JB
[2010] QCAT 689
•19 October 2010
CITATION: JB [2010] QCAT 689
PARTIES: JB
APPLICATION NUMBER: GAA 7066-10; GAA 7067-10
MATTER TYPE: Guardianship and administration matters
HEARING DATE: 19 October 2010
HEARD AT: Maroochydore
DECISION OF: Louise McDonald
Adrian Williams
DELIVERED ON: 19 October 2010
DELIVERED AT: Maroochydore
ORDERS MADE: 19 October 2010
CATCHWORDS : Capacity of adult – Need for administrator – Appropriateness of appointee under power of attorney
Powers of Attorney Act 1998
Guardianship and Administration Act 2000
ENDURING POWER OF ATTORNEY
That the following Enduring Power of Attorney for JB is revoked pursuant to section 116(d) of the Powers of Attorney Act 1988, and section 82(2) of the Guardianship and Administration Act 2000:
(a) The Enduring Power of Attorney dated 20 April 2010 appointing HB, TW and DW as attorneys for financial, personal and health matters.
GUARDIANSHIP
That SW is appointed as Guardian for personal decisions about the following matters: accommodation, health care, provision of services, and day to day matters including diet and dress.
Unless the Tribunal orders otherwise, this appointment remains current for five (5) years.
ADMINISTRATION
REASONS FOR DECISION
1The Tribunal was asked to determine applications from SW for the appointment of a Guardian and Administrator for her mother, JB. She sought the appointment of TW and DW as Financial Administrators and proposed herself as Guardian. This application was filed in the Tribunal on 6 September 2010.
2The Hearing for this application was held on 19 October 2010 at Maroochydore Court House.
3Present at the hearing was: JB, HB, TW, DW, SW, Tracey King, legal representative for HB, and JB’s legal representative.
CAPACITY
4The Tribunal has jurisdiction only in relation to people with impaired capacity for decision making. The Tribunal must determine whether JB had the capacity to make her own decisions in relation to her personal and financial affairs.
5Capacity is defined in Schedule 4 of the Guardianship and Administration Act 2000 as:
Capacity, for a person for a matter, means the person is capable of—
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and(c) communicating the decisions in some way.
6The Tribunal considered evidence from medical practitioners, parties present at the hearing and JB.
7Dr Thant Zin, JB’s General Practitioner of 17 months provided a report to the Tribunal dated 29 July 2010, where he noted that a previous history of CVA and dementia mild to moderate possible secondary to Alzheimer’s and a component of vascular dementia may affect her ability to make decisions. She had scored 20/30 on 3 December 2009 in a mini-mental state examination, and subsequently 25/28 on 13 April 2010. He noted she was forgetful with short term memory loss, which included forgetting her medication. He noted she had problems with complex problems and social judgement. In particular he considered that she lacked judgement regarding her lifestyle and accommodation choices, and was incapable of operating a bank account, budgeting, paying bills and planning for the future. He considered she was unable to make complex personal or lifestyle decisions.
8Correspondence from Dr John Endacott, geriatrician at Nambour General Hospital Outpatients Department, dated 4 January 2010, revealed that a Montreal Cognitive Assessment he conducted returned a score of 12/25, and 1 out of 5 for the memory component. He noted collateral which suggested a cognitive decline had occurred three to four years prior. He noted her short term memory and that she required 24 hour supervision given this and her severe visual impairment. He considered that she had a mixture of Alzheimer’s and vascular dementia.
9It is noted that JB has multiple medical conditions, and has a severe visual impairment.
10JB considered that she was capable of making decisions for herself, and was supported by her husband where she needed assistance. She considered that he made appropriate decisions of her behalf. She strongly objected to information from family members which suggested that she did not change her clothes or shower regularly. She remained confident in the decisions and actions HB had taken on her behalf.
11HB indicated that he had been making decisions on JB’s behalf under the Enduring Power of Attorney since it was signed. He confirmed that JB was reliant upon him for decisions in day to day matters.
12Family members present indicated that JB lacked insight into the appropriateness for decisions made on her behalf, and that this was evident in the squalorous conditions that they had found her, and risks posed to her health and safety.
13They considered that JB lacked an awareness of decisions that were made on her behalf. JB, when questioned was unaware of the extent of debt she had accrued as a result of the reverse mortgage applied against the property, and also of the application of these funds.
CONCLUSION
14The Tribunal formed the view that JB lacks the capacity for personal and financial decisions.
IS THE ENDURING POWER OF ATTORNEY APPROPRIATE?
15The Tribunal considered the following legislation relevant in their determination of this issue:
66 Act honestly and with reasonable diligence
(1) An attorney must exercise power honestly and with reasonable diligence to protect the principal's interests. Maximum penalty--200 penalty units.
85 Keep records
An attorney for a financial matter must keep and preserve accurate records and accounts of all dealings and transactions made under the power.
