BME [2014] QCAT 67

CITATION: BME [2014] QCAT 67 PARTIES: BME APPLICATION NUMBER: GAA9702-13, GAA9703-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 11 February 2014 HEARD AT: Rockhampton DECISION OF: Member Beckinsale DELIVERED ON: 24 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for the appointment of an administrator for BME is dismissed. 2. The Tribunal directs the attorney, BG to file in the Tribunal accounting in the form of the Tribunal approved ‘Account by Administrator-Guardianship and Administration Act 2000’ by 11 February 2015 and annually thereafter CATCHWORDS: GUARDIANSHIP - where attorney has contravened legislative requirements - whether attorney should be removed - whether need to appoint administrator to protect adult‟s financial interests Guardianship and Administration Act 2000 (Qld) s 12, Schedule 4 Powers of Attorney Act 1998 (Qld) ss 66, 73, 85, 86, 88, 118. APPEARANCES and REPRESENTATION (if any): The Adult Guardian appearing by Sally Christenson, Senior Investigations Officer, The Public Trustee of Queensland appearing by Jill Cartwright, Acting Principal Public Trust Officer, BG, attorney and son of adult, RK, successive attorney and daughter of adult -- 1 of 14 -- 2 REASONS FOR DECISION [1] BME is an 80 year old lady who resides in the permanent high care facility of a Rockhampton nursing home. [2] By way of an enduring power of attorney executed on 12 July 2002, BME appointed her son, GB, and her daughter, RK, as her attorneys for financial and personal/health matters. The attorneys were appointed to make decisions successively in the order named. The power of the attorney for financial matters was expressed to begin “upon a medical practitioner certifying that I have impaired capacity as defined by the Powers of Attorney Act 1998.” [3] In issue is when BME had impaired capacity and when BG began acting as attorney. [4] The Adult Guardian investigated BG‟s actions as attorney and concluded he breached the Powers of Attorney Act 1998 in relation to the management of BME‟s assets and financial matters. [5] The Adult Guardian applied to the Tribunal for the Public Trustee of Queensland to be appointed administrator for BME by application filed 6 November 2013 but after receiving further information suspended BG‟s authority to act as attorney for financial matters on the grounds the Adult Guardian reasonably suspected the attorney is not competent.1 That suspension is effective from 25 November 2013 for a period of 3 months up to and including 25 February 2014.2 The Public Trustee exercises suspended power for BME for financial matters.3 [6] BG seeks to resume managing his mother‟s financial affairs. [7] BME has substantial assets comprising her former residence with an appraised value of $330,000, monies in a number of accounts totalling over $330,000, a share portfolio worth over $2 million and furniture and personal chattels with a value of about $5000. [8] BG has been making personal decisions for BME as empowered by the enduring document and the Adult Guardian does not seek any change to that arrangement stating it is appropriate. ADMINISTRATION APPOINTMENT [9] Section 12(1) of the Guardianship and Administration Act 2000 outlines the matters about which the Tribunal must be satisfied before it may appoint an administrator for an adult. [10] The Tribunal must be satisfied that an adult has impaired capacity for financial matters and that there is a need for decisions to be made about 1 Guardianship and Administration Act 2000 (Qld) s 195(2). 2 Ibid s 195(3). 3 Ibid s 196(3). -- 2 of 14 -- 3 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. CAPACITY [11] Capacity is defined in Schedule 4 of the Act as requiring the 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. [12] A report dated 11 April 2012 has been provided by neurologist Dr Paul Sandstrom who indicates BME had been his patient for 2-3 years. He reports she has a condition which impairs her cognitive ability which he identifies as cortical lewy body disease. He responds in the negative to the question “Do you know when the cognitive impairment was first identified or diagnosed?” but to the question “Do you know the date the diagnosis of cognitive impairment was made? indicates “approx 6-8 months ago”. [13] Dr Sandstrom indicates further in his report that he considers the cognitive impairment to be “fluctuating”, that in his opinion BME is not capable of making decisions freely and voluntarily and cannot understand and make her own decisions, simple or complex, about any of the listed matters, including financial affairs. [14] A copy of a PAS (Psychogeriatric Assessment Scale) assessment dated 27 February 2012 by an occupational therapist showed BG scored 15, indicative of moderate impairment. [15] The Adult Guardian also provided as capacity evidence a copy of an ACAT (Aged Care Assessment Team) assessment dated 15 August 2011 which indicated BME had a diagnosis of Parkinson‟s Disease, memory loss and disorientation and scored 21/30 on a RUDAS (Rowland Universal Dementia Assessment Scale) where a score of 22 or less indicates possible