NE
[2010] QCAT 83
•25 March 2010
CITATION: NE [2010] QCAT 83
PARTY: NE
APPLICATION NUMBER: G19908
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 25 March 2010
HEARD AT: Brisbane
DECISION OF: Barbara Bayne
Michael McCarthy
DELIVERED ON: 25 March 2010
DELIVERED AT: Brisbane
ORDERS MADE: 25 March 2010
DECLARATION ABOUT CAPACITY
On 29 September 2009 NE did not have capacity to revoke an Enduring Power of Attorney dated 31 October 2008.
ENDURING POWER OF ATTORNEY
The following documents relating to NE are declared invalid pursuant to s113(2) of the Powers of Attorney Act 1998 and s 84(2) of the Guardianship and Administration Act 2000:
(a) The Revocation of Power of Attorney dated 29 September 2009 which purported to revoke the Enduring Power of Attorney dated 31 October 2008 appointing TR as attorney for financial and personal/health matters
(b) The Enduring Power of Attorney dated 14 December 2009 appointing NG as attorney for financial and personal/health matters.
GUARDIANSHIP
The Adult Guardian is appointed as guardian for NE for decisions about the following personal matters:
(a)Accommodation;
(b)Health care;
(c)Provision of services.
Unless the Tribunal orders otherwise, this appointment remains current for one (1) year.
ENDURING POWER OF ATTORNEY
The following Enduring Power of Attorney for NE is overtaken by the making of this appointment and, in accordance with s 22(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 31 October 2008 appointing TR as attorney for financial and personal/health matters.
ADMINISTRATION
The application for the appointment of an administrator for NE is dismissed.
CATCHWORDS: Multiple Enduring Powers of Attorney, Revocation, Validity, Need for the appointment of a Guardianship and/or Administrator, Family Conflict
APPEARANCES and REPRESENTATION (if any):
NE
LL, social worker and applicant
TR, daughter, attorney and applicant
NG, son and attorney
TG, son in law
WA, social worker
WR, friend and EPA witness
PR, solicitor and EPA witness
AN, friend
RT, friend
AJ, representing the Adult Guardian
MD, counsel representing TR, with leave
MD, solicitor instructing MD, with leave.
REASONS FOR DECISION
HISTORY OF THE APPLICATION
Mr NE is 69 years of age and is currently an inpatient in a hospital. He was admitted on 30 October 2009 following a fall at home, and was moved to the Health Centre on 22 December 2009.
NE has been separated from his wife for some years. He has three children: a son, NG, a daughter, TR, and a daughter, NC.
NE had made several enduring powers of attorney (EPA) under the Queensland Powers of Attorney Act 1998 and one revocation, made on a NSW form:
(a) 27 October 2008 an EPA appointing TR as his attorney for personal/health matters
(b) 31 October 2008 an EPA appointing TR as his attorney for financial and personal/health matters, both powers to start immediately
(c) 29 September 2009 a revocation revoking the EPA made on 31 October 2008
(d) 14 December 2009 an EPA appointing NG as his attorney for financial and personal/health matters, both powers to start immediately
On 15 December 2009, the Queensland Civil and Administrative Tribunal (QCAT) received an application from LL proposing the appointment of the Adult Guardian as guardian and the Public Trustee of Queensland (PTQ) as administrator for NE.
On 28 January 2010, QCAT received an application from TR seeking a declaration of capacity for NE.
A hearing of the applications was held in Brisbane on 25 March 2010.
THE ISSUES AND THE LEGISLATION
The Queensland Civil and Administrative Tribunal (the Tribunal) came into effect on 1 December 2009. The Guardianship and Administration Act 2000 (the Act) is an enabling Act conferring original and review jurisdiction on the Tribunal.
Section 6 of the Act explains that the Act seeks to strike a balance between
(a) the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
(b) the adult’s right to adequate and appropriate support for decision making.
Section 84(2) of the Act provides that the Tribunal has concurrent jurisdiction with the Supreme Court of Queensland in regard to changing, revoking, or overtaking an Enduring Power of Attorney. Sections 116 and 117 of the Powers of Attorney Act 1998 apply.