117 Changed circumstances as basis for change or revocation
Without limiting the grounds on which the court may make an order changing the terms of a power of attorney, enduring power of attorney or advance health directive, or revoking all or part of 1 of these documents, the court may make the order if the court considers the principal's circumstances or other circumstances (including, for a health power, advances in medical science) have changed to the extent that 1 or more terms of the document are inappropriate.
116 Order removing attorney or changing or revoking document
The court may, by order--
(a) remove an attorney and appoint a new attorney to replace the removed attorney; or
(b) remove a power from an attorney and give the removed power to another attorney or to a new attorney; or
(c) change the terms of a power of attorney, enduring power of attorney or advance health directive; or(d) revoke all or part of a document mentioned in paragraph (c).
16HB, JB’s husband has been acting under the Enduring Power of Attorney dated 20 April 2010 for both personal and financial decisions. The document also appoints TW and DW for these decisions. All appointees were appointed successively in the order named: HB, TW, DW for personal and financial matters.
17TW and SW, JB’s children argued that HB has been making inappropriate financial and personal decisions for the adult, and these were the source of detriment in the adult’s life.
18TW led evidence of HB decisions including obtaining a reverse mortgage against the jointly owned real property which was used to fund lifestyle purchase and supplement day to day expenses. A reverse mortgage of $55,000 had been obtained and applied to the purchase of a BMW, credit card debt, renovation of the property and supplemented day to day expenditure.
19TW argued that there had been much wastage of day to day joint expenditure, including the purchase and service of psychics, 4 mobile phones, and gambling activities. HB and JB ate out frequently, as neither could cook, and there were large and consistent weekly bills for eat out meals over a lengthy period. TW submitted that this was an ineffective financial decision given the debt.
20TW argued that HB had difficulties with organisation and did not keep records, and bills were scattered across the unit with no clear sense of order. TW submitted that inappropriate financial decisions were being made by the acting attorney who had exhausted cash reserves, and sought to fund an extravagant lifestyle through incurring a joint debt, with limited means of servicing this debt.
21HB agreed with the concerns raised by TW and told the Tribunal he had made some poor decisions in the past. He gave little comment to the Tribunal’s inquiries beyond agreeing that TW was correct in the information he had put forward.
22The information put forward at the hearing and in related documents indicated that the attorney had not kept records. The Tribunal formed the view that the Attorney had not complied with the legislative obligation to act with reasonable diligence, nor keep records.
23Personal decisions made under the enduring document were also explored. It is noted that Dr Endacott’s correspondence indicates that JB has multiple medical conditions including a cognitive impairment, severe visual impairment, and cardiovascular problems. She requires 24 hour supervision because of these needs. She presents as frail with restrictions on her mobility due to her very limited sight.
24TW and SW provided photos of HB and JB’s unit wherein clothes, boxes bundles of clothes, and paraphernalia was extensively cluttered throughout, with little room for movement. It was evident that there was a significant risk of falls. The family had cleaned the unit taking six people five full days. They had discovered expired milk and rotten food in the premises. Ms SW indicated that an odour was emanating from the unit and this was the subject of complaints from the complex management. They argued the unwashed clothes were worn by the couple over several days, and they had concerns that basic hygiene was not being met. Observations of Ms DW who visits twice each week, is that JB may not have showered for several days, and often her clothes appeared to be unchanged.
25TW and SW raised concerns that a spinal manipulation JB was receiving from a chiropractor was causing spinal compression fractures. They referred to medical evidence.
26SW was concerned that HB was unable to distinguish pharmaceuticals which he was supplying to JB as carer, raising concerns for risks of inappropriate medication being supplied. She was similarly concerned that HB had not always followed the treating doctor’s advice and had exposed JB’s pneumonia to outdoor conditions.
27SW stated that HB had told the family in December 2009 that JB had cancer. Subsequent inquiries by JB’s family determined that this information was not correct.
28SW stated that HB and JB had been found by family members lying in diarrhoea at 4pm in the afternoon, unaware of their circumstances and the general state of their home.
29HB did not seek to justify his decisions. He stated to the Tribunal that he now realises that there have been times where he has not acted adequately in relation to personal decisions, but was willing to take advice. In particular he demonstrated a willingness to work with TW and SW in this regard.
30Given this, the Tribunal considers that HB’s appointment as attorney for financial and personal matters is inappropriate. Section 117 of the Powers of Attorney Act 1998 empowers the Tribunal to change or revoke the document. The Tribunal considered that the application, supported by TW and DW, sought a further appointee, and also proposed amendment to the role of TW and DW. The Tribunal explored the participant’s relationship with SW that was not sited as an appointee on the April 2010 Enduring Power of Attorney. All participants, including JB indicated that the omission of SW was due to the expectation of her unavailability, given that she lived in Brisbane, and that there was a healthy relationship between her and JB. This was apparent to the Tribunal also from the warm non-verbal interaction throughout the hearing, and the caring approach SW took toward her mother. She confirmed her availability to act.
