KQID (Review Enduring Powers)

[2013] TASGAB 24

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

KQID – Application by QD to review an enduring guardianship and an application for guardianship

Neutral citation: KQID (Review Enduring Powers) [2013] TASGAB 24

REASONS FOR DECISION

Catherine Gavan (Chair)
Kim Barker (Member)
Liz Love (member)

Date of hearings: 12 September 2013 and 14 October 2013

Review of an enduring guardianship – validity of instrument of appointment – mental capacity to execute an enduring guardianship – appointor with a history of consistent and significant cognitive deficits due to dementia - distinction between capacity and the ability to express wishes

Guardianship – eligibility of person nominating for appointment of guardian – preservation of existing family relationships - a person who would be perceived to favour one side of family conflict over the other may have the effect of continuing and exacerbating the conflict

Guardianship and Administration Act, 1995 s. 20(1)(a)(b), 32, 34(1), 34 (1A)(a)

KQID (‘the appointor’) is an 86 year old woman.  The applicant, QD, is one of her sons.  On 12 January 2011 KQID purportedly executed an Instrument Appointing an Enduring Guardian in favour of MKGD (son) and TND (daughter-in-law) as her guardians (‘the instrument’).  DD and LD are KQID’s other son and his wife; HD the remaining son and his wife OD complete the family.

The review was sought on three grounds: firstly that the enduring guardian is not willing or able to act in that capacity, secondly, that the enduring guardian has not acted in the best interests of the appointor, or has acted in an incompetent and negligent manner, or has acted contrary to the provisions of the Guardianship and Administration Act 1995 (the Act); and thirdly that appointor did not have capacity to understand the nature and effect of the instrument at the time of appointment. The applicant also sought the appointment of a guardian within that application. 

Although the validity of the instrument has been impugned, for ease of reference in this decision, the Board will refer to KQID as ‘the appointor’ not ‘the purported appointor,’ to the purported instrument as ‘the instrument’ and to the purported guardians as ‘the guardians’.

The application was heard over two days on 12 September 2013 (adjourned to clarify evidence) and 14 October 2013. The following persons attended (with reference to their relationship to the appointor):

• QD – son and applicant (by phone on 12 September 2013 - did not attend the further hearing on 14 October due to his absence overseas)
• MKGD and TND - purported enduring guardians
• DD  son and daughter-in-law (in person on 12/9 and by phone on 14/10)
• HD - son (in person on 12/9 and by phone on 14/10)
• HQ - friend of the family
• Michael Condon – Office of the Public Guardian (12 September 2013 only)
• Carol Whitehead - Public Trustee
• Elizabeth Dalgleish – GAB Investigator
• Dr Dianne King (gave evidence by phone on 12/9)

The Board commenced the hearing by examining the question of whether the execution of the instrument complied with the Act in form only (Section 32 of the Act), excluding the question of capacity. The Board concluded in the affirmative on this point.

The Board then examined the question of the appointor’s capacity at the time of execution. 

Medical evidence of capacity:

The Board will examine medical reports and evidence relevant to the appointor’s condition around the time of the execution of the instrument, 12 January 2011.  The evidence of Dr Dianne King is important because she was the appointor’s General Practitioner up until 9 June 2011 when Dr Robert Walker assumed her care. 

The Board had before it the following written evidence with respect to the appointor’s capacity prior to the execution of the instrument:

Dr Dianne King’s Health Assessment dated 22 October 2008 (Approx. 2 years, 2 months prior to execution of instrument)
This assessment details that the appointor had an abnormal cognitive status and activities of daily living, managing finances, home maintenance and housework were slightly impaired. It documents a Mini Mental State Examination (MMSE) score recently completed with ACAT 23/30 and recall 0/3 but that, despite this score:

“KQID copes really well looking after her husband. Full of energy, cooks healthy meals.”

The Board also had regard to a document headed The Mini Mental State Examination (MMSE) to assist it in understanding what the scores meant. It states that a person suffering from mild to moderate Alzheimer’s disease would have a score of between 10/30 - 26/30.

