MMC - [2015] QCAT 220

CITATION:

MMC [2015] QCAT 220

PARTIES:	MMC
APPLICATION NUMBER:	GAA11137 – 14 GAA1341– 15

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	18 February 2015

HEARD AT:

Townsville

DECISION OF:

Member Johnston

DELIVERED ON:

18 February 2015

DELIVERED AT:

Townsville

ORDERS MADE:

GUARDIANSHIP

1. The Public Guardian is appointed as guardian for MMC for decisions about the following personal matters:

(a) Accommodation;

(b) Health care;

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

ADMINISTRATION

3. MMH is appointed as administrator for MMC for all financial matters.

4. The administrator is to provide a financial management plan to the Tribunal within three (3) months.

5. The Tribunal grants a partial exemption to the administrator from the requirement to provide accounts but directs the administrator to provide to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter:

(a) copies of the adult's bank statements/passbooks/term deposits for the past year;

(b) copy of the latest accommodation account or statement for nursing home/hostel/rental property or other accommodation for the period;

(d) for any shares, investments or superannuation, a copy of all dividend notices or statements received during the year;

(e) a signed and witnessed Declaration as to continuing appropriateness for appointment;

(f) a list of the adult's current assets and liabilities;

(g) a current fortnightly budget of income and expenditure.

6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year.

NOTICE OF INTEREST IN LAND

7. That before 18 May 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.

(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.

8. 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.

ENDURING POWER OF ATTORNEY

9. The following Enduring Power of Attorney for MMC is overtaken by the making of this appointment and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made:

a) The Enduring Power of Attorney dated 7 February 2008 appointing MMH and MTM for financial, personal and health matters.

CATCHWORDS:

Guardianship and administration matters for adults - duty of attorney/carer to provide appropriate level of care arrangements for the adult and related matters.

APPEARANCES:

MMH – daughter and attorney
MTM – daughter and attorney
PM – Senior Investigator Public Guardian
AS – Public Guardian official
EB – Public Guardian official

REASONS FOR DECISION

Background

MMC is an 84-year-old widow who lives in her own home of 60 years in the suburb of Belgian Gardens. She receives HomeCare from her daughter MMH. MMC's other daughter, MTM lives in Nanago. MMC appointed her daughters to act jointly under an enduring power of attorney dated 7 February 2008.
The focus of the Tribunal is on the best interests of MMC as required by the Guardianship and Administration Act 2000 (Qld). The Act acknowledges in section 5(e) that an adult with impaired capacity has a right to adequate and appropriate support for decision-making.
Section 22 of the Act provides that an attorney can only exercise power to the extent authorised by the Tribunal.
The operation of the Enduring Power of Attorney granted by MMC to her daughters was suspended pursuant to section 34 of the Public Guardian Act 2014 on 1 December 2014.

