JQ
[2015] QCAT 300
•1 August 2015
| CITATION: | JQ [2015] QCAT 300 |
| PARTIES: | JQ |
| APPLICATION NUMBER: | GAA5633-15; GAA5634-15; GAA5911-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 17 July 2015 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 1 August 2015 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. The enduring power of attorney dated 1 September, 2011 by JQ appointing LQ and MN jointly as attorneys for financial and personal/health decisions is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998. 2. The Public Guardian is appointed as guardian for JQ for decisions about the following personal matters: a. accommodation; b. with whom JQ has contact and/or visit; c. health care; d. provision of services; e. legal matters not relating to the adult's financial property matters. 3. The appointment of the Public Guardian remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 5 years. 4. The Public Trustee of Queensland is appointed as administrator for JQ for all financial matters. 5. The administrator is to provide a financial management plan to the Tribunal within six (6) months. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 8. Within 3 months of the date of order 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 notice on their prescribed form and a copy of this decision advising the Registrar 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: | GUARDIANSHIP – where there are allegations that a person with impaired decision making capacity is denied contact with family members – where supportive family relationships have become dysfunctional due to conflict ADMINISTRATION – where there are allegations that a person with impaired decision making capacity is at risk of financial loss – where there are allegations of financial impropriety by an attorney – where supportive family relationships have become dysfunctional due to conflict ADMINISTRATION – where the finding of the Tribunal is that the adult lacks capacity to make complex financial decisions – where the Public Trustee has been appointed as administrator with a plenary order – whether the Tribunal may appoint the Public Trustee only if there is no other appropriate person available for appointment for the matter POWER OF ATTORNEY – where the power of attorney is revoked due to the behaviour of an attorney Guardianship and Administration Act 2000 (Qld) ss 5, 7, 12, 15, schedule 4 | ||
APPEARANCES:
Adult’s son/attorney: LQ
Adult’s son: OQ
Adult’s son: RQ by telephone
Public Trustee: Represented by Anthony Williamson
Public Guardian: Represented by Gina Do, appearing by telephone
REASONS FOR DECISION
Background
JQ lives with LQ (one of his sons) and his son's partner. LQ is also an attorney for his father under an enduring power of attorney made on 1 September 2011.
JQ has seven children (although one has passed) and the family has become deeply divided, with allegations by the adult’s other children that the son with whom he is residing is unfairly taking advantage of him and abusing his role as attorney.
Family members allege that, as attorney, LQ is denying contact between the adult and some of his family and only allowing supervised contact between the adult and some of his family.
The family disputes have escalated since the adult’s wife passed away some 15 years ago.
Investigation by the office of the Public Guardian
The Public Guardian considered a referral to investigate allegations regarding matters pertaining to JQ. As a result, investigations were undertaken, certain allegations substantiated and the issues of concern were sufficient to prompt a representative of the Office of the Public Guardian to complete and file an application at the Queensland Civil and Administrative Tribunal registry. The Public Guardian asks for the proposed appointment of an administrator and a guardian; together with an order about an enduring power of attorney
The attorney, LQ, denies stopping contact between his father and his siblings and says ‘they can ring or come and visit any time or stay for a few days’. OQ, one of the sons, has indicated that he has not seen his father since April 2014 when LQ denied him contact.
It is alleged that the attorney, LQ, withdrew $300,000 from the adult's account in 2012 and it is unclear how these funds had been used. It does appear that LQ ‘borrowed’ $150,000 of the money withdrawn, for his own purpose. LQ’s siblings allege that, as an attorney, LQ has utilised funds from the adult's accounts that may not have been used for the adult’s benefit only.
Capacity
The tribunal did not have the benefit of hearing from the adult at the hearing. Prior to the hearing, the Tribunal did however receive a handwritten note from the adult, where he said:
Dear Sir, I was going to attend this hearing with my son LQ (name substituted) now I am in two minds after my son OQ (name substituted) rang telling me what he and the rest of the family want. I just would like to be left in peace here. I think I should have BC (name withheld) to help me address these issues and keep my family out of it.