Dr David Dunbabin’s letter dated 16 February 2009 (Approx. 1 year, 11 months prior to execution of instrument)
Dr David Dunbabin’s letter to Dr King states that the appointor’s daughter-in-law, who accompanied the appointor:

“reported a two to three year history of progressive cognitive problems perhaps somewhat worse in the last three to six months.”

Dr Dunbabin concludes that:

“… from the history described and her examination she does have a significant dementia probably of Alzheimer type.”

Dr Dunbabin’s letter dated 9 July 2009 (Approx. 1 year, 6 months prior to execution of instrument)
In this letter Dr Dunbabin states that he reviewed the appointor and states that:
“… her daughter-in-law reports that her cognitive function continued to deteriorate, her short term memory is poor and she needs reminders with appointments, however continues to manage cooking, housework and helping her husband without major problems.”

Dr Dunbabin’s letter dated 4 January 2010  (Approx. 1 year prior to execution of instrument)
Dr Dunbabin reports to Dr Dianne King that he reviewed the appointor.  He notes her cognitive dysfunction and that she:

“… continues to deteriorate and is having some increasing difficulty managing at home.”

Aged Care Assessment Team (ACAT) assessment dated 13 July 2010 (Approx. 6 months prior to execution of instrument)
This assessment recorded that the appointor had significant short term memory problems and occasionally long term memory problems. Results of the MMSE score 23/30 with:

“… significant STML (short term memory loss) noted. Totally reliant on prompting from family and carers for all ADL’s. Can manage routine, familiar tasks if prompted to keep on track and in familiar surroundings. Anxious and restless - very aware of STML and keen to remain independent. Limited insight. Poor planning.”

The results also record:

“episodes of disorientation and tendency to wander reported during recent residential respite care – requires prompting and redirection for all activities.”

The assessment documents that the appointor is supported in the home and her son and daughter-in-law live next door and offer regular and extensive practical and emotional support.  The assessment states that during recent respite care:

“it became apparent that the appointor’s needs had increased to a higher level”

and concludes that:

“… she would now benefit from approval for high care residential respite and permanent care. KQID would benefit from dementia specific care and would require a secure environment unless she is in close proximity to her husband - as staff had reported that she does not wander far from her husband and would be likely to leave any facility if he were not with her.”

ACAT assessment dated 15 December 2010 (Approx. 3 months prior to execution of instrument)
This assessment details that the appointor at that time suffered significant short term memory problems, occasionally suffered long term memory problems and exhibited wandering, was regularly confused and disorientated to time. The Assessment details that the appointor had:

“… significant memory loss - repetitive questioning and speech. Impaired sequencing and attention. Totally reliant on prompting from family and carers for ADL’s. Anxious and restless. No insight regarding impact of STML and level of dependence on others. Resistive to assistance.”

The Assessment goes on to note:

“Walks to the letterbox daily, but has got lost and been transported home once. Needs to be accompanied at all times when out in the community due to disorientation. Episodes of disorientation and tendency to wander reported during respite admission this year. Requires prompting and redirection for all activities. Staff and family currently manage medications.”

The Assessment states that the appointor:

“… needs increased formal services to be able to stay at home… Recently KQID lost her way from the postbox of the home and been redirected by neighbors. She prefers not to leave the home but has the potential to wander and get lost…She recently stayed at her son’s home whilst GD was in respite and was completely disorientated and confused. Without assistance with preparing meals she is at risk of harm from electrical appliances. Family note that KQID would not eat without prompting as she forgets she has eaten immediately after a meal and tends to leave food untouched unless reminded.

The assessment approved the appointor for high level permanent and respite residential care.

The Board also had available to it letters from Dr Dunbabin dated 1 May 2009 and May 2009 but these letters make no material reference to the appointor’s cognitive state.

