HB
[2012] QCAT 68
•1 February 2012
| CITATION: | HB [2012] QCAT 68 |
| PARTIES: | HB |
| APPLICATION NUMBER: | GAA9191-11 / GAA9192-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 1 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julia Casey, Member |
| DELIVERED ON: | 1 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Enduring Power of Attorney dated 2 February 1999 is revoked, pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 84(2) of the Guardianship and Administration Act 2000. 2. The application for the appointment of a guardian for HB is dismissed. 3. The Public Trustee of Queensland is appointed as administrator for HB, for all financial matters, until further order of the Tribunal. |
| CATCHWORDS: | Capacity of Adult – Suspension of Financial Attorneys – Revocation of Enduring Power of Attorney – Need for Guardian and Administrator – Appropriateness of appointees Powers of Attorney Act 1998 |
APPEARANCES and REPRESENTATION (if any):
| HM MT DG and BP DG | Son and attorney Partner of HM Delegates of the Office of the Adult Guardian Representative of The Public Trustee of Queensland |
REASONS FOR DECISION
History of the Application
HB (the adult) is a 72 year old woman who resides in a residential aged care facility in a western Queensland town.
On 2 February 1999 the adult appointed HM, her son, and ND, her daughter, as attorneys for financial and personal/health matters, to act jointly and severally on her behalf. The document provides that the power for the attorneys for financial matters begins “upon (the principal) losing capacity, on the certification in writing by a medical doctor qualified for practice in Queensland or New South Wales”.
On 3 November 2011, pursuant to an investigation, the Adult Guardian suspended the financial attorney’s power to act for a period of three (3) months up to and including the 3rd day of February 2012, and gave notice that The Public Trustee of Queensland was to exercise suspended power for HB for financial matters.
On 10 November 2011 the Tribunal received an application from the delegate of the Adult Guardian, seeking the appointment of the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for the adult.
The matters were heard on 1 February 2012 in Brisbane.
The issues and legislation
The issues for the Tribunal are:
(a) Does HB have capacity for personal and financial matters?
(b) Is there an appropriate current decision-maker?
(c) Is there a need for a guardian? If so, who should be appointed?(d) Is there a need for an administrator? If so, who should be appointed?
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.
HB 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.
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”.
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 an order to revoke all of part of an enduring power of attorney document in accordance with section 116(d) of the Powers of Attorney Act 1998.
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.
If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for HB, 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
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 HB have capacity for personal and financial matters?
A report by the Aged Care Assessment Team, (ACAT), dated 27 May 2009 provided that the adult was assessed as eligible to receive high level, dementia specific, residential and respite care, as she required full assistance with all areas of her life. The report indicated that HB has Alzheimer’s disease and that she consistently displays short-term memory deficits along with disorientation to time and place, in addition to regularly displaying long-term memory deficits. The report stated that while HB is able to mobilize and transfer independently, she requires substantial assistance with showering, dressing, grooming and toileting and that she has the potential “to wander”.
Further evidence included a report dated 21 April 2011 by RP, a registered nurse and the chief executive officer of the nursing home into which HB was admitted. In the report RP states that the adult has end-stage dementia with severe cognitive impairment due to Alzheimer’s Disease and has no ability to make simple or complex personal or financial decisions.
HM and MT concurred with medical evidence. They submitted that when they last saw HB, in April 2011, she did not appear to recognize them and was unable to verbally communicate.
DG, Senior Investigations Officer from the Office of the Adult Guardian, confirmed the finding, as stated in the Adult Guardian’s investigation report dated 3 November 2011, that the adult has impaired decision-making for her personal/health and financial matters.
Conclusion
HB is now receiving care in a residential aged care facility, having been assessed as eligible to receive high-level dementia-specific residential and respite care. Clinical reports indicate that she has a diagnosis of Alzheimer’s disease with significant cognitive deficits including short-term and long-term memory deficits along with disorientation to time and place. Parties attending the hearing concurred with the medical evidence.
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 HB has capacity for personal and financial matters is rebutted.
Is there an appropriate current decision-maker?
In his oral evidence to the Tribunal HM described that he had observed a deterioration in HB’s ability to manage independently in her own home when he visited her in 2007. He observed rotten foods in her refrigerator and burns on kitchen items. He submitted that HB demonstrated confusion with the type and dosage of her medications. It was at this time that a neighbour of the adult had advised him that HB had recently been located at a distance of four kilometers from her home whilst looking for a lost cat. HM stated that during the 2007 visit he made enquiries at the local residential aged care facility in relation to sourcing accommodation for the adult.
