MSBK
[2015] QCAT 352
•24 August 2015
| CITATION: | MSBK [2015] QCAT 352 |
| PARTIES: | MSBK |
| APPLICATION NUMBER: | GAA5890-15; GAA5891-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 18 August 2015 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 24 August 2015 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. MSBK does not have capacity for personal and financial matters. 2. The application by ATM for an order about an enduring power of attorney is dismissed. | ||
| CATCHWORDS: | CAPACITY – where the tribunal is asked to determine whether an adult currently has decision-making capacity – where there are suggestions that a person with impaired decision making capacity did sign a revocation of a power of attorney and fresh power of attorney when he had no capacity to understand the nature and effect of the documentation Guardianship and Administration Act 2000 (Qld) schedule 4 Powers of Attorney Act1998 ss 47(1), 109A, 113, 116 | ||
APPEARANCES:
Adult: MSBK
Adult’s daughter/attorney: ATM
Adult’s son: PSM
Adult’s son: XYJ
Adult’s daughter: DLL
REASONS FOR DECISION
Background
The adult is 78 years of age. He is a farmer. He is widowed and is the father of five children, four of whom appeared, in solidarity[1], at the hearing of the matter. He is very proud of his achievements, in an understated way. The tribunal learned that he has worked on the land, and very hard, for many years.
[1]The applicant told the tribunal, which is accepted, that the fifth sibling is also supportive of the action taken by her.
His family is concerned about his mental health. It appears to his children that he has engaged in some substantial financial transactions that are of concern. One, at least, appears to involve his former lawyer, or his former lawyer’s associated entity, as a party to the transaction. The family expressed concern because not only did the lawyer represent the adult but also he was, at least at one time, a nominated attorney for the adult under an enduring document. They suggest there is, or at least there is the potential for, a conflict of interest.
One of the adult's daughters, ATM, requests the tribunal make a declaration about the capacity of her father. She and her siblings believe that he does not have capacity to make, at least complex, decisions.
She asks the tribunal to make orders that will provide some certainty for the family. She also asks the tribunal to make an order, or perhaps two orders, with respect to the status of enduring documents signed by her father.
If the tribunal does make an order declaring that her father lacks capacity to make complex decisions then she asks the tribunal to consider the status of power of attorney documents signed last year. In essence, if the tribunal forms the view that the adult does not have capacity now then she asks the tribunal to declare whether he did or did not have capacity in July 2014. In other words, did he or did he not sign valid enduring power of attorney documents at that time[2]?
[2]Section 113 of the Powers of Attorney Act 1998 (Qld) provides that the tribunal may make a declaration about the validity of power of attorney documents. Although the section does make reference to the powers of the ‘court’, which in this instance is the Supreme Court, section 109A of the Powers of Attorney Act 1998 (Qld) provides that the Queensland Civil and Administrative Tribunal has the same power to make orders in relation to enduring documents as the Supreme Court of Queensland.
If the tribunal declares that the adult did not have capacity in July 2014, it follows that the tribunal may declare any power of attorney documents signed at that time to be invalid. Section 113(2) of the Powers of Attorney Act 1998 provides that the tribunal may declare a power of attorney to be invalid if satisfied the principal did not have the capacity necessary to make it.
If the tribunal did rule that the power of attorney documents signed in July 2014 are invalid then the operation of law would result in a revival of the most recent enduring power of attorney signed before that time. The applicant says that would not be acceptable because one of the attorneys appointed by such earlier enduring document, in 2007, was the adult's former lawyer.
The tribunal has power to vary the terms of a power of attorney. Therefore, the applicant asks the tribunal to make, potentially, a third level order; namely an order to vary the power of attorney document by removal of the former lawyer as an attorney[3].
[3]Section 116 of the Powers of Attorney Act 1998 (Qld) provides that the tribunal may, amongst other things, remove an attorney and appoint a new attorney to replace the removed attorney.