cognitive impairment. [16] The parties at the hearing agreed BME is unable to make her own financial decisions. I find BME has a diagnosis of cortical lewy body disease resulting in cognitive impairment. I find that as a result of the cognitive impairment that BME is unable to understand the nature and effect of financial decisions. I am satisfied the presumption that BME can make those decisions has been rebutted, and that she has impaired decision making capacity for financial decisions. NEED FOR DECISIONS [17] BME has significant assets requiring ongoing decisions in relation to the management and investment thereof. She will continue to incur nursing -- 3 of 14 -- 4 home fees as well as personal expenses. There is clearly a need for decisions to be made about her financial matters. IS THERE A NEED FOR AN APPOINTMENT? [18] In considering the need for an appointment, the Tribunal must examine the operation of any enduring document made by the adult. This arrangement reflects the adult‟s choice of substituted decision-maker. Her capacity to make that document in 2002 and its validity have not been challenged. The Adult Guardian contends however that investigations indicate BG has not carried out his duties in accordance with the legislation and has not acted in the best interests of his mother. The Adult Guardian seeks the appointment of an Administrator to protect BME‟s interests in relation to financial matters and proposes the Public Trustee of Queensland as the appropriate appointee. [19] BG‟s position is essentially, that he was unaware that he had commenced duties as his mother‟s administrator, that he was unaware of the requirements of that role and that at all times has been carrying out his mother‟s wishes and acted in her interests to the best of his ability. He strongly wished to continue managing his mother‟s financial affairs although he was open to the prospect of being required to submit to a level of scrutiny by the Tribunal. THE ADULT GUARDIAN‟S INVESTIGATIONS [20] The Adult Guardian provided an Investigation Report dated 22 October 2013 with a supplementary report dated 28 November 2013. The allegations investigated were as follows: 1. The attorney has isolated the adult from other family members and close friends. 2. The attorney is not taking the adult‟s views, rights and wishes into consideration when making decisions affecting her life. 3. The attorney has given away and/or dispersed of some of the adult‟s assets. 4. Substantial amounts appear to have been withdrawn from the adult‟s account on a regular basis for his own personal use. 5. The attorney is not keeping accurate financial records regarding the use of the adult‟s funds. [21] The Adult Guardian concluded that the first allegation was not substantiated and that the second allegation was not able to be substantiated. [22] As regards the third allegation, the Adult Guardian had three areas of concern: a) BG‟s failure to achieve any return from the adult‟s former residence during the period January 2012 and February 2013 as the adult commenced residency in the nursing home on 5 January 2012 and a rental agreement for her property was not signed until 14 February 2013, a period of some 13 months; -- 4 of 14 -- 5 b) BG‟s failure to keep records of the adult‟s personal items of value held at his residence; c) allowing the usage of BME‟s motor vehicle by her granddaughter (his daughter) for driving lessons and using BME‟s funds to pay for the vehicle‟s maintenance, registration, insurance and an additional cost for the granddaughter to be included on the adult‟s insurance policy when that usage of the vehicle does not appear to be of any actual benefit to BME. [23] The Adult Guardian concluded that whilst the element of honesty could not be disproven to the required standard it appeared the attorney had not acted with reasonable diligence in protecting the adult‟s interests4. [24] The Adult Guardian further concluded the attorney failed to avoid a conflict transaction5 and failed to protect the adult‟s interests in allowing usage of the adult‟s motor vehicle for the benefit of others and used the adult‟s funds for costs associated with the adult‟s motor vehicle whilst being used for the benefit of others. [25] The fourth and fifth allegations were addressed together in the Investigation Report. [26] The Adult Guardian reports that BG advised he began exercising his powers about financial matters for his mother in January 2012 when she no longer appeared to have capacity and entered permanent aged care accommodation. However, the Adult Guardian obtained a copy of an ACAT Assessment completed 15 August 2011 which BG signed on behalf of BME as “power of attorney”. [27] The Adult Guardian reported BG‟s confirmation of his receiving payment from BME‟s funds in the amounts of $25,000 on 10 October 2011 and $2000 on 5 March 2012 as “gifts”. [28] Since exercising suspended power for BME for financial matters, the Public Trustee reports identifying a number of large cash withdrawals and transfers from BME‟s accounts which include, in addition to the sums mentioned above, $10,000 