MK
[2010] QCAT 233
•17th march 2010
| CITATION: | MK [2010] QCAT 233 |
| PARTIES: | MK |
APPLICATION NUMBER: G19918
| MATTER TYPE: |
HEARING DATE: 17th march 2010
HEARD AT: Brisbane
| DECISION OF: | Michael McCarthy |
DELIVERED ON: 17th march 2010
DELIVERED AT: Brisbane
ORDERS MADE:
EPA declared invalid, further EPA revoked, Administrator appointed,
| CATCHWORDS : | capacity to make valid enduring power of attorney, capacity at time of hearing, whether need for appointment of guardian and/or administrator, family conflict |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MKJ, (Applicant) MM, (Applicant's spouse) BC, (daughter of MK) BLK (the Attorney appointed under the 2008 enduring document and grand-daughter of MK). |
| RESPONDENT: |
REASONS FOR DECISION
HISTORY
This hearing of the Queensland Civil and Administrative Tribunal took place on the 17th March 2010 in relation to MK. MK is currently eighty seven years of age and resides at an aged care facility.
An Application was brought to the Tribunal seeking a Declaration about MK's capacity to execute an Enduring Power of Attorney dated 8th October 2008. The Tribunal heard on the 17th March 2010 that application and a further application which was subsequently filed with the Tribunal seeking the appointment of a Guardian and an Administrator for MK.
Present at the hearing included the Applicant MKJ, the Applicant's spouse MM, the daughter of MK, BC, and the grand-daughter of MK, BLK who is also the Attorney appointed under the 2008 Enduring document.
The Tribunal had received written material prior to the hearing, including medical reports, the applications, statements from parties, correspondence from the Solicitor who prepared and witnessed the enduring document and a number of other email communications.
The Tribunal also received oral evidence at the hearing in relation to the matters before it and, prior to the hearing, the tribunal had received an application from Solicitors seeking leave to represent one of the parties at the hearing, which was not granted.
THE ISSUES
(1) Whether MK had capacity to execute an Enduring Power of Attorney on the 8th October 2008;
(2) The significance of the Enduring Power of Attorney of the 14th April 2003;
(3) Whether MK had capacity to make personal and financial decisions at the time of the hearing;
(4) If MK had impaired capacity at the time of the hearing , whether there was a need for the appointment of a Guardian and, if so, who was appropriate;
(5) If MK had impaired capacity at the time of the hearing, whether there was a need for the appointment of an Administrator and, if so , who was appropriate.
DID MK HAVE CAPACITY TO MAKE A VALID ENDURING POWER OF ATTORNEY ON 8TH OCTOBER 2008?
The first issue that the Tribunal dealt with at the hearing was the issue of capacity of MK to execute a valid enduring power of attorney on the 8th October 2008. The Powers of Attorney Act in Queensland defines capacity for an adult for a matter as having very specific meaning. Section 41 of that Act addresses principles of capacity to make an enduring power of attorney and states specifically that a principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney.
To understand the nature and effect of the Enduring Power of Attorney involves understanding a number of matters and that includes:
- that the principal may specify or limit the power to be given to an Attorney;
- when the power begins;
- once the power for a matter begins, the Attorney has power to make and will have full control over the matter the subject, subject to terms or information about exercising the power included in the document;
- that the principal may revoke the enduring power of attorney any time that the principal is capable of making an enduring power of attorney giving the same power;
- that the power the principal has given continues even if the principal becomes a person with impaired capacity; and
- at any time the principal is not capable of revoking the enduring power of attorney the principal is unable to effectively oversee the use of the power.
In other words capacity or understanding for executing an enduring power of attorney is not an insignificant thing.
The evidence that was provided to the Tribunal in relation to the issue of capacity included medical evidence of Doctor McMullen, a GP who had known MK since 2004.The doctor in his reports provided to the solicitor who prepared the document stated that MK had vascular dementia and short-term memory loss from the time of the first appointment that the doctor had with him in 2004; that an MMSE at that time had indicated some mild cognitive impairment; that MK had subsequently attended a memory clinic where vascular dementia was confirmed and MK was subsequently advised to discontinue driving.
