H
[2014] QCAT 615
•26 November 2014
| CITATION: | H [2014] QCAT 615 |
| PARTIES: | H |
| APPLICATION NUMBER: | GAA1421-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 October 2014 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Lewis |
| DELIVERED ON: | 26 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Public Guardian is appointed as guardian for H for decisions about the following personal matters: (a) Accommodation; (b) With whom H has contact and or visits; (c) Health Care; (d) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 3. The Public Trustee of Queensland is appointed as administrator for H for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 7. That before 25 March 2015 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the Register of Titles a copy of this order and a notice to the Registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) A copy of the lodgement summary form from the Titles Office registry confirming the notice has been lodged for each property held by the adult; and (ii) A copy of the current titles searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: |
| (a) Give a copy of this order to the Registrar of Titles and (b) Give a notice to the Registrar about the changes or the adult’s interest in another property. 9. The following Enduring Power of Attorney for H 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 28 August 2013 appointing W as attorney for financial and personal and health matters. 10. The Tribunal declares invalid pursuant to s 118(1) of the Powers of Attorney Act 1998 the Revocation of Enduring Power of Attorney made by H on 28 August 2013. 11. The following Enduring Power of Attorney for H is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998: (a) The Enduring Power of Attorney dated 11 March 2009 appointing B and A as attorneys for financial and personal and health matters. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – where capacity of principal to execute document is in issue – whether document should be declared invalid – where conflict in medical opinion -where a revocation of power of attorney document should be declared invalid – whether revived previous power of attorney should be revoked. GUARDIANSHIP AND ADMINISTRATION – capacity of adult – where attorney seeks appointment if appointment under EPA is invalid – where previous attorneys seek to be allowed to resume their roles – where there is conflict – where there are allegations of misappropriation of the adult’s money – where each party may have a conflict of interest – appropriateness considerations. Power of Attorney Act 1998 (Qld) ss 47, 110, 111, 113, 114, 116, 118, Schedule 1; |
APPEARANCES:
| H (Adult) |
REPRESENTATIVES:
| H represented by Edward Donegan of Payne Butler Lang |
REASONS FOR DECISION
Mr H, now 73, is a retired professional man, living in the Burnett District with his wife W. He has been married to W for some 30 years.
H was previously married to M, with whom he had two sons, the applicant A, and B.
On 11 March 2009, H signed an enduring power of attorney appointing B and A jointly as his attorneys for both financial and personal/health matters. The document provided that the power for financial matters began immediately. The power for personal/health matters begins only when the principal loses capacity, in accordance with the Powers of Attorney Act 1998 (Qld).
On 28 August 2013, H signed a new enduring power of attorney appointing his wife W attorney for both financial and personal/health matters, again the financial power to begin immediately. At the same time he signed a revocation of the power of attorney made in favour of B and A. Those documents were prepared and witnessed by his solicitor Mr Glen Krebs of Payne Butler Lang.
The solicitors wrote to A on 19 December 2013 seeking information as to the whereabouts of monies from the sale of Harold’s properties in 2009. They wrote again on 23 January 2014, additionally seeking details of transactions made pursuant to the 2009 power of attorney. They wrote to B as well. On 16 May 2014 they wrote again threatening to institute District Court proceedings for recovery of the sale proceeds, and enclosing a draft of a statement of claim. The letters did not say if the instructions were from H, or from W on his behalf.
There was an unpleasant exchange between W, A and B on 5 February.[1] On 10 February, A filed this application with the tribunal, seeking a declaration of invalidity of the 2013 power of attorney and of the revocation document. He seeks that the 2009 document be allowed to stand.
[1]See below.
The first issue then is to determine if H had capacity at the time of signing the power of attorney on 28 August 2013. It will also be necessary to consider that question as at 11 March 2009, and, if it is proposed to make an order appointing an alternative decision-maker, as at the present time.
