act civil & administrative...
TRANSCRIPT
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF QR (Guardianship) [2018] ACAT 118
GT 151/2018
Catchwords: GUARDIANSHIP – applications for appointment as guardian and financial manager for a person – statutory criteria for appointment – factors to be taken into account – circumstances in which Public Trustee and Guardian should be appointed rather than an available family member who meets most statutory conditions for appointment – principles to be followed by decision-maker
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 26Guardianship and Management of Property Act 1991 ss 4, 5, 5A, 6, 7, 8, 9, 10, 11, 14, 19, 24, 26, 27
Cases cited: Holt v Protective Commissioner (1993) 31 NSWLR 227In the matter of AB [2017] ACAT 67In the matter of LQL [2018] ACAT 53M v M [2013] NSWSC 1495Public Trustee for the ACT v Lee [2014] ACAT 69Re LSC and GC [2016] NSWSC 1896
Tribunal: President G Neate AMMember R Vassarotti
Date of Orders: 26 November 2018Date of Reasons for Decision: 26 November 2018
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 151/2018
In respect ofQR
D.O.B 18/10/1924
TRIBUNAL: President G Neate AMMember R Vassarotti
DATE: 26 November 2018
ORDER
1. The whole of the Enduring Power of Attorney executed by QR on 5 August
2005 is revoked.
Appointment of Guardian
2. VX is appointed guardian for QR (the protected person) with the following
powers:
(a) to decide where, and with whom, the protected person is to live;
(b) to give any consent required for a medical procedure or other treatment
(other than a prescribed medical procedure);
(c) to give any consent required for medical treatment involving treatment,
care or support under the Mental Health Act 2015 (other than a prescribed
medical procedure);
(d) to make other personal decisions needed to ensure the protected person’s
health and welfare needs are met and to protect her from unreasonable
risks to her health and welfare; and
(e) to do things necessary to give effect to decisions about the matters set out
above, including (but not limited to):
(i) giving or receiving information; or
(ii) giving consent to investigations and assessments; or
(iii) participating in negotiations; or
(iv) signing documents.
3. The Tribunal will review this appointment on its own initiative before
26 November 2021.
4. The guardian must notify the Tribunal or any changes to the address of, or of
any other significant change in circumstances of, herself or of the protected
person.
Appointment of Manager
5. ST is appointed as manager to manage all of the property including finances of
QR (the protected person) with the following powers:
(a) all the powers the protected person would have been entitled to exercise if
she were legally competent to exercise powers in relation to her property
including her finances herself.
6. Any dealings with the real property of the protected person must have prior
endorsement of the Public Trustee and Guardian.
7. The Tribunal notes that, before endorsing the sale of any real property, the
Public Trustee and Guardian will require evidence that:
(b) the sale price is the true market value of the property; and
(c) the sale is in the best interests of the protected person.
8. The Tribunal will review this appointment on its own initiative before
26 November 2021.
9. The manager must notify the Tribunal of any changes to the address of, or of
any other significant change in the circumstances of, herself or the protected
person.
………………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
2
REASONS FOR DECISION
Introduction
1. On 8 October 2018, ST lodged with the ACT Civil and Administrative Tribunal
(the Tribunal) an application to be appointed as guardian and financial
manager for her 94 year old stepmother, QR.1 Attached to the application were
copies of documents including an Enduring Power of Attorney (EPOA) and
some medical reports. The hearing of the application was listed for Tuesday, 6
November 2018.
2. On 2 November 2018, solicitors acting for QR sent to the Tribunal statements
from YZ and VX which, among other things, stated that QR had asked each of
them to be her guardian and that they gave their consent to that appointment.
3. QR attended the hearing with her solicitor. At the hearing, ST and her husband
UT spoke in support of ST’s application. YZ and VX gave evidence. Other
friends and supporters of QR, including two people from ACT Disability, Aged
and Carer Advocacy Service (ADACAS), attended the hearing.
4. The Public Trustee and Guardian (PTG) was not represented at the hearing but
provided the Tribunal with a written statement recording QR’s views and
wishes in relation to ST’s application, as expressed to a senior guardian on
29 October 2018.
5. Near the end of the hearing, the Tribunal met with QR and her solicitor, in the
absence of other participants in the proceedings, to ascertain her views and
wishes in relation to the main issues in this case.2 The meeting took place after
most of the evidence had been adduced, tested and considered. That enabled the
Tribunal to ask questions and assess QR’s answers in the context of that
evidence.
1 The letters QR have been used to preserve the anonymity of the person the subject of the application. Letter have been used in place of the names of other people involved in the proceedings. The letters bear no resemblance to the initials of those people
2 Section 26 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal may inform itself in any way it considers appropriate in the circumstances
3
6. The meeting proved valuable to the Tribunal because we could hear directly
from QR, and could discuss with her some of her answers. The exchange
occurred in an environment free of the potential effect of the presence of other
people on QR’s statements. It also gave her an opportunity to be heard,
something which she contended has not happened sufficiently in recent months.
7. In addition to ascertaining her views and wishes about whether a guardian and
manager should be appointed and, if so, who should be appointed, the Tribunal
was able to gauge the extent of QR’s:
(a) understanding of the medical assessments of her mental and physical
health;
(b) appreciation of her mental and physical health and the implications of that
for her preferred lifestyle; and
(c) short term memory loss.
8. The relevance and implications of that discussion will be considered later in
these reasons for decision.
The issues
9. The issues in this case are:
(a) whether a guardian and/or financial manager should be appointed for QR;
(b) if so, what powers the guardian and/or financial manager should be given;
and
(c) who is a suitable person to be appointed to each or both of those roles.
10. Those issues must be resolved by reference to the relevant provisions of the
Guardianship and Management of Property Act 1991 (GMP Act) and the
documentary and oral evidence before the Tribunal. Those provisions of the
GMP Act are quoted later in these reasons for decision.
11. The case also raised issues about whether the Tribunal could and should revoke
an EPOA that QR executed in 2005 and which she purportedly revoked on
26 September 2018. That matter will be dealt with later in these reasons for
decision.
4
12. Before considering those issues, it is appropriate to describe the events that
preceded ST’s application. The following chronology draws on the written and
oral evidence provided to the Tribunal.
Brief chronology of events leading to the application
13. On 5 August 2005, QR made an EPOA in favour of ST and her husband, UT,
jointly and severally. The attorneys’ power to manage QR’s property and
money came into effect only while she was incapacitated. The attorneys were
authorised to make personal decisions and arrangements for her while she was
incapacitated. They were authorised to give consent to lawful medical treatment
which was essential for well-being on her behalf while she was incapacitated.
They could also consent to medical treatment generally being withheld or
withdrawn.
14. In December 2016, QR became ill and was hospitalised followed by a short stay
in a rehabilitation centre. Apparently, she returned home earlier than advised by
her medical practitioners. ST put in place numerous measures to ensure that QR
was kept safe and secure in her own home, for example arranging Baptist Care,
Meals on Wheels, and Woolworths online shopping.
15. On 16 November 2017, Dr A (a geriatrician and general physician) assessed QR
(then aged 93), and referred due to her “increasing memory loss”. Dr A noted
that QR had a housemaid and a gardener but was “otherwise relatively
independent”. Her Mini-Mental State Examination (MMSE) score was 28/30.
Dr A wrote “In summary, [QR] has cognitive impairment with predominant
memory loss consistent with Alzheimer’s type dementia. This is despite the
high Mini-Mental State examination score.”
16. In August 2018, QR was bedridden for two to three weeks. She suffered severe
pain to her back, neck and left arm. During that time she relied on neighbours
and friends and some Commonwealth Home Support Program that ST arranged
through KinCare.
17. On 21 August 2018, ST (who had travelled to Canberra from her home in
Brisbane) took QR to a doctor’s surgery for a check-up and assessment of her
Alzheimer’s condition. QR was transferred by ambulance to Calvary Hospital
5
for care and observation, due to severe back pain. During her hospital
admission, she was diagnosed with acute vertebral fractures related to a fall one
week prior. While there, she was assessed by the multidisciplinary team,
including occupational therapists and physiotherapists. She had a functional
assessment and was reviewed by the rehabilitation team.
