FAJ
[2013] QCAT 703
•22 November 2013
| CITATION: | FAJ [2013] QCAT 703 |
| PARTIES: | FAJ |
| APPLICATION NUMBER: | GAA7942-13; GAA7943-13; GAA8768-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 21 November 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Member Bayne |
| DELIVERED ON: | 22 November 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | ENDURING POWER OF ATTORNEY 1. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to SJR to resign as attorney for FAJ under the Enduring Power of Attorney dated 23 July 2013. 2. The following Enduring Power of Attorney for FAJ is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of Attorney dated 23 July 2013 appointing SJR as attorney for financial, personal and health matters. GUARDIANSHIP 3. The application for the appointment of a guardian for FAJ is dismissed. ADMINISTRATION 4. The Public Trustee of Queensland is appointed as administrator for FAJ for all financial matters. 5. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – undue influence – unsecured loans – impaired capacity – attorney wishes to resign – need for an administrator – appropriateness considerations Guardianship and Administration Act 2000 Schedule 4, ss 5, 7, 12, 14, 15, 16, 31, 129 Powers of Attorney Act 1998 Schedule 1, ss 1, 31, 41, 44, 47, 62, 63, 82, 116, 117 |
APPEARANCES and REPRESENTATION (if any):
| FAJ LR GC PM LG ZJK BJ SJR BT | Adult Son Legal representation for LR Friend Son Daughter Daughter Attorney under Enduring Power of Attorney Witness to Enduring Power of Attorney |
REASONS FOR DECISION
BACKGROUND
FAJ is 71 years of age and lives, as she has done since about 2001, in Southport, Queensland. She was widowed in 2009.
FAJ has four children, all of whom live interstate. She has a few friends and acquaintances in her local area.
In about 2010, FAJ met PM through an internet poker site. Although PM lives in the United States, a friendship, then a romance, developed. FAJ and PM have never met, but exchange regular emails, telephone calls and electronic greetings cards.
Between June 2011 and August 2013, FAJ ‘loaned’ PM a great deal of money.
FAJ is convinced that the loans are secure. She steadfastly believes in the genuine nature of PM; she considers that she is engaged to him and will marry him.
FAJ’s family, friends, the Queensland Police Fraud Squad and the Federal Bureau of Investigation in the US are all of the view that PM is a scammer/confidence trickster who has exploited FAJ’s kind nature and her circumstances.
THE APPLICATIONS
On 10 September 2013, the Tribunal received applications seeking the appointment of an administrator and a guardian as well as interim orders for FAJ.
On 11 September 2013, the Tribunal appointed FAJ’s son, LR, as plenary administrator and the Adult Guardian as guardian (for accommodation, health and service provision) under an interim order[1].
[1] See Guardian and Administration Act 2000 s 129.
Due to the emergence of an Enduring Power of Attorney dated 23 July 2013[2], the interim appointments were reviewed by the Tribunal on 14 October 2013. The appointment of LR was continued, that of the Adult Guardian revoked.
[2]in which FAJ appointed a Southport solicitor, SJR, as her attorney for personal, health and financial matters.
On 9 October 2013, the Tribunal initiated an application for an order about an Enduring Power of Attorney.
The three outstanding matters were heard in Southport on 21 November 2013.
FAJ’S FINANCES
I first considered FAJ’s financial history and present circumstances.
When FAJ was widowed in 2009, her estate included her principal place of residence, an investment property[3] and several other cash and shares investments.
[3]sold in June 2012; an equivalent amount of funds sent to PM within two months.
The records provided by LR[4] suggest that a large amount of money was transferred to PM in 2011/13.
[4]in his capacity as interim administrator.
As security against these funds, FAJ is, or has been, in possession of three promissory notes. She is also mentioned in PM’s will and is named as the beneficiary of a life insurance policy.
By June 2013, FAJ was short of funds and was unable to pay her body corporate fees and council rates. She was close to the maximum limit on her credit cards and had resorted to asking friends for loans to pay bills[5]. At about the same time, she applied (unsuccessfully) to three major banks for a large loan[6].
[5]including funds to pay her gas bill.
[6]initially saying this was for living expenses. A bank in Southport have advised that their lending specialist was told by FAJ that the money was for ‘personal use to send overseas’.
