GKM
[2012] QCAT 473
•18 September 2012
| CITATION: | GKM [2012] QCAT 473 | ||
| PARTIES: | GKM | ||
| APPLICATION NUMBER: | GAA4846-12 / GAA6009-12 / GAA4848-12 / | ||
| GAA6007-12 | |||
| MATTER TYPE: | Guardianship and administration matters for | ||
| adults | |||
| HEARING DATE: | 8 August and 18 September 2012 | ||
| HEARD AT: | Brisbane | ||
| DECISION OF: | Julia Casey, Presiding Member | ||
| Les Clarkson, Member | |||
| DELIVERED ON: | 18 September 2012 | ||
| DELIVERED AT: | Brisbane | ||
| ORDERS MADE: |
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2. This appointment remains current until
further order of the Tribunal. The
appointment is reviewable and is to be
reviewed in five (5) years.3. The Public Trustee of Queensland is
appointed as administrator for GKM for
all financial matters.4. The Tribunal dispenses with the
requirement for the administrator to
provide a financial management plan.5. The Tribunal directs the administrator to
provide accounts to the Tribunal when
requested.6. This appointment of The Public Trustee
of Queensland remains current until
further order of the Tribunal.7. The following Enduring Power of
Attorney for GKM is declared invalid pursuant to s 113(2) 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 7 June 2012 appointing GT as attorney
for financial, personal and health
matters.
CATCHWORDS:
Capacity of adult – validity of enduring power of attorney – need for guardian and administrator –
appropriateness of appointees Powers of Attorney Act 1998 Guardianship and Administration Act 2000 adjourned until 18 September 2012. The Tribunal made a short order on 8 August 2012 appointing the Public Trustee of Queensland as plenary administrator for the adult and the Adult Guardian as guardian for the adult for matters pertaining to accommodation and health care. The appointments were to remain in place until the finalisation of the applications for the appointment of a guardian and an administrator.
[6] The Enduring Power of Attorney agreement dated 7 June 2012 was overtaken by the making of these appointments.
[7] The matters were finalised as a result of the hearing of 18 September 2012 in Brisbane.
The issues and legislation
[8] The issues for the Tribunal are:
a. Does GKM have capacity for personal and financial matters? b. Is the Enduring Power of Attorney agreement of 7 June 2012 valid? c. Is there a need for the appointment of a guardian? If so, who should be appointed? d. Is there a need for the appointment of an administrator? If so, who should be appointed? [9] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult.
[10] GKM is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
[11] The Guardianship and Administration Act 2000 defines capacity as follows:
“Capacity for a person for a matter, means the person is capable of-
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way”.
[12] The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the Powers of Attorney Act 1998. The Tribunal may make a declaration about the validity of an Enduring Power of Attorney in accordance with section 113 of the Powers of Attorney Act 1998.
[13] Section 41 of the Powers of Attorney Act 1998 sets out the capacity requirements of the principal in order to make an Enduring Power of Attorney.
[14] Section 44 of the Powers of Attorney Act 1998 provides the formal requirements for making an Enduring Power of Attorney.
[15] The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the Guardianship and Administration Act 2000.
[16] If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for GKM, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000.
The evidence
[17] In addition to written material contained on the Tribunal’s file, all of the
parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are outlined below.
Does GKM have capacity for personal and financial matters?
[18] A report dated 18 June 2012 by Dr Raymond Lewandowski, a hospital medical officer, provided that the adult has dementia, a cerebral meningioma, possible depression and a history of multiple cerebro- vascular accidents. Dr Lewandowski states in the report that GKM achieved a score of 10/30 on the Rowland Universal Dementia
Assessment scale on 10 May 2012. In Dr Lewandowski’s opinion the adult
is unable to make and understand the implications of all simple and complex personal and financial decisions as a result of the cerebral tumour and multiple cerebro-vascular accidents.
[19] Further evidence included a report dated 10 September 2012 by Ms Julie Matthews, a registered nurse and the facility manager of the nursing home in which the adult resided. In the report Ms Matthews states that the adult has dementia and has no ability to make either financial decisions or complex personal decisions.
