that they had now assessed him as her partner and his Centrelink income, which is now his sole source of income has been reduced upon his placement in a nursing home. [3] Resultantly, BRR has expenses that exceed his income. NM indicated that to finance costs of care she has sold down shares that have been previously undisclosed to her. The shares returned a value of $13,807. Without the sale of this asset, the annual deficit in the 2014 budget was $12,691. BRR has continued to cover the costs of rates and body corporate fees since his admission to a nursing facility, where his fees are approximately $1,500 per month. [4] NM has been living in the unit owned by BRR for 10 years. She stated that she had not previously contributed to the costs of body corporate or rates, and this was always paid by BRR. Since her appointment as administrator, NM has continued not to pay rent or contribute to costs of the unit owned by BRR in his sole name. This presents itself as a conflict transaction, and as such requires the Tribunal’s approval under section 37 of the Guardianship and Administration Act 2000. [5] NM stated that since the Tribunal had raised concerns through its financial assessment process she commenced paying all body corporate fees which -- 2 of 3 -- 3 were $3,000 per annum, and Council rates of $603 per quarter. The Tribunal requested that she provide evidence of this statement and adjourned the proceedings to allow NM the opportunity to do so. [6] In correspondence dated 23 March 2015 NM provided BRR’s bank statement for the period of 19 December 2014 – 13 March 2015. The statement did not clearly identify how any payments had been made by NM to support her statement of contribution. It alone was insufficient to confirm the oral statements that she had made to the Tribunal that she had paid for outgoings. She was afforded another opportunity to provide the Tribunal with clearer evidence in support of her claim, being ordered to provide specific documents which would be clearer evidence of her contributions. She was given until 23 April 2015 to provide these to the Tribunal. She failed to provide the Tribunal with any further documentation. [7] The Tribunal is not satisfied on the evidence available that NM has made any contributions to outgoings on the unit. BRR is paying the costs of his nursing care which exceeds his current pension. NM has informed the Tribunal that she has provides contribution to these costs, but has not supported this statement with adequate documentary evidence. Therefore the Tribunal is unable to approve the conflict transaction. [8] NM has indicated that this has been her home of 10 years and she has not contributed to its costs in that time. The Tribunal accepts that she has a beneficial interest in the property. The Tribunal also accepts her evidence that she is the only person is his life, him not having any children. However, BRR’s budget is in deficit and without her contribution to his costs she is not making prudent financial decisions in BRR’s best interest. Had NM provided the requested documentation to confirm that she was making the contributions that she suggested, the Tribunal would most likely have approved the transactions, however, she was given multiple opportunities to provide this documentation, and failed to do so. Having regard to the order of 2 April 2015, she is in breach of an order of the Tribunal, and therefore of section 36 of the Guardianship and Administration Act 2000. The appointee is not competent to continue acting as she has contravened the Act in failing to comply with a Tribunal order. Accordingly, the Tribunal considers it is necessary to appoint an alternative administrator. The Public Trustee is the only alternative available. -- 3 of 3 --