At the hearing, the tribunal had before it a plethora of documents relevant to capacity. At the conclusion of the hearing the applicant sought that further medical information be obtained, and that has added more material. It is convenient to set out this evidence chronologically.
The applicant’s statement says that H was diagnosed as having the onset of Parkinson’s disease in 2007, although there is no medical documentation for this.
A neurologist, Dr MW provided a letter to H on 16 November 2009 in which he said that he had no concerns regarding his instructing a solicitor or family member regarding financial or other matters. He said however that the position would need to be reviewed at periodic intervals.
An ACAT assessment was carried out in February 2010. This indicated occasional short and long term memory problems, but did not indicate other issues.
His general practitioner is a Dr F. Her patient records were produced.[2] They show a Mini Mental State Examination performed on 7 November 2011, giving a score of 27/30 with the comment that this indicates “no significant cognitive impairment.”
[2]Closing submission of A, exhibit C.
A further ACAT assessment was done on 3 May 2012. The circumstances in which this was done will be outlined shortly. The assessment found that H had short term memory problems regularly, though long term ones never, and hallucinations or delusions, disturbed sleep, depressive symptoms, and disorientation as to time, space and people occasionally.
H spent some six weeks with Tricare in Annerley in 2012. A cognitive test, using the Psychogeriatric Assessment Scales (PAS) was conducted by E R for Tricare on 24 May 2012. That produced a result of 8, where a low score indicates good cognition, and a score over 5 indicates cognitive impairment.
Ms R provided a report in QCAT’s standard form, dated 2 July 2014, but based on her seeing H in May and June 2012. Ms R is a registered nurse and acting clinical manager with Tricare. Her report noted a diagnosis of Parkinson’s disease from 2006, amnesia and short term memory loss. She noted the PAS score of 8/21, and she referred to the Tricare notes which commented on H’s “confusion.” Her summary was that he was not able to make complex decisions for lifestyle/accommodation or financial matters, but could make simple personal and healthcare decisions.
H receives respite care from Blue Care. Blue Care’s patient records were produced.[3] The notes contain a functional profile dated 14 August 2012. This includes a question as to whether the patient could handle his own money, the options being without help (score 2), with some help (1), or completely unable (0). H scored 2. To the question does he have memory problems or get confused, the answer was no. However a further assessment on 25 February 2013 produced a score of zero for money handling, and a yes to the question about memory problems and confusion. There is also a living arrangements profile for February. On the question of decision-making responsibility, it indicates he receives significant informal assistance. The question regarding financial decisions produced the same answer.
[3]Ibid, exhibit D.
There is a further Blue Care functional profile dated 17 July 2013, and living arrangements profile (30 July) on which the results are the same as in February. These results are unchanged again in February 2014.
The Blue Care file also includes a care plan dated 6 November 2012 which includes this comment: “Memory: Client has difficulty remembering some things and states sometimes it takes a little while to get sentences out. Staff … to allow client time to finish what he is saying.” This notation is repeated precisely on 25 February 2013, and on 17 July 2013.
There are also patient notes from an aged care home, G Village, where H stayed from time to time. The notes include: 23/6/13 H grabbed a nurse’s hip and asked for a cuddle; 29/6/13 at 4am he was yelling out and throwing things around his room; 4/9/13 the ambulance called saying they had had a call from H at 10:30 pm saying he was outside the ANZ bank at Springwood – he was on his bed on his mobile phone. On 5 September he was found sitting in the hallway. He suffered regular incontinence, and on 23 December 2013 he was found sitting in a chair with no clothes on and his bed wet.
As noted H signed his new enduring power of attorney on 28 August 2013. The solicitor concluded then that he had capacity for making this appointment. This is discussed later.
Dr F provided a letter, also dated 28 August 2013. This is addressed To Whom it May Concern and reads in full: This is to state that today I have examined Mr H and he is in a fit state of mind to make important decisions about his affairs. This is issued at his request to nominate a new power of attorney for himself.” There is some doubt about the accuracy of the date of this letter, which I will deal with shortly.
