LIP
[2014] QCAT 659
•16 December 2014
| CITATION: | LIP [2014] QCAT 659 |
| PARTIES: | LIP |
| APPLICATION NUMBER: | GAA8402-14 / GAA8405-14 / GAA9076-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 17 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE TRIBUNAL THAT: GUARDIANSHIP 1. LIM is appointed as guardian for LIP for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for LIP for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 7. That before 17 January 2015 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 copy of this order and a notice to the registrar advising 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. 8. 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 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 or the adult’s interest in another property. ENDURING POWER OF ATTORNEY 9. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to CAJ and LED to resign as attorney(s) for LIP under the Enduring Power of Attorney dated 14 July 2009. |
| CATCHWORDS: | GUARDINASHIP AND ADMINISTRATION – whether to grant attorneys leave to resign – appropriateness and competence of proposed appointees – Guardianship and Administration Act 2000 (Qld) ss 12, 14 and 15 |
APPEARANCES and REPRESENTATION (if any):
The following parties attended the hearing:-
LIP, LIM, LED, CAJ and Mark Klewin, representing the Public Trustee of Queensland
REASONS FOR DECISION
LIP is 79 years old and resides in a retirement village at Rochedale. LIM, a daughter has made an application to the Tribunal proposing that she be appointed guardian and administrator for her mother. LIP had appointed CAJ and LED jointly as her attorneys for financial and personal/health matters on 14 July 2009. LIM states that she is required to make health care decisions for LIP, with her mother signing consents as there is a lack of communication with the attorneys and they wish to resign. There is another daughter, LD who also does not have good communication with LIM.
When considering an application for guardianship and administration the Tribunal does so in accordance with s 12 of the Guardianship and Administration Act 2000 (Qld). That requires the Tribunal to be satisfied of the following matters:
a) Whether LIP has impaired capacity for personal and financial matters?;
b) Whether there is a need for decisions in regard to personal matters, and if so who should be appointed as Guardian?; and
c) Whether there is a need for decisions about financial matters and if so who should be appointed administrator?
CAPACITY
Dr Lillian Wong, geriatrician provided a health professional report to the Tribunal about LIP. Dr Wong has known LIP for three years and last saw her on 22 August 2014. She stated that LIP had medical conditions including Alzheimer’s mixed vascular dementia, which was formally diagnosed in February 2012. She has a MMSE score of 13/30, which in the Tribunals experience indicates at least moderate cognitive impairment. She does not believe she has any medical problems and while she is aware she takes medication, she does not know the names or the reasons for the tablets; she is also showered and dressed by staff at the facility where she resides.
LIP does not know where she is living but is happy there and does not think she needs any help from the nurses. She also does not know how much she has in the bank. She also does not know how much she pays there and says her family, LED and LIM, have handled her finances.
Dr Wong’s opinion was that LIP was able to understand and make all types of simple decisions but no complex ones.
LIM confirmed that her mother is able to make simple daily decisions such what she wants to wear and what she wants to do during the day. Also that her mother is able to decide not to have surgery which would require her to be lying in bed for a year but is confused about her medication.
The Tribunal is satisfied that LIP has impaired capacity for decisions about personal and financial matters because of the effects of dementia.
THE NEED FOR DECISIONS ABOUT PERSONAL MATTERS AND WHO SHOULD BE APPOINTED GUARDIAN
LIM states that she has always seen her mother on a weekly basis and this has continued since her diagnosis. Since LIP has resided in the retirement village, she has attended to her daily needs including booking podiatrist appointments, taking her shopping, movies, day trips, lunches, GP and specialist appointments and family visits. She provided a transcribed sample from her diary to confirm this. The facility at which LIP resides is a retirement village and she is provided with care through a package. It may be that her care needs will increase with the advance of her dementia and general aging issues such as being a falls risk. This will require decisions about service provision and accommodation. There are clearly ongoing health issues where decisions will be required. The Tribunal is satisfied that there is need for decisions about accommodation, service provision and health care for LIP.