18. On 22 August 2018, RN, the treating nurse practitioner for QR, made a written
statement which recorded, after conversational questioning of QR, RN’s
conclusion that QR:
did not understand the nature and consequences of her decisions and showed no logical reason to the answers she gave. This therefore would put [QR] in a position of physical and legal harm.
[QR] lacks decision-making capacity with regard to financial, health and personal matters. As such, the existing Enduring Power of attorney should come into effect from 22 August 2018.
19. ST returned to Brisbane on 26 August 2018 and came to Canberra again in early
September 2018.
20. An undated discharge letter from Calvary Health Care Bruce (probably written
on 5 or 6 September 2018) confirmed that QR “is not safe to return home on
discharge. She requires 24 hour surveillance and as a result requires residential
care on discharge. This decision has been made by her medical team in
conjunction with her Allied health therapists.” According to ST, the decision to
transfer QR to the Mirinjani Nursing Home in Weston, ACT (Mirinjani) was
based on assessments by the Calvary Hospital team, Dr A and the University of
Canberra. The Calvary support team found a place for QR at Mirinjani.
21. On 6 September 2018, QR was discharged from Calvary Hospital and
transported to Mirinjani. In light of the immediate circumstances and in the
exercise of their powers under the EPOA, UT and ST decided to:
(a) re-home QR’s birds, hens and two dogs;
(b) change the locks on back and front security doors of QR’s home; and
(c) block QR’s access to her bank accounts.
6
They left cash for her to use but withdrew her credit card, apparently because of
QR’s previous vulnerability to scamming of money.
22. Given that the professional advice was that QR would not be returning home,
and that expenses were likely to be incurred for her future accommodation, UT
and ST considered in detail the options for the sale or rental of her family home.
They obtained an assessment from a real estate agent about the amounts of
money for each option, and what work would be needed for those purposes.
However, they did not make a decision then or subsequently about the sale or
rental of the property.
23. Friends of QR visited her and arranged for an advocate from ADACAS to visit
her. It seems that QR might have been advised, or formed the view, that ST and
UT were selling her house.
24. On 9 and 10 September 2018, ST discussed QR’s circumstance with QR’s
friend, VX. VX gave evidence that on 9 September 2018 she spoke by
telephone to ST who advised that:
(a) three medical teams at Calvary Hospital had assessed QR and she had
failed their assessments;
(b) QR’s doctors had decided that QR had to live permanently in a nursing
home;
(c) UT and ST had the EPOA for QR;
(d) UT and ST had found a place at Mirinjani; and
(e) QR’s house would have to be sold to pay a deposit bond, and ST and UT
would return in two months’ time to sell the house.
25. VX retrieved QR’s dogs and continues to look after them.
26. On 11 September 2018, UT and ST returned to Brisbane for work.
27. Subsequently, VX provided practical assistance to QR.
28. On 20 September 2018, VX took QR from Mirinjani to see Dr B, VX’s general
practitioner. Dr B assessed QR as 23/30 on the MMSE, which he said was an
7
acceptable result for someone who wished to live at home. He referred QR to
see Dr A the following week.
29. On 21 September 2018, ST rang VX to discuss the situation and received an
email from VX stating that she did not think it would be appropriate for her to
comment further in this regard, and suggesting that ST and UT contact QR’s
advocate directly.
30. According to VX, she had asked to take QR away from Mirinjani for a visit but
was told she could not do so because of the EPOA, which she was shown by the
deputy manager of Mirinjani. Having identified who QR’s solicitors are, on
26 September 2018, VX took QR to her solicitor’s office, where she revoked the
EPOA. Apparently that was done after a conversation with a solicitor in the
absence of VX. A new EPOA was not made. The solicitors subsequently
received medical evidence and sought an opinion about QR’s capacity to make
an EPOA and a will.
31. Dr A reviewed QR on 27 September and 3 October 2018. In a report dated
3 October 2018, Dr A noted the diagnosis of Alzheimer’s type dementia since
16 November 2017. She recorded a history of assessment at Calvary Hospital,
noting that QR was deemed not to have the ability to return home without full
time care (24 hours a day) due to the combination of high falls risk and
cognitive decline in the setting of Alzheimer’s disease.
32. Dr A noted that QR’s MMSE was 28/30 in November 2017 and 26/30 in April
2018. In Dr A’s opinion, a more accurate assessment of QR’s cognitive function
is the Montréal Cognitive Assessment (MOCA) – scoring 14/30 on 27
September 2018, which indicates moderate cognitive impairment (with a score
of 26/30 or above considered to be normal). The MOCA indicates that QR has
deficits in multiple cognitive domains including frontal lobe executive function,
calculation and memory recall. Dr A also recorded that:
(a) QR also has a history of chronic heart failure.
(b) QR was not able to explain the role of an EPOA and said that the reason
why she changed her EPOA was because she felt that ST “does not think
about the situation, she doesn’t really know me.”
8
(c) QR has some insight into her care needs if she were to return home. She
has limited understanding of her personal financial circumstances and is
unable to calculate sums of money or compare larger denominations.
33. Dr A concluded that QR does not have capacity to make a new EPOA and
strongly recommended the matter be referred to the ACAT to appoint a person
who QR will trust to make decisions on her behalf in relation to her finances,
personal and health matters.
34. Dr A also concluded that QR does not have testamentary capacity. She
recommended that decisions regarding whether QR remains at Mirinjani or
whether she returns home should be deferred until an EPOA is appointed. Due
consideration needs to be given to QR’s recent history of cognitive and
functional decline and assessments undertaken during her inpatient admission to
Calvary Hospital in August and early September 2018.
35. The summary of events in recent months and the fact that there are competing
applications for appointment as guardian and financial manager point to some
disagreement and perhaps conflict between UT and ST and QR’s friends about
what decisions need to be made on her behalf and the method of making those
decisions.
36. The evidence also indicated that QR misunderstood some of the circumstances
surrounding her relocation to Mirinjani, and that the misunderstanding appears
to have influenced her attitude to how her affairs should be handled in the
future. That impression is supported by the following account in YZ’s
statement:
18. [QR] told me that she had revoked [UT and ST’s] power of attorney because she had been deceived into entering Mirinjani for a short period of physio therapy and rehabilitation. [QR] was angry that [ST] had not informed her of her intention to sell her home or give away her much-loved pets. [QR] told me these things when I visited her at the nursing home on numerous occasions.
37. At the hearing, UT acknowledged that QR might have thought she was in short
term accommodation at Mirinjani.
9
38. The written statement of VX records QR’s “disbelief and anguish” expressed to
her about what UT and ST had done or were doing under the EPOA. That
included admitting her permanently to Mirinjani, planning to sell her home, and
giving away her dogs and birds. QR had stated that, by such actions, UT and ST
had “stolen my life” and taken away “my reasons for living.”
39. ST gave oral evidence that she did not tell QR about selling the house (or that
they were investigating selling or renting it) but did tell her that they would
have to make arrangements for the re-housing of her animals (birds, hens and
dogs). QR was upset at the time but, ST thought, subsequently forgot this
conversation. ST suspected that QR was later told that her pets would be
disposed of and that her house would be sold. Subsequently, ST wrote a
confidential letter to QR to explain what was meant. There is no issue that the
letter exists, but it was not in evidence before the Tribunal. According to ST,
she spoke to her mother subsequently and considered that QR understood what
had happened.
40. UT and ST expressed their concern, orally and in writing, that those who sought
to assist QR immediately after she went to Mirinjani acted on incomplete or
inaccurate information. They did not contact UT and ST or, it appears, QR’s
regular treating medical practitioners. On the information available to the
Tribunal, it is not possible to decide whether some of the allegations about
misinformation being provided to QR are correct. However, some of the
exchanges at the hearing suggest that each of the people dealing with QR was
attempting to act in her interests but was not communicating with, or making
inquiries of, the others. Consequently misunderstandings arose which led to
degrees of mistrust. Significantly for these proceedings, it seems that QR might
have misunderstood some of the actions taken by UT and ST and the basis on
which they proceeded to make certain decisions on her behalf.
