LRS
[2012] QCAT 112
•19 March 2012
| CITATION: | LRS [2012] QCAT 112 | |
| PARTIES: | LRS | |
| APPLICATION NUMBER: | GAA10267-11 / GAA10268-11 / GAA10269-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 28 February 2012 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Louise McDonald, Presiding Member Rocky Clifford, Member |
| DELIVERED ON: | 19 March 2012 |
| DELIVERED AT: | Maroochydore |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for LRS for decisions about the following personal matters: (a) Accommodation; (b) With whom LRS has contact and/or visits; (c) Health care; (d) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years. 3. The Public Trustee of Queensland is appointed as administrator for LRS 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 remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. 7. The following Enduring Power of Attorney for LRS 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 31 October 2011 appointing NS, AM and CS as attorneys for personal and health matters. 8. The following Enduring Power of Attorney for LRS is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: a) The Enduring Power of Attorney dated 25 May 2007 appointing ERG, MS and NS as attorneys for financial, personal and health matters. |
| CATCHWORDS: | Power of Attorney – Capacity to execute enduring power of attorney – Attorneys appointed severally – acting without consultation Power of Attorney Act 1998, ss 66, 79, 85, 117 |
APPEARANCES:
LS, MS, AS, NS, AS, AM,
Megan Copley, Adult Guardian
Sally Christianson, Adult Guardian – investigations
Marion Hall, Public Trustee
REASONS FOR DECISION
Background
The applications for the appointment of a Guardian and Administrator for LRS (hereafter the adult) were brought before the Tribunal on 14 December 2012 by the adult’s son MS. The applicant raised claims in relation to the operation of an enduring power of attorney, executed by the adult on 25 May 2007.
On 25 May 2007 the adult executed an enduring power of attorney appointing EGS, MS and NS severally as the adult’s attorneys for financial and personal/health matters.
On 5 May 2011, MS filed a complaint against co-attorney NS with the Office of the Adult Guardian, raising allegations that he was no longer consulted as attorney. His complaints raised concerns that substantial amounts of funds had been withdrawn from the adult and her husband’s joint bank account; that LRS and her husband had been removed from respite without consultation and against medical advice, and were moved to rented accommodation without the level care they needed. Further, he suggested that NS was not permitting him contact with the adult and her husband.
On 16 November, MS advised the Adult Guardian that he had received a letter from his brother NS advising that the adult had revoked the power of attorney of 25 May 2007, and made a new enduring power of attorney.
This most recent purported enduring power of attorney dated 27 October 2011, appointed NS, AM and CS severally as attorneys for financial and personal/health affairs of the adult.
On 14 December 2011, along with the applications for the appointment of a Guardian and Administrator, the applicant filed an application for an interim order for both a Guardian and Administrator for the adult. An interim order appointing the Adult Guardian as Guardian, and the Public Trustee as Administrator was granted on 16 December 2011.
The application required consideration of the attorneys’ compliance with obligations under sections 66 and 79 of the Powers of Attorney Act 1998, and ss 12 and 15 of the Guardianship and Administration Act 2000. The application was heard on 28 February 2012.
Capacity
The Tribunal firstly considered the evidence of the adult’s capacity to execute the enduring power of attorney of 27 October 2011, and the adult’s current decision making capacity.
In a report dated 8 November 2011, Dr Fogarty stated that the adult had been diagnosed with a cognitive impairment since 20 May 2011. He described it as a dementia, type unknown, but was a progressive and severe nature. He was of the view that she could not appreciate the consequences of decisions regarding health care, accommodation, choice of services, personal matters, and had no understanding of her financial affairs. He considered she could not make simple decisions of these kinds.
Dr Fogarty was asked to consider specifically whether the adult understood the nature and effect of the effect of an enduring power of attorney, including an understanding of all matters required by s 41 of the Powers of Attorney Act 1999. Specifically Dr Fogarty, in his report of 8 November 2011 concluded that she did not have the capacity to execute the enduring power of attorney.