HM submitted that ND had been verbally abusive to him when he attempted to discuss the adult’s situation with her at that time. HM stated that he maintained telephone contact with the adult’s general practitioner, staff from Blue Nurses (who provided support services to the adult in her home) and the adult’s neighbour until the adult moved in with ND in 2008.
HM told the Tribunal that he and ND have not been on speaking terms since the adult moved into ND’s property. HM further advised that he did not visit or telephone the adult whilst she was located at ND’s residence.
The evidence is that the adult moved from ND’s residence into the residential aged care facility on 30 June 2009. HM submitted that in March 2011 he was informed of the adult’s relocation by his uncle. He told the Tribunal that he immediately telephoned his brother, who resided in the same town as the adult and ND, who opined that ND may have been using the adult’s money for her own benefit.
It is HM’s evidence that he then requested a copy of the adult’s enduring power of attorney agreement from the legal firm who executed the agreement and that he then presented the document to the ANZ bank. Upon realizing the adult’s funds were nearly depleted he contacted the Office of the Adult Guardian to commence an investigation.
HM told the Tribunal that he has never made personal or financial decisions for the adult as her attorney. He provided that his first and only visit to the adult since she has entered residential aged care occurred in April 2011.
Written evidence in relation to the actions of the attorneys was received by the Tribunal in the form of an Investigation Report dated 3 November 2011 by BC, Investigations Officer from the Office of the Adult Guardian, along with information provided by the representative of The Public Trustee of Queensland. The evidence is outlined below.
On 7 July 2008 a sum of $241,077.92 was deposited into the adult’s ANZ bank account, being the proceeds from the sale of her residential property.
Since that date there have been 94 debits totaling $264,527.75 from the adult’s access advantage account and 80 debits totaling $112,694.97 from her online saver account.
In the period from 17 June 2008 to 17 December 2008 funds totaling $9,920 were transferred in multiple transactions from the adult’s account to “Dinky Di Sheds Affor”. There was also a transfer of $2,893 from the adult’s account in the same period to “Robinson’s Earthworks”. In the investigation report the delegate of the Adult Guardian provided that a shed was constructed on ND’s property at the time of the above transfers. In a “Financial Details Form” dated 22 August 2011, completed by ND and provided to the Office of the Adult Guardian, ND writes “the selling of the (adult’s) house was because Mum was moving in with me and she wanted to put the shed on so we were not over crowded”.
The representative of The Public Trustee of Queensland submitted that from 20 April 2009 to 20 October 2011 there were at least 30 transfers of funds totaling $74,120, to an ANZ account in the ND’s name trading a commercial account. Preliminary investigations by the representative of The Public Trustee of Queensland have identified additional regular transfers from the adult’s accounts into accounts that belong to ND and her husband. The representative further advised that ND has not responded to The Public Trustee of Queensland’s written requests for information in relation to these transfers of the adult’s funds.
HB’s accommodation fees to the nursing home have been in arrears since 5 October 2010. Presently the liability is $10,936. In the “Financial Details Form” dated 22 August 2011 ND advises that she paid $170 of her own funds fortnightly to the nursing home, (being the difference between the adult’s pension and the nursing home fees). ND also submitted that she regularly paid for the adult’s pharmacy expenses that ranged from $20 to $80 monthly.
On 3 November 2011 the Adult Guardian suspended the Enduring Power of Attorney for financial matters on the grounds that a relevant interest of the adult has not been, or is not being adequately protected; the attorney has neglected the attorney’s duties or abused the attorney’s powers whether generally or in relation to a specific power; and the attorney has otherwise contravened the Powers of Attorney Act 1998.
The Tribunal is satisfied that several breaches of the Powers of Attorney Act 1998 have occurred. They are outlined below.
Section 76 of the Powers of Attorney Act 1998 requires that an attorney, when exercising powers under an enduring document, must comply with the principles set out in schedule 1 to the Powers of Attorney Act 1998 being the general principles, and for a health care matter, the health care principle. On balance, the Tribunal is not satisfied that the attorneys provided the adult with proper care and protection, or in a way that was appropriate to the adult’s characteristics and needs, as required by general principles 7(5) and 10 respectively, when the adult’s accommodation, health and well-being were placed at risk as a result of the non-payment of nursing home fees and the accrual of a significant debt to the nursing home.