On the 25th of September 2008 the doctor reported that an ACAT assessment done just two weeks prior to the execution of the enduring power of attorney showed impaired short-term memory and that the dementia had progressed to the point that MK was no longer orientated as to time or place or people. The score on the MMSE was fourteen out of thirty which is indicative of significant or moderate dementia.
The oral evidence of the parties at the hearing included evidence from the Applicant, MKJ, that around the time of execution of the document, MK suffered significant confusion and had in fact been uncertain about the documents that had been signed or the effect of those documents.
The evidence of the Attorney however was that MK was fully aware of what he was doing when executing the enduring power of attorney. The solicitor who prepared and witnessed the document was contacted by the Tribunal at the hearing and was able to provide oral evidence in relation to the execution of the document.
In addition to the written statement that the Tribunal had received prior to the hearing dated 4th March 2009, the solicitor confirmed that she had not sought any medical evidence around the issue of capacity before the enduring power of attorney was executed . The solicitor had taken instructions for the preparation of the document from the granddaughter, BLK, had not read the whole document to the principal, did not facilitate the principal reading the whole of the document and did not test the principal on the principal's understanding of his assets or the nature and effect of the document.
The solicitor gave evidence that she was aware of signs of physical frailty and stated that the principal had in fact tired after twenty minutes, approximately, that the solicitor had taken to discuss both the will and the enduring power of attorney. The solicitor stated that the time taken for discussion about the enduring document was five to ten minutes. The solicitor did give the opinion that in her view the principal did understand the document that he was signing.
The findings of the Tribunal in relation to the evidence of capacity to execute a valid enduring document on the 8th October 2008 are that the adult, MK had vascular dementia since 2004 that was progressive; that he had short-term memory problems and confusion which were possibly worsening since 2004; that he had scored fourteen of out thirty on a mini-mental examination which is indicative of moderate dementia; that he had been assessed by an ACAT team as being disorientated as to time, place and people; and that he had impaired hearing and some visual defects.
The Tribunal is satisfied on the evidence before it that MK did not have capacity to understand the nature and effect of an enduring power of attorney document on the 8th October 2008 and that the presumption of capacity in the Powers of Attorney Act has been rebutted on the evidence before the Tribunal.
The Tribunal is therefore satisfied that MK lacked the requisite capacity to execute a valid enduring power of attorney document and therefore declares the enduring power of attorney of the 8th of October 2008 invalid under Section 113 of the Powers of Attorney Act.
THE SIGNIFICANCE OF THE ENDURING POWER OF ATTORNEY OF 14TH April 2003
Because the enduring document of the 8th October 2008 is invalid the Tribunal needed to turn its attention to the enduring power of attorney dated 14th April 2003, a copy of which was also provided to the Tribunal prior to the hearing. That document appointed BLK and LB as joint and several attorneys for personal and financial matters. However the Tribunal was provided with evidence that LB is no longer a person of significance in the life of MK and the Tribunal is satisfied that it is inappropriate for that enduring power of attorney to continue.
In the circumstances the Tribunal has determined therefore to revoke the enduring power of attorney of the 14th April 2003, as no longer being appropriate, under Section 116 of the Powers of Attorney Act.
CAPACITY OF MK AT THE TIME OF THE HEARING
The Tribunal then turned its attention to the applications before it relating to Guardianship and Administration. In any application where a party seeks the appointment of a Guardian and/or an Administrator, the Tribunal must first be satisfied that the person lacks capacity for the matter before it would consider making appointments.
Capacity for a matter means understanding the nature and effect of the matter, being able to freely make decisions about the matter and being able to communicate those decisions.
