MMK
[2014] QCAT 269
•24 April 2014
| CITATION: | MMK [2014] QCAT 269 |
| PARTIES: | MMK |
| APPLICATION NUMBER: | GAA25358-14; GAA25359-14; GAA2360-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 April 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 24 April 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The following Enduring Powers of Attorney for MMK are declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of Attorney dated 6 March 2014 appointing JC,WK and GK as attorneys for financial, personal and health matters. (b) The Enduring Power of Attorney dated 8 March 2014 appointing WK and GK as attorneys for financial, personal and health matters. 2. The following Enduring Powers of Attorney for MMK are overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 29 November 2012 appointing JC and CH as attorneys for financial, personal and health matters. 3. The Adult Guardian is appointed as guardian for MMK for decisions about the following personal matters: (a) With whom MMK has contact and/or visits; (b) Health care. 4. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 2 years. 5. The Public Trustee of Queensland is appointed as administrator for MMK for all financial matters. 6. The Tribunal dispenses with the requirement 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 2 years. |
| CATCHWORDS: | Capacity to execute later enduring power of attorney – need for the appointment of guardian or administrator – family conflict Powers of Attorney Act 1998 (Qld) s 113, Schedule 1 |
APPEARANCES and REPRESENTATION (if any):
JC, CH,GK, WK, SF
REASONS FOR DECISION
Background
MMK had executed an enduring CH to act on her behalf in the event she lost capacity in personal, health and financial matters. The nursing home where MMK had been acting under this instrument until they were presented with a later enduring power of attorney signed by MMK appointing her daughter JC, and two sons, GK and WK to make decisions by majority, and then two days later, when JC refused to accept the appointment or the validity of the revocation of the Enduring Power of Attorney of 29 November 2012 a further enduring power of attorney dated 8 March 2014. This document purported to appoint only her sons WK and GK for personal, health and financial decisions.
The Operations Manager of the Nursing home brought the application to the Tribunal proposing the appointment of the Public Trust and Adult Guardian as substitute decision makers for the adult in financial and personal matters. Their application raised concerns that the adult had been significantly distressed by the disharmony amongst the siblings and was being actively involved in the dispute by all the children, leading to substantial distress and resultant self harming behaviours. It also raised concern that GK had threatened that payment would be cancelled and the adult would be removed from care. They were aware that GK had approached the real estate agent responsible for the sale of MMK’s property to take her house off the market affecting her ability to pay her accommodation bond and nursing home fees.
Application for Orders about an Enduring Power of Attorney
Validity of the 6 March 2014 and 8 March 2014 documents
There is undoubtedly conflicting medical evidence as to MMK’s capacity to execute any documentation on 6 March 2014 and 8 March 2014.
The witness, JF, was confusingly described by WK as Dr Butt (the adult’s former General Practitioner)’s lawyer.
JF provided a written statement to the Tribunal which indicated that she attended at the nursing facility to take instructions as requested to revoke the Enduring Power of Attorney of 29 March 2013, and was instructed that CH, lived in America and could not actively participate in the role.
She relied upon the discharge summary arising from MMK’s hospitalisation in November 2013. This indicated that extensive medical and OT testing deemed MMK to have capacity to make her own decisions.
She indicated that MMK read aloud the statement of understanding and confirmed her agreement. It is not apparent that JF questioned MMK about the nature and extent of powers she was granting. She simply obtained agreement that she understood. In light of the medical evidence which suggests that MMK is vulnerable to influence, the Tribunal does not consider that this was a satisfactory approach to ascertaining whether the adult had capacity to understand the nature and effect of that document.
When a subsequent request for a revised document came forward, to satisfy herself of MMK’s capacity, JF indicated that she facilitated Dr Butt’s attendance with the adult’s consent to test capacity on 8 March 2014. A mini mental state examination was undertaken by Dr Butt returning a score of 28/30 which suggests no significant impairment. Dr Butt provided open correspondence dated 1 April 2014 which stated that although MMK had a mild cognitive decline, she had no doubt that she had full understanding of the nature and effect of the documentation that she signed.
SF from the nursing facility provided evidence to the Tribunal that GK attended every morning in the week prior to 6 March 2014, and staff observed him to have frequent discussions with MMK about signing the document. She described GK as having “groomed” MMK into signing the document. She stated that MMK was easy to tutor given she is easily influenced by GK.