In essence then the three levels of orders sought by the applicant are:
a) Does her father have capacity now?
b) (if the tribunal declares that her father lacks capacity now)
Did her father have capacity in July 2014?
c) (if her father did not have decision-making capacity in July 2014) Would the tribunal make an order to vary the power of attorney made in 2007?
The enduring power of attorney documents
The adult executed an enduring power of attorney on 13 August 2007 appointing one of his daughters (ATM) and his former lawyer (LLB) severally as his attorneys.
The adult formally revoked the 2007 power of attorney by written document in the prescribed form on 25 July 2014. On the same day, he signed a fresh power of attorney, and in doing so, once again the adult appointed his daughter ATM. In essence, the effect of the two documents was to remove his former lawyer as an attorney. His former lawyer prepared two documents that the adult then signed at the office of his former lawyer. Present at the time of signing the documents was his former lawyer and the applicant ATM.
In December 2014, medical information indicated that the adult does not have capacity to sign legal documents.
This information gives rise to the three questions referred to above.
A principal may revoke an enduring power of attorney in writing only if the principal has the capacity necessary to make an enduring power of attorney giving the same power[4]. Therefore, the tribunal must consider the medical and other evidence with respect to the issue of capacity of the adult now and as it was in July 2014.
[4]Powers of Attorney Act 1998 (Qld) s 47(1).
The law presumes an adult to be capable of making his or her own personal and financial decisions. The Guardianship and Administration Act 2000 (Qld) defines capacity for a person for a matter as meaning that the person is capable of understanding the nature and effect of decisions about the matter, and freely and voluntarily making decisions about the matter; and communicating the decisions in some way[5].
[5]Guardianship and Administration Act 2000 (Qld) Schedule 4.
The tribunal had the benefit of considering the medical and related health report by Dr Samantha Hutson, geriatrician, dated 19 December 2014. The report was prepared based on a consultation with the adult in person, supplemented by information provided by Dr Bruce Monsour. The content of the report is summarised as follows:
a) the adult has Alzheimer’s disease (dementia), which was first apparent in 2012
b) the adult has dyslipidaemia (elevated cholesterol levels)
c) she saw the adult alone for the assessment
d) she saw the adult on the only day she knew him, namely 15 December, 2014
e) the adult feels unimpaired but admits to confusion regarding recent financial arrangements
f) she was approached to complete the form by the adult's daughter, ATM
g) she administered a Montréal Cognitive Assessment (MoCA) on 15 December, 2014
i)the MoCA score was 10/30
ii)the result demonstrates significant cognitive impairment
h) Dr Bruce Monsour administered a mini mental state examination on 16 October, 2014
i)the MMSE score was of 27/30
ii)the result demonstrates mild impairment
i) the adult is able to make simple decisions but would need medical support and assistance to decide on complex matters e.g. cancer operation
j) the adult overestimates his current functional abilities and needs assistance to decide complex matters e.g. where to live
k) the adult is unable to explain his current financial status well
l) the adult can purchase day-to-day items but has poor understanding of their relative value
m) the adult is not able to make complex decisions regarding investments or property
n) the adult is vulnerable to financial abuse due to impaired judgement
o) the adult is aware he may have made poor decisions about financial matters made or suggested by previously trusted individuals
p) the adult has difficulty finding the correct words at times
q) time is needed to allow the adult to express himself
r) the adult could understand some aspects of an enduring power of attorney but overall would not understand or provide instructions for preparation of an enduring power of attorney
s) the adult can make all simple decisions but cannot make any complex decisions
t) the reputed onset of dementia was late 2012 but there has been more rapid decline in the last six months
u) the adult would be able to participate in a discussion about decision-making ability
Dr Hutson signed a letter dated 17 December 2014 addressed to ATM certifying that due to a progressive illness, the adult is unable to sign legal documents as at the assessment date.