In determining the applications, the Tribunal identified the following issues:
(a)Did NE have the capacity to revoke an EPA on 29 September 2009?
(b)If not, what is the effect on the various EPAs?
(c)Is the Enduring Power of Attorney for personal and health matters given by NE to his daughter TR operating in his best interest?
(d)If this Enduring Power of Attorney is inappropriate, is there a need for a Guardian and if so, who should be appointed?
(e)Is the Enduring Power of Attorney for financial matters given by NE to his daughter TR operating in his best interest?
(f)If this Enduring Power of Attorney is inappropriate, is there a need for an Administrator and if so, who should be appointed?
THE EVIDENCE
[11].In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below.
DID NE HAVE THE CAPACITY TO REVOKE AN ENDURING POWER OF ATTORNEY ON 29 SEPTEMBER 2009?
[12].The Act defines capacity in Schedule 4 of the Act:
“capacity”, for a person for a matter, means 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.
[13].NE was presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity had been rebutted for him.
Evidence against capacity
From May 2009, various medical reports on the Tribunal’s file began to indicate some concerns with NE’s cognitive functioning:
An ACAT report dated 27 May 2009 recorded a prime diagnosis of alcoholic dementia and an MMSE score of 11/30 as at 21 May 2009. The report referred to ongoing short term memory problems, long term memory problems, confusion and disorientation to time, place and person. High care respite residential and permanent residential care were approved.
Various health professional reports were consistent in their opinions:
(a) 21 May 2009 Dr FP: ‘confused, disoriented, drinking heavily and unable to care for himself’.
(b) 27 May 2009 Dr TV: ‘It is the decision of the treating medical team under the auspices of Dr CV that Mr NE does not have the capacity to make decisions regarding his personal and financial life and legal matters’.
(c) 15 December 2009 Dr OM: ‘alcohol related dementia, Korsakoff/Wernicke syndrome, agitated confusion, influenced by whomever …’
(d) 18 December 2009 CL: ‘attention, problem solving and insight into his current care needs’. ‘NE would benefit from full assistance with managing his finances’.
On 17 and 18 December 2009, NE undertook a clinical neuropsychological assessment of his decisions making capacity ‘in view of family dispute over appropriate future care needs and discharge destination’. The conclusions by TK read in part ‘I feel that NE does not have any understanding of his current medical, lifestyle and or future care needs. Due to his poor retention of information … NE is unable to make consistent and informed decisions. NE was unable to provide any clear decisions… for the issues that he did provide a response (e.g. refusing treatment) he was unable to justify this reason and appeared to lack knowledge as to the reasons for and potential consequences of making such a decision’
An email from WA dated 2 March 2010 referred to NE as ‘constantly ‘confused, still 1:1 specialled and agitated as (he) wants to leave’. Ms Webb in the hearing on 25 March 2010 opined that there had been very little change or improvement in NE’s cognitive functioning since then.
TR evidenced that she had had concerns about NE’s capacity in September 2009. She agreed with the December reports.
Evidence for capacity
By accepting the power of attorney on 14 December 2009, NG, at least implicitly, considered that NE had capacity as defined at that time.
The EPA made on 14 December 2009 had been witnessed by PR. PR informed the Tribunal that on 14 December 2009 he had examined NE and in his official capacity as a solicitor had been satisfied that NE understood the nature and effect of that document. In PR’s opinion ‘at no time … did (NE) repeat himself, show signs of forgetfulness, anxiety or irritableness’.
PR was not however able to provide the Tribunal with a copy of any written record or notes of the proceedings. He was unable to convince the Tribunal that his questioning had been appropriately thorough or that any of NE’s answers to such questioning exhibited an understanding of the nature and effect of the document. He was not able to provide much detail of the comprehensive guidelines or framework he habitually used to test a client’s capacity to execute an EPA.
