MAE
[2013] QCAT 184
•6 March 2013
| CITATION: | MAE [2013] QCAT 184 |
| PARTIES: | MAE |
| APPLICATION NUMBER: | GAA3207-12 / GAA8351-12 / GAA8352-12 / GAA203-13 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 6 March 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | R Joachim, Member |
| DELIVERED ON: | 6 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | GUARDIANSHIP 1. The Adult Guardian is appointed guardian for MAE for decisions about the following personal matters: (a) With whom MAE has contact and/or visits; 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. ADMINISTRATION 3. The Public Trustee of Queensland is appointed administrator for MAE 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 of The Public Trustee of Queensland remains current until further order of the Tribunal. ENDURING POWER OF ATTORNEY 7. The following Enduring Power of Attorney for MAE 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 13 December 2011 appointing MP as attorney for financial, personal and health matters. APPLICATION FOR DIRECTIONS 1. The application for directions is dismissed. |
| CATCHWORDS: | Guardianship and administration – where adult had appointed daughter as attorney for personal and financial matters – where adult now lacks capacity to make contact and financial decisions – where considerable conflict exists between attorney and her siblings – where attorney lacks an understanding of her role for financial matters – whether there is a need to appoint a guardian or administrator Guardianship and Administration Act 2000, Schedule 1 and 4 |
APPEARANCES and REPRESENTATION (if any):
| HL represented by Karen Kline |
REASONS FOR DECISION
MAE is 91 years old. She lives with her daughter MP, moving there in March 2012. Formerly she lived at a nursing home for around 3½ years.
MP holds an Enduring Power of Attorney (EPA) for MAE dated 13/12/11.
There is great animosity between MP and her 3 siblings LS, HL and HR.
These 3 siblings originally made applications to the Tribunal seeking orders for both guardianship and administration as well as an order that MAE did not have capacity to execute the EPA.
Following a hearing of this Tribunal on 14 August 2012, the Tribunal found that MAE had capacity to execute an EPA on 13/12/11.
The Tribunal adjourned the application for administration and dismissed the guardianship application.
A new application for guardianship was received from HR, LS and HL on 24 October 2012.
Certain orders and undertakings were made and given following the August hearing, the effects of which were that MP as attorney would not access a bond held by the nursing home or funds in a Suncorp account. The Tribunal made a consent order on 25 October 2012 as follows:
1.MP as the attorney for MAE is directed not to withdraw funds from, or to transfer from or otherwise deal with funds in the following bank accounts in the name of MAE
· Commonwealth Bank of Australia designated as account no xx-xxxx.xxxxx; and
· Suncorp Bank pass book accounts currently or formerly designated as BSB yyy-yyy zzzzzzzz and zzzzzzzz
2.MP as the attorney for MAE is directed not to make any transactions accessing or using bond money held with the Nursing Home.
The applicants seek the appointment of the Adult Guardian as guardian and the Public Trustee of Queensland as administrator for MAE. Applications were also made for directions and for an order about an EPA. These were not pursued by the applicants.
The essential issues for the Tribunal are:
(1)does MAE have capacity for personal and financial matters and if she does not,
(2)is there a need for the appointment of a guardian and/or an administrator and if so,
(3)who should be appointed.
The applicants argue that MAE does not have capacity for financial matters and is unduly influenced in her decision making for both personal and financial matters by MP.
Capacity for personal and financial matters
Capacity for a person for a matter means the person is capable of-
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.[1]
[1] GAAA 2000 Schedule 4.
An adult is presumed to have capacity for a matter.[2] This presumption can be rebutted. Capacity is decision specific, and therefore the Tribunal needs to consider what, if any, decisions MAE is unable to make.
[2] GAAA 2000 Schedule 1.
Capacity for personal matters
The medical evidence before the Tribunal, both written and oral, from Dr Byrne and Dr Varghese is that MAE has capacity for personal matters.
MAE has consistently maintained that she wanted to leave the nursing home and having done so is very pleased to be living with her daughter.
On this matter Dr Varghese advised that because of her not liking the nursing home, MP’s offer for MAE to reside with her was a strong inducement. He added that a person with cognitive impairment often defers to others for an opinion and that MAE would do this.
Dr Varghese, however, stated that neither of the above equated to coercion.
The argument of the applicants is that MAE is unduly influenced by MP and as such is unable to make decisions freely and voluntarily, one of the limbs of capacity.
Dr Varghese did not consider MAE refusal to take some medications as evidence of a lack of capacity.
The Tribunal is unable to rebut the presumption of capacity for MAE to make decisions about accommodation.
A key issue in this matter is contact between MAE and the applicants, who say they have not been able to see their mother and have rarely had telephone calls. They put this down to MP’s influence and to her not being proactive about contact.
They also argue that when MAE was in the nursing home, they saw her regularly and she was happy to see them.
The Tribunal, with the parties’ consent, made an adult evidence order under section 106 of the Act.
The Tribunal was satisfied that, in order to obtain relevant information that it would not otherwise receive, the Tribunal should talk to MAE in the absence of anyone else.
MAE advised the Tribunal she did not trust the applicants or LX.
