DMK [2013] QCAT 460

CITATION: DMK [2013] QCAT 460 PARTIES: DMK APPLICATION NUMBER: GAA3412-13 GAA4059-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 25 July 2013 HEARD AT: Southport DECISION OF: R Joachim, Presiding Member P Feil, Member DELIVERED ON: 22 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to withdraw is refused. 2. The Public Trustee of Queensland is appointed as administrator for all financial matters. 3. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 6. That before 22 November 2013 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 -- 1 of 9 -- 2 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: LEAVE TO WITHDRAW AS GUARDIAN – ADMINISTRATION APPLICATION - where adult has a mental illness - where proceedings are on foot in the Family Court in respect of property settlement and parenting matters - where the Adult Guardian is appointed as guardian for legal matters not related to finance or property - where Adult Guardian seeks leave to withdraw as guardian - where no litigation guardian or case guardian appointed - where judgment is currently reserved in Family Court matters - whether proceeding in Family Court is a legal matter - whether the Adult Guardian can give instructions about non financial matters to a lawyer representing the adult. Guardianship and Administration Act 2000 section 27, 239, Schedule 2, part 3, section 18 APPEARANCES and REPRESENTATION (if any): Mr K Martin, the Adult Guardian Ms K Terrance, solicitor, separate representative for DMK’s children Mr M Martin, solicitor, represented the Adult Guardian Mr D Hallam, solicitor, representing DMK Mr S McPherson representing the Public Trustee of Queensland REASONS FOR DECISION [1] DMK is 46 years old and has a history of drug induced psychosis and persecutory delusions. She lives a transient life style. -- 2 of 9 -- 3 [2] The Adult Guardian was appointed as her guardian on 4/11/11 until further order: (a) with a review in 2 years (b) to make decisions for DMK in relation to legal matters not relating to the adult’s financial or property matters. [3] The Tribunal’s reasons for appointing the Adult Guardian at paragraph 1 records DMK ―is currently involved in proceedings in the Family Court of Australia. These, described as ongoing and very complex, involve a dispute between DMK and her former husband.‖ [4] The Tribunal further notes at paragraph 13 that: ―I am satisfied that DMK will be unable to understand what is involved in the decisions needed to defend or settle the current Family Court matters, understand the nature of the litigation, its purpose, its possible outcomes, and any possible risk of having to pay costs if she is unsuccessful in the case.‖ [5] The Adult Guardian has applied to the Tribunal for leave to withdraw as Guardian. This is an application under section 27 of the Guardianship and Administration Act 2000. The Tribunal has to approve the withdrawal. [6] An application for the appointment of an administrator for DMK was made to the Tribunal by Ms Margaret Arthur, solicitor from the law firm Carne Reidy Herd who are conducting DMK’s family law litigation. Legal Aid is funding this litigation after a request from the Adult Guardian as Guardian under the 2011 order. [7] Both the leave to withdraw and the administration applications were heard at the same hearing. Preliminary matter [8] The Tribunal announced its intention to hear the administration application first because in our view this seemed to be the least controversial. [9] Mr Martin sought assurances that doing this would not prejudice his case. [10] When asked for an explanation as to how this could occur given there were 2 applications which would be considered separately, he stated he wanted it on the record. [11] The Tribunal noted his comment but remains mystified as to why he would need any assurance that his case could be prejudiced. Administration application [12] Prior to the hearing, the Tribunal made an interim order appointing the Public Trustee as Administrator for three months from the 21st May 2013. The administration application requires the Tribunal to consider section 12 of the Act. The Tribunal must firstly consider DMK’s capacity to make -- 3 of 9 -- 4 decisions about her financial matters, secondly if there is a need for a decision and finally if a need exists, who should be appointed. [13] The principal evidence before the Tribunal regarding capacity for financial matters is from Dr Tanner. She reported on 17/5/13 that DMK has paranoid schizophrenia with dexamphetamine dependence. She noted DMK’s impaired insight into her illness and her inability to recognize the consequences of non-compliance. Dr Tanner reported DMK is highly vulnerable to persistent delusions and disorganised behaviour. This impacts on her ability to make legal and financial decisions. [14] DMK’s lawyer Mr Hallam did not dispute this evidence. Nor did the Adult Guardian. [15] A property settlement is ongoing in the Family Court. The Family Court’s determination will require action by the adult to implement its terms. It is likely she will have assets to manage. [16] The Tribunal is satisfied that a need for an administrator exists and will appoint the Public Trustee of Queensland as there is no alternative person available for appointment by the Tribunal. The leave to withdraw application [17] Mr Martin advised the Tribunal that the Adult Guardian was not a party to the hearing on 4 November 2011 at which his office was appointed to be guardian for