An open letter from Dr Ross Anderson from Golden Beach Medical Centre, dated 16 February 2012, containing one sentence stated the following:
“In my opinion LRS understands the implications and responsibilities of power of attorney.”
Dr Anderson also provided a medical certificate stating “In my opinion LRS is capable of the decisions required under her husbands enduring power of attorney”.
NS submitted a letter dated 28 February 2012 from the Receptionist at Golden Beach Medical Centre states that the adult attended Golden Beach Medical Centre for treating care on the following dates: 2, 5, 8, 15, 19 September 2011; 3, 17, 28, 29 October 2011, 3, 24 November 2011.
An ACAT assessment on 4 November 2010 noted a Mini Mental State Examination score of 23/30, and further commented “slowly deteriorating cognition with bouts of confusion.”
The Tribunal questioned the adult in relation to her recollection and understanding of the enduring power of attorney and purported revocation she signed in October 2011. The adult was unable to explain what documentation she signed, and had no recollection of signing an enduring power of attorney in October 2011. She was unable to explain her rights in relation to it, and obligations it affords. She indicated that she did not understand what an enduring power of attorney was. The adult demonstrated some memory loss, having initial difficulty recalling where her husband was living, before eventually recalling that he was in care. She had difficulty recalling where she had previously been living, prior to moving in with NS but recalled this after some delay. She stated that she wanted NS to manage her money and decisions.
The evidence of NS was that his mother was capable of understanding what an enduring power of attorney was. He indicated that Dr Fogarty had had minimal contact with his mother, namely two visits, and was not her treating doctor. He observed both of his parents to have significantly declined in their health and abilities when they came to the Sunshine Coast by train. He believed that with his input into their care, they both “bounced back”, and while his father had declined subsequently, the adult was still doing well, and was capable of her own decisions. He advised the Tribunal that he co-operated with her and they make decisions together in relation to her personal health and financial matters. Despite the fact that he filed an application to be appointed as administrator and guardian for the adult, and had been acting under the appointment prior to being displaced by the interim order, he asserted that the adult was capable of decisions in consultation with him.
The evidence of MS and AS was that, when living under their supervision in Bargara, the adult’s cognitive condition had been declining for some time. She had been unreasonably cancelling medical appointments, forgetting his father’s pills, and not managing her money. He stated that she would “stash away money for when NS arrived”. He was firmly of the view that she was financially vulnerable and easily influenced.
The Adult Guardian’s report referred Dr Anderson’s view that the adult had age-related cognitive decline. A specialist assessment had been recommended by Dr Anderson but no referral has yet been made.
The Tribunal acknowledges there is conflict in the evidence in relation to capacity. The Tribunal must then weigh the evidence before it.
The evidence of Dr Fogarty specifically considers the parameters that the adult would have needed to understand under s 41 of the Powers of Attorney Act 1998. Dr Anderson’s brief sentence refers to a power of attorney, rather than an enduring power of attorney. The note does not contemplate the specific requirements for understanding the nature of the power given by the principal to an attorney. Therefore, limited weight can be placed on Dr Anderson’s note and medical certificate.
The Tribunal was satisfied based the adult’s oral evidence, that she had no understanding of the document she had executed on 27 October 2011 and no apparent recollection. The ACAT assessment suggests a cognitive decline since at least 2010. The Tribunal places greater weight on the report of Dr Fogarty who specifically considers the s 41 requirements and concludes at 8 November 2011 she did not have capacity to execute an enduring power of attorney. Given that the document was signed only days earlier, and in the context of progressive severe dementia diagnosed, the Tribunal concludes that the adult lacked the capacity required to execute the enduring power of attorney on 27 October 2011, and pursuant to section 113 of the Powers of Attorney Act 1998 declares it invalid on that basis.
Further, the evidence of Dr Fogarty clearly suggests the adult does not understand the nature and consequence of personal health and financial decisions of simple of complex nature. The Tribunal concludes that the adult lacks capacity for personal and financial matters. The presumption of capacity is rebutted.