41. UT and ST stated that not only did they have to make difficult decisions under
pressures of time and professional advice that QR could not return home, they
were advised by medical practitioners not to discuss these matters with QR in
order that she not be distressed. In her statement, VX wrote that on
10
9 September 2018 ST stressed to her that QR’s doctors instructed that no one
was to tell QR what was happening because it would upset her too much.
42. It is apparent that, as a result, QR developed a misapprehension about some
matters (particularly the possible pending sale of her home) and a sense that UT
and ST had taken actions in relation to matters that were important to her but
without seeking her views. Her frustration and possible resentment is captured
in her statements that ST had “taken away my life” and “does things without
consulting me.”
43. For their part, UT and ST appear to have acted in accordance with their powers
under the EPOA and in reliance on professional advice to do what they
considered to be in QR’s best interests. They took the precaution of obtaining
legal advice that they were acting appropriately under the EPOA.
44. On the basis that the EPOA has been revoked, no one other than QR has legal
authority to deal with QR’s finances or property, or make decision on her behalf
about her accommodation or other health or welfare matters. The Tribunal was
advised that, apart from an initial payment, no subsequent payments have been
made to Mirinjani for QR’s ongoing accommodation. Her home is vacant and
no decision can be made about its rental or sale, or whether it should be
modified so that QR could return to live in it. It is in that context that the
application for the appointment of a guardian and financial manager has been
brought.
Should a guardian and/or financial manager be appointed?
45. The provisions that govern whether a guardian and/or financial manager should
be appointed are set out in sections 7(1) and 8(1) of the GMP Act:
7 Appointment and powers of guardians
(1) This section applies if the ACAT is satisfied that—
(a) someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and
(b) while the person has the impaired decision-making ability—
(i) there is, or is likely to be, a need for a decision in relation to the matter; or
(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve,
11
unreasonable risk to the person’s health, welfare or property; and
(c) if a guardian is not appointed—
(i) the person’s needs will not be met; or
(ii) the person’s interests will be significantly adversely affected.
Note 1 See s 8C in relation to appointment of a guardian for a child.
Note 2 A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).
8 Appointment and powers of managers
(1) This section applies if the ACAT is satisfied that—
(a) someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and
(b) while the person has the impaired decision-making ability—
(i) there is, or is likely to be, a need for a decision in relation to the matter; or
(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c) if a manager is not appointed—
(i) the person’s needs will not be met; or
(ii) the person’s interests will be significantly adversely affected.
46. Section 5 of the GMA Act provides:
5 When does someone have impaired decision-making ability?
For this Act, a person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.
47. The medical evidence before the Tribunal comprised:
(a) Dr A’s report dated 16 November 2017;
(b) RN’s statement dated 22 August 2018;
(c) the discharge statement from Calvary Hospital of 5 or 6 September 2018;
and
12
(d) Dr A’s report dated 3 October 2018.
48. It is not necessary to set out in detail the contents of those documents, much of
which has been noted earlier. It is sufficient to observe that the documents
contain sufficient information and professional opinions from suitably qualified
persons to satisfy the Tribunal that QR has impaired decision-making ability in
relation to matters relating to her health, welfare, finances and property.
49. That conclusion is supported to some extent by the oral and written evidence of
the persons who have consented to be appointed as QR’s guardian. It is also
supported by the Tribunal’s direct observations during the course of the hearing,
particularly in the conversation with QR where her short-term memory loss was
apparent.
50. The evidence before the Tribunal indicates that, if the EPOA has been revoked,
there is no one other than QR with legal authority to make decisions about her
future accommodation needs, health care needs and finances or about the
maintenance and possible rental or sale of her currently unoccupied home.
51. It follows that the Tribunal is satisfied that:
(a) QR has impaired decision-making ability in relation to health and welfare
matters; and
(b) there is, or is likely to be, a need for a decision in relation to one or more
matters about her health and welfare, including her accommodation; and
(c) if a guardian is not appointed, QR’s needs will not be met and her
interests will be significantly adversely affected.
52. The Tribunal is also satisfied that:
(a) QR has impaired decision-making ability in relation to her financial
matters and matters affecting her property; and
(b) there is, or is likely to be, a need for a decision in relation to one or more
matters involving her finances and property; and
(c) if a manager is not appointed QR’s needs will not be met and her interests
will be significantly adversely affected.
13
53. Because the criteria in section in sections 7(1) and 8(1) of the GMP Act are
satisfied, it is appropriate to appoint a guardian and manager.
What powers should be conferred on the guardian and/or manager?
Statutory provisions
54. Section 7 of the GMP Act also provides:
(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.
Note The powers that may be given to a guardian are restricted under s 7B.
(3) The powers that may be given to a person’s guardian include the following powers:
(a) to decide where, and with whom, the person is to live;
(b) to decide what education or training the person is to receive;
(c) to decide whether the person is to be allowed to work;
(d) if the person is to be allowed to work—to decide the nature of the work, the place of employment and the employer;
(e) to give, for the person, a consent required for a medical procedure or other treatment (including medical research or low-risk research but not including a prescribed medical procedure or medical treatment mentioned in paragraph (f));
Note For when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
(f) to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
Note For provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
(g) to bring or continue legal proceedings for or in the name of the person.
55. Section 8 of the GMP Act also provides:
(2) The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.
14
Note The ACAT’s power to appoint a manager is restricted under s 8A.
(3) The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.
56. Section 11 is also relevant.
11 Powers to be least restrictive
The powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.
Note Also, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4).
57. At the hearing, it seemed to be generally accepted, and the Tribunal has
decided, that a guardian should have the power:
(a) to decide where, and with whom, QR is to live;
(b) to give, for QR, a consent required for a medical procedure or other
treatment (other than a prescribed medical procedure or medical
treatment);
(c) to give, for QR, a consent required for medical treatment involving
treatment, care or support under the Mental Health Act 2015 (other than a
prescribed medical procedure); and
(d) to make other personal decisions needed to ensure that QR’s health and
welfare needs are met and to protect her from unreasonable risks to her
health and welfare; and
(e) power to do the things necessary to give effect to decisions about the
matters set out above, including (but not limited to) giving or receiving
information, giving consent to investigations or assessments, participating
in negotiations, or signing documents.
58. The Tribunal has also decided that a financial manager should have the power to
manage all of QR’s property, including her finances and real estate.
59. We note that any person (or persons) on whom those powers are conferred
should exercise the powers in accordance with the decision-making principles.
15
60. Section 4 of the GMP Act provides:
4 Principles to be followed by decision-makers
(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
(2) The decision-making principles to be followed by the decision-maker are the following:
(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
(c) if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;
(d) the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
(e) the protected person must be encouraged to look after himself or herself as far as possible;
(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
(3) Before making a decision, the decision-maker must consult with each carer of the protected person.
(4) However, the decision-maker must not consult with a carer if the consultation would, in the decision-maker’s opinion, adversely affect the protected person’s interests.
(5) Subsection (3) does not limit the consultation that the decision-maker may carry out.
Who should be the guardian and/or financial manager for QR?
61. At the heart of this case is a contest as to who is the most appropriate person to
be the guardian and manager of QR. To answer this question requires close
consideration of the statutory provisions governing who may be appointed (as
set out in sections 9 and 10 of the GMP Act), and the evidence before the
Tribunal in relation to ST, YZ and VX.
62. For reasons which will become apparent, it is necessary to consider separately
the appointment of a guardian and a financial manager. To some extent, the
16
appointment of someone to one of those roles has a bearing on who should be
appointed to the other.
Who should be the guardian for QR?
63. As noted earlier, three people have provided consent in writing to be appointed
as guardian for QR.
64. ST is 64 years of age and the stepdaughter of QR. She lives in Brisbane,
Queensland and is in paid employment in the retail sector from Thursday to
Sunday each week. She is in regular telephone contact with QR and visits her
periodically. In recent years, she has taken various steps to ensure that relevant
services and supports are provided to QR to enable her to continue living in her
own home. From August 2005 until it was revoked in September 2018, she and
her husband were attorneys under an EPOA executed by QR.