The evidence before the Tribunal included the medical evidence again of Dr McMullen which had indicated that MK had progressive dementia, vascular in nature since 2004, that he had limited ability to make decisions and limited insight into his condition. MMSE scores were recorded over a period of time which indicated mild dementia in the first instance but by October 2008 a score of fourteen out of thirty had indicated moderate dementia and cognitive deficits. The doctor indicated that MK lacked insight into his memory deficits and as to the reason why his driving licence needed to be withdrawn.
The doctor provided an opinion that in his view MK could only make simple personal and financial decisions and could not understand all of the necessary elements of an enduring power of attorney. A further medical report of Darlene Anderson RN of the nursing home facility also referred to the decreasing MMSE scores over a period of time. She referred to MK’s memory loss and confusion and his inability to make complex decisions. The oral evidence of the parties at the hearing supported the view that MK has impaired ability to make decisions for himself and is reliant on others for decisions.
The Tribunal on the basis of the evidence before it therefore found that;
- MK does have progressive vascular dementia and has had memory loss since 2004;
- he has fallen progressively worse on mini-mental examinations, consistent with that progressive dementia;
- he lacks insight into his condition;
- he is reliant on others for care and decision making; and
- he is currently residing in high level care, having being so assessed by an ACAT team.
The Tribunal is therefore satisfied on the evidence before it that the presumption of capacity for both personal and financial maters has been re-butted.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
Having determined that MK lacks capacity, the Tribunal turned its mind to whether or not there is a need for the appointment of a guardian and an administrator. Section 12 of the relevant legislation provides that before the Tribunal can appoint a guardian to make personal decisions or indeed an administrator to make financial decisions the Tribunal must be satisfied that there are circumstances that demonstrate the need for an appointment of a guardian and/or an administrator.
In the area of personal decision making and whether or not there is a demonstrated need for a guardian, the Tribunal heard that MK’s accommodation is stable and satisfactory and that he is very happy, that all services are being provided and that in relation to health care, BK has visited regularly, is available to make decisions about health care and is willing and able to continue in the role of Statutory Health Attorney. She has also indicated a willingness to communicate with other parties in the area of health care matters.
On the evidence before it therefore the Tribunal is not satisfied that there is a need for a formal decision maker to be appointed around guardianship, the Tribunal having pointed out to parties that if in the future the circumstances change and conflict determines otherwise, then the parties can come back to the Tribunal with a further application. However on the evidence before it, the Tribunal is not satisfied that this is the case at the present time and is satisfied that the Statutory Health Attorney regime can operate successfully.
The Tribunal has therefore determined that there is not a need for the appointment of a guardian at the present time and dismisses the application for the appointment of a guardian.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR ?
On the question of whether or not there is a need for an administrator, the tribunal was provided with a significant volume of written evidence around the financial circumstances of MK including:
- that there are mixed assets, assets that have been jointly owned by MK and family members;
- that there have been disputes amongst family members about the payment of the accommodation bond;
- that there is a continuing need for decisions to be made around these matters and that the parties themselves have been in conflict for a period of over eighteen months on these matters.
The Tribunal is satisfied that on the evidence before it therefore that there is a need for a formal appointment of a decision maker around financial matters and that without the formal appointment of an administrator, MK's needs will not be adequately met or his interests adequately protected.
WHO SHOULD BE APPOINTED AS ADMINISTRATOR?
On the question of who is appropriate to be appointed, the application is for the appointment of the Public Trustee. The Tribunal is satisfied that in the circumstances, the Public Trustee as an independent party is appropriate and, as an independent administrator, will bring to the administration of financial affairs of MK, an ability to liaise with all interested parties, assess the relevant merits of options for decisions on financial matters and in the end, make the decisions that are in the best interests of MK himself.
In this respect, the Public Trustee of Queensland is an independent decision maker with extensive skills and experience, is available and willing to act and will comply with the general principles contained in the relevant legislation.
The Public Trustee of Queensland is therefore considered the appropriate appointee as administrator in this case. The Tribunal's order is therefore to appoint the Public Trustee of Queensland as administrator for MK until further order for all financial matters and the Public Trustee will be required to submit a financial management plan within 5 months of the date of this order.
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