MJK
[2012] QCAT 562
•8 October 2012
| CITATION: | MJK [2012] QCAT 562 |
| PARTIES: | MJK |
| APPLICATION NUMBER: | GAA4042-12 / GAA5040-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 30 August 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Ron Joachim, Presiding Member Elissa Morriss, Member |
| DELIVERED ON: | 8 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That on 23 April MJK did not have capacity to revoke the Enduring Power of Attorney made on 16 July 2004 appointing MP as his attorney. 2. The Enduring Power of Attorney executed on 23 April 2012 appointing MK as attorney for financial and personal/health matters is invalid. 3. The Enduring Power of Attorney dated 16 July 2004 appointing MP is revoked. 4. The Public Trustee of Queensland is appointed as administrator for MJK 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 of The Public Trustee of Queensland remains current until further order of the Tribunal. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – ENDURING POWERS OF ATTORNEY – CAPACITY – where principal revoked wife’s appointment and appointed daughter – where solicitor preparing documents sought psychiatrist’s opinion regarding principal’s capacity – where Tribunal initiated an application for administration – whether principal had capacity to revoke and execute enduring documents Powers of Attorney Act 1998, ss 41, 47 |
APPEARANCES and REPRESENTATION (if any):
| Mr Fred Smith, solicitor, appeared for the applicant MP |
REASONS FOR DECISION
MJK is a retired barrister. He lives in a nursing home in southern Queensland. He has lived there for several years.
On 16 July 2004 he appointed his wife, MP as attorney for financial, personal and health matters with the power for financial matters to begin immediately.
MJK suffered a stroke in 2004 and has subsequently had a number of other cerebrovascular accidents. According to his psychiatrist Dr Middleton this has left him with a dense left hemiplegia necessitating his being in a wheelchair and requiring a hoist to get in and out of bed.
On 23 April 2012 MJK executed an Enduring Power of Attorney appointing his formerly estranged daughter from his first marriage, MK as his attorney for personal, financial and health matters with the power for financial matters to begin immediately. On that day he also revoked the Enduring Power of Attorney of 16 July 2004 appointing his wife.
MP questions whether her husband had the capacity to execute the new Enduring Power of Attorney and to revoke her appointment. She is represented by Mr Fred Smith, solicitor.
MP has applied to this Tribunal for a determination of that question which is the central issue for the Tribunal. The Tribunal initiated its own application for the appointment of an administrator for MJK. It did so as there was considerable conflict evidenced in the file between the various versions of events given by MP and MK.
The Enduring Power of Attorney and the revocation executed in April 2012 were prepared and witnessed by a solicitor Barbara Houlihan. Prior to preparing the documents she obtained a report from a psychiatrist Dr Middleton. She did so to satisfy herself about MJK’s capacity to execute the revocation and the new Enduring Power of Attorney.
The law
The law that applies in this matter is section 41 and section 47 of the Powers of Attorney Act 1998. Section 41(1) provides that a principal may make an Enduring Power of Attorney only if the principal understands the nature and affect of the Enduring Power of Attorney. Section 41 goes on to outline some of the matters which are part of understanding the nature and affect of the EPA. Section 47 provides that an Enduring Power of Attorney may only be revoked if the principal has the capacity necessary to make an Enduring Power of Attorney giving the same power.
The evidence about capacity
As well as the report of Dr Middleton dated 3 April 2012, the Tribunal had the benefit of a number of other reports relating to MJK’s ability to make decisions. The more relevant of these are a report from Dr Hargreaves, a psychiatrist which was written in December 2007, reports from psychiatrist Dr Megan Nitz, dated 7 March 2012 and 23 March 2011, a report from Dr Bradley Ng, Consultant Psychiatrist dated 3 June 2011 and from Dr Meulman GP of 5 July 2012. These reports variously note personality changes in MJK, agitated behaviour, confusion, poor judgment, lack of insight, difficult personality, and impaired ability to assess risk.
By far the most important document for the Tribunal is Dr Middleton’s report specifically commissioned for the purpose of obtaining information about MJK’s ability to execute and revoke an Enduring Power of Attorney.
