BAS [2014] QCAT 117

CITATION: BAS [2014] QCAT 117 PARTIES: BAS APPLICATION NUMBER: GAA2729-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 28 March 2014 HEARD AT: Brisbane DECISION OF: Professor Ashman, Member DELIVERED ON: 28 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The appointment of the Public Trustee of Queensland for all financial matters is revoked. CATCHWORDS: Review of the appointment of an administrator pursuant to s 23(2) of the Guardianship and Administration Act 2000 when an enduring power of attorney exists; where the adult is in a vulnerable situation in regard to financial exploitation; where the attorneys’ actions have come under investigation by the Adult Guardian; where the attorneys are equivocal about continuing in their role under the existing circumstances; Powers of Attorney Act 1998 (Qld) ss 66, 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32(2) APPEARANCES and REPRESENTATION: The application was heard on the papers pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Forty-eight-year-old BAS was involved in a motor vehicle accident in 2007. She was a passenger in a vehicle that deviated off an unsealed road in Western Queensland and crashed into a tree. She was seriously injured, is now a paraplegic, and relies upon a wheelchair for mobility. A personal injuries claim resulted in a settlement of $1,188,748. [2] In late February 2014, the Adult Guardian initiated an investigation following the receipt of allegations that BAS’s funds were being mismanaged. The Tribunal has received no report in regard to this investigation. [3] On 28 February 2014, the Tribunal received an application for the appointment of an administrator and an application for an interim order from a Social Worker. She was concerned as BAS received a notice to vacate a Department of Housing residence due to the extent of her financial assets and there were conflicting views about whether BAS would remain in Mt Isa or move to Brisbane or Cherbourg. The Social Worker believed that neither of the last two options was BAS’s wish. [4] On 28 February 2014, the Tribunal was satisfied that urgent action was required to secure BAS’s assets and issued an interim order appointing the Public Trustee of Queensland as BAS’s administrator for all financial matters. [5] Subsequent to that appointment, the Tribunal was notified that BAS appointed friends, BR and his daughter BS, as her attorneys for decisions relating to financial and personal/health matters in October 2010. A copy of that document is held by the Tribunal. [6] Under s 23(2) of the Guardianship and Administration Act 2000, if the administrator becomes aware of the existence, or purported existence, of an enduring document, the administrator’s power for the matter is suspended pending review of the appointment. [7] The Tribunal initiated a review of the administrator appointment in accordance with s 23(2). [8] Information now available to the Tribunal provided by BR’s legal representative indicates that the attorneys consolidated BAS’s assets through a significant investment portfolio and investment account. These accounts currently hold over $1,000,000. The submission from the legal representative is directed to the Adult Guardian in response to its investigation. It includes an explanation of the circumstances surrounding the motor vehicle accident, the appointment of the attorneys as BAS’s attorneys, and contains financial documents that show the history and status of BAS’s financial situation as described above. [9] The Tribunal’s roles and responsibilities are set out in the Guardianship and Administration Act 2000. Along with the Powers of Attorney Act 1998, -- 2 of 4 -- 3 the Guardianship Act seeks to provide a comprehensive scheme to ensure the exercise of power for financial and personal matters by or for an adult who needs—or may need—another person to exercise such powers. If a scheme is in place, such as an enduring power of attorney, and the Tribunal is satisfied that the scheme is functioning effectively and in accordance with General Principles set out in Schedule 1 of those Acts, the Tribunal will not contemplate changing that scheme. If, however, the Tribunal is not satisfied that the scheme is functioning effectively and in accordance with General Principles, it is obliged to consider alternatives. [10] Therefore, the Tribunal first turned its attention to the manner in which the Enduring Power of Attorney has been applied. A report by a doctor written two months after the power of attorney was given suggests that BAS had the capacity to understand the nature and effects of the powers she was giving to the attorneys. Are BAS’s attorneys acting in accordance with the requirement of the Powers of Attorney Act 1998? [11] The Adult Guardian appears not to have completed its investigation, or if it has, it has not provided a report of its findings having addressed the allegations that the attorneys breached ss 66 and 86 by failing to manage BAS’s assets and finances appropriately. [12] The attorneys vehemently refute the accusations made. Perusal of the bundle of documents provided by the attorneys’ legal representative appears to confirm that the attorneys have acted in a capable and competent way in securing BAS’s assets and managed them in her best interest. They pay all accounts and living expenses. The complication associated with the management of BAS’s financial affairs appears to stem from her vulnerability to exploitation from family members or others who reside in or around Mt Isa. In the submission, mention is made of a sum of $17,000 that was withdrawn from a Goal Saver Account1, apparently as a result of her acquiescence to demands by family members or others. The attorneys immediately ceased depositing funds into that account and an alternative mechanism was established to provide BAS with funds. [13] The attorneys’ submission identifies BAS’s impending move from Mt Isa to Cherbourg as the starting point for the allegations presented to the Adult Guardian. In case notes that record a conversation between the Tribunal’s Registry and BR, it appears that the Public Trustee intervened to halt BAS’s move from Mt Isa to Cherbourg. BR is reported as saying that he supported BAS remaining in Mt Isa because that is where she wished to live but a concerning medical conditions that was not being addressed in Mt Isa prompted him to seek accommodation for her in an aged care facility in Cherbourg. 1 Being one account that BAS had requested to be set up on her behalf. -- 3 of 4 -- 4 [14] The Registry asked BR if he wished to remain as BAS’s attorney. He is reported to have said that if she stayed in Mt Isa he would be involved in constant friction with members of her family and others in regard to the appropriate use of her money and he would prefer not to do that. If she moved east, he would like to continue as her attorney. [15] It appears that no final decision has been made about where BAS will live. The decision to bring BAS to Cherbourg was made by the attorneys. It is not clear if this was also BAS’s wish and it is not clear if BAS lacks capacity for personal decisions that would empower the attorneys to make those decisions on her behalf2. [16] BAS’s general practitioner and the Social Worker assert that BAS does not wish to leave Mt Isa. It is not clear if the proposed move was intended to be permanent. [17] In conclusion, the Tribunal finds no compelling evidence in the documents provided that BAS’s financial affairs have been mismanaged and that her attorneys have acted contrary to the General Principles of the Powers of Attorney Act 1998. BR’s views concerning his continuation as an attorney, however, appears to rest on BAS’s residential location and this matter remains outstanding. [18] On the basis that the operation of the decision-making scheme put in place by the Enduring Power of Attorney in regard to financial matters does not appear to be compromised, the Tribunal finds that there is no need to appoint an administrator and dismisses the application. [19] The appointment of the Public Trustee is revoked. [20] As the continuation of the attorneys involvement in financial decisions under the Enduring Power of Attorney seem to rest on where BAS lives, there might be some value in the involvement of an independent decision maker for some personal matters, including accommodation. There is no application for the appointment of a guardian currently before the Tribunal. The attorneys or any other interested party could consider lodging such an application. The outcome of any such application might also influence consideration of the need for the appointment of an administrator. 2 Reports are available dated 21 February 2014, 27 February 2014, and 20 March 2014. -- 4 of 4 --