In applications about matters concerning PPN - [2022] QCAT 441

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

PARTIES:

In applications about matters concerning PPN [2022] QCAT 441

APPLICATION NO/S:

GAA993-22; GAA994-22; GAA995-22; GAA3390-22; GAA12345-22; GAA12346-22; GAA12564-22; GAA12565-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 November 2022

HEARING DATE:

17 November 2022

HEARD AT:

Toowoomba

DECISION OF:

Member Endicott

ORDERS:

1. The Tribunal declares that PPN did not have capacity to grant power under the Powers of Attorney Act (Qld) 1998 to any attorney to make complex healthcare, personal or financial decisions and declares that that the purported grant of those powers by PPN on 26 November 2021 was invalid.

2.     In view of the declarations in paragraph 1, the Tribunal declares that the remaining powers granted to attorneys to make simple healthcare, personal or financial decisions by PPN in the Enduring Power of Attorney document dated 26 November 2021 no longer provide adequate decision making support to PPN and that the Enduring Power of Attorney dated 26 November 2021 is revoked.

3.     The Public Guardian is appointed as guardian for PPN for the following personal matters:

(a)     Accommodation;

(b)     Health care;

(c)     Provision of services, including in relation to the National Disability Insurance Scheme; and

(d)     Legal matters not relating to PPN’s financial or property matters.

4.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six (6) months.

5.     The Public Trustee of Queensland is appointed as administrator for PPN for all financial matters.

6.     The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

7.     The Tribunal directs the administrator to provide accounts to the Tribunal no later than 28 days before the hearing of the review of the appointment in 2023.

8.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in six (6) months.

9.     The two applications by PD for directions about PPN are dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where validity of an enduring document is in question – where power to declare an enduring document as valid – where power to revoke part of an enduring document – whether a partially revoked enduring document is appropriate in the circumstances

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where Tribunal is satisfied the presumption of capacity is rebutted – where there is a need for the appointment of a guardian and administrator – where appropriateness considerations are considered – where there is conflict between proposed appointees – where proposed appointees found not to be appropriate for appointment - whether an independent decision-making entity should be appointed

APPEARANCES & REPRESENTATION:

Adult:

PPN with appointed representative J Abraham, ADA Law

Applicant/s:

BMS represented by K J Kluss of Counsel instructed by Recovery Legal

PD represented by M Crofton of Counsel instructed by Hallewell Law

Proposed Guardian/s:

BME and LAT

PD

Proposed Administrator/s:

BMS and LAT

PD

Current Attorney/s:

