MJH
[2012] QCAT 594
•15 November 2012
| CITATION: | MJH [2012] QCAT 594 |
| PARTIES: | MJH |
| APPLICATION NUMBER: | GAA5478-12 / GAA5479-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 15 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor A Ashman, Member Elissa Morriss, Member |
| DELIVERED ON: | 15 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for MJH for seeking help for, or making representations on behalf of, MJH for decisions relating to where MJH lives. 2. Unless the Tribunal orders otherwise, this appointment remains current for six (6) months. 3. The application for the appointment of an administrator for MJH is dismissed. 4. Parties to the proceeding are directed to: (a) engage in mediation using a mediator who is mutually agreeable to the parties; (b) notify the Tribunal of the mediation arrangements once they have been finalised; (c) report to the Tribunal on the success or otherwise of the mediation within fourteen (14) days of the completion of the mediation process. 5. The matter will be considered further by the Tribunal at a hearing no earlier than 1 February 2013. 6. All parties to the proceeding are granted leave to be legally represented. 7. The following Enduring Power of Attorney for MJH is overtaken by the making of the appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that the appointment has been made: (a) the Enduring Power of Attorney dated 31 May 2011 appointing KEK for financial, personal and health matters. |
| CATCHWORDS: | Appointment of a guardian – appointment of an administrator – overtaking of an Enduring Power of Attorney – directions to participate in mediation |
APPEARANCES and REPRESENTATION (if any):
MJH
GR representing MJH
KEK
KD
YJ
MM
WK representing MM
ME attended by teleconference
REASONS FOR DECISION
MJH is eighty-five years old and lives alone in the family home. She has a life interest in that home, which is the subject of a trust set up by MJH’s late husband, with her three daughters KEK, MM, and ME acting as joint trustees.
KEK and MM and their respective partners/family live in Sydney. ME lives in the United Kingdom.
There are tensions between the three daughters that have led to unkind communications.
MJH visits her daughters in Sydney from time to time and has vacillated between a decision to move from her home to another in Sydney or to stay where she lives in Brisbane. Her changing intentions appear to arise from her daughters’ strongly given views. Over some time she has written to the three daughters expressing her intention to move to Sydney, and only a short time later, has written again changing her mind, saying that she intends to remain in Brisbane.
MM lodged an application with the Tribunal seeking the appointment of a guardian and administrator for her mother. She stated in the application that she wished to see an end to her mother’s loneliness and isolation. She stated that her mother was being financially exploited by her two sisters who would not agree to the sale of the family home so that more appropriate accommodation could be provided in Sydney where she wished to live. She stated her wish that a neutral person be appointed to assist MJH to make a decision about where she should live in her best interest, and not in the best financial interests of her children.
For the Tribunal to consider the need for an appointment of a guardian and/or administrator, it must be satisfied that MJH does not have capacity to make decisions for herself in personal and financial matters.
Does MJH have capacity to make decisions for herself in personal and financial matters?
The Tribunal considered medical information provided by her general practitioner, Dr C, who has known MJH for about eight years. In his 14 May 2012 report to the Tribunal he states that she can make decisions about her day-to-day affairs and can understand and act upon information relevant for decision-making. She is able to make simple personal decisions relating to her health, lifestyle and accommodation, and financial matters. Dr C, however, states that MJH receives confusing ideas from all of her daughters, who do not give uniform information or support. They disagree with each other in regard to their mother’s future placement. Dr C administered the Rowland Universal Dementia Scale and MJH achieved a perfect score.
On 25 July 2012, the Tribunal directed MJH to undergo a capacity assessment and this was performed by geriatrician Dr K in August 2012. Dr K referred to the RUDAS score mentioned above and also a Mini Mental State Examination score of 29/30, supporting the RUDAS assessment. He states that she is fully capable, with no cognitive issue and able to make complex decisions in all decision-making areas. Dr K was slightly more positive about MJH’s decision-making capacity than her general practitioner.
The Tribunal held a conversation with MJH. It is apparent from her responses that she is influenced by the disparate views of daughters and those views have a major emotional impact on her.
