LOP
[2014] QCAT 249
•21 May 2014
| CITATION: | LOP [2014] QCAT 249 |
| PARTIES: | LOP |
| APPLICATION NUMBER: | GAA063-14; GAA064-14 |
| 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 Tribunal notes the existence of the following Enduring Power of Attorney for LOP a. The Enduring Power of Attorney dated 12 July 2013 appointing Madonna MEB and in the instance that MEB is unable or unwilling to act then BB for financial, personal, and health matters. 2. The application for the appointment of a guardian by CM is dismissed. 3. The application for the appointment of an administrator by CM is dismissed. 4. The Tribunal notes that the interim order made on 7 February 2014 appointing the Adult Guardian as guardian for LOP for the following personal decisions only: a. Accommodation decisions b. Provision of services has expired. 5. The Tribunal notes that the interim order made on 7 February 2014 appointing the Public Trustee of Queensland as administrator for LOP for all financial matter has expired. |
| CATCHWORDS: | APPLICATION FOR THE APPOINTMENT OF AN ADMINISTRATOR AND GUARDIAN—where an enduring power of attorney exist; where the attorney’s actions have been challenged; where interim orders of the Tribunal have been made appointing the Public Trustee of Queensland and the Adult Guardian; where the adult was found to have capacity to give the enduring powers; where there is no evidence that the attorney has exercised the powers given or compromised the powers given Guardianship and Administration Act 2000 (Qld) s 5(b) |
APPEARANCES and REPRESENTATION:
Applicant
Applicant’s representative
Adult
Adult’s daughter
Adult’s representatives
Representatives of the Public Trustee of Queensland
Representative of the Adult Guardian
MEB
BB
5 family members
REASONS FOR DECISION
LOP lives in her own home with a daughter who has mild intellectual disability. LOP is experiencing the early stages of Parkinson’s disease and has a range of mobility problems that require her to use a four-wheel walker to move around safely.
On 12 July 2013, LOP was attended by members of a legal firm with which the family has had a relationship for some years and she instructed the preparation of an enduring power of attorney assigning decision-making powers to daughter 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.
Since that time there have been discussions with a daughter, MEB and BB, about future accommodation options including LOP selling her unmortgaged home and contributing money sufficient to build a detached granny flat in their back yard that would accommodate LOP and her daughter. While these discussions have been ongoing for some time, details of any arrangement to achieve that goal have not been formulated. However, when other siblings learned of the granny flat proposal, concerns were raised about the BBs’ intentions and LOP’s vulnerability to financial exploitation.
These concerns led daughter CM to apply to the Tribunal for consideration of the appointment of a guardian and an administrator for LOP due primarily to an expected hasty sale of LOP’s home and proceeds of the sale being transferred to the BBs.
On 7 February 2014, the Tribunal issued interim orders appointing the Adult Guardian for personal decisions and the Public Trustee of Queensland for financial matters. Those orders overtook the enduring power of attorney given to MEB and BB.
The Tribunal’s roles and responsibilities are set out in the Guardianship and Administration Act 2000 (Qld). Along with the Powers of Attorney Act 1998 (Qld), the Guardianship Act seeks to provide a comprehensive scheme to ensure the exercise of power for financial and personal matters by, or for, an adult who needs—or may need—another person to exercise such powers. If a scheme is in place, such as an enduring power of attorney, and the Tribunal is satisfied that the principal had capacity to make an enduring power of attorney[1] and the scheme is functioning effectively and in accordance with General Principles set out in Schedule 1 of those Acts, the Tribunal will not contemplate changing that scheme. If, however, the Tribunal is not satisfied that the principal understood the nature and effects of the enduring document or the scheme is not functioning effectively and in accordance with General Principles, it is obliged to consider alternatives.
[1]Section 41(1) and 41(2) of the Powers of Attorney Act 1998 (Qld).
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 LOP have capacity to understand the nature and effects of the enduring power of attorney?
In summary, s 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.
At the time LOP gave the powers to her daughter and successively to her son-in-law, the legal firm engaged to prepare the document sought a medical opinion from LOP’s general practitioner about whether LOP had capacity to give enduring powers. Her letter of 13 June 2013 to the solicitors is a mere three lines. It states that LOP is a patient of her practice, that she has known LOP for 12 months, and having examined her, found her to be of sound mind and capable of making legal decisions for herself. In later correspondence to the Adult Guardian, she referred to a Mini Mental State Examination that was administered on 27 June 2013. The Tribunal has no copy of a MMSE of that date but holds a copy of a MMSE administered on 13 June 2013 on which LOP scored 28/30. Whether this is the same document to which the general practitioner referred is not clear. Regardless, a score of 28/30 suggests that there is no notable cognitive deficit.
The Tribunal asked LOP to describe the events that led to the granting of the enduring power of attorney. Initially, she was unable to recall the event despite prompting from the Tribunal member, MEB, or her legal representative. The explanation offered for her failure to recall or describe the event was the anxiety inherent in the Tribunal setting. After some time in conversation, LOP became more talkative and could readily articulate events and her position on a number of personal and financial matters, including the options available to her in regard to any future change in her place of residence. She was still unable to recall giving the enduring power of attorney to her daughter and son-in-law and was not overly clear about the nature and effects of such a document.
LOP clearly described her activities of daily living, some of the difficulties that she experiences due to her physical limitations, the nature of the support that she provides to her daughter, and the co-dependent nature of their relationship. In regard to the building of a granny flat on the BBs’ property, LOP described some of the positive attributes, including proximity to her daughter and son-in-law and the prospective long-term nature of such relocation. She was aware that she would be required to sell her house to fund such a project, was realistic in suggesting a likely sale price, and explained—at least in a rudimentary way—how she would go about achieving this end.
