In applications about matters concerning RV

Case [2019] QCAT 384

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


PARTIES:

In applications about matters concerning RV [2019] QCAT 384

APPLICATION NO/S:

GAA4795-19; GAA4796-19; GAA4797-19; GAA9099-19; GAA9100-19; GAA7401-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

 9 December 2019

HEARING DATES:

13 June 2019, 21 August 2019 and 12 November 2019

HEARD AT:

Cairns

DECISION OF:

Member Stepniak

ORDERS:

13 June 2019, 21 August 2019 and 9 December 2019.

On 13 June 2019

GUARDIANSHIP

1.    The Public Guardian is appointed as guardian for RV for the following personal matter

2.    With whom RV has contact and/or visits

3.    This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed on 21 August 2019.

ENDURING POWER OF ATTORNEY

4.    The following Enduring Power of Attorney for RV is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000, can no longer be acted upon to the extent that this appointment has been made.

5.    The Enduring Power of Attorney dated 20 August 2018 appointing IV as attorney for financial, personal and health matters.

REPRESENTATION

6.    Leave is granted for RV to be represented in these proceedings

ADJOURNMENT

7.    The hearing is adjourned to 21 August 2019 at Cairns Courthouse at 9.30 am.

8.    This order serves as notice of hearing for the hearing on 21 August 2019.

On 21 August 2019

GUARDIANSHIP

1.    The guardianship order made by the Tribunal on 13 June 2019 is changed by appointing the Public Guardian as guardian for RV for RV for the following personal matter:

(a)    With whom RV has contact and/or visits for short or long periods.

2.    This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) months.

ADJOURNMENT

3.    The hearing is adjourned to 12 November 2019 at Cairns Courthouse at 10.45 am.

4.    This order serves as notice of hearing for the hearing on 12 November 2019.

On 12 November 2019

RESERVED DECISION

1.    The Tribunal Reserves its Decision

2.    The Tribunal’s decision and written reasons will be mailed to all parties.

On 9 December 2019

DECLARATION ABOUT CAPACITY

1.    RV did not have capacity for executing the Enduring Power of Attorney dated 20 August 2018

DECLARATION ABOUT VALIDITY OF ENDURING

POWER OF ATTORNEY.

2.    The following Enduring Power of Attorney for RV declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.

3.    The Enduring Power of Attorney dated 20 August 2018 appointing IV as attorney for financial, personal and health matters.

DECLARATION ABOUT CAPACITY

4.    RV did not have capacity for executing the Advance Health Directive dated 25 March 2019. 

DECLARATION ABOUT VALIDITY OF ADVANCE HEALTH DIRECTIVE

5.    The following Advance Health Directive for RV is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act

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AGLC
In applications about matters concerning RV [2019] QCAT 384
Case
[2019] QCAT 384
Decision Date

CaseChat Overview and Summary

The case involved an application by the Public Guardian concerning RV, who was alleged to have impaired capacity for personal, health, and financial matters. The application was supported by numerous written submissions, oral evidence, and a report on an investigation conducted by the Public Guardian. The primary legal issues the court had to decide were the capacity of RV for various matters, the need for the appointment of a Guardian and Administrator, and the validity of certain legal documents such as the Enduring Power of Attorney (EPA) and Advance Health Directive. The court also needed to consider allegations of financial exploitation against IV, the son of RV who was named as her attorney in the EPA.

The court began its analysis by examining the medical evidence presented, which showed a decline in RV's cognitive abilities over time. Dr. GM's report, based on his assessment of RV in October 2015, indicated mild cognitive impairment and a need for some assistance in daily activities. Considering the evidence and submissions, the court found that RV had impaired capacity for personal, health, and financial matters. Consequently, the Public Guardian was appointed as the guardian for RV for certain personal matters and the Public Trustee of Queensland was appointed as the administrator for RV's financial matters. The court also declared the EPA and Advance Health Directive invalid due to RV's lack of capacity at the time of execution.

In the context of the allegations of financial exploitation against IV, the court found that he had failed to maintain proper records and accounts of his administration of RV's finances, as required by the Powers of Attorney Act 1998 (PAA). The court concluded that this failure, along with other breaches of his responsibilities, suggested that IV may not be a suitable person to be entrusted with responsibility for RV's financial matters. The court ordered the Public Trustee of Queensland to investigate and, if appropriate, take action to transfer the title of RV's property back to her and to challenge her will made on 13 July 2017.

Orders

Orders of the court

On 13 June 2019

GUARDIANSHIP

1. The Public Guardian is appointed as guardian for RV for the following personal matter

2. With whom RV has contact and/or visits

3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed on 21 August 2019.

ENDURING POWER OF ATTORNEY

4. The following Enduring Power of Attorney for RV is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000, can no longer be acted upon to the extent that this appointment has been made.

5. The Enduring Power of Attorney dated 20 August 2018 appointing IV as attorney for financial, personal and health matters.