Dr King’s letter dated 22 September 2011(Approx. 8 months after the execution of instrument)
This is a letter from Dr King to the Board stating that she has been the family physician of the appointor and her family for over 10 years and that during that time there have never been any signs of elder abuse. The letter states:

“KQID developed dementia approximately 18 months ago and was not able to remember things on a short term basis. MKGD had power of attorney for both his parents for several years, but was not required to act on it as GD [the appointor’s late husband] had full mental faculties and was able to make financial decisions on behalf of himself and his wife.”

Dr Robert Walker’s letter dated 25 October 2011 (Approx. 9 months after the execution of instrument)
Dr Robert Walker’s letter was produced in response to a letter from the Board seeking an opinion to be considered in an application for review of purported Enduring Powers of Attorney executed on 9 November 1998. Dr Robert Walker states in this letter that it is quite clear that the appointor is quite confused and has a very significant dementia. He states: 

“I am of the view that she lacks insight and ability to give instructions to the attorney.”

Dr Robert Walker’s Health Care Professional Report (HCPR) and letter dated 3 August 2013 (Approx. 2 years, 6 months after the execution of instrument)
In this HCPR, Dr Robert Walker ticks the box indicating that he is unable to express an opinion regarding the appointor’s capacity to execute an enduring guardianship on the date it was executed.

Dr Robert Walker confirms that the appointor has a disability, namely dementia, and states that he has been the appointor’s general practitioner since 9 June 2011. Dr Robert Walker states that:

“Her previous GP also noted a cognitive impairment so the disability was present for some time prior to my first contact.”

Dr Robert Walker states that the appointor’s disability is deteriorating and in his view:

“She will continue to slowly deteriorate with a progressive loss of mental capacity.”

Dr Robert Walker also noted a progressive dementia with some associated anxiety and panic attacks at times.

Dr Dunbabin’s letter dated 16 March 2012
Dr Dunbabin writes to MKGD, stating that:
“Assessment of a patient’s financial capacity is not usually part of routine care but is a specific legal question which needs to be addressed in a specific way…I did not enquire specifically or examine your mother with regard to her financial capacity. Therefore it is not possible to affix a defined date at which I felt your mother lacked financial or testamentary capacity. There is no doubt that she had a progressive dementia of Alzheimer type and because of her cognitive deficits would have difficulty managing financial affairs …”

Dr King’s oral evidence by phone at the hearing on 12 September 2013
All of the medical information that the Board had received for the hearing was put to Dr King for comment over a period of 40 minutes. Dr King was of the firm view that the appointor had capacity at the time the instrument was signed.

Dr King gave evidence as to the appointor’s mini mental score of 23/30 at the time of execution and said in her opinion a person with this score may have capacity to execute an enduring guardianship.

Dr King explained that the referral of the appointor to Dr Dunbabin was due to problems with her short term memory, amongst other things. Despite the comments in her letter dated 22 September 2011 with regard to the appointor’s dependence upon her husband to make financial decisions on her behalf, Dr King said in her view the appointor had capacity to grant the instrument.

Dr King said the appointor would have a conversation one day but the next day she would have forgotten what it was.  She said she would have understood the instrument at the point of time she made it but the next day she wouldn’t know she had signed it. When asked whether the appointor would have had the capacity to remember she has the power to revoke the instrument, Dr King said that at the time the instrument was signed, the appointor would have understood that this meant this person would take over her affairs and if someone went through it with her again the next day she would understand that she could revoke it.

When asked about the 2010 ACAT assessments indicating significant short term memory loss, total reliance on prompting for activities of daily living including eating, and episodes of disorientation, Dr King did not change her opinion that the appointor had capacity to execute the instrument. Dr Dianne was asked on a number of occasions whether in her opinion the appointor would have understood the nature and effect of a complex legal document. Dr King was clear that in her view the appointor did have this capacity, and cited her ability to understand medical tests and x-rays as evidence pointing to this capacity.

Dr King said that she has no note or clear recollection that the family asked her opinion about capacity at the time the instrument was executed but did recall a conversation about the power of attorney.