[20] The report of the Aged Care Assessment Team (ACAT), dated 23 May 2012, provides that the adult has been assessed as eligible to receive residential and residential respite care at a high level, as she requires full assistance with all areas of her life. The report indicates that GKM displays confusion, difficulty with orientation (to time, place and person) and short- term memory deficits.
[21] In her oral evidence to the Tribunal GKM submitted that she was able to make her own decisions, however she was unable to name or describe her current and previous accommodation circumstances, or any details about her financial matters (eg assets, expenses, source of income).
[22] Family members and friends of the adult who attended the hearing concurred with the medical evidence.
Conclusion
[23] GKM is now receiving care in a residential aged care facility, having been assessed as eligible to receive high level residential and respite care. Clinical reports indicate that GKM has significant cognitive deficits including short-term confusion and disorientation as a consequence of dementia and the residual effects of multiple cerebro-vascular accidents. Oral evidence of parties attending the hearing was consistent with information provided within the clinical reports.
[24] Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in General Principle 1 of the Guardianship and Administration Act 2000 that presumes that GKM has capacity for personal and financial matters is rebutted.
Is the Enduring Power of Attorney agreement of 7 June 2012 valid?
[25] The Tribunal had the benefit of a report from a medical practitioner who last saw GKM less than 2 weeks prior to the execution of the instrument. In his report dated 18 June 2012 Dr Lewandowski states that GKM has a number of medical conditions, including dementia. He refers to a score of 10/30 attained by the adult on the Rowland Universal Dementia Assessment Scale administered on 10 May 2012 and submits the adult has poor insight and markedly limited ability to make decisions about health care matters, limited to no ability in relation to decisions about lifestyle choices, and he
describes her ability to make decisions about financial matters as “none”.
Dr Lewandowski opines that GKM understands none of the criteria of an Enduring Power of Attorney agreement. In summary, it is Dr
Lewandowski’s opinion that GKM cannot understand and make simple
decisions about health care, lifestyle and financial matters.
[26] Further evidence is obtained within an email to the Tribunal dated 23 August 2012 by Ms Amy Frame from the Community Health Interface Program, (CHIP), at Kingaroy Hospital. In the document Ms Frame describes that on 23 May 2012 the adult was deemed unsuitable for rehabilitation within the Transitional Care Program as she was confused and unable to follow concrete instructions necessary to engage in physiotherapy treatment.
[27] Taking the medical evidence in isolation, the Tribunal would be likely to rebut the presumption that GKM had capacity to execute the instrument. Against this, however, is the evidence of the witness who certified that GKM had the requisite capacity at the relevant time. Does this evidence outweigh the opinion of the medical practitioner?
[28] There are guidelines issued by the Office of the Adult Guardian and published on the web site of the Queensland Law Society that outline recommended procedures for a witness to an Enduring Power of Attorney. They include:
a. Endeavouring to interview the principal alone. This procedure is designed to develop rapport and to establish the context within which the principal has decided to execute the instrument. It also gives the witness the opportunity to ascertain if the principal is subject to influence. b. Making a record of questions and responses. c. Requesting the principal to read the instrument. d. Avoiding closed questions on the basis that responses requiring a yes/no will likely be inadequate to make an informed determination about capacity. [29] In this case, the witness interviewed GKM in the presence of her spouse and his sister. Apart from questions necessary to ascertain appointment details and the powers granted, the other questions asked of the principal
required only (as the witness notes) “one word” answers. The record of
interview does not indicate if the principal read the instrument, although the witness states that she read aloud the elements contained in the Statement of Understanding.
[30] The Tribunal finds that, while the witness may have concluded that the principal had the requisite capacity, her own record of the witnessing process does not, on any reasonable or objective basis, justify such a conclusion. The Tribunal believes the witnessing process was flawed as the evidence indicates that, apart from keeping a record of questions and responses, the recommended procedures were not adopted by the witness.
