LW

[2016] QCAT 522

CITATION:

LW  [2016] QCAT 522

PARTIES:

LW

APPLICATION NUMBER:

GAA12011-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

17 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by LS for an interim order is dismissed.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult made an Enduring Power of Attorney appointing his son as attorney – where the adult later revoked that grant of power and made a new Enduring Power of Attorney appointing his former partner and then his son successively – where the former partner had complained that she was denied access to the adult – where applications made for appointment of a decision-maker and for declarations about the validity of the later Enduring Power of Attorney

INTERIM APPOINTMENT – whether the adult is at an immediate risk of harm – whether an interim appointment of a decision-maker or an interim suspension of the Enduring Power of Attorney 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

1. LW is 77 years of age.  He resides in an aged care facility.  An application for the appointment of an administrator was filed in the Tribunal by IAC who was described as the former de facto partner of LW.  Despite only filing an application for the appointment of a financial decision-maker, IAC filed documents in the Tribunal in which she complained that she had been prevented from visiting LW by LS, who is the son of LW. 

2. LS applied to the Tribunal for an order about the validity of an Enduring Power of Attorney made by LW on 3 February 2014 and of an Enduring Power of Attorney made by LW on 22 August 2015.  The 2014 Enduring Power of Attorney had appointed LS to be the attorney for personal, health and financial matters.  LW signed a revocation of the 2014 Enduring Power of Attorney on 22 August 2015 and made a new Enduring Power of Attorney in which IAC was appointed as attorney for LW for personal, health and financial matters and LS was the successive attorney.

3. LS filed in the Tribunal copies of medical reports by Dr Nick John, geriatrician, who had been consulted by LW in 2015.  The reports revealed that Dr John had expressed the opinion on 4 February 2015 that LW’s capacity for making rational decision-making was impaired and that LW was unable to change his Enduring Power of Attorney.   In a report dated 5 August 2015, Dr John referred to LW as a person with significant cognitive impairment.  Dr John reported that LW continued to deteriorate very slowly from his Alzheimer’s disease and recommended the family approach QCAT about concerns about LW’s Enduring Power of Attorney.

4. Despite the terms of the 2015 Enduring Power of Attorney, the evidence filed in the Tribunal established that personal and financial decisions were being made by LS who made arrangements to place LW into residential aged care in May 2016.   LW resided in a 25-bed hostel unit that was operated by Alzheimer’s Queensland.  Evidence was filed in the Tribunal from the director of care of the facility that LW had been taken out of the hostel almost daily by IAC and his friends and that LW had had difficulty settling into the new environment.

5. The director of care stated that staff had overheard inappropriate comments by LW’s friends made in the presence of LW which had caused him distress.  LW was displaying concerning behaviour stemming from beliefs that he still owned his business and that LS was mismanaging his finances.  The director of care stated that LW was engaging in a range of activities at the hostel and was enjoying visits from his son. 

6. LS also filed a report from Dr Kim Hicks, psychiatrist, who had been treating LW since April 2016.  Dr Hicks reported on 3 November 2016 that LW had presented well during his visit on 12 September 2016 and the distress which had been evident in July 2016 was no longer present.  Dr Hicks stated that there had been a positive result from the decision to restrict access by his friends to LW as there was a significant improvement in LW’s mental state and a reduction in his distress and agitation.  Dr Hicks commented that LW presents with significant memory and executive functioning impairment and that he is well cared for in his aged care facility. 

7. LS also applied for an interim order.  He sought orders suspending the revocation of the 2014 Enduring Power of Attorney, suspending the 2015 Enduring Power of Attorney, and a declaration that the 2014 Enduring Power of Attorney remained valid and operative pending the outcome of the substantive applications filed in the Tribunal.   In the alternative, LS sought an interim order suspending all Enduring Powers of Attorney for LW and the appointment of LS as guardian and administrator for LW.    

8. In support of the application for interim orders, LS submitted that a complaint had been made to the Public Guardian about his actions as attorney for LW.  LS stated that an officer at the Public Guardian had told him that unless QCAT decided otherwise, the 2015 Enduring Power of Attorney would be regarded by the Public Guardian as valid. 

9. QCAT can make an appointment of a decision maker or other order on an interim basis for up to three months under s 129(1) of the Guardianship and Administration Act 2000 (Qld) (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.

10. LS submitted on 7 November 2016 that there was an immediate risk that IAC would remove LW from the aged care facility in circumstances where she could not adequately care for LW.  LS did not reveal evidence on which this assertion was based apart from identifying that earlier in 2016 IAC had visited LW with friends and had taken LW out of the facility on a regular basis.  The more recent evidence from LS and IAC revealed that she had not made any attempts to take LW out of the facility for some months as a result of instructions that limited her access to LW. 

11. LS had also asserted that IAC had received money for renovations to a property owned by IAC and also large amounts of cash from LW before he had gone into care.  LS submitted that if IAC used the 2015 Enduring Power of Attorney, she could take financial advantage of LW, giving rise to a risk to LW’s assets.  LS did not provide evidence to support the assertion that there was an immediate risk to LW’s finances. 

12. All the documents filed by IAC in the Tribunal referred to LS as being the attorney for LW.   IAC did not refer to herself as an attorney for LW.  IAC did not reveal in her evidence any intention to exercise powers of decision-making under the 2015 Enduring Power of Attorney.  She was, in fact, seeking intervention from the Tribunal via the proposed appointment of an administrator, and possibly a guardian, rather than revealing any intention to take over the affairs of LW herself. 

13. The assertions made by LS that IAC would remove LW from his facility or that IAC would take financial advantage of LW were not substantiated by the evidence filed in the Tribunal.  The evidence relied on for the assertions related to circumstances in place many months earlier and which were no longer current.  There was no reasonable basis on which a conclusion could be reached that LW was at an immediate risk of harm. 

14. LS’s evidence had, to the contrary, established that he was making all relevant personal and financial decisions for LW without hindrance from IAC.  On that basis, interim orders were unnecessary and the application by LS for an interim order was dismissed.