HD
[2010] QCAT 523
•19 August 2010
CITATION: HD [2010] QCAT 523
PARTIES: HD APPLICATION NUMBER: G20794
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 19 August 2010
HEARD AT: Caloundra
DECISION OF: Ms E Morriss, Presiding
Ms L McDonald
DELIVERED ON: 19 August 2010
DELIVERED AT: Caloundra
ORDERS MADE:
ENDURING POWER OF ATTORNEY
1.That the following Enduring Power of Attorney for HD is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998.
a)The Enduring Power of Attorney dated 28 March 2008 appointing VY as attorney for financial matters.
ADMINISTRATION
2.The Public Trustee of Queensland is appointed as administrator for HD for all financial matters.
3.The administrator is to provide a financial management plan to the Tribunal within four (4) months.
4.The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
5.This appointment remains current until further order of the Tribunal.
NOTICE OF INTEREST IN LAND
6.That the administrator shall within three (3) months:
(a) Identify, by way of a search of the historical records held by the Registrar of Titles or other means, any previous/current interest in real property registered in the name of HD (“the adult”).
(b) Lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order.
(c) Provide to the Tribunal:
(i)a copy of the search of records held by the Registrar of titles referred to above and;
(ii)a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order.
7.That the administrator pay, from the adult’s funds, any fee associated with the above notices.
ADJOURNMENT
8.That the hearing for the application for the appointment of a guardian is adjourned to a date to be fixed.
DIRECTIONS
9.That each active party provide any further material upon which they seek to rely, within 28 days from this order, to the Tribunal.
CATCHWORDS : Capacity of Adult, Need for Administrator, Appropriateness of appointee under power of attorney, Powers of Attorney Act 1998, Guardianship and Administration Act 2000. REASONS FOR DECISION
HISTORY OF APPLICATION
1. Mrs HD is a 78 year old woman. She is reported to be of Slovenian background, and has lived in Australia for many years. She worked as a hairdresser, and raised two daughters as a single parent, and worked hard as a hairdresser. HD was admitted to Hospital on 4 August 2009 after she was found unconscious after a fall at her home. She was admitted with delirium and she had also been diagnosed with Dementia in 2008. HD is now residing in residential aged care accommodation.
2. The Queensland Civil and Administrative Tribunal received an application regarding HD from the Adult Guardian on 23 June 2010. The application raised issues in regard to the actions of HD’s daughter VY, acting as Enduring Power of Attorney. Issues had been raised in regard to non-payment of nursing home fees. The Adult Guardian suspended the Enduring Power of Attorney on 22 June 2010, and the Public Trustee was appointed to manage HD’s financial matters. The Tribunal had a hearing on 19 September 2010.
3. VY objected to her sister CM participating in the Tribunal hearing. She claimed her mother wanted her daughter to have no involvement in her affairs. CM had travelled from interstate to attend the hearing, and the Tribunal considers that she has a continuing interest in her mother’s life and circumstances sufficient to participate in the hearing.
CAPACITY
4. The first matter to be considered by the Tribunal is whether Mrs HD has capacity for decision-making about her matters. There is a presumption at law that all adults have the capacity to make their own decisions.
5. The Act defines capacity as: “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.
6. The Tribunal considered the following evidence about capacity:
i.A Health Professional Report was available from Dr Wendy Vidler dated 10 June 2010. Dr Vidler indicated that a diagnosis of Dementia, Alzheimers type was made in about 2008 by a Geriatrician. She referred to an Occupational Therapy report where HD scored 11/30 on the Mini Mental State Examination (MMSE) on 28 September 2009. She was reassessed at a Nursing Centre in May 2010 scoring 10/30. In regard to decision making Dr Vidler indicates that HD lacks capacity for any decision making regarding health care. She is often non-compliant with prescribed medications. She accepts and recognises her as her doctor. In regard to accommodation, she is happy and settled at the Nursing Centre, but lacks capacity for decision making. She lacks capacity for decision making for choices of services, and can make very limited choices about what and when to eat, and which TV program she wants to watch. She often dresses inappropriately and refuses the assistance of care staff. She requires supervision with personal hygiene. In respect of finances, she lacks any capacity. Dr Vidler indicates that HD cannot make simple or complex decisions of any kind. Dr Vidler noted in her report that there is significant conflict between HD’s two daughters, and that her daughter VY, who holds an EPOA has prohibited contact with CM, and tries to stop her sister contacting HD. There have been significant issues between VY and the staff of the Nursing Centre which does impact on HD’s care.