on 7 June 2011, $2,240 on 4 January 2012, $3,029.35 on 1 February 2012, $2,500 on 5 March 2012 and $1,537.20 on 8 March 2012. [29] The Adult Guardian also identified that BME‟s funds were being used to pay private school fees for BG‟s daughter (her granddaughter) totalling approximately $10,000 annually. Additionally the Adult Guardian identified that payment of approximately $8,000 for an overseas school trip, for this granddaughter, described by the Adult Guardian as extracurricular, had been made from BME‟s funds over several instalments between November 2011 and July 2012. [30] BG identified to the Adult Guardian several withdrawals on BME‟s financial statement to show examples of her gifting funds for the payment of her granddaughter‟s school fees in the past and for the payment of the 4 Powers of Attorney Act 1998 (Qld) s 66. 5 Ibid s 73. -- 5 of 14 -- 6 overseas school trip in instalments but due to BG‟s lack of record keeping, the Adult Guardian was not able to reconcile the use of BME‟s funds for those purposes. [31] The Adult Guardian pointed out that although financial records show direct debit and cheques have been drawn on a regular basis from BME‟s account for expenses such as health insurance, medical and pharmacy bills, services and nursing home fees and the like, no such arrangements appear to have been made by BME for payment of her granddaughter‟s school fees or overseas trip. [32] The Adult Guardian reported BG had kept no record of transactions or journal to keep track of BME‟s expenses and that he informed the Adult Guardian he considered it was sufficient he keep copies of BME‟s tax returns and invoices/statements relating to her expenses in envelopes. He was unable to produce some of the receipts for expenses incurred on behalf of BME and said he may have thrown these out whilst cleaning her property in preparation for rental. [33] Further, BG used his own personal credit card for the payment of expenses incurred then later claimed these expenses from the BME‟s funds, including ongoing expenses associated with BME‟s property such as telephone, rates, water and insurance. The Adult Guardian submits it was not appropriate for BG to use his own credit card for payment of expenses on behalf of BME when she had substantial funds to pay such expenses. [34] The Adult Guardian reported that BG left the telephone connected at BME‟s property after she entered permanent aged care accommodation for his convenience when he visited the property. The Adult Guardian submits the use of BME‟s funds for payment of telephone bills when she no longer resides at the property is of no actual benefit to her. [35] The Adult Guardian reports BG has given conflicting information advising he began exercising his powers as BME‟s attorney for financial matters in January 2012 but confirming he signed the ACAT assessment as “power of attorney” on 15 August 2011. Furthermore, he told the Adult Guardian he considered his mother had capacity at the time he was gifted $25,000 in October 2011 and $2000 in March 2012. [36] The Adult Guardian concluded that allegations 4 and 5 had been substantiated. Again whilst the Adult Guardian submits the element of dishonesty was not proven to the required standard, BG has not acted with reasonable diligence as required.6 [37] The Adult Guardian submitted BG lacks insight into his role and responsibilities as his mother‟s attorney in protecting her interests. That was apparent in his admission that he did not maintain a financial record of transactions made and not keeping receipts for expenses incurred.7 [38] The Adult Guardian submits BG further breached the legislated requirements of an attorney in failing to keep property separate by using 6 Ibid s 66. 7 Ibid s 85. -- 6 of 14 -- 7 his own personal credit card to pay BME‟s expenses and then reimbursing himself8 and gifting BME‟s funds when no provision was made for those gifts in the enduring document.9 [39] The Adult Guardian reported giving BG specific advice that his purchasing BME‟s motor vehicle would be a conflict transaction10 and that if the motor vehicle was of no further benefit to BME it should be sold at market value and the proceeds deposited to BME‟s account. Notwithstanding that advice BG transferred the vehicle to himself and paid a total sum of $3500 to BME‟s account. The Adult Guardian then suspended BG‟s authority to act as attorney for financial matters for BME. THE ATTORNEY‟S RESPONSES [40] BG is a self-employed builder aged 55 years. He has raised his now 17 year old daughter as a single parent since she was 3 years old when he and his wife separated and she moved away from the area. [41] BG says he has always enjoyed a good relationship with his mother. He says his father, a heavy drinker who died when BG was aged 19 years, was physically and verbally abusive towards BME throughout their marriage, and to BG and to an lesser extent, his sister, RK, who is 6 years his senior. [42] BG recalled his sister as also abusive to their mother but RK recollects that being an isolated occasion during her teenage years. [43] BME has been a widow for 34 