65. YZ is 57 years of age and a friend of QR. He is a disability pensioner, having
ceased work in approximately 2002. He subsequently undertook some studies at
the Australian National University. He first met QR in 2011 when she required
assistance with her garden. In recent years he has also helped with aspects of her
day-to-day living, including taking her shopping after she stopped driving. He
has accompanied her to some medical appointments. He has seen and spoken
with her approximately three or four times each week. They share cups of tea.
He receives payment for his work, and is reimbursed for groceries which he
purchases on her behalf and petrol expended on doing errands for her.
66. YZ stated that QR asked him to be her guardian at Mirinjani and at the
solicitors’ office. He has never previously been appointed as a guardian,
financial manager or an attorney under a power of attorney. He contends that he
should be appointed as her guardian because he is “a benign and trusted friend
of long standing with altruistic motivation.” He considers that he could be
guardian alone, but would prefer to be appointed with VX.
67. ST took issue with some of YZ’s written evidence, including about the reasons
for and frequency of his contact with QR. More relevantly for these
proceedings, she challenged his suitability to be a guardian and manager for QR
because of some specified health issues.
17
68. VX is 61 years of age and a close friend of QR, who she first met in 2004, when
QR taught VX’s daughter. In recent years, the two women have spoken and
spent time together at least once each month, including at QR’s home or at a
restaurant or café. They have conversed about a broad range of topics and
attended plays together. VX assisted QR in organising the opening of QR’s
gardens to the public to raise funds for charities.
69. Since QR’s admission to Mirinjani, VX has seen or spoken with her
approximately three times each week. She has taken QR to attend medical
appointments, and provided other forms of practical assistance including
looking after QR’s dogs. She has facilitated QR seeing her solicitors, accountant
and a geriatrician and has secured a Level 3 Home Care Package to subsidise
the costs of in-home care that QR would require if she were to return to live at
her home. She has had discussions with various individuals and organisations
about a range of possible modifications to the home and provision of in-home
services.
70. VX considers that she understands the role of a guardian and financial manager,
as in 2015 she was appointed by the Tribunal to both roles for a relative. She
has also been nominated under powers of attorney for family members. VX also
stated that she is honest, cares about QR and believes she has some
understanding of the health challenges QR is facing now and in the future. She
is also aware of details about QR’s financial situation.
71. The GMP Act provides:
9 Who may be appointed
(1) The public trustee and guardian or an individual may be appointed as a guardian.
(2) The public trustee and guardian, a trustee company or an individual may be appointed as a manager.
(3) A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.
(4) The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.
18
(5) The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.
10 Considerations affecting appointment
(1) A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.
(2) A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—
(a) has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b) has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c) is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
(3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(4) For subsection (3), the matters the ACAT must take into account include—
(a) the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b) the desirability of preserving existing relationships with family and any other carers; and
(c) whether the proposed guardian or manager is compatible with the protected person; and
(d) whether the proposed guardian or manager lives in the ACT; and
(e) whether the proposed guardian or manager will be available and accessible to the protected person; and
(f) the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g) whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
(5) The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of
19
the person only because of the fact of being the domestic partner or relative.
72. In summary, section 10(2) contains criteria that must be met before a person
(other than the PTG) can be appointed.
73. Section 10(3) provides that someone (other than the PTG) ‘may’ be appointed
as a guardian or manager ‘only if’ the Tribunal is satisfied that:
(a) the person will follow the decision-making principles (set out in section 4
of the GMP Act and quoted above); and
(b) is “otherwise suitable for appointment” (section 10(3)).
74. The key criterion in relation to an individual is that they are ‘otherwise suitable’
for appointment (section 9(4), (5), section 10(3)). When deciding whether a
person is “otherwise suitable”, the Tribunal must take into account the factors
listed in section 10(4).
75. Although the Tribunal “must take into account” those listed matters, they can
affect, but need not determine, whether a particular person is suitable for
appointment as a guardian or manager.
76. In many instances it will be obvious that an individual will follow the decision-
making principles and is ‘otherwise suitable’ for appointment.
77. The Tribunal must consider closely the matters listed in the GMP Act and may
consider other matters, if the suitability for appointment of an individual is
contested.
Consent given, and applicants not disqualified
78. ST, YZ and VX each consented in writing to be appointed as guardian for QR.
79. Each of them has provided sworn evidence that they:
(a) have never been convicted or found guilty of an offence involving
violence, fraud or dishonesty;
(b) have never in the ACT or elsewhere, been refused appointment as a
guardian or manager, or removed from office as a guardian or manager;
and
20
(c) are not bankrupt or personally insolvent.
Decision-making principles
80. Both YZ and VX gave direct evidence that they would follow the decision-
making principles in section 4. It was clear from her written and oral evidence
and her final submission that ST would also follow those decision-making
principles. We are satisfied that, if appointed as QR’s guardian, each of them
would follow the decision-making principles.
QR’s views and wishes
81. As noted earlier, the Tribunal has two sources of information about QR’s views
and wishes about the possible appointment of a guardian and/or financial
manager.
82. The written report provided by the PTG recorded that, on 29 October 2018, QR
was aware of ST’s application but did not agree with it. According to QR, ST
had “taken away my life. The thing that is most important to me is to have my
life back. This includes going home. I have a lovely home. I want to live, not
just exist.” However, it was clear that QR did not wish to malign ST and
considered that “she means well.” QR was concerned that ST “does things
without consulting me, like I have no brains.” She particularly referred to the re-
homing of her birds without ST telling or asking her. She noted that she does
not see ST often, and the lack of consultation “bothers me.” When asked to
nominate an alternative appointment as guardian she referred to “[VX] and
[YZ]. I can’t recall his surname. He is my gardener, helper friend.”
83. At the meeting on 6 November 2018, the Tribunal was impressed by QR’s
spirited approach to answering the Tribunal’s questions, and by her positive
attitude to life at present and into the foreseeable future. Her views are firmly
held and were clearly expressed.
84. It is clear from the Tribunal’s conversation with QR, and consistent with her
statements recorded in the written report of the PTG, that:
(a) QR would prefer to live in her own home with appropriate help to keep
her safe and healthy in the years ahead, possibly to 100 years of age. She
has always been an independent person who has a mind and wants to use
21
it. Since her youth she has been a manager and she considers that, with
help, her dementia can be managed. She wants her life back, and
considers that it is possible for her to live in her home with suitable fit out,
delivery of good food and the periodic assistance of a carer.
(b) QR accepts that it might be useful to have a guardian but does not
consider that she needs a financial manager. She considers that she has
managed her affairs successfully for many years and by carefully
managing her money has always maintained a surplus in the bank.
(c) If a guardian is to be appointed, she would prefer the guardian to be YZ,
MO (her niece in Melbourne) or VX. It was apparent that, of those people,
her preference would be VX. QR made it clear that she did not want ST to
be appointed as a guardian.
(d) If a financial manager is to be appointed, her preference would again be
VX. She does not want ST to be appointed.
85. Without setting out in full her reasons for preferring particular individuals to be
appointed or not appointed, it is clear to the Tribunal that QR’s preferences are
based on two factors: her assessment of the competence of each person to
perform one or both of the roles of guardian and manager, and her assessment of
her compatibility with each of those persons in terms of their outlook on life and
how to meet challenges that arise (a matter considered later in these reasons for
decision).
86. At the hearing, there was some suggestion that QR has expressed different
views on recent occasions. For example, ST stated that recently QR had said
that she wanted UT and ST and others to hold her power of attorney.
87. QR’s lawyer expressly made no submissions against the medical evidence.
Rather, he referred to Dr A’s assessment that QR needs assistance. In that
context, he submitted, QR’s views and wishes about what she wants and how
she want the assistance to be provided should be strong considerations.
22
Relationship with family and carers
88. The Tribunal must take into account the desirability of preserving existing
relationships with family and ‘any other carers’ (section 10(4)(b)). Section 6 of
the GMP Act provides:
6 Meaning of carer
In this Act:
carer—a person is a carer of someone else (the dependant) if—
(a) the dependant is dependent on the person for ongoing care and assistance; and
(b) the person cares for the dependant otherwise than because of—
(i) a commercial arrangement; or
(ii) an arrangement that is substantially commercial.