A health professional report by Linda Jongeling the Director of Nursing at the facility where the adult resides, and Registered Nurse, dated 7 March 2014 notes that MMK has a moderate cognitive impairment according to the PAS scale used to assess her capacity. She is described as having memory loss and frontal lobe lesions. She considered that MMK could not understand the nature and effect of an Enduring Power of Attorney. She noted that MMK was vulnerable to influence. SF indicated that the MMK’s PAS assessment was conducted in December 2013, however was consistently representative of her presentation such that there has been no need for further testing.
Dr Brown provided an open letter dated 5 November 2013 stating that MMK does not have the capacity to make decisions regarding her health and finances. According to the evidence of JC, this caused MMK a significant reaction in November 2013 when she was presented with a copy of this letter. A hospital admission occurred as a result of this incident. It is clear from the discharge summary that by the end of November her capacity had been clearly determined by extensive testing.
Dr Khateeb by way of geriatric assessment on 21 December 2013 indicated a diagnosis of probable mixed /vascular dementia, noting she was functionally high care.
The ACAT assessment of 6 November 2013 conducted by Sharon Tonkin notes a cerebral infarction left frontal lobe lesion, with regular short and long term memory problems. Reduced orientation to place and reduced insight into care needs was noted. MMK was unsure of the names of her children and needed confirmation from her daughters. During the ACAT assessment, Ms Tonkin noted that MMK displayed impaired cognition, reduced insight into her care needs and reluctance to access services to ensure safety, assessing her as a high care level of need.
It is important to note that Dr Butt had not been the adult’s treating practitioner since November 2013. Unlike Linda De Jongeling, she did not have day to day observation of MMK, nor information that MMK had been actively influenced or groomed into signing the document. Further the oral evidence of JC and CH was that there was Dr Butt was obstructive to their involvement as attorneys and unlikely to be impartial.
The Tribunal gives greater weight to the evidence of Ms De Jongeling, and the ACAT assessment.
WK and GK indicated that it was in the context of concerns that MMK’s house would be sold that the earlier document was revoked. WK indicated that there had been discussions with his mother about this and she had requested that the three of the Australian based children act together in making decisions, and therefore instructed the revocation of the Enduring Power of Attorney of 29 November 2012, and the execution of the 6 March 2013.
GK indicated that he had organised for JF’s attendance at the facility.
WK stated that he could not recall the conversation when his mother approached him asking him to become her enduring power of attorney. He told the Tribunal it had been difficult to recall because it was so long ago. The Tribunal does not accept that three or four weeks is a significant time to cloud WK’s memory of this discussion of such a significant issue. GK also had no recollection of the content of discussions with MMK on this issue.
Given all the evidence the Tribunal concludes that the adult has not freely and voluntarily made the decision to make the revocation and enduring power of attorney of 6 March 2014, nor the revocation and Enduring Power of Attorney of 8 March 2014, and lacks the capacity to execute these documents. Pursuant to s 113 of the Powers of Attorney Act 1998, these documents are declared invalid on the basis the adult lacked the capacity to execute them.
Application for Appointment of Guardian and Administrator
The application proposed the appointment of independent guardian and administrator. The applicant submitted that decision making should be taken away from all the children as disputes are ongoing and impacting negatively on MMK.
The Enduring Power of Attorney of 29 November 2012 is a valid document, and the Tribunal must consider the decisions makers application of the general principles contained in the Powers of Attorney Act 1998 given this allegation.
Section 12 of the Guardianship and Administration Act 2000 requires the Tribunal to be satisfied before making an appointment of a guardian or administrator that
i) The adult has impaired capacity for the matter;
ii) That there is a need for a decision in relation to a matter, or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property; and
iii) without an appointment the adults needs will not be adequately met or interests adequately protected.
The Tribunal must consider the appropriateness of the proposed attorneys.
The evidence and conclusions outlined at paragraphs clearly indicates the Adult currently has impaired capacity for personal health and financial decisions.
Need for an Appointment of a Guardian
The evidence before the Tribunal indicates there are issues pertaining to the need for contact and health decisions.
Principle 8 of the Power of Attorney Act 1998 outlined at Schedule 1 of that Act requires attorneys to maintain the adult’s existing supportive relationships.
GK indicated that he held objection to the Attorneys (appointed under the 29 November 2012 document) decision to restrict his contact with his mother. In particular, he wanted to be able to take her outside the facility for lunch or other visits. He wanted her to be able to use her mobile to contact him. He had been living with the adult intermittently over an 8 year period but was unable given terms of a domestic violence order to attend the premises to remove his possessions.