On 15 December 2009, NE was assessed by Dr BN, a clinical and forensic psychologist. This was done at the request of ‘NE’s family to assess his capacity to make a decision to leave the hospital to continue his treatment at home’. Its purpose was ‘to assist with the decision making process as to whether or not NE has the mental capacity to make an informed decisions regarding his future health care’.
Psychometric testing was limited to an MMSE at which NE scored 11/30, described by BN as indicative of moderate cognitive impairment. BN findings were focussed on various support and care opinions and, in the opinion of the Tribunal, did not, apart from the MMSE test, address capacity as defined under the Act.
Conclusion
The Tribunal examined the range of evidence concerning capacity, appreciating that some of it was contradictory.
The Tribunal considered that the medical and health professional reports were consistent in their conclusions that for some time NE had been experiencing cognitive impairment that would affect his decision-making, notably through memory loss, poor information processing, confusion and lack of insight.
The MMSE scores indicated at least moderate cognitive impairment through the period May to December 2009. There was no evidence to support any change or improvement in NE’s cognitive functioning since then.
Most of the parties present at the hearing did not dispute this finding.
The Tribunal determined that, on balance, NE had impaired capacity for personal and financial decisions and that this had been the case from at least early September 2009.
WHAT WAS THE EFFECT ON THE REVOCATION AND THE VARIOUS ENDURING POWERS OF ATTORNEY?
Section 113 of the Powers of Attorney Act 1998 provides
113 Declaration about validity
(1) The court may decide the validity of a power of attorney, enduring power of attorney or advance health directive.
(2) The court may declare a document mentioned in subsection (1) invalid if the court is satisfied--
(a) the principal did not have the capacity necessary to make it;
Based on the finding that NE had impaired decision making capacity from at least early September 2009, the Tribunal determined that the following documents were invalid:
(a) The revocation dated 29 September 2009 revoking the EPA made on 31 October 2008.
In addition, the Tribunal also considered that this revocation, made on a NSW form, did not satisfy the requirement under s 49(1) of the Powers of Attorney Act 1998:
˙Formal requirements for written revocation of enduring document
49.(1) A written revocation of an enduring power of attorney must be in
the approved form.
(b) The EPA dated 14 December 2009 appointing NG as NE’s attorney for personal/health and financial matters.
The Tribunal noted that the EPA dated 27 October 2008 had been automatically revoked by the EPA made on 31 October 2008; s 50(1) of the Powers of Attorney Act 1998 applies.
No evidence was provided to the Tribunal which challenged the presumption of capacity for NE on 31 October 2008. In addition, the witness to the EPA made on that date, WR, confirmed that he had been satisfied at the time that NE was able to understand the document he was signing.
The Tribunal therefore determined that the EPA dated 31 October 2008 appointing TR as NE’s attorney for financial and personal/health matters is valid.
IS THE ENDURING POWER OF ATTORNEY FOR PERSONAL AND HEALTH MATTERS GIVEN BY NE TO HIS DAUGHTER TR OPERATING IN HIS BEST INTEREST?
The fact that there is an attorney for personal and health matters appointed under an Enduring Power of Attorney is especially relevant in determining how best an adult’s needs should be met. The Tribunal must consider whether the appointed attorney should continue in that role, whether her appointment should be revoked under section 116 or section 117 of the Powers ofAttorney Act 1998 or be made subject to the appointment of a guardian under section 22 of the Act.
It was obvious to the Tribunal, and all parties agreed, that the main contention in NE’s case was his future accommodation and care (service support). NE is currently residing, and has been for some time, in the Gold Coast hospital, awaiting decisions in this regard.
In addition, NE has ongoing complex physical health problems which will require decisions.
The Tribunal noted the considerable level of conflict, distrust and lack of communication between NE’s children with regards to their diverse and strongly held convictions as what arrangements might best suit their father. The Tribunal was aware that NE’s estranged wife was also involved to some extent in these discussions.
NE’s attorney for personal and health matters is very much embroiled with the ongoing family conflict; she has been involved with a NSW Interim Apprehended Domestic Violence Order.
