HJW
[2014] QCAT 576
•10 November 2014
| CITATION: | HJW [2014] QCAT 576 |
| PARTIES: | HJW |
| APPLICATION NUMBER: | GAA6227-14, GAA6228-14, GAA6307-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 3 September 2014 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Lewis |
| DELIVERED ON: | 10 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Public Guardian is appointed as guardian for W for decisions about the following personal matter: (a) Health care. 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 W 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 W is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998: The Enduring Power of Attorney dated 2 February 2009 appointing C and JB as attorneys for financial and personal/health matters. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – where conflict between attorney and family members – where attorney’s failure to consult with family is in issue – where adult expresses opposition to the actions of the attorney – where attorney lives remote from the adult – where family member seeks revocation of an enduring power of attorney – where an independent decision-maker is sought GUARDIANSHIP AND ADMINISTRATION – conflict between attorney and family – whether appointment of independent guardian and administrator is more appropriate Powers of Attorney Act 1998, ss 33, 116, Schedule 1 Part 1, General principles JMS v Adult Guardian and Anor [2013] QCATA 135 |
APPEARANCES:
| HJW (Adult) RA (Applicant, daughter) JB (Attorney, step-daughter) Public Trustee of Queensland Public Guardian JA (grandson) TB (Attorney’s husband) |
REPRESENTATIVES:
| Public Trustee of Queensland represented by Anthony Williamson |
| Public Guardian represented by Gina Do |
| Other parties in person |
REASONS FOR DECISION
Mr W, who is now 88, lived with his partner Mrs C from the nineteen sixties, until she died in January 2014. They had lived in their own home in a seaside town in the Wide Bay Burnett region from 1988. In April this year he moved into an aged care home.
In 2009, he signed an enduring power of attorney appointing his partner and her daughter JB (successively) as his attorneys for both financial and personal and health matters. Mrs B has acted as his attorney since January 2014.
Mr W had children by his earlier marriage, and his daughter RA, unhappy with the management of her father’s affairs, has brought these applications. She sought the revocation of the power of attorney, the appointment of herself as guardian, and herself or the Public Trustee as administrator. At the hearing she sought the appointment of the Public Guardian and the Public Trustee in lieu of herself.
Mrs A’s applications were supported by her son JA, and by Mr W, but opposed by Mrs B. Mrs B also filed a letter from the adult’s other daughter supporting her continued role, as well as three-line pro forma letters of support for her from other parties who were not identified but are presumably relatives on one side of the family or the other.
Mrs A and her son J each reside in the same locality as Mr W. Mrs B resides in Sydney. Accordingly, apart from an initial period of 3 months during which Mrs B stayed at Mr W’s house and managed his affairs, the position has been that the day to day contact has been with Mrs A and Mr J, but the management has been effected by Mrs B from Sydney.
An attorney’s powers for personal and health matters, and the tribunal’s power to appoint substitute decision-makers, are not enlivened unless the adult has impaired capacity for a matter.[1] While the attorney has been exercising her powers since early in the year, the evidence on the issue of capacity was not unequivocal, and in any event the tribunal must examine the issue on each occasion it is asked to exercise its powers.
[1]Powers of Attorney Act 1998 s 33; Guardianship and Administration Act 2000 s 12.
Dr F had provided a short report to the attorney’s solicitors on 17 February 2014. She said she had known Mr W since the previous November, and that he had ‘a level of cognitive impairment … including short term memory loss’ and when discussing his wife’s will did not understand the matter. She opined that he would be unable to understand the administration of the estate. She said cognitive tests were done, but provided no details. She provided a further report to an ACAT team, dated 24 February, in which she said that he lacks insight into his cognitive impairment, and does not have capacity for accommodation and personal and health matters. Mrs B relied on these reports when she acted in her capacity as attorney.
Dr F provided a further report dated 4 July 2014, but she had not seen him since the earlier reports, and the new report added nothing except to say that in February she had assessed him as not having capacity for financial matters.