ii.An Occupational Therapy Report dated 28 September 2009 was received. This report notes a diagnosis of Dementia. HD is able to communicate her basic needs. Her Mini Mental State Examination score is 11/30, and she has difficulty with short term memory, recall, orientation, attention, following instructions and planning/judgement. She requires extra time and arrangement with all tasks. In regard to cognition, it is impaired, and she requires orientation and meaningful activities to enhance her well-being.
iii.An Aged Care Assessment Team (ACAT) assessment was completed on 8 September 2009. HD was unable to sign this document due to her dementia and it was signed by her daughter VY. This report indicates a diagnosis of Alzheimers Dementia, and that HD was struggling to manage at home. She was admitted to hospital after she was found unconscious on the floor. She had a delirium which had resulted in an exacerbation of confusion and behavioural difficulties in hospital. Due to her progressive cognitive decline she required nursing home residential care. She requires supervision and encouragement with showering, dressing and grooming. She has been resistive to staff and with medication. She required PRN medication and a behaviour plan to settle agitation. She likes to keep busy with meaningful activity and enjoys gardening, cooking, listening to German folk music and helping with cleaning. She has been a Jehovah’s Witness all of her life.
iv.The Tribunal sought the views of the adult’s daughters who attended the hearing. Ms VY, indicated in writing that she has been caring for her mother for many years, until she was hospitalised and then placed in residential care. Her mother has had Alzheimers and in the last two years “it has gone from worse to drastic”.
v.HD’s daughter CM indicated that she had visited her mother in the nursing home. In regard to capacity she mentioned her memory problems, that she tended to repeat herself, and that she could not manage her finances. She also was aware of her mother’s diagnosis of Alzheimers Dementia. She has had limited involvement with her mother in recent years. Neither daughter disputed the medical evidence in regard to capacity.
vi.Staff of the Nursing Centre, Mr Stephen Leggett and Angela Pinstone attended. They confirmed that the medical information was consistent with HD’s current level functioning which had not improved. She is able only to make very simple choices, in regard to day to day matters such as what to eat. She requires prompting and supervision due to her Dementia.
CONCLUSION
7. The Tribunal concludes on the evidence that HD has a diagnosis of Alzheimers dementia. Her medical practitioner, Dr Vidler refers to a diagnosis in 2008 and the cognitive assessments in 2009 and 2010 are consistent with severe and progressive cognitive impairments.
8. HD’s dementia has resulted in progressive cognitive decline with severe impairments in memory, attention, planning and judgement and with behaviour. HD is only able to make very simple choices about day to day matters. She requires assistance with all simple and complex decisions in regard to health, lifestyle and financial matters.
IS THE ENDURING POWER OF ATTORNEY APPROPRIATE
9. The Tribunal received a copy of an Enduring Power of Attorney for HD, dated 28 March 2008, appointing her daughter VY for financial and personal/health matters. The powers were to begin “immediately”.
10. The application from the Adult Guardian raised concerns in regard to the actions of VY in management of HD’s finances. HD’s nursing home fees were currently in arrears of an amount of $4434.23, being approximately 4 months worth of fees. HD’s income was a Centrelink Pension of $701.10, and even with other expenses (such as pharmacy and telephone), she had sufficient funds to pay the monthly accommodation costs. These however, were not up to date, and a debt had been accrued, and this had not been resolved by the attorney.
11. VY, has indicated to the Adult Guardian that she does not have or keep receipts or records concerning her management of HD’s finances. The Adult Guardian also held some concerns regarding management of medication and the attorney restricting access in the way of parcels or gifts relating to the Jehovah’s Witness religion. The Adult Guardian suspended the VY as Attorney for financial matters on 22 June 2010.
