MDC
[2014] QCAT 338
| CITATION: | MDC [2014] QCAT 338 |
| PARTIES: | MDC |
| APPLICATION NUMBER: | GAA10733-33; GAA10734-13; GAA10737-13; GAA10738-13; GAA189-14; GAA190-14; GAA191-14; GAA192-14; GAA1120-14; GAA1121-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 February 2014 |
| HEARD AT: | Gladstone |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 10 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following Enduring Power of Attorney for MDC 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 24 April 2013 appointing MJC and LGC as attorneys for financial, personal and health matters. 2. The Adult Guardian is appointed as guardian for MDC for decisions about the following personal matters: (a) Accommodation; (b) With whom MDC has contact and/or visits; (c) Health care; (d) Provision of services. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year. 4. The Public Trustee of Queensland is appointed as administrator for MDC for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one year. |
| CATCHWORDS: | Guardianship – capacity of adult when EPA executed – whether appointed attorneys ineligible as health providers – conflict between attorneys and adult’s wife – appropriateness to be making decisions given conflict Property Law Act 1974 (Qld) |
APPEARANCES and REPRESENTATION (if any):
There was no attendance by MDC at the hearing. Active parties attending at the hearing were BSC and her legal representative Rio Ramos,MJC and LGC,RJ and HJ, Gina Do appearing for the Adult Guardian, Kim Walker appearing for the Public Trustee. Interested parties attending at the hearing were BT, JC, PS and NN. HD attended as the witness to an Enduring Power of Attorney document made by MDC. A Thai Interpreter for BSC was present.
REASONS FOR DECISION
Background
MDC is a gentleman of 73 years of age who has led an interesting life. His work as a marine engineer entailed his working overseas from time to time, particularly in southeast Asia. He and his wife LC had three children. LC died in 1991 and in 1994 MDC married a Thai national BSC. The marriage took place in Thailand and has not been registered in Australia. MDC has lived from time to time in Thailand and also in Australia. BSC has never stayed in Australia for any lengthy period of time travelling only on visitor visas and never applying for residency.
MDC’s Australian residence is in Gladstone in Central Queensland where his eldest son, MJC lives and practices as a general practitioner at a medical centre. MDC appointed MJC his attorney pursuant to the Property Law Act 1974 under an enduring document in 1991 to manage his financial affairs in Australia during periods he was overseas. BSC appointed MJC her attorney in 2000 to assist in the management of any property she had in Australia.
By documents dated 24.04.13 MDC revoked the 1991 power of attorney and appointed MJC and MJC’s wife LGC severally to be his attorneys.
In November 2013 MDC moved into an aged care facility in Gladstone.
BSC filed applications in the Tribunal seeking the appointments of a guardian and of an administrator for MDC, for a declaration about capacity of MDC and for an order about an enduring power of attorney.
MJC also filed applications seeking the appointments of a guardian and of an administrator for MDC, for a declaration about capacity of MDC and for an order about an enduring power of attorney.
MDC’s sister, HJ and her husband, RJ filed an application for an order about an enduring power of attorney as did MDC’s late LC’s brother, RG and his wife MG, although RG and MG did not attend the hearing.
Essentially, BSC contends that MDC did not have capacity to make the enduring power of attorney in 2013, that the attorneys were ineligible as health providers to be appointed and in any event have been acting inappropriately and not in the best interests of MDC. She proposes that the Adult Guardian be appointed to make personal decisions for MDC and the Public Trustee be appointed his administrator.
MJC contends the enduring power of attorney was valid and if not, then he and LGC are the most appropriate appointments as guardians and administrators. Essentially the other applicants support that position.
Section 12(1) of the Guardianship and Administration Act 2000 (the Act) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult. First, the Tribunal must be satisfied that an adult has impaired capacity for personal or financial matters. Second, that there is a need for decisions to be made about those matters to the extent that without an appointment, an adult’s needs will not be adequately met or an adult’s interests will not be adequately protected.
Present Capacity
Capacity is defined in Schedule 4 of the Act. It requires an adult to be capable of:
a) understanding the nature and effect of decisions;
b) freely and voluntarily making decisions;
c) communicating the decision in some way.