An ACAT assessment from March 2014 noted a mini mental examination on 14 February scoring 21/30, indicating mild cognitive impairment. It noted regular short term memory loss, occasional long term memory issues, confusion and disorientation as to time, but never as to place or people, and no hallucinations, delusions or wandering. There were various physical difficulties noted, and he was assessed as needing high care.
On the other hand, he had seen Dr H in April and May. Dr H provided a report in QCAT’s standard form, dated 3 June 2014. He considered Mr W had full ability for lifestyle and accommodation choices, was able to perform minor banking transactions, but needed supervision for bills and major decisions. He noted a mini mental score of 26/30, and thought he had mild age related dementia. His summary was that he could make his own simple but not complex decisions on financial matters, but both simple and complex decisions on other matters.
Mr W appeared at the hearing, and seemed to have a reasonable grasp of the proceedings. He was able to give accurate advice as to how long he had been without a driver’s licence, and was reasonably clear as to his accommodation. He was able to discuss his beer consumption (an issue that became relevant) quite coherently. As to his money, he said that Mrs B had taken most of it. With respect to his property he ‘thinks’ that his house has been sold, but hadn’t been told what had become of the proceeds. He said he had been told nothing.
Mrs A said she didn’t think he was capable of managing his affairs, but he liked to know where his things were, he liked to be informed. He remembered conversations from the previous day. She thought he had deteriorated since going to the aged home.
JA thought he needed general assistance, and that he could not make decisions for himself.
Mrs B filed a lengthy statutory declaration in which she outlined in some detail her observations in the three months from January to April 2014 when she had stayed with him. In summary, his understanding and abilities to manage his affairs were poor in her view. He could not grasp that he had to surrender his driver’s licence. He was unable to operate a bank ATM, or to pay bills.
While the opinion of Dr H suggested otherwise, the preponderance of evidence is clear that Mr W is not able to understand the nature and effect of decisions beyond fairly simple matters. He understands when he is not being given information, but appears incapable of pursuing enquiries on his own behalf to resolve those issues. On occasions he forgets that he has been given information previously. In all, I find that the presumption of capacity is rebutted for both personal and financial matters.
The essential controversy related to Mrs B’s management of Mr W’s affairs. Mrs A complained that she had been frozen out of the decision-making process, including about the decision to move her father to an aged care home and to sell his house and cars. Her enquiries had been rebuffed, and both she and Mr W had been kept in the dark about the sales and the whereabouts of the proceeds. She had, at his request, arranged a card for his bank account so he could access some spending money but Mrs B had removed the funds from that account, and was in the process of re-directing the foreign pension monies that were being paid into it. Accordingly Mr W no longer had access to funds for outings or to buy beer which was one of his few remaining pleasures in life. Decisions were being taken by Mrs B from afar, in consultation with the aged home, but not with Mr W or his daughter.
Mrs B gave a history of having known Mr W from a few years after he had taken up with her mother. She had formed a close relationship with him she said, and after he and her mother relocated to the Wide Bay Burnett region she and her husband visited regularly. She had been in the area briefly in early January 2014, and then returned on 15 January when her mother died. She stayed at the house from then until 15 April.
In her statutory declaration, Mrs B gives a lengthy and detailed account of the investigations and actions she took on Mr W’s behalf in that three month period. This included having him assessed for capacity, and then arranging for a variety of other health checks and treatment, including weekly appointments for medication checks, specialist appointments and a brief trip to hospital; assessment by the ACAT team for admission to an aged care facility; and the investigation of various aged home options, and ultimately the admission of him to his present home, including making all the necessary financial arrangements, together with all the ancillary matters like purchase of items for him and re-arranging things like his chemist accounts, newspapers and so on. She also notes that she arranged for some house repairs and for direct debits for his utilities, and later listed his house for sale and arranged the sale of his motor cars.