Dr Hutson also signed a letter dated 15 December 2014 addressed to Dr Monsour thanking him for the referral of the adult to her for an opinion regarding his cognitive changes. In it she said that the adult under-reports the amount of support he needs and is unable to adequately explain his financial status. She indicates that the adult does lack capacity to nominate a new enduring power of attorney. She says his insight into his cognitive ability changes on a day-to-day basis. She said that she has suggested to ATM that she make an application to QCAT to make her the sole administrator.
At the hearing, I heard from four of the five children of the adult. I also had the benefit of interacting with the adult personally.
ATM said that she has seen a decline in her father's capacity. Her father is now disorientated as to time and place. He is easily forgetful. He will become confused one day to the next. He does not have a clear understanding of money. He can engage in simple transactions but is not capable of understanding complex financial or other matters. She indicated her father’s comprehension ability is comparable to that of a person in primary school.
Her siblings agreed that their father does lack capacity to make decisions of any complexity.
The adult conversed with me freely and openly. He would speak of past, but not recent, events. He displayed many instances of non-responsive answers to questions.
The tribunal finds that the evidence established that the adult would struggle to make decisions freely and voluntarily. The evidence suggests that the adult is at risk of being misled and is trusting of others, potentially to a fault.
The adult cannot understand the nature and effect of complex decision-making. Due to his lack of capacity, the adult is not able to make decisions about matters freely and voluntarily. The adult's communication skills are limited due to his lack of cognitive ability. The tribunal determines that the adult does not have capacity to make decisions about complex matters. The tribunal does find that presumption of capacity for personal and financial matters is rebutted.
I now turn to the question of the capacity of the adult as at July 2014.
The evidence of ATM is that her father did have capacity to execute an enduring power of attorney (and revocation of the former power of attorney) on 25 July 2014. She stated this in her application for an order about an enduring power of attorney and she confirmed this during the hearing of the matter.
The tribunal received a letter from lawyer LLB dated 23 July 2015 in which he says that on 25 July 2014 the adult understood the nature and effect of decisions in relation to a revocation of a power of attorney and signing a fresh power of attorney.
The medical evidence of Dr Hutson clearly shows that the adult did not have capacity as at 15 December 2014. However, her evidence is inconclusive insofar as the capacity of the adult to sign a power of attorney in July 2014 is concerned. Dr Hutson did complete a prescribed form – that is, a document called ‘Report by Medical and Related Health Professionals’. In my view, the prescribed form is confusing in one part. There is an internal inconsistency in the form. In section 8.1, Dr Hutson says that the adult executed an enduring power of attorney on 25 July 2014 and 2007. The form then provides that section 8.2 can be answered as at ‘that date’. However, section 8.2 then, inconsistently, says that the medical practitioner may make comment about the adult's understanding as at ‘today's date’. Given that the medical practitioner inserted two dates in paragraph 8.1 and given the ambiguity in section 8.2 then I interpret the completed form as meaning the doctor was making a statement about the adult's capacity to make a power of attorney as at the date of signing the form, and not either of the earlier dates.
I note that the doctor did not make any specific comment or express a view with respect to the adult's capacity to make a power of attorney as at 25 July 2014 in the prescribed form. The doctor does refer to the adult having dementia as from 2012 but does not speak of the extent to which the dementia did affect the adult’s capacity until December 2014. Dr Hutson does not make any comment about his capacity as at July 2014 in the letters, referred to above, to Dr Monsour and ATM.
I am not satisfied that the adult did lack capacity when he signed a revocation of power of attorney and fresh power-of-attorney in July 2014. The medical evidence suggests that he has suffered dementia since 2012 however it also does note a reported sharp decline in cognitive capacity during the six months leading up to December 2014. When tested by a medical practitioner October 2014 the adult had mild impairment. When tested in December 2014 the adult had significant cognitive impairment. The evidence of the adult's daughter and former legal representative indicate that he did understand the nature and effect of the documentation in July 2014.
Accordingly, in effect, I validate the power of attorney documentation signed in July 2014.
I make no order about an enduring power of attorney. I dismiss the application for an order about an enduring power of attorney.
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