Section 79 of the Powers of Attorney Act 1998 requires that an attorney must consult with other appointees or attorneys on a regular basis. The evidence is that the breakdown of communication between the attorneys, and their failure to act honestly and with reasonable diligence as required by s 66 of the Powers of Attorney Act 1998, has had contraindications for the maintenance of the adult’s rights along with her personal and financial wellbeing.
The evidence is that the attorneys breached s 73 of the Powers of Attorney Act 1998 by engaging in conflict transactions by using the adult’s funds to construct a shed on ND’s property without ensuring the adult’s interest in the property was protected, and by transferring the adult's funds into the accounts of ND and her husband.
The transfer of money from the adult’s accounts into those of ND represents a breach of s 86 of the Powers of Attorney Act 1998, as the adult’s property was not kept separate to that of her attorney.
It is presumed, in accordance with the provisions of s 87 of the Powers of Attorney Act 1998 that the adult was induced to enter into transactions with an attorney.
There is a lack of accurate and complete records of financial transactions made on the adult’s behalf by the financial attorneys, as required by s 85 of the Powers of Attorney Act 1998.
Conclusion
Having regard to the written and oral evidence, the Tribunal finds that the attorneys have failed in their statutory obligations.
The Tribunal is not satisfied the attorneys are appropriate decision makers for the adult.
The decision of the Tribunal was therefore to revoke the Enduring Power of Attorney, dated 2 February 1999, pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 84(2) of the Guardianship and Administration Act 2000 and then determine whether HB might require the appointment of a guardian and an administrator.
Is there a need for the appointment of a guardian?
HB’s accommodation at the residential aged care facility is appropriate, permanent and stable.
There are no imminent decisions that are required in relation to HB’s health care.Should health care decisions, including consents for medical assessment and treatment, be required in the future, and a close friend or relative of the adult is unable to be contacted, the Adult Guardian is able to make such decisions under the statutory health attorney regime in accordance with the provisions of ss 62-63 of the Powers of Attorney Act 1998.
In their submission to the Tribunal at the hearing the delegates of the Office of the Adult Guardian stated that, in their opinion, there was no current need for the appointment of a guardian for HB.
Conclusion
Pursuant to section 12 of the Guardianship and Administration Act 2000 the Tribunal is not satisfied that there is a need for decisions in relation to the adult’s personal matters. Furthermore, the Tribunal is not satisfied that without an appointment the adult’s needs will not be adequately met or that her interests will not be adequately protected.
The Tribunal therefore dismisses the application for the appointment of a guardian for HB.
Is there a need for the appointment of an administrator?
The representatives of The Public Trustee of Queensland provided a brief summary of the adult’s financial affairs during the period in which they have exercised suspended power.
Assets consist of $1,605 in a Public Trustee of Queensland cash account and a total of approximately $990 between two ANZ accounts.
Liability to the nursing home is currently $10,936.
HB is in receipt of a Centrelink age pension of $739 per fortnight. The Public Trustee has been attending to fortnightly payment of nursing home fees of $903 and other necessary expenses such as medications and clothing. The adult’s fortnightly budget is in deficit by $194.
The representative submitted that 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 the adult’s revised financial position and to apply for a subsidy for her accommodation fees as a result of hardship.
The representative of The Public Trustee of Queensland opined that the Commonwealth Government may need evidence of legal action in relation to recovery of the adult’s cash assets in order to substantiate and support the claim for increased subsidy. The representative advised that should The Public Trustee of Queensland be appointed the matter will be referred to the their legal department for consideration.
Conclusion
The evidence is that the adult has assets, income, expenses and liabilities that require management.
An administrator is necessary to address the adult’s ability to contribute to the cost of her aged care and to liaise with the relevant authorities to obtain an increased subsidy in relation to the nursing home fees.
An administrator is also required to investigate the depletion of the adult’s cash assets from the approximate time of the sale of her residential property until the suspension of the financial attorneys. The investigation is likely to address the numerous transfers of the adult’s funds into other persons’ bank accounts, with the view to seeking compensation for and on behalf of the adult. It is probable that the matter will be referred to the Queensland Police Service should financial transactions contravene the Criminal Code Act of 1899.
The Tribunal is 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?
The application before the Tribunal proposed the appointment of The Public Trustee of Queensland as administrator for the adult.
The Public Trustee of Queensland is an independent and experienced administrator.
Conclusion
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.
The Tribunal appoints the Public Trustee of Queensland as administrator for HB, for all financial matters, until further order of the Tribunal.
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