[31] The Tribunal therefore prefers the evidence of Dr Lewandowski on the
issue of GKM’s capacity. The evidence of the witness is therefore
insufficient to prevent a rebuttal of the presumption of capacity to execute
the Enduring Power of Attorney.
Conclusion
[32] The Tribunal is not satisfied that GKM had capacity to enter into the Enduring Power of Attorney agreement of 7 June 2012 due to significant cognitive deficits associated with dementia and the effects of multiple cerebro-vascular accidents.
[33] The decision of the Tribunal was to declare the Enduring Power of Attorney agreement of 7 June 2012 invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 84(2) of the Guardianship and Administration Act 2000 and then determine whether GKM might require the appointment of a guardian and an administrator.
Is there a need for the appointment of a guardian?
[34] GKM is currently receiving high-level care in a residential aged care facility in Brisbane. Decisions are required in relation to the monitoring of this accommodation and/or the sourcing and monitoring of more appropriate
accommodation as the adult’s care requirements increase.
[35] Decisions in relation to the services provided to the adult will continue to be necessary in order for GKM to receive appropriate and adequate support within her accommodation setting.
[36] GKM has a number of medical conditions (including cerebral meningioma, depression, arthritis, hypertension, gastro-oesophageal reflux and chronic pain) that require management. The evidence is that decisions made under the statutory health attorney regime, prior to the appointment of a guardian for health matters, were not collaborative or inclusive of the
adult’s children, due to long-standing conflict and poor communication
processes between GT and the adult’s children.
[37] GKM enjoys regular contact and visits with family members who are informally arranging separate visiting times. The Tribunal determines there is no need for a formal decision-maker in relation to the type and frequency of visits and contact the adult receives.
Conclusion
[38] Pursuant to section 12 of the Guardianship and Administration Act 2000 the Tribunal is satisfied that there is a need for decisions pertaining to accommodation, provision of services and health care matters, and that
without an appointment the adult’s needs will not be adequately met nor
her interests adequately protected.
Who should be appointed as guardian?
[39] The options for appointment are the Adult Guardian or GT who submitted at the hearing he was willing to act in that role.
[40] In his evidence to the Tribunal GT provided that he thought the adult was assessed as eligible to receive low-level care by the Aged Care
Assessment Team and that he was unaware of the adult’s diagnosis of
dementia prior to the Tribunal hearing of 8 August 2012. He further stated
that he has not discussed the adult’s care requirements with medical or
nursing staff at the adult’s care facility and that he has unsuccessfully
attempted to speak with the manager of the facility in relation to day leave
for the adult. GT told the Tribunal he speaks to the adult’s children “as little
as possible”.
[41] In her letter to the Tribunal dated 23 August 2012 Ms Amy Frame (from
Kingaroy Hospital’s Community Health Interface Program) stated that GT
continually insisted on taking the adult home when the medical recommendation was that the adult receive extensive allied health input due to her de-conditioned state after recent surgery. Ms Frame further
provides in her email that to secure “the best outcome for GKM and her
ongoing care” she “acted as the go between” in relation to GT and the
adult’s children as “there was a lot of animosity between both parties”.[42] The evidence is that ongoing conflict and problematic communication exists between GT and the children of the adult regarding the increasing care requirements of the adult.
[43] The Tribunal is not satisfied GT would fulfill the requirements of an appointed guardian to effectively consult with family members, medical and nursing home staff and to apply the general principles and the health care principle, as required by the Act, in order to make personal decisions for
the adult and in the adult’s best interests.
[44] Section 14(2) of the Guardianship and Administration Act 2000 provides that the Tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
[45] The Adult Guardian is an independent decision maker with extensive skills and experience. The Tribunal is of the view that the Adult Guardian would be able to effectively liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions
that best meet the adult’s needs.
Conclusion
[46] The Tribunal is satisfied the Adult Guardian is the appropriate appointee and appoints the Adult Guardian as guardian for GKM to make decisions about the following matters: accommodation, provision of services and health care.
[47] This appointment is until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 5 years.
Is there a need for the appointment of an administrator?
