HLA
[2014] QCAT 419
| CITATION: | HLA [2014] QCAT 419 |
| PARTIES: | HLA |
| APPLICATION NUMBER: | GAA3929-14; GAA3930-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Ashman, Member |
| DELIVERED ON: | 12 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The guardianship order made by the Tribunal on 29 August 2012 is changed by appointing the Public Guardian as guardian for HLA for decisions about the following personal matters: a. Accommodation; b. With whom HLA has contact and/or visits; c. Health care; and 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 Tribunal recommends that the Public Guardian enters into discussions, individually or collectively, with PP, HW, and HS with the intention of resolving existing communication issues to which reference is made in PP’s closing written submission to the Tribunal. 4. The appointment of the Public Trustee of Queensland for all financial matters is continued. 5. The financial management plan dated 6 August 2014 is approved. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. The appointment remains current until further order of the Tribunal. 8. Before 11 November 2014 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 Registrar 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 registry confirming the notice has been lodged for each property held by the adult; and ii. a copy of the current title searches. 9. 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 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; |
| CATCHWORDS: | REVIEW OF THE APPOINTMENT OF AN ADMINISTRATOR AND GUARDIAN — where there is conflict among family members - where there is no evidence that the administrator or guardian acted incompetently - where there is no more appropriate appointee as administrator or guardian Guardianship and Administration Act 2000 (Qld) s 31. |
APPEARANCES and REPRESENTATION:
Three representatives of the Public Trustee of Queensland
A representative of the Public Guardian
PP
HW
HS
A family friend
REASONS FOR DECISION
HLA lives in his own unit with 24/7 care support. He is 95 years old and wishes to remain in his current resident for as long as he is able. HLA first came to the Tribunal’s notice late in 2011 when his son, HW, lodged an application seeking the appointment of the Public Trustee of Queensland as his father’s administrator to protect his father’s assets and minimise family conflict. HW stated that he held an enduring power of attorney since 2008 but this was revoked by his father in favour of daughter, PP.
HLA has substantial financial assets, part of which includes a Family Trust. In brief, it appears that there is significant conflict between HW who is aligned with daughter HS, and PP over their father’s personal and financial matters. Of note is a contest over who is to control their father’s Family Trust. This matter was considered by the Tribunal through an application for a Declaration of Capacity made by HW on 24 August 2012 and subsequently heard by the Tribunal. Its decision was appealed and the outcome is pending.
Along with the application for a Declaration of Capacity were applications for the review of the appointment of an Administrator and review of the appointment of a Guardian. The Public Trustee of Queensland and Adult Guardian were appointed by the Tribunal on 29 August 2012. Both appointments are approaching their expiry date. As the Declaration of Capacity matter is not finalised, the remaining matters were brought to hearing for review.
In undertaking a review, the Tribunal must act in accordance with s 31 of the Guardianship and Administration Act 2000 (Qld). This section requires the Tribunal to deal with the matter as though it were being considered for the first time. The initial consideration, therefore, is whether HLA has capacity to make decisions for himself in personal and financial matters.
Does HLA have decision-making capacity for personal and financial matters?
On the Tribunal’s file there is an abundance of information that reflects the tensions among those with an enduring interest in HLA’s life. There is also significant information concerning his decision-making capacity. The Tribunal draws attention to nine documents, dated from December 2011 to May 2014.
HLA’s general practitioner for approximately 25 years completed a health professional report for the Tribunal in December 2011. He gave a diagnosis of Alzheimer’s disease with its origin in June 2010. He stated that HLA lacked insight into his situation, presented with significant memory loss, and was able to make decision in simple personal and financial matters only. Similar findings were reported by four specialist in 2012 and into 2013. Medical file reviews were also undertaken by three of those doctors in May 2014 specifically in regard to HLA’s capacity to give an enduring power of attorney in February 2012. These review submissions were consistent in the view that it was unlikely that HLA had capacity to give that power.
There is one anomalous medical opinion on file. Another general practitioner wrote as follows on 31 January 2012, “I confirm I am the doctor for HLA. HLA is of sound mind and holds sufficient testamentary capacity to provide instruction to make a new will and Power of Attorney.” There is no explanation as to how that doctor came to that conclusion.
Participants at the hearing were invited to make submissions concerning HLA’s present capacity to make personal and financial decision. PP’s representative argued that there has been no medical examination of HLA since 2013 to confirm or refute his decision-making capacity and suggested that no decision concerning this matter could be made today. HW and HS shared the view that their father did not have decision-making capacity, primarily due to his preparedness to be influenced by others and his notable short-term memory deficiencies.
HW, HS, and representatives of the Public Trustee and Public Guardian recounted anecdotes of interactions with HLA that reflect serious memory problems.
In coming to its decision about HLA’s capacity for personal and financial decision, the Tribunal is convinced by the weight of medical evidence that HLA is experiencing dementia with significant memory losses. This does not mean that he is incapable of making decisions for himself but his memory losses compromise his ability to understand fully the nature of decisions that he might make and in particular the effects of those decisions and their inconsistencies. Given the conflict between his children and his substantial asset base, it is conceivable that he would be subject to some pressures to act in accord with their requests or bidding.
The Tribunal finds that HLA has dementia to the extent that the presumption of capacity contained in the Guardianship and Administration Act 2000 (Qld) is rebutted in regard to personal and financial matters.
The Tribunal then turned it attention to the need for the appointment of a guardian.
Is there a need for the appointment of a guardian and, if so, who is the most appropriate appointee?
Section 31 of the Act states that the Tribunal may make an order removing a guardian only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for that appointment.