The Tribunal also obtained evidence from Dr Middleton who participated in the hearing by telephone.
Dr Middleton states in his report,
“taking into account my past knowledge of MJK, various reports provided by medical specialists and general practitioners, as well as my direct assessment of him on 13 March 2012, I am very concerned that as a consequence of multiple cerebrovascular accidents that MJK’s insight, foresight and judgment is impaired to the degree that making precipitous changes to his Power of Attorney, wills etc, again to result in poor outcomes for himself.
MJK in recent times has terminated contact with his treating psychiatrist and his treating general practitioner and to a large degree with his wife. While cognitively only mildly impaired, the primary difficulty is his marked lack of insight and judgment and his incapacity to appreciate the difficulties that others experience in regard to trying to assist him. MJK in the past, in good health, was a person who was authoritative and controlling, and primed to cut contact precipitously with individuals who he felt angry with. With multiple cerebrovascular accidents this precipitous judgment has become also compromised by very poor judgment and insightfulness. Whilst at a cognitive level MJK understands what a power of attorney is, what a will is, the people who would normally be included in the will, and how the Family Law Act functions, my major concern is that he has such impaired judgment that exercising changes at this stage of his life will have a very negative outcome.”
In oral evidence before the Tribunal Dr Middleton said that MJK presented as usually loud, opinionated and outwardly friendly with some short term memory difficulties but quite well oriented. Dr Middleton said his major concern was the issue of judgment which he described as profoundly impaired. He noted that more recently he has become highly critical of his general practitioner, psychiatrist and wife to the extent that he believes there has been a plot regarding his medication.
Dr Middleton referred to MJK’s unrealistic ideas regarding working and playing the stock market. He described his reasoning as being flimsy and on a whim. Dr Middleton advised that the problem with MJK’s judgment is that it affects his understanding of the effect of decisions. He rushes precipitously without a full consideration of the consequences. In his view MJK’s decision making was impaired.
When describing MJK’s reasoning as to why he considered his marriage to be over, Dr Middleton indicated that there was little reasoning from him regarding this and it seemed to be driven by frustration about what he thought he should be able to do as opposed to what he could do. Whilst noting that MJK had a history of making decisions, “like a bull at a gate” this was at a time when he was functioning as a barrister.
MJK has a history at the nursing home of being antagonistic towards staff. For the past 18 months he has become very critical of MP but because of the history she did not feel singled out.
Mr Smith referred the Tribunal to the range of medical reports alluded to earlier which showed that MJK had poor judgment and insight and was unable to conduct court proceedings and that he was unable to make complex decisions.
DM from the nursing home where MJK lives, told the Tribunal that MJK seems to be accepting care better now, that he has a new general practitioner but that he lacks insight into his care needs.
Ms Houlihan advised the Tribunal that she has known MJK for a long time although they have had infrequent contact. Prior to the most recent contact in which MJK requested that she prepare enduring documents she had no contact with MJK for 10 years. She observed that MJK often went at things like a bull at a gate with no idea of his impact of his behaviour on others.
She said that she had the report from Dr Middleton but did not contact him for any further clarification. She had seen MJK on 8 February to assess his understanding and formed the view that he understood the nature and effect of the enduring document. She stated MJK was adamant that the marriage was over and he did not wish MP to continue as attorney. He advised her that he wanted the revocation done immediately to which Ms Houlihan stated she wished to have an independent assessment.
Ms Houlihan advised that MJK had said as early as December 2011 that he wanted his daughter appointed. MJK had further advised Ms Houlihan that he had transferred property to his wife in 2006 and he “wanted something done about that”. He told her he did not like the decisions MP was making and he expressed concerns that money was coming out of his account to service an overdraft even though he had transferred the house to MP.
Ms Houlihan indicated that the report from Dr Middleton was consistent with her memory of MJK although she found his speech was more affected and he “went on” more than he did in the past. She described him as impulsive. She said that he had dictated his will and considered all the specific issues and that she had sought specific advice from senior practitioners about his capacity.