At the hearing, LQ informed the tribunal that his father did not want to attend ‘as he was having a lovely sleep’. During the course of the hearing, the tribunal attempted to contact JQ. LQ provided a contact number, but warned that ‘they probably will not answer’. That proved to be the case, leaving the tribunal to determine the matter without the adult in attendance, either in person or by telephone.
In determining the question of capacity, the tribunal received two pieces of medical evidence, neither in the standard detailed health professional report format that the tribunal is accustomed to receiving in matters of this nature.
The tribunal received a letter from Dr GF, (location withheld), dated 30 October 2014. Dr GF said that JQ had a very mild age-related dementia. She provided some background, stating that she has been this lovely man's GP for 8 years and he has been very happy living in (location withheld) with LQ, his son, and VN, his son’s partner, as carers. She does not know of the family disputes, however when she has asked, JQ expresses a wish to live with his family in (location withheld) ‘where he was born’. She went on to state that his mood and happiness levels are excellent and he is very happy, calm and well in (location withheld) on no medication.
Specifically in response to a request from the Public Guardian to do so, Dr RO produced a letter, dated 6 November 2014 and addressed to Gina Do, Senior Investigations Officer from the Office of the Public Guardian. In it, Dr RO said:
a) he saw JQ for the first time on 30 March, 2007
b) his second consultation was on 3 April, 2007
c) the next consultation was on 17 August, 2009 for a driver's assessment
i)‘JQ had some memory loss but he was fit to continue driving’
d) the next consultation was on 12 February, 2014
i)‘a mini mental state examination was undertaken which resulted in a score of 19/30
ii)JQ's memory was affected
iii)JQ had dementia on 12 February 2014
iv)JQ presented with a lack of capacity to make lifestyle/executive decisions
v)JQ was unable to make decisions on his own during the consultation and needed EPA help’
e) he did not see JQ regularly enough to supply a detailed report as requested
The evidence of LQ was that his father's capacity has declined since 2014. He assessed his mental health as being a 7 or 8/10. OQ suggested that his father was not capable of making decisions. He said that since 2011 his father has had diminished capacity. He spoke of an incident in 2011 where his father was hospitalised and he had to sign documentation as his father's guardian. RQ advised the tribunal that, in his view, his father had not been capable since his mother died some 15 years ago. He said his father could be easily manipulated. AQ, through correspondence provided during the course of the investigation by the Office of the Public Guardian, spoke of her father becoming ‘increasingly compliant and isolated’. She raised concerns about inappropriate and unfettered handling of his finances by her brother LQ.
An adult is presumed to be capable of making decisions[1]. Capacity, for a person for a matter, means the person is capable of understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way[2].
[1]Guardianship and Administration Act 2000 (Qld) s 7.
[2]Guardianship and Administration Act 2000 (Qld) Schedule 4.
In this case, with respect to the adult JQ, I find that the presumption of capacity for personal and financial matters is rebutted. Both doctors refer to diminished capacity to some degree. Dr RO has undertaken a mini mental state examination, with a result that suggests considerable diminished capacity. The tribunal determines that the adult cannot understand the nature and effect of decisions about a matter and the adult is not capable of making decisions freely and voluntarily. The tribunal determines that the adult does not have capacity to make decisions about certain matters.
The capacity of an adult with impaired capacity to make decisions may differ according to the nature and extent of the impairment; and the type of decision to be made, including, for example, the complexity of the decision to be made; and the support available from members of the adult's existing support network[3]. In this case, the adult is not capable of making complex financial decisions and certain personal decisions. The adult cannot make decisions freely and voluntarily. The evidence suggests that the adult could be easily led and is trusting of his son LQ, potentially to a fault.
[3]Guardianship and Administration Act 2000 (Qld) s 5.
Need for the appointment of substitute decision makers
Before the tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision-making capacity, the tribunal must be satisfied that there are circumstances that establish a need for a guardian or an administrator. Need is established if the tribunal determines that 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 without an appointment the adult’s needs will not adequately be met or the adult’s interests will not be adequately protected[4].
[4]Guardianship and Administration Act 2000 (Qld) s 12.