years, living independently in her own home, BG said until approximately July 2011 when she had a bad fall. BME then lived for some months in BG‟s home before her health deteriorated to the extent BME agreed she needed nursing home care. When did attorney commence acting in that capacity? [44] An ACAT assessment was arranged for BME and RK was originally in attendance as well as BG. At some point the assessor enquired whether BME had “a power of attorney”. BG said that was him and RK has left, saying she wasn‟t needed in that case. It was not clear to me that she wasn‟t offended by not having been appointed. In fact, the enduring document made by BME in 2002 appointed RK as successive attorney to BG. It would have been most appropriate for RK to remain when the ACAT assessment was done not just as a daughter but as a successive attorney. [45] It is apparent that neither of BME‟s children understood the nature of the enduring document made by their mother. At the time of the ACAT assessment neither had a copy of the document. Neither recalled accepting the appointment nor reading the 5 pages addressed to the attorney in Part 3 of the document although they both signed the attorney‟s acceptance, BG on 12 July 2002 and RK on 13 July 2002. 8 Ibid s 86. 9 Ibid s 88. 10 Ibid s 73. -- 7 of 14 -- 8 [46] BG‟s evidence was that although he had signed on behalf of his mother as “power of attorney” on the ACAT form he did so because he knew she had appointed him her attorney on a document at her solicitor‟s office but he did not consider that he was then taking on that role without taking further steps and he signed on that occasion as his mother was finding it difficult to make her signature. He said he did not understand he had “power of attorney” until 15 August 2012. He stated he had on 26 March 2012, visited his solicitor, in the same firm which prepared BME‟s Enduring Power of Attorney, “regarding power of attorney”. The solicitor advised he must get “something in writing” from BME‟s doctor, no doubt as the enduring document made by BME stated the power for financial matters was to begin “upon a medical practitioner certifying that I have impaired capacity as defined by the Powers of Attorney Act 1998.” [47] BG related how he had then, in the next day or two, gone to the offices of Dr Sandstrom where his mother had last attended 10 March 2012, and asked his “personal assistant if she could get Dr Sandstrom to write me a letter to show my solicitor about getting power of attorney”. He was told to come back in a few days and when he did he was told by Dr Sandstrom‟s assistant that BME would need to be assessed in Brisbane. He said he told the assistant his mother was not well enough to travel to Brisbane and asked her to call the solicitor to explain the situation. He says the assistant responded that she was “too busy”. He said his sister and his mother‟s sisters were all made aware of Dr Sandstrom wanting to send BME to Brisbane for assessment. [48] BG describes being “shocked” at receiving a phone call from the investigations officer of the Office of the Adult Guardian on 14 August 2012. He says when she mentioned “power of attorney” for BME he responded that he still didn‟t have it. He says the investigations officer explained to him that he did have power of attorney and that she “explained the reasons why”. He says he went the very next day back to the solicitor‟s office and “had the forms signed”. What forms was not explained. [49] The Adult Guardian obtained the report from Dr Sandstrom in the course of investigations which was dated 11 April 2012 which is within a couple of weeks of BG asking for documentation and did not entail BME travelling to Brisbane for assessment. BG was not provided with a copy of that report until after he was contacted by the Adult Guardian in August 2012. There is no information before the Tribunal as to why BG was not given similar documentation regarding BME‟s cognitive ability when he requested it. BG‟s evidence is that he did not know until 15 August 2012 that he had power of attorney. [50] BG says that he and, and to a lesser extent, his sister had assisted their mother with attending to paying bills. He says that for about the last 10 years he was in the practice of paying BME‟s accounts on his credit card to save her “driving all over the place and trying to park and worrying about things”. The amount owed to him would be transferred to his account from his mother‟s account, for one or more of the bills he had paid. As records obtained by the Adult Guardian showed, BG has had -- 8 of 14 -- 9 authority to operate his mother‟s building society account since September 2004. BG said he has also for about ten years been assisting his mother with having her accountants complete her annual tax returns. Delay in renting house [51] As regards the renting of BME‟s house BG related that this had not been an easy decision. He pointed out it would have been easier and quicker to sell the house than organising for it to be rented. At one stage he did list the property for sale. He advised that his mother however had been even