FM, Re [2013] QCAT 135

CITATION: Re: FM [2013] QCAT 135 PARTIES: FM APPLICATION NUMBER: GAA1232-12 / GAA10141-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 15 March 2013 HEARD AT: Maroochydore DECISION OF: Professor Adrian Ashman, Member Jim Allen, Member DELIVERED ON: 25 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a declaration of capacity about the capacity of FM is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. 2. The Public Trustee of Queensland is appointed as administrator for FM for matters relating to the financial management of the heritance under the will of the late YS. 3. The administrator is to provide a financial management plan to the Tribunal with four (4) months. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. CATCHWORDS : Dismissal of a declaration of capacity - Appointment of an administrator Guardianship and Administration Act 2000 (Qld), s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 -- 1 of 6 -- 2 2 APPEARANCES and REPRESENTATION (if any): FM Barrister representing FM Solicitor representing FM Former advocate Psychologist 2 representatives of the Public Trustee of Queensland REASONS FOR DECISION [1] FM is 45 years old. The early years of his life were difficult with less than appropriate parental care, and an education gained largely from special education services. When FM’s parent moved from the district, his aunt, YS, took him into her home and cared for him as his guardian. FM lived with his aunt until she was elderly and relocated to an aged care facility. [2] In 2001, a community health social worker applied to the Tribunal for the appointment of a guardian and administrator on the basis that FM was living alone in his aunt’s home, was vulnerable personally and financially, had no community supports, and spent his Centrelink benefit soon after receiving it each fortnight. At the hearing in June 2001, the Tribunal appointed the Adult Guardian and the Public Trustee of Queensland, each for one year only. [3] On review in 2002, these appointments were continued for thee years though the Adult Guardians appointment was limited to service provision decisions. The Public Trustee of Queensland made an application to the Tribunal to have the appointment of the Adult Guardian enlarged as FM had been evicted from his Aunts house. When that application was heard with a declaration about capacity lodged by FM in 2004, both appointments were revoked. [4] YS died in May 2011. FM is a beneficiary of YS’s will. In February 2012, the Public Trustee of Queensland applied to the Tribunal for its appointment to manage FM’s entitlement. Because there was limited evidence about FM’s capacity to make financial decisions, the Tribunal directed him to undergo a neuropsychological assessment. [5] Through his legal representative, FM appealed the Tribunal’s directions. The appeal was refused in August 2012 and a generous set of reasons was released explaining that decision. [6] A psychologist provided a report in mid-October 2012 and the Public Trustee of Queensland filed an application for a Declaration of Capacity in regard to FM in late November 2012 stating that it has concerns as to his capacity to manage his inheritance and provide a full and valid discharge. [7] The Tribunal now considers both applications together, for the appointment of an administrator and the declaration of capacity. The initial concern of the Tribunal is whether FM has capacity to make -- 2 of 6 -- 3 3 decisions about his inheritance. If it were found that he does not, the Tribunal would then consider the need for the appointment of an administrator and if there were such a need, who would be the most appropriate appointee. Does FM have decision-making capacity for financial matters? [8] The Tribunal reviewed several documents. There is a report from a Special School from the mid-1970s. FM’s intellectual ability and school achievement results were described as being well below average. It is conceded that this report is of modest value in assessing FM’s present capacity to manage his financial affairs. [9] A health professional’s report from a GP dated 17 April 2001 is similarly of modest value. The GP refers to FM’s difficulty in areas requiring intellectual capacity but most of her written responses about his capacity are given as, “Unsure.” [10] A further report from a second GP dated 31 March 2004 is similarly of minimal value. She refers to FM’s itinerant lifestyle but appears to indicate that he was able to make complex decisions in personal health, lifestyle, and financial matters. [11] The only substantive report was provided by the psychologist. She assesses FM with low average/borderline abilities in several areas, predominately those that are determined by timed tests. She concluded her report saying that FM is capable of understanding the nature and effects of decisions about his financial affairs, is sensible, street smart, capable of sustaining a personally satisfying lifestyle, and appears confident to handle his inheritance, and has managed to save some money. [12] The Tribunal interacted with FM for some time while the psychologist listened via teleconference. She was asked to comment on her findings in the context of the Tribunal’s discussion with FM. She stated that FM has performed satisfactorily under examination, that he functions at a higher level than might be perceived, has not developed grandiose ideas about his inheritance, is not impulsive and that his slow processing speed is unlikely to interfere with his capacity in regard to financial affairs. She stated that it would be important for FM to feel as though he was in control of his inheritance. [13] FM’s legal representative supported the psychologist’s views in terms of FM’s reflective nature and the importance of feeling in control of his financial affairs. He stated that there was nothing raised in the hearing that would cause him to believe FM does not have capacity for financial matters. [14] The advocate did not challenge other evidence. He told the Tribunal that he has supported FM as an advocate