LD
[2017] QCAT 256
•13 April 2017
CITATION: | LD [2017] QCAT 256 |
PARTIES: | LD |
APPLICATION NUMBER: | GAA3859-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Endicott |
DELIVERED ON: | 13 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application by Deidre Venz for an interim order is dismissed. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult has had a fall and sustained a head injury – where the adult had earlier revoked an Enduring Power of Attorney and made a new grant of power – where family and medical treating staff raised concerns that new Enduring Power of Attorney was not valid – where concerns raised about the new attorney managing the adult’s assets – where appointment of a guardian and administrator sought INTERIM APPOINTMENT – whether the adult is at an immediate risk of harm – whether an interim appointment of decision-makers is required Guardianship and Administration Act 2000 (Qld), s 129(1) |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
LD revoked an Enduring Power of Attorney dated 26 August 2007 on 10 February 2017. Her former attorneys were her nephew and stepson. On 10 February 2017, LD granted a new Enduring Power of Attorney for financial, health and personal matters to a friend and neighbour, KP. There is evidence by way of a short medical report dated 10 February 2017 that a general medical practitioner had on that day reported that LD had capacity to execute an Enduring Power of Attorney document.
LD subsequently sustained a fall and underwent medical treatment. While LD was in the course of receiving that treatment, her former attorneys were notified that the 2007 Enduring Power of Attorney had been revoked and KP appointed as LD’s current attorney.
LD was an inpatient in a regional hospital and on 12 April 2017, a social worker at that hospital filed applications in QCAT seeking the appointment of a guardian and administrator for LD. The proposed appointees were the former attorneys for LD. The social worker also applied for an interim order appointing the proposed guardians and administrators until a determination could be made on the substantive applications.
The Tribunal can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) (GAA) if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an appointment, that the decision making needs of the adult will not be adequately met. Appointments are usually made after a hearing when the evidence about the application can be considered and findings of fact made on the evidence and the law applied to those findings of fact.
However, the Tribunal can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the GAA without holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
The applicant stated in support of her application for an interim order that there were concerns about the validity of the Enduring Power of Attorney made on 10 February 2017 as well as concerns relating to the management of LD’s finances including real estate. The applicant stated that LD is said to be a very wealthy lady and is considered to be very vulnerable and no longer had capacity to make decisions. The applicant stated that the earlier Enduring Power of Attorney had been revoked without any discussion with her family by a solicitor known to the current attorney, KP. The applicant stated that the family of LD had been told by the solicitor who had been instructed to make the current Enduring Power of Attorney that they were not to enter LD’s property or to have direct information relating to her healthcare from the hospital where LD was an inpatient.
The applicant further stated that there were concerns that LD did not have capacity when she made the Enduring Power of Attorney on 10 February 2017 and that she may have been unduly influenced by KP and was not making decisions freely and voluntarily. The applicant stated that LD had contacted her usual solicitor on 11 April 2017 and had given instructions to change her will to remove a bequest to KP. The applicant stated that LD had been calling one of her former attorneys stating that she had made a mistake and not to worry as she was fixing it. The applicant also stated that there were concerns about the current attorney, KP, acting with physical intimacy towards LD which nursing staff have felt is not appropriate and which the family stated is out of character for LD.
The applicant informed the Tribunal that a referral had been made to the Public Guardian to investigate the attorney’s actions. No report had been received from the Public Guardian arising from the referral about LD and KP.
Evidence was provided to the Tribunal about the capacity of LD to make her own decisions. Dr Wong, a specialist in rehabilitation medicine, reported on 9 April 2017 that he had known LD since 21 March 2017. He reported that LD had a diagnosis of acute on chronic subdural haemorrhage existing for two months, a urinary tract infection and Parkinson’s disease. LD had completed treatment for the urinary tract infection and had undergone a craniotomy and excision of the subdural haematoma on 4 March 2017. Dr Wong reported that a Mini Mental State Examination assessment on 23 March 2017 had resulted in a score of 16 out of 30 and that LD’s own GP had recorded a Mini Mental State Examination score for LD of 22 out of 30 before LD was hospitalised.
Dr Wong expressed his opinion that LD had poor insight and had no capacity for lifestyle choices or accommodation. Dr Wong reported that LD was unable to comprehend her disability, had had ongoing dysphagia and had high nursing needs. Dr Wong reported that LD’s mind is extremely muddled and LD’s cognitive impairment was pre-existing her craniotomy and surgery to remove the brain clots. Dr Wong expressed the opinion that cognitive deficits were likely to occur for months.