Dr F carried out a mini mental test on 26 February 2014, the result being 20/30. She noted that this indicated moderate cognitive impairment. She referred him to a neurologist, Dr JK.
On 6 May 2014, according to the patient record, W spoke to Dr F’s staff and asked for a letter for her solicitors. Dr F wrote a letter on 13 May, in which she said that H had returned a low MMSE score due to his disease and inability to use his hands, that she had referred him to a neurologist as there were legal issues in the family, and that as the score was not a true indicator, she would wait on the neurologist’s review to see if he has capacity to make decisions. She said that in conversation he can follow the topic and make rational statements.
Dr F also provided a QCAT report, dated 16 June 2014. She said in relation to personal and health matters, he was capable of understanding and making decisions, and he could understand and appreciate the consequences. On financial matters she said he had trouble putting his PIN in, due to his Parkinson’s, and with respect to bills, he discusses these but leaves them to his wife. She summarised that he was able to understand all the matters for making an enduring power of attorney, and was capable of both complex and simple decisions across the range.
Dr JK gave a report dated 23 July 2014. He said: “Assessment of memory shows he thinks everything is good but his wife thinks his short term memory is very bad. He is losing train of thought in addition to having expressive aphasia and problem solving is very bad… (he) also admits to visual hallucinations.” The neurological examination noted animal recall at 8 per minute compared with a normal score of 18 or more. He could not do a basic sequence in rhythm. He could not name the Prime Minister or previous Prime Ministers.
Dr K’s opinion was: “I think the diagnosis is fairly obvious and he has Idiopathic Parkinson’s disease with an additional component of fairly significant dementia.”
In addition to the medical evidence there were various incidents related, which also bear on the question of capacity. H owned a house in Rockhampton. He and W had used it as their residence before relocating to the Burnett. One of W’s sons, L, lived in it for a time, and after he vacated, H and A attended at the property to get it ready for rental. L had an old car there which had not been working for a long time, and he was asked to remove it. The house was rented for a while, and then sold in 2009.
H did not tell W that he had sold the house. It was only a couple of years later, when they were in Rockhampton and W wanted to drive past it, that she discovered the house had been removed. H then told her it had been sold but could not give her any satisfactory explanation about the transaction.[4]
[4]W’s statement filed 6 March 2014.
W says that another of H’s properties was sold but she was not advised about that either.
In 2013, the police contacted H about a complaint that L’s car had been stolen from the Rockhampton property. H was unable to recall what had happened to the car, notwithstanding that he had been involved in the arrangements for its removal in 2009.[5]
[5]This and the details of the relocation to Brisbane in April 2012 are from the submission of A and B dated 10 October 2014.
In April 2012, H and W were in Bundaberg. H telephoned A from a toilet block and said he had left W and was getting a bus to Brisbane that afternoon. He was turning his mobile phone off to remain hidden until the bus left. A phoned W’s sister-in-law to advise her to placate any fears for his safety. H arrived in Brisbane the next morning. He was dishevelled, he had urinated in his trousers, he had no spare clothes or any belongings except for his wallet and mobile phone.
As H was insistent that he had left W, A made arrangements for his care and he was eventually housed at Tricare Annerley. It was in this general period that the ACAT assessment was made as mentioned above. Six weeks later, on a Sunday, W arrived at the home and insisted she be allowed to take him home. According to the Tricare notes W raised her voice at the staff quite a few times, they in turn trying to resolve the situation given that A was the attorney. While this was going on, H wandered off. Police located him at an antique shop some 500 metres away.
At the hearing, the tribunal heard from H, from W, and from the solicitor Mr Krebs. It was readily apparent that H’s grasp of proceedings was very limited and confused. At the outset of proceedings, I gave a brief overview of the material before me. When he was asked to comment, he spoke of a man he had not heard of, around August, having had something to say, but he said it was brand new to him. It is possible this was a reference to the signing of the power of attorney in August 2013, but he was unable to explain. He spoke of some three million dollars on a bank computer but that had disappeared and he was left with three dollars. He talked about conveyancing forms, then suggested the forms had changed, and that he had sold his properties in the Burnett. He thought that was in August 2013. W confirmed later that he still owned those properties.