On 10 July 2013 FAJ asked a neighbour for a loan, offering to pay it back in 2-3 weeks.
In mid-July 2013 FAJ put her unit on the market[7]. This eventually sold[8]; the funds are currently invested in a high interest account. She is now residing in a rental unit in the same block.
[7]news of FAJ’s intention to sell this unit precipitated the applications to the Tribunal.
[8]under the administration of LR.
FAJ had planned to rent in joint names a unit in the same building whilst PM applies for citizenship. She has opened a bank account for his pensions, and has said that his (Australian) visa is ‘all ready to come’.
A detailed financial management plan prepared by LR in November 2013 estimates FAJ‘s current assets. She currently has no CentreLink entitlement and is operating a deficit budget per fortnight.
In addition, the joint executor of her late husband’s will, has advised that FAJ may have breached the intent of a will agreement with her late husband by giving away substantial amounts of money without security and without consulting the joint administrator.
THE VIEWS OF THE PARTIES
The Tribunal file is unusual large in that it contains many hundreds of pages relating to this case. Many of the documents are copies of emails between FAJ and PM; many more are between FAJ and her family.
These reasons are limited to issues relevant to the Queensland legislation and the role of the Tribunal. In the interest of some brevity, reference is made only to limited examples.
I considered the views and opinions of the various parties, including three health professionals.
FAJ
PM
FAJ is clearly very much in love with PM and has been for a couple of years. She has described him as a retired criminal lawyer who has assets in the US. She believes that he is single and lives on his own.
She trusts him absolutely, and never doubts him. She advised the Tribunal in late November: ‘we talk almost every day, and email almost every day. We have made vows over the phone to love each, unconditionally forever’. FAJ has every expectation that they will marry.
She writes to a daughter on 25 October 2011: ‘He has asked me to say nothing to my ‘kids’ about his past. He is not a con man. He is so genuine. We will base our relationship on honesty & trust & love. He is lonely, & I have realised I am too… He has given me a purpose to live, & he makes me laugh’.
The sentiments expressed to a daughter in February 2012 are repeated in November 2013: ‘I would not have a (diamond engagement) ring on my finger, a diamond chain (our names engraved on it) my cupboard half full of his clothes, his canister, with his antiques and personal things stored (in Queensland), and lot of photos, …if he was not genuine’.
On 12 February 2013 FAJ stated to LR: ‘in two months I should have the estate as it should be’, ‘helped each other get over our spouses death’, ‘PM has perfect police records’, ‘our love is based on complete honesty’.
She emails a friend on 4 August 2013: ‘To me: Fraud would be misuse of money I have loaned him. He has had a hard 2 years, and I feel I am aware of where the money went. If, on the other hand, he gambled it, or went on holidays with it etc and did not use it for the purpose it was intended, that I would call it fraud or “scam”’.
She has unfailingly believed, since 2011, that PM will visit her in Australia. Multiple emails to her family advise that PM will be here in a few weeks or months. PM has not yet visited. FAJ accepts, with seeming equanimity, ongoing cancellations to his plans to visit her.
The reasons for the loans
Since 2011, FAJ has given a plethora of reasons for the loans and as to why PM needed money. These include:
a) PM was involved with ‘Mafia’, or money lenders. He had had to do legal work for them, as he had borrowed money from them at a rate of 37%, which took up 80% of his expendable income;
b) PM had laundered money for the Mafia and needed money for broker to move an embezzled (by him) funds from Rio to the Cayman Islands;
c) Due to his involvement with the Mafia, PM’s life is (intermittently) in danger; PM will be shot if he attempts to leave the US for Australia;
d) PM had lost a lot of money over the death of a wife (some years ago), and had spent considerable funds educating his five children.
She writes to the Tribunal in November 2013: ‘PM never asked me for money but I lent him money to pay back debt, as well as 2 operations, and credit card debts and different taxes’. She explains that PM has had seven operations over the past 12 months, and three heart operations the year before.
The security of loans
FAJ has steadfastly maintained her conviction that the loans are secure: ‘We felt we took sufficient security and always intended to repay the full amount before we established our lives’.
She is confident that PM has assets including property in the US and that ‘We will sell up PM’s properties and assets to pay it all back’.