The number of things Mrs B attended to is impressive, albeit over three months, and her industry and attention are praiseworthy. However it is also not without significance that nowhere in her detail of these many actions and decisions does she refer to having consulted with Mrs A or any other member of Mr W’s family. At the hearing she confirmed that she did not consult them. She had numerous consultations with doctors and other medical people, with the ACAT team, with nursing home staff, and with Mr W’s solicitor concerning his financial position when she took advice on the sale of the home. These were major decisions. She says they were taken after consultation with these various people, but Mr W’s daughter and grandson were not included, notwithstanding that they lived nearby. This goes to the heart of Mrs A’s complaint.
To understand Mrs B’s attitude, it is necessary to set out a little detail of her dealings with Mrs A. She notes that in December 2008 Mr W had signed a power of attorney in favour of his partner and Mrs A. However Mrs A had wanted details of his will and beneficiaries. Mr W was, it is alleged, concerned at the reasons for this and consequently had revoked that document in February 2009, and signed the new (current) document.
Mrs B says when she arrived from Sydney on her mother’s death, Mrs A informed her that she had made enquiries with Centrelink and could be paid a carer’s allowance to look after her father, and that he could live in his home with her assistance by visitation. She says the next day, Mrs A tried to coerce her father into appointing her as carer. She had to ask her to leave the property as she was upsetting her and Mr W.
She also claimed that Mrs A did not visit her father much in the period prior to the death of the mother, nor assist in any way with caring for them. In the period from the disagreement about the role of carer, until Mr W’s admission to the aged home on 3 April she said Mrs A had visited only about four times for an hour each time.
Mrs A’s version of each of these episodes is a little different. She agrees that she asked for some details about her father’s affairs and will when appointed attorney. She felt that she needed to have some idea of these matters to discharge her duties as attorney, and to know what had to be done in the event of death. She says Mrs B’s mother would get her to take her to the bank but would make her stand back so she could not see what was going on, she would not share information, she says she was in effect frozen out. She came to the conclusion that Mrs C didn’t want an attorney so much as a taxi driver.
She said that she did not visit her father as often as she might have, as Mrs C did not make them welcome. The impression given by Mrs A and her son J was that Mrs C was a dominating woman who, in effect, ran the show.
As for the carer issue, Mrs A’s version is that on her arrival, Mrs B suggested she (A) consider how she might be able to help. A day or so later she called her father and suggested she might be able to act as his carer, and they agreed to discuss it. When she raised the matter later, Mrs B said that she would be carer herself. Mrs A objected. Later she made some enquiries of Centrelink, and attempted another discussion with her father and Mrs B, but the latter told her she was not going to be her father’s carer. An argument ensued, during which she says Mrs B said that both she and her father were crazy. Mrs B insisted she leave the property and said she would call the police if she did not. It was as a result of that that Mrs A limited her visits to her father.
It is in this context that Mrs B says she did not see it as necessary to consult Mrs A. She says Mrs A and her son J did not make any enquiries. They insist that they did, but were rebuffed each time.
Mrs A says that Mrs B rang her in April and told her that her father was being admitted to an aged care home. This seems to be the first she had heard of the proposal. Later she discovered that he had been admitted a day or so previously. She asked Mrs B when she might visit her father and was told to leave it for a week until he had settled. The home however told her she could visit whenever she liked.
On advice, Mrs A left matters until after Mrs B returned to Sydney in mid April. From then she saw her father regularly and began to take him on excursions. She discovered that his house was on the market, but that he did not wish to sell it. She also learned that the aged home was allowing him only $20 per week for his entertainment. He was unhappy that his beer intake was limited to two drinks a day. He told the tribunal that he liked to have three or four.
Mrs A arranged for her father to obtain a new card for his Commonwealth Bank account, the bank manager considering that Mr W was sufficiently capable to give the necessary instructions himself. This provided Mr W with access to his own money. However Mrs B found out about this from the home, and she withdrew most of the funds from that account on 30 April and placed the money in a Westpac account. Later she diverted his pension to that account.
In May, Mrs A and Mr W consulted Mrs A’s solicitors about the power of attorney, the sale of the house and Mr W’s disliking of his new living arrangements. Their advice, which is confirmed in a letter which was produced, was to the effect that if Mr W wished to revoke his power of attorney he should consult his old solicitors, and if they were not satisfied as to his capacity, then Mrs A could make an application to QCAT. It is implicit in their letter that the solicitor had doubts about Mr W’s capacity.