over almost a decade, including -- 3 of 6 -- 4 4 the application to the Tribunal that ultimately led to the revocation of the Adult Guardian’s and Public Trustee’s appointments in 2004. He did, however, express concerns about FM’s vulnerability to the insistent wishes of others, believing that FM has been—and would be—swayed in his views and attitudes by others over time. He cited the breakdown in their very positive relationship as evidence. [15] Several issues emerged during the Tribunal’s conversation with FM that cast a cloud of doubt over the psychologist’s and representative’s submissions. [16] FM is a poor historian. He could not (or would not) provide details of his life and the timing of important events; he responded that he could not remember. While he pays no rent (he sleeps on a bench), has no assets of note, and purchase of food appears to be his primary fortnightly expenditure, he has accumulated a small amount in savings over nine years. [17] He reported no friends but acknowledged his vulnerability to others when he was living in his aunt’s house, prior to his eviction. There was also a suggestion that he was influenced by a male at around the time the Tribunal issued directions in regard to neuropsychological assessment. [18] FM has literacy and arithmetic limitations and does not keep any documents. He reported that he destroys bank documents and revealed the destruction of documents received from his legal representatives, including the fee agreement. He reported no understanding of his agreement with his legal representatives, was not sure on what basis they were charging fees, or of their current costs. He could not explain how the Tribunal appeal came about, or why, other than his belief that he did not need an assessment. [19] FM could not speculate about what he might do with his inheritance if the Tribunal found that he had capacity. He was prompted about term deposits, buying and then putting a house on the rental market as he was not inclined to change his current life style, but these conversations revealed no clear process. He mentioned that he would seek financial advice but was unable to explain what advice he might seek. Several times he stated that he had not given any thought to the inheritance or what he might do with it, and would wait until he had it, put it in the bank, and then decide. Apparently, this has been his position since first learning of his entitlement some 22 months ago. [20] FM stated that he has kept his inheritance quiet and has told no one about it. When questioned further, he was less sure about such revelations but did not elaborate. A representative of the Public Trustee, however, informed the Tribunal that his significant inheritance is common knowledge in the township where FM lives. -- 4 of 6 -- 5 5 [21] On the basis of the written and oral evidence summarised immediately above, the Tribunal is not satisfied that FM understands the nature and effects of decisions that have been made, or might need to be made, in regard to the discharge and management of the inheritance. [22] The Tribunal is satisfied that FM is vulnerable to financial exploitation. There is a history, albeit somewhat unclear, of susceptibility to the influence of others and while FM might not act impulsively, the passive way in which he deals with others and the revelations that he has already made public suggests a degree of jeopardy if no constraints exist about access to his inheritance. [23] The Tribunal finds that the presumption of capacity contained in the Guardianship and Administration Act 2000 is rebutted. Consequently, the Tribunal dismisses the application for a declaration of capacity. [24] The Tribunal now moves on to consider the need for the appointment of an administrator. Is there a need for the appointment of an administrator and if so, who? [25] The representative of the Public Trustee of Queensland reported that FM’s entitlement from his aunt’s estate is substantial. The discharge is nearly finalised awaiting a tax return for the current financial year and distribution of the funds. [26] There will be outstanding legal fee for the present representation. The Public Trustee has already paid legal fees of approximately $23 000 associated with the appeal of the Tribunal’s directions and the fee of $2 750 has also been paid for the neuropsychological report. [27] The Tribunal has no significant concerns about FM’s ability to manage his day-to-day financial affairs. He has done this for almost a decade and has saved a useful, if modest, amount. His day-to-day needs appear minimal for a person living in his current circumstances and it appears that he has some level of support within the township where he lives. He stated no wish to travel but some interest in owning a van that might become his place of residence. [28] With the discharge of the inheritance, FM’s financial situation will change dramatically. He will no longer be entitled to a Centrelink benefit, his assets will require professional management, and investment advice would be needed to ensure that he has a regular income and access to funds in accordance with his wishes. [29] The Tribunal is mindful that FM has a considerable liquid asset and is likely to be in a position of unreasonable risk to his finances or property without the appointment of an administrator. Without an appointment, FM’s interests will not be adequately protected. -- 5 of 6 -- 6 6 [30] The Tribunal finds that there is a need for the appointment of an administrator to manage FM’s inheritance. [31] The Public Trustee of Queensland has been involved in FM’s affairs under previous orders of the Tribunal and has been managing the inheritance since the aunt’s death. [32] In its application received by the Tribunal on 3 February 2012, the Public Trustee of Queensland nominated itself as an appropriate administration appointee. Without an alternative, the Tribunal finds that the Public Trustee of Queensland is appropriate and, therefore, makes that appointment. [33] Reporting directions are provided in the Tribunal’s order. -- 6 of 6 --