She writes to LR in late 2013:
a) ‘PM and my goal has always been to replace the money. I must sell the unit to achieve this goal. It will not make sense to you, but at the end of the day, all the money will be in place again, and I can move onto a new life with PM. It will all be done via my Solicitor with pre nups etc…’;
b) ‘I did not sell my abode because I was broke. PM would have supported me. I sold it to get our immigration plans ‘on the road’. I know exactly what this matter was about…. He offered to go to work and support me, and gradually pay me back. I have evidence of that’;
c) ‘I did not intend to give my unit proceeds to PM. As PM said he would not be borrowing any more money’;
d) ‘I have not diminished my ‘estate’ on purpose, as I have always had security provided to me. I am prudent enough to safe guard my own finances, until PM pays me back and we prove our love and commitment’.
PM
In numerous emails to FAJ, PM professes his love for her. His plans for any future with her are however very unclear.
Information provided by PM to an agent of the FBI on 29 August 2013 includes that he ‘is “waiting” to figure out what to do in regard to the relationship’.
In the same interview, PM informed:
a) he owes FAJ about a great deal of money;
b) most of the money received went to gambling slot machines, although some had been used to pay off (gambling) debts;
c) he is planning to pay everything back to FAJ with his future gambling winnings.
In the hearing on 21 November 2013, PM again admitted (under oath) that he had gambled away all the funds received from FAJ.
He described himself as a professional gambler and acknowledged a gambling addiction. He informed that he is now seeking counselling for this addiction, and would not be seeking any further funds from FAJ.
The evidence on file supports that PM has had a history of failed businesses and bankruptcy in Canada in the 1990s. His criminal record in the US includes arrests for deceptive practices, computer fraud, theft, unlawful use of a weapon and impersonation.
The information available also strongly suggests that PM is married[9], and lives, as he has done for some years, with his wife in a jointly owned property in Illinois, US.
[9]denied on 21 November 2013 by PM, who informed that his long term co-habitation with PR is only an arrangement to allow him (a Canadian Citizen) to live in the US.
The Family
Although her family acknowledges FAJ’s depth of love for PM, they (in particular LR) have been concerned about the financial aspects of FAJ’s friendship with him for some years.
In 2011, FAJ asked LR for a loan for PM; this was refused.
From 2011 to 2013, LR has, at his own expense, undertaken various and substantial research and investigations into PM, his background and circumstances.
The family are convinced that PM has continually lied to FAJ and that he is able to convince FAJ of anything he chooses and engages in ongoing manipulation of her.
By November 2013, LR and the family are convinced that FAJ demonstrates an ‘inability to rationalise, …(an) inability to understand and analyse the proof she has been given, … reckless behaviour with money, … lack of understanding of the consequences of what she has done’[10].
[10] Reference and Information File – FAJ, 9 October 2013, LR.
They claim that FAJ has a propensity to change a story to suit the situation and a willingness to fabricate to protect PM and convince herself that everything is ok.
Over the past couple of years, the family have made in vain many attempts, different approaches and coordinated efforts to convince FAJ that the evidence they hold is valid.
The Friends
The concerns of several friends are documented in the Tribunal file.
One emails LR on 7 August 2013: ‘I still think she is completely brain washed by this PM, he tells her anything and she believes it, sends her more 123 cards[11] and she is completely won over’.
[11] an electronic greeting card.
Another writes to LR on 16 August 2013: ‘(FAJ) changes as soon as she speaks with PM - … I think it will take losing everything before she does (recognise the fraud)’.
The Attorney/Solicitor
SJR believed that FAJ ‘is a competent woman who is probably making bad financial decisions’. He also considered that FAJ believes wholeheartedly in PM.
The Medical Evidence
In a letter dated 6 September 2013, Dr RO, general practitioner for many years, writes: ‘In the past year, FAJ refused to accept medication to assist her depression and has now displayed that she has lost capacity to deal rationally with matters associated with everyday life’.
Dr RO, aware of the funds transmitted to PM, continues: ‘It is my professional opinion that FAJ has lost her insight and is not capable of differentiating between reality and fantasy’. ‘I can confirm that her behaviour is not that of a person who has the current capacity to understand what the consequences of her actions are going to do to her’.