31Given these factors the decision was made to revoke the document and consider the appointment of administration and guardianship.
32Under section 116 of the Powers of Attorney Act 1998, the Enduring Power of Attorney of 20 April 2010 was revoked.
CONCLUSION
33The Tribunal formed the view that HB made impulsive financial decisions on JB’s behalf, which lacked the prudence required of an attorney.
34The Tribunal has formed the view that HB has made inappropriate personal and lifestyle decisions for JB on a day to day basis, which have not been in the adult’s best interest.
35The Tribunal considered removing HB as Attorney, however, discussions with the applicants indicated that they sought the appointment of the proposed appointees and administrators and guardian respectively, and this was inconsistent with the terms of the Enduring Power of Attorney of 20 April 2010.
36For these reasons the Tribunal finds that the Enduring Power of Attorney is not appropriate.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
37Although the Enduring Power of Attorney is no longer appropriate there remain financial decisions to be made.
38The Tribunal may only appoint an administrator under section 12 of the Guardianship and Administration Act 2000 which provides:
12 Appointment
(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; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property; and
(c) without an appointment--
(i) the adult's needs will not be adequately met; or
(ii) the adult's interests will not be adequately protected.
(2) The appointment may be on terms considered appropriate by the Tribunal.
(3) The Tribunal may make the order on its own initiative or on the application of the adult, the adult guardian or an interested person.39The Tribunal must also consider whether the proposed appointee is appropriate under section 15 of the same Act.
15 Appropriateness considerations
(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the Tribunal must consider the following matters (appropriateness considerations)--
(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter--the health care principle and whether the person is likely to apply it;
(c) the extent to which the adult's and person's interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than 1 person is to be appointed--whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person's appropriateness and competence to perform functions and exercise powers under an appointment order.
(2) The fact a person is a relation of the adult does not, of itself, mean the adult's and person's interests are likely to conflict.
(3) Also, the fact a person may be a beneficiary of the adult's estate on the adult's death does not, of itself, mean the adult's and person's interests are likely to conflict.
(4) In considering the person's appropriateness and competence, the Tribunal must have regard to the following--
(a) the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;
(b) the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;
(c) if the proposed appointment is of an administrator and the person is an individual--
(i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and
(ii) the nature and circumstances of a proposed, current or previous arrangement with the person's creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and
(iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.40HB and JB have recently sold their unit to manage their debt under the reverse mortgage and credit cards. Action has been taken by TW to payout the reverse mortgage through an informal arrangement with HB.
41The proceeds need to be managed and invested for the adult and her husband’s future needs. JB continues to have income and expenses to be managed.
42Therefore an Administrator is needed and without an appointment, the adult’s finances are at risk.
43The Tribunal considered the appropriateness of the proposed appointees. TW and DW are JB’s son and daughter in law. JB elected to have them act as financial attorneys in the enduring power of attorney of 20 April 2010. It is noted that Dr Zin considered she had the capacity to execute an Enduring Power of Attorney as at 27 July 2010. They intend to gain financial advice in relation to the investment of the unit sale proceeds.
44The proposed appointees demonstrated throughout the hearing an ongoing commitment to JB’s best interest. They also indicated a willingness to work with HB and assist him to manage his own affairs as requested. They further indicated willingness to consult with family members.
45HB indicated a willingness to work with the attorney around these decisions, and those that involved joint finances.
46TW and DW indicated a willingness to consult other family members and have done so consistently over recent months of support to JB. They signed the statutory declaration indicating compliance with appropriateness criteria stated in section 15. The Tribunal considers the proposed appointees are appropriate.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
47Although the Enduring Power of Attorney is no longer appropriate, there remain decisions to be made about JB’s personal matters.
48JB and HB temporarily living in a self contained area within TW and DW’s home, following the sale of the unit. Accommodation decisions will need to be made at some point in the intermediate future, given the temporary nature of the current arrangements. It is noted that information exchanged by the parties at the Tribunal suggested that JB has an ACAT assessment offering a low care permanent placement in residential care.
49JB has multiple medical conditions and these require management. The statutory health regime will not work in this case where there are difficulties with decisions made by the adult’s spouse. An appointment for health decisions is important because of this.
50If JB continues to live in the community, decisions will need to be made in relation to services, as there is a clear need for support services should arrangements be made for manage JB’s care in the community.
51The Tribunal considered section 12 noted above and determined that there was a need for personal decisions to be made for health services and accommodation matters and without the appointment of a Guardian, the adult’s needs would not be met.
52SW’s application as guardian was supported by JB’s family present at the hearing. As noted she has an active relationship with JB, and indicates she is available to attend to decisions in consultation with family. TW, DW and SW demonstrated collaboration throughout the previous several months in relations to JB needs. She has signed a statutory declaration identifying her as appropriate within the section 15 criteria. The Tribunal considers the appointment of SW as Guardian as appropriate.
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