LJM
[2014] QCAT 252
| CITATION: | LJM [2014] QCAT 252 |
| PARTIES: | LJM |
| APPLICATION NUMBER: | GAA11075-13; GAA11076-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 6 May 2014; 20 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Adrian Ashman |
| DELIVERED ON: | 21 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following Enduring Power of Attorney for LJM is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: a. The Enduring Power of Attorney dated 12 July 2013 appointing MEB and in the instance that MEB is unable or unwilling to act then BB for financial, personal, and health matters. 2. The Tribunal finds that LJM has capacity for simple personal and financial matters. 3. The application for the appointment of a guardian by CM is dismissed. 4. The application for the appointment of an administrator by CM is dismissed. |
| CATCHWORDS: | APPLICATION FOR THE APPOINTMENT OF AN ADMINISTRATOR AND GUARDIAN—where an enduring power of attorney exist; where the enduring power of attorney is declared invalid; where the adult is found to have capacity for simple personal and financial matters Guardianship and Administration Act 2000 (Qld) ss 5(b), 82(2) |
APPEARANCES and REPRESENTATION:
Applicant
Applicant’s representative
Adult
Adult’s mother
Adult’s representatives
Representatives of the Public Trustee of Queensland
Representative of the Adult Guardian
MEB
BB
5 family members
REASONS FOR DECISION
LJM lives with her elderly mother in a co-dependent relationship. LJM has mild intellectual disability.
It is said that on 12 July 2013, LJM instructed a solicitor to prepare an enduring power of attorney assigning decision-making powers to her sister MEB and her husband BB for personal, health, and financial matters. MEB was appointed immediately and BB was to assume the powers if his wife was not able, or did not wish to continue, to exercise the powers given.
Around this time discussions were taking place within the family about LJM’s mother and LJM moving into a purpose built granny flat in the back yard of MEB and BB’s home. When this proposal became common knowledge within the family, sister CM applied to the Tribunal for the appointment of a guardian and an administrator for LJM. She believed that LJM would be expected to contribute money to cover the cost of the construction of the granny flat, along the lines of a similar proposal put to LJM’s mother.
On 24 December 2013, the Tribunal dismissed an application for interim orders for guardianship and administration and the matter eventually came to a hearing first on 6 May 2014 and again on 20 May 2014.
The Tribunal’s roles and responsibilities are set out in the Guardianship and Administration Act 2000 (Qld). Both the Guardianship Act and the Powers of Attorney Act 1998 (Qld) seek to provide a comprehensive scheme to ensure the exercise of power for financial and personal matters by, or for, an adult when another person may need to exercise such powers. If the Tribunal is satisfied that the principal in the scheme had capacity to give powers, as in an enduring power of attorney[1], and the scheme is functioning effectively, the Tribunal will not contemplate changing that scheme. If, in the present matter, the Tribunal is not satisfied that the principal understood the nature and effects of the enduring document or the scheme is not functioning effectively, it is obliged to consider alternatives.
[1]Powers of Attorney Act 1998 (Qld) ss 41(1), 41(2).
Therefore, the Tribunal first turned its attention to the manner in which the Enduring Power of Attorney was made and how it has been applied.
Did LJM have capacity to understand the nature and effects of the enduring power of attorney?
Section 41(2) of the Powers of Attorney Act 1998 (Qld) states that the principal must understand: (a) that she may specify or limit the power to be given to an attorney and instruct an attorney about the exercise of power; (b) when the power is to begin; (c) that an attorney has full control over the way in which powers are exercised; (d) that she may revoke the powers while still capable of doing so; (e) that the powers continue after the principal loses decision-making capacity; and (f) when the principal is no longer able to oversee the use of the powers given, she cannot revoke those powers.
A solicitor attended LJM and drew up the Enduring Powers of Attorney for LJM and her mother. The solicitor wrote on 20 April 2014 that he was satisfied that he had explained the nature and effects of an enduring power of attorney to LJM and that she understood the explanations given. The actual process that the solicitor followed to satisfy himself that LJM understood the conditions set out in [7] is not clear. The natural reading of his statement would suggest that an explanation was given and LJM was asked if she understood what was said. It is not apparent that she was invited to explain the solicitor’s description in her own words, thus verifying her understanding.
