MAH
[2012] QCAT 534
•25 September 2012
| CITATION: | MAH [2012] QCAT 534 |
| PARTIES: | MAH |
| APPLICATION NUMBER: | GAA3206-12 / GAA3207-12 / GAA3245-12 / GAA3253-12 / GAA5265-12 / GAA5266-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 14 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Member Graham Quinlivan, Member |
| DELIVERED ON: | 25 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. MAH had capacity for executing an Enduring Power of Attorney dated 13 December 2011 and for revoking an Enduring Power of Attorney dated 14 August 2008 on 13 December 2011. 2. The application for guardianship is dismissed. 3. The application for administration is adjourned. 4. The applicants for administration, HL, LS and HR are to provide written submissions to the Tribunal regarding whether or not the attorney MP has acted honestly and with reasonable diligence in managing MAH's finances and provide a copy to the attorney, by 4:00pm on 26 October 2012. 5. The attorney is to provide her response to the Tribunal and to the applicants, by 4:00pm on 16 November 2012. 6. The Tribunal will decide the further conduct of this matter on the basis of the submissions and response. This will include whether the application for administration will be determined on the papers or proceed to hearing not earlier than 30 November 2012. |
| CATCHWORDS: | GUARDIANSHIP – ADMINISTRATION – ENDURING POWER OF ATTORNEY – capacity – where conflicting medical reports exist about capacity – where EPA revoked and a new EPA executed – where intense family conflict exists – where principal changed residence – where adult evidence order made – whether principal had capacity Guardianship and Administration Act 2000, ss 12, 106 Re ZJ [2006] QGAAT 36 |
APPEARANCES and REPRESENTATION (if any):
HL represented by Karen Kline
LS and HR represented themselves
MAH represented by Nitra Kidson of counsel, instructed by Judith Smith
REASONS FOR DECISION
MAH is 91 years old. MAH and her husband had been married for 68 years and MAH became very depressed after his death in 2008 and she was unable to function very well. This combined with a stroke which she suffered in 2006 made life rather difficult for her. Her home was subsequently sold and she moved into a nursing home in September 2008.
She became unhappy and miserable at the home. She had a number of complaints regarding various elements of living at the home.
She had appointed her son, HR along with two of her daughters, LS and HL as attorneys under an Enduring Power of Attorney on 14 August 2008.
She subsequently made another Enduring Power of Attorney on 13 December 2011. At the same time she revoked the 2008 Enduring Power of Attorney. In her new enduring document she appointed her daughter MP as her attorney for both financial, personal and health matters. In March 2012 she left the Freemasons Home and has been living with her daughter MP in her home ever since. There is conflict between MP and her three siblings.
The Tribunal received a number of applications regarding MAH. The first was received on 16 April 2012 from her three children and former attorneys all seeking the appointment of the Adult Guardian as guardian for MAH and the Public Trustee as administrator. A few days later the Tribunal received an application from the former attorneys seeking an order that the latter Enduring Power of Attorney and the revocation be declared invalid. They did not believe MAH had capacity.
A subsequent application from the former attorneys was received seeking a declaration regarding the capacity of MAH. By letter of 23 May 2012 the applicants sought to withdraw their application seeking the appointment of the Adult Guardian and the Public Trustee and wanting the original Enduring Power of Attorney reinstated.
On 26 June 2012 the Tribunal received what has been taken to be applications seeking the appointment of the three former attorneys as guardians and administrators for MAH, under section 12 of the Guardianship and Administration Act 2000.
MAH told the hearing that she had not executed an Enduring Power of Attorney. She acknowledged that sometimes she can not remember things.
The essential issue that the Tribunal needs to decide is whether MAH had capacity on 13 December 2011 to revoke the Enduring Power of Attorney appointing LS, HR and HL executed on 14 August 2008. It follows that should she have capacity to revoke that Enduring Power of Attorney she would also have capacity to execute the Enduring Power of Attorney on 13 December 2011 appointing her other child, MP, as attorney. If she did not have capacity it follows that the Enduring Power of Attorney of 14 August 2008 will be operative.
Ms Karen Kline from Carers Queensland appeared as an advocate for HL. The Public Trustee was also represented at the hearing and Anita Dalton appeared as a witness from the Public Trustee as she had prepared the December 2011 documents. Ms Nitra Kidson of counsel appeared for MAH.
The law
In determining a principal’s capacity to make an Enduring Power of Attorney the Tribunal must turn to section 41 of the Powers of Attorney Act 1998. This section outlines the various matters that a principal must understand in order to execute an Enduring Power of Attorney. Section 47(1) provides that a principal may revoke an Enduring Power of Attorney in writing only if the principal has the capacity necessary to make an Enduring Power of Attorney giving the same power. In other words the same test applies for both capacity to make and revoke an Enduring Power of Attorney.
The parties had reports from health professionals that supported their opposing views about capacity.
The Tribunal cannot and must not take into account MAH's functioning in 2008, 2009 or 2010. It is concerned about how she was functioning at the time she executed the second Enduring Power of Attorney on 13 December 2011.