Dr King suggested the Board should also seek the view of Dr Dunbabin who was the appointor’s treating specialist at the time.

Proceedings were adjourned to seek this evidence.

Dr Dunbabin’s letter dated 3 October 2013
When asked for his retrospective opinion regarding the appointor’s capacity, Dr
Dunbabin stated:
“I am not sure that I can give a firm opinion regarding this. I last saw KQID in January 2010 at which stage she certainly had evidence of cognitive dysfunction due to a progressive dementia of Alzheimer type.”

Dr Dunbabin also said:
“… without a contemporaneous assessment at the time of KQID executing her Enduring Guardianship order it is impossible to assert definitively whether or not she had capacity to do so or not.”

Evidence about the execution of the instrument:

A letter dated 9 September 2013 was received from QS, one of the witnesses to the instrument. In this letter QS confirmed that he witnessed the document at their house at Hobart. QS confirmed there was another lady present who also witnessed the signing but declined to give further information.

The other witness to the instrument was DS. By letter dated 9 September 2013, DS confirmed that she witnessed the signature by KQID saying that:

“KQID was more than happy to sign that her son MKGD be her Enduring Guardian saying to me that her other sons live on the mainland as MKGD is here and not much contact with her other sons.”

QS states that she is not related to KQID and that she was unavailable to attend the hearing. 

TND said that they had mentioned it to Dr King but were very clear that the appointor had capacity and so didn’t seek Dr King’s opinion at a consultation.

When the hearing reconvened on 14 October 2013, Dr Dunbabin’s letter dated 3 October 2013 was read out and submissions were invited. There was no further medical evidence provided at this stage.

Submissions regarding the appointor’s capacity to execute the instrument

MKGD made a written submission dated 9 September 2013 which referenced some other documentation.  A report to which he referred from Dr King was not supplied to the Board and some of the information referred to the appointor’s enduring power of attorney which was executed much earlier than the enduring guardianship. 

MKGD’s submissions suggested that the appointor’s alterations in memory were simply associated with her age and were not indicative of an overall loss of cognitive function.  He considered that her loss of capacity occurred between December 2010 and May 2011 but it is not possible to conclude a loss of capacity at any specific time within that period.

The other guardian, TND said at the hearing on 12 September 2013 that she was very clearly of the view that the appointor had capacity on the 12 January 2011 and as the person who saw the appointor on a day to day basis the appointor’s cognitive abilities where such that she was “very much with it.”

The applicant, QD stated that in his view the overall impression of the appointor was that she was impaired years before the instrument was executed, referring to the significant decline in his mother’s cognitive state.

Conclusion about capacity:

Having taken into account all of the evidence referred to above, the Board considered that the evidence overwhelmingly established that the appointor had a cognitive deficit as far back as October 2008, and has experienced significant and consistent cognitive deficits associated with dementia since at least 2010. This is a significant time prior to the execution of the instrument.

The Board considers that Dr King’s observations with respect to the appointor’s memory and capability for activities of daily living are accurate.  However, the Board does not accept the conclusion that she draws from those observations, namely that despite the deficits described the appointor retained capacity to make an appointment of an enduring guardian. 

Although Dr Dunbabin declines to make a retrospective assessment as to the appointor’s capacity to execute the instrument his observations, when taken together with the observations and assessment over time by the ACAT assessors and Dr King’s observations, his comments are consistent with the conclusion that the appointor had noted cognitive dysfunction from at least January 2010 and experienced a gradual and consistent deterioration in capacity due to dementia. 

In forming a view of the appointer’s capacity as at 12 January 2011, the Board was particularly swayed by the undisputed evidence of Dr King that the appointor would have had no memory of executing the instrument even the day after she did so.  The Board’s view is that such severe memory loss, with no capacity to recall that she had executed the instrument or that she had the ability to revoke or change the instrument, indicates that the appointor would not have had full capacity to understand the nature and effect of the document at the time of execution.  The Board accepts that the appointor may have “understood” with prompting and explanation at the point in time that she was appointing her son and daughter-in-law to make future decisions on her behalf in the event that she lost capacity, however if she could not remember that she had made such an appointment she could not, then, understand that she also had the power to “undo” it.