Dr Wong reported that LD was not able to make decisions freely and voluntarily and that LD was extremely vulnerable to influence and is easily taken advantage of in view of her cognitive deficit. Dr Wong expressed the opinion that a high percentage of long standing sufferers of Parkinson’s disease have significant mental impairment. Dr Wong stated that this is further compounded by chronic subdural haemorrhage of undetermined duration. In terms of LD’s presentation, Dr Wong considered that it was slow onset and possibly months before her surgical intervention.
Dr Wong reported that LD has significant expressive communication issues from moderate to severe dysarthria. Dr Wong noted that LD was extremely frustrated in her inability to communicate effectively. Dr Wong expressed an opinion that LD could not make an Enduring Power of Attorney as at 10 February 2017 and that LD could not make simple or complex decisions about health care, lifestyle and accommodation and financial matters as at the date of his report because of an acquired brain injury/cognitive disability.
Although the Tribunal is not required to make findings that a person has impaired decision-making capacity before making an interim appointment under s 129 of the GAA, the evidence provided to the Tribunal does give rise to a reasonable inference that LD does not at present have capacity to make her own decisions. Her medical specialist identified the presence of cognitive deficits that he relates to long standing Parkinson’s disease and to more the more recent impact of a subdural haemorrhage that had been slow in onset.
The applicant pointed to facts that she considered would give rise to an immediate risk of harm to LD’s personal and financial welfare. However, the Tribunal does not find that LD’s welfare is at an immediate risk of harm. LD cannot make her own decisions but she had on 10 February 2017 appointed an attorney to make decisions for her. The assertion was made that LD had lacked capacity to make the Enduring Power of Attorney on 10 February 2017. However, the evidence before the Tribunal did not support that assertion. When the substantive applications are heard, more evidence about LD’s capacity as at 10 February 2017 may be available.
The evidence available as at 13 April 2017 had established that LD had instructed a lawyer to revoke the 2007 Enduring Power of Attorney and to make a new Enduring Power of Attorney. According to a letter by that lawyer dated 27 March 2017, the lawyer does not act for KP. The lawyer had sought and obtained evidence from a doctor that LD had capacity to make an Enduring Power of Attorney on 10 February 2017. The lawyer had certified that LD had signed the Enduring Power of Attorney in his presence and that LD appeared to understand the matters set out in paragraph 8 of the enduring document. The evidence given to the Tribunal was that LD had had a fall that had resulted in a head injury. Although the date of the fall was not recorded in the documents filed in the Tribunal, LD had been admitted to the Emergency Department of the regional hospital on 17 February 2017 and the reason for admission was recorded as a fall: head injury.
Despite Dr Wong’s opinion that the subdural haematoma was of a slow onset type, and that LD would have had some cognitive impairment months before she was admitted to hospital for surgery, there is no satisfactory evidence that on 10 February 2017 LD could not understand the matters required by s 41(2) of the Powers of Attorney Act 1998 (Qld) in order to make a valid Enduring Power of Attorney. In fact, the evidence from her GP and her lawyer suggests that LD did have on that date the relevant level of understanding and could validly make an Enduring Power of Attorney at that date.
There is also no satisfying evidence that LD was unduly influenced by KP to make the Enduring Power of Attorney on 10 February 2017. The mere fact that LD changed her attorneys from family to a friend and neighbour does not reasonably give rise to substantiated claims of undue influence. A person is not under any obligation to discuss revocation of an Enduring Power of Attorney with any one, let alone with the attorneys who are being replaced. LD is an autonomous individual and she can make decisions with which others do not agree. The applicant states that LD has appeared to regret her decisions about KP but that fact alone is not enough to support a conclusion that her decision on 10 February 2017 was made without capacity. People can change their minds and such a change of mind does not automatically give rise in every case to inferences that they have impaired decision-making capacity.
The applicant raised concerns that KP as attorney would in some way endanger LD’s assets. There was no evidence given to the Tribunal to support that assertion. There was no evidence that any asset or financial resource of LD was at an immediate risk of harm from the actions of KP. Indeed, a referral had been made to the Public Guardian about KP but no specific allegation of wrongdoing had been made about him in that referral.
Based on the evidence given to the Tribunal, I could not be satisfied that LD was at an immediate risk of harm if an interim appointment of a guardian and administrator were not to be made. LD had chosen to appoint KP as her decision-maker under an Enduring Power of Attorney and the evidence was insufficient for the Tribunal to set aside that choice on an interim basis.
If KP lacked competence as an attorney or did not make decisions in accordance with his lawful obligations, the referral to the Public Guardian could result in a suspension of the attorney’s powers or a fresh application for an interim order could be made to the Tribunal based on evidence of LD’s welfare then being at an immediate risk of harm. An interim order could not be justified on the current evidence just because LD’s choice of attorney was contrary to the views of LD’s family or medical treating staff.
The application for an interim order was dismissed.
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