She stated they were mean to MP and she looks after me. She said they took her things. She said she would be happy to talk if they ring but they never do. MAE had a belief that the applicants had taken her things and either kept them or disposed of them. She displayed anger about this and as a result had no real desire to have contact.
The Tribunal accepts evidence from the applicants, subsequently endorsed by MP, that a significant number of items were taken from MAE’s home to the nursing home by one or other of the applicants. Apart from a refrigerator, it was then transferred with MAE when she commenced living at MP’s house.
The Tribunal also accepts that MAE forgot discussions about the disposal of the balance of her goods and chattels via either a garage sale, donations to the Salvos or dumping.
The Tribunal concluded that MAE does not have capacity for making decisions about contact with the applicants because the decision making is based on false beliefs and assumptions about her children.
Need for a guardian
It is accepted that there is deep-seated animosity between MP and the applicants. MP is not motivated to assist in encouraging her mother to make contact with the applicants, although she espouses that her mother can talk to whomever she wishes.
In these circumstances and whilst MAE lives with MP, it will be necessary to have an independent decision maker to make these contact decisions.
Consequently, the Tribunal appoints the Adult Guardian as guardian for contact and/or visits, overtaking MP’s power to make these particular decisions under the EPA.
Capacity for financial matters
At the hearing on 14 August 2012, MAE was unable to give an accurate account of her assets. At this hearing she likewise was wildly inaccurate, making no reference to, or remembering her considerable savings, even with prompting.
Dr Varghese’s evidence at this hearing was that he had no doubt that MAE lacked capacity for complex financial matters, pointing to her inaccurate and incomplete answers and her poor memory.
A recent report from Dr Byrne noted that MAE did not have a progressive dementing disorder. He makes no comment about her ability to manage her finances apart from saying she would like to gain control of her money and that MAE had told him she was managing her fortnightly pension.
MAE stated she withdraws about $500 each fortnight from the bank, and uses it to buy shoes, dresses, lottery tickets and presents. She said she does not pay her daughter board or lodgings.
MP agreed adding lunch, treats, haircuts and chiropody as examples of her mother’s expenditures.
The Tribunal did not find the explanations from MAE or MP sufficiently plausible to explain expenditure of $500 per fortnight. MAE and MP advised that there was no excessive cash at home or on MAE.
The Tribunal could not conceive that $500 per fortnight could be spent by MAE on these items fortnight after fortnight. MAE was said to be someone who was careful with money in the past. There had to be an alternative explanation. None was forthcoming.
In the light of this above evidence the Tribunal concluded that MAE did not have capacity to manage her financial matters, which consisted of a pension, an operating account with $B, a Suncorp term deposit of $C and a bond at the Freemasons of $D.
Need for an administrator
Where an Enduring Power of Attorney exists, a need for an appointment of an administrator could arise if for example:
§the attorney does not wish to undertake the role
§the attorney has not acted with reasonable care and diligence
§the attorney has failed to keep records
§the attorney has entered conflict transactions without approval
§the attorney has failed to keep property separate or made inappropriate gifts.
MP wishes to remain as attorney. She told the Tribunal she has not acted as attorney because her mother was able to make her own decisions. She referred the Tribunal to the recent report of Dr Byrne.
There is no evidence that the attorney has entered conflict transactions, made inappropriate gifts or mixed property.
There is minimal record keeping as would be expected if the attorney was not managing the funds.
The bond and term deposit are frozen and no activity has occurred on either since the August 2012 hearing.
The applicants argue that MP is not an appropriate person to be attorney because of her lack of trustworthiness and the way they allege she has manipulated situations in the past for her financial advantage.
In respect of MAE’s finances, there is nothing before this Tribunal to indicate MP has used MAE assets to her own advantage.
What does concern the Tribunal is MP’s approach to handling her mother’s finances. For instance, in the face of blinding evidence that her mother could not explain her overall financial position with even a modicum of accuracy, MP continued to argue that MAE knew what her assets were.
The Tribunal was also concerned that MP, if she commenced operating under the EPA, would supervise her mother and only take it over if she had to. She said she would discuss matters with her mother and bank manager. She also advised she would have her own and her mother’s signature on the bank account. MP seemed to have great difficulty acknowledging she would be the decision maker if she was the attorney.
Ms Galvin, the representative of the Public Trustee of Queensland, was concerned that MP had not accepted the fact that her mother can’t manage her money.
Other concerns the Tribunal had about MP were:
§MP not advising the former attorneys she was the new attorney and waiting 3 months before advising them. Her explanation about this was unsatisfactory.
§MP should have alerted the witness to the EPA, when the witness asked that MAE did have a condition that could have impacted on the execution of the EPA. Her explanation about this at the previous hearing was unsatisfactory.
§MP assisted her mother to close a trust account and establish a new account which attracts little interest.
In combination, the above matters led the Tribunal to the conclusion that MP had not properly protected MAE’s interests i.e. operating bank account and the conversion of the trust account.
The Tribunal also concluded that MP did not properly understand her role as attorney.
As a consequence the Tribunal decided to appoint the Public Trustee of Queensland thereby overtaking MP’s appointment as attorney for financial matters.
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