EGS
[2012] QCAT 111
•20 March 2012
| CITATION: | EGS [2012] QCAT 111 | |
| PARTIES: | EGS | |
| APPLICATION NUMBER: | GAA10274-11 / GAA10275-11 / GAA10276-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 28 February 2012 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Louise McDonald, Presiding Member Rocky Clifford, Member |
| DELIVERED ON: | 20 March 2012 |
| DELIVERED AT: | Maroochydore |
ORDERS MADE: | 1. The application for guardianship by NS is dismissed. 2. The Public Trustee of Queensland is appointed as administrator for EGS for all financial matters. 3. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 4. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. 6. Any purported Enduring Power of Attorney for EGS is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made. |
| CATCHWORDS: | Power of Attorney – Attorneys appointed severally – acting without consultation Powers of Attorney Act 1998, ss 66, 79, 85, 117 |
APPEARANCES:
LS, MS, AS, NS, AS, AM
Megan Copley, Adult Guardian
Sally Christianson, Adult Guardian – investigations
Marion Hall, Public Trustee
REASONS FOR DECISION
Background
The applications for the appointment of a Guardian and Administrator for EGS (hereafter the adult) were brought before the Tribunal on 14 December 2012 by the adult’s son MS. The applicant raised claims in relation to the operation of an enduring power of attorney, (EPA), executed by the adult on 25 May 2007.
On 25 May 2007 the adult executed an EPA appointing LRS, MS and NS severally as his attorneys for financial and personal/health matters.
On 5 May 2011, MS filed a complaint against co-attorney NS with the Office of Adult Guardian, alleging that he was no longer consulted as attorney. His complaints were that substantial amounts of funds had been withdrawn from the adult’s account held jointly with his wife; that the adult and his wife had been removed from respite without consultation, against medical advice, and were living in rented accommodation and consequently were not receiving the level care needed. His complaint indicated that the adult and his wife were not allowed to have contact with him.
On 14 December 2011, along with the applications for the appointment of a Guardian and Administrator, the applicant filed an application for an Interim Order for both a Guardian and Administrator for the adult. An interim order appointing the Adult Guardian as Guardian, and the Public Trustee as Administrator was granted on 16 December 2011.
The application was heard on 28 February 2012.
Capacity
In a report dated 8 November 2011, Dr Fogarty stated that the adult had been diagnosed with dementia, which was progressive and severe in nature.
An ACAT report dated 4 November 2010, noted a mini-mental state examination score of 7/30, and advanced dementia was identified at that stage.
At the hearing, NS advised that the adult is in permanent high care placement. Both NS and MS confirmed that the adult was unable to make personal and financial decisions as a result of his condition.
Clear medical and anecdotal evidence suggests that the adult has impaired ability to make decisions on his own behalf. The presumption of capacity is therefore rebutted.
Enduring Power of Attorney dated 25 May 2007
[10] The Tribunal also notes that LS has been found by the Tribunal to lack capacity for personal and financial decisions, she is no longer able to act as attorney under this appointment. The document appoints the attorneys severally, and this of itself, therefore has no bearing on the appointments of NS and MS.
[11] Multiple allegations in relation to the attorney’s actions under this instrument were raised by MS on 5 May 2011 and investigated by the Adult Guardian. The Tribunal considered the evidence of the parties as to compliance with obligations under the Powers of Attorney Act 1998.
[12] Concerns were raised that NS acted in contradiction to medical advice and without consultation with the co-attorney by removing the adult and his wife into his own care.
[13] The Adult Guardian’s reported concerns that the removal of the adult and her husband from care into NS’s care without the provision of services to support this move for the period from July until September 2011 was not a diligent personal decision.
[14] The report of Dr Fogarty of 8 November 2011 indicates that removal from care was against advice. NS could not recollect a discussion with a medical practitioner in relation to this decision, but considered that he was acting in response to his mother’s distress and expressed wishes, given the unavailability of high care respite placements, and the burden this was placing upon her through supplementing the care provided.
[15] NS provided evidence of actions taken to organise medical and therapy appointments, home modifications and registration for ACAT on 28 November 2011. He considered these actions met the adult’s needs at the time. He was providing full time care for his parents and did not consider that he needed additional services to support his care. NS explained that his mother was still providing care for his father, and he supported her in this regard. His involvement directly replaced meals on wheels and shopping support.
[16] The Tribunal accepts NS’s evidence that there was no need for services at that point as he was adequately providing care, and coping with the provision of care to his father with his mother’s support.
