MA
[2015] QCAT 82
•13 March 2015
| CITATION: | MA [2015] QCAT 82 |
| PARTIES: | MA |
| APPLICATION NUMBER: | GAA11643–14; GAA1588–15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 25 February 2015 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 13 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | GUARDIANSHIP 1. DLB is appointed as guardian for MA for decisions about the following personal matters: (a) Accommodation; (b) Health care; and (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 three (3) years. ADMINISTRATION 3. DLB is appointed as administrator for MA for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter: (a) copies of the adult's bank statements/passbooks/term deposits for the past year; (b) copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period; (c) copy of receipts for any individual items purchased in excess of $500.00; (d) for any shares, investments or superannuation, a copy of all dividend notices or statements received during the year; (e) a signed and witnessed Declaration as to continuing appropriateness for appointment; (f) a list of the adult's current assets and liabilities; (g) a current fortnightly budget of income and expenditure. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in three (3) year. NOTICE OF INTEREST IN LAND 7. That before 25 May 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. The following Enduring Power of Attorney for MA is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made: (a) The Enduring Power of Attorney dated 5 April 2012 appointing DLB for financial, personal and health matters. |
| CATCHWORDS: | Guardianship and administration matters for adults – Enduring Power of Attorney executed in 2012 for adult diagnosed with frontal lobe dementia in 2009 |
APPEARANCES:
DLB – daughter
DG – son-in-law
REASONS FOR DECISION
Background
MA is a 72-year-old man who has been living in his own unit in Trinity Beach up until a recent decline in his health lead to his admission into hospital.
MA has a long-standing diagnosis of frontal lobe dementia with the Victorian Civil and Administrative Tribunal (VCAT) formally appointing his daughter DLB as his decision maker.
MA executed an enduring power of attorney on 5 April 2012 appointing his daughter as his attorney.
The issue for the Tribunal is whether MA needs a decision maker and if so whether the decision maker can act under the enduring document or requires the formal sanction of the Tribunal.
Does MA have capacity to make his own decisions?
The Victorian Civil and Administrative Tribunal appointed DLB as administrator on 31 July 2012 and as Guardian on 17 September 2013. The basis of these appointments was the assessment of Dr Elie Kotsopoulos a Clinical Neuropsychologist attached to the Dandenong Hospital and a Social Report by Sandra Edwards a social worker.
Dr Elie Kotsopoulos on page 5 of his Report of 27 February 2012 describes MA's performance on tasks assessing overall cognitive functioning as ranging ‘between the Extremely Low to Average range’. The neuropsychologist on page 7 of his Report states:
The current assessment was conducted following a relatively good period of abstinence from alcohol; however, MA continues to show impairment in a number of cognitive areas including poor problem solving, cognitive inflexibility, reduced self-monitoring, and significant disinhibition… For example, during testing MA displayed significant difficulty suppressing automatic responses (i.e. Disinhibition) which may be under greater control when he is not consuming alcohol. Within the context of previously documented cognitive impairment, the effects of alcohol are likely to be exacerbated due to the reduced cognitive reserve. Ongoing abstinence from alcohol may curb his disinhibited behaviour; however, some cognitive deficits will obviously remain.
The cognitive profile combined with MA's presentation, responses during interview to questions about his plans following discharge raise concerns about his ability to make reasoned and informed decisions regarding lifestyle/accommodation matters. An application to VCAT for Guardianship is to be recommended.
Sandra Edwards social worker in her report to VCAT noted:
MA is a 68-year-old man, initially admitted to Aged Mental Health inpatient care… on 11 November 2011, due to sexually disinhibited behaviour… MA has had prior admissions… and a long-standing history of alcohol abuse. In 2009, a diagnosis of frontal lobe impairment (dementia) was made.
Several Neuropsychology assessments have been made since 1999. Recently, he was noted to have deteriorated in function…
The Treating Team opinion is that MA would benefit from a formal arrangement to assist with management of his finances. Accusations have been made that there is a financial motive in the current decision-making. Assessments have shown that MA has poor impulse control as a result of his frontal lobe impairment which impacts on his financial decision-making, although he is well able to express his preferences.
MA’s daughter DLB supported this evidence. She told the Tribunal that when her father came to Queensland in 2011 he had frontal lobe dementia that was affecting the way he thought about things and how he managed his finances. She told the Tribunal that he had a very poor understanding of his finances.
DLB talked about the fact that he had given all his property way to his ex-partner and that she had to take legal action on his behalf to recover his funds.
DLB told the Tribunal that his dementia was now quite well advanced.
Discussion of the evidence
DLB’s evidence is consistent with the evidence of the clinical Neuropsychologist and the social worker.
DLB told the Tribunal that the VCAT order had ceased and that she had been using the enduring power of attorney, which her father had executed.
The Tribunal is satisfied on the basis of the evidence referred to above that MA did not have capacity to execute the enduring power of attorney on 5 April 2012. The Tribunal notes that a couple of months later the Victorian Tribunal appointed DLB as MA’s administrator. While it may be easy for DLB to use the enduring power of attorney the Tribunal is not satisfied on the evidence before it that MA had capacity to execute the document.
The Tribunal finds that MA was diagnosed with frontal lobe impairments (dementia) in 2009. A number of subsequent neuropsychology reports have confirmed this diagnosis.
The Tribunal finds that MA did not have capacity in 2012 and that led to the appointment of his daughter as his administrator under a VCAT Order.
Need for a Guardian
DLB told the Tribunal that her father was in hospital waiting a placement in a nursing home. She believed that decisions needed to be made for her father in relation to the following matters: accommodation, health care, and service provision. The Tribunal accepts this evidence and is satisfied that there is a need for an appointment in those areas.
Who is most appropriate to be appointed as Guardian?
DLB told the Tribunal that she was her father's sole surviving child and that she had a long history of being involved in his life and interested in his welfare.
The Tribunal notes that DLB had been appointed MA’s Guardian and Administrator under VCAT so has obviously satisfied that Tribunal of her appropriateness. This order has been recognised in Queensland.
The Tribunal is satisfied in the circumstances that DLB is an appropriate person to be appointed as Guardian.
Need for the appointment of an administrator
DLB told the Tribunal that her father owned a unit in Trinity Beach, had $35,000 of bank and was receiving an Aged Pension.
DLB told the Tribunal that he needed to pay for power, rates, insurance, his living expenses and accommodation costs when he was placed in a nursing home. She told the Tribunal that her father's finances were straightforward because he had no debts.
The Tribunal notes that MA's finances have been managed since 2012 under a VCAT Order by DLB.
The Tribunal finds that DLB has been managing MA’s finances for the past three years.
Who is most appropriate to be appointed as administrator?
DLB told the Tribunal that she had taken action in the past to protect her father's financial position. She had taken on the responsibility of formally managing his finances. She believed that she was most appropriate person to manage his finances.
The Tribunal finds that DLB had been appointed MA’s administrator by VCAT. The Tribunal is satisfied that DLB is the most appropriate person to manage her father’s finances.
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