Public Guardian’s Investigation

The Public Guardian received a complaint that the attorney MMH had verbally abused her mother MMC during an incident on Friday 2 May 2014 at Heather’s Hairdresser where MMC was allegedly forcibly removed by the arm, by the attorney from the saloon and the attorney verbally abused MMC [see paragraph 17].
The Public Guardian spoke to MMC's medical practitioner and to the staff of service providers who had provided care. These people raised concerns that the attorney MMH was failing to provide an appropriate level of care for MMC to ensure that her needs were being met. It has been alleged that the attorney has declined the assistance of services, which would assist MMC's care needs being met adequately.
An Aged Care Assessment was conducted on 13 May 2014, which assessed MMC as having a high level of care needs.
The Public Guardian launched an investigation into the management of MMC's personal and financial matters by her attorneys and because of information obtained during the investigation suspended the operation of the enduring power of attorney on 1 December 2014.
The Public Guardian is required to exercise the suspended power given by MMC for personal and health matters.
The first complaint concerned whether MMH had failed to provide an appropriate level of care arrangements for MMC. The second complaint was whether MMH had verbally abused her mother.
MMC's care plan enables a service provider to attend each day to provide hygiene assistance and in-home respite. There have been ongoing concerns raised by various doctors and service providers about the actions of the carer/daughter MMH. It was reported by the various contacts that MMH is verbally abusive to service providers and doctors.
MMH reportedly changes doctors for her mother when the doctor questions the carer’s behaviours or raises the option of MMC needing to receive more care.
It is confirmed the carer has changed the service provider for MMC on regular occasions or alternatively, the service provider has removed their services. During 2013 RSL HomeCare were the service provider.
The Doctors Townsville wrote to AE the Manager of RSL HomeCare in a letter dated 11 June 2013 in these terms
This lady lives largely alone with her daughter MMH as carer. Her confusion is steadily worsening. MMH is adamant that neither she nor mother is managing, initially she requested respite, and then changed her mind asking for HomeCare to assist with hygiene and house work. She refused the offer of further hours as there was a co-payment. She refuses to contemplate long-term residential care. When advised that she had refused the help she had been offered and refused respite or long-term care, the only other options were herself or some other family member moving in with mum full-time. That was greeted with, “I suppose I'll have to do it all myself”. Now she is asking that someone is provided to get her mother showered as mum refuses to do so herself. I wonder who else will be able to push this issue. Can you please contact MMH, let her know that we have been in touch and see if you can get any more response from her. When last seen she was clearly very emotional and in tears when interviewed and refuses any help from our end.
ED a registered nurse employed RSL HomeCare wrote in a letter dated 20 January 2014 to MMC’s Doctor in these terms:
RSL HomeCare staff visit MMC each weekday after 10:30 hours, to assist her to shower. We have attempted many times to introduce more care but MMH, daughter, continues to decline our offers. Often MMH appears VERY stressed with caring for her mother and up until recently has refused to discuss any increase in assistance, respite or permanently placing MMC in a Nursing Home…
ED a registered nurse employed RSL HomeCare again in a letter dated 26 March 2014 wrote to MMC’s Doctor in these terms:
RSL HomeCare staff visit MMC each weekday after 10:30 hours, to assist her to shower. We have attempted many times to introduce more care but MMH, daughter, continues to decline in our offers Often MMH appears VERY stressed with caring for her mother and until recently has refused to discuss any increases and assistance, respite or permanently placing MMC in a nursing home…
Today MMH rang VERY stressed and in tears wanting something done NOW about putting mum into respite somewhere to give her a break as she can't cope any more. She told me MMC is unable to be left on her own; she cannot cook, make herself a cup and gets nasty with MMH advised that MMC left hot water on recently and also the stove. I have contacted the ACAT Team to ask them if they would be able to fast track their assessment as this needs to be attended before anyone can go into respite or permanent care.
I visit for regular reviews of care and monitoring of the home situation. All staff who visit the home remain very concerned for MMC's welfare (as well as MMH's stress levels) and continues to monitor the situation and report back to nursing staff. She has banned a number of staff from returning to the home for various reasons …
AE the Manager of RSL HomeCare In a letter dated 5 May 2014 wrote to MMC’s Doctor in these terms:
We were alerted today by a member of the community about a possible episode of elder abuse…. Although distressing for those who witnessed the incident it seems to be part of ongoing issues with MMC and her daughter. We have tried to have ACAT and the QPCS Social Worker involved with no success. As MMC has services provided by DVA Community Nursing, we have notified DVA and there is a DVA Social Worker who may be able to help.
The RSL HomeCare Issue Brief contains the following information:
Claim of elder abuse from a Sister HB… regarding an incident that happened at Heather’s Hairdressers in Hooper Street on Friday 2 May 2014. She advised me that she and a couple of other nuns were there to get their hair cut and RSL HomeCare personal caseworker brought MMC in for? Colour and set. Hairdresser spoke to MMC and advised her that she would not do a colour but only wash and set as she had recently had a surgical excision done on her head. She said that MMC seemed quite lucid and was happy with this outcome. Daughter MMH came in pyjamas and began yelling and swearing at the hairdresser. She allegedly grabbed MMC harshly by the arm trying to drag her mother out of there. MMC resisted and said to MMH to leave her alone as she was okay and to stop. Sister HB then said she stood up and said to MMH her abuse was not appropriate and to stop and to leave. She then advised me that MMC said to her that MMH does that to her often and is rough to her and often yells and was abusive towards her. People in the hairdressers consoled MMC whilst MMH stormed out yelling and swearing as she went back to her house…
On 30 October 2014 DS from Ozcare sent an e-mail to PM contained the following information:
HA, MMH's contact at VHC is in regular contact with us regarding complaints from MMH regarding Ozcare staff. Usually it results in our receiving a call from MMH; MMH becomes abusive and hangs up. She often phones back with the result that she requests another Ozcare staff member not to be sent to care for her mother…
On several occasions, it has been MMC herself who opens the door and the care worker has started to care for MMC only for MMH to come out and become abusive due to them letting themselves in. She did not accept that her mother has opened the door, even when it was confirmed by office staff who heard MMC talking over the staff member’s mobile.
The rules around access to the house are always changing. Initially, they were to ring the front door bell, if MMH does not answer to go around the back and knock on the door, if still no answer, they are to open the laundry door beside the back door and get the key which is just inside the door on the shelf. Due to the fact that MMH becomes abusive when she finds staff in the house when she has not let them in, we have not allowed our staff to do this.
PM was of the view that MMH's actions as the primary carer and attorney were failing to protect the adult’s interests as required under section 34 of the Public Guardian Act 2014 (Qld). MMH's actions with service providers and providing care has for a considerable time jeopardised the service provider’s support which is vital for the adult’s ability to remain in her home of 60 years.