BMS and then LAT and PG

REASONS FOR DECISION

Today the tribunal is considering a suite of applications to do with PNN. At what I understand to be last count there were one, two, three, four, five, six, seven, eight applications that were for determination today. The tribunal is very pleased that PPN was able to attend and hopefully is not unduly distressed by the legality and the formality today, but this is a formal and a legal process. The tribunal’s also pleased to see that the relevant parties are represented by very competent and very good counsel, and that also Mr Abraham has done significant work in fleshing out the views and wishes of PPN and bringing them to the attention of the tribunal. This has made my job so much easier, but it’s not about me. It’s about PPN.
As I said at the start of the hearing, on reading the extensive documentation, the thought that kept on occurring to me is there’s a fundamental flaw in all these applications that I had to bring to the attention of the parties now that I am formally constituted as the hearing tribunal of these applications. And that flaw is what I have identified: that while the focus quite understandably has been on the statutory requirements for a person to be able to grant a valid enduring power of attorney, that totally overlooked – until, I think I can say, until now – the other factors, the fundamental factors that this is an agency relationship. An agent cannot have greater powers than their principal. That a person who is said to have impaired decision-making capacity for some areas of decision making cannot rectify that lack of capacity by appointing someone else with capacity to make those decisions. That is, by appointing an attorney. The tribunal can do so by appointing a guardian and an administrator. That’s the whole point of the Guardianship and Administration Act. But a person themselves cannot, by their own means, rectify what is likely to be a finding of law that there’s some area of impaired decision-making capacity despite being able to understand either completely or superficially – and I don’t need to go near that today – the mechanisms and the requirements for making an enduring power of attorney under the Act in Queensland.
So, the tribunal has read all of the documents and particularly given a great deal of focused attention to the evidence before the tribunal about decision-making capacity. The report of Dr Barkley Tinmes, a clinical psychologist, from the 19th of February 2022 is a starting point that I embarked upon. That report writer is an eminently qualified clinical psychologist who conducted what was the expected and usual battery of assessments of the cognitive and adaptive functioning of PPN. The tribunal notes that there were, as a result of that assessment in February 2022, areas of cognitive and functional capacity that clearly were considered to be indicative of a mild intellectual impairment and adaptive skills in the borderline range. I won’t go into great detail – I don’t mean to distress or embarrass PPN in any way.
The psychologist, whilst she expressed the opinion – that she’s qualified to do as a medical person – that PPN would have been able to have the requisite level of understanding to make the enduring power of attorney in November 2021, she did not really address the consequential legal issue. And of course she wouldn’t; she’s not a lawyer.
Dr Mark Sykes said on the 24th of November 2021 that he considered on his consultation with PPN that she was fit and confident to make a considered decision regarding appointment of decision-makers for a medical power of attorney. I don’t quite understand what he meant by that. But generally, what I think he meant was that she could grant an enduring power of attorney.
Then, there’s the reports, I think, that Dr Sykes provided a month later on the 10th of December 2021 and was a bit more fulsome in his opinion. He said that he had known PPN since February 2020, that she could discuss and express to him her plans and wishes about her lifestyle, her accommodation, her dietary and health choices. In relation to her ability to understand and act on information for health care decisions, Dr Sykes considered that PPN understands the need for medical oversight with her health care and potential consequences for not following advice, and the complexity – given the complexity of her epilepsy management. In relation to lifestyle and accommodation decisions, ability to understand and act on information with decision making – said that PPN could understand the issues, that she tries to keep her family aware of her views and plans and tries to mediate when family members are in disagreement. Again, he doesn’t quite say, perhaps, clearly that she could understand the nature and effects of all of the information on which decisions are based. He went back on a bit of a tangent there. As to financial decisions on this part of the form, he said that she would not have competence for complex financial decisions and the potential consequences of those decisions.