Enduring Power of Attorney
Purported Revocation By the Adult
On 27 October 2011, the adult signed a piece of paper which stated: “Dear MS, I am revoking your Power of Attorney over me as of today. I resent you telling that I have dementia. You know it is not true.” The letter was signed by the adult, but not witnessed. The Powers of Attorney Act 1998, s 49 specifically requires a revocation to be witnessed. This document is not witnessed and is not compliant with the formal requirements for enduring documents within the Act. This document has been ineffective to revoke the enduring power of attorney of 25 May 2007.
Pursuant to section 50 of the Powers of Attorney Act 1998, a later enduring power of attorney will overtake a prior enduring power of attorney to the extent of the inconsistency. However, in circumstances where the later enduring power of attorney of 27 October 2011, has been invalid, the power of attorney dated 25 May 2007 has not been revoked by this document.
Appropriateness of the Enduring Power of Attorney of 25 May 2007
Multiple allegations in relation to the attorney’s actions under this instrument were raised by MS on 5 May 2011 and investigated by the Adult Guardian. The Tribunal considered the evidence of the parties as to compliance with obligations under the Powers of Attorney Act 1998.
Concerns were raised that NS acted in contradiction to medical advice and without consultation with the co-attorney by removing the adult and her husband with high care needs from respite care and into his own care.
The Adult Guardian’s reported concerns that the removal of the adult and her husband from care into NS’s care without the provision of services to support this move for the period from July until September 2011 was not a diligent personal decision.
The report of Dr Fogarty of 8 November 2011 indicates that removal from care was against advice. NS could not recollect a discussion with a medical practitioner in relation to this decision, but considered that he was acting in response to his mother’s distress and expressed wishes, given the unavailability of high care respite placements, and the burden this was placing upon her.
NS provided evidence of actions taken to organise medical and therapy appointments, home modifications and registration for ACAT on 28 November 2011. He considered these sufficiently met the adult’s needs at the time. He was providing full time care for his parents and did not consider that he needed additional services to support his parent’s care. NS explained that his mother was still proving care for his father, and he supported her in this regard. His involvement directly replaced meals on wheels and shopping support.
The Tribunal accepts NS’s evidence that there was no need for additional services at that point as he was personally providing an adequate level of care.
However, the Tribunal notes the Adult Guardian’s conclusion that the attorney acted in contradiction to medical advice.
MS’s complaint and subsequent application to the Tribunal also alleged that NS had not adequately protected the adult’s assets due to withdrawal of assets, asserting that substantial amounts had been withdrawn from the adult’s bank account which could not be accounted for.
NS argued that these regular expenses were necessary for the adult’s maintenance and living expenses.
The Adult Guardian advised that they were not provided any receipts for expenses incurred by the adult from May to November 2011. The adult’s bank statements noted regular weekly withdrawals of $340, deposited into another account which “may be NS’s”. There were however, inadequate records kept which “made it difficult to determine whether all withdrawals were for the benefit of the adult”. The Adult Guardian concluded that there had not been scrutiny of the adult’s financial affairs for many months. The Public Trustee indicated that there was not a clear case that excessive amounts had been withdrawn to reimburse NS’s expenses. The Tribunal has therefore concluded that the attorney has failed to keep adequate records in contravention of s 85 of the Powers of Attorney Act 1998, but there is insufficient evidence to indicate that NS was in breach of obligations to act under s 66, regarding financial decisions.
MS complained that he had not been consulted about any financial and health care decisions made by NS for the adult.
Section 79 of the Powers of Attorney Act 1998 provides a clear obligation on attorneys to consult with each other. It states:
“If there are 2 or more persons who are guardian, administrator or attorney for a principal, the persons must consult with one another on a regular basis to ensure the principal's interests are not prejudiced by a breakdown in communication between them.”
MS gave evidence that he has not been consulted by his brother in the decision to remove the adult and her husband from respite care, and into a rental home under his care.