12. VY sent a number of letters to the Tribunal. In her correspondence she states that: she had made mistakes; and had not paid the nursing home bills and conceded that there was a significant amount outstanding. She indicated she would obtain a loan to rectify the outstanding debt. She stated that she purchased whatever her mother wanted so that she did not become upset.
(a)She gave her mother money at the nursing home which went missing
(b)Some money had been spent on the telephone for her mother, which is in her room
(c)She bought her a new television for her mother
(d)She got a small fridge for her mother
(e)She takes her out to lunch frequently because she enjoys this
(f)She buys her things for her room and gifts such as stuffed toys and flowers.
(g)She had not kept records or receipts in regard to her expenditure
(h)Well before her hospitalisation and nursing home placement, her mother was withdrawing large sums of money from the bank. She had tried to prevent this, but she was unsuccessful. Her mother was strong-willed and she could not stop her. She said she had “tried everything in my power to stop her”. Her mother would become angry at her and threaten to throw her out.
13. VY says in her own defence that her own health has not been good, and she could not think clearly. She is seeing a therapist. VY wants the Tribunal to accept her “deepest apologies” and to give her another chance to manage her mother’s finances. She now realises that she has made mistakes.
14. VY was also critical of the care that her mother was receiving at the Nursing Centre, documented in copies of letters received at the Tribunal. VY had made complaints directly to the nursing home and to the Department of Health and Aging and Queensland Aged and Disability Advocacy (QADA).
15. Mr Stephen Leggatt from the Nursing Centre raised concerns that despite numerous attempts to make arrangements with the Attorney, VY, a substantial accommodation fee debt had accrued. VY was aware that fees were required to be paid, but had not done so. Discussions had occurred with VY, but she gave many excuses including claims of problems with Centrelink payments, and still there were outstanding fees. Mr Leggatt and Ms Pinstone raised concerns that HD’s fees had been in arrears almost from the beginning of her admission to residential care in September 2009.
16. Ms CM raised concerns in regard to how her mother’s finances were managed. She indicated that HD had been a fiercely independent woman, who would be horrified to know that she had bills outstanding. She took some pride in her independence. She questioned whether her mother might be entitled to a German pension as she had worked in that country. She mentioned her sister’s previous criminal history and time spent in jail. CM also questioned what had happened to the house that her mother had owned at Pacific Paradise.
17. When questioned about the house, the Attorney indicated that the house had been transferred into her own name. She was vague regarding when this had happened but thought it might have been six or seven months ago. When questioned as to whether this was subsequent to her mother’s admission to the nursing home, she gave different evidence, and stated that the Tribunal should know the information as she had already provided it. The Tribunal had not received any information. It may have been provided to Centrelink, but the Tribunal has no evidence of this.
18. In regard to HD’s property. She indicated that she believed she was entitled to this as she had previously given her mother up to $100,000, not in one big amount, but in a number of small sums on different occasions. She had no records in regard to this to provide to the Tribunal. No valuation of the property had been done.
19. A number of other concerns also were raised by staff from the nursing home and by HD’s daughter CM.
(a)The attorney VY had sought to limit direct contact between her mother and her sister CM, and had given specific directions that parcels and letters from CM were to be seen by her first.
(b)VY was restricting HD’s access to information from the Jehovah’s Witness religion, which she had practiced all of her life.
(c)The nursing home staff were prevented from discussing HD’s health care issues with CM. They had been asked to put a sign above the telephone instructing staff not to give information to CM.
(d)There was dispute with the attorney in regard to medical treatment, and VY had taken her mother to another medical practitioner. This made it difficult for staff to know where they should seek medical direction and supervision.
(e)There were ongoing issues in regard to communication and conflict between VY and nursing staff over medical issues, and management of care. Complaints had been made by VY, and she had threatened staff, and had claimed that she had made “tapes” of conversations with staff. Staff were fearful of repercussions.
