MHV
[2015] QCAT 351
•27 January 2015
| CITATION: | MHV [2015] QCAT 351 |
| PARTIES: | MHV |
| APPLICATION NUMBER: | GAA9049-14; GAA9050-14; GAA9051-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 12 December 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor Ashman, Member |
| DELIVERED ON: | 27 January 2015 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Public Guardian is appointed as guardian for MHV for decisions about the following personal matter: a. Seeking help for, or making representations on behalf of MHV. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 3. The Public Guardian is directed to provide a report to the Tribunal with copies to other active parties in this matter concerning current or likely future personal needs of MHV that might require the appointment of a guardian. 4. The report is to be provided to the Tribunal and active parties within six (6) months. 5. The Public Trustee of Queensland is appointed as administrator for MHV for all financial matters. 6. The Tribunal dispenses with the requirements for the administrator to provide a financial management plan. 7. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 8. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. 9. That before 12 March 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. 10. 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. |
| CATCHWORDS: | THE APPOINTMENT OF AN ADMINISTRATOR AND GUARDIAN—where the adult was found to lack capacity for personal financial matters; Guardianship and Administration Act 2000 Schedule 1. |
APPEARANCES
The adult
Three of the adult’s children
One grandchild of the adult
A friend of the adult
REPRESENTATION:
A representative of the Public Trustee of Queensland
REASONS FOR DECISION
MHV is 98 years old and has a significant hearing impairment. She lives alone in her own home and is visited from time to time by her son and daughters and their families.
After a major weather event, a neighbour visited MHV and offered to assist in repairing some of the storm damage to her home and garden. This he did and later also arranged for a number of tradespersons to undertake additional repairs.
MHV’s children, however, have become increasingly concerned over the neighbour’s (GJ’s) influence in terms of their mother’s personal and financial decision making.
In September 2014, MHV’s son lodged an application at the Tribunal seeking the appointment of himself and his siblings as their mother’s guardian and the Public Trustee of Queensland as administrator. In the application, PE stated that his mother appears to have only a vague understanding of her banking arrangements and has given her PIN to others. In the application and associated documents, concerns were also expressed over unpaid bills and the state of MHV’s house and property. There were worried about her health and health care and her refusal to allow the children to become involved in her day to day affairs.
On 2 October 2014, the Tribunal issued interim orders appointing PE, MW, and SW as MHV’s guardians and the Public Trustee of Queensland as administrator. The matter subsequently came before the Tribunal at a hearing on 12 December 2014.
Before any appointments can be considered, the Tribunal must be satisfied that MHV does not have decision-making capacity for personal and/or financial matters.
Does MHV have capacity to make decisions for herself in personal and/or financial matters?
Dr D has been MHV’s general practitioner since about 2006. In a health professional’s report dated 21 August 2014, he wrote that MHV has been showing evidence of cognitive impairment since about 2012. He stated that she has poor social support, is non-compliant with medical therapy, and is at risk of falling in her home. He expressed the view that her advancing cognitive impairment enables her to make simple decisions only in personal and financial matters.
The Tribunal engaged in a lengthy conversation with MHV about her daily life, her social network, and the decisions that she has made in personal and financial matters. She stated that she is fully engaged in social activities outside of her home, attends gardening and other social groups, and is fully able of looking after herself in her home. She is capable of managing her financial affairs including paying her bills, although she requires some assistance with shopping and getting to the bank.
This picture of a positive and capable person was challenged by all of MHV’s children. They agreed that she was involved in community activities some years earlier but this was not the case now. They were concerned about her safety within her home, reported unpaid bills, the poor quality of maintenance work and repairs undertaken by workers she had employed through GJ, and seriously concerned about his continuing influence on the decisions she was making.
GJ stated that MHV was fully capable of looking after herself but she sought his input about a range of matters, including decisions about the use of her money. He insisted that he was not influencing her unduly and that all of the decisions she has made were fully her own. He referred to her as an intelligent, witty, and happy person.