MJK advised the Tribunal that he agreed that he lacked judgment and insight into the effect of his decisions and was impulsive. He said that he had asked his wife five weeks in a row to provide his various bank statements and that these were not forthcoming. He was able to accurately describe his income and was concerned that he had no savings during the time MP was managing his affairs. He was surprised that MP had not been to visit him since he revoked her as attorney, and had not anticipated this. He advised that his daughter MK had rung him and asked if she could visit. He had been estranged from her for ten years. He subsequently made the decision that he would like her to be the Attorney.
MK advised the Tribunal that since she has been managing her father’s affairs she has managed to save approximately $14,000.00. It was noted however that she had not made any payments in respect of the interest on the overdraft and that MP had continued to make a range of other payments for MJK.
The Tribunal discussed with the parties that it appeared from the file that MJK may be seeking a property settlement from MP. Mr Peter Sheehy, a solicitor, who provided an affidavit to the Tribunal attesting to MJK’s ability to understand the nature and legal effect of a revocation and new Enduring Power of Attorney and a will provided evidence that a family law matter was on foot. He said that it would not necessarily be appropriate for MK to be the litigation guardian because of a potential conflict of interest. He said that MJK would most likely require a litigation guardian to be appointed by the Court because of concerns about MJK’s ability to provide adequate legal instructions. He stated that MK would not be an appropriate litigation guardian.
The Tribunal’s view
The Tribunal is of the view that MJK, at an intellectual level, is able to understand what an Enduring Power of Attorney is. That is, he understands the nature of the document. The Tribunal is not satisfied that MJK understands the effect of changing his Enduring Power of Attorney. The Tribunal accepts the evidence of Dr Middleton which is essentially unchallenged, that MJK’s judgment is profoundly impaired. The Tribunal is very concerned that Ms Houlihan having had the benefit of Dr Middleton’s report proceeded to prepare the documents and witness both the Enduring Power of Attorney and the revocation.
The Tribunal considers that Dr Middleton’s remarks, in his report provided to Ms Houlihan, should have alerted her to the not inconsiderable issues affecting MJK’s judgment and insight. Unfortunately it did not.
The Tribunal does not accept that MJK’s abilities and judgment were unchanged from pre stroke. The evidence is that MJK certainly had a difficult personality prior to his stroke and that this continued. There is consistent medical evidence since MJK had his stroke regarding his poor judgment, lack of insight and cognitive impairments. This is also manifested by his appointing MK as his attorney after having been estranged from her for some ten years. This is consistent with what Dr Middleton prescribes as precipitous decision making.
The Tribunal has great difficulty in reconciling Mr Peter Sheehy’s comments in his affidavit that MJK had capacity to execute an EPA with his evidence at the Tribunal that MJK could not give instructions for a property settlement. In material she filed with the Tribunal Ms Houlihan stated she relied on Mr Sheehy’s judgment in relation to MJK’s capacity to execute the documents.
Ms Houlihan certainly spent a considerable amount of time with MJK and there is no doubt she was impressed by his intellect and his memory. The key issues for the Tribunal however are not his intellect but his judgment and insight. The Tribunal is not satisfied that he had the appropriate judgment and insight to be able to revoke the Enduring Power of Attorney and execute a new Enduring Power of Attorney. In this regard the Tribunal finds that whilst MJK understands the nature of the document he does not understand the consequences of the changes he has made.
Having come to this conclusion we find that the enduring documents executed on 23 April 2012 are invalid.
The relationship between MJK and MP was somewhat fractured. MJK clearly no longer trusts his wife even though there is little of substance before the Tribunal to indicate that she has abused her powers under the Enduring Power of Attorney. She has indicated to the Tribunal that because of the strained relationship and because of the potential for legal action in respect of a property settlement, it is no longer appropriate that she be the attorney.
The Tribunal will therefore revoke the Enduring Power of Attorney that was executed in her favour. The Tribunal will appoint the Public Trustee of Queensland as administrator for MJK for all financial matters until further order of the Tribunal. The Administrator will be required to provide accounts to the Tribunal when requested. The Tribunal will dispense with the need for the administrator to provide a financial plan to the Tribunal.
A further effect of the revocation will be that MJK will not have an attorney under an Enduring Power of Attorney for personal matters/health matters.
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