MEA
[2011] QCAT 617
•23 September 2011
| CITATION: | MEA [2011] QCAT 617 |
| PARTIES: | MEA |
| APPLICATION NUMBER: | GAA4654-11 / GAA4655-11 / GAA4656-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | E Morriss, Member |
| DELIVERED ON: | 23 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. MEA does not have capacity for all complex personal and financial matters. 2. The application for the appointment of a guardian for MEA is dismissed. 3. The application for the appointment of an administrator for MEA is dismissed. 4. The Tribunal notes the existence of the following Enduring Power of Attorney for MEA: a. The Enduring Power of Attorney dated 2 November 2007 appointing RMA and PIB as attorneys for financial, personal and health matters. 5. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 84(2) of the Guardianship & Administration Act 2000 the Tribunal gives leave to PIB to resign as attorney for MEA under the Enduring Power of Attorney dated 2 November 2007. |
| CATCHWORDS: | Guardianship – capacity |
APPEARANCES and REPRESENTATION (if any):
MEA, PIB, PB, RD, AMR, SC, JP
REASONS FOR DECISION
BACKGROUND
On 14 June 2011 the Queensland Civil and Administration Tribunal received applications from PIB seeking leave to resign as attorney for MEA, and for the appointment of an administrator and guardian. The application raised concerns about MEA’s ability to make decisions about her financial and personal matters.
The application was heard on 23 September 2011.
MEA is an 88 year old woman. She lives in her home in the community with limited support from Blue Care. In 2010 MEA was admitted to hospital following a fall in her home. She had multiple fractures, in addition to other medical conditions. Following rehabilitation, and Aged Care Assessment Team review she was placed in high level residential care at Neilson Nursing Home. MEA was unhappy with her placement. She left the nursing home and was admitted to Princess Alexandra Hospital. Assessments suggested that she had capacity to make her personal decisions, including decisions about where she lived, so she returned home.
An Enduring Power of Attorney was executed on 2 November 2007 by MEA. This document appointed RMA and PIB as attorneys for financial and personal/health matters. The power for financial matters was to begin when she lost capacity and decisions were to be made jointly. RMA is a solicitor whose firm has acted for MEA, and PIB is a long term friend.
DOES MEA HAVE CAPACITY FOR PERSONAL AND FINANCIAL MATTERS?
The Tribunal must consider whether MEA has capacity for decision-making about her matters. There is a presumption at law that all adults have the capacity to make their own decisions.
The Act defines capacity as: “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.
The Tribunal considered a number of health professional reports about capacity.
A letter from Dr Wilbur Chan (Rehabilitation Physician) dated 14 December 2010 refers to MEA’s history of admission to hospital following a fall and left distal radius fracture with displacement, left superior and inferior public rami fractures, left sacral fracture. She was admitted to St Andrew’s War Memorial Hospital on 22 October 2010. She received inpatient rehabilitation and was transferred to a high level residential facility called Nielson Home on 14 December 2010. MEA’s medical history included recurrent falls, mild left ventricular failure, a diagnosis of mixed alzheimer’s and vascular dementia, hypertension, osteoporosis, left breast lump/cancer, anxiety/depression, and double incontinence. An assessment was completed by Dr Hoa Lu, Consultant Geriatrician for presentation of fixed health beliefs, poor memory, paranoia and concrete thinking. On the Mini Mental State Examination (MMSE) on 2 November 2011 she received a score of 26/30 and a score of 16/30 on the Montreal Cognitive Assessment (MOCA).
MEA’s treating psychogeriatrician is Dr David Lie. In a letter of 28 February 2011, he refers to concerns relating to outbursts of aggression, demands around diet and environment which had been inconsistent, loss of weight, and intruding on others. In his opinion MEA is a highly intelligent lady with rigid unusual beliefs who had developed dementia. In a letter dated 14 April 2011 he refers to the issue of her capacity to determine her lifestyle, and her perception of the risks and benefits of going home. Although she has some eccentric ideas about health, diet, air-conditioning and psychic abilities, there is no evidence of mental illness. Improvements seen on cognitive assessment may have been as the result of a period of relative malnutrition prior to her stay at Nielson Home. A letter dated 31 May 2011 indicates that he has found her capable to make lifestyle decisions and to appoint a different attorney for financial matters.