The Tribunal collected oral evidence from all active parties attending the hearing. HW made written and oral submissions in which he proposed himself as his father’s guardian. His case is summarised in his submission dated 4 August 2014. In brief, he stated that the present delegate of the Public Guardian has made a number of faulty decisions including: giving approval for his father to take a cruise in late 2012 (accompanied by a carer); failing to follow up an event in which his father signed papers presented to him at his bowls club by unknown parties; not acting decisively in regard to PP’s actions; and failing to inform family members immediately when their father has been hospitalised.
HS expressed some of her brother’s concerns, notably that there was insufficient communication between the decision-maker and family at times when HLA was experiencing medical crises.
Through a written submission presented orally by her representative, PP outlined six concerns (and ways in which they could be redressed). These included: the production of a statement of HLA’s carers’ duties; limitations on visits by family members; HLA’s involvement in the decisions made for him; communication between the decision-maker and family members; and monitoring of HLA’s personal circumstances via unannounced visits to his home.
The representative of the Public Guardian noted the various concerns but pointed out operational limitations to which delegates are subject. She stated that carers were empowered to make direct contact with family in the case of a medical emergency.
In coming to a decision about the need for the appointment of a guardian, there is no question that there is significant conflict among HLA’s children. This situation inevitably creates tensions between the family and the decision-maker about individual decisions and the expediency of the decision-making process. The main concern appears to be the lack of communication between the delegate and family. Upon reviewing the decisions made by the guardian and the expediency of the decision-making process, the Tribunal finds no evidence of incompetent decision-making. Notwithstanding this finding, a further question must be addressed? Is there a more appropriate appointee?
There is consensus among the siblings that an alternative to the current personal decision-making regime is preferred. HW proposes himself and that appointment is supported by HS. PP vigorously opposes that option.
HW stated that he would communicate with other members of the family if he were appointed and that he has attempted to communicate with PP and her family, but without success. Given the intensity of the feelings between the siblings, a decision of the Tribunal to give decision-making authority to HW is likely to be fraught with difficulties, not the least of these would be decisions that would limit PP’s access to her father to a greater extent than in previous years. HLA’s actions in giving her enduring powers would suggest that she remains part of his existing supportive network and PP was adamant that both she and her father enjoyed each other’s company on those occasions when she has been allowed to visit.
The Tribunal’s fundamental responsibility is to HLA. Any situation that might increase tensions or compromise the General Principles of the Act must be avoided. The Tribunal is of the view that the risks are more likely to be obviated with the appointment of an independent decision-maker than a family member who is subject to the effects of antagonistic relationships that exist within the family.
And while the Tribunal does not question HW’s intentions to ensure his father’s personal well-being, it does not find that he is a more appropriate appointee as guardian at this time.
Is there a need for the appointment of a guardian for HLA?
HLA is 95 years old. He is said to look much younger than his age. In its report of 4 August 2014, the Public Guardian recorded several accommodation, health care, service provision, and contact decisions, plus involvement in a legal matter.
HLA has been admitted to hospital several times in the past two years and health care decisions are likely into the future. It is also likely that an accommodation decision may be needed in the foreseeable future should his health deteriorate. He receives 24/7 in-house support, which requires at least some monitoring to ensure that a high quality of care is maintained. There remains on-going issues concerning the effects of PP’s interactions with her father and, therefore, contact decision are likely if there is evidence of HLA’s distress after interactions with PP. It is unlikely that a guardian will be required for legal matters and the Public Guardian wrote in its report that there are no legal matters pending.
The Tribunal finds, therefore, that there is a need for a decision-maker in areas of accommodation, contact, health care, and the provision of services.
It is apparent that there has been a breakdown in the relationship between the delegate of the Public Guardian and the HLA’s children. The Tribunal recommends that the Public Guardian enters into discussions with PP, HW, and HS with the intention of resolving existing communication issues that are described by PP’s representative in his closing submission to the Tribunal.
Is there a need for the appointment of an administrator and, if so, who is the most appropriate appointee?
The Public Trustee was appointed as HLA’s administrator for all financial matters. HLA’s assets are extensive and include significant share holdings and a 100% interest in a Family Trust, which resides outside of the Public Trustee’s control. This evidence alone confirms the need for the appointment of an administrator.
It appears as though the most significant conflict among HLA’s children is the management of the Trust. HW and HS support the continuation of the Public Trustee of Queensland. PP is less supportive than her siblings but accepts the need for an independent administrator.
During the hearing PP raised a number of concerns. These included the lack of the Public Trustee’s consultation with her father about financial decision, the failure of the administrator to lodge tax returns, the failure of the administrator to talk HLA through the annual statements at face-to-face meetings, and the general transparency of the administration.
Representatives of the Public Trustee outlined actions taken by the administrator over the past two years in regard to resolving issues associated with the Family Trust. They indicated that the Public Trustee had taken action in regard to HLA’s personal tax return and that matters associated with the Family Trust tax return were the responsibility of the Trust management. The administrator undertook the development of a conservative budget, secured an appropriate contract with the care service, and accounted for the sale and reinvestment of shares in accordance with the independent Statement of Advice from RBS Morgans. A representative of the Public Trust stated that the resolution of the concerns suggested by PP are impractical.
No evidence was provided to the Tribunal to support a position that the Public Trustee of Queensland acted incompetently in its management of HLA’s financial affairs. No alternative administrator was nominated by parties at the hearing.
The Tribunal finds, therefore, that there is a need for the appointment of an administrator and that the Public Trustee of Queensland is an appropriate appointee. The Tribunal continues that appointment until further order of the Tribunal.
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