AND [2011] QCAT 619

CITATION: AND [2011] QCAT 619 PARTIES: AND APPLICATION NUMBER: GAA7582-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 8 November 2011 HEARD AT: Maroochydore DECISION OF: Louise McDonald, Member DELIVERED ON: 25 November 2011 DELIVERED AT: Maroochydore ORDERS MADE: 1. The administration order made by the Tribunal on 15 September 2008 is changed by removing JLD and EJD as administrators and appointing The Public Trustee of Queensland as administrator for AND for managing all financial matters except day to day finances and Centrelink Payments. 2. This appointment remains current until further order. This appointment is reviewable and is to be reviewed in 5 years. 3. The administrator is to provide a financial plan to the tribunal within 4 months. 4. The Tribunal directs the administrator to provide accounts when requested. CATCHWORDS: Administrators removed – Competence to act APPEARANCES and REPRESENTATION (if any): AND JLD EJD -- 1 of 6 -- 2 REASONS FOR DECISION [1] JLD and EJD were appointed jointly and severally as administrators for all financial matters under order of 15 September 2008. [2] The Tribunal dispensed with the requirement for the administrators to provide a financial management plan, but directed that the administrators provide accounts to the tribunal 8 weeks prior to the anniversary of this appointment and annually thereafter. [3] This order was current for 5 years. [4] This order was reviewed at hearing on 8 November 2011 at Maroochydore. [5] Present at the hearing was the adult, JLD, EJD, the administrators and also the adult’s parents. [6] The Tribunal conducted the review under s 31 of the Guardianship and Administration Act 2000, extracted below: S 31 Appointment review process (1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate. (2) At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. (3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either” (a) continue its order making the appointment; or (b) change its order making the appointment, including, for example, by” (i) changing the terms of the appointment; or (ii) removing an appointee; or (iii) making a new appointment. (4) However, the tribunal may make an order removing an appointee only if the tribunal considers” (a) the appointee is no longer competent; or (b) another person is more appropriate for appointment. (5) An appointee is no longer competent if, for example (a) a relevant interest of the adult has not been, or is not being, adequately protected; or (b) the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or (c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or (d) the appointee has otherwise contravened this Act. (6) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation. -- 2 of 6 -- 3 [7] This requires consideration of section 12 appointment criteria. S 12 Appointment (1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied” (a) the adult has impaired capacity for the matter; and (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property; and (c) without an appointment” (i) the adult's needs will not be adequately met; or (ii) the adult's interests will not be adequately protected. CAPACITY [8] A health Professional Report dated 24 October 2011, from Dr V, the adult’s general practitioner of 18 years, stated that the adult has a diagnosis of schizophrenia, and also has a gambling addiction, and past alcohol dependency. He noted that she had difficulties with self control regarding her finances, and was capable of simple, not complex financial decisions. He indicated that she was “ok with day to day decisions, and self manages, but has difficulties with managing money and spending on gambling.” [9] The adult stated at the hearing that she considered that she was capable of managing her financial affairs now that she was free of a difficult relationship. She considered her depression had resolved as a consequence of this, and she considered that this had triggered her erratic spending. She indicated that she no longer spends money in this way. She advised that she had spent large sums of money, withdrawing thousands each day from her lump sum damages award to spend on poker machines. She continues to receive antidepressant treatment and will be commencing counselling with Focus again shortly. At the commencement of the hearing JLD stated that the adult could not cope with managing her funds if it was returned to her. Later, EJD said he would like to think she could manage independently, and JLD agreed. [10] The adult demonstrated an awareness of her income, assets, liabilities and expenses. However, she has demonstrated a consistent pattern of impulsive spending which has resulted in the diminution of her estate in two years from approximately $42,000 to $12,000. Several thousands of dollars in multiple weekly withdrawals from her lump sum savings were directed into poker machines. [11] The Tribunal finds that the adult has had extensive history of impulsive spending. Medical evidence from her longstanding General Practitioner suggests difficulties with self control which have been evidenced by the adult’s actions. While she has an awareness of the financial position, she has demonstrated no ability to maintain control over it. The presumption of capacity for financial matters is rebutted. -- 3 of 6 -- 4 NEED FOR A DECISION [12] The adult retains approximately $12,000 from her award of damages. She has a dependent child for whom she must provide