Adult evidence order
As a preliminary matter the parties suggested to the Tribunal that it should hear from MAH in the absence of all other parties. The Tribunal agreed that this was an appropriate course of action and took the necessary steps under section 106 of the Guardianship and Administration Act 2000 to talk to MAH alone. This section concerns an adult evidence order.
The Tribunal was satisfied that in order to obtain relevant information that it would not otherwise receive the Tribunal should talk to MAH in the absence of anyone else.
In private discussions with MAH she advised the Tribunal that she did not like the nursing home and had not been consulted about living there. She has now been living with her daughter MP for six months and wants to stay living there. She was not aware of her bank account details and advised the Tribunal she buys what she wants and that she doesn’t pay rent to MP. She could not tell the Tribunal where her money was from the sale of her house.
Competing health professional reports
The Tribunal had the benefit of an extensive array of health professional reports. The most recent reports all attest to improvements in MAH’s functioning over the past few years. Not all family members agreed with these views.
The most recent health professional reports were provided by Dr Varghese and Dr Byrne. Dr Varghese wrote his report after he had seen MAH on 14 October 2011, two months before she executed the Enduring Power of Attorney and revocation. Dr Byrne’s report was written on 6 March 2012 almost three months after the execution of the documents. The Tribunal had the benefit of speaking with Dr Byrne and Dr Varghese concurrently during the hearing. Dr Byrne and Dr Varghese both agree that MAH has the ability to make decisions about her personal matters.
Dr Varghese considers that MAH has a mild cognitive impairment and would not be able to manage her finances. He noted her cognition has improved since 2008 and that she wanted to leave the nursing home and knew she required assistance to do so. He noted in his report that she was fully orientated and could manage in the community with support. The purpose of his assessment in October 2011 was to determine whether it would be safe or possible for MAH to return home. He did not specifically test her in respect of being able to execute an Enduring Power of Attorney. He noted however that she has no idea if she has any assets or money in the bank. He noted poor short term memory. In a later report dated 27/4/12 based on the same interview, Dr Varghese stated that MAH would not understand the various matters required to execute an Enduring Power of Attorney.
Dr Byrne indicated in his report that he assessed MAH using the guidelines provided by the Office of the Adult Guardian in respect of capacity to execute an Enduring Power of Attorney. Following questioning he noted that MAH was suffering from a mild cognitive impairment but retained the capacity to make or revoke an Enduring Power of Attorney. He noted that MAH was fully alert during the interview which lasted for an hour and her attention and concentration seemed normal. He noted she was suffering from a mild cognitive impairment related to her cerebral vascular disease. He also considered that it is likely that if she was provided with the appropriate financial details she would be able to manage her affairs. He stated there seems little doubt at all that she is competent to make a decision about her place of residence.
In March 2010 Dr Lisa Philips had indicated that MAH would not be able to execute a new Enduring Power of Attorney noting that from a decision making point of view she is in a grey area. She noted that she is not obviously incapable but obviously does not have full cognitive capacity either. She also noted, “I do however lean more towards capacity than not.” She considered that MAH would be able to make everyday decisions but would definitely benefit from assistance with large decisions.
At the hearing Dr Varghese noted that MAH was unable to describe her assets and would be unable to manage her finances. He commented on significant short term memory loss and that, in all probability, he considered MAH would not be able to relearn skills. He noted she was very vulnerable and her insight into her difficulties was not good.
Dr Byrne who has only seen MAH once saw MAH alone. He noted she knew little about what an Enduring Power of Attorney was but once he explained it to her she indicated a good grasp of what the enduring document would be. He also noted that MAH had no real appreciation of her assets apart from the substantial bond. He considered this was understandable given that someone else was managing her affairs. Dr Byrne further stated that in response to questioning about the nature of an Enduring Power of Attorney MAH said those three had it (referring to her children), they can do anything, it comes into effect when I get dementia until I die and it takes effect when I signed it.
Dr Varghese advised the Tribunal he did not test MAH in relation to the requirements in section 41 but noted that he considered that the processes of coaching MAH in relation to what an Enduring Power of Attorney would be difficult because of her short term memory and difficulty with new learning.
The witness to the EPA
The Tribunal also spoke with Ms Anita Dalton who witnessed the Enduring Power of Attorney in December 2011. She advised the Tribunal she had been working in the role of document maker in relation to Enduring Powers of Attorneys and wills for approximately five years. She sees around 28 clients per week in relation to this work. She has no formal training although has been involved in in-house training at The Public Trustee. She had previously had training in interviewing techniques.
She advised the Tribunal she gave MAH an overview of the Enduring Power of Attorney process and questioned her about her understanding. She stated she wanted her daughter to make decisions and knew that the attorney could make decisions about money and accommodation. She didn’t want anyone else, she trusted her daughter MP and she did not trust others. Ms Dalton advised that MAH was aware she could change her Enduring Power of Attorney and that is what she was doing now. Ms Dalton could not recall whether she spoke with MAH alone or in the company of another person.
