JWL

Case [2023] QCAT 463

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

JWL [2023] QCAT 463

PARTIES:

In applications about matters concerning JWL

APPLICATION NO/S:

GAA 10327-22
GAA 13853-23
GAA 12265-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

5 December 2023

HEARING DATE:

11 July 2023

17 October 2023

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

ENDURING POWER OF ATTORNEY

1. The following Enduring Powers of Attorney for JWL are declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld):

(a)     The Enduring Power of Attorney dated 19 July 2022 appointing CAO as attorney for financial, personal and health matters.

(b)     The Enduring Power of Attorney dated 14 September 2023 appointing LAS as attorney for financial, personal and health matters.

GUARDIANSHIP

2.     The guardianship order made by the Tribunal on 19 August 2020 is changed by removing the Public Guardian as guardian and appointing CAO as guardian for JWL for the following personal matters:

(a)     Accommodation;

(b)     Provision of services;

(c)     Day-to-day issues, including for example diet and dress;

(d)     Legal matters not relating to JWL’s financial and property matters, more specifically his immigration matters in Australia; and

(e)     Advocacy relating to the care and welfare of JWL.

3.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

ADMINISTRATION

4.     LAS is appointed as administrator for JWL for all financial matters.

5.     The administrator is to provide an updated financial management plan to the Tribunal within six (6) months, such plan to show evidence of the administrator having obtained advice from a licenced financial planner.

6.     Before 31 January 2024, the administrator must:

(a)     Record the appointment as administrator on any property registered in JWL’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b)     Provide confirmation to the Tribunal that this has been completed by providing:

(i)        A copy of the title search conducted identifying  JWL’s property; and

(ii)      A copy of the Titles registry “Lodgement Summary Form” confirming the     notice has been lodged for each property held by JWL.

(c)     If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.

7.     If the ownership of any property of  JWL changes in any way or  JWL acquires an interest in another property, the administrator must, within fourteen (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 to JWL’s interest in another property.

8.     The administrator is to provide to the Tribunal accounts of JWL’s finances as follows:

(a)     For the first year of the appointment no later than one month after the anniversary of the appointment;

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Details
AGLC
JWL [2023] QCAT 463
Case
[2023] QCAT 463
Decision Date

CaseChat Overview and Summary

The case involves an application for guardianship and administration of the estate of JWL, an adult who has been deemed to have impaired capacity. The dispute centers on the validity of two enduring powers of attorney, the role of the Public Guardian, and the appointment of a new guardian and administrator for JWL. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding these matters. The legal issues included whether the adult had the capacity to execute the powers of attorney, and if the conduct of the solicitor witnessing the powers of attorney complied with the statutory requirements. The court also had to consider the evidence regarding JWL's capacity to make decisions, including medical reports and observations from various individuals.

The Tribunal found that JWL lacked the capacity to make decisions about his life and basic self-care, as evidenced by medical reports and observations from health professionals and acquaintances. The court noted that JWL's condition was degenerative, and even if he had retained some capacity at the time of the hearing, it would likely decline over time. The Tribunal also found that the conduct of the solicitor witnessing the powers of attorney was not satisfactory, as it did not comply with the statutory requirements. Consequently, the enduring powers of attorney were declared invalid. The court appointed a new guardian for JWL's personal matters and an administrator for his financial matters, with specific directions regarding financial management and reporting.

In summary, the court decided that the existing enduring powers of attorney were invalid due to the adult's lack of capacity and the unsatisfactory conduct of the solicitor witnessing them. The court appointed new guardians and administrators for JWL's personal and financial matters, respectively, and provided detailed directions for their roles and responsibilities.

Orders

Orders of the court

ENDURING POWER OF ATTORNEY

1. The following Enduring Powers of Attorney for JWL are declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld):

(a) The Enduring Power of Attorney dated 19 July 2022 appointing CAO as attorney for financial, personal and health matters.

(b) The Enduring Power of Attorney dated 14 September 2023 appointing LAS as attorney for financial, personal and health matters.

GUARDIANSHIP

2. The guardianship order made by the Tribunal on 19 August 2020 is changed by removing the Public Guardian as guardian and appointing CAO as guardian for JWL for the following personal matters:

(a) Accommodation;

(b) Provision of services;

(c) Day-to-day issues, including for example diet and dress;

(d) Legal matters not relating to JWL’s financial and property matters, more specifically his immigration matters in Australia; and

(e) Advocacy relating to the care and welfare of JWL.

3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

ADMINISTRATION

4. LAS is appointed as administrator for JWL for all financial matters.

5. The administrator is to provide an updated financial management plan to the Tribunal within six (6) months, such plan to show evidence of the administrator having obtained advice from a licenced financial planner.

6. Before 31 January 2024, the administrator must:

(a) Record the appointment as administrator on any property registered in JWL’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b) Provide confirmation to the Tribunal that this has been completed by providing:

(i) A copy of the title search conducted identifying JWL’s property; and

(ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by JWL.

(c) If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.