A neuropsychological assessment was completed on 5 May 2011 by Ms Natasha Squelch. Assessment results suggested relative preservation of her verbal intellectual functioning and significant deterioration of non-verbal intellectual functioning. Immediate and delayed memory was mildly impaired on one task and severely impaired on another that required executive functioning. She demonstrated significant deficits on most tasks requiring executive functioning and difficulty on most tasks requiring vision. Mild vascular dementia appeared likely. During the capacity assessment she gave a reasonable overall account of her abilities and limitations and the assistance she would require. Ms Squelch indicated that in her opinion MEA did appear to have capacity to decide where she lives.
A Health Professional Report was received from Kelly Jones (Registered Nurse) from Nielson Nursing Home dated 10 June 2011. MEA had refused conventional medication and preferred natural/herbal medications. Assessment on the Psychogeriatric Assessment Scale on 24 May 2011 showed mild cognitive impairment. Her opinion is that MEA is able to make simple health care decisions, such as whether she wants a heat pack, but not complex health care decisions. Of concern is that her decision making is inconsistent from day to day. In reference to lifestyle and accommodation decisions, although they were assisting with occupational therapy home assessments, and referral to the Aged Care Assessment Team for an Extended Aged Care at Home (EACH) package, MEA refused to engage in discussions, was verbally aggressive and stated she would only do what her carer/solicitor told her to do. In regard to finances, her EPOA was assisting with payment of bills, and she did not have the capacity to make complex financial decisions but could with support be involved in the decision making process. Ms Kelly did not believe she could understand most of the elements of an enduring power of attorney.
A Discharge Summary from the Princess Alexandra Hospital dated 16 July 2011 indicated that MEA had been brought to hospital after behavioural problems at Neilson Home (difficult behaviours, fixed beliefs about diet/allergies, aggression). She refused to return to the nursing home. Psychogeriatric assessment revealed no acute psychiatric condition/delirium or cognitive dysfunction despite eccentric beliefs. Cognitive screening on the Mini-Mental State Examination (MMSE) dated 5 June 2011 was 25/30. Despite staff concerns about her ability to cope even with increased services, she was deemed competent and capable of decision making regarding personal accommodation/living and finances and was discharged home.
A recent Aged Care Assessment Team (ACAT) letter dated 26 August 2011 describes an assessment for eligibility for an Extended Aged Care at Home – Dementia (EACH-D) Package. The comments in this letter refer to MEA refusing formal support from Blue Care for bathing and incontinence. She has been approved for assistance with domestic/laundry, shopping, meal preparation, transport, hygiene and case management.
The Tribunal spoke with MEA, and took care to take into account her hearing impairment, her physical frailty, and the need for appropriate breaks. MEA had a limited understanding of the purpose of the hearing. She described her living circumstances: she has lived in the same home for over fifty years and is adamant she wishes to remain there. She prefers to cook all of her own food, which she buys from an organic grocer. Blue Care assists her with some activities. MEA acknowledged some risks around falls living in her home, but stated she held on to furniture to walk around the home. She has assistance from friends or neighbours, but was unable to recall their names. She receives some assistance from her homeopath RD, who does home visits. She referred to him as her “guardian angel”. She pays him to do her grocery shopping, but was unable to give clear information about the costs of his consultations, or the exact costs of her food expenses, or whether she kept receipts. RD sometimes takes her to the bank to withdraw money for her food and for payment for his consultations but she couldn’t remember amounts. She admitted to some memory difficulties. In regard to finances she stated that she put her trust in RD (homeopath) and RMA (solicitor) and referred to both of them as her “carers”. She was unable to give an accurate summary of her financial affairs. In response to questions about a local family who had previously been involved with her, she admitted to having given them money, and whatever money they wanted. She believed that her bills were currently being paid by RMA, which he indicated later in the hearing was not the case.