The Tribunal has three health professional reports that provide information in regard to LJM’s capacity to give the enduring powers validly. The first is LJM’s general practitioner. On 19 December 2014 she responded to items in the health professional’s report in regard to LJM executing an enduring power of attorney. She indicated that, to her knowledge, LJM had not executed an EPA and checked the “No” box to all questions referred to in [7] above. Elsewhere in the report, she wrote that LJM has always relied on her mother to make decisions and was unable to pay bills, budget, planning for the future or understand legal or financial transactions.
In a later report of 31 January 2014, the general practitioner again responded to questions relating to an enduring power of attorney. She again checked the “No” box concerning LJM’s capacity at the time of the report to execute an Enduring Power of Attorney but did not respond to the question, “Do you consider that the adult had capacity to execute an Enduring Power of Attorney when the adult did make such a document?” It is not known if she was aware that LJM had executed an EPA on 12 July 2013.
LJM’s neurologist who has known her for many years and has been managing her epilepsy. The neurologist was invited by LJM’s legal representative to provide comment on her capacity as defined in the Guardianship and Administration Act 2000 (Qld). His letter of 28 April 2014 gives the opinion that she is able to understand the nature and effect of decisions about a matter, to make decisions freely and voluntarily, and communicate those decisions in some way. He describes the co-dependent relationship with her mother but does not specifically address LJM’s capacity to give an enduring power of attorney. The neurologist does not specifically address all of the questions posed by LJM’s legal representative.
There is no contemporaneous evidence available concerning LJM’s capacity to give enduring powers at the time they were given to her sister and brother-in-law.
The Tribunal interacted with LJM during the hearing. This was not especially successful. She confirmed the close and co-dependent nature of the relationship with her mother, confirmed that she wanted to continue residing with her mother wherever that might be, and reported that she depended upon her mother for financial management but was able to operate her bank account. Each fortnight she withdrew funds and passed these directly to her mother who then handed out money to LJM as she needed it.
LJM was not able to discuss or explain the events surrounding the giving of the enduring power of attorney and expressed only a rudimentary understanding of its purpose, that is, to have her sister look after her money and look after her.
Based on the information provided the Tribunal is not satisfied that LJM had the capacity to understand the nature and effects of the enduring power of attorney at the time the enduring document was prepared. The Tribunal finds that the Enduring Power of Attorney given to MEB and BB is invalid. The Tribunal then turned its attention to LJM’s capacity to make decisions for herself in personal and financial matters.
Does LJM have capacity to make personal and financial decisions?
The Tribunal drew again on the health professional reports. As personal and financial matters vary in their complexity and the cognitive demands needed to achieve a satisfactory resolution, the neurologist’s letter of 28 April 2014 is not helpful. He refers to capacity “about a matter” but provides no indication as to the type or complexity of any matter. The general practitioner expressed the opinion that LJM was capable of simple decisions about personal health care (in the 19 December 2013 report) and simple health care and “Other personal matters” (in the 31 January 2014 report).
These opinions appear to be largely consistent with the evidence given by LJM’s mother and LJM and the latter’s dependence on the former. It is apparent that LJM operates perfectly successfully within the supportive home environment including operating bank accounts, shopping, and performing household chores.
Section 5(c) of the Guardianship Act acknowledges that the capacity of an adult to make decisions varies according to the complexity of the decisions and the support available to the adult from the network of friends and family. LJM lives in a supportive relationship. Her life is relatively predictable and the overwhelming majority of decisions that she needs to make are straightforward and overseen mainly by her mother. There are fortnightly visits by, and outings with a community care organisation staff. There is no evidence given that she is, or will be, vulnerable to personal or financial exploitation and she is aware of her financial obligations to her household in regard to paying a portion of utility and other household bills.
The Tribunal is satisfied that the support available will enable LJM to achieve decision-making independence in all simple decisions that are likely to be required. The Tribunal finds that LJM has capacity for simple personal and financial decisions.
Given [18] above, the Tribunal dismisses the applications by CM for the appointment of a guardian and an administrator.
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