Example of a carer
Ms S suffers from a severe brain injury because of a car accident and requires constant care. Her spouse, 2 children aged 18 and 11 and a family friend share her care and would each be a ‘carer’.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
89. In relation to family matters, it is clear that ST has been a loving and caring
daughter for many years. The relationship between her and her stepmother has
been strained in recent times as a result of the change in QR’s health and the
steps taken by ST under the EPOA. Part of that strain is also attributable to the
way in which some actions have been taken by ST in relation to QR’s animals
and accommodation, and the lack of timely communication between them about
significant issues. The absence of direct communication between them has led
to mistrust based on a misunderstanding by QR. It is apparent from her views
and wishes, and the evidence of ST referred to earlier, that the two women have
not yet reached a mutual understanding, let alone agreement, about what might
be best for QR in the immediate and foreseeable future or the basis on which
such decisions should be made. It is possible, if not likely, that the appointment
of ST as guardian for QR might further strain rather than preserve existing
relationships within the family.
23
90. QR’s lawyer referred to the recent strain on relationships and submitted that
preserving relationships would not be facilitated by appointing ST as guardian.
Appointing YZ or VX would not affect pre-existing relationships.
91. QR’s lawyer submitted that YZ and VX could be described as a ‘carer’ for
present purposes, and submitted that their roles were not because of commercial
arrangements or substantially commercial arrangements.
92. As noted earlier, YZ has been performing a range of functions to assist QR,
including gardening and more recently, maintaining her pets and driving her to
and escorting her at the shops. Although there is no formal work contract
between him and QR, he receives payment for some of his work and is
reimbursed for things he purchases such as food and petrol. Before QR went to
Mirinjani she apparently insisted on paying him an average of $50 per day for
what YZ described as “compensation”. The relationship is essential one in
which YZ performs an increasing range of tasks for payment or reimbursement.
Although that includes some social contact (for example, over cups of tea), the
relationship is essentially based on employment. YZ could not be described as
QR’s ‘carer’ as that word is defined in the GMP Act.
93. In her written statement, VX states that she has known ST for approximately
12 years and that, prior to QR’s admission to Mirinjani, her relationship with ST
was “cordial”.
94. Having described the nature of her relationship with QR and the extent of their
contact since 2004, including taking QR to appointments, VX wrote:
22. Prior to [QR] moving to Mirinjani, I provided her with assistance in daily activities and living. For example, when I visited [QR] I would sometimes make afternoon tea; wash the dishes; take out rubbish. I was doing this for several months prior, approximately once every three weeks
21. I am currently providing practical assistance to [QR] and have been doing so since approximately 17 September 2018. I do not receive payment for this… I facilitated [QR] seeing her solicitors; accountant and geriatrician. I have provided [QR] with transport to her appointments; paid some of her bills; reclaimed and cared for her dogs.
24
95. VX has liaised with My Aged Care to secure QR a Home Care Package and has
discussed with other organisations for the provision of a range of services.
96. On that basis, it is arguable but not certain that VX is, or has been, a ‘carer’ of
QR. It is clear that they have a long-standing friendship based on mutual
interests and that VX has voluntarily assumed an increasing range of duties to
assist QR (including looking after her dogs) and arranging or identifying options
for assistance to be provided. The appointment of VX as guardian would be in
accordance with QR’s wishes, and would build on their existing relationship.
97. Nothing turns on the way in which their relationship is characterised. It is
possible that, if VX were guardian and had to make some difficult decisions, the
relationship would be tested. That is a possibility if any family member or carer
is appointed.
98. In the alternative, QR’s lawyer submitted that the PTG could be appointed as
guardian. We understand that submission to have been made at this stage as a
possible means of preserving, or at least not straining further, the existing
relationships.
Compatibility of proposed guardian with QR
99. Written statements in support of ST’s application were made by her sister PR,
and by her cousin MO.
100. PR attested to “the loving relationship and special bond that Mum and [ST]
have shared for close on 60 years.” She contended that ST is the best qualified
person to appoint as guardian and manager for their mother, “[b]ecause of the
loving relationship spanning so many years and [ST]’s proven administrative
and organisational abilities.”
101. MO described ST as “a most dutiful and caring daughter” who has worked
tirelessly to ensure that QR has been able to remain in her own home. She stated
that she and ST had been in very regular contact, especially over the past three
years, and had mutually agreed that despite a diagnosis of Alzheimer’s, QR
would remain at home whilst she was able to manage safely there.
25
102. MO’s statements in strong support of ST’s appointment have additional
significance because PR suggested that MO might be a suitable appointee as
guardian, including for reasons of personal compatibility with QR.
103. The evidence of QR’s views and wishes is relevant here. Her views regarding
ST’s compatibility are likely to have been affected by ST’s recent decisions in
relation to QR’s living arrangements. The Tribunal has previously noted the
actions that ST has taken to enable QR to remain in her home prior to her
admission into a nursing home following her recent illness. Although ST made
decisions about QR’s current accommodation and to withhold information from
QR based on explicit medical advice, these actions appear to have created a
situation where there has been a breakdown of trust between the two women.
Notwithstanding ST’s reasons for taking those decisions, the Tribunal needs to
consider how events have transpired and their impact.
104. Further, evidence provided by both parties shows that ST and QR had different
priorities in relation to QR’s care. For example, while ST emphasised the
importance of the regular meals that were available at the nursing home, QR
believed that this was unnecessary. In her private discussions with the Tribunal,
QR emphasised her desire to live her final years in a way that was reflective of
her life to date – and this involves a level of risk.
105. QR described to the Tribunal their respective approaches to how she should
live. She said that ST is a good person of whom she is fond, but who has a
mindset that is conservative and concerned with what QR should not or could
not do, rather than “give her a go.” QR approaches life on the basis that it
involves danger every day, something she seems to relish. “What is life without
a bit of risk?” she asked the Tribunal.
106. In order to ascertain the most compatible person or persons to be appointed as
guardian, QR’s lawyer pointed to her views and preferences for people with
personal similarities with her.
107. There was evidence of VX’s compatibility of thinking with QR’s views and
wishes. In her statement to the Tribunal, VX wrote:
26
32. [QR] has told me she wishes to reside at her home… where she has lived since she purchased the property with her late husband… as a new home… I support [QR]’s desire, conditional on comprehensive services being put in place to support [QR]’s safe and healthy return home.
108. VX made it clear to the Tribunal that she would support QR returning home if
that could be done safely. VX indicated that she would need to discuss these
matters with QR’s doctors, and that proper communication would be needed to
access appropriate services. She acknowledged that, for various reasons, the
stage might be reached where QR could not live in her own home. VX also
referred to an option for QR to live with her in VX’s home.
109. As noted earlier, VX has known QR since 2004 and they have socialised at
QR’s home and at restaurants and cafes, have conversed about a range of topics,
and have attended plays together. VX has assisted QR in organising the opening
of QR’s gardens to the public to raise funds for charities. Their friendship seems
to have intensified after QR’s admission to Mirinjani. VX is currently caring for
QR’s dogs. We are satisfied that the two women are compatible.
110. We have previously noted that YZ’s relationship with QR was established when
YZ was employed by QR as a gardener. YZ stated that in recent times this role
has been ‘reframed’ to include other duties, including driving and tending to
QR’s animals. YZ still receives payment for some (if not all) of his duties. QR
has continued to refer to YZ as the gardener and has had trouble identifying his
surname. While there was evidence that there is no employment contract, the
Tribunal is not convinced that this relationship extends beyond an informal
employment relationship.
111. The Tribunal has insufficient evidence on which to be satisfied that YZ and QR
are compatible in the sense contemplated by section 10(4)(c). It is clear that
they have a friendly relationship and that QR trusts and relies on him to assist
her in various ways. But it is not clear that they are otherwise compatible in
ways that might form a basis for him being appointed as her guardian.
27
Whether the proposed guardian lives in the ACT
112. The criterion in section 10(4)(d) suggests that the geographic proximity of the
guardian or manager to the protected person is relevant to the selection of
someone to perform that role.