In coming to its decision, the Tribunal was mindful that MHV scored 20/30 on the Mini Mental State Examination administered by Dr D and that this score was within the normal range for a person of MHV’s age. It is clear, however, that MHV was experiencing memory difficulties and that her report of her social life and decisions relating to home maintenance, safety within the home, and her financial management were inaccurate, consistent with Dr D’s assessment. The Tribunal is also satisfied that GJ has some influence over MHV’s decisions, particularly in terms of her financial affairs. The Tribunal finds that MHV lacks capacity to make sound personal and financial decisions.
The Tribunal, therefore, moved to consider whether MHV has needs in regard to personal and financial matters and if she does, who is the most appropriate appointee for each matter.
Is there a need for the appointment of a guardian?
MHV’s perception of her capabilities around the house and in terms of the needs of a person of her age were not consistent. During the conversation with the Tribunal, she displayed memory lapses and expressed negative views about the interference of her children in her own affairs including her friendship with GJ, and future living arrangements.
In their written submissions and in oral evidence MHV’s children expressed concern about her safety within the house including the recent purchase and use of a gas stove. There were additional concerns about her personal hygiene and discussions about her ability to continue residing in the family home.
Much of the evidence provided by MHV’s family focused on the negative influence that GJ was having on their mother. These included her wish not to confide or consult with her children on decisions that concerned her safety and well-being into the future including where she might life when she was unable to care for herself properly. MHV had apparently made arrangements to seek a placement in an aged care facility but changed her mind as a result of GJ’s views on that matter.
GJ stated that he was MHV’s best friend and discussed many matters with her. He was adamant that all decisions she made were her own and that he merely assisted in the conduct of those decision. He expressed no animosity toward MHV’s children and had sought to involve them in social activities.
From the discussions and the evidence provided during the hearing, it is not fully apparent what, if any, MHV’s personal needs might be. There are suggestions that her health care is at risk, as is her safety within the home. Views have also been expressed that she in-home care services might be needed or the transfer to an aged care facility.
Certainly, there is conflict between the family and GJ with family asserting that his influence on MHV has led to their isolation from her.
The Tribunal finds that there is a need to determine what (if any) MHV’s current and future needs might be. These have not been clearly articulated and verified by the parties at the hearing. The Tribunal cannot identify any specific needs that might support the appointment of a guardian but it is also apparent that an independent agent is required to investigate MHV’s current and future needs.
The Tribunal, therefore, appoints the Public Guardian to assist MHV by way of seeking help for, or making representations on behalf of, MHV. Within six months, the Public Guardian is to provide a report to the Tribunal (with copies to active parties) about any current or likely future personal needs that might require the appointment of a guardian. The order will remain current until further order but will be reviewed in 12 months.
Is there a need for the appointment of an administrator?
A report from the Public Trustee arising from its appointment under the interim order indicates that major house maintenance is required and that there are concerns that MHV may be subject to undue influence. MHV has notable assets including shares and a Term Deposit.
GJ expressed the view that MHV was able to look after her own financial affairs, a contention challenged by MHV’s family.
On the basis of the evidence provided, it is apparent that GJ is playing some role in MHV’s decisions in regard to her financial affairs. He stated that he facilitated her purchase of goods and services and in preparing a submission to the Tribunal. It is not clear if that influence was intended to benefit him directly or indirectly in the longer term, or if he was simply providing and discussing options that MHV could accept or reject.
Evidence given by the representative of the Public Trustee of Queensland and by family refers to work undertaken on MHV’s home as inferior in quality and that the purchase of certain items was inappropriate for her needs.
The Tribunal finds that there is need for the appointment of an administrator on the basis of her current assets and concerns about possible exploitation.
The Tribunal appoints the Public Trustee of Queensland as decision- maker for all financial matters. As the Tribunal intends to review the appointment of the Public Guardian in 12 months, the Tribunal finds that the appointment of the Public Trustee of Queensland is to be reviewed also at that time. The Public Trustee is required to give notice to the Registrar of Titles in regard to MHV’s ownership of property.
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