HCD
[2014] QCAT 643
•29 November 2014
| CITATION: | HCD [2014] QCAT 643 |
| PARTIES: | HCD |
| APPLICATION NUMBER: | GAA9522-14; GAA9523-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 November 2014 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 29 November 2014 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | GUARDIANSHIP
ADMINISTRATION
(a) copies of the adult's bank statements/passbooks/term deposits for the past year;
COMPENSATION
|
| CATCHWORDS: | ADMINISTRATION – where there are allegations of financial impropriety by an attorney – where a compensation order is sought pursuant to section 138AA of the Guardianship and Administration Act 2000 (Qld) Guardianship and Administration Act 2000 (Qld) ss 12, 15(1), 138AA LPJ [2011] QCAT 177 |
APPEARANCES and REPRESENTATION (if any):
| Adult: Applicant partner/carer: Public Trustee of Queensland: Office of the Public Guardian: | HCD Represented by Kathryn Sheehan |
REASONS FOR DECISION
HCD is 82 years of age. He lives with his partner DMB, who also acts as his full-time carer. He has one living child, a daughter who was reported as estranged from her father. HCD and DMB live in a private rental property. DMB provides him with day-to-day support. HCD does not currently receive support from any external services.
On 5 December 2012 I was the member appointed by this tribunal to consider applications for the appointment of an administrator and a guardian in relation to HCD. I delivered an ex-tempore decision where, essentially, the Adult Guardian was appointed as guardian for decisions about health care and provision of services; and the Public Trustee of Queensland was appointed as administrator for all financial matters, except day-to-day finances and Centrelink payments. Both appointments were ordered to remain current until further order of the tribunal. Both appointments were ordered to be reviewable and to be reviewed in 2 years.
This decision follows a hearing before the tribunal brought on because of the periodic review of the 2012 decision. On this occasion I opted not to deliver an ex-tempore decision.
As always in this jurisdiction, a preliminary decision with respect to capacity must be made. I find HCD does lack capacity. In coming to this decision I rely upon the following medical reports, which I accept (unless otherwise stated):
The health professional report of Dr H.D.M. Suleman, GP, Bundaberg, dated 17 September 2014, which, in relation to HCD, includes the following commentary:
a) HCD has suffered a stroke;
b) HCD has been afflicted with dementia (acquired brain injury/cognitive disability) due to his stroke;
c) The results of a mini mental state examination (MMSE) conducted on 12 September 2013 showed a result of 23/30 for HCD;
d) HCD has a modest, limited understanding of health care and personal care;
e) With respect to complex decisions HCD needs supervision and assistance;
f) HCD requires assistance with decision-making regarding choosing his accommodation (being decisions which are beyond his capacity);
g) HCD is unable to pay his bills and make major and minor financial decisions;
h) HCD can understand an enduring power of attorney[1]; and
i) HCD can make all simple decisions but no complex decisions.
[1] I did not necessarily accept this finding.
The health professional report of Dr Christian Acksteiner, RMO, Bundaberg, dated 17 August 2012, which, in relation to HCD, includes the following commentary:
a) Dr Christian Acksteiner has known the adult for a short period;
b) HCD suffered a stroke on 6 August 2012 with consequent sensory aphasia;
c) Dr Christian Acksteiner is unable to administer a MMSE because it was not possible to administer;
d) HCD is unlikely to understand complex matters;
e) HCD has no capacity to understand an enduring power of attorney; and
f) HCD is able to make simple personal healthcare decisions but otherwise no capacity to make decisions.
The health professional report of Rebecca Melnyk, social worker, Bundaberg, dated 24 August 2012, which, in relation to HCD, includes the following commentary:
a) HCD has an acquired brain injury;
b) HCD has suffered a cerebrovascular accident; and
c) HCD is able to make simple personal healthcare decisions but otherwise no capacity to make decisions.
As a finding of fact, the tribunal concludes that HCD is unable to understand the nature and effect of decision-making and is not able to freely and voluntarily make decisions about matters. The adult’s communication skills are limited. The presumption of capacity for personal and financial matters is rebutted.