NS considered that he had informed the co-attorney of actions taken. MS advised that he was informed of actions after they had been taken.
The Tribunal observed both NS and MS demonstrated considerable hostility in their dealings with each other before the Tribunal.
NS advised that he had attempted to encourage ongoing contact but MS had alienated himself by his “absence and deceit.”
The Adult Guardian concluded the adult’s son’s “do not appear to be able to consult about significant matters involving their parents due to intense sibling conflict”.
Ultimately the Adult Guardian provided the opinion that if the adult was found to have capacity, the enduring power of attorney is unworkable due to the level of conflict between the siblings. The Tribunal concludes that all the evidence before the Tribunal supports this conclusion.
The Tribunal finds that there is a high degree of conflict between the two remaining co-attorneys. Consultation between the attorneys has not been in accordance with the requirements of s 79 of the Powers of Attorney Act 1998. There is no indication that the co-attorneys are able to collaborate in decision making about their mother.
For this reason, pursuant to s 117 of the Powers of Attorney Act 1998, the enduring power of attorney dated 25 May 2007, is no longer appropriate.
Need for a Guardian
Given the level of conflict and impaired communication between the co-attorneys the Tribunal has formed the view that the enduring power of attorney of 25 May 2007 is unworkable.
The Adult Guardian reports they consider an ongoing need for a decision maker for personal matters, specifically accommodation, service provision and health care. They note her ACAT assessment has lapsed in November 2011, requiring a decision maker to consent, and once initiated, there will be advice regarding the need for services. They consider that there are potential decisions to be made with respect to accommodation, service provision and healthcare.
The Tribunal noted MS’s reports that he had difficulty accessing his mother while in the care of NS.
NS stated to the Tribunal that he was of the view that MS should have contact with his mother only in writing.
The adult stated with a sense of earnestness in her voice, “I don’t want MS to be pushed away!” indicating to the Tribunal that she wished to have ongoing contact with MS.
The Adult Guardian stated that MS was having contact with his mother when visiting his father and this had been working effectively until the adult had communicated that she did not want to see MS. The Tribunal notes this statement was inconsistent with the adult’s very clear statement made when discussing her contact with MS. The Tribunal notes the importance of Principle 8 of the Guardianship and Administration Act 2000:
“8 Maintenance of existing supportive relationships
The importance of maintaining an adult's existing supportive relationships must be taken into account.”
The Tribunal considers that there is need for an independent decision maker in relation to contact decisions relating to MS and the adult.
NS applied to be appointed as guardian for the adult. His application states that the adult is currently making her own health decisions and that her current statutory health attorneys were himself and his children AS and CS. It is noted that MS is excluded from this.
It is clear that adult’s two sons MS and NS have extremely high conflict between them and present as unable to collaborate or effectively communicate in decisions regarding the adult. Subsequently, the Tribunal considers that an independent statutory decision maker is the most appropriate appointee in these circumstances.
The Tribunal appoints the Adult Guardian as guardian for the adult for health, accommodation, services and contact until further order.
Need for an Administrator
The adult has joint substantial assets held jointly with her husband across three bank accounts, as well as a leasehold interest which was to be realised on the 29 February 2012. The funds from this will need to be invested. The adult also has income and living expenses to be managed.
NS applied to be appointed as administrator, specifying there was a need for a decision maker in relation to day to day decisions, Centrelink payments, real estate management and dealing with leasehold interest in retirement village. He considered he was the most appropriate appointee, being directly involved in her care, and having her trust.
His application notes the conflict with family members, specifically MS.
The Tribunal notes the existence of extensive conflict between him and MS, and MS’s objection to NS’s appointment. In view of this, an independent administrator is the most appropriate appointee.
NS objected to the involvement of a statutory authority, particularly due to the costs of administration fees. The Tribunal notes this objection, but is not satisfied that he would to keep MS informed, and his conduct to date suggests he has failed to do this.
The Tribunal makes a plenary appointment of the Public Trustee until further order.
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