REPRESENTATION

6. Leave is granted for RV to be represented in these proceedings

ADJOURNMENT

7. The hearing is adjourned to 21 August 2019 at Cairns Courthouse at 9.30 am.

8. This order serves as notice of hearing for the hearing on 21 August 2019.

On 21 August 2019

GUARDIANSHIP

1. The guardianship order made by the Tribunal on 13 June 2019 is changed by appointing the Public Guardian as guardian for RV for RV for the following personal matter:

(a) With whom RV has contact and/or visits for short or long periods.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) months.

ADJOURNMENT

3. The hearing is adjourned to 12 November 2019 at Cairns Courthouse at 10.45 am.

4. This order serves as notice of hearing for the hearing on 12 November 2019.

On 12 November 2019

RESERVED DECISION

1. The Tribunal Reserves its Decision

2. The Tribunal’s decision and written reasons will be mailed to all parties.

On 9 December 2019

DECLARATION ABOUT CAPACITY

1. RV did not have capacity for executing the Enduring Power of Attorney dated 20 August 2018

DECLARATION ABOUT VALIDITY OF ENDURING

POWER OF ATTORNEY.

2. The following Enduring Power of Attorney for RV declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.

3. The Enduring Power of Attorney dated 20 August 2018 appointing IV as attorney for financial, personal and health matters.

DECLARATION ABOUT CAPACITY

4. RV did not have capacity for executing the Advance Health Directive dated 25 March 2019.

DECLARATION ABOUT VALIDITY OF ADVANCE HEALTH DIRECTIVE

5. The following Advance Health Directive for RV is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.

6. The Advance Health Directive dated 25 March 2019 directing IV, her attorney for personal/health matters.

DECLARATION ABOUT CAPACITY

7. RV did not have capacity for transferring the title of her property at 4 Paradise Close, White Rock, on 20 September 2017.

GUARDIANSHIP

8. The appointment of the Public Guardian as guardian for RV for the following personal matters:

(a) With whom RV has contact and/or visits.

is changed by appointing the Public Guardian as guardian for RV for the following personal matters

(a) Accommodation, and

(b) With whom RV has contact and/or visits.

9. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 2 years.

ADMINISTRATION

10. The Public Trustee of Queensland is appointed as administrator for RV for all financial matters

11. The Tribunal Dispenses with the requirement for the administrator to provide a financial management plan.

12. The Tribunal directs the administrator to

13. provide accounts to the Tribunal when requested.

14. Investigate and, if viable and appropriate in all the circumstances, to take such action as is required to:

(a) Transfer the title to the property at 4 Paradise Close, White Rock back to RV.

(b) Challenge the will that RV purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015.

(c) This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In seeking to ascertain whether the Adult may be said to have an impaired capacity for a matter or type of matter, be it personal or financial, I turn first to consider available medical evidence. Medical Evidence A number of medical reports were submitted or requested by the Tribunal. I will consider them chronologically. The earlier medical reports are not only helpful in establishing comparisons and trends and developments in the Adult’s assessed capacity, but also serve as directly relevant evidence of the Adult’s capacity at specific times in the past. Consequently, while the Adult’s capacity for purposes of the applications for the appointment of a Guardian and Administrator relates to her current capacity, capacity, with respect to the EPA, transfer of her house and other decisions by the Adult needs to be assessed as at the time of the decisions and transactions. 2015 On 27 August 2015, Dr SM, the Adult’s GP since 2013, referred the Adult to the Cairns Hospital Aged Care Service ‘for declining cognition, general deterioration in the setting of becoming widowed recently’. Doctor GM (Senior Medical Officer for Geriatrician Dr SA), wrote a report after seeing the Adult on 16 October 2015. Dr GM’s report, dated 3 December 2015, is based on his assessment of the Adult that was undertaken 7 months after the death of the Adult’s husband on 15 March 2015. In his report, Dr GM notes the Adult’s low Mini Mental State Examination (MMSE) scores – the lowest being 19/30 in an exam by the Older Person’s Mental Health Service in 2015. However, Dr GM observes that the death of the Adult’s husband only 3 months before this assessment may have contributed to her low scores on cognitive testing. Noting a possible deterioration in the Adult’s cognitive ability, Dr GM reports that while she had scored 28/30 in her ACAT assessment on 21 July 2014, she scored only 24/30 on 23/9/15. He viewed the Adult’s most recent score of 24/30, as indicative of mild cognitive impairment. As to the Adult’s functionality, Dr GM reports that the adult attained a perfect score on the Bartel Index ‘indicating independence in self care and mobility’. Her Instrumental ADL score was 22/24, indicating the need for some assistance. Doctor GM observes that the Adult had been doing grocery shopping and associated handling of finances on her own. On the other hand, Dr GM notes that the Adult was disoriented to time and that her failing memory was frustrating her, and causing her to misplace things, and to not be able to recognise ‘financial cards.’ He further reports that while the Adult still handled simple tasks such as shopping, IV has had to take over her financial transactions, including the payment of bills. Doctor GM observed that the Adult’s IQCODE score of 3.6/5 was indicative of a moderate cognitive decline over the past 10 years. His diagnosis was that RV had a generalised anxiety disorder, indication of depression, and a mood disorder in the form of depression and anxiety.