In relation to the matter of guardianship, the tribunal was presented with a report by Ms Kathryn Sheehan, acting team leader State-wide Services of the Office of the Public Guardian, dated 29 October 2014. In that report, the tribunal was advised that there are no reported healthcare issues or concerns at this time; that HCD uses a walker and a mobility scooter when attending at shops or walking his dog alone; and that no decisions in relation to services or supports have been required to be made by the Public Guardian on behalf of the adult. The report goes on to state that no healthcare decisions are required to be made and that HCD is supported to his doctor’s appointment by his partner DMB who supports all healthcare decisions required. The Public Guardian concludes that there is no longer a need for a decision maker in relation to service provision and health care matters pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld). I accept the report and the findings. During the hearing I had the benefit of interacting with HCD and DMB. I am satisfied that the evidence given at the hearing of this matter also supports the conclusions and findings of the Office of the Public Guardian. Consequently the tribunal is no longer satisfied that there is a need for the appointment of a guardian and as a result the previous order made in 2012 with respect to such appointment is revoked.
The tribunal received a Public Trustee tribunal briefing report dated 30 October 2014. In that report, the Public Trust Office concluded that in relation to HCD only low level of support was required. Of interest to the tribunal was the fact that the Public Trustee has investigated the matter of funds misappropriated by HCD’s estranged daughter CAK which have been unsuccessful to date. The amount of the alleged misappropriation was reported as being $32,099.72. The Public Trustee advised the tribunal, through this report, that it had attended to a number of matters in relation to the alleged misappropriation which include seeking legal advice and undertaking some investigations.
The alleged misappropriation of funds by the adult daughter was known to the tribunal in 2012. It is as result of the expertise of the Public Trust Office in dealing with such matters that led me to ultimately conclude that the Public Trustee would be the appropriate appointee. At that time it was reported that HCD had assets worth in the vicinity of $40,000.
During its term as administrator, the Public Trustee was able to ascertain that HCD held Suncorp shares and it was successful in securing those shares and dividends for his benefit. The existence of the shares held by HCD was not known in 2012.
Disturbingly, it was reported to the tribunal that approximately $30,000 has been spent in pursuing CAK, without, it would appear, any success.
There are financial issues that will need to be undertaken on an ongoing basis for HCD. Without a substitute decision maker, the adult is likely to do something involving, or likely to involve, unreasonable risk to his finances or his property. Without appointment, the adult's needs will not adequately be met or interests adequately protected.
Having established that there is a need for the appointment of a substitute decision maker with respect to financial matters, the question then is, in the current circumstances, who is the appropriate appointee?
I was very impressed by DMB. I am satisfied that she is the appropriate appointee. In coming to this conclusion I consider the appropriateness considerations outlined in section 15(1) of the Guardianship and Administration Act 2000 (Qld).
I am satisfied that DMB (the person[2]) is aware of the general principles as stated in the Guardianship and Administration Act 2000 (Qld) and is a person likely to apply them. The fact that DMB is the de facto partner and full-time carer of HCD does not, necessarily, mean that their interests are likely to conflict. I am satisfied that the adult and the person are compatible. The person is available and accessible to the adult. I am satisfied as to the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
[2]I adopt the wording in section 15 of the Guardianship and Administration Act 2000 (Qld) in referring to DMB, in this context, as "the person".
During the hearing of this matter, the representative of the Office of the Public Trustee of Queensland invited me to make a direction to the former attorney, that is to say CAK, pursuant to section 138AA of the Guardianship and Administration Act 2000 (Qld). The section provides that the tribunal may give directions to a former attorney, however, the directions may only be directions the tribunal considers are necessary because of the ending of the person’s appointment as attorney for the matter; and the directions may relate only to a matter for which the person was appointed as attorney immediately before the appointment ended. The basis of the request is to do with the misappropriation of funds alleged to have occurred by CAK when she was an attorney pursuant to an enduring power of attorney granted to her by the adult, HCD.
In 2012, when I made an order in relation HCD, I included an order that any purported enduring power of attorney for HCD was overtaken. In accordance with section 22 (2) of the Guardianship and Administration Act 2000 (Qld) I ordered that any such purported power of attorney could no longer be acted upon to the extent to which the appointments had been made. If an order pursuant to section 138AA ought to be made then it would have been more appropriate to make such an order then, rather than now. That said, the request made of the tribunal by the Public Trustee does raise the issue as to whether it is appropriate to make the order in any event.