The evidence of family members was that MDC began having some problems with his memory in 2007 although it was not until 2011 that he was diagnosed with mild Alzheimers Disease by psychiatrist John Edgar after assessment at the Gladstone Mental Health Service. A report dated 2 August 2011 by Dr Edgar was provided.
Family members thereafter recounted that they noticed a slow decline in MDC’s cognitive functioning which was described as being atypical of Alzheimers Disease or dementia, for example, that MDC’s short term memory at times seemed not badly affected.
The tribunal was provided with a health professional report by Dr NW of the same medical centre where MJC practises. Dr W states he has known MDC about 10 years as his general practitioner. The report is dated 2 January 2014 although Dr W indicates he last saw MDC in October 2013 and has not discussed the request for the report with MDC because ‘he is in a nursing home due to his dementia’. Dr W reports the onset of MDC’s Alzheimers Disease as around 2011 with the history of the condition being hereditary or caused by chronic arsenic poisoning. In his view MDC is unable to make decisions freely and voluntarily, unable to make any complex decisions or financial decisions, whether simple or complex, and able to make only simple personal health care decisions and lifestyle/accommodation choices. Dr W has completed the section of the report pertaining to MDC’s understanding of an enduring power of attorney to state he can understand all the listed aspects. The report asks that the questions pertaining to power of attorney be answered as at the date of the report but Dr W has indicated such understanding was in the past by crossing out the word “understands”. I am not sure whether Dr W was meaning to say at the date MDC executed the power of attorney, which Dr W reports was 26/04/13, MDC understood those listed aspects.
As mentioned, BSC’s contention is that MDC did not have the capacity to make the enduring document in April 2013 whereas MDC’s family members contend he did. However, all are in agreement that MDC no longer has the capacity to make his own complex personal and financial decisions.
I find that MDC has a diagnosis of dementia which has advanced to the stage that he does not understand the nature and effect of personal or financial decisions nor is he able to make those decisions freely and voluntarily. I am satisfied the presumption that MDC can make his own decisions is rebutted and that he has impaired capacity to make personal and financial decisions.
Is there a need for decisions?
MDC has entered residential aged care on a permanent basis and family members say he has settled and should remain in the facility at this time. They said BSC sought to move MDC out of the facility and possibly to Thailand. BSC said MDC was moved to the facility against his wishes although she had been willing to care for him in his own home. BSC has been prevented from visiting MDC at the facility.
As well as Alzheimers Disease, the health professional report indicates MDC has hyperlipidaemia. Given his age and medical conditions, there will be ongoing health decisions needed to be made for MDC as well as decisions about accommodation and services and contact or visits.
The Tribunal heard evidence that MDC has assets including his Gladstone residence, a motor vehicle, a bank account, superannuation and interests in property in Thailand and that he receives the aged pension. I find that MDC’s income and assets require management to meet his accommodation expenses and other needs.
Is there a need for an appointment?
In this context, the Tribunal must examine the operation of any enduring document MDC has made.
The enduring power of attorney which MDC made on 24 April 2013 appointing MJC and LGC severally was witnessed by solicitor HD. HD filed an affidavit setting out his recollection of the circumstances of his obtaining instructions to draw the document and his witnessing the document. HD also attended the hearing to give oral evidence and answer questions.
HD gave detailed evidence as to the context in which he received MDC’s instructions. He said he was aware that MDC had been diagnosed as having dementia and therefore took particular care to satisfy himself that MDC understood the nature and effect of the document he was making. He asked a number of questions and says he got clear and concise answers such that he was in no doubt as to MDC’s capacity to revoke the 1991 document and appoint his son and daughter-in-law his attorneys. HD gave evidence that he saw MDC alone to give instructions and to execute the revocation and new enduring document although transport to his office was provided by either MJC or LGC.
The evidence of MJC and other family members is that MDC’s functioning deteriorated between the diagnosis of dementia in 2011 and April 2013 when he made the enduring document. That included MDC behaving inappropriately socially and being unable to refuse requests for money from a woman he had met at a shopping centre. Less than a month after executing the power of attorney an ACAT assessment approved MDC for low level residential permanent care. MDC scored only 9 out of 30 on the RUDAS test when a score less than 22 is indicative of cognitive impairment.