113. Residence outside the ACT is not a bar to appointment, but it is a factor to be
considered.
114. The significance of this criterion might vary from case to case depending on the
number and types of decisions that a guardian needs to make, and whether the
guardian needs to be in the ACT to make those decisions or to be informed
about what is the best decision to make (for example, about the protected
person’s accommodation or health needs). On that basis, section 10(4)(d) and
section 10(4)(e) can be considered as containing complimentary factors.
115. ST has lived in Queensland since 1989. She gave evidence that she does not
intend to move to the ACT.
116. YZ lives in Canberra.
117. VX lives in Canberra.
Whether the proposed guardian will be available and accessible to the protected person
118. This criterion, in section 10(4)(e), is separate from the previous criterion, but
appears to be conceptually linked to it. Again, the significance of this criterion
to a particular case might vary depending on the number and types of decisions
that a guardian needs to make, and how readily they can perform those
functions as issues arise and the protected person’s circumstances change.
119. A range of circumstances might affect whether a proposed guardian would be
available and accessible to the protected person, including whether they are in
full-time employment, whether they have substantial business and family
commitments, and whether they travel outside the ACT for extended periods. It
is possible, for example, that a person who lives outside the ACT and who is not
in full-time employment but has access to transport and other resources, would
28
be more accessible and available to the protected person than someone who
lives in the ACT but has substantial works, travel and family commitments.
120. ST lives in Brisbane. She works in the retail sector from Thursday to Sunday
each week (but not Monday to Wednesday). There was evidence that:
(a) she visits QR every two or three months for a few days;
(b) she speaks with QR by phone almost daily, but at least two to three times
each week;
(c) she works closely with MO who also QR to support ST in protecting QR’s
welfare;
(d) she has established, engaged with and to some extent relies on a group of
neighbours and QR’s gardeners who she speaks with by telephone
regularly to obtain information about her mother’s health and welfare. She
agreed that she relies on these people to provide updates on her mother.
They contact her from time to time.
121. Although ST does not live in the ACT and only visits every few months, there
was clear evidence that she has been able to arrange services for QR from
Queensland.
122. As noted earlier, both YZ and VX live in the ACT and are available and
accessible to QR on a regular basis and, potentially, as the need arises.
123. QR’s lawyer highlighted the fact that ST lives interstate and is still working.
Although she visits QR as often as she can, she does not have the advantage that
locals (such as YZ and VX) have of developing a face-to-face understanding of
QR’s wishes and the ability to provide practical support. Rather, ST depends on
a network of family and friends to keep her informed about QR’s welfare.
124. In addition we note that some of the decisions that need to be made in relation
to QR, and her views and wishes in relation to these, are complex and may
require significant investigation and negotiation. The location of a guardian
within the ACT might facilitate the ready identification of additional options.
29
Whether the proposed guardian is competent to exercise the functions
125. The proposed powers of the guardian are set out above. They involve making
important decisions for, or giving consent on behalf of, the protected person. To
make informed decisions and give informed consent, the guardian or manager
needs to be aware of such things as:
(a) the protected person’s circumstances from time to time (for example, their
health, accommodation and finances) and whether those circumstances
have changed or are likely to change in the foreseeable future;
(b) when a decision needs to be made;
(c) the options that are realistically available; and
(d) the protected person’s wishes.
126. As QR’s lawyer submitted, competence to exercise the functions is to be
assessed in terms of what needs to be done.
127. He suggested that YZ and VX are competent to be guardian. He also submitted
that, although ST might be competent, she might not be ‘otherwise suitable’ to
be appointed as guardian.
128. YZ advised the Tribunal that he would work to ensure QR could remain in her
own home, but did not provide detailed information regarding how this would
be actioned. The Tribunal notes that, at the time of the Tribunal hearing, YZ
may not have had access to information to assist him in assessing options.
Nevertheless, the Tribunal holds some concerns regarding his ability to gain the
information necessary to make key decisions for QR in the timeframe that is
required (particularly in relation to accommodation).
129. In both her written statement and oral evidence, VX provided information
regarding her understanding of potential assistance that QR would be able to
access to support the continuation of her accommodation within her own home.
She displayed a good understanding of how the aged care system works, and an
understanding of potential constraints on giving effect to QR’s wishes to remain
at home. VX outlined steps that she had already taken to identify potential
supports and how these might be accessed. The Tribunal also notes VX’s
30
experience as a guardian and manager for family members, and a carer for a
family member with dementia.
130. ST’s substantial knowledge and experience are described earlier and need not be
repeated.
131. We are satisfied that, having regard to their knowledge and experience outlined
earlier in these reasons, ST and VX are each clearly competent to exercise the
functions. In that respect, they are more suitable for appointment than YZ who
has had no direct knowledge or experience of being a guardian or manager or
exercising a power of attorney.
Whether the interests and duties of the proposed guardian are likely to conflict with the protected person’s interests
132. The Tribunal must take into account:
whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests. (section 10(4)(g))
133. To understand the scope of that criterion, we have to consider the following
definition of a person’s ‘interests’ in section 5A of the GMP Act:
5A What are a person’s interests?
A person’s interests include the following:
(a) protection of the person from physical or mental harm;
(b) prevention of the physical or mental deterioration of the person;
(c) the ability of the person to—
(i) look after himself or herself; and
(ii) live in the general community; and
(iii) take part in community activities; and
(iv) maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);
(d) promotion of the person’s financial security;
(e) prevention of the wasting of the person’s financial resources or the person becoming destitute.
134. QR’s lawyer noted that ‘interests’ is defined broadly, but submitted that there
was no evidence that YZ, VX or ST would gain from the appointment. In that
31
sense, there would be no likelihood of a conflict of the type contemplated by
section 10(4)(g) of the GMP Act. However, potential conflicts arise in relation
to such things as the re-housing of animals without contacting QR first.
135. We are satisfied that the current interests and duties of ST, YZ and VX are not
likely to conflict with QR’s interests to her detriment.
Otherwise suitable
136. Having expressed our conclusions about each of the people who have consented
to be the guardian of QR, it remains to consider whether each of them is
‘otherwise suitable’ to be appointed as QR’s guardian (see section 10(3)).
137. It will be apparent from evidence of actions taken by ST to assist QR,
particularly in recent years, that she is well qualified to perform the role of
guardian. That much is evident from the fact that in 2005 QR appointed her as
one of two attorneys under an EPOA.
138. In support of ST’s application, her sister PR wrote:
I know also that over the last few years, as the dementia progressed, [ST] has assumed increasing responsibility for the handling of our mother’s affairs, both personal administrative and financial. This support has gone on quietly in the background and largely unobserved or acknowledged by outsiders. [ST] is one of those people who just gets on with a job, does it well, efficiently, with a minimum of fuss, and no fanfare.
Because of the loving relationship spanning so many years and [ST]’s proven administrative and organisational abilities, I believe that [ST] is the best qualified person to appoint as Guardian Manager for our mother [QR].
139. MO described how, when QR returned home after being hospitalised in
December 2016, ST set about putting in place numerous measures to ensure that
QR was kept safe and secure in her own home, for example Baptist Care, Meals
on Wheels and Woolworths online shopping. Since then, she and ST have been
taking turns to visit QR for between four and seven days at approximately three
monthly intervals. Over the past year or so, as QR’s health has declined, ST has
organised for extra home support and people to manage the extensive garden
and perform other duties for QR. According to MO, ST:
32
(a) “has been a most dutiful and caring daughter” to QR and “has worked
tirelessly (un-be-knowns to my aunt at times) to ensure that [QR] has been
able to remain in her own home” until the age of 94;
(b) “has on all occasions been open, honest and conscientious” in her
management of QR’s personal, administrative and financial affairs;
(c) has always explained her decision making and logic to MO so that it can
be shared with the extended family in Melbourne, who “know that she has
had [QR’s] best interests at heart at all time”;
(d) is “extremely responsible and efficient” and her functions “all reveal a
great deal of thought” such that MO “would never doubt her decision
making”;
(e) “values and trusts the opinions and advice on medical specialists and
making difficult and often heart-wrenching decisions” about QR’s affairs
and welfare.