I refer to, and rely upon, two decisions of this tribunal in coming to the conclusion that it is not appropriate for me to make such an order, as requested. Those decisions are the decision of LPJ [2011] QCAT 177, delivered by Senior Member Endicott on 4 May 2011, and Public Trustee of Queensland v BN and Ors [2011] QCAT 666, delivered by, the then President of QCAT, Justice Alan Wilson, on 19 December 2011.
In the Public Trustee of Queensland v BN and Ors [2011] QCAT 666, Justice Wilson was called upon to consider "whether an attorney, appointed under an enduring power of attorney (EPA) may be ordered by this tribunal to pay compensation to the principal[3]". In that case it was reported at paragraph [2] that:
The presiding Member in a QCAT Tribunal constituted to determine a claim for compensation has referred the matter under section 117(1) of QCAT Act, which allows for a question of law to be referred from the Tribunal to the President. The referral comes from both the presiding Member and the other panel Member who constituted the Tribunal.
Then at paragraph [3]:
The procedure under s117 is akin to that which allows a Judge of the Supreme Court to reserve or ‘state’ a case or a point in a case, for the consideration of the Court of Appeal[4]. Under the Uniform Civil Procedure Rules 1999 the case stated must set out the facts necessary to enable the Court of Appeal to decide questions arising, or otherwise hear and decide them, and also state the questions to be decided. That procedure was followed by the QCAT Tribunal members here, in a referral document signed by the presiding Member on 25 August 2011.[3] Public Trustee of Queensland v BN and Ors [2011] QCAT 666 at [1].
In my view, the question referred by the learned Members to the President in Public Trustee of Queensland v BN and Ors is the same question which I am called upon to consider in this case. Namely, whether this tribunal can and/or should make an order as to compensation under section 106 of the Powers of Attorney Act 1998 (Qld). I did invite written submissions from the Office of the Public Trustee following the hearing of this matter to clarify the nature and extent of the order sought by the Public Trustee of Queensland and also to submit in relation to what it is it states is the law in relation to the issue. By written communication from a representative of the Public Trustee to the QCAT registry dated 27 November 2014 the officer advised that "in having the opportunity to consult with the Official Solicitor, the Public Trustee wishes to withdraw any request for the making of any further submissions to the Tribunal". That is unfortunate because, respectfully, there were scant submissions made at the hearing of this matter. In essence, the submission made at the hearing was simply that it is open for the tribunal to make an order pursuant to section 138AA of the Guardianship and Administration Act 2000 (Qld). Given that the request was not particularised beyond that I can only work on the assumption that the request made of me is to award compensation under section 106 of the Powers of Attorney Act 1998 (Qld).
I have decided not to invoke the power available to me pursuant to section 117(1) of the QCAT Act to refer this question of law to the President. I do so because it does seem to me the question now asked is identical to that question which was answered in Public Trustee of Queensland v BN and Ors. Therefore, I have no hesitation in adopting the ruling made by the then President Justice Wilson where at [60] his Honour said that the answer to the question should be answered in the negative. That is to say the tribunal does not have jurisdiction to order the payment of compensation under the Powers of Attorney Act 1998 (Qld). I therefore make no order pursuant to section 138AA of the Guardianship and Administration Act 2000 (Qld). To that end, the application made by the Public Trustee of Queensland is dismissed.
I make the following orders:
a) GUARDIANSHIP
1. The appointment of the Public Guardian as guardian for HCD for all personal matters is revoked.
ADMINISTRATION
2. DMB is appointed as administrator for HCD for all financial matters.
3. The financial management plan dated 31 October 2014 is approved.
4. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator(s) to provide to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter:
(a) copies of the adult's bank statements/passbooks/term deposits for the past year;
(b) copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period;
(c) copy of receipts for any individual items purchased in excess of $500.00;
(d) for any shares, investments or superannuation, a copy of all dividend notices or statements received during the year;
(e) a signed and witnessed Declaration as to continuing appropriateness for appointment.5. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.
[4] Supreme Court Act 1995 (Qld) s 251.
COMPENSATION
6. The application made by the Public Trustee of Queensland to make an order pursuant to section 138AA of the Guardianship and Administration Act 2000 against CAK is dismissed.
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