Dr WM, psychiatrist, consulted FAJ on 13 and 16 September 2013. In letters dated 16 September and 9 October 2013, he states that FAJ is not suffering from a psychotic illness or a major psychiatric illness. She is stressed, but not currently depressed.
He writes on 9 October 2013:
No evidence of any cognitive impairment or a dementing process. Whilst there is no psychiatric illness that would impair FAJ’s ability to manage her money, she has demonstrated poor judgement with respect to giving money to a fellow whom she has met on the internet. She is in a state of denial and does not believe the evidence presented to her…
Dr ZJ, consultant psychiatrist, provided a letter dated 29 October 2013. He writes:
No defect in memory, orientation, reasoning or judgment…FAJ suffers no recognisable mental illness and shows no cognitive impairment. The issue is one of her steadfast faith in the genuine nature of PM. It appears prudent to safeguard her finances until it is established that she is not a victim of misplaced love, faith and generosity.
I note that FAJ challenges the veracity of the health professional reports. She is convinced that, influenced by LR and his legal counsel, GC, they changed their minds. Dr RO was told what to write, and Dr WN was coerced to alter a report to suit LR and GC.
CAPACITY
Under the provisions of the Guardian and Administration Act 2000, the Tribunal must be satisfied that the adult (FAJ) lacks capacity for the matter before it can consider any need for an appointment[12] and the appropriateness of any proposed appointee[13].
[12]compounded in this case by EPAs.
[13]sections 12 14, 15 and 16 of the Act apply.
FAJ is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand.
Capacity for a person for a matter[14] means the person is capable of:
a) understanding the nature and effect of decisions about the matter;
b) freely and voluntarily making decisions about the matter; and
c) communicating the decisions in some way.
[14]schedule 4 of the Act.
Decision-making is not abstract. Capacity is a functional concept, related to a person’s ability to identify, understand, evaluate, retain and process relevant information in making a choice between options for action and the ability to cause that decision to be put into effect. It is also decision specific.
The current protective legislation in Queensland recognises that the right to autonomy in decision making must be balanced against the right to protection and that the decision-making capacity of each person very often varies across different types of matters. The Tribunal must also recognise that an individual’s right to make decisions includes the right to make decisions with which others may not agree[15].
[15]section 5 of the Act.
The Tribunal’s role in this respect involves the application of the law to relevant facts about the person’s personal and medical history and the probable effects of that on growth and/or deterioration of capacity to understand and make decisions on the type of matters under consideration, the nature and complexity of those matters, the awareness of and access to adequate knowledge about the matter, and the familiarity and experiences of the person with processes for making that kind of decision.
The Tribunal must also take into consideration the circumstances that give rise to the need for a decision, the extent to which reliable advice and other kinds of support[16] are available, likely influence by or interference from other people, and the prevalence of other problems and pressures.
[16]section 5 of the Act.
The evidence in this case has come from a variety of sources and varies greatly in relevance and reliability; it is also sometimes related to different aspects of the matter.
Financial Matters
Does FAJ understand the nature and effect of decisions about the matter?
Essentially, this element of capacity is a process-based criterion, the process being the bringing to bear of the information that is needed to make the decision. The use of information in a decision making process may not necessarily always be conventional but should be at least rational.
FAJ has stated that she does not intend to lose any of her money. She considers that the significant funds provided to PM are loans. FAJ has based her belief that these are secure by way of the promissory notes, PM’s commitment to her, his will and life insurance policies.
Firstly, an examination of the three promissory notes raises a number of significant concerns. The first dated 18 October 2011 to be repaid in full by 25 February 2012, is poorly written, convoluted, very difficult to understand and largely nonsensical. The security offered and an additional lien are at the least dubious[17]. The second, dated 5 December 2012 to be repaid by 5 June 2013, offers no security at all.
[17] searches by LR indicate that the lien is almost certainly fraudulent.
The third note dated 1 November 2013, to be repaid in full on June 2014, is secured by ‘any and all assets belonging to Mr PM. In the event of PM’s death prior to 39 June 2014, FAJ is named as sole beneficiary to ‘certain life Insurance policies’[18]’.
[18]investigations by the family indicate the maximum pay out by one policy. There is no evidence before me of any other policy.
FAJ, when questioned on 21 November 2013, expressed no concerns with regards to PM’s failures to honour his promises to repay the first two notes on time. Her response was that it was all ok because she trusted him and new arrangements had been made.