The Public Guardian provided a Guardianship Report. In the Report it is noted that:
Ms MMH has a history of failing to provide an appropriate level of care arrangements for MMC to ensure her care needs are safely maintained. Further, that Ms MMH was refusing the assistance of services to ensure that her mother's care needs were being met. It was reported that there had been numerous service providers that have attempted to provide in home [services] to MMC, but due to conflict with Ms MMH, services have withdrawn.
EB reported that Ozcare had experienced some issues with the provision of personal hygiene services within the home due to conflict with MMH.
The Public Guardian recommended the appointment of a Guardian for decisions in the areas of health care, service provision and accommodation.

MMH

MMH in her letter of 5 February 2015 states that:
I have lost all faith in service providers and doctors… I have lost all trust in them... I find that the services were not helping me.
In response to the allegation of failing to provide adequate care and support for her mother she states:
I have been pushed to the limit. I do not want my mother to go into a nursing home.
In relation to the allegation of verbal abuse at the hairdressers MMH says that she was “upset due to a hairdresser” not acting in an appropriate way towards her mother. MMH says that she was “attacked by the hairdresser verbally and told I don't look after my mother”. MMH says, “I never swore at all.”
MMH did however acknowledge at the hearing that she had verbally abused her mother. She offered up what she claimed were extenuating circumstances. She has been diagnosed with cervical cancer and has been undertaking chemotherapy. She explained that she was stressed by looking after her mother without adequate service support. She claimed to have had only 3.5 hours respite service since she moved in with her mother on a full-time basis.
MMH told the Tribunal that she was opposed to her mother going into a nursing home that this would have a negative effect on her mother’s well-being. She stated that service providers had not understood her mother’s needs. She denied that she was not able to work with service providers and claimed to have the full support of her family.

Conduct of MMH during the hearing

The Tribunal had the opportunity to observe MMH's conduct during the course of the hearing. What the Tribunal observed during parts of the hearing was histrionic and emotional behaviour. This included a threat to self-harm if the Tribunal did not make a decision in her favour.
This behaviour is consistent with the evidence of ED and others and supports the contentions of the Public Guardian that when faced with situations not to her liking MMH reacts emotionally in a way that clouds her judgement.
The Tribunal notes that her behaviour was in front of her mother and could very easily have been very upsetting to her mother.
The Tribunal considered this behaviour in assessing who was the most appropriate to make personal decisions for MMC. The behaviour of MMH bore out the concerns expressed by service providers.

Discussion of the evidence

The Tribunal has every sympathy for the plight of family members taking up the responsibility for caring for their aging parents.
The Tribunal however accepts the evidence of the Public Guardian’s Senior Investigator in relation to these allegations. The allegations are corroborated by the evidence of the service providers, a member of the public and by the daughter/attorney herself.
Whilst the Tribunal accepts that MMH was under significant stressors at the time, the Tribunal cannot condone the actions of the attorney in these circumstances.
The Tribunal accepts the evidence of the service providers and the doctors that MMH has refused over an extended period of time to accept further services for her mother that are available to assist with her care. This is a case where there were available services and the adult did have the financial resources.
The Tribunal accepts that MMH has dedicated the last three years of her life to the care of her mother and that she is regretful of having abused her mother. The statements of witnesses attest to her general character and willingness to support her mother.
The Tribunal is however satisfied in these circumstances that it is more appropriate to appoint an independent Guardian to ensure that MMC receives an appropriate level of care arrangements to ensure that her care needs are appropriately met.
The Tribunal is also of the view given the allegations of abuse that MMC is best protected by having an independent Guardian who can work with the assistance of MMH; MMC’s medical team; and the service providers to ensure MMC's well-being.
The Tribunal is of the view that this should enable the acceptance of extra support hours and services.
The responsibility for caring for her mother with limited supports has clearly been stressful for MMH. The appointment of an independent Guardian will enable the consideration of respite services.
The Tribunal believes that the obvious areas where there is a need for personal decision-making are around accommodation, health care, and provision of services.
There are a range of factors that will need to be taken into account as to where MMC lives. The appointment of an independent Guardian will ensure that MMH and MTM and MMC’s medical/health providers all have input so that the best decision for MMC can be made. Clearly if MMC is to remain in home, extra services need to be provided. There also needs to be a constructive engagement between the service providers and MMH otherwise service provision will break down which is clearly not in her mother's best interests.
The Tribunal is of the view that a short appointment of one year is appropriate so that the arrangements can be reviewed and the parties given an opportunity to provide their input at a new hearing.
The Tribunal appoints the Public Guardian for one year in relation to the following matters: health care, provision of services, and accommodation.

Are there any concerns about the management of MMC's finances?