The Tribunal was convinced that, although TR undoubtedly had her father’s best interests at heart, she would, under the circumstances, have difficulty in observing some of the general and specific responsibilities as attorney. It would be hard for example for her to take into account, in an unbiased way, the importance of her father’s existing supportive relationships.
SCHEDULE 1
PRINCIPLES
PART 1—GENERAL PRINCIPLES
Maintenance of existing supportive relationships
8. The importance of maintaining an adult’s existing supportive relationships must be taken into account.
˙
Given the level of conflict, the Tribunal was concerned about the ability or willingness of TR to liaise and communicate effectively with her siblings. Given the significance of the decisions necessary, the Tribunal considered this aspect of the attorney’s responsibilities particularly important.
The Tribunal determined that under the circumstances, the EPA appointing TR as personal and health attorney is not, in the short term, able to operate in his best interest.
Conclusion
There was general consensus from all parties on the following matters:
(a) NE has a range of complex and ongoing health issues which need to be proactively managed;
(b) In differing ways, his children are now, despite some lack of contact in the past, important to him; and
(c) There was significant conflict within his family.
The Tribunal therefore determined that the Enduring Power of Attorney given by NE to his daughter was not, for some personal and health matters, capable of being operated successfully for the benefit of NE.
IS THERE A NEED FOR A GUARDIAN AND IF SO, WHO SHOULD BE APPOINTED?
The Tribunal considered NE’s personal and health matters.
The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
The Tribunal, when considering the appointment of a guardian, must be satisfied as to the need for appointment as set out in section 12 of the Act.
12 Appointment
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the 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
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
The proposed guardian was the Adult Guardian.
The Tribunal considered the Adult Guardian to be an independent professional decision maker with extensive skills and experience, able to assess the relative merits of options for accommodation, service and health matters and make decisions that best meet NE’s needs and properly protect his interests in the future.
The Tribunal further considered that an appointment of the Adult Guardian would remove the conflict from the family dynamic until the issues under contention could be resolved.
Conclusion
The Tribunal was satisfied that there was a need, at least in the short term, for the appointment of a guardian for NE for accommodation, services and health matters.
The Tribunal determined that the Adult Guardian was the appropriate appointee as guardian in this case.
The Tribunal determined that, at present, NE’s interests would best be served by the overtaking of the enduring power of attorney under s117 of the Powers of Attorney Act 1998 by an appointment of the Adult Guardian.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINSTRATOR?
The Tribunal considered whether the appointed attorney should continue in that role, whether her appointment should be revoked under section 116 or section 117 of the Powers ofAttorney Act 1998 or be made subject to the appointment of an administrator under section 22 of the Act.
The attorney, TR, assured the Tribunal that she was well aware of NE’s financial circumstances. She informed the tribunal that he had significant assets and a substantial cash flow easily able to service his needs. She outlined the arrangements for accounting, taxation and investment responsibilities.
TR informed the Tribunal that she has had a long term uninterrupted relationship with her father. There is a high level of trust and communication between them.
NG and NC had expressed concern as to some withdrawals from a bank account by TR in mid 2009.
TR advised that, as attorney, she had made some withdrawals at this time in order to fund a few weeks of convalescence in Sydney for NE following his discharge from hospital. The Tribunal was satisfied by her explanation.
No evidence was provided to the Tribunal to support any contention that the attorney had not acted, or would be unlikely to act, in NE’s best interest and in accordance with the legislation.
TR assured the Tribunal that she recognised her responsibilities as attorney and undertook to keep her siblings informed of her father’s financial matters.
The Tribunal recognised that TR had been NE’s choice as attorney in 2008 when he had the capacity so to determine. The Tribunal was satisfied that TR would discharge her general and specific responsibilities as attorney as specified under the Powers of Attorney Act 1998.
Conclusion
The Tribunal was satisfied that NE’s financial matters were complex and that there was now a need for someone to manage these for him.
The Tribunal was satisfied that the enduring power of attorney for financial matters was operating in NE’s best interest.
The application for the appointment of an administrator was therefore dismissed.
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