In respect of the Enduring Power of Attorney, she believed that only RMA was her attorney, and claimed that PIB had “appointed herself” and had made her sign the documents. Even when provided with the correct information, confirmed by RMA, she denied ever having appointed PIB, and claimed that she had been forced to sign documents by her. When questioned specifically about her Enduring Power of Attorney she was unable to remember when it was completed or who was appointed, was unable to state when it was to begin, or what powers the attorneys were given. Although she was unhappy with PIB’s actions she did not demonstrate any understanding of how the Enduring Power of Attorney might be revoked or be changed by her, and had not made other arrangements.
RMA indicated to the Tribunal that he agreed that MEA did not demonstrate an understanding of an Enduring Power of Attorney and specifically her own decision making arrangements. MEA came to his legal office in 2007 to make an Enduring Power of Attorney and a will. Her instructions at that time were clear and independent and there were no concerns about her capacity. He did not see MEA again until November 2010, when he became aware of problems at the Nielson Nursing Home and that she did not want to remain there. He took advice from her general practitioner Dr Gary Deed who indicated that she was able to make decisions, but at the same time he and PIB were both concerned about her capacity to make decisions. He was happy for PIB to assist with the finances as she was intelligent and respectable and he believed MEA was happy with that. There was a falling out between MEA and PIB as the later did not agree to MEA leaving the nursing home.
RMA described his concerns regarding a local family who had attempted to take MEA to her banking institution to obtain her PIN number and access to her funds. They had agreed to take care of MEA, and she was apparently willing to give them access to her bank accounts. He was concerned regarding her financial vulnerability. He stated his view that MEA did not make good judgements about her finances and she did require assistance to make decisions.
PIB indicated that she had known MEA for over seven years, and in recent years there had been a marked decline in her physical and cognitive functioning. She was concerned regarding MEA paranoia and claims that people were going to break in and kill her. She had repetitively telephoned the police, ringing with complaints that people (including PIB) were stealing her money or bugging her telephone. MEA has few social supports, has been estranged from many neighbours, and from her two children who are now in their 70s. PIB described the process whereby she had organised nursing home placement for MEA following her hospital admission for treatment of fractures. She had sourced the only nursing home in Brisbane that would allow organic meals and naturopathic medicine and that MEA had made a remarkable recovery due to their care. Although she preferred that MEA was able to stay in her own home, she believed she required more care than was available through community services.
PIB described a situation where MEA would “wipe” people who disagreed with her, but would make frequent and unreasonable requests of the few people who remained in her life, often people she did not know well, and she was unable to make good judgements about their motivation or character. She had a history of refusing some services with Blue Care and was continuing to refuse some assistance with hygiene and continence. PIB had been managing MEA’s finances for some years, and although her ability to understand her finances was originally good, it had declined and was not accurate. She was extremely concerned regarding MEA’s vulnerability and that she could not reason or make good judgements about what support she required, despite repetition of information and explanations. For example, despite the explanations regarding the need for her to be placed in the nursing home after her fall, she still could not understand that she had required this level of care. She could not generate alternatives or options or weigh them up to make a good decision.
RD (homeopath) indicated that he had regularly seen MEA for consultations over the last five years, but she was making increasing requests for assistance with shopping and banking ringing him many times each day and expecting him to assist her with a range of tasks that were not in his professional role. He was concerned about her safety and lack of supports. He was concerned that she was becoming more dependent on him and doesn’t appreciate that other services will be needed to assist her. He also noted concerns about paranoid ideas, difficulty with reasoning and understanding of consequences. Whilst MEA is adamant about what she wants or doesn’t want, and can make simple choices or decisions (and has strong views), she requires assistance with complex matters. He had concerns that he could not continue with the level of support he was currently providing, but MEA did not understand this.
Other attendees at the hearing, Mrs PS, Mrs SC and Mr PB, all indicated support for MEA to remain in her home if this were possible. Mr PB raised concerns about her diminishing cognitive ability, difficulties with understanding and reasoning, particularly for any complex decision making.
In regard to the determination of capacity the Tribunal has taken account of the views of the medical professionals who have provided information regarding MEA. There has been concern about her decision making capacity, and reference to cognitive and memory difficulties, significant executive impairments and a diagnosis ultimately of likely alzheimers or mixed vascular dementia. Despite these difficulties the neuropsychologist’s opinion was that she had capacity to decide where she lived. Her general practitioner and psychogeriatrician have relied on this information, and subsequently the Princess Alexandra Hospital medical staff also deemed she had capacity to make the decision about her accommodation and discharged her home.