The attorney’s CAJ and LED have made application for leave to resign as attorneys for LIP. CAJ grounds were changes in her employment and her son’s involvement in elite athletics meant that she had less time to give and she was concerned about the ongoing family issues tensions and estrangements. LED, felt that his mother had put a huge amount of pressure and stress on him regarding LIP’s estate. This pressure and stress is the main reason he wishes to resign. The Tribunal notes the work that the attorneys have done to ensure that LIP has been able to transition from her home into the retirement village and the ongoing work they did in managing her finances and ensuring that necessary decisions were made. The Tribunal grants leave to the attorneys to resign.
LIP requires a decision maker for personal matters and the eligible appointees are the Public Guardian and LIM. CAJ, LED supported LIM as guardian initially on the basis that there would need to be joint appointment with LD. LD did not wish to be appointed with LIM and did not support her appointment as guardian. LED stated at the hearing that LIM would be able to make personal decisions in LIP’s best interests. The care manager at the retirement village raised concerns about LIM making decisions without consultation but considered that she could be appointed on an interim basis.
LD advised that she had not spoken to LIM since her father’s funeral in 2009 and that LIM had been estranged from her mother after she appointed LED and CAJ as attorney. LIM acknowledged this estrangement from her mother and advised that they had undergone counselling. Clearly now LIM is heavily involved in her mother’s life and wishes to be appointed as guardian for her so that she has the authority to deal with the matters which arise in her mother’s life. As she was the one who often took her mother to her appointments and visited her regularly.
LIM is a college lecturer and provided many personal references from colleagues and friends in support of her appointment as guardian and administrator for her mother. They all speak of her honesty and integrity and her desire to ensure her mother’s best interests are met.
The Tribunal may appoint the Public Guardian only if there is no one else who is able to be appointed.[1] LIM offers herself for appointment as guardian and while there are some concerns about her, she is supported to at least some degree by those close to her mother that is CAJ and LED in the role of guardian. Clearly, she will need to ensure that she has some dialogue with her sister, LD so that she can have some input into and obtain updates about her mother health and other issues. The Tribunal appoints LIM as guardian for LIP for decisions about accommodation, health care and provision of services.
[1]Guardianship and Administration Act 2000 (Qld) s 14(2).
THE NEED FOR DECISIONS ABOUT FINANCIAL MATTERS AND WHO SHOULD BE APPOINTED ADMINISTRATOR
LIP has extensive investments including a pension fund valued at $600,000, share portfolio valued at $500,000, term deposits valued at $500,000 and her retirement unit valued at $365,000. The investments are managed by a financial advisor. Her income is from her investments and she makes a regular payment to the retirement village where she lives and has other usual living expenses. Clearly, there is a need for a decision maker for LIP to ensure that her assets are protected and her bills are paid.
The Tribunal has granted LIP’s attorneys leave to resign and so there will be a need for an administrator to be appointed. LIM has nominated herself in the role and the Public Trustee of Queensland is also available for appointment. While LIM is supported by her friends and colleagues, those closest to her and her mother do not support her as administrator. CAJ and LED, her one son raise her interference from LIM as a ground for their wish to resign as attorneys. CAJ and LD both say that LIP did not trust LIM. LD provided details of specific incidents in the last year where LIM has caused problems about her mother’s finances.
The Tribunal takes the fact that family and those close to the family do not support the appointment of LIM as administrator seriously and does not find the references provided by her persuasive about finances. There is a history of her causing issues about the original appointment of the attorneys at a time when she was estranged from her mother and then her causing them to wish to resign due to pressure from her. LIP made the decision to appoint others and the Tribunal will be guided by that. While clearly, LIP is now content to have LIM assist her with personal decisions there have been ongoing issues about finances, which cannot be ignored.
The Public Trustee of Queensland is independent and professional and will ensure that LIP’s financial needs are met and will act transparently in its decision-making and record keeping. The Public Trustee will liaise with LIM as guardian to ensure that appropriate decisions are made for LIP in meeting all of her needs.
The Public Trustee of Queensland is appointed as administrator for LIP for all financial matters.
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