There is no evidence before me to indicate the extent of PM’s assets; FAJ is unable to provide any details of these.
Secondly, on the evidence before me, I also consider that PM’s long term commitment to FAJ is extremely uncertain.
Finally, I do not accept that a will and life insurances can be considered as security, particularly for large sums of money. A will can be easily changed or replaced, a life insurance policy is not guaranteed and a nominated beneficiary can be easily changed.
Discussion
FAJ clearly fails to understand that the promissory notes do not offer reasonable, probably any, security for the large sums of money involved.
FAJ has relied solely on her trust of PM. She has not questioned or analysed the notes, and despite numerous urgings by her family, has not sought any legal or other independent opinion or advice as to the security of the loans, or how she might eventually recover the balance of them. She has not challenged why two of the promissory notes were not honoured on time.
FAJ attempts to obtain from a neighbour a large loan at a prohibitive interest rate and a short repayment time would suggest some irrationality in her decision making.
The effects of the loans have had a significant impact on FAJ’s lifestyle. In 2009 she was in comfortable circumstances; her home is now sold, she lives in a rented premises and has very limited income and a significantly deficit budget.
Unless restitution of her capital funds can be made, FAJ faces an ongoing and permanent deterioration in her standard of living.
FAJ remains convinced that PM will pay back all the loans and all will be fine.
Is FAJ able to freely and voluntarily making decisions about the matter?
The Tribunal generally has interpreted this to mean that, when making decisions, the adult is not subject to undue influence and that the decision is indeed that of the adult and of no one else.
In law, the doctrine of undue influence refers to a situation where the weaker party is influenced into entering into an agreement[19]. Mason J stated[20] that with undue influence: ‘… the will of the innocent party is not independent and voluntary because it is overborne’.
[19] see for example Commercial Bank of Australia Ltd v Amadio(1983) 151 CLR 447.
[20] at 471.
In respect of the Queensland legislation, I endorse the views of the Tribunal in ZJ[21] to the effect that the free and voluntary aspect of the definition of capacity relates to volition and whether a person’s free will has been so overborne that there is an inability of that person to make up his or her own mind and to make his or her own decisions.
[21] Re ZJ [2006] QGAAT 36.
LR, her family and friends are convinced that PM is so doing. The inference is that FAJ has no choice but to abide by the decisions made for her by PM and has little or no say in decisions that should have been hers to make.
FAJ considers that she is making her own financial decisions.
Discussion
FAJ’s statement[22] that ‘PM never asked me for money’ may be accurate. It would seem however highly unlikely that FAJ would have randomly send funds to him without some strong motivation to do so. If requests were not made directly, it is highly probable these were made indirectly, possibly in some surreptitious and/or insidious way. The fact that the loans were for so much, were made over such a long period of time and for such diverse reasons infers that FAJ was persuaded of PM’s need for money.
[22] see [33] of these reasons.
The propensity of FAJ to change her mind once she has emailed or spoken to PM is evident throughout many of the documents on file.
One example occurred in July 2013 when FAJ was persuaded by a friend[23] that she might be a victim of fraud. FAJ made a complaint to the Queensland Police Fraud Squad. This was withdrawn within 24 hours and the QPS told by FAJ not to interfere with her private affairs. A daughter considers this was after FAJ had discussed the matter with PM[24].
[23] a spokesperson for a Victims of Crime Support Group.
[24]email to LR dated 24 July 2013 ‘by the morning she had spoken to him on the phone and he yelled at her and hung up’.
Is FAJ able to communicate the decisions in some way?
There is no doubt that FAJ has the capacity so to do.
Conclusion
I have two essential sources of evidence: that in support of FAJ’s capacity, which includes her own views and those of SJR, and that of LR, other members of FAJ’s family and the three health professionals which do not.
For the reasons set out in the following paragraphs, I put far greater weight on the opinions of LR, the family and of the health professionals. There is no logical justification for me to favour the largely unsubstantiated assertions of FAJ.
I consider that LR in particular has gone to extraordinary and well justified lengths to protect his mother and her assets and to produce reliable evidence. He is clearly not motivated by any self-interest, and shows genuine and considerable concern for the wellbeing of his mother.