140. In MO’s opinion, ST is “without a trace of doubt, the best placed person to
appoint” as guardian and financial manager for QR.
141. VX is aware that QR wants to live at home and cherishes her home, prize-
winning garden, birds and dogs. QR was appalled at the prospect of moving into
nursing care. VX has read medical reports and understands that if QR were to
return home safely she would need comprehensive services including case
management and home modifications. VX accepts that the support required
might cost more than the amount of money available on Level 3 assistance, but
described the contrast between how QR was living at home immediately before
her admission to Calvary Hospital (with the assistance of a gardener and
cleaner) and her situation at Mirinjani. VX expressed concern about the
significant change in a short period without consultation with QR, and would
support QR returning home if that can be done safely.
142. VX indicated that she would need to discuss these matters with QR’s doctors
and noted that, on previous occasions when some services had been arranged,
QR had cancelled the services because, for example, she did not like strangers
coming in to her home and did not like the food that was delivered. Proper
33
communication is needed to access appropriate services, and QR would need to
understand that the alternative to accepting those services is living in a care
facility. Further, VX acknowledged that QR might reach a stage when she could
not live at home because the financial resources are spent. In these
circumstances, VX said she would investigate a range of facilities to find
accommodation that best suited QR, for example, where small companion
animals are allowed.
143. YZ said that he knows a lot about QR’s personal circumstances and knows her
as well as anyone. He noted that QR wishes to reside at home, and that she
would require home care. She has received a Level 3 subsidy. When asked
whether, if appointed as guardian he would give effect to her wishes, he said
that he has been privy to various medical consultations and would investigate
what could or could not be done to facilitate her wishes. He would seek a fresh
medical opinion. He would also consult with UT and ST because they are
family. He would keep them informed. If the obstacles could not be overcome
he would put that to QR.
144. Although YZ meets most of the criteria for appointment as QR’s guardian, he
does not have the range and depth of relevant experience and knowledge that ST
and VX have. Accordingly, we have concluded that ST and VX are more
suitable for appointment as QR’s guardian.
Who should be appointed financial manager?
145. For reasons noted earlier, we are satisfied that it is appropriate, indeed
necessary, to appoint a financial manager for QR.
146. The statutory criteria for who may be appointed as a financial manager are
found in sections 9 and 10 of the GMP Act, quoted above. They are the same
criteria as for who may be appointed as guardian.
147. However, the appointment of a financial manager in relation to QR raises some
different practical issues from those to be resolved in relation to the
appointment of a guardian. Those practical issues need to be resolved by
reference to specific provisions of the GMP Act.
34
148. ST applied to be appointed as both guardian and financial manager for QR. It is
apparent from her written material that ST managed her mother’s financial
affairs in recent years. She kept a journal of activities and arranged for the
provision of various services to her mother while she lived at home. At the time
of QR’s hospitalisation, ST arranged Aged Care Assessment Team Level 2 care
to commence immediately QR returned home. She arranged initial payment to
Mirinjani for QR’s accommodation.
149. ST provided the Tribunal with information about the sources and amounts of
QR’s income and the value of her house and personal assets. She also gave oral
evidence about the amounts that she had withdrawn from QR’s bank account to
reimburse herself for expenses that she incurred in attending on QR and meeting
her needs in August and September 2018.
150. ST managed QR’s finances until the EPOA was revoked. There is no evidence
before the Tribunal that ST has abused that role and hence is unsuitable to
perform the role of financial manager. Her residence outside the ACT is
arguably less of an issue for the management of funds than for the role of
guardian, as this should be largely an administrative function.
151. ST made it clear that she has no problem with people such as YZ being paid for
the assistance they provide to QR, so long as the cost is reasonable.
152. As noted earlier, in support of ST’s application, her sister PR wrote:
I know also that over the last few years, as the dementia progressed, [ST] has assumed increasing responsibility for the handling of our mother’s affairs, both personal administrative and financial. This support has gone on quietly in the background and largely unobserved or acknowledged by outsiders. [ST] is one of those people who just gets on with a job, does it well, efficiently, with a minimum of fuss, and no fanfare.
153. In support of her contention that ST is the best person to be appointed as
guardian and manager for QR, MO stated that ST “has on all occasions been
open, honest and conscientious” in her management of QR’s personal,
administrative and financial affairs.
154. Given her history of arranging services and managing finances on QR’s behalf,
ST has demonstrated her competence to perform the role of financial manager.
35
She has consented in writing to accept that appointment. She has demonstrated
her capacity to make difficult decisions based on information and opinions from
experts. She told the Tribunal she is happy to receive input from others and to
work with the Tribunal.
155. In his written statement YZ wrote that he consented to be QR’s guardian and
continued “I consent to being appointed financial manager, but would prefer to
just be her guardian.” In his oral evidence, YZ explained that there needs to be
checks and balances in place to protect him from slander. He said he had an
aversion to the role, and suggested that a forensic accountant or the PTG should
be appointed.
156. Having considered all his evidence, it is clear that YZ does not freely consent to
being appointed as QR’s financial manager. To the extent that he gave such
written consent, he did so reluctantly. Consequently, we are satisfied that he
should not be considered for appointment.
157. In her written statement, VX said that she would consent to being appointed as a
guardian for QR but “I would prefer not to be appointed a financial manager of
[QR].” In her oral evidence, VX explained that the relationship with UT and ST
needs to be at arm’s length management. She does not want to perpetuate any
tension between them. Consequently, we are satisfied that VX does not consent
to being appointed as QR’s financial manager.
158. Having heard from each of the three people and QR’s lawyer, it would appear
that only ST consents to be appointed as financial manager for QR. For the
reasons outlined above, she is qualified for that appointment.
159. However, QR’s lawyer submitted that the Tribunal could appoint the PTG as
financial manager.
160. The issue for this Tribunal is whether that would be an appropriate (or possible)
appointment given the clear terms of section 9 of the GMP Act.
161. The GMP Act expressly contemplates that either the PTG or an individual may
be appointed as a manager, but also makes it clear that the circumstances which
the PTG might be appointed are more limited.
36
162. Section 9(5) states:
The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed. (Emphasis added)
163. Differently constituted Tribunals have characterised the operation of that
provision as expressing “preference from the options available” 3 so that where a
choice can be made “the categories of potential appointees are not equal.”4 In
Public Trustee for the ACT v Lee,5 an appeal tribunal considered the operation
of the predecessor to the current version of section 9 of the GMP Act. That
appeal tribunal referred to the terms of section 9(4) and (5) and to the
Explanatory Statement of the 1991 Bill which, it wrote, “clearly indicated that
where there is a suitable, natural person available such as a relative or close
friend, that person takes precedence in terms of appointment over a public
official, or in management matters, over a trustee company.”6
164. Kirby P described the preference for an individual person where a choice
needed to be made under comparable New South Wales legislation as a
“sensible hierarchy of choices,” particularly “where there is no risk of conflict
of interest and duty, and where a relationship of love or affection is
established.”7
165. Decisions of the Tribunal8 and the New South Wales Supreme Court9 show that
a range of factors, including but not necessarily limited to those listed in section
9 of the GMP Act, are to be taken into account when deciding whether a person
is ‘otherwise suitable’ for appointment.
166. The question is whether ST is ‘otherwise suitable’ in the circumstances of this
case, including QR’s clearly expressed wishes.
Consideration and conclusions
3 In the matter of LQL [2018] ACAT 53 at [19]4 In the matter of AB [2017] ACAT 67 at [67]5 Public Trustee for the ACT v Lee [2014] ACAT 696 Public Trustee for the ACT v Lee [2014] ACAT 69 at [8], [9], [13]7 Holt v Protective Commissioner (1993) 31 NSWLR 227 at [238]-[239]8 See In the matter of AB [2017] ACAT 67 at [70]-[73]9 See Holt v Protective Commissioner (1993) 31 NSWLR 227 at [241]-
[243], M v M [2013] NSWSC 1495
37
167. For reasons set out above, it is necessary to consider separately the appointment
of a guardian and financial manager and, to some extent, the appointment of
someone to one of those roles has a bearing on who should be appointed to the
other.