He was asked if he remembered seeing a solicitor in August 2013. He said no, at that stage his sons were getting things to work properly.
When asked what he knew about an enduring power of attorney he said he had learnt a lot in the last couple of weeks. He said it doesn’t transfer ownership, but it’s a device which will smooth income coming in. He then corrected himself and said that was a trust. It appears he had glimpses of his former knowledge of these concepts, but the bulk of it was lost.
He was asked if he remembered seeing a solicitor about a power of attorney in August 2013. He said he thought it was true but he was not sure. He then started talking about some transaction that was he said conducted when he was under a general anaesthetic.
H has clearly been an intelligent man and there are still intimations of a good mind. He can follow an enquiry to a point, and express an opinion, but the continuity quickly breaks down.
W said that H was much better last year. She then told the tribunal that when he was at Tricare in 2012 he had been calling everyone saying good-bye as he said he only had three days to live. She said he was “out of his tree” then. When he had been in the G home the police had asked that his mobile phone be taken off him. She said he had been in G three times for respite. The G records show four admissions, in June, September and December 2013 and May 2014, for periods of about 10 to 12 days each.
When asked about the need for a power of attorney W said that bills weren’t being paid and they had to do something. Money they thought was in the NAB had been taken out. The people who had the power of attorney wouldn’t discuss it. The police, the ANZ Bank, and G urged her to change the power of attorney. She asked, rhetorically, what was she supposed to do?
She said they needed to get a new power of attorney for admission to G, as they couldn’t get a copy of the previous one, in favour of the sons. When asked why, if he had capacity then, he could not have been admitted on his own request, she said G needed a power of attorney just in case.
The solicitor Mr Krebs gave a detailed account of the instructions for and signing of the power of attorney. He saw them for instructions, then prepared the documents and had them signed on the same day, in all taking 84 minutes. He saw H in the presence of W, as H wanted her to stay. They told him about the difficulties with the old power of attorney, with getting bills paid, and of concerns with the sale of Harold’s properties. He said the discussions were with them both. His firm has checklists which were before the tribunal. He told the tribunal that there were some indications of concern. His forms in fact ticked that there were none, though the notes say: “H was a bit slow to understand some of the concepts but after they were explained and thought through he was ok.”
The checklists are long and it would take some time to get through the questions. Asked about who did the talking, he said he would have wanted answers from H. However he also said part of his role was to educate the clients about the document.
He didn’t think it was necessary to get a medical report, that didn’t stand out. He was familiar with Parkinson’s disease and understood that often in the early stages it is mainly a physical disability. There was also the issue of time as the clients had driven some way to see him.
Dr F’s letter of the same day was not produced to him and he was not aware of it. W explained later that the bank had told her if she was getting a new power of attorney they would need a medical certificate, so they had called on the doctor on the way home. She thought H was with Dr F for 15 or 20 minutes.
It is doubtful that Dr F wrote the letter on 28 August. Neither her patient records, nor the Medicare record show an attendance on H that day, although there are consultations a few days before and after. The notes for an appointment on 30 August 2013 say the consultation was for a review, and that a letter was created, To Whom it May Concern. A further consultation on 13 September also refers to the letter and says: “Letter created to. Bank requires same date as the POA signed.”
The obvious conclusion from this is that W asked for the letter a few days after the solicitor’s appointment, but had to go back to get a fresh letter done, dated the day of the power of attorney, and Dr F obliged. The dates probably don’t matter much, except that, notwithstanding the terms of the letter, there is nothing in Dr F’s notes to show she saw H on that day, or did any cognitive testing around that time.