DMK for legal matters not related to finance or property. After the Tribunal pointed out the error in this statement, he subsequently advised his office while provided with a Notice of Hearing by the Tribunal, did not attend the hearing. [18] He submitted that the original application was made on the basis that the Adult Guardian would be eligible for appointment as either a case guardian or litigation guardian and this was beyond the powers of his office and contrary to section 239 of the Guardianship and Administration Act 2000. [19] He submitted that when an individual becomes involved in litigation and is unable to represent himself or herself, the law provides for a litigation guardian to be appointed in the Queensland Courts and in the Commonwealth Family Court, for a case guardian to be appointed. [20] Mr Martin argued that the Adult Guardian’s responsibilities when appointed for legal matters, extended only to arranging legal representation, and further that the Adult Guardian does not represent the Adult in respect of whom the appointment is made, or give instructions to lawyers for the Adult. [21] He argued that the Adult Guardian had fulfilled its role in arranging legal aid. -- 4 of 9 -- 5 [22] Without providing evidence to support his position, he claimed the initial Tribunal was subject to misinformation as to the role and function of the Adult Guardian. [23] He expressed considerable dismay at the decision of Justice Hogan of the Family Court to dispense with Rule 6.08 of the Family Court Rules which relates to the appointment of a case guardian, and Her Honour’s decision not to appoint a case guardian on the basis that the Adult Guardian was in place. Mr Martin argued that in making these decisions, Justice Hogan sought to have his office provide instructions, which he submits he cannot do. [24] He advised that the Adult Guardian sought to raise this with Justice Hogan who, Mr Martin claimed, had made an order seeking to impose on his office something that the Queensland Parliament has not vested in his office. Rather than appeal that decision because of the costs involved, he decided to seek a withdrawal of his appointment as guardian. [25] Mr Martin submitted that it is not the role of the Adult Guardian to act on behalf of clients where there is a dispute, and that he cannot give instructions in a family law matter. [26] Advice was received from Mr Hallam and Ms Terrance that whilst all evidence is now concluded in the family law matter, Justice Hogan has yet to deliver a decision. [27] Mr Hallam advised he has serious concerns about his client’s capacity to give instructions. [28] He further advised that until the Family Court’s judgment is delivered, he does not know if any further issues will be raised. Mr Hallam advised that the Public Trustee of Queensland had given instructions to him on DMK’s behalf in relation to a recent reopening of the property settlement proceedings in the Family Court.. He stated he would have to withdraw if there was no one to give him instructions, in respect of the parenting issues. [29] Ms Terrance, the Independent Childrens Lawyer for DMK’s children, submitted to the Tribunal that the QCAT order gives the Adult Guardian the ability to make decisions for legal matters not relating to finances or property, including decisions about parenting matters. She argued the Adult Guardian should remain appointed until the expiry of the appeal period following the delivery of Justice Hogan’s decision. [30] Mr Martin argued that the Adult Guardian should not remain as a guardian of last resort if it is not necessary. Any future need is no basis for an appointment. What is a legal matter [31] A legal matter is defined in schedule 2 of the Act. It is reproduced below. -- 5 of 9 -- 6 A legal matter, for an adult, includes a matter relating to— (a) use of legal services to obtain information about the adult’s legal rights; and (b) use of legal services to undertake a transaction; and (c) use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and Note— The Succession Act 1981, part 4 enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person’s estate if adequate provision is not made from the estate for the dependant’s proper maintenance and support. (d) bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding. [32] Mr Martin’s submissions about this can be summarised as below:  The powers are very limited  No one knows how far the powers extend  There are no defined boundaries but the use of the term, legal services in subsections (a), (b) and (c) is very limited  Bringing a proceeding means commencement of a proceeding  Defending means lodging a defence  Settling means signing off on a claim, if appropriate, and in the best interests of a party. [33] When the Tribunal asked Mr Martin about whether bringing or defending a claim allowed the Adult Guardian to provide instructions, he submitted that to his knowledge this has never been used in this way. He again stated that a narrow interpretation should be given. [34] When the Tribunal referred to examples of the Adult Guardian giving instructions in relation to child protection review matters before QCAT, Mr Martin submitted these are relatively narrow examples. [35] The Independent Children’s Lawyer advised that DMK had told the Court she had been making attempts to contact the Adult Guardian, and would continue to be involved with the Adult Guardian. [36] Mr Martin noted that DMK will not engage with the Adult Guardian, does