Dr did say that PPN could make her own decisions freely and voluntarily. She was positively influenced by her sister, S, and, also, that the GP did note – and this is quite open on his part – that he had known S for some 44 years. He made a finding or a statement that, in relation to receptive and expressive communication skills, that PPN had some mild expressive dysphasia but could express herself clearly, said she could understand all of the section 41 factors for making an enduring power of attorney, but at the end of his report is where his opinion as a medical practitioner is found, and he says, in relation to health care decisions, “no”, “can’t make complex decisions”, “can make simple”. In relation to lifestyle and accommodation decisions, “no”, “cannot make complex decisions”, “can make simple”, and as to financial decisions, “no” to complex and “yes” to simple, as a result of the impacts of her acquired brain injury when she was a child.
Now, there were other reports, which I’ve also read, Dr McLachlan and Dr Kleinschmidt, which were not as clear as the process undertaken by Dr Skyes and, particularly, by the clinical psychologist. However, I note for today’s purposes that there is no material before the tribunal to effectively challenge the opinions of both the clinical psychologist and Dr Sykes that PPN does have, at the time of the reports and, I have no reason to doubt, on a continuing basis, impairment of her ability to fully understand the nature of more complex decisions in her life, how to formulate those decisions and choose between the options in those areas and, if she does so, would not be able to articulate an understanding of all the relevant consequences flowing from a choice in a more complex decision making incident.
So the tribunal, when it looks at that information, came to the clear view that PPN could not, as a matter of law, delegate to an agent, that is, her attorneys, powers to make decisions that she lacked the capacity to make herself. On that basis, despite any further consideration of the section 41 of the Powers of Attorney Act considerations, I have formed the opinion that the enduring power of attorney made on the 26th of November 2021 is partially invalid, in that, it is invalid to the extent that any purported granting of powers to the attorneys for complex health care, personal and financial matters was made. So I’ll make a declaration in those terms.
That leaves, what I very ungraciously called the rump of the enduring power of attorney. That is, do I leave in place a document that is only valid, and somewhat confusingly, for third parties in relation to the grant of powers for simple matters only. The tribunal has also looked at what’s fair for PPN. Is it fair that ongoing decisions that she can make now on the evidence of these doctors will now be still subject to whether or not they should be made on her behalf by attorneys? Certainly, health care decisions of a simple type can’t be made because, under the Powers of Attorney Act – or even personal matters – there isn’t the trigger, which is the skipping over from capacity to incapacity, in those areas. That only leaves financial matters. It is too confusing. The tribunal considers it’s not in the interests of PPN to have a document that, on its face, is inconsistent with the declarations I have made and causes third parties not to be fully aware of what the legal position is in relation to decision making support.
So under the Powers of Attorney Act, the tribunal has the power to revoke an enduring power of attorney, not just on the grounds that it was invalid from the first place but, also, because there are either changed circumstances or is no longer an appropriate decision making regime in the current form. I am satisfied that that is the best way to stop confusion in this matter, and I will revoke the enduring power of attorney made by PPN on the 26th of November 2021 as far as it’s granted powers over and above those which have been the subject of the preceding declaration as to invalidity. I’ll try to make that sound a little more elegant in my written decision. In relation to the application for directions, Mr Crofton, I will dismiss those. They are irrelevant now, given the revocation and the declarations I’ve made.
In relation to the other applications about the appointment of a guardian or administrator, the tribunal does consider on the evidence before the tribunal that there is an unchallenged opinion by her medical providers and, indeed, by her family members who have filed material before the tribunal that PPN does have some areas where she would not be able to fully demonstrate an understanding of the nature and the effects of more complex decisions in her life, and she would not be able to understand the consequences of making those decisions. I know it’s been suggested throughout this matter that, look, PPN doesn’t have a complicated financial life, but she does. It is so more difficult to manage a small income from a disability support pension than it is to manage the income that the professionals or other people in this room have from their wages. There’s limited income. There’s still the same liabilities and expenses that arise. So balancing how to pay those matters from a limited income, in my view, is clearly a complex financial matter.
So I do find that there are very many complex financial decisions in the life of PPN, and there are, undoubtedly, complex personal matters, particularly around her service provision. PPN is a participant in the NDIS. I’m aware from sitting on this tribunal, since the NDIS has come into operation, that it is difficult and complex to work out and negotiate appropriate plans every one or two years with the NDIA and then, once you have a degree of funding, to be able to work out who to engage, how to work with the support coordinator, how to ensure the views and aims of the person are fully able to be met with the funding and the resources available, and then, if someone is not living up to their service provision declarations, then how do you get rid of them and replace them with someone more appropriate.