financially. She has the additional costs of the child’s nappies, food and other needs. [13] She has income and expenditure to be managed and funds to be invested and protected. Her unfettered access to her funds has resulted in significant diminution of her lump sum savings in the period from November 2010 until March 2011. This recent history, in light of her longstanding impulsivity suggests the balance of these savings is at risk and needs protection. [14] It is the Tribunal’s view that the adult is likely to do something involving unreasonable risk to her finances, and without an appointment the adult’s interest will not be adequately protected. APPROPRIATENESS / COMPETENCE [15] Administrators have the following obligations under the legislation: s34 Apply principles (1) A guardian or administrator must apply the general principles. s35 Act honestly and with reasonable diligence A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect the adult's interests. s36 Act as required by terms of tribunal order A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal. [16] The Tribunal conducted a review of the administrator’s actions during the appointment since 2008. [17] The administrators lodged accounts for 2009 and 2011, but not 2010. JLD stated that she did not know why this was the case. EJD stated that it was JLD’s responsibility. The administrators were appointed jointly and severally. [18] The administrators were appointed for all financial matters but have allowed the adult to manage her day to day finances since the appointment. [19] JLD stated that she considered this was negotiated at the initial hearing and has been the case since the commencement of the order. There is no indication in the hearing of 15 September 2008 that this was the case. -- 4 of 6 -- 5 [20] The record of hearing of 15 September 2008 notes that pension management was a specific function considered by the Member, and that there was a need for an administrator to manage the pension at the time of appointment. [21] It would seem that the administrators have misunderstood their obligations in that regard, and made the decision that she had the capacity to manage her pension without reference to the Tribunal. [22] Further, the record of that proceeding notes that the Presiding Member discussed a checklist of obligations that administrators have which included annual reporting to the tribunal and the obligation to act diligently. This document is signed by the Presiding Member, JLD and EJD. [23] The administrators’ accounts received in the Tribunal on 29 September 2009 indicate that the administrators have made a decision that the adult is capable of managing her working bank account and they provided no details of this account to the Tribunal to monitor this. [24] The Tribunal finds that the administrators have not acted in compliance with the order by failing to monitor the day to day finances of the adult and report to the Tribunal. [25] JLD stated that the adult gained access over her Bank of Queensland Account which held the lump sum balance of her damages award, and drew down approximately $12,000 between November 2010 and March 2011 which was directed to poker machines. [26] JLD advised that she was not aware of this until the adult approached her. JLD considers that her access to account was a bank error, stating that she believed that she had provided the bank with the order. The bank has denied responsibility for this. JLD has taken action to secure these funds through further liaison with the bank. Nevertheless, the omission reflects a failure to monitor this account from November to March 2011, in contravention of obligations upon administrators to act diligently. [27] JLD advised that the adult had consigned numerous belongings with cash converters and she a further $3,500 in loans had to be repaid to restore the adult’s access to her possessions. [28] This further diminished the lump sum in the adult’s savings account. [29] EJD and JLD were unable to advise the tribunal of the full amount of the damages award paid out to the adult. They were unable to explain entries on the 2009 financial report to the tribunal which declared a $42,000 balance across two accounts. [30] They were unable to clarify whether the bank account BOQ xxx still existed or any details in relation to this account including the current balance. -- 5 of 6 -- 6 [31] JLD responded “I don’t know” and “I don’t care” on many occasions in response to the Tribunal’s questions about the activities of administration. EJD indicated that he should have been advised to prepare better for the hearing. [32] EJD and JLD were unable to give any details of the balances of any of the adults’ accounts. The adult informed the Tribunal of these details. [33] Overall, the administrators gave the impression that they had little knowledge of the finances of the adult or activity on her account. [34] The Tribunal finds that the adult’s interests in the preservation and investment of her lump sum damages payout has not been adequately protected in the failure to monitor activity on this account. The Tribunal finds that the administrators have not fulfilled their obligations to act in accordance with the terms of the order, and have not satisfied the Tribunal that they have acted with requisite diligence. As a result, the Tribunal finds that the appointed administrators are not competent to continue to act, and makes orders accordingly. -- 6 of 6 --