168. Each of the matters which the Tribunal must take into account for the
appointment of a guardian are set out earlier in these reasons for decision. The
GMP Act does not specify the relative weight to be given to each of those
matters. That is understandable given the wide variety of personal, family and
community circumstances in which prospectively protected persons find
themselves.
169. In this case it is clear one of the significant factors is the weight to be given to
QR views and wishes. The requirement in section 10(4)(a) that the Tribunal take
into account the views and wishes of the protected person can be read in the
context of other provisions of that Act. The decision-making principles to be
followed by a decision-maker in the exercise of a function under the GMP Act
in relation to a protected person (quoted above) include principles that, in
summary:
(a) the protected person’s wishes “must be given effect to, unless making the
decision in accordance with the wishes is likely to significantly adversely
affect the protected person’s interests;”
(b) if giving effect to the protected person’s wishes “is likely to significantly
adversely affect the person’s interests”, the decision-maker “must give
effect to the protected person’s wishes as far as possible without
significantly adversely affecting the protected person’s interests;” and
(c) if the protected person’s wishes cannot be given effect to at all, the
interests of that person must be promoted.
170. QR has clearly expressed her wish that (of the people who have given consent)
VX and YZ be appointed as her guardian and that VX be appointed as her
financial manager. She has just as clearly expressed a wish that ST not be
appointed as her guardian or manager. To some extent, the evidence suggests
that her wish that ST not be appointed is based on a misunderstanding of what
38
decisions were taken by and ST under the EPOA, and concerns about why the
decisions were made, and about the processes followed by them in making
decisions on her behalf. It is also clear to the Tribunal that, those
misunderstandings aside, it is still QR’s wish that ST not be appointed for
reasons which might be broadly described as relating to their compatibility for
this purpose.
171. Having considered in some detail the extent to which ST, YZ and VX satisfy the
statutory criteria for appointment as guardian, we can express our conclusion
relatively briefly.
172. In our view, both ST and VX have relevant experience and knowledge to
perform the role. Each has consented to do so and is not disqualified from
appointment. Having regard to their respective current relationship and level of
compatibility with QR, their place of residence and relative availability and
accessibility to QR, and QR’s clearly expressed wishes, we have concluded that
VX is the most suitable person to be appointed as QR’s guardian.
173. The Tribunal is now in a situation where, in summary:
(a) the only family member or close friend who has consented to be appointed
is ST;
(b) ST is competent to perform the functions of financial manager;
(c) QR does not wish ST to be appointed; and
(d) if ST is ‘otherwise suitable’ to be appointed, the PTG must not be
appointed.
174. We are satisfied that ST is ‘otherwise suitable’. QR’s views and wishes, as
expressed to the Tribunal, are not based on any suggestion that ST is not
competent or would not exercise the process of manager improperly. Indeed, the
fact that QR appointed her as attorney under the EPOA in 2005 and took no
steps to replace her or to revoke the EPOA until 2018 suggests that she trusted
her for that period, at least prospectively, to perform the functions that a
financial manager would perform.
39
175. As noted earlier, QR’s wishes seem to be based on a perceived incompatibility
of views between her and ST about what would happen in relation to QR’s
future accommodation and other matters. Those are decision which the guardian
will make. Some of those decisions will have significant financial implications.
It will be important that the manager administers QR’s property appropriately.
176. We note that, consistently with the protection of the welfare and interests of the
protected person,10 the GMP Act contains provisions for the supervision of, and
constraints on the exercise of powers by, a financial manager. For example, in
summary, and subject to any other orders by the Tribunal, the manager:
(a) must not enter into a transaction in relation to the protected person’s
property if the manager’s interests are in conflict, or may conflict, with the
interests of the protected person;11
(b) must keep their property separate from the protected person’s property;12
(c) must not invest amounts held as manager except as permitted by the GMP
Act;13 and
(d) must file annually with the PTG the accounts and other documents
relating to the management of the relevant property, for examination by
the PTG.14
177. The issue then becomes whether VX and ST could work cooperatively in the
exercise of the powers and functions of guardian and financial manager
respectively.
178. It is apparent that, until relatively recently, ST and VX had a cooperative
relationship based on a broadly similar approach to what they considered to be
in the best interests of QR.
179. VX wrote positively about ST’s efforts last year to provide or arrange the
provision of practical assistance to QR. VX “welcomed [ST]’s decision to
10 See M v M [2013] NSWSC 1495, Re LSC and GC [2016] NSWSC 1896 at [50]
11 Guardianship and Management of Property Act 1991 section 14(1)(a)12 Guardianship and Management of Property Act 1991 section 14(1)(b)13 Guardianship and Management of Property Act 1991 section 2414 Guardianship and Management of Property Act 1991 sections 26, 27
40
arrange in-home care” for QR, and provided ST with information about in-home
care providers. VX described her relationship with ST as “cordial” before QR
was admitted to Mirinjani.
180. VX referred to the suggestion that QR might live with her, but said that would
only occur if the suggestion had ST’s unconditional support.
181. ST’s evidence about VX was more ambivalent. She said that she had no real
relationship with VX, who is a friend of QR.
182. When asked whether, if appointed as a guardian and manager, she would
consult with VX and YZ, ST said she did not know. She would talk to QR in the
first instance. If ST’s relationship with VX was better, she might consult with
her.
183. Given that, until recently, VX and ST shared similar views about what is best
for QR, the Tribunal anticipates that they can work together, sharing
responsibilities towards common objectives.
184. If that proves not possible and QR’s interests are, or are likely to be, adversely
affected, VX or ST (or both of them) could apply to the Tribunal under section
19 of the GMP Act to have the orders reviewed, and potentially varied or
revoked.
Enduring Power of Attorney
185. As noted earlier:
(a) QR executed an EPOA on 5 August 2008 in favour of UT and ST jointly
and severally;
(b) the attorneys were authorised to make decisions and arrangements for QR
while she was incapacitated;
(c) on the basis of a written statement made by RN, a treating nurse for QR,
about QRs incapacity to make decisions with regard to financial, health
and personal matters, UT and ST proceeded to exercise the powers of
attorneys from 22 August 2018;
(d) on 26 September 2018 QR revoked the EPOA;
41
(e) since then UT and ST have proceeded on the basis that the revocation was
effective;
(f) having reviewed QR on 27 September 2018, Dr A concluded that she does
not have capacity to make a new EPOA.
186. If the EPOA became operational from 22 August 2018 because QR lacked
capacity to make the decisions referred to in the EPOA, then arguably she
lacked capacity to revoke the EPOA on 26 September 2018. The report of Dr A
on 3 October 2018, building on consultations on that date and 27 September
2018, suggest that was the case.
187. These matters were not directly in issue before this Tribunal, and the question of
whether QR had capacity to make or revoke an EPOA on 26 September 2018
was not the subject of evidence.
188. What is clear is that the parties to the application for the appointment of a
guardian and financial manager proceeded on the basis that the EPOA was
revoked.
189. Without deciding the issue, we have proceeded to hear and decide the present
application on that basis. However, so that there is no doubt that the orders
appointing a guardian and financial manager are valid and fully effective, we
have decided to order that the EPOA be revoked. If the EPOA was validly
revoked on 26 September 2018, then that order is otiose. However, the order
should provide a degree of legal certainty that might not otherwise exist, and
avoid the risk of subsequent litigation in relation to the operation of the EPOA.
The order is also consistent with QR’s wishes.
Summary of orders
190. In summary, for the reasons set out above, the Tribunal orders that:
(a) the Enduring Power of Attorney executed by QR on 5 August 2005 is
revoked;
(b) VX is appointed as guardian for QR with specified powers to make
decisions and give consent for QR; and
42
(c) ST is appointed as manager to manage all of the property, including the
finances, of QR.
191. The full text of the orders is attached to these reasons for decision.
……………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
43
HEARING DETAILS
FILE NUMBER: GT 151/2018
PARTIES, APPLICANT: QR
PARTIES, RESPONDENT: Public Trustee and Guardian
TRIBUNAL MEMBERS: President G Neate AM
Member R Vassarotti
DATES OF HEARING: 6 November 2018
44