[17] However, the Tribunal notes the Adult Guardian’s conclusion that the attorney acted in contradiction to medical advice.
[18] MS’s complaint and subsequent application to the Tribunal also alleged that NS had not adequately protected the adult’s assets, asserting that substantial amounts had been withdrawn from the adult’s bank account which could not be accounted for.
[19] NS argued that regular expenses were deducted as were necessary for the adult’s maintenance and living expenses, and considered these were justified to reimburse the costs of living.
[20] The Adult Guardian advised that they were not provided any receipts for expenses incurred by the adult from May to November 2011. The adult’s bank statements noted regular weekly withdrawals of $340, deposited into another account which “may be NS’s”. There were however, inadequate records kept which “made it difficult to determine whether all withdrawals were for the benefit of the adult”. The Adult Guardian concluded that there had not been scrutiny of the adult’s financial affairs for many months. The Public Trustee indicated that there was not a clear case that excessive amounts had been withdrawn to reimburse NS’s expenses. The Tribunal has therefore concluded that the attorney has failed to keep adequate records in contravention of s 85 of the Powers of Attorney Act 1998, but, there is insufficient evidence to indicate that NS was in breach of obligations under s 66, regarding financial decisions.
[21] Further, MS has strongly expressed concerns about NS’s actions to remove funds received from his father’s sole name from a term deposit, to be placed into an account in joint names with LS. He noted that NS made no consultation with MS before making this decision. NS indicated that he informed MS in writing after taking this action.
[22] The Public Trustee could not identify any clear detriment that had been incurred by the adult as a result of this action, but indicated that were they appointed as administrator, they would give consideration to this issue.
[23] The Adult Guardian noted complaints from MS that he had not been consulted about any financial and health care decisions made by NS for the adult.
[24] Section 79 of the Powers of Attorney Act 1998 provides a clear obligation on attorneys to consult with each other. It states:
“If there are 2 or more persons who are guardian, administrator or attorney for a principal, the persons must consult with one another on a regular basis to ensure the principal's interests are not prejudiced by a breakdown in communication between them.”
[25] MS gave evidence that he has not been consulted by his brother in the decision to remove the adult and his wife from respite care, and into a rental home under his care.
[26] NS considered that he had informed the co-attorney of actions taken. MS advised that he was informed of actions after they had been taken.
[27] The Tribunal observed both NS and MS demonstrated considerable hostility in their dealings with each other before the Tribunal.
[28] NS advised that he had attempted to encourage ongoing contact but MS had alienated himself by his “absence and deceit.”
[29] The Adult Guardian concluded “the adult’s sons do not appear to be able to consult about significant matters involving their parents due to intense sibling conflict”.
[30] Ultimately the Adult Guardian provided the opinion that if the adult was found to have capacity, the Enduring Power of Attorney is unworkable due to the level of conflict between the siblings. The Tribunal concludes that all the evidence before the Tribunal supports this conclusion.
[31] The Tribunal finds that there is a high degree of conflict between the two sons. Consultation between the attorneys has not been in accordance with the requirements of s 79 of the Powers of Attorney Act1998. There is no indication that the sons are able to collaborate in decision making about their father.
[32] For this reason, pursuant to s 117 of the Powers of Attorney Act1998, the Enduring Power of Attorney dated 25 May 2007, is no longer appropriate.
Need for a Guardian
[33] The Adult Guardian’s report indicated that the adult has recently been placed in permanent high care accommodation. All parties indicated that this is stable accommodation and unlikely to be changed. There are therefore no accommodation decisions to be made.
[34] Health decisions can be made by the family, and where they disagree, the Adult Guardian is available as decision-maker of last resort. There are no health decisions to be made.
[35] Contact between MS and the adult is currently working effectively through arrangements established by the Adult Guardian under the interim order. There is no need for a decision maker regarding contact.
[36] The Adult Guardian, in their report of 21 February 2012 recommended that there is no need for a guardian.
Need for an Administrator
[37] The adult has joint substantial assets held jointly with his wife across three bank accounts, as well as a leasehold interest which was to be realised on the 29 February 2012. The funds from this will need to be invested. The adult also has income and living expenses to be managed.
[38] The Tribunal notes the existence of extensive conflict and absence of genuine consultation between MS and NS. It further notes NS’s objection to the involvement of a statutory authority, particularly due to the costs of administration fees. However, in view of the absence of consultation between the severally appointed attorneys while acting under the enduring power of attorney, an independent administrator is the most appropriate appointee.
[39] The Tribunal makes a plenary appointment of the Public Trustee until further order.
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