resistant to the idea of renting the house in the belief she may be able to return to live there. BG acknowledges that would never happen due to BME‟s deteriorating health but said renting the house was a better option than selling “as Mum can still hold onto her dream of returning there sometime.” [52] BG contends that he did the best he could as regards the time frame involved in renting the house. He maintained the grounds and carried out minor repairs. He cleaned the house and removed personal belongings of BME in preparation for its rental. He says that in accordance with his mother‟s wishes, he gave RK access to the property over a three month period to collect items she wanted as well as allowing BME‟s two sisters and her grandson the opportunity to collect any items they wanted. The house was rented furnished but the remainder of BME‟s belongings were donated to the Salvation Army. These duties fell to BG whilst he ran his own business, cared for his teenaged daughter and their home and cared for BME, for some of the time in his own home but also attending to her needs during a period of hospitalisation and then all that was entailed with settling her into her new residence at the nursing home. [53] He was not able to get the phone or power disconnected until after he obtained the power of attorney document in August 2012. Use and purchase of motor vehicle [54] As regards, the use of BME‟s motor vehicle for his daughter‟s driving lessons and then BG‟s purchase of that vehicle BG‟s evidence was that BME had gifted the vehicle to his daughter for that use being aware she had reached the age to attain her driver‟s licence. He understood the Adult Guardian‟s investigating officer‟s advice to him to be that such a gift was not effective, not being in writing and that he needed to obtain valuations and sell the car for a proper value. He acknowledged the officer advised him he had to avoid conflict transactions but says he did not understand he was not able to buy the car himself. He said he thought as long as he paid more for the car than valuations he obtained, that was not a conflict. He produced printouts for comparative vehicles for sale on the internet site he says was suggested by the Adult Guardian‟s officer for obtaining valuations, which ranged between $1,500 to $2,399 (for a later model) and banks account records showing he transferred sums totalling $3,500 to BME‟s account which he says was for payment of the car. He put the car in his name rather than his daughter‟s to lessen insurance costs. -- 9 of 14 -- 10 [55] BG denied he had used his mother‟s funds to pay the ongoing costs of running her motor vehicle and that once renewal notices were received, he paid for these. Gifting of Adult‟s Funds to Attorney [56] BG related how his daughter had a particularly close relationship with her grandmother, BME, whom his daughter regarded as a mother figure. [57] RK gave evidence that when she became a single parent to three young boys BME was a constant source of help to her but once BG separated from his wife, their mother then devoted herself to her granddaughter and took on the mothering role, taking her to and from school and caring for her at times her father worked. RK said this without acrimony: making the point that BME helped where she was needed. RK also has a daughter, now aged 12 years who has special needs and for whom she is fulltime carer. She related that a few years ago BME gave her $10,000 to cover the costs of travel and specialist assessment of her daughter but otherwise she had not received any significant gifts of money from her mother. RK had no idea of the extent of her mother‟s assets. She related how BME had depicted herself as not having much money, on occasion pressuring her and her son, BME‟s grandson, to pay for BME‟s groceries. RK reportedly told the Adult Guardian‟s investigating officer that she and her brother had been assisted by their mother with funds from time to time over the years but she declined to accept funds offered by her brother from dividends from BME‟s shares as she was of the belief BME did not have capacity at the time to approve such transactions. [58] BG was aware of the extent of his mother‟s wealth and claimed she was often very generous to him and his daughter. He contended that his mother did treat him more favourably than his sister because of their closer relationship. He said his mother had told him his sister didn‟t want monies paid into her account which would affect her pension and he understood that instead their mother gave cash amounts to RK. [59] BG said his mother had gifted him significant cash payments over the past 10 years as well as amounts to pay some of his bills from time to time. He said the larger sums were declared on his tax returns as gifts and produced a letter from his accountants dated 18 December 2013 advising they had records of BG having received cash gifts from BME in amounts varying between $1043 and $30,500 in the years between 2002 and 2010. [60] BG said his mother often made the cash gift around his birthday in October which he says was the reason