[48] It is GT’s evidence a Brisbane property he jointly owned with the adult was
sold early in 2012 for $295,000 and that the proceeds from the sale of the
property have been used to purchase a property solely in GT’s name near
Blackbutt for $205,000.
[49] GT further informed the Tribunal that the couple shared cash assets of $52,000 after the mortgage on the Brisbane property had been discharged and all property-related expenses had been paid (eg legal fees, real-estate commission, transfer duty, transfer fees) and that these remaining funds had been spent on renovations to the rural property.
[50] GT provided that the rural property was purchased in his name as it was
“convenient” to do so as the adult was staying with one of her daughters at
the time.
[51] The adult does not have an interest in the rural property that was purchased and renovated with funds from the sale of the jointly held Brisbane property.
[52] The representative of the Public Trustee of Queensland submitted that on
6 September 2012 the adult’s assets consisted of $1,313 held in a joint
account with her husband.
[53] The representative further provided that GKM is in receipt of a Centrelink age pension and her accommodation fees are paid by way of direct debit from the joint account to the residential aged care facility. Liabilities include $60 owing to Mater Pathology and $131 owing in relation to pharmaceutical expenses.
[54] There is a need for an administrator to investigate the depletion of GKM’s
assets, as a result of the purchase and renovation of her husband’s rural
property, with the view to seeking compensation for the adult.
[55] The stripping of the adult’s assets has implications for Centrelink as the
adult’s nursing home fees would have been calculated at the time of her
admittance to the nursing home, based on her financial situation as assessed by the Department of Health and Aging. An administrator will be required to advise the Commonwealth Government in relation to any revised financial position of the adult and to manage the financial
implications of any potential underpayment of the adult’s accommodation
fees.
Conclusion
[56] The evidence is that the adult has assets, income, expenses and liabilities that require management.
[57] An administrator is necessary to investigate the depletion of the adult’s
assets, with the view to seeking compensation for and on behalf of the
adult.[58] An administrator is also required to address the adult’s ability to contribute
to the cost of her aged care.
[59] The Tribunal is therefore satisfied that there is a need for the appointment of an administrator with regard to the provisions of section 12 of the Guardianship and Administration Act 2000.
Who should be appointed as administrator?
[60] The options for appointment are the Public Trustee of Queensland or GT who submitted at the hearing he was willing to act in that role.
[61] GT has provided evidence to the Tribunal that he did not act in the adult’s
best interests when he purchased and renovated a property, to which the
adult had no claim, with the vast majority of the adult’s assets. GKM has
suffered a substantial financial loss as a result his actions, along with a
possible liability in relation to underpayment of accommodation fees.[62] The Tribunal is not satisfied that GT is an appropriate appointee with regard to the provisions of section 15 of the Guardianship and Administration Act 2000.
[63] The Public Trustee of Queensland is an independent and experienced administrator.
Conclusion
[64] The Tribunal is satisfied that the appointment of The Public Trustee of
Queensland is appropriate to ensure that the adult’s financial needs are
met and her financial interests are protected.
[65] The Tribunal appoints the Public Trustee of Queensland as administrator
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing:
GKM adult (by telephone) GT husband and attorney JP son JM daughter-in-law PS registered nurse LR sister-in-law LH husband of LR AT friend WG friend PD witness to enduring power of attorney agreement CC delegate of the Office of the Adult Guardian (by telephone) BS representative of the Public Trustee of Queensland REASONS FOR DECISION
History of the Application
[1] GKM, (the adult), is a 77 year old woman who resides in a residential aged care facility in Brisbane.
[2] On 7 June 2012 GKM entered into an Enduring Power of Attorney agreement appointing GT, her husband, as her attorney for financial and
personal/health matters – with the power for financial matters to begin
immediately.
[3] On 15 June 2012 the Tribunal received an application from JM, the adult’s
daughter-in-law, seeking the appointment of the Adult Guardian as
guardian and The Public Trustee of Queensland as administrator for GKM.[4] On 9 July 2012 the Tribunal received an application from GT proposing his own appointment as the guardian and administrator for the adult.
[5] The matters were partially heard on 8 August 2012 in Brisbane and then
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