MRX & MSX - [2024] QCAT 345

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MRX & MSX [2024] QCAT 345

PARTIES:

In applications about matters concerning MRX & MSX

APPLICATION NOS:

For MRX: GAA13208-23, GAA14925-23, GAA4179-24, GAA4180-24, & GAA5364-24.
For MSX: GAA13215-23, GAA14927-23, GAA4183-24, GAA4185-24 & GAA4954-24.

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 August 2024

HEARING DATE:

12 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski & Acting Member D Brown

ORDERS:

In each case, the decision of the tribunal is:

1.     The applications for the appointment of an administrator and the applications for the appointment of a guardian are dismissed.

2.     The tribunal directs each attorney under the enduring power of attorney made by [MRX/MSX] on 22 December 2020:

(a)     no decision may be made by attorneys unless there has first been consultation with all attorneys;

(b)     consultation is to consist of informing the other attorneys of the proposed decision and the reasons for the proposed decision; inviting responses from the other attorneys; and considering any responses given;

(c)     except in the case of an urgent health care decision, each attorney must be allowed at least 24 hours to respond to any request for agreement to a proposed decision;

(d)     each attorney must disclose relevant information in their possession to another attorney upon request or if required for proper consultation; and

(e)     each attorney must not impede the disclosure of relevant information by a third party to another attorney.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where insufficient consultation between attorneys – whether administrator should be appointed

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where insufficient consultation between attorneys – whether guardian should be appointed

Guardianship and Administration Act 2000 (Qld), s 12

Powers of Attorney Act 1998 (Qld), s 6C, s 6D, s 79, s 81

APPEARANCES & REPRESENTATION:

B, C, D and E attended in person. Ms A Anderson for the Public Guardian attended by telephone.

REASONS FOR DECISION

Introduction

These proceedings concern an elderly man (‘MRX’) and an elderly woman (‘MSX’). They have been married for many years and are now in their nineties. They both have dementia, which is more progressed in MSX than MRX. They live together in an aged care facility. They have four children: a daughter (‘B’), a son (‘C’) and twin daughters (‘D’ and ‘E’).
In December 2020, MRX and MSX each made an enduring power of attorney for personal (including health) matters and financial matters. In each case, the spouse was appointed as attorney initially, with B, C and D being the successive attorneys in the event that the spouse could no longer act. Decisions by B, C and D were to be by two-thirds majority. The enduring documents permit conflict transactions.
It is not in dispute that MRX and MSX have lost decision-making capacity, and that decisions are being made for them by the successive attorneys. That has been the case since part way through 2022.
The cases before the tribunal involving MRX and MSX involve identical applications and issues. Accordingly, the applications were heard together. In each case:
(a)B applies for the appointment of an administrator, proposing that the Public Trustee of Queensland be appointed;
(b)B applies for the appointment of a guardian, proposing that the Public Guardian be appointed;
(c)E applies for the appointment of an administrator, proposing that the Public Trustee of Queensland be appointed; and
(d)E applies for the appointment of a guardian, proposing that she be appointed, either alone or together with her siblings.
If such appointments were made, the powers of the administrator or guardian would overtake the powers of the attorneys unless the tribunal gave authorisation for the attorneys to act to some extent or other.[1] In each case, there is also a tribunal-initiated application for orders about the enduring power of attorney.
[1]Guardianship and Administration Act 2000 (Qld), s 22(2).
The applications were heard on 12 August 2024. MRX and MSX did not attend. We reserved our decision. We have taken into account a large number of documents that had been filed before the hearing, as well as the oral evidence and submissions made at the hearing. We have not taken into account D’s response document dated 11 August 2024 (document H40 on MRX’s file and document H44 on MSX’s file). D had this document with her at the hearing on 12 August 2024 and asked to hand it up. We declined to accept it, saying that D should tell the tribunal orally anything she wished to convey to it. This would have allowed other parties to respond to any new information. Then on 13 August 2024, D emailed the document to the tribunal’s case manager in the expectation, apparently, that we take it into account. It would be unfair for us to take it into account when other parties have not had the opportunity to read and respond to it, and where D had the opportunity at the hearing to convey orally anything from the document that she wished to convey.

The current circumstances of MRX and MSX

MRX and MSX live in a double room at an aged care facility. They have permanent placements there. Their assets consist of:
(a)a combined refundable accommodation deposit of $475,000;
(b)approximately $338,000 in a joint bank account; and
(c)personal possessions.
A driving service, arranged by C and D and paid for from the joint bank account, takes MRX and MSX out each Wednesday.
MSX’s doctor has recently advised that MSX should move from the present open unit into a secure unit at the same aged care facility. MSX is already subject to ‘chemical restraint’. The doctor considers that moving to a secure unit will avoid the need to increase the chemical restraint. The facility recommends that MSX and MRX move together when a double room becomes available in the secure unit.
Nobody suggests that MRX and MSX should move to a different aged care facility. Although B regards the location of the facility as less than ideal, she accepts that her parents are settled there and should not be moved again at this late stage of their lives.