for her gift of $25,000 in October 2011. The last payment by way of gift he says was March 2012 when his mother gave him $2000 to help with his bills at the time. Gifting of Adult‟s funds to pay school fees [61] BG stated his mother had offered to pay his daughter‟s school fees and had done so since she was in grade one. He advised his daughter‟s mother and he paid half the school fees each but with his mother transferring monies to his account to cover the cost. He produced copies of school accounts and bank statements reflecting that arrangement. -- 10 of 14 -- 11 [62] As regards the overseas trip, BG said he did not consider the trip to be extracurricular as his daughter was performing as part of a school dance/drama tour. The initial deposit for the trip was paid 25 November 2011 using BME‟s funds with her knowledge and he completed paying for the trip in July 2012 with his mother‟s funds in accordance with her wishes. Recordkeeping [63] BG acknowledged that there were receipts missing but says not for large amounts. He was unaware of the need to keep records of expenses which were not required for his mother‟s tax return. HAS THE ATTORNEY CONTRAVENED THE POWERS OF ATTORNEY ACT 1998? [64] Relevant to this question is the time when BG‟s power under the enduring document commenced. The Adult Guardian contends that date is at least as early as 15 August 2011 when BG signed the ACAT assessment as “power of attorney” and there was some evidence at the time of the assessment that BME had a level of cognitive impairment. [65] BG‟s evidence is that he was not aware that he was acting as his mother‟s attorney until he got “documents” a whole year later on 15 August 2012 having spoken to the Adult Guardian‟s investigation officer the day before. [66] I found both BG and RK to be truthful witnesses with their different perspectives providing a rounded picture of their mother whom they clearly both love. Whilst BME did apparently favour her son to some degree, having a closer relationship with him in recent years than with her daughter, I note that the will made by BME dated 3 February 2011, with some minor exceptions, essentially divides her estate equally between her two children and down the line to her children‟s children. She has appointed her solicitor executor. [67] The enduring document made by BME stated the power for financial matters was to commence upon a medical practitioner certifying she has impaired capacity. That form of drafting is used by legal practitioners to try and avoid ambiguity around the commencement of incapacity but did not seem to assist BME or her appointed attorney in this case. Dr Sandstrom‟s report is dated 11 April 2012 so I consider the power of attorney takes effect from that date, although the report indicates BME had a diagnosis of cognitive impairment approximately 6-8 months prior. I do not know why this information was not provided to BG when he requested it. [68] The purchase of BME‟s motor vehicle by BG occurred after he was aware his power as attorney had commenced and is a conflict transaction which an attorney is required to avoid11. Given BME‟s willingness to pay well above market value for the vehicle, the Tribunal may well have authorised the transaction if that application had been made. 11 Ibid s 73. -- 11 of 14 -- 12 [69] The use of that vehicle previously by his daughter for driving lessons is arguably also a conflict transaction being of no direct benefit to BME. I note BME‟s will gifts this vehicle to BG so his contention that BME wished her granddaughter to have the car to learn to drive is unsurprising. That would be a common arrangement between grandparents and their grandchildren and quite expected in this case where BME has had an exceptionally close relationship with her granddaughter. [70] By paying BME‟s expenses with his own credit card and later reimbursing himself from her funds, BG has failed to keep property separate as required.12 I accept his evidence this practice was for convenience and that he was not aware of his duties as an attorney but the practice has breached the legislation. [71] Again in relation to inadequate record keeping, BG‟s ignorance as to what was required of him does not alter that the legislative requirements have not been followed.13 [72] I accept BG‟s evidence that BME had chosen to pay his share of school fees for his daughter. She was in a financial position to do so. Whilst she did not pay the school fees for her daughter‟s children she was particularly close to this granddaughter, her son‟s only child. [73] I also accept BG‟s evidence that BME wished to pay for the overseas school trip and that that was offered as part of her dance/drama tuition. [74] I presume having regard to her age BG‟s daughter has completed her school education and the issue of further payment of fees from BME‟s funds does not arise. [75] Regarding the monetary gifts to BG, I accept his evidence that the last of these, in the sum of $2000, occurred in March 2012 as was his mother‟s wish to assist with payment of bills at that time. [76] Some of the amounts paid are significant and