LOP reports that she manages her finances effectively. Has no outstanding debts and pays the household bills by cash when they are received. This is confirmed by MEB and by the representative of the Public Trustee of Queensland. Specifically, the the Public Trustee’s representative outlined LOP’s financial situation, which includes significant savings and a comfortable income via the Age Pension and Carer’s allowance (in respect of LOP’s daughter).
Overall, LOP presented convincing evidence that she was aware of her personal and financial circumstances, could manage her decision making in those areas, and was willing and able to take advice from others but still capable of making decisions for herself. She experiences some limitations due to her physical status. Her current intact cognitive capabilities have been confirmed by the neurologist, who has known LOP for many years. On 28 April 2014, he wrote that she is capable of understanding the nature and effect of decisions, can make decisions freely and voluntarily, and can communicate those decisions in some way although he did not specifically refer to the capacity to give an enduring power.
More recently, an ACAT assessment provided during the hearing dated 11 April 2014 gives no indication of memory or other cognitive deficits.
While the Tribunal is not fully satisfied with the manner in which the solicitor might have gone about explaining the nature and effects of an enduring power of attorney to LOP and, more importantly, having her repeat that explanation in her own words to the solicitor’s satisfaction, there is no convincing evidence that LOP did not understand the nature and effects of her actions. Similarly, the general practitioner’s opinion of 13 June 2013 gives no basis for her opinion. The only relevant evidence is the MMSE of the same date and this suggests that LOP was oriented in time and place, displayed no memory deficits, and was attentive and responsive in her language. That LOP could not now recall the event clearly or explain succinctly the nature and effects of an enduring document is of some concern, but it is not unreasonable giving the passage of time and the nature of the interactions within the Tribunal hearing.
Without convincing evidence to the contrary, the Tribunal finds that LOP validly gave enduring powers of attorney to her daughter MEB and successively to her son-in-law BB on 12 July 2013.
I turn now to the probity of the attorneys and their exercise of the enduring document.
In her applications to the Tribunal, CM expressed serious concerns about the sale of LOP’s home. CM stated that she wanted to stop the sale of her mother’s property, would resist LOP and her daughter moving in with the BBs, and stated the opinion that the best option was for LOP and the daughter to enter an assisted care facility where they would live for the rest of their lives. The Tribunal accepts that the BBs were giving clear signals that LOP’s house would soon be put on the market and that LOP and the daughter would be contributing to the construction of a granny flat on their property. Notwithstanding this, the Tribunal holds documents to the effect that LOP believed that CM’s contributions to the decision were unwelcome and in oral evidence LOP stated that while she favoured that option, it was only one under consideration. She was comfortable living in her own home, but saw merits in being in closer proximity to the BBs.
LOP’s legal representative indicated that his firm has been involved in the accommodation decision process although the extent of this involvement was not canvassed. He stated full awareness that the sale of LOP’s property and any monetary contribution to the BBs could compromise their position as attorney for their mother and that LOP and her daughter would need the security of a legally binding document outlining their entitlements if LOP’s property was sold and there was to be a contribution to the BBs to enable construction of the granny flat. The Public Trustee’s representative confirmed that the Public Trustee operating as an administrator was generally not in favour of such arrangements, although such arrangements have been made.
Counsel for LOP stated that the attorney has not yet exercised the powers given to her on the belief that LOP was capable of making decisions for herself and that legal opinion would be provided concerning any potential conflict of interest. On that basis, the attorney had not compromised herself in regard to any conflict transactions.
It is apparent that events related to LOP and her daughter’s relocation to the BB’s home were progressing rapidly and that this led to CM’s applications to the Tribunal. The complication in the scenario appears to have arisen from tensions that exist between siblings, not the least of these is the minimal involvement of CM in her mother’s affairs, and the revelations in the document outlining the plan for the sale of LOP’s home and the distribution of the funds from the proceeds of that sale. It is not fully apparent what the purpose of that document was. Mr Bennett stated that it was hastily prepared for a family meeting but it does read as a final proposal despite it being labelled Granny Flat Plan. It does carry a footnote, “This information is given only as a declaration of intent.”
The Tribunal is satisfied that LOP is engaging in discussions about her future with family and professionals and that, given the complexity of any arrangement for a granny flat, no final decision has been made. Of importance, LOP has chosen, for whatever reason(s), to exclude one family member/group from the decision-making process, as reflected in her solicitor’s correspondence[2]. She is, of course, completely at liberty to do this and to make decisions with which others might not agree. Such an acknowledgement is given in s 5(b) of the Guardianship and Administration Act 2000 (Qld).
[2]Letter from solicitors dated 14 February 2014.
At present, and with LOP’s awareness of her current circumstances and future needs, it does not appear as though the attorney has exercised any power given to her. Clearly, there are significant issues to address if any decision is made to sell her house and distribute the proceeds of that sale to family members. It does not appear that this position has been reached.
The Tribunal finds that the attorney(s) have not exercised the powers given to them and, therefore, the operation of the enduring power of attorney has not been compromised.
The Tribunal notes the existence of the enduring document dated 12 July 2013 in which LOP gives enduring powers for decisions relating to health, personal, and financial matters to MEB and successively to BB, and dismisses the applications made by CM for the appointment of a guardian and an administrator for LOP. The Tribunal revokes the appointment of the Adult Guardian as guardian for LOP and revokes the appointment of the Public Trustee of Queensland as administrator for LOP.
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