20. VY was given the opportunity to respond to these issues at the hearing:
(a)She had limited contact between HD and her sister, but asserted that this was consistent with her mother’s wishes. She had however sent her sister photos and SMS message about her mother to keep her informed.
(b)She had restricted HD’s access to information to the Jehovah’s Witness religion, as she believed that she had forgotten her previous involvement, and that her continuing to be involved might cause problems at the nursing home. In particular, she was concerned that her HD would alienate herself from the staff and patients by using Jehovah’s Witness material to preach. VY is not of the Jehovah Witness religion herself.
(c)She did screen parcels from CM to remove Jehovah’s Witness information. She said that when her sister sends parcels, she wants to see them first.
(d)She has continued to take her mother to her previous General Practitioner. She believed that she had acted in her mother’s best interests in regard to health care issues.
(e)There was conflict and issues in regard to communication between herself and nursing home staff. She discussed her own dissatisfaction with the care her mother was receiving. She has mentioned a number of complaints that have been made.
CONCLUSION
21.The Tribunal is satisfied that VY is not appropriate or competent as a financial attorney for her mother. VY has failed in her obligations as an Attorney.
(a)VY has failed to keep appropriate records as required under s85 of the Powers of Attorney Act 1998. The Enduring Power of Attorney was noted to begin “immediately” and VY has had obligations and responsibilities in regard to the management of her mother’s finances. She has been aware of her mother’s diagnosis of dementia, but has not acted to ensure that appropriate financial management strategies were in place to protect her interests.
(b)There has been mixing of finances and a failure to keep property or finances separate under s 86 of the Powers of Attorney Act 1998.
(c)In the transfer of property belonging to the adult to herself, the Tribunal has concerns that the Attorney has not acted appropriately and according to s73, s87 and s88 of the Powers of Attorney Act 1998. Investigation of the exact timing and circumstances of this transfer, and implications on HD’s Centrelink income will need to imminently occur.
(d)There are also concerns raised that question the ability of the Attorney to apply the General Principles, in regard to consultation with her sister, with whom she has an admitted long history of conflict and poor communication.
(e)The Attorney has failed to meet HD’s financial obligations, in payment of outgoing expenses and bills, and has subsequently accrued a substantial debt. Finances have instead been expended on lunches, gifts and sundry spending, without regard to the obligations of the adult. Ultimately the attorney has failed to pay nursing home expenses, which has placed HD’s accommodation at risk.
22.The Tribunal revokes the enduring power of attorney for financial matters appointing VY as attorney for financial matters, on the grounds that the attorney has consistently failed to comply with statutory obligations. Therefore, the appointment is no longer appropriate in the circumstances. The Tribunal revokes this document under s 116 (d) of the Powers of Attorney Act1998.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
23.The Public Trustee of Queensland representative provided a brief summary of HD’s financial affairs. She is in receipt of a Centrelink pension of $701.10 per fortnight. The Public Trustee have been attending to payment of nursing home fees, including reduction of the overall debt, and other necessary expenses such as pharmacy. They were not aware of any matters related to transfer of the adult’s property.
24.The Public Trustee has been in contact with the Attorney, VY, but she has been unable to account to them for all of the withdrawals and expenditure in her time as Attorney. Some nursing home fees were paid by the attorney, but there was a large debt of $4935 requiring payment. The Public Trustee has paid some of this debt.
25.In the absence of an appropriate Attorney, HD requires the assistance of an administrator. She has income and expenditure to be managed. An investigation will need to occur regarding the timing and circumstances of the transfer of HD’s property to her daughter, to consider the appropriateness of this transaction given the adult’s circumstances, and to consider Centrelink implications. The Public Trustee are best placed to take on this role and also to determine her eligibility for a German pension.
26.The appointment of the Public Trustee is supported by the adult’s daughter CM.
CONCLUSION
27.The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.
OTHER
28.The Tribunal also concluded that as there were a number of issues in regard to the decision making in regard to HD’s personal matters, that there was sufficient evidence to initiate an Application for the Appointment of a Guardian. This matter was adjourned to a date to be fixed, and directions were issues to parties in regard to submissions.
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