The question of capacity is a legal test and the Board has found that the appointor could not have understood the nature and effect of the instrument at the time she signed it.

The Board was satisfied that the appointor did not have the mental capacity to make the appointment and therefore declared the instrument invalid.  The instrument is accordingly revoked pursuant to Section 34 1A(a) of the Act.

Because the Board declared the instrument invalid, it was not necessary to consider the other grounds of the application, namely that the enduring guardian was not willing or able to act in that capacity; or has not acted in the best interests of the appointor, or has acted in an incompetent and negligent manner, or has acted contrary to the provisions of the Act. 

The appointment of a guardian:

The pro forma application for review of an enduring guardianship includes an application for the appointment of a guardian pursuant to section 20 of the Act.  Additionally the notice of hearing reflected both kinds of application.  The Board considered this application after the declaration of the invalidity of the instrument. 

The medical evidence noted above was relied upon as evidence pursuant to section 20(1)(a) and (b) of the Act.  There was no dispute as to the appointor’s disability and subsequent lack of capacity to make reasonable decisions regarding her accommodation at the present time.  Therefore, the Board was satisfied that the appointor is a person with a disability and by reason of that disability she is unable to make reasonable decisions about her person and circumstances. 

The persons at the hearing agreed that the issue for which a guardian was needed are to decide where the appointor lives temporarily and permanently. There was a high degree of historical and conflicting opinion among family members as to whether it would be in the proposed represented person’s best interests to remain living in her current accommodation, close to the support of MKGD and TND, or to move to Queensland to be in closer proximity to other family members.

On the basis of the application, the evidence at hearing and the written submissions received prior to the hearing, the Board was satisfied that the appointor is in need of a limited guardian for that matter only and that the needs of the appointor cannot be met by other means less restrictive of her freedom of decision and action. 

The Board then addressed the issue of who ought to be appointed in that role.  The applicant initially nominated himself as guardian in the application.

The applicant was unable to attend the second hearing on 14 October 2013 as he was in America, however in the circumstances, the Board did not consider it was necessary to hear from him in respect of his nomination as guardian. 

It was clear on the papers provided and during the hearing, that there was a significant history of family disharmony and conflict in the appointor’s family. As a result of this the Board considered that the applicant might have difficulty in being an impartial decision-maker who would give all family members views about where the appointor would live equal consideration.  It was evident that the applicant had already formed a firm view as to this issue and it was unlikely that he would consider MKGD and TND’s views to the contrary.

Taking into account the factors in section 21, the Board considered that the Public Guardian is the appropriate guardian for the appointor. The Board also considered that in relation to the desirability of preserving family relationships, in an already fractured family, selection of a person who would be perceived to favour one side of the conflict over the other may have the effect of continuing and exacerbating that conflict. 

Conclusion:

After hearing an application in relation to an Enduring Guardian (14112) dated 12 January 2011 made by KQID (hereinafter the donor) appointing MKGD and TND as her guardians the Board was satisfied that the instrument does not comply with s34(1A)(a) of the Act in that the donor did not have the mental capacity to make it.

THE BOARD DECLARES that pursuant to s34(1A)(a) of the Act the instrument is invalid

AND FURTHER

After hearing an application for a guardianship order in respect of KQID (hereinafter called the ‘represented person’)

The Board was satisfied that the represented person

• is a person with a disability, and
• is unable by reason of the disability to make reasonable judgments in respect of her person and circumstances; and
• is in need of a limited guardian;

THE BOARD ORDERS

1. That the Public Guardian be appointed as the represented person’s guardian.

2. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily.

3. That the order remains in effect to 13 October 2016.

Catherine Gavan  Kim Barker  Liz Love
CHAIR  MEMBER  MEMBER