Decision

Reasons for decision

To ensure that the Adult has access to adequate and appropriate care in suitable accommodation also calls for open lines of communication between those with whom she may be staying temporarily or permanently. This is difficult to envisage within the current decision-making arrangement.The Public Guardian’s Overall Conclusions Regarding the Investigation The Public Guardian considers the Adult to have impaired capacity for financial, personal and health matters On the basis of the Investigation’s findings, the Public Guardian considers it necessary to take the following protective action in relation to the Adult The Tribunal notes the evidence and submissions by the Public Guardian, and further addresses them below. The applications from the Public Guardian and GM, numerous written submissions, oral evidence and submission in the hearings, together with the Report on the Investigation conducted by the Public Guardian, require the Tribunal to address and determine the following issues:(a)Declarations about Capacity(1)The adult’s present capacity with respect to personal, health and financial matters(ii)The adult’s capacity to execute the Enduring Power of Attorney appointing IV as her Attorney on 20 August 2018 (iii)The adult’s capacity to transfer title to her White Rock property to her son IV on 20 September 2017.(iv) The adult’s capacity to make a will on 13 July 2017(i)The adult’s capacity to make an Advance Health Directive on 25 March 2019(b)The presently existing need for the Appointment of a Guardian and Administrator for the Adult(c)The Validity of the Enduring Power of Attorney appointing IV as the Adult’s Attorney on 20 August 2018 (d) The Validity of the Adult’s Advance Health Directive dated 25 March 2019. Capacity is central to a number of the issues that the Tribunal must address in response to all of the applications. (a)Unless the Adult’s present capacity is found to be impaired, the Tribunal is not empowered to further consider the applications seeking the appointment of a guardian and administrator.(b)A finding of currently impaired capacity with respect to personal/health matters would also signify that the attorney’s power with respect to non financial matters has commenced.(c)Determination of capacity at relevant times is also relevant to the validity of specific decisions and documents, such as the Adults appointment of an attorney through an EPA, and other decisions purportedly made by the Adult, such as the transfer of title to her home, the Adult’s will, and her Advance Health Directive. I begin my examination of the Adult’s capacity by considering it for the purpose of the two applications seeking the appointment of Guardians and Administrators. The governing law provides that the appointment of an Adult and Administrator can only be considered where the Tribunal is satisfied that an Adult’s capacity to make decision about her personal, health and/or financial matters is impaired. Specifically, Section 12(1) of the GAA states that—12(1)The Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied –(a) the adult has impaired capacity for the matter….

Ratio Decidendi

Legal Principle Established

Finally, IV’s lawyer conceded that his client had not kept records and accounts of his administration of the Adult’s finances as required by s 85 PAA. The earliest receipt kept by IV was from early December 2018. The explanation offered was that IV ‘was under the impression that the bank statements that had been provided were all that he needed to comply with legislation.’The Tribunal’s Consideration and Findings Re Allegation 1 In the course of these proceedings, IV has submitted numerous statements regarding financial transactions and accounts by the Adult and by IV. These statements disclose that on numerous occasions IV used his own money to pay for items of benefit to the Adult. The accounts also disclose that the Adult’s funds were regularly used to address not only the Adult’s needs. For example, I note that the budgeting for a fortnightly expense of $500 on groceries is difficult to reconcile with the needs of an elderly woman. I also don’t accept that payment for Foxtel entertainment or motor vehicle insurance can be described simply as for the Adult’s benefit, rather than for the benefit of both the Adult and IV. Similarly, withdrawals made from the Adult’s account in the period 15 September 2018 to 31 October 2018 appear to disclose specific purchases unlikely to be for the benefit of the Adult. In using both the Adult’s and his own finances to pay for joint and individual needs, IV appears to have failed to ‘keep his property separate from the principal’s property as required by s 86(1) of the PAA’. In explanation, he has stated, ‘I cannot support my mother on my pension alone, we have to both pool our money to survive on a daily basis’. By not ensuring that that the Adult’s finances were used only for her own benefit he may also be said to have gifted the Adult’s money to himself in breach of s 88 of the PAA. Tribunal Findings Re Allegation 1 As disclosed and conceded by IV, I find that IV has failed to keep records and accounts of his administration of the Adult’s finances as required by s 85 PAA. While this is not necessarily evidence that he financially exploited the Adult, it is undoubtedly evidence of his failure to comply with the obligations of an attorney under an EPA. As the Public Guardian reports, IV’s failure to maintain records and accounts makes it very unclear whether he has acted honestly and protected the Adult’s interests as required by section 66 of the PAA. Inconclusive evidence as to this allegation, together with his breaches of prescribed responsibilities, suggests that IV my not be a suitable person to be entrusted with responsibility for his mother’s financial matters. The Report outlines relevant legal provisions governing transactions between the principal (the adult) and the attorney (IV). The Public Guardian reports that the explanation for the transfer of title, offered by IV and his then lawyer, BC, is that it was a decision taken following a verbal confrontation with his sister RL, physical assault by his brother SV, and repeated indications that RL intended to ‘kick him’ (IV) out of the home and place the Adult in aged care’. IV told the Public Guardian that both the Adult and he had became concerned for their welfare.