The persistent efforts of her family, in particular LR, to convince FAJ of the risks she is taking with her finances are impressive and are well documented in the documents on the Tribunal file.
I find that the evidence establishes that:
a) PM has obtained and gambled away funds belonging to FAJ. He is, by his own admission, a gambling addict, and has deliberately misled FAJ on numerous occasions;
b) FAJ is in denial and won’t recognise her situation. She remains convinced that PM has never lied to her or deceived her in any way and that there has been no fraud involved. She has however been unable to provide the information she asserts will prove this. Reference is made again to FAJ’s statement (as quoted in [30] above);
c) FAJ continued, until intervention by the Tribunal, to make loans, in the belief that they would lead to a long term committed relationship with PM. There was a considerable risk that she would have used the proceeds of the sale of her unit in the same manner;
d) FAJ does not believe the plethora of evidence presented to her. She has failed to recognise that the matter bears all the hallmarks of a classic internet (dating) scam;[25]
e) she is convinced that she is able to differentiate between reality and fantasy in that she talks to PM on the telephone almost every night and morning, and that is real.
[25]See for example: >
Concern is however not simply with the loans. Although these are extraordinary large, they can be measured in more than money terms. They have caused substantial prejudice to FAJ’s financial circumstances and significant ongoing damage to her relationships with her children and friends. FAJ continues to demonstrate no insight or apprehension about these consequences.
I find that FAJ demonstrates impaired reasoning, judgment and persistently limited insight. As a result, she is vulnerable to exploitation. Her beliefs and behaviour in regard to PM have the potential to place all of her assets and finances at risk.
Time after time she has disregarded the advice and recommendation of people who genuinely care for her and been easily led into placing her trust in a person she has never met, and consequently making misguided decisions about her life (and specifically her finances).
[100]I find that FAJ does not understand either the nature of the matters or the consequences of the decisions or choices that she makes. I also find that PM is exerting control over and influencing FAJ to the extent that he is preventing her from freely and voluntarily making decisions.
[101]I determine that FAJ does not have the capacity to make decisions about financial matters.
Personal and Health Matters
[102]There are inferences throughout the documents on file to support that there are difficulties with regard to FAJ’s capacity to make personal decisions.
[103]Many of FAJ’s personal matters, particularly with regards to her future accommodation options, are closely enmeshed with her financial situation. Many of the concerns expressed, particularly by her family, apply as well to her personal matters.
[104]Much of the information provided by LR and her family implies that they consider that FAJ’s ability to make all of her own personal and health is at least compromised. The level of influence that PM is able to exert on FAJ across all domains of her life remains of significant concern to them.
[105]Dr RO, the health professional who has known her for many years, is convinced that she ‘lost capacity to deal rationally with matters associated with everyday life’.
[106]It is clear that FAJ continues to hold false ideas and beliefs over a broad range of issues and matters. She remains fixated that PM is always right and that at least two of the health professionals were unduly influenced, coerced by LR and GC. She is convinced that many of Dr RO’s comments are fabricated and are lies. She continues to be adamant that the FBI is lying.
[107]FAJ’s intermittent suicide ideation and threats over the past few years are arguably indicators of some lack of insight and rationality.
[108]Her decision to appoint a stranger, albeit a solicitor, as her attorney for all matters could be described as impulsive and lacking some insight[26].
[26] see also [130].
[109]I am satisfied on the evidence of LR and the family and Dr RO in particular that FAJ cannot understand the nature and the consequences of decisions she makes about personal matters when factors involving her relationship with PM have a bearing and impact on those decisions.
[110]I find on balance that FAJ does not have the capacity to make comprehensive decisions about personal and health matters.
Conclusion
[111]This case is unusual as there is no underlying broad category of disability which explains FAJ’s lack of capacity as described above; the three health professionals support that FAJ is not suffering from any recognisable psychotic illness, a major psychiatric illness, any cognitive impairment or a dementing process[27].
[27]There is no evidence that FAJ is afflicted by any other of the other broad disability (acquired brain injury, intellectual, alcohol/drug related or other disabilities such as infection or unconsciousness) commonly seen by the Tribunal.