7. If the ownership of any property of JWL changes in any way or JWL acquires an interest in another property, the administrator must, within fourteen (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 to JWL’s interest in another property.

8. The administrator is to provide to the Tribunal accounts of JWL’s finances as follows:

(a) For the first year of the appointment no later than one month after the anniversary of the appointment;

(b) For the year in which a review of the appointment will occur, three months prior to a review of the appointment; and

(c) Otherwise as requested by the Tribunal.

9. The administrator is to provide to the Tribunal a signed Declaration as to continuing appropriateness for appointment two (2) months prior to the anniversary of this appointment and annually thereafter.

10. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

MISCELLANEOUS

11. The Registrar of this Tribunal is to provide to LAS an ‘Administrator’s Pack’ in conjunction with the provision of this Decision document.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Later in his reasons in Lambourne, his Honour made this observation as is relevant to the issue under discussion here:[60][60]Ibid;[116] to [120]. Footnotes omitted.The type of evidence which assists in deciding whether the assumption of capacity has been rebutted [116] The applicants gave evidence of their observations of Harvey at various times which, they argue, is relevant to the execution of the revocations and the later EPOAs. Evidence was also received from persons who knew Harvey as well as from experts in the field of geriatrics.[117] The means by which a person’s capacity may be assessed has been considered in cases in which a party bears the burden of proving capacity. In this case, the burden is reversed but the consideration of what may be relevant and helpful in discharging that burden will, inevitably, involve consideration of similar types of evidence. [118] Assistance can be found in the analysis of Lindsay J in Scott v Scott. In that case, his Honour dealt with the Powers of Attorney Act 2003 (NSW). It did not provide for the same presumption of capacity as the Act does and, so, in resolving the issues, Lindsay J referred to the tests for assessing capacity. His remarks help to identify the types of evidence which can be relevant to a consideration of whether a lack of capacity has been established: “[199] … There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed. [200] An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject’s mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spacial [sic] and relational dimensions.” [119] I also bear in mind the caveat expressed by Lindsay J about the elevation of statements in analogous cases: “[206] … care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable “standard” or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the court must be on the substance of the inquiry whether the particular subject had, in fact, the requisite capacity — understanding — to effect a particular transaction.” [120] That statement has similar force in a case such as this where the inquiry is whether the applicants have rebutted the presumption of capacity.

Decision

Reasons for decision

The first part of the relevant evidence is that found in the health professional’s report of Dr ND to which I briefly referred in paragraph [11] herein. As the Doctor expressed it in her answer to the question “In your opinion, are there any other factors that affect the Adult’s ability to make decisions …?”:[74]Vascular dementia and post stroke status have significantly affected his cognition & he has lost capacity to make decisions about his life and even basic self care (sic).[74]M 2 pg 4. My emphasis. That of itself was significant. Whilst the question of capacity is not a medical issue but rather a legal issue, the medical opinion evidence is highly persuasive in determining the legal point. What is shows me is that there is a formal diagnosis of dementia, such which is well known to be a degenerative condition and so only worsening over time. As such, notwithstanding the Doctor’s opinion that JWL has already lost capacity, even if that were to be discounted such that it might be considered at the time of the hearing JWL retained some capacity, I can readily conclude that such would decline over time, possibly even rapidly, such which is properly considered in assessing capacity for the purposes of the GAA Act.[75][75]Consider KPJ [2019] QCAT 204,[18] What was also persuasive in terms of medical opinion evidence before the Tribunal was the Mental Health Services Progress Note of 19 June 2012 to which I referred in paragraph [49] herein. Notwithstanding it is of substantial historical age, and its general content went to the question that was then before the Tribunal to be answered, namely whether at that time JWL was of impaired capacity, in my opinion the parts therein which I extracted and emphasised remain entirely relevant now. This is particularly so when read in conjunction with the later Progress Note dated 21 September 2012 to which I referred and extracted in part in paragraph [7] herein. In the earlier report it was opined by a medical professional that JWL was a ‘long term risk of recurrence, especially as the stressor triggering episodes is unresolved’, together with a stated ‘risk of relapse and seriousness of prior relapse’. One of those triggering episodes referred to therein was his visa status, such also being referred to in the later report as being an “ongoing stress that led to his index depression with severe melancholic depression and psychotic features in 2010.” It still remains unresolved now more than 11 years after those reports were written. Accordingly in my opinion it must remain an issue for JWL that could trigger, and seemingly has triggered, a relapse to his condition that ultimately brought about the earlier guardianship and administration orders. I return to this shortly in these reasons. There was also the short submission from SO, and the accompanying cleaner’s report to which I referred in paragraphs [50] and [51] herein. The circumstances as they are described therein as to the ‘status’ JWL was in at that time are alarming. To me it is indicative of a person who at that time failed to understand the nature and effect of decisions that are ordinarily required for the subtleties of life and self-care, and thus of a person who simply could not make them. It was consistent with the opinion of Dr ND, and in my opinion with a recurrence and relapse in the context of that to which I have just referred from the June 2012 Progress Note.

Ratio Decidendi

Legal Principle Established

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