over the period of gifting amount to more than $100,000. The gifted sums, most attested to by BG‟s accountants date back to 2002, at which time no suggestion has been made of BME lacking capacity to make her own decisions. Whilst BME showed a pattern of generous gifting of money to her son, again, given her income and assets, and her evidently own modest lifestyle, such gifting I do not think was disproportionate to BME‟s means. Whilst a cautious attorney should have desisted from continuing to make such generous payments, it was what BG had come to expect from his mother, and on his evidence he considered she was still able to make decisions for herself when he received payments in the later part of 2011 and early 2012. No payments were made of this nature after 11 April 2012 when Dr Sandstrom provided his report. I would consider gifts of this nature to be no longer appropriate now that BME lives in a nursing home where she incurs significant fees. [77] I do not therefore find that BG has gifted BME‟s funds in a way that contravenes legislative requirements.14 12 Ibid s 86. 13 Ibid s 85. -- 12 of 14 -- 13 [78] Legislation also requires an attorney to act honestly and with reasonable diligence in protecting an adult‟s interests.15 I have already found BG to be honest and the Adult Guardian did not submit that dishonesty was proved. [79] The Adult Guardian does contend that BG has not been diligent in ensuring that BME‟s property was rented in a timely manner to achieve a return on that asset. Given BG‟s responsibilities I don‟t find his delay in renting the house has been unreasonable. I suggest if that was BME‟s only asset upon which she was reliant for income, then renting the house would be an urgent matter. BME‟s income from shares and interest is in excess of $100,000 a year. Rent will just exceed $18,000. BG‟s regular visits to BME in the nursing home were at least as important, in my view, as getting the house rented given her healthy financial situation. [80] As for the delay in having the phone and power disconnected, I accept BG‟s evidence he was unable to do so before he received the enduring document from the solicitor. Furthermore, the convenience of having those services connected to the house whilst he prepared the property for renting, particularly given it was envisaged BME may have been able to visit at some stage, outweigh the relatively small cost to her. SHOULD BG BE REMOVED AS ATTORNEY? [81] BG has contravened a number of sections of the Powers of Attorney Act 1998. The Tribunal may order the removal of an attorney, or change or revocation of an enduring document16 and the Adult Guardian submitted that should occur to protect BME‟s financial interests with the Public Trustee being appointed as administrator. [82] I do not consider it necessary to revoke BG‟s appointment as attorney to protect BME‟s financial interests. I find that the contraventions by him were a result of his lack of insight into his responsibilities. Delay on his behalf occurred in part due to the unexplained delay in his being provided with appropriate certification from a medical practitioner. I find him honest and to have intended to act always in his mother‟s best interests, taking account of her expressed wishes. [83] I am particularly reluctant to revoke an arrangement put in place by BME in 2002 and which at no time she has seen fit to change. I have had regard to the General Principles, in particular, the importance of preserving to the greatest extent practicable, an adult‟s right to make her own decisions. [84] I have also taken into account RK‟s support for her brother continuing in the role of managing their mother‟s financial matters as well as BG‟s willingness at the hearing to consult with his sister in his decision making, for both, financial and personal matters, for which he is also their mother‟s appointed attorney. [85] In these circumstances I am satisfied that the decision-making arrangements put into place by BME are likely to be effective in protecting 14 Ibid s 88. 15 Ibid s 66. 16 Ibid s 118. -- 13 of 14 -- 14 her financial interests. Thus I am not satisfied that without an appointment, BME‟s financial interests will not be adequately protected.17 [86] Whilst administrators appointed by the Tribunal are usually required to produce periodic accounts, attorneys are not subject to such scrutiny. On occasion the Tribunal has directed attorneys to account on a basis similar to that required of administrators. I am satisfied these circumstances, involving significant assets and an attorney who has shown a lack of understanding of his role, despite his good intentions, warrant an order for accounting. BG indicated his willingness for that to occur. [87] I order 1. The application for the appointment of an administrator for BME is dismissed. 2. The Tribunal directs the attorney, BG, file in the Tribunal accounting in the form of the Tribunal approved „Account by Administrator- Guardianship and Administration Act 2000’, by 11 February 2015 and annually thereafter. 17 Guardianship and Administration Act 2000 (Qld) s 12(1). -- 14 of 14 --