BEC [2013] QCAT 709

CITATION: BEC [2013] QCAT 709 PARTIES: BEC APPLICATION NUMBER: GAA7687-13, GAA9111-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 November 2013 HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Clarkson DELIVERED ON: 9 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for the appointment of an administrator for BEC is dismissed. 2. The Tribunal directs the attorney, GG, to provide it with bi-annual accounting in the form of the Tribunal approved ‘Account by Administrator – Guardianship and Administration Act 2000’, the first thereof to be filed by 21 May 2014. 3. The Tribunal directs GG to notify it at least fourteen (14) days prior to signing a contract for the sale of any of BEC’s properties situated in the State of Queensland, or elsewhere. 4. The Tribunal also directs GG to file in the Tribunal within thirty (30) days a list of all BEC’s assets and liabilities, in Queensland or elsewhere, held solely by her or jointly with any other person. -- 1 of 7 -- 2 CATCHWORDS: GUARDIANSHIP – where adult missing – whether jurisdiction to appoint an administrator – whether changed circumstances warrant an order changing terms of enduring power of attorney Guardianship and Administration Act 2000 s 12, Schedule 4 Powers of Attorney Act 1998 ss 116, 117 APPEARANCES and REPRESENTATION (if any): Applicant, HE represented by Solicitors, Charles Young and Yvonne O'Byrne Attorney, GG represented by Holly Blattman of Counsel Public Trustee of Queensland represented by Linda Blackburne REASONS FOR DECISION [1] BEC is a Queensland woman who went missing at sea while sailing on a yacht with her partner, GG, on 1 February 2012. She has not been seen or been in communication with any person since that time. [2] By way of an enduring power of attorney executed on 11 August 2010, BEC appointed her partner, GG, and her brother, HE, as her attorneys for financial and personal/health matters. The attorneys were appointed to make decisions successively in the order named. [3] HE (the applicant) filed applications with the Tribunal seeking orders to the effect that: (a) the primary attorney, GG, is removed as attorney, and that the applicant is thus the only attorney for BEC; (b) in the alternative, the applicant seeks appointment as attorney jointly with GG; (c) if either of these orders are not made, the applicant seeks the appointment of The Public Trustee of Queensland as sole attorney or administrator for BEC. [4] The applicant submits in essence that BEC’s circumstances have now changed to the extent that one or more of the terms of her enduring power of attorney are inappropriate. It is thus not in her best interests for the primary attorney to continue in this role. -- 2 of 7 -- 3 [5] The applicant bases the submissions on the grounds that: (a) BEC is presumed to be deceased; (b) an enduring document is revoked upon the death of a principal; (c) there is sufficient evidence to found an application to the Supreme Court for a declaration that BEC is now deceased, but GG has not made such application; (d) there is no legislation in Queensland allowing for the appointment of an administrator of the estate of a missing person; (e) in all the circumstances, where BEC would in all respects appear to be deceased, it is not in her best interests, and it is not appropriate for GG to continue to exercise powers under the enduring power of attorney. [6] GG’s submissions included the following: (a) the Supreme Court of Queensland has jurisdiction to make a declaration of death when a person goes missing, but until that occurs, BEC is presumed to be alive in the eyes of the law; (b) BEC wished GG to be her primary attorney – as evidenced by his appointment; (c) GG has been acting in this role, he wishes to continue to do so, and there is no evidence to suggest that he has breached his obligations under the relevant legislation; (d) the Tribunal does not have jurisdiction to appoint an administrator in the present case. [7] The issues for the Tribunal included the following matters. [8] Does the Tribunal have jurisdiction in the circumstances to appoint an administrator for BEC, and if so, should it do so? [9] If not, is the Tribunal satisfied that BEC’s circumstances have changed to the extent that her enduring document should be changed? Administration Appointment [10] Section 12(1) of the Guardianship and Administration Act 2000 (the Act) outlines the matters about which the Tribunal must be satisfied before it may appoint an administrator for an adult. [11] First, the Tribunal must be satisfied that an adult has impaired capacity for financial matters. Second, that there is a need for decisions to be made about those matters to the extent that, without an appointment, an adult’s needs will not be adequately met or an adult’s interests will not be adequately protected. -- 3 of 7 -- 4 [12] Capacity is defined in Schedule 4 of the Act. It requires an