I note the existence of a power of attorney signed in 2011. Where such a document is in existence then, in normal circumstances, there would be no need for an appointment. This case is exceptional in that I have concerns about the way in which the attorney, LQ, has conducted himself in relation to both guardianship and administration issues involving his father. Accordingly, I have come to the view that for reasons outlined in more detail below, I must revoke the power of attorney. I also find that it is appropriate and necessary to proceed with appointment of a guardian and an administrator.
Someone is required to make decisions in relation to guardianship issues.
The tribunal is satisfied that there is a need for the appointment of a guardian. Without appointment, the adult is likely to do something or likely to involve unreasonable risk to health and welfare and without appointment the adult’s needs would not adequately be met or interests adequately protected.
JQ requires assistance in consulting with medical practitioners. There are issues which need to be resolved in relation to accommodation and with whom he has contact and/or visits. Depending on the further enquiries to be undertaken, it is likely that decisions will need to be made in relation to provision of services. There have been an array of complex legal matters involving the adult undertaken in the past. Further enquiries will no doubt be undertaken and the tribunal is of the view that legal matters not relating to the adult's financial or property matters will need to be resolved.
Because of family dysfunction, the Statutory Health Attorney regime for the making of health decisions will not suffice.
Someone is required to make decisions in relation to administration issues.
The Tribunal is also satisfied that there is a need for the appointment of an administrator. There are financial issues that will need to be undertaken on an ongoing basis. Without a substitute decision maker, the adult is likely to do something involving, or likely to involve, unreasonable risk to finances or property. Without appointment, the adult's needs will not adequately be met or interests adequately protected.
Conflict transactions
LQ has been involved with his father in conflict transactions for some time. There are suggestions by his siblings that LQ has been taking financial advantage of his father by living rent-free in his father's properties. To that, LQ says that he has an entitlement.
I figured the 11 years I spent working for mum and dad in the garage and finding the grapes paddock which mum bought and helping to work the grapes for nothing all the years at (location withheld). The 7 years working at the farm at my expense clearing, fencing, dam building, hut repairs, and garden planting there are still hundreds of asparagus out there, and mangoes etc. The 12 years’ work of these houses again at my expense, there was only half a dozen live trees, a couple of dead trees left there, and 6-foot high Johnson grass right up to the houses[5].
[5]Undated letter from Mr LQ.
LQ and his father JQ were involved as parties, with competing interests, in a complex property transaction in 2015. The tribunal received a copy of a signed contract for the sale of property by LQ to JQ dated 5 March 2015. The contract was drafted such that an independent lawyer was supposed to represent JQ. That is, the contract provided for representation on behalf of JQ by the same lawyer who prepared the power of attorney in 2011. Another law firm was nominated in the contract to represent LQ. Inexplicably, a representative of the law firm nominated to represent the interest of LQ gave advice to, and prepared documentation for, JQ in relation to the transaction. This lawyer did provide a statement to the Public Guardian.
Mr JQ attended at our office on 4 March 2015. Mr JQ appeared to me to understand the terms and nature of the contract of sale and transaction he was entering into. He requested an amendment to be made to the contract, which I believed to be a reasonable request, and the contract provided that the payment of the purchase price by Mr PQ had been paid prior to the contract being entered into, I did not have any concerns as to Mr JQ’s capability of conducting the transfer.
I have concerns about the conduct of the transaction. The lawyer did not have possession of any medical documentation reports in relation to JQ's capacity to enter into the transaction. The lawyer does not say that she represented JQ only that she ‘attended with’ him. There is no explanation proffered as to why she was involved in dealing directly with him in circumstances where an independent law firm was ostensibly representing his interests. She says that ‘as part of ordinary conveyancing practice, after the contract of sale had been entered into between the parties, the transfer form was prepared by my firm on behalf of Mr JQ as the transferee’. That statement clearly suggests that she was, in fact, representing Mr JQ. She signed the transfer document filed at the Queensland registry on behalf of Mr JQ.
The apparent ‘ability’ of JQ to conduct business in March 2015 is in stark contrast with the conclusion of the medical evidence. Dr RO said that on 12 February 2014 ‘JQ was unable to make decisions on his own during the consultation and needed EPA help’.
Revocation of the power of attorney dated 1 September 2011
It is clear to the tribunal that Mr LQ has been acting as an attorney for his father as a substitute decision maker. Mr LQ denies this fact. He says that his father has been acting independently.