It is understandable that BSC would raise concerns about MDC’s capacity to execute the enduring power of attorney in April 2013. However she was only in communication by telephone with MDC and in my view not in as good a position as nearby family members to form an opinion as to his capacity to understand the nature and effect of the enduring document at the time he gave instructions and executed that document. The general principles in schedule 1 of the Powers of Attorney Act 1998 include the presumption that an adult has capacity. Particularly having regard to HD’s evidence I find that presumption is not rebutted.
Are the Attorneys eligible?
Section 29(1)(a)(ii) of the Powers of Attorney Act 1998 provides an eligible attorney must not be a health provider for the principal. Schedule 3 defines “health provider” to mean ‘a person who provides health care in the practice of a profession or the ordinary course of business’.
MJC is a medical practitioner who has been in general practice in Gladstone over 25 years. He operates a medical centre where other doctors, including Dr W practice. LGC is the practice manager.
MDC was a patient of the practice and generally saw Dr W although from time to time MJC was effectively the service provider for medical services received by his father. MJC received the GP Feedback Letter from ACAT which is dated 16.05.13. He received the Medical Condition Notification Receipt from Queensland Transport as Health Professional for MDC which is dated 06.06.13. He received letters from psychiatrist John Edgar in 2011 regarding MDC’s mental health assessment and from nephrologist Philip Boyle in 2005 regarding a renal assessment following suspected arsenic poisoning. In my view MJC was not just ‘kept in the loop’ regarding his father’s treatment but was part of the team providing medical care.
MJC gave evidence that the practice of the surgery was not to charge family members other than for consumables.
HD gave evidence that he ‘knew for a fact’ that MJC was not MDC’s doctor and that MDC made a point of saying he did not see his son as his doctor. Although it was professionally appropriate to have a non-family member in the main role as general practitioner for MDC the legislation in my view is not contemplating the health provider must be paid to be ineligible to be appointed attorney. I consider the definition clearly applies to MJC in “providing health care” to MDC “in the practice of a profession or the ordinary course of business”.
I consider the definition is sufficiently broad to also exclude LGC as an eligible attorney. Although she is not a medical practitioner it is part of the “ordinary course of business” for the surgery to provide health care to MDC and as practice manager, LGC could find herself in conflict with her workplace duties and her duties as attorney. The reasonable inference which can be drawn is that the legislation precludes persons who are in the category of health providers to avoid potential conflict.
On the basis that the attorneys are ineligible to be appointed, I find the enduring power of attorney of MDC dated 24 April 2013 is invalid.
Therefore there is a need for the appointment of a guardian and administrator.
Who are appropriate appointees?
Section 14(1) of the Act also precludes the appointment of an adult’s health provider as guardian or administrator. It would be possible for MDC to become the patient of another medical practice. MJC indicated he would arrange that if that enabled him to act as his father’s decision maker.
That MDC chose to appoint his eldest son his attorney in 1991 and again in 2013 is strongly indicative of MDC’s views and wishes which I must take into account as a general principle in Schedule 1 of the Act. Evidence given about LGC being included severally as attorney was to the effect that that was for convenience as LGC carried out the banking and other day to day transactions although MJC would be expected to make any significant decisions for his father.
MJC’s appointment, severally with LGC, was strongly supported by MDC’s five siblings and their spouses and by the late LC’s sister and her husband. MDC’s younger son lives in far north Queensland and his only daughter is disabled. MJC was described as having a close and loving relationship with his father by his family and BSC agreed that was so, although she was not so comfortable with LGC’s effect on that relationship.
MJC and LGC have the personal and professional experience to capably manage MDC’s financial affairs. They are the members of his family in Australia with whom he has the closest relationship and should be in a good position to make personal decisions in his best interests. MDC’s living arrangements were unconventional but apparently accepted by MJC, LGC and other family members when those arrangements were chosen by MDC.
At the hearing BSC’s friend JC spoke of how BSC was previously acknowledged as a member of the family and how she was confused to find she was now excluded from MDC’s life by his son and daughter-in-law.