The solicitor also spoke to the real estate agent, who in turn advised Mrs B’s solicitor, and there were discussions between solicitors. However none of this seems to have assisted either Mr W or Mrs A in their attempts to halt the sale of the house.
At about the same time Mrs A wrote to Mrs B’s solicitors. That letter was not produced, but it seems it raised enquiries about the sale, the whereabouts of his property, and similar concerns. The solicitors’ response, dated 20 June (more than a month after the receipt of Mrs A’s letter) was annexed to Mrs B’s declaration. Between these dates the house had sold, though it is not clear if the sale had settled. The solicitors’ reply, apparently on instructions, might almost be described as disingenuous.
The solicitors recited that Mrs B was the attorney, and had acted in accordance with her responsibilities, that Mr W was properly provided for, that if he needed money he could see the staff at the home, and that the intention was to avoid any unnecessary expenditure by him. The letter included the following: ‘Ms B recently met with Mr W. Mr W did not mention any of the items raised in your correspondence’. It concluded: ‘We note … your dad and you would like to know where all his personal items and money is (sic). As noted above, Mr W met with Ms B recently where there was opportunity to discuss the issues set out in your correspondence’. The letter told her nothing.
Given that it has consistently been Mrs B’s position that Mr W no longer had capacity, it would be unsurprising if Mr W did not pursue these issues with Mrs B. (Indeed it was my assessment of his abilities that he was competent enough to want information but not to pursue answers when met with resistance.) It is no answer to say that he had an opportunity to ask questions but didn’t. His daughter’s quite reasonable enquiries should have been answered, not rebuffed as they were.
When asked why the solicitors could not have provided some basic information, Mrs B said that perhaps it was a matter of confidentiality. While an adult’s right to confidentiality must be recognised[2] it is not the only consideration, and should not prevent appropriate consultation with the adult’s family.
[2]Powers of Attorney Act 1998, Schedule 1 Part 1, general principle 11.
Throughout the hearing it was Mrs B’s position that she did not provide information to Mrs A because she didn’t make enquiries. The solicitors’ letter is eloquent evidence to the contrary.
When asked at the hearing why she did not include Mrs A in discussions about the house sale, Mrs B said that she didn’t think it was a decision for Mrs A. She declined to give Mrs A keys to the house saying that ‘we’ hadn’t decided what to do about the house at that point. It is not clear whom the we may have referred to, but it did not include Mr W’s daughter or grandson.
The other matter canvassed at the hearing concerned Mr W’s request for more money for his own expenditure. Mrs B had limited that to $20 per week, saying that should be sufficient for his weekly outing and lunch with his daughter and grandson. If necessary he could ask for more from the staff. She said it was essential to limit his beer intake as he was diabetic, and excessive consumption caused difficulties with his health management. His beer should be retained at the nurses station rather than be accessible in his own fridge. She noted that he had had several health episodes while at the home, including falls.
Mr W wanted access to more money. Both Mrs A and Mr JA said that on his outings he insisted they take him to a bottle shop to buy a carton of beer. They had tried to caution him to buy less but he was insistent. Obviously $20 per week was insufficient for this as well as lunch. Mr W told the tribunal that some of the staff were strict about his consumption, but others took the view that he had few pleasures in life at his age and there was no harm. When he brought his carton back to the home, whether it was left at the nurses station or taken back to his room depended on whether the staff member on duty fell into the strict or lenient category. He also noted that sometimes when he went to the nurses station to ask for a beer there was no one there to assist him.
One can understand both points of view, and it is not part of the tribunal’s function to adjudicate on the beer consumption. However it is one more example of the tensions which have arisen under the current arrangements. Mrs B has resolved the matter by re-arranging his pension and banking affairs so that there is effectively no account to which Mr W or Mrs A has access.