There is also a difficulty with Dr F’s comment about the poor result of the February 2014 MMSE being attributable to physical difficulties with doing the test. On examining the 10 questions H got wrong, only one, drawing intersecting pentagons, had any physical component. The rest simply called for oral responses. Her explanation appears to be making excuses that are not warranted by the evidence. Further, that, and her QCAT report of June 2014 are quite inconsistent with Dr K. Apart from the results of the mini mentals in 2011 and 2014, I do not think much reliance can be placed on her assessment of capacity.
Dr F and Mr Krebs apart, all the evidence suggests a decline in cognition from the beginnings in or about 2009, to definite impairment by middle to late 2012, with further deterioration continuing to now. It is not just the medical evidence, though that is compelling. It is also how he, and W as well, behaved.
The sale of the Rockhampton property is illustrative. He sold it in 2009, but did not tell W. She found out about it in about late 2011, but he could not or would not give a satisfactory explanation. This suggests either he had significant capacity issues then, or he did not want to trust his wife with information about his financial affairs. Both are inconsistent with his later wanting to appoint her, freely and voluntarily, as his attorney.
Similarly the stolen car episode, and the conduct about his decamping to Brisbane suggest serious capacity problems. W’s comment about his state when at Tricare confirms this. Of course he may have improved between then and August 2013, but there is no evidence that he did, nor that it was likely, and the comments from G and Blue Care suggest he did not.
Further, it seems clear from the fact that W needed a new power of attorney for G Village, that he couldn’t manage his own affairs. If he had full capacity he could have insisted that his attorneys forward the document. They confirm they would have forwarded it. W’s conduct of the matter does not suggest she believed he was then capable of handling his own affairs.
While Mr Krebs thought he had capacity, I think Krebs was simply reading too much into H’s ability to agree with what was being put to him. It is obvious from all the information that he had to have things explained to him. Perhaps in his desire to assist and educate, he missed the fact that H was not really able to achieve the requisite level of understanding and voluntariness. Of course Mr Krebs did not have the benefit of all the information before the tribunal.
I also mention a statement by W’s relatives N and O. They said that even in the last six months H had been able to have in depth discussions about current affairs and the like. However they said that he could never cope with stress, he would become vague and not understand the situation he was in. This was compounded at the time he and W were trying to get information from A about unpaid bills etc. While they did not put a date on it, the evidence as a whole would place this observation as prior to the signing of the 2013 power of attorney.
Taking all this into account, I find that H did not have the requisite capacity to make an enduring power of attorney, nor to revoke one, as at 28 August 2013.
I also find that at the present time, the presumption of capacity for both financial and personal and health matters is rebutted.
As to H’s capacity in March 2009 when the earlier enduring document was signed, the best evidence of that is Dr MW’s opinion of November 2009, and I find that he did have capacity for that document at that time.
Section 110 of the Powers of Attorney Act 1998 (Qld) permits an application to be made for a declaration order or direction about something related to the Act and section 118 gives the tribunal power to make such a declaration or order. Section 111 empowers the tribunal to make a declaration about capacity. Section 113 empowers the tribunal to decide the validity of a power of attorney, enduring power of attorney or advance health directive. It does not mention a revocation of an enduring document, but a principal cannot revoke an enduring document unless he has the power to make one.[6] Section 118 supplies the power to make the declaration. I will therefore declare that both the enduring power of attorney and the revocation document of 28 August 2013 are invalid.
[6]Powers of Attorney Act 1998 (Qld) s 47(1).
Section 114 provides that an enduring document declared invalid under section 113 is void from the start.
The effect of these findings and orders is that the 2009 power of attorney is therefore not validly revoked, and, subject to any order I might make, A’s and B’s power as attorneys is again in force. That is the result that A seeks. Mr Donegan submits on behalf of W that, if the 2013 power is invalid, W should nonetheless be appointed as guardian and administrator.
There is no question that H needs a decision-maker. He has property interests, and needs to have his funds managed. Decisions will need to be made about accommodation among other things. The question then is who is the appropriate person for those roles.