B’s case

B’s case focusses on section 79 of the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’):
79     Consult with principal’s other appointees or attorneys
(1)     If there are 2 or more persons who are guardian, administrator or attorney for a principal, the persons must consult with one another on a regular basis to ensure the principal’s interests are not prejudiced by a breakdown in communication between them.
Note—
Note the Guardianship and Administration Act 2000, sections 41 (Disagreement about matter other than health matter), 42 (Disagreement about health matter) and 43 (Acting contrary to general principles or health care principles).
(2)     However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.
In our view, section 81 of the Powers of Attorney Act is also relevant:
81     Right of attorney to information
(1)     An attorney has a right to all the information that the principal would have been entitled to if the principal had capacity and that is necessary to make, for the principal, informed decisions about anything the attorney is authorised to do.
(2)     A person who has custody or control of the information must disclose the information to the attorney on request.
(3)     This section overrides—
(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and
(b)for an attorney under an enduring power of attorney—any claim of confidentiality or privilege, including a claim based on legal professional privilege; and
(c)for another attorney—any claim of confidentiality or privilege, excluding a claim based on legal professional privilege.
There is a history of discord in the relationships between B and C and between B and D. It is undisputed that most decisions made by the attorneys have been made by C and D. A notable exception is when the attorneys made unanimous decisions in 2022 about pursuing, and later discontinuing, litigation on behalf of MRX and MSX against E.
B says that generally, however, she is rarely consulted by C and D in advance of decisions being made. More commonly, she says, she is merely notified by C or D after decisions have been made. B says that on occasions when she is consulted in advance, she generally lacks sufficient information to make an informed decision.
The following are two examples related by B which we accept as accurate.
The first is that B asked C and D for the names of her parents’ treating health practitioners, but they did not respond. Later, B incidentally learned that a new general practitioner had been engaged. B contacted that doctor. He said he would need approval by at least one more attorney before he could release information to her, and that had not been forthcoming. However, B is aware that the doctor has met with D, without any other attorneys being present, to discuss the condition of MSX.
The second is that D emailed B in recent months asking for consent for MRX undergoing skin cancer surgery. B responded to D that she would need full health information about MRX before she could decide whether or not to give consent. She received no reply. Some five days later, D informed B that the surgery had been completed.
Another example relates to Advanced Care Planning Statements of Choices for MRX and MSX which were completed by D, in her capacity as attorney, in April 2024. These statements relate to issues such as whether life-prolonging treatments should be used in a medical emergency. D acknowledges that she did not consult with B before she completed and lodged these statements. She says this was because the aged care facility staff pressured her to complete the statements in a hurry. However, D did not suggest that either of her parents was facing a medical emergency at the time. In any event, we note that MRX and MSX had completed advance health directives in 1999. These set out their end-of-life wishes. B believes the statements do not accurately reflect her parents’ long-held wishes. She is upset that she had no opportunity for input.
B says the lack of prior consultation about many decisions, and the limited information provided to her, has severely hampered her ability to perform her role as attorney.
Each of the three attorneys has online access to view the joint bank account of MRX and MSX, although at least two must authorise any transaction. B says she is usually only informed about transactions after the event; not consulted in advance. She has tallied up expenditure – not including items such as aged care fees and pharmacy costs – in the period since October 2022. This is a period when the enduring powers of attorney have been enacted. B says expenditure has included, amongst other things, more than $19,000[2] in cash withdrawals, more than $10,000 on the driving service; more than $9,000 on shopping at supermarkets, haberdashery and similar stores; and more than $3,000 on allied health services. B questions the need for, or the scale of, many of the expenditures, particularly when one bears in mind that for most of the period MRX and MSX have been in aged care with meals provided.
[2]At the hearing, B initially gave a figure of over $24,000, but later corrected this by saying $5,000 of this amount had been withdrawn in July 2022.
B also referred to more than $5,000 of MRX and MSX’s funds spent on legal fees during the same period. This resulted in letters from solicitors engaged by C and D as attorneys. One letter related to the process for an attorney to resign. Another letter was to B responding to queries, though B says it did not answer many of her queries. Another letter was to solicitors for E providing certain requested documents and declining, with reasons, to provide the current whereabouts of MRX and MSX. (We note that since then E has reestablished contact with her parents and visits them).
The discussion above focusses on concerns highlighted by B in the oral hearing. However, we note from documents she had filed that she has had concerns about earlier decisions made by C and D (or at least encouraged by them prior to acting as attorneys). These included the decision in 2021 for MRX and MSX to move into a retirement village. This was a short-lived move because MRX and MSX soon needed full-time care. They lost much of their pensions and they incurred exit fees. Then there were a couple of different aged care placements before the current one. B has also questioned the wisdom of subjecting MRX to painful surgery for skin cancers at his advanced age.
B contends, in effect, that the decision-making arrangements for the attorneys are dysfunctional. The problem can be overcome, she submits, only by appointing independent substitute decision-makers namely the Public Trustee and the Public Guardian. B appreciates that the Public Trustee would charge fees, but considers this worthwhile to ensure that financial decisions are appropriate.
B also says that she avoids visiting her parents when either C or D are, or might be, there, because she finds contact with C and D traumatic. The Public Guardian could set up a contact schedule so that she could visit without fear of encountering C or D.
B told the tribunal that if no administrator or guardian is appointed, she is willing to continue as attorney if she has a real opportunity to properly carry out the role.