So there are a lot of complex personal decisions required in the life of PPN. And, lastly, health care. PPN from the information before the tribunal does have complex health care needs. Thankfully, most of those needs are now met by routine medical arrangements but that may not always be the case. I am very concerned, of course, about her refractory epilepsy, the impact that has upon her health generally and the long-term consequences of the medication and the seizure activity on her functioning longer term, particularly as she ages, as we all are.
So the tribunal is satisfied on the evidence under section 12 – perhaps I should have been highlighting where I was going – section 12 of the Guardianship and Administration Act that there are decisions of a complex personal, health care and financial nature that need to be made for which PPN would need support. Perhaps I should also, under section 12, make a finding of law that PPN does have impaired decision-making capacity for complex health, personal and financial decisions.
That leaves the last bit of section 12, which is this. If the tribunal today says, “Well, there must be other options than appointing a guardian and administrator in the circumstances of this large family of people who are grown up, skilful and very competent adults. Surely, there must be a way for meeting the decision-making needs of PPN rather than the tribunal having to put in place what may not be the least restrictive option, that is, a formally appointed guardian and administrator. However, without any aspersions on the current level of the functioning from the family, I am satisfied that informal support, as Mr Abraham has pointed out in his written submissions, unfortunately, is not adequate.
There are too many incidences in the history, particularly over the last couple of years where informal support, although well-meaning, is likely to be undermined, is likely to be subject to review and may hold up the implementation of proper decisions about health care, services, financial management and the like. So the tribunal is satisfied that this is not a case where informal support can adequately meet the decision-making needs of PPN or, indeed, her other needs. So that leaves then who should be appointed? The tribunal must, under section 15 of the Guardianship and Administration Act, take into consideration what is quaintly called the appropriateness considerations.
I think the submissions from Counsel and from Mr Abraham have touched upon these already. But it is a matter for the tribunal trying to work out who would be the most appropriate person to be able to apply the General Principles, to make decisions without any conflicts of interest, to make decisions that take into account not only the views and wishes and preferences of PPN but also her interests. And sometimes, the views and wishes are not consistent with wishes. Just yesterday, for the first time in a long time, I overrode the express views of an adult and appointed someone that perhaps was not her first choice or her cup of tea because it is clear on the evidence that that was not in her interests.
So the tribunal is satisfied in this case that after evaluating – and I have not gone into great detail – the evidence of the parties there are, to put it colloquially, fingers being pointed at all the proposed appointees about their appropriateness. The overwhelming synthesis of that information is that I cannot be satisfied that at this stage, the proposed appointees on both sides would be able to apply the General Principles given the recency of the hostility and the lack of cooperation between them. That was not the case two years ago. I have read all the emails that were quite friendly and passed between the relevant parties and, hopefully, that can be resorted to again.
But at the present time, I cannot be satisfied that the well-meaning and very highly regarded by everyone, apart from the other side of the family, proposed appointees, namely, BMS, LAT, even PG – in this case, I have heard that PK is also a proposed appointee – and as well, PD, at the moment would struggle to satisfy the appropriateness consideration in all aspects because there some aspects where there are conflicts of [indistinct] interest and likely that some of the religious or lifestyle beliefs of PPN [indistinct] given the weight that perhaps that might be and those issues. So long way of saying under section 15, I do come to a view at the moment that the only way that effective decision-making support for complex matters can be given to be PPN is by appointing what I guess we call independent; a non-family decision-maker. I hear at the present time that that is the view that the family, through its Counsel, has reluctantly come to as the present way to solve an impasse.
I note that under section 15, I cannot appoint the Public Guardian unless I am satisfied there is not anyone more appropriate at the present time or appropriate at the present time. For all the reasons I have just rambled through, I have come to the conclusion that no one else at the moment is appropriate and that the prohibition against putting up the Public Guardian has been fully set aside by the evidence and the reasoning that I have adopted.