JC brought the application for the domestic violence order and sought to name MMK as a named party to the order. GK must be of good behaviour and not commit domestic violence. She indicated it was necessary to protect MMK from GK’s attempts to influence her and sign documents to benefit himself. She advised the Tribunal that GK had taken funds from his mother’s bank account. GK did not dispute this but argued he used his mothers account as a loan and repaid the funds he borrowed. The Tribunal notes repayment occurred after family members became aware of this issue.
JC claims that GK has threatened to kill her on more than one occasion.
SF from the nursing facility stated that the nursing staff observed an increase in MMK’s anxiety during GK’s presence and after his departure. She also noted attempts by GK to influence MMK to sign documents.
It was acknowledged by GK and in correspondence from JC and was undisputed at the hearing that GK is MMK's favoured child. JC has brought the application for the domestic violence order, and uses her judgement to restrict contact with GK.
At the hearing she indicated that she was had no problems with GK seeing MMK and was open to discuss whether he could take her out of the nursing home. She thought she could work with him in relation to health decisions in preference to the appointment of the Adult Guardian.
While the Tribunal makes no findings as to the appropriateness of these actions at the time, the Tribunal considers that there is a conflict of interest in the decision to restrict contact and name MMK within the protection Order. This decision is best made by an independent decision maker who is not the aggrieved in a Domestic Violence Protection Order naming GK as respondent. The Tribunal funds there is a need for decisions about contact and without an appointment the adult’s interests will not be protected. The Enduring Power of Attorney is overtaken in relating to contact decisions.
Health decisions are an aspect of the appointment under the current document. The conflict between the siblings is intractable and extensive. I am advised by all parties that communication between GK and JC is troubled. JC indicates that her phone calls are often not returned. The Tribunal is not satisfied that the attorneys are able to freely consult with all family members given the extensive and high level of conflict. In these circumstances it is more appropriate that an independent decision maker make decisions about health. The Adult Guardian is obliged to consult with all relevant parties, and will therefore independently canvass the views of each of MMK’s children in relation to major health decisions. The Tribunal funds a need for health decisions and without an appointment the adult’s interests will not be protected. The Enduring Power of Attorney of 29 November 2012 is overtaken for health decisions by the Appointment of the Adult Guardian for this area of decision making.
Need for an Administrator
SF advised the Tribunal that each of the adult’s children had been observed with MMK discussing issues around selling the house, and the actions of the other siblings in a way which caused MMK significant anxiety. MMK had been told that JC was in jail. Staff from the nursing home have witnessed MMK becoming very distressed following these interactions, to the point she has harmed herself.
GK and WK indicated that they had held objections to the sale of the property and were not aware of the nursing home bond prior to the hearing. WK indicated that they had approached the agent to remove the property from the market, but that it is now currently under contract and due to settle on 14 April 2014, but they are no longer acting to prevent the sale of the house.
There has been significant discord about the sale of the house. The clear evidence from JC and SF is that the adult’s has a significant deficit in being able to meet her fortnightly nursing home fees from her current income. The proceeds of the sale of the house will need to be drawn upon to pay the nursing home bond of $280,000, plus the interest accumulated, as well as the gap in nursing home fees. This has been a source of significant conflict amongst the siblings. JC and CH have informed MMK of the details of the dispute with GK and WK, and I am informed by SF that this occurs much to the adult’s distress. Similarly, GK and WK have involved MMK in the dispute with resultant distress.
There is intractable and high level conflict between the siblings. JC and CH have been observed to expose MMK to distressing discussions about the dealings around the house and the enduring powers of attorney with the resultant distress for the adult. The Tribunal considers that decisions have been made in a process which is not appropriate to the adults circumstances and inconsistent with General Principle 10 of the Powers of Attorney Act 1998 (Qld). In accordance with section 76 of this Act, the attorney must apply the General Principles of the Act. The Tribunal therefore considers there is a need for the appointment of an administrator and without an appointment the adult’s needs will not be adequately protected.
Each of MMK’s children considered that their mother would not like state involvement in her affairs. They each objected to the involvement of an independent decision maker. However given the extent of the conflict and existence of domestic violence orders, the Tribunal is of the view that there is no alternative to the appointment of the Adult Guardian for personal decisions limited to contact and heath, and the Public Trustee for decisions regarding all financial affairs.
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