[112]The existence or absence of a diagnosis of a medical condition is not however determinative of impaired capacity: it is merely one factor taken into account when the Tribunal considers how a person’s functioning is impaired in the decision making process about a particular matter. Although, for example, a mental disorder causing acute or chronic impairment of cognitive functioning might compromise capacity, incapacity cannot be assumed solely because of such a diagnosis.
[113]I find that FAJ has impaired decision making capacity for financial, personal and health matters.
[114]The presumption of capacity for all matters is in her case rebutted.
THE ENDURING POWER OF ATTORNEY DATED 23 JULY 2013
[115]The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
[116]Many adults with impaired decision-making capacity do not need a guardian or administrator appointed because their family, friends and support network help them deal with important choices, such as where they live or how to arrange their financial affairs.
[117]The fact that in this case there are Enduring Powers of Attorney involved is especially relevant in determining how best FAJ’s needs should be met.
[118]FAJ has executed two enduring powers of attorney; the first on 1 June 2010 appointed her four children jointly for personal, health and financial matters. The document was associated with an advance health directive.
[119]On 23 July 2013 she made another EPA appointing a solicitor, SJR, for personal, health and financial matters with the financial power to start immediately. On the same day she revoked the 2010 EPA.
[120]FAJ’s family are convinced that EPA dated 23 July 2013 ‘is void’ mainly because they consider that FAJ did not have the capacity to execute the document at the time.
[121]The definition of capacity in the Powers of Attorney Act 1998 (POAA) is the same as that in the Act. In determining a principal’s capacity to make an EPA, the Tribunal must turn to section 41 of the POAA which outlines the various matters that a principal must understand.
[122]Section 47(1) provides that a principal may revoke an EPA in writing only if the principal has the capacity necessary to make an EPA giving the same power. In other words, the same test applies for both the capacity to make and to revoke an EPA.
[123]The witness to the execution of an enduring document, not (despite the family’s views) the attorney SJR who accepted the appointment, has a statutory duty to certify that the principal appeared to have the capacity necessary to make the document[28]. The witness to the EPA and the revocation dated 23 July 2013 was BT, the Practice Manager at SJR’s law firm.
[124]BT has provided information to the Tribunal outlining her background and experience and her modus operandi when witnessing an EPA, an affidavit and a copy of her notes from 23 July 2013.
[28] POAA s 44(4).
Discussion
[125]I determine that FAJ had the capacity to execute the EPA on 23 July 2013 for four main reasons:
[126]Firstly, BT, as a Commissioner for Declarations, is an eligible witness[29], and has witnessed many EPAs. Her notes from the day confirm that she had considered section 41 of the POAA, and had followed the Office of Adult Guardian capacity guidelines[30] for witnesses of EPAs[31]. In so doing, she satisfied the standard of competence and diligence that a member of the public is entitled to expect[32].
[127]Under the circumstances, I am able to rely on the witness’ certification as evidence of the principal’s capacity to make the document.
[128]Secondly, I consider that FAJ‘s reasons for changing her EPA are reasonable under the circumstances.
[129]FAJ informed on 21 November 2013 that she had changed her EPA to appoint an attorney geographically closer to her. The documents on file however evidence that FAJ went to a seminar on wills and EPAs in July 2013 and then decided to change her EPA in order to ‘be rid of her family’s (particularly LR’s) control’. Given the level of inter-family tensions at the time, her decision to change the attorneys (per se) is understandable.
[130]She explained on 21 November 2013 that she had met SJR before and had liked him. She felt she could relate to him far better than she could to LR.
[131]Thirdly, given the evidence of the witness to the EPA, there is no evidence on which I can be satisfied that FAJ did not understand the issues in s 41. There is no evidence of any influence from PM in this matter.
[132]Finally, FAJ is presumed to have capacity to execute an EPA in accordance with the general principles of the POAA[33].
[133]I am satisfied that the EPA dated 23 July 2013 is valid.
[29] POAA s 31.
[30] adopted by the Queensland Law Society.
[32] see POAA schedule 1, s 1.
It follows that the revocation made on 23 July 2013 of the EPA dated 1 June 2010 is also valid. It should therefore be noted that the EPA dated 1 June 2010 is no longer in existence and cannot be reactivated.
THE ATTORNEY SEEKS LEAVE TO RESIGN
[135]SJR, when he accepted the appointment as attorney for FAJ, did not know her personally and had previously met her only on one occasion. He was at the time aware, but seemingly not too concerned[34], about the large sums of money being transferred by her to PM in the US.