The Public Guardian

PM told the Tribunal that there were no financial concerns that arose with the referral. However, it is the practice of the Public Guardian in these matters to review the management of the adult’s financial arrangements. A title search identified a reverse mortgage had been taken on MMC's property in 2011.
The Public Guardian is not in a position to go behind that transaction, as it does not have the evidence to establish that MMC did not have the capacity to enter into the arrangement. The concern of the PM was that he was not able to determine where the $77,000 of the funds provided had gone. The attorneys provided conflicting accounts of where the money had been spent. This was of concern to the Public Guardian.
The second issue was that the DVA records note a $5000 loan to MMH and a $10,000 loan to B and N G. The Public Guardian had requested a response from the attorneys but this was not forthcoming until after the investigation report had been completed.

The third issue for the Public Guardian was that MMC receives a War Widow’s pension of $1100 per fortnight. These funds come in and out of MMC's account every fortnight and there is a clear lack of clarity as to how these funds are being used. There is absolutely no accountability for the use of these funds.
The Public Guardian is of the view for these reasons that the appointment of an independent administrator is needed.

MMH

MMH told the Tribunal that she did not agree with the findings of the Public Guardian. She was of the view that it had no right to investigate the financial matters. She confirmed that she has not kept receipts however believes that she is managing her mother's finances appropriately.
MMH told the Tribunal that the reverse mortgage had been prepared in 2011 by Connolly's Suthers Lawyers at a time when her mother was of sound mind. She told the Tribunal that she sent statements to PM the investigator and that his office seems to have lost them. She told the Tribunal that she has set up direct debits to pay for telephone, electricity, rates and insurances. She indicated that all her family were happy with what she was doing. She buys the groceries, makes sure her mother's hair is done and gets her mother's medication. She was very upset by the allegations saying that her father was a well-known accountant. Her father has taught her how to manage money.
MMH has given up her career and put her life on hold to provide the best HomeCare that she is capable of for her mother. This has been a difficult period for her as she has had difficulties working with the services that have provided support for her mother.
When asked by the Tribunal about the lack of transparency MMH indicated to the Tribunal that she would accept the appointment as administrator and account to the Tribunal rather than the Tribunal appointing an independent administrator.

MTM

She told the Tribunal that she supported her sister’s management of their mother’s finances.
The “B & M G” loan noted with DVA relates to her previous mortgage when married from approximately 1989. She told the Tribunal that she and her then husband built a house and had a mortgage around $30,000. Her father paid out the loan and advised DVA of this. MTM stated that the DVA saw this for pension purposes as an asset of her father even though it was a gift from her father. She continued to repay the loan back to her parents to assist with the DVA situation. MTM confirmed that there was no paperwork maintained about repaying the loan/gift to her father.
MTM stated that it was the intention of her mother to use the funds from the reverse mortgage for everyday living. She stated that she struck hard times medically with her daughter and in general, discussions with her mother MMC told her to use the funds to help the situation. MTM advised that she could not recall how much of the funds were used by her.
MTM considers that there is no need for the Public Trustee to be appointed.
MTM confirmed that she did not wish to be appointed on a formal basis if the Tribunal was going to override the enduring power of attorney. She is too far from the Townsville and supports her sister’s appointment as administrator.

Discussion of the evidence

The Tribunal expressed some concern at the hearing in relation to the practice of one solicitor in a firm providing a capacity assessment for a reverse mortgage when another solicitor in the same firm is acting in relation to that transaction. This is not independent advice and not a good practice. The Tribunal does not intend to make any comment about the veracity of MMC's capacity at the time, as there is insufficient evidence before the Tribunal to make any such a determination. The Tribunal is however concerned those attorneys did not have a very good understanding of their obligations to keep account of their actions as attorneys. There are no records showing how the funds from the reverse mortgage were disbursed apart from the fact that the existing mortgage of $23,000 was paid out.
The Public Guardian is entitled to ask how these funds have been disbursed and the attorneys should be able to demonstrate clearly how the funds were used. Where there are conflicting accounts from the attorneys as to how the funds have been disbursed this raises a concern because no proper record keeping has been undertaken.
MTM provided an explanation in relation to loans the Tribunal was prepared to understand and accept. The issue for the Public Guardian and for the Tribunal was the fact the investigator had to obtain information from other sources. The Tribunal accepts the evidence of the Public Guardian that it was necessary for it to conduct searches and make enquiries to obtain information independently.
The final issue is in relation to the transparency of the management of MMC's finances. The Tribunal is prepared to give MMH an opportunity to demonstrate that she has the skills and is able to provide a level of transparency and accountability for the management of her mother's finances.
The Tribunal is of the view that it is appropriate to give MMH this opportunity to demonstrate her abilities in a transparent manner.
The Tribunal notes that MTM did not seek appointment as administrator.
The Tribunal proposes making a short appointment of one year to enable a review to take place and the parties to provide their feedback and a hearing.