The tribunal has to consider then what areas of decision-making should be, at the present time, put in the hands of a guardian. I will not make a plenary appointment. I do not think I have for years, unless it is a very unusual circumstance. I do not see a plenary appointment, that is, to cover every personal matter, is anywhere in the interests of an adult who is not in a coma. So the tribunal will appoint the Public Guardian as a guardian for PPN for the following personal matters: where she lives, the accommodation decisions, because there may be changes, exciting changes, coming up but I do not know, and for service related decisions, particularly in relation to the NDIS and also for health care. I have thought about leaving health care under the statutory health attorney regime now that the enduring power of attorney has been revoked. But I am not satisfied at the current time that that would meet the decision-making needs for health care for PPN, for all the reasons I have already discussed about informal decision-making support being inadequate.
The tribunal also considers that there might be, very unlikely, and the Public Guardian will not like me saying that – but there might be some legal decisions to be made that are not relating to her property or financial matters. If that is the case, I think there should be someone with clear capacity and authority to involve themselves in those legal matters. I cannot see any other decision-making areas where formal support is required. I will not give in the hands of the guardian any contact decision-making power. PPN should have sole discretion as to who she sees and when and I do not pick up that there is any real – well, perhaps, in the past, there has been allegations of this – any real obstacles to PPN having that decision-making power.
So the guardian is appointed for those matters: accommodation, health care, services, particularly in relation to the NDIS, and for legal matters not relating to her property or financial matters. This appointment is until further order but it is reviewable. And, look, let us be optimistic. Say it is reviewable in six months’ time. Now, already heard in open hearing that may not be six months from the day when you add up your fingers but it will be around that time. In relation to the appointment of an administrator, similar considerations apply to which I have already gone through in relation to the guardian.
I have made a finding of law that PPN, at the present time, has impaired decision-making capacity for complex personal decisions and financial decisions. I have indicated that I consider that even everyday management of her budget; of her expenditure and of her income would be, in the context of this case, a complex financial matter. For example, a simple matter would be going to the shop and handing over the money and buying some groceries. I do not think an administrator has to get themselves involved in that.
So the tribunal has made a finding of law that PPN has impaired decision-making capacity for complex financial decisions. Under section 12, I am satisfied I have already articulated a degree of likelihood that there will be complex financial decisions to be made.
The other part of section 12, again, if I do not appoint an administrator today, will PPN, nevertheless, still have adequate support in place to meet her decision-making needs. Again, I must say no. She has good support and no doubt will look to people around her for continuing support. But given the reasons I have already alluded to, the history – short-term history of discordance and hostility: that, alone, is not enough. It is the consequences of that. The fact that decisions made on a formal basis would be undermined; they will be challenged; they would be held up because of the views of other people also in the informal support network. And that is not in the interests of PPN.
So the tribunal will appoint an administrator and, at this stage, it will be all financial matters. I cannot see a way, in practice, to extract from that appointment areas in advance of decision-making where PPN is without an administrator. But that is for the administrator and the family to work out. And that is what happens on a practical basis.
The appointment of the Public Trustee of Queensland is, similarly to the Public Guardian, at this stage, the only practical way to give decision-making support; as I consider that, for the reasons already expressed, the family is not able, at the moment, to be able to satisfy me that it could perform the formal decision-making role of an administrator and be appropriate under section 15.
I urge the family to work with the Public Trustee. Now, I will tell you it will be also reviewed in six months time so that there can be maximum use of the support of that entity; that they can set up ways of which to ensure that PPN is given, by her administrator, the maximum degree of autonomy and agency over any funds distributed to her; and that they, I suppose, initially – it is only a short period – initially look at some of the payments they can make on her behalf. But to try to work with the Public Trustee in a very limited period of time to work out to what extent control of expenses can be delegated to PPN as soon as possible.
Be nice to have a track record of actual management by PPN when this appointment is reviewed. I think it is probably unlikely that it could be in the narrow timeframe, but it might be possible. The tribunal will dispense with the need of any financial management plan to be given by the Public Trustee at this stage. And I direct, as usual, that accounts are provided when required and accounts will be required in this case, I would say, 30 days before the review hearing. Any other time period would just be too tight.
In relation to the Human Rights Act, this Act and the requirements on the tribunal have been the top of my mind from the outset. The Human Rights Act impacts upon the decisions of this tribunal and these applications in two ways.
One, the tribunal is required to interpret its statutory provisions in a manner that is compatible with human rights. I have urged myself and I have urged the parties throughout today’s hearing to approach – as far as I am concerned – this matter from the viewpoint of what is in the interests of PPN. Not as a paternalistic way, but by working with her rights.