[34]on 10 October 2013 SJR writes ‘surprised’. He seemingly accepted these and made no further efforts to investigate.
[136]By 21 November 2013, it had become abundantly clear that the attorney’s lack of knowledge of FAJ, the complex issues surrounding her finances and the significant ongoing challenges involved would have made his job extraordinarily demanding. SJR advised that he no longer wished to hold any responsibility as attorney for FAJ, and summited a verbal application to resign.
[137]Under the circumstances, I granted him leave to resign[35].
[35] in this case, section 82 of the POAA applies.
[138]I therefore also revoked the EPA dated 23 July 2013.
IS THERE A NEED FOR A GUARDIAN AND/OR AN ADMINISTRATOR, AND WHO SHOULD BE APPOINTED?
[139]As stated before, the Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
[140]There appears that at present there is no need for a substitute decision maker for personal and health matters[36]. The Adult Guardian (in a report dated 11 October 2013) informs that no concerns were identified by the Adult Guardian and no decisions were made under the interim appointment 11 September to 14 October 2013.
[36] section 12 of the Act applies.
[141]The Adult Guardian advises that although GC was in support of the need for a guardian at the time, LR considered that there would be no need if FAJ’s finances were secured.
[142]The attorney stated on 21 November 2013 that he had made no personal or health decisions under the EPA dated 23 July 2013.
[143]Although there is at present, due to its revocation, no EPA in existence, it is clear that her family are committed to her wellbeing in every way, and will make every effort to assist where and when possible. In the hearing on 21 November 2013, FAJ welcomed this.
[144]The family will have the informal authority to act as FAJ’s statutory health attorneys should the need arise in the future[37].
[37] see POAA ss 62 and 63.
[145]I find that FAJ has no outstanding personal or health needs at present which warrant the appointment of a guardian. The least restrictive option for FAJ is that the application for the appointment of a guardian is dismissed.
[146]As detailed above, there is a clear need for the formal appointment of an administrator for all financial matters. Without an appointment, there is likely to be unreasonable risk to FAJ’s finances, her financial needs will not be met nor her interests protected.
[147]There are two options for appointment as administrator. The first is LR as per the application, the second the Public Trustee of Queensland (PTQ)[38]. Under most circumstances, a family member is always the preferred option.
[38] see Section 7 (g) of the Act.
[148]LR clearly demonstrates his competency to perform functions and exercise powers under an appointment order. His submissions and returns to the Tribunal are to be commended in terms of their thoroughness, detail and clarity.
[149]The events of the past few years have however resulted in a significant deterioration in what appears to have been a close and positive relationship between FAJ and her family. FAJ is particularly antagonistic at present towards LR.
[150]She has strongly resented his efforts to protect her and seems to blame her difficulties on the interference of LR and the family; she is clearly distressed by LR’s (at least interim) authority over her. She writes to him: ‘I feel I’ve been railroaded by my family and GC. I am furious re the situation and the lies told, I can’t stand ... your powers over me…’. ‘I don’t trust you. You will not act honestly’.
[151]She also considers that ‘…with LR as administrator... I find it is dividing my family more than ever and I am having many clashes with him’.
[152]Although I recognise that FAJ’s views are probably not accurate or realistic, they are however very real to her.
[153]When the option of the independent PTQ as her administrator was discussed with FAJ on 21 November 2103, she expressed enthusiasm for this, and great relief.
[154]I consider therefore that the PTQ is more appropriate[39] as FAJ’s administrator at present.
[39] section 15 of the Act.
[155]This will allow FAJ some independence from her family, and hopefully the opportunity for her and the whole family to rebuild trust and to re-establish the quality of their previous relationship.
[156]Orders are made accordingly.
[157]The Tribunal would welcome an application for a review of the appointment of the PTQ should FAJ’s circumstance change[40].
[40] QCAT Practice Direction 8 of 2010.
[158]Finally, it is appreciated that FAJ has been subjected to high levels of stress and anxiety over the last few months, culminating in what must have been a very difficult hearing for her.
[159]The future of her relationship with PM is very unclear; the decisions of this Tribunal today may well have a negative and potential risky impact on FAJ.
[160]The family are well aware of this.