adult to be capable of: (a) understanding the nature and effect of decisions; (b) freely and voluntarily making decisions; (c) communicating the decisions in some way. [13] Section 1 of the general principles outlined in Schedule 1 provide that an adult is presumed to have capacity for a matter. In this case there is no evidence to rebut the presumption of BEC’s ability to understand the nature and effect of decisions, or to make decisions freely and voluntarily. [14] However, the evidence before the Tribunal is that BEC is missing, and the likelihood is that she is deceased. But until the latter circumstance is established at law, it is not a matter to which the Tribunal may have regard.1 On the other hand, the Tribunal may have regard to the evidence that, since her disappearance, BEC has not communicated with any member of her support network, or any other person. [15] There is legislation in some States of Australia which allows for the appointment of a manager of the estate of a missing person. 2 This legislation thus provides a mechanism to protect a person whose estate is vulnerable through a perceived inability to make or communicate decisions in relation thereto. Queensland has no similar statutory provision outside the Act. [16] A physiological inability or an inability for any other reason to communicate a decision does not, of itself, imply that a person lacks the cognitive ability to make that decision. On a plain reading of the legislation, the three elements of the definition of capacity are not necessarily linked, and essentially are ‘stand alone’ components. [17] BEC is entitled to the legal presumption that she has capacity. That presumption can be rebutted by evidence, and given the evidence and material presented to the Tribunal about the circumstances of her disappearance, it is difficult to describe what further evidence might be required by the Tribunal before it holds that the presumption is rebutted due to BEC’s inability to meet the requirements of the third element of the definition of capacity. [18] One of the underpinning philosophies of the Act is found in the Tribunal’s protective jurisdiction. In this regard, BEC is in no different position to an adult who, say through intellectual or physical impairment, cannot communicate necessary decisions. That adult is entitled to have the Tribunal consider whether their person or their estate ought to be protected. The Tribunal considers that persons in circumstances similar to that of BEC are similarly entitled. 1 Axon v Axon (1937) 59 CLR at 405 per Dixon J. 2 See, for example: s 54(1) NSW Trustee and Guardian Act 2009; Part 5A Guardianship and Administration Act 1986 (Vic). -- 4 of 7 -- 5 [19] The Tribunal holds therefore that BEC is an adult with impaired capacity for financial matters. Accordingly, if the other matters outlined in s 12(1) of the Act are satisfied, the Tribunal has the jurisdiction to appoint an administrator for BEC, and it should do so. [20] The Tribunal finds that this conclusion logically follows from the absence of specific legislation enabling the appointment of an administrator for a missing person, and one of the stated purposes of the Act, which is to establish, together with the Powers of Attorney Act 1998, a comprehensive scheme to facilitate the exercise of power for an adult who needs, or may need, another person to exercise power for the adult.3 Is there a need for decisions? [21] BEC has significant assets requiring ongoing decisions in relation to the management and investment thereof. [22] There is thus a clear need to decisions to be made about her estate. Is there a need for an appointment? [23] In this context, the Tribunal must examine the operation of any enduring document BEC has made, as this arrangement essentially reflects her choice of substitute decision-maker exercised at a time when she presumably had the capacity to exercise that choice. [24] The Tribunal is bound by the general principles outlined in Schedule 1, and particularly those requiring a decision-maker to respect an adult’s views and wishes. Thus the Tribunal would ordinarily require evidence indicating that an attorney is not acting in the best interests of a principal, or is otherwise not carrying out his or her duties in accordance with the legislation, before it might consider orders effectively overturning the decision-making arrangements a principal has put in place. [25] The applicant submits that he has been required to act as attorney due to GG’s failure to act in this regard. [26] The applicant also submits that, until the investigation into BEC’s disappearance is finalised, and a conclusion is reached, it is appropriate to ensure the maintenance of the status quo in relation to BEC’s estate. [27] In response, GG submitted material to indicate that he has attempted to exercise his power of attorney, in some cases without success. He states that he has been frustrated by the actions and representations of the applicant. Certain parties have been reluctant to accept or acknowledge his authority, and have indicated they will await clarification of his authority after the Tribunal ruling on the issue. 