In this case, I am satisfied that my interpretation, both of the Powers of Attorney Act and the Guardianship and Administration Act is totally consistent with keeping in place focus on the rights of PPN. Particularly the rights under the Human Rights Act. It is only by having a substituted decision-making regime can the flaws in the current, and now revoked, enduring power of attorney can be rectified. No other way, unfortunately, is possible.
The second way in which the Human Rights Act impacts upon this tribunal is this: by making appointments of guardians and administrators, it is said – and I have no reason to doubt it – that the tribunal is acting in an administrative capacity. Therefore, it is a public entity as defined in the Human Rights Act. The Human Rights Act says hey, public entity, you are prohibited from making decisions without giving proper consideration to the specified human rights of PPN as set out in that Act.
There are several of the rights set out in the Human Rights Act which, in my view, are engaged by the applications today. They are – and I will not go through them exhaustively – the right to a fair hearing. There is a right, on her part, to recognition and a quality before the law. There is a right to freedom of movement. There is a right for her to be enjoying and have autonomy over her property. There is a right to privacy and reputation. And there is a right to health services.
As to a fair hearing right, the tribunal is pleased that PPN has been able to take part, today, in the formal hearing. And, no doubt, to some extent, with the help of her appointed representative in the less-formal negotiations that occurred also today.
That is not the end of the obligation to provide a fair hearing. Both under the QCAT Act and the Guardianship and Administration Act, the tribunal is obliged not to make decisions until it has ensured it has all relevant information on which to reach the correct and preferable decision. The tribunal has a lot of information; evidence from the various parties; medical reports setting out facts known to the doctors and opinion evidence; and the tribunal has received submissions from legal representatives.
The tribunal considers – again, talking in the third person – I consider that the tribunal has given proper consideration and has been able to be satisfied that it has all relevant information on which to reach the correct and preferable decision in these applications. Therefore, I am satisfied that the tribunal has fully discharged its obligation to provide a fair hearing in these applications.
As to the other specified rights, they have been the direct focus of everything that has been done in these applications and, particularly today by this tribunal. They are not absolute rights in the sense it is not the law that those rights must be upheld to the exclusion of any other factor. There are other rights that PPN has that are outside the scope of the Human Rights Act.
The Guardianship and Administration Act sets out a right, a statutory right, for a person with impaired capacity to have adequate support in place for decision-making. Due to the legal reasoning I have followed, I have come to the conclusion that the attempt, in November 2021 did not provide adequate support for decision-making. Some other way had to be put in place.
The provisions set up under the Guardianship and Administration Act are the ideal way to give support. Over the years that Act has been amended and the focus has changed from being unduly protective of someone with impaired capacity, to recognising their rights and recognising that it is the support for decision-making that is central in all this. It is only by putting in place these formal supports will adequate support for decision-making be able to be achieved.
So the other rights that I have alluded to can only be exercised by an appointed decision-maker at the present time, in the circumstances of this case. So I am satisfied, under the Human Rights Act, that proper consideration was given to those rights before any decision was made by this tribunal. I also acknowledge – finally, I am coming to the end – under section 13 of the Human Rights Act, that that leads to a limitation in the exercise, by PPN, of those rights I have mentioned.
But in reality, it is not the mere fact that a guardian and an administrator has been placed that provides that limitation; it is the underlying legal decision that she lacks decision-making capacity of the requisite level to make complex decisions about healthcare, personal matters and financial matters. That is the reason for the limitation in the exercise of these rights co-existing with the presence of the guardian and the administrator.
So for all that I have set out in these reasons, it is clear that a justification has been made for the limitation, at law, of these rights; and that the outcome of that limitation is reasonable. Because without that limitation, PPN’s rights would, effectively, not be able to be exercised in an authorised and legal manner. So, again, putting on the record, the outcomes are as follows.
A declaration is made that the enduring power of attorney made on the 26th of November 2021, in which PPN purported to grant decision-making authority to her attorneys to make complex healthcare, personal and financial decisions is declared invalid. In view of that declaration, the tribunal declares that the remaining elements of the enduring power of attorney, dated the 26th of November 2021, cannot provide adequate decision-making support to PPN and therefore, the enduring power of attorney is revoked.
The tribunal appoints the Public Guardian as the guardian for PPN for the following personal matters: accommodation, healthcare, services – particularly in relation to the NDIS – and legal matters not relating to her property or financial matters. This appointment of the guardian is reviewable; it stays in place until further order; is reviewable and will be reviewed in six months’ time.
The tribunal appoints the Public Trustee of Queensland as the administrator for all financial matters for PPN. The tribunal dispenses with the need for a financial management plan; directs the administrator to provide accounts to the tribunal when requested and, in this case, no later than 28 days prior to a review of this appointment taking place. This appointment of the Public Trustee remains in place until further order. It is reviewable and also will be reviewed in six months’ time.
I dismiss the applications for directions and I think I have covered, in those orders, every single application.