The members of MDC’s family in written statements as well as the evidence of those whom attended the hearing say MDC initially retired in his late fifties having suffered a back injury at work. They said his superannuation at that time was in the vicinity of $500,000.00. MDC then lived for a time in Thailand but returned to Australia wanting to receive an aged pension at 65. He found that to be eligible he was required to work a number of years, which he did. In 2007, the year MDC turned 67, MJC said his father told him he would not return to live again in Thailand because of his chronic back pain and his becoming constantly ill when in Thailand due to an inadequate diet or other reasons, for example, there were concerns he may have ingested arsenic from the food or water supply. MJC said his father told him also that BSC did not want to live in Australia and that his father said he had provided more than enough for her; building a two storey brick home and purchasing farms, farm machinery and motor vehicles all in her name as foreigners are not permitted to own property in Thailand.
MJC, as well as other family members, said that after that, BSC constantly demanded money from MDC which he didn’t want to send but felt obliged. The money was purportedly for an array of needs in Thailand including operations for BSC, her family members and neighbours, for funerals, for unpaid rates.
By 2012-2013 MJC became aware that his father’s superannuation fund had dwindled to around $90,000.00. His father wanted him to take over his financial affairs and investigate the whereabouts of any funds. That was one of the matters HD said MDC had raised with him as requiring investigation and he had discussed how that could be done by MJC as attorney.
The family is of the view that MDC’s funds have been paid to BSC. Transfers from MDC’s account to Thailand have occurred in tens of thousands of dollars. MJC says that it was only after payments were not forthcoming to BSC she arrived in Australia saying she wanted to live in MDC’s home and care for him. The family say that was trialled. MDC’s lawyer was instructed to prepare a prenuptial agreement for BSC to sign. The basis for that was to protect MDC’s remaining assets from any claim arising from a defacto relationship (MDC having received legal advice that the marriage in Thailand was not recognised in Australia).
The family said BSC failed to provide adequate care for MDC and it was necessary to arrange aged care accommodation for his safety.
MJC and LGC have stated their view that BSC is after more money from MDC. They expressed grave concerns that she would remove him from the aged care facility and possibly to Thailand against his expressed wishes to not return to Thailand and to the detriment of his health. Other family members support that view.
BSC contends that she and MDC have been married for 20 years although they spent time apart. She says MDC asked her to come to Australia, said his family were preventing him from travelling to Thailand by withholding his money and were intending to put him in a nursing home against his wishes. She said the family attempted to force her to sign the “prenuptial agreement” by refusing her contact with her husband until she did so.
In the course of this conflict BSC says she was forced to leave MDC’s residence and stay with friends. BSC filed an application for a protection order against MJC and he against her.
BSC contends that MJC and LGC are inappropriate appointments as either guardians or administrators for MDC. She contends that the Adult Guardian and Public Trustee should be appointed.
Section 15(1) of the Act sets out appropriate considerations the Tribunal must take into account when making an appointment.
It is quite possible that MDC has expressed different wishes to his son and daughter-in-law from those he has expressed to BSC. Given the level of enmity between these parties I do not think that currently MJC and LJC would be appropriate to make personal decisions for MDC which must take into account a significant relationship of 20 years standing whether it is “legally” recognised in Australia or not. I would not consider BSC appropriate to make personal decisions on behalf of MDC either but she hasn’t made that proposal. I find that the Adult Guardian is the only appropriate appointment to make personal decisions for MDC at this time.
As regarding financial decisions, the allegations about MDC’s funds being transferred to Thailand, possibly without his informed consent, do require investigation and it would be difficult for MJC and LGC to undertake that task which involves allegations against BSC, about whom they already have a view. Further, although through her interpreter BSC said she was not seeking any payment from MDC, her lawyer indicated her client may be entitled to support as a dependent. That is a prospect that may have to be considered or resisted on MDC’s behalf. I find that in these circumstances the Public Trustee is the most appropriate appointment as administrator for MDC.
I believe that within a relatively short time many of these issues may have resolved and these appointments are appropriate to review in one year.
Accordingly I make the following orders:
1. The following Enduring Power of Attorney for MDC 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 24 April 2013 appointing MJC and LGC as attorneys for financial, personal and health matters.
2. The Adult Guardian is appointed as guardian for MDC for decisions about the following personal matters:
(a)Accommodation;
(b)With whom MDC has contact and/or visits;
(c)Health care;
(d)Provision of services.
3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year.
4. The Public Trustee of Queensland is appointed as administrator for MDC for all financial matters.
5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one year.
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