There are three conditions that must be met in regard to capacity. A person must understand the nature and effects of decisions, must make decisions freely and voluntarily, and be able to communicate the decision and decision-making process. On the evidence presented, the Tribunal is satisfied that MJH has no difficulty with the first and third condition. However, it is apparent that the significant decision about where she might live in the future is influenced very strongly by her daughters’ views and opinions. These lead her to a decision to move to Sydney when pressed by one or more daughters, and then to remain in Brisbane when pressed by one or another. Her strong desire to please and appease each of her daughters limits her ability to make decisions freely and voluntarily. The very strong views of her daughters influence her decision-making. It is equally apparent that there are financial considerations that motivate the daughters’ positions.
The Tribunal finds that MJH’s decisions about future accommodation are not made freely or voluntarily due to her daughter’s influence. The Tribunal finds that the presumption of capacity for personal decisions as contained in the Guardianship and Administration Act 2000 is rebutted.
The Tribunal then turned its attention to the need for the appointment of a guardian.
Is there a need for the appointment of a guardian, and if so, who?
From the nature of the interactions between MJH’s daughters during the hearing there appears to be a blurring of interests between what might be in her best interest and what is in the best interest of the daughters. The Tribunal did not explore this issue although it is apparent that any proposal to sell the home where MJH currently resides is contentious. It seems that at least MM and KEK concur that if their mother wishes to re-locate to Sydney, that transition would be supported. Exactly how, is not clear.
It appears that the only need is for a decision about where MJH is to live as her age increases.
The Tribunal is mindful that it would be in MJH’s best interest to enable the decision-making process to be conducted as a family affair with an agreement being reached among the sisters and that agreement supporting their mother’s wish. This approach is preferred over the appointment of an independent decision-maker, such as the Adult Guardian. MJH also expressed the view that she did not want an independent guardian appointed to make the decision about where she would live.
The Tribunal canvassed the views of the parties attending the hearing and there was consensus that an attempt at mediation would be appropriate. With all due respect to MJH’s legal representative, the Tribunal formed the view that the involvement of an independent advocate might expedite a mediated resolution about her future accommodation.
The Tribunal finds a need for an independent advocate to assist MJH through the mediation process. There was consensus that the Adult Guardian could fill that role through an appointment for seeking help and making representations on behalf of MJH. The Tribunal, therefore, appoints the Adult Guardian for seeking help for, or making representations on behalf of, MJH for decisions relating to where she lives.
It is the Tribunal’s view that the issue of future accommodation should not involve a lengthy process. The Tribunal finds that the appointment of the Adult Guardian is appropriate for six (6) months.
The Tribunal recognises that this order will overtake an existing Enduring Power of Attorney to the extent that the appointment has been made.
Is there a need for the appointment of an administrator, and if so, who?
MJH was candid during the taking of evidence in regard to her financial affairs. She described her financial situation clearly and accurately. She lives a relatively simple life, is able to pay her bills, and has accumulated savings.
While there have been allegations of exploitation of MJH by one or more of her daughters, evidence was taken that daughters support her financially from time to time. Again, the dispute between the sisters about financial matters associated with the home in which MJH lives appears to be the key matter in contention.
On the basis of the information provided by MJH and with corroborative input from her daughters, the Tribunal has no evidence before it to believe that the presumption of capacity is rebutted.
The Tribunal, therefore, dismisses the application for the appointment of an administrator.
How can mediation be facilitated?
Submissions from the legal representatives attending the hearing asserted the need to keep the mediation process outside of the Tribunal’s jurisdiction. There was agreement that a mediator could be engaged who would be acceptable to all parties.
To ensure that the mediation process does not falter during the term of the guardianship appointment, the Tribunal was minded to impose limited reporting conditions. These involved the following: the parties to the proceeding are directed to engage in mediation using a mutually agreeable mediator; to notify the Tribunal of the mediation arrangements once they have been finalised; and to report to the Tribunal on the success or otherwise of the mediation within fourteen (14) days of the completion of the mediation process.
Should mediation be completed prior to the expiry of the guardianship appointment, the parties can seek a review of the appointment in advance, but the Tribunal considered that this should not occur before 1 February 2013. An order is made to that effect.
Finally, the Tribunal is satisfied that legal representation during the hearing facilitated the process and enabled the parties’ views to be expressed clearly and cogently. The Tribunal, therefore, grants leave for the parties to be legally represented.
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