Section 76 of the Powers of Attorney Act 1998 (Qld) outlines certain principles in schedule 1 and states that such principles must be complied with by a person who performs a function or exercises power under the Act or an enduring document for a matter in relation to an adult who has impaired capacity.
The Tribunal is satisfied the evidence demonstrates that LQ has not complied with these requirements. In particular, General Principle 8 provides an obligation for a substitute decision maker to maintain existing support relationships. The importance of maintaining an adult's existing supportive relationships must be taken into account.
While LQ says that he has never denied contact between JQ and LQ's brothers and sisters, I am not satisfied that that is in fact the case. Based on the evidence of OQ and his siblings I am satisfied that LQ has acted in a way as to deny his siblings an opportunity to maintain supportive relationships with their father.
Section 116 of the Powers of Attorney Act 1998 (Qld) provides the tribunal with power to make certain orders removing an attorney, changing, or revoking a document. Given the concerns that I have raised about the conduct of the attorney LQ, in my view I have no alternative but to revoke the document. This will allow for the appointment of a guardian and administrator.
The Tribunal finds that LQ has breached section 85 of the Powers of Attorney Act 1998 (Qld) by failing to keep and preserve accurate records and accounts of all dealings and transactions made under the power.
LQ has entered into a conflict transaction, pursuant to section 73 of the Powers of Attorney Act 1998 (Qld), whereby his duties as an attorney conflict with his personal interests, by residing in JQ's home rent-free and that home is not receiving market rent. LQ has entered into a conflict transaction involving the borrowing of $150,000 from his father to purchase an investment property in June 2013. LQ has provided no documentation to verify the loan to him and his partner, its repayment terms and interest status. LQ entered into a conflict transaction, referred to above, in relation to the ‘sale’ of real estate to his father.
During the course of investigations, the Office of the Public Guardian identified six particular withdrawals of funds from the account of JQ between May 2014 and 2000 October 2014. LQ did provide an explanation. The tribunal finds that LQ was acting as an attorney for his father during the course of making the withdrawals from his father's account. He says he bought certain things for his father using funds from his father's account but he did not provide receipts to the Office of the Public Guardian to support the transactions.
JQ did not set any terms and specific wishes in his enduring power of attorney dated 1 September 2011, particularly for the authorisation of conflict transactions.
Pursuant to section 66 of the Powers of Attorney Act 1998 (Qld), an attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests. I find that LQ has failed to comply with his obligations in this regard.
The power of attorney in question did provide for the appointment of two people. Section 79(1) of the Powers of Attorney Act 1998 (Qld) provides that if an attorney has appointed two or more people as attorneys under the enduring power of attorney, they must consult one another on a regular basis to ensure the principal’s interests are not prejudiced by a breakdown in communication between them. Although they were appointed jointly, there is no evidence whatsoever that LQ acted in conjunction with, or consulted, his fellow attorney. The tribunal finds that LQ has not consulted with or advised members of the adult's family with respect to decisions made by him as an attorney.
LQ has not operated the power of attorney in his father's best interests. The tribunal is not satisfied that the appointed attorneys can act in a way that is consistent with legislative requirements.
The Tribunal has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents[6]. Accordingly, the tribunal has power to deal with an enduring power of attorney as if it were the court.
[6]Guardianship and Administration Act 2000 (Qld) s 82(2).
The enduring power of attorney dated 1 September, 2011 appointing LQ and MN jointly as attorneys for financial and personal/health decisions is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998 (Qld).
Appropriateness of appointee as guardian and administrator
In considering the appropriateness of an appointee as guardian and an appointee as administrator, I consider the factors set out in section 15 of the Guardianship and Administration Act 2000 (Qld).
LQ is not a suitable person to make decisions for his father.
There is family disharmony to the point where it is not appropriate to consider appointment of any members of the family.
The tribunal is of the view that an independent guardian and an independent administrator would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. In this respect, the Public Guardian and The Public Trustee of Queensland are independent decision makers and have extensive skills and experience. The Public Guardian is considered the appropriate appointee as guardian in this case. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case.
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