not want the Adult Guardian involved as she believes she can make decisions about her children on her own, and hasn’t been in contact. -- 6 of 9 -- 7 [37] Mr Martin submitted that obtaining DMK’s views and wishes has been impossible. What does an application for leave for withdraw as guardian require the Tribunal to consider? [38] Section 27 of the Guardianship and Administration Act 2000 gives little guidance regarding this question. [39] An appointment as a guardian ends if, with the Tribunal’s leave, the guardian withdraws. [40] If the Tribunal gives leave the Tribunal may appoint a replacement guardian. [41] Submissions from the Adult Guardian with which the Tribunal agrees, are that there is no need for the Tribunal to consider DMK’s capacity when deciding the withdrawal application. The Tribunal notes there is no application for review and no proposal to substitute an alternative guardian. The Tribunal’s view [42] The Tribunal considers the issues to be considered regarding granting leave to withdraw from an appointment revolve around: 1. whether there is a need for further decisions necessitating an appointment 2. the appropriateness and competence of the appointee 3. the personal circumstances of the appointee 4. whether an appointment was ultra vires [43] Points 2 and 3 above are not relevant for this matter. The Adult Guardian continues to be appropriate and competent for appointment and there are no personal circumstances to be considered for a statutory appointment. [44] It is relevant here to note that the Adult Guardian has not been appointed as case guardian or litigation guardian, and that Justice Hogan dispensed with Rule 6.08 of the Family Court rules relating to the appointment of a Case Guardian. The Adult Guardian has not challenged this decision in the Family Court. [45] In the Tribunal’s view Mr Martin’s arguments fail on both grounds of need and whether his office can give instructions to a lawyer in the Family Court jurisdiction. [46] The Tribunal does not accept Mr Martin’s arguments regarding what constitutes and does not constitutes a legal matter under the Act. The Tribunal considers the current Family Court proceedings to be a legal -- 7 of 9 -- 8 matter relating to bringing or defending a proceeding. It considers that until the Family Court has handed down its decision and the terms of that decision have been carried out, the proceedings remain on foot and do so until any appeal period has elapsed. The Tribunal also notes that the examples given in Schedule 2, part 3 section 18 which defines a legal matter is a non exclusive list, and therefore cannot be as narrow as Mr Martin would have us accept. [47] In any case it is difficult to imagine how anyone appointed for a legal matter to bring or defend a legal proceeding could not give instructions in exercising their powers. It is fundamental to the legal process and is integral to both bringing and defending a proceeding. The definition extends in provision (d) of the schedule to settling a claim following the commencement of proceedings. Such a step must necessarily involve an assessment of the strengths and weaknesses of action, a decision about settlement and providing instructions to a lawyer to settle. If a guardian is required to make decisions about a legal matter of this type, it must extend beyond merely appointing a legal representative. [48] This is what the Adult Guardian is doing in the child protection jurisdiction of QCAT presently. In the matter of TDJ (unreported) the Adult Guardian was appointed for legal matters not related to finance or property. The Adult Guardian advised the Tribunal in January 2013 that the Adult Guardian had instructed lawyers in a Childrens Court matter at the Southport Magistrates Court. The Adult Guardian also prepared an application for TDJ to QCAT in relation to a review of a decision of the Department of Communities, Child Safety and Disability Services and has instructed a lawyer in this matter also. The Tribunal considers the above seriously undermines Mr Martin’s arguments. [49] The Public Trustee of Queensland, under the interim order, has already given Mr Hallam instructions in the property settlement part of the Family Court proceeding through the Public Trustee of Queensland’s plenary appointment as an administrator. Arguably this was done by the Public Trustee of Queensland exercising power for a legal matter relating to the adult’s finances and property. The Public Trustee has raised no issues with this. [50] In relation to need, the Tribunal heard that whilst the evidence was concluded in DMK’s family law matter, the decision is reserved and will be potentially appellable. There may also be a possibility, however slight, that the matter could be reopened. We accept that Mr Hallam may need further instructions in relation to this matter and that if he is unable to get DMK’s instructions, the Adult Guardian should remain in place for this purpose. [51] The Tribunal considers therefore the request for leave to withdraw is premature. There remains need for the Adult Guardian to remain as decision maker for legal matters not relating to finance or property until the appeal period has elapsed in respect of the matters before the Family Court. -- 8 of 9 -- 9 [52] The Tribunal will not grant leave to the Adult Guardian to withdraw as guardian at this time. As a result section 27(2)(a) of the Act granting a discretion to the Tribunal to appoint an alternative guardian does not apply. -- 9 of 9 --