There are significant unresolved issues between the parties. W complains that while H’s affairs were in A’s hands, bills were not paid, she could not get adequate contributions to his living expenses, monies were removed from his account, and she could not get satisfactory answers from the attorneys.
She explained that H had various properties and she has property, and superannuation. They have too many assets to qualify for a pension. The intention was to retire on the income stream from these assets. Since two of H’s properties have been sold, his remaining income earning property does not, on W’s evidence, make a sufficient contribution to his cost of living.
Further, she is concerned that the proceeds of the sale of his properties have been placed in a trust from which he receives no or little benefit. She cannot make a decision about his future care if she does not have access to enough of his funds.
A and B agree that the sale proceeds were placed in a trust. However they say that this was at H’s request. The sale of the Rockhampton property was negotiated in full consultation with H, and he signed the contract documents. The contract was signed in about April 2009, and settled in December. The other property settled about the same time and the monies transferred to the trust then. H had inherited these properties from his mother and he expressed the desire, A said, to place the proceeds in a family trust to quarantine them from a later estate claim, and to carry out H’s mother’s wish to benefit her grandchildren. The trustees are A and B.
Some monies have been provided for H from time to time, but none since the 2013 power of attorney. The funds have been invested by way of a loan to A, any interest being capitalised at the end of the loan. He did not want to go into specifics, saying it was a family arrangement and the family was comfortable with it.
Mr Donegan advised that the District Court claim had not been filed, but they were waiting to see the outcome of these proceedings.
There is significant conflict between the parties. In addition to the various matters set out above, A filed a transcript of a recorded discussion between W and him and B on 5 February 2014. They had travelled to H’s house at his request to take him back to Brisbane. The discussion was acrimonious. H said he wanted to go. W refused to let him. She said he was “schizophrenic” and “out of his head”[7] and that it was all about his money. She said they would have to go through solicitors and the matter would be sorted out in court. She accused them of stealing his money, and complained that they wouldn’t give him any money for things he needed. A and B were restrained but had no option but to leave their father there.
[7]In itself illustrative of W’s assessment of his capacity at that time.
They advised that since then they have had virtually no contact with their father. He has put through a couple of calls without W’s knowledge, but they have been unable to call him. W confirmed that she had taken his mobile phone. She said her solicitor had advised her not to allow any contact until this application was resolved.
There is a clear dispute about the disposition of what was H’s money, and the validity of any gift to the trust. The tribunal did not have enough information to resolve this dispute, and in any event it was not strictly the subject of this application. However it is obviously likely that, in the absence of some other resolution, the matter will soon be back before this tribunal, or in the District Court. The interests of W on the one hand and A and B on the other are so diametrically opposed that neither could deal even-handedly with it in the role of H’s decision-maker. Each has a significant conflict of interest.
I accept that there is a benefit in having a family member handing an adult’s affairs, but that must yield to other considerations where the family option raises a serious concern. Further, in the case of W, having regard to her evidence, considering the 5 February conversation, and noting her inability to have sufficient regard to the general principles[8] when acting under her power of attorney, I do not think she would be able to deal with these matters wisely and dispassionately.
[8]Powers of Attorney Act 1998 (Qld), Schedule 1 Part 1.
I propose to appoint the Public Trustee as administrator. That gives the best prospect of managing H’s financial resources in his interests, and will provide an opportunity for a professional examination of the property and trust dealings. Among other things that also gives the best chance of resolving these issues without having the matter end in court.
With respect to personal matters, for essentially the same reasons I will appoint the Public Guardian as guardian. I propose that this appointment extend to accommodation, health, services and, given the difficulties this year, with whom H has contact. Hopefully the family can in this way ultimately all enjoy H’s company without the current rampant conflict.
While I have found that there is no invalidity in the making of the 2009 power of attorney, again for the reasons set out I will revoke that document and let the new appointments attend to the decisions for H.
It may be that when the present issues are resolved, it will be appropriate to have a family member making decisions for H. For this reason, I propose to have the appointments reviewable in 2 years.
0
0
2