E’s case

E submits that squabbling between B and the other attorneys, particularly about finances, is entrenched and intractable. It upsets their father, and his agitation in turn distresses their mother. The tension and disagreements between the attorneys reflect long-standing underlying conflicts.
E submits that the best outcome would be for the tribunal to appoint the Public Trustee as administrator to manage the finances, and for the tribunal to appoint her as guardian to make personal decisions. E has no objection to her siblings also being appointed as guardians. It would be a good thing, she says, for all family members to be involved.

Position of C and D

C and D say the attorney arrangements serve MRX and MSX well. Communication with B is difficult, they say, because her manner is disrespectful and rude. B advised in January 2023 that she no longer wanted to engage in the decision making for their parents and then went overseas for several months and was uncontactable. Nonetheless, they make decisions by majority that promote their parents’ welfare, they say, such as engaging the driving service. C and D say their parents can afford the driving service and it enables them to pursue interests outside the aged care facility.
C and D did not have advance notice of the figures cited by B in the hearing, so they were not in a position to give exact responses. However, they say that they do provide cash to MRX in accordance with his wishes, for him and MSX to use for purchasing coffee, alcohol, meals out, and various other items. C and D say they keep records of cash provided. They also say that they still have approximately $7,000 of the cash, which has not yet been passed on to MRX. This includes a recent large withdrawal which they made so that they could continue to pay for the driving service if the Public Trustee is appointed and discontinues payment. They contend that expenditure has been reasonable, and their parents have not needed to be frugal.
In relation to the earlier decisions about accommodation which were criticised by B in her written material, C and D filed written responses which explained and defended the decisions made. Essentially, their position is that they made decisions which were reasonable with the information they had at the time, and they had to deal with unexpected difficulties.
C and D say that consultation with B can improve if B adopts a more conciliatory and respectful manner of communication. The services of the Public Trustee would come at a substantial cost. Further, there is a risk that the Public Trustee would cut back on services and expenditure that MRX and MSX value. Further, according to C and D, the involvement of the Public Guardian would be unnecessary. MRX and MSX are settled and cared for in the aged care facility. They point out that E can engage with their parents without becoming a guardian.

Public Guardian’s position

Ms Anderson submits that the level of conflict between attorneys is such that they cannot work together. The tribunal should consider appointing independent substitute decision-makers. Ms Anderson notes, though, that as MRX and MSX are very elderly, and settled in an aged care facility, there are relatively few decisions that will need to be made in the future.

Findings

While we are not in a position to conduct a full audit of the decision-making over the last few years, it is apparent that there has been a failure by C and D to fully consult B before making many decisions. The failure to consult about the statements of choices is a recent obvious example, but we also accept B’s evidence that on many occasions she has been informed of decisions only after the event. That of course is not adequate consultation. Consultation involves seeking the views of fellow attorneys, and, if views are provided, taking them into account before making a decision. That is not to say that an attorney must agree with the views of another attorney, or give effect to views they do not agree with. However, genuine consultation is required. It is not optional. It is a statutory requirement.
In fairness to C and D, we acknowledge that there was a period of several months in 2023 when B had advised she would be overseas and not available for communication. Also, in October 2023 B applied to the tribunal for leave to resign as attorney for each of her parents. Later, she sought the tribunal’s leave to withdraw those applications, and leave was granted in December 2023. The making of the applications for leave to withdraw did not remove the requirement for C and D to consult with B, but it may have given them an impression for a time that B was not wanting to be involved in decision-making.
C and D say that communication with B has been very difficult because she is inclined to be discourteous in the emails she sends. Courtesy is, of course, highly desirable. It is true that several of B’s emails could have been more courteous, but courtesy is not a statutory requirement. The fact that C and D find B difficult to communicate with does not relieve them of the obligation to consult.
It is relevant to note that in November 2023 B suggested to C and D that they all participate in mediation. That was a very sensible suggestion. Unfortunately, however, C and D treated it with suspicion and did not take it up.
We also accept B’s contention that she has had inadequate access to information. She is entitled to relevant information from third parties, such as the doctor, without the need for approval from one or more fellow attorneys. She is also entitled to information in the possession of her fellow attorneys if the information is relevant to any decision to be made. We accept B’s evidence that C and D did not reply to her request for the names of their parents’ health practitioners. We consider that would have been relevant information for B in carrying out her role as attorney for health decisions.
Apart from the decision-making process, it is relevant for us to make some evaluation of the quality of decisions that have been made by the attorneys. If there has been an ongoing pattern of obviously unreasonable decision-making, which would likely persist even with proper consultation and information sharing, there would be a stronger case for overtaking the powers of the attorneys by appointing an administrator and a guardian.