The Tribunal noted that Ms Dalton was misinformed about MAH's previous history. Ms Dalton advised the Tribunal she may have asked further questions if MP had advised her about previous care arrangements.
Views of the capacity evidence
Karen Kline submitted that the Tribunal should place considerable weight on Dr Varghese’s evidence as he had known MAH for three years and Dr Byrne had only seen her once for one hour. She submitted that Dr Byrne’s report was flawed. She also submitted that MAH now has no recollection of an Enduring Power of Attorney and that in her view, capacity has been rebutted for complex financial matters.
LS submitted that MAH can not remember choosing the nursing home, she has very poor memory and she can’t remember anything.
Ms Kidson submitted that in relation to the 2011 Enduring Power of Attorney there were three relevant pieces of evidence: from Dr Byrne, Dr Varghese and Ms Dalton. In her submission Dr Byrne has given more comprehensive evidence than Dr Varghese in that Dr Varghese did not conduct a formal assessment and little time was afforded to addressing the question of Enduring Power of Attorney. On the other hand she notes that Ms Dalton provided evidence of how MAH was on the day she executed the Enduring Power of Attorney. She submitted that Dr Byrne conducted a fuller examination, used the statutory test for an Enduring Power of Attorney and adopted the Adult Guardian's guidelines asking specific questions. She also submitted that the responses MAH gave to Dr Byrne and Ms Dalton were of a similar nature. She further submitted that the presumption of capacity needs compelling evidence to rebut it and that the evidence doesn’t come close.
Ms Kline resubmitted that Dr Varghese noted that MAH is under some degree of undue influence by her daughter MP. Ms Kline also referred to Ms Tapas’ health professional report in which Ms Tapas indicates that MAH looks to MP for answers.
Ms Kidson subsequently referred the Tribunal to the matter of Re ZJ[1] in which undue influence is discussed. In that matter it was said that, “the free and voluntary aspect of the Act’s definition of capacity relates to volition and whether it should be said that a person’s free will has been so completely overborne it has been inability of that person to make up his or her own mind.” Ms Kidson submitted that there is no evidence of MAH being overborne when she made the Enduring Power of Attorney.
[1] Re ZJ [2006] QGAAT 36.
The Tribunal makes the following findings:
§There is agreement between the specialists regarding MAH's capacity for decision making regarding personal matters.
§MAH maintained a consistent approach to wanting to leave the Freemasons Home.
§She was able to explain an Enduring Power of Attorney after being advised of its functions.
§Dr Byrne and Ms Dalton asked specific questions regarding an Enduring Power of Attorney.
§Dr Varghese’s assessment was in relation to MAH's ability to leave and he did not ask specific questions in relation to an Enduring Power of Attorney.
§MAH has short term memory loss and mild impairment.
§MAH's cognition has improved since the time of her admission to the Freemasons Home.
§There is no evidence of undue influence.
§MAH was unable to explain her financial position to the Tribunal.
§MAH’s memory is historically poor.
The Tribunal’s conclusion
The Tribunal finds that MAH had capacity to execute an Enduring Power of Attorney on 13 December 2011 and to revoke the Enduring Power of Attorney of 14 August 2008. It places greater weight on Dr Byrne’s and Ms Dalton’s evidence than it does on Dr Varghese’s for the reasons mentioned above, particularly the purpose of the assessments undertaken by the various parties.
Whilst the Tribunal accepts MAH has mildly impaired cognition and poor memory this does not mean she is unable to execute an Enduring Power of Attorney once this is explained to her. The Tribunal accepts the submissions of Ms Kidson in that Dr Byrne conducted a thorough examination using the Adult Guardian’s guidelines and that Ms Dalton’s questions were similarly specific to the Enduring Power of Attorney and occurred on the day of execution.
The Tribunal accepts that it needs compelling evidence to rebut the presumption of capacity and this evidence has not been presented to the Tribunal. The Tribunal also takes into account the observations of the health practitioners that MAH's capacity for decision making has improved gradually since 2008.
The Tribunal declares that MAH had capacity to execute the Enduring Power of Attorney on 13 December 2012 appointing MP as Attorney and that she also had capacity to revoke the Enduring Powers of Attorney of 14 August 2008 on 13 December 2011.
Given the evidence from Dr Byrne and Dr Varghese, the Tribunal dismisses the guardianship application on the ground that MAH does not lack capacity for decision making for personal matters.
The applicants for the appointment of an administrator advised they wished to pursue their application if the Tribunal found the Enduring Power of Attorney of 13 December 2011 valid.
In this regard the Tribunal will require evidence of need given the Tribunal finds a valid Enduring Power of Attorney is in place.
Need could be established if there is evidence that the attorney MP is not acting appropriately. It is up to the applicants to provide such evidence. Directions will be made accordingly.
The Tribunal is open to receiving applications from any parties in relation to the actions of any of the former attorneys or the current attorneys should any party consider that any of them have acted without the necessary due diligence.
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