Both sides expressed concern about the other’s motivations and honesty. A complaint was made to the Public Guardian concerning Mrs B’s management of the funds. The Public Guardian investigated, and found none of the concerns were substantiated. It found that the sale proceeds were properly accounted for. Nonetheless JA expressed the view that he did not trust Mrs B in the long term.
In turn Mrs B said she had placed Mr W’s money in a different bank as she did not trust Mrs A.
There may or may not be some substance to these concerns. There was no evidence of any dishonesty on the part of anyone in the material before the tribunal, but the mutual distrust permeates the relationship.
Mrs B feels that she is doing the job of attorney properly and competently, and wishes to continue. She feels aggrieved that she is being questioned. She said she was disappointed by Mrs A’s behaviour.
The conflict between the parties is obvious and continuing. At the end of the proceedings, JA informed the tribunal that during a break in the proceedings Mrs B had threatened to remove Mr W to live in Sydney. (In her declaration, she had said that when she was arranging his aged home placement, she had considered Sydney, but she knew he did not want to go there as he disliked the cold, and his medical specialists were local.) Mrs B accepted that she had made such a remark, and said that if the matter became too difficult, he had other family down there. She said she knew he didn’t want to go there, but if she ‘kept getting the aggressive behaviour like today’ she would relocate him. She said ‘it may not be what he wants but we’ll all feel safer’. No details of any specific safety concerns were raised.
There are three concerns with the current arrangements: geography, consultation, and conflict. With respect to the first, it is not ideal that the decision-maker lives so far away. Mrs B has visited Mr W only once between returning to Sydney on 15 April and returning for the hearing in September. She has spoken to him by phone, but she said mostly she spoke to the staff of the home. On the other hand, the members of his family who live close by see him at least weekly, and are best placed to hear of his needs and views, but are not able to make decisions for him.
This geographical problem may not of itself be fatal to a decision-making arrangement, but it is exacerbated by the lack of consultation. The family, who might provide a valuable link between attorney and adult, were and are frozen out. Their views are neither sought nor valued. Neither it appears are those of Mr W.
The general principles to be applied by an attorney or by an administrator or guardian are in the same terms in both the Powers of Attorney Act and the Guardianship and Administration Act.[3]These include the adult’s right to participate to the greatest extent possible in decision-making affecting the adult’s life[4] and the importance of maintaining the adult’s existing supportive relationships.[5] With respect to the latter the President held in JMS v Adult Guardian and Anor[6] that this requires all appointees to consult and liaise where possible with an adult’s existing support network.
[3]See Schedule 1 Part 1 in each Act.
[4]General principle 7.
[5]General principle 8.
[6][2013] QCATA 135 at [15].
Mrs B has consistently failed to apply these principles. Much of the conflict between the parties has its origin in this failure. Unfortunately there is nothing in Mrs B’s attitude to suggest that this is likely to change in the future. On the contrary, her failure to see any problem with her decision-making style, her umbrage at Mrs A’s complaints and her threat to remove Mr W to Sydney demonstrate a continuing lack of insight into the concerns about how she discharges her responsibilities. She has no doubt tried to do her best, but the result has left both Mr W and important members of his family uninformed, unhappy, and untrusting.
Taking these matters into account, I have come to the conclusion that Mr W’s best interests will be served by appointing another decision-maker. Mrs A initially sought appointment of herself, but at the hearing opted for an appointment of the Public Trustee and the Public Guardian. This is wise, and in any event, I would be reluctant to appoint Mrs A both because that would not in all probability remove the conflict, and further because I have some doubts about her insight into the problems of her father’s alcohol consumption.
The Public Guardian expressed the view that the only area where a guardian might still be needed is for health matters. I agree. If other issues arise, they can in all probability be resolved by the informal networks, and as a last resort a further appointment can be sought. I will appoint the Public Trustee to act as administrator.
I have considered what order I should make concerning the power of attorney. Given the conflict I consider that it is better to revoke the document in its entirety[7], rather than leave open the possibility that it might be relied on to the extent that it has not been overtaken by these orders.
[7]Pursuant to Powers of Attorney Act 1998 s 116(d).
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