MEA is an 88 year old, intelligent and independent woman. She has strong views about many aspects of her life, including where she lives, what food she eats, and how her health issues are managed. She has a number of complex medical conditions, increasing physical frailty, hearing and visual impairments, and the development of cognitive and memory impairments associated with her alzheimers and mixed vascular dementia. She has mobility issues, resulting in recurrent falls, and incontinence. She is requiring more assistance to continue to live independently in her own home. She is estranged from family and social supports, and has a history of refusal of services.
MEA has the ability to clearly and adamantly state her preferences and views and has been vocal about what she will and will not do. However, from the evidence from community services providers and friends, her decision making has not ensured that her needs are met or her interests are protected. The observations of MEA’s friends, who have known her for many years are consistent with a significant decline in cognitive function and decision making ability and are also consistent with the views expressed by Ms Kelly Jones in her health professional report.
When questioned at the Tribunal MEA is unable to demonstrate understanding of her financial situation and has allowed others access to her finances without regard to the risks or consequences. She is unable to accurately describe her health conditions and the medication or treatment that has been recommended by medical practitioners (even should she choose not to take this advice). She is unable to describe the level of service provision that she requires, and unrealistically expects acquaintances and neighbours to attend to her increasing needs and demands, whilst declining some community services. She is unable to understand the nature and key elements of an Enduring Power of Attorney or the decision making arrangements that she herself put in place. She does not understand the role of an attorney.
MEA is unable to demonstrate the reasoning and judgement and understanding both of the nature of the decisions that have to be made, but more importantly the effect or consequences.
The Tribunal made findings of fact about capacity as follows:
(a)MEA is an adult who has been diagnosed with dementia, likely alzheimers or vascular dementia;
(b)She has significant executive function difficulties and memory impairments;
(c)Her cognitive impairments limit her ability to understand, reason and make appropriate judgements in regard to personal and financial matters;
(d)She has a lack of insight and understanding regarding her personal and financial needs;
(e)She has a history of declining necessary services and placing unrealistic demands on friends and acquaintances, with no appreciation of the consequences;
(f)She is vulnerable to financial exploitation;
(g)She does not have a complete knowledge or understanding of the key elements of an Enduring Power of Attorney.
In the circumstances the Tribunal was satisfied that MEA did not have capacity for complex personal or financial matters.
SHOULD PIB BE GIVEN LEAVE TO RESIGN AS ATTORNEY?
Mrs PIB asked the Tribunal for leave to withdraw as attorney for MEA. She had been a close friend of MEA for many years and assisted MEA in the management of her finances. She also assisted with MEA’s placement at the Nielson Nursing Home following her admission to hospital after a fall in 2010. This decision led to a breakdown in the relationship between herself and MEA and she believes that it is not practical for her to continue. MEA is also now refusing her support and assistance.
RMA (solicitor) indicated to the Tribunal that he was willing to act as attorney for financial and personal/health matters. He has acted in the past as her solicitor, and given a determination in regard to MEA’s capacity, he is now willing to act as her attorney and to make the decisions that are necessary. He understands his obligations under the Powers of Attorney Act 1998 and that he must be available to make both personal and financial decisions. He realises that he is unable to charge fees for his role as attorney.
In the circumstances the Tribunal determined that the appropriate decision was to give leave for PIB to resign as attorney for MEA.
IS THERE A NEED FOR AN ADMINISTRATOR OR GUARDIAN?
MEA has a validly appointed attorney who is able to make financial and personal/health decisions on her behalf, to the extent that it is necessary. RMA is aware of his responsibilities and has indicated willingness to act as attorney and make the decisions that are necessary. He has also indicated his willingness to work with the existing supports such as her treating general practitioner, RD (naturopath) and Blue Care to ensure that appropriate care and support is available to MEA.
The Tribunal determined that there was no need demonstrated for the appointment of an administrator or guardian to ensure that MEA’s needs are met and her interests are protected.
The Tribunal dismissed the applications for appointment of an administrator and guardian.
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