3 Guardianship and Administration Act 2000 s 7(b) & (e). -- 5 of 7 -- 6 [28] GG also refers to a communication from the Department of Foreign Affairs & Trade which indicates that the Thai authorities (who were understood to be conducting an investigation into BEC’s disappearance) are either not doing so or are no longer doing so. The only continuing action being undertaken by Interpol Bangkok is to keep watch for her body. [29] While the applicant maintains that the Queensland Police Service may commence an investigation into BEC’s disappearance, there is no evidence before the Tribunal that this will, or is likely to, occur. Findings about an administration appointment [30] It is true that GG’s exercise of his powers under the enduring document has been problematic. The parties blame each other for these difficulties. However, in the circumstances, the Tribunal considered that further ventilation or speculation about the attribution of blame would be unproductive. More to the point is the likelihood (confirmed at the hearing by the applicant) that GG’s attorneyship following the Tribunal’s rulings will be able to operate without his opposition or resistance from other professionals with whom GG has been attempting to deal. [31] In these circumstances the Tribunal is satisfied that the decision-making arrangements which BEC had put in place are likely to be effective in protecting her interests. Or to put the finding in terms of s 12(1) of the Act, the Tribunal is not satisfied therefore that, without an appointment, BEC’s interests will not be adequately protected. The power of attorney [32] Section 116 of the Powers of Attorney Act 1998 empowers the Tribunal, to change the terms of a power of attorney. Section 117 provides that one of the grounds on which an order might be made is the changed circumstances of a principal, to the extent that one or more of the terms of the document are inappropriate. [33] The evidence indicates that, as a result of her disappearance and the apparent circumstances thereof, the relationship between BEC’s family members and GG is now one of suspicion and conflict. Despite the fact that the applicant is a successive attorney, there is little meaningful communication between the attorneys, and their relationship is such that at this time a joint appointment will likely be unworkable. [34] Given the Tribunal’s finding that the enduring power of attorney is likely to be effective in the future to protect BEC’s interests, the Tribunal is disinclined to interfere with BEC’s arrangements in this regard. However, the Tribunal also finds that the conflict now existing between the members of her support network is not what she would want, and is not a circumstance which is ultimately likely to be in her best interests. As a successive attorney, the applicant is also entitled to be cognisant of the nature and extent of BEC’s finances, and to be kept up to date with significant dealings with her assets. -- 6 of 7 -- 7 [35] An administration appointment enlivens the Tribunal’s protective jurisdiction, with the consequence that administrators are normally required to provide periodic accounts to the Tribunal. This is not the case with attorneys. That is because the Tribunal is not aware of the existence of any particular appointment unless orders are sought in relation thereto. However, when those matters are brought before the Tribunal, it has, on occasion, directed attorney(s) to account on a basis similar to the requirements placed on administrators. [36] The prospect of GG’s attorneyship functions being placed under the scrutiny of the Tribunal was discussed with the parties, with no apparent objection from either of them. [37] Section 138 of the Act empowers the Tribunal to give directions to an attorney it considers appropriate. Neither the applicant nor GG opposed the imposition of directions requiring the latter to provide regular accounts, other advice relating to BEC’s finances, and any intention by him to sell her real estate. Findings about the power of attorney [38] The Tribunal held that such directions were appropriate in the circumstances. That is because, while not overturning BEC’s expressed preference about her substitute decision-maker, the requirement to provide accounts will introduce transparency and accountability into the decision-making process, and should also have the beneficial outcome of reducing some of the tension between the members of BEC’s existing support network. [39] In any event the Tribunal considered that the directions given to the attorney would likely result in outcomes consistent with the best interests of BEC, and orders were made accordingly. -- 7 of 7 --