Evaluating the decision-making record of attorneys is often not a straightforward task. Attorneys are required to apply general principles and health care principles set out in the Powers of Attorney Act.[3] The principles are wide-ranging. They require, for example, respecting the rights of the principal, safeguarding the interests of the principal, encouraging the principal to take part in activities enjoyed by the community, acknowledging the importance of the principal’s existing supportive relationships, considering the benefits and burdens of proposed health care, and taking into account, where possible, the views, wishes and preferences of the principal. Applying the general and health care principles requires judgment and balancing. Reasonable minds can differ. Attorneys required to make decisions on the same facts, and each having regard to the general principles, may reasonably arrive at different decisions in many instances. This was, in effect, recognised by MRX and MSX when they made their enduring documents. They made provision for decisions by two-thirds majority.
[3]At sections 6C and 6D.
Accordingly, it is not possible for us to say whether decisions made by the attorneys have been ‘correct’ or not. Rather, we must form an impression about whether the attorneys appear to have applied the general principles and the health care principles.
Overall, our impression is that the decisions have been in accordance with the relevant principles, notwithstanding that different decisions might also have been made by B had she been sole attorney and applied the same principles. There have been several accommodation changes in a relatively short time, and different decisions probably would have been made with the benefit of hindsight, but we regard as reasonable the explanations given by C and D for why the decisions were made. Whether C and D needed to engage lawyers is debateable, but in view of the heated conflict that developed it is not terribly surprising or remarkable that they did. There has been relatively high expenditure on discretionary purchases, but that is not inherently at odds with the general principles in the case of persons with means and a relatively short life expectancy. Of course, a more frugal approach might also be in accordance with the general principles, for example if it was the long-held wish of a principal to leave a large estate when they die. Similarly, accepting or declining treatment for skin cancer in an elderly person might both be reasonable options. Reasonable minds could also differ on whether to engage a driving service. And so on.

Outcome

The tribunal should not lightly replace decision-making arrangements under an enduring power of attorney by appointing an administrator and/or a guardian. This is because the general principles emphasise the importance of respecting the preference of the principal. The wishes of MRX and MSX, before they lost capacity, were that if they lost capacity, three of their children make decisions for them as attorneys, by majority. They must have anticipated that there might not always be unanimity.
As we have mentioned, there is a statutory obligation upon each attorney to consult with fellow attorneys. Further, each attorney has a statutory right to obtain relevant information. These requirements have not been consistently observed by C and D. It appears they came to regard the requirement for consultation as optional, and they may not have understood that the right to information was not subject to two-thirds approval.
The most appropriate course, in our view, is to leave the enduring powers of attorney undisturbed, but to make directions about consultation and information sharing intended to improve the decision-making process.
We could appoint an administrator or a guardian for MRX or MSX only if satisfied that, without the appointment, their needs would not be adequately met or their interests would not be adequately protected.[4] We are not so satisfied. We consider that their needs have been adequately met and their interests have been adequately protected by the decisions of the attorneys, and that this is likely to continue to be the case. However, the decision-making process has not consistently been compliant with statutory requirements relating to consultation and information sharing. It is important that it is compliant in the future.
[4]Guardianship and Administration Act 2000 (Qld), s 12(1)(c).
We are not persuaded that a guardian should be appointed for the purpose of setting up a visiting schedule. While that might be convenient, it goes more to the alleviation of distress for B than meeting the needs and interests of MRX and MSX. B acknowledged at the hearing that she had not proposed to C and D that they agree between themselves to a visiting schedule. This should be attempted before any conclusion might be reached that the relationship between B and her parents cannot be maintained without the appointment of a guardian.

Conclusion

Accordingly, we dismiss the applications for the appointments of a guardian and an administrator. We make directions aimed at improving the attorneys’ decision-making process.
We also suggest to the attorneys that they seriously consider engaging in a mediation process, as has been suggested by B. Mediation would help to improve their communication. It would encourage a focus on common interests and respect for differences of opinion. It could have a flow-on effect of reducing upset in MRX and MSX over conflict between their children.