PHW
[2015] QCAT 237
•15 June 2015
| CITATION: | PHW [2015] QCAT 237 |
| PARTIES: | PHW |
| APPLICATION NUMBER: | GAA 419-15, GAA 420-15 GAA 1605-15, GAA 1606-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 4 March 2015 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 15 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications of PLW dated 6 December 2014 are dismissed. 2. The applications of GJS dated 19 February 2015 are dismissed. | ||
| CATCHWORDS: | Guardianship and administration matters for adults - enduring Power of Attorney - conflict among family members - long term marriage | ||
APPEARANCES and REPRESENTATION :
| APPLICANTS: | PLW represented by Lee and Company, Attorneys and Mediators, who instructed Mr. Douglas Turnbull of Counsel GJS and TV were represented by Roberts Nehmer McKee Lawyers, who instructed Mr. Greg Lynham of Counsel |
REASONS FOR DECISION
PW is a 92-year-old man who has been married for 69 years to PL who is 93 years old. They have lived at the same address for the past 68 years.
They have six children PLW (68), PR (65), TV (62), PA (56), PJ (56), and GJS (53).
On 6 December 2014, PLW, who is PW and PL’s son applied to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as guardian and administrator for his father. On 19 February 2015, GJS, their daughter, also applied to the Tribunal seeking the appointment of VTV and herself, jointly and severally, as guardians and administrators for PW.
On 24 August 2008 PW appointed PL as his enduring attorney and in the event of her becoming incapacitated appointed PLW and PR as his successive attorneys. There is some conjecture within the family as to the correct interpretation of this document.
This matter came before the Tribunal on 4 March 2015. Present at the hearing were PL, PLW, GJS, PR, TV, PA, and PJ. Also present were various members of the extended family.
PLW was represented by Lee and Company, Attorneys and Mediators, who instructed Mr. Douglas Turnbull of Counsel. GJS and TV were represented by Roberts Nehmer McKee Lawyers, who instructed Mr. Greg Lynham of Counsel.
Does PW lack capacity for the matter?
In these proceedings, the Tribunal only has jurisdiction if it finds that PW lacks capacity for decision-making about his personal and all financial matters.
The Guardianship and Administration Act 2000 (Qld) (the Act) defines “capacity” as meaning that the person is capable of understanding the nature and effect of decisions about the matter, can freely and voluntarily making decisions about the matter and can communicate the decisions in some way.
The main evidence regarding PW’s capacity was a Health Professional Report from Dr. OD dated to 10 December 2014. Dr. OD says that he has known PW for about six years and last saw him on 8 December 2014. He said that PW is usually accompanied by his son PLW when he attends for appointments.
Dr. OD's reported that PW’s current medical conditions include dementia, metastatic SCC and osteoarthritis. In Dr. OD’s opinion PW is not able to make informed decisions about personal matters or manage simple financial interactions. He observed that there appears to be significant family conflict involving the children and wife. He said that it would be difficult to say whether PW’s best interests are being catered for with regards to his finances.
Dr. OD considered that PD would not understand anything regarding an Enduring Power of Attorney and would not be able to understand or make any simple or complex personal or financial decisions.
There was general consensus amongst those present at the hearing that PW lacks capacity within the meaning of the Act.
Consequently the Tribunal makes the following findings of fact about PW’s capacity:
PW has dementia;
He is not able to understand or make his own decisions about any simple or complex personal or financial matters.
Therefore the Tribunal is satisfied that the presumption of capacity has been rebutted.
What are the legal requirements for the appointment of a decision-maker?
Section 12 of the Act provides that before the Tribunal can appoint a guardian to make personal decisions or an administrator to make financial decisions for an adult with impaired decision-making capacity such as PW, the Tribunal must be satisfied that there are circumstances that establish a need for a guardian or administrator.
“Need” is established if the Tribunal determines that PW is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to his health, welfare, finances or property and without an appointment his needs will not be adequately met or his interests will not be adequately protected.
It was submitted by Mr. Turnbull on behalf of PLW that PL and all six children were satisfied with the present arrangements whereby PW and PL reside in the matrimonial home together with a resident carer. It was suggested that the arrangement appears to be adequately meeting their physical needs.
However, Mr. Turnbull then detailed the many concerns that PLW has regarding the present and proposed personal arrangements for PW.
These include the following:
· The extent to which PW is socializing with his friends and associates;
· The permanency of the present living arrangements, including the employment arrangements for the live-in carer;
· The intention of PL, GJS, TV and PJ to change the present arrangements and place PW in a high dependency unit at the RSL home in Townsville or elsewhere;
· The possibility of moving PW away from Ayr;
· The suitability of the RSL home given the recent experience of PW and PL;
· The questionable bona fides being demonstrated by PL, GJS and TV in relation to PW’s welfare.
Mr. Turnbull also doubted the ongoing suitability of PL, GJS and TV to act in PW’s best interests.
He submitted that PW’s quality-of-life is the key issue in this case. He submitted that there should be plenty of funds spent on him so that he has first rate care in his own home with intensive socialization including regular outings and regular visitors.
Regarding PW’s finances, Mr. Turnbull pointed out that PL presently holds all monies that were previously joint monies, without any expressions of trust in favor of PW or any acknowledgment of joint tenancy.
He asserted that PL claims that this state of affairs is appropriate because she is PW’s attorney (a status that may be disputed) and wife of 70 years! He concedes that there is some force to that argument but that it is still an irregular arrangement and does not allow for any influence that GJS may exercise over PL.
Mr. Turnbull also identified a number of unsatisfactory features regarding the financial administration of PW’s affairs. These include the following:
· The evidence regarding the contents of PW’s safe including allegations of money missing from the safe;
· The failure of PL to account for a large amount of cash removed from the safe;
· A large amount of money that was withdrawn from a company account in circumstances where PL and PW were the two directors and shareholders. He said that it is a very large amount of money, comprising almost all of the couple's liquid assets. He described the transaction as “another gross example of either incompetence by PL” or perhaps of her intention to take sole control over PW’s funds in a way which is not consistent with his best interests;
· PLW's opinion that the reason PL has taken control of these large amounts of money was that it effectively places the money under the direct control of GJS, PL's attorney;
· A payment of $75,000 by PL to PA, after cashing in a whole of life policy on maturity. Mr. Turnbull contended that if PL maintains that all monies owned by PW and her are “joint monies” as a result of their long marriage, regardless of the legalities, then the disposal by her of the $75,000 should be a concern to the Tribunal because on that reasoning PW would have a half interest in those funds, which has obviously been totally ignored by PL due to her refusal to account for it;
· An advance by PW and PL to their son. There is no record as to when that loan of approximately $290,000 was made in about 2011.
· Money being dissipated generally by PL under the influence of GJS.
Mr. Lynham acknowledged the allegations that LW has made regarding PL, to support PLW’s argument that she no longer adequately meets PW’s needs and that she does not protect his interests. He pointed out that these allegations include the very serious assertion that PL has “misappropriated’ or “stolen” PW’s money, when on 3 February 2014 she transferred $493,775.61 from an account called PW & L Pty Ltd which had been used to receive distributions from the business of PB Motors into an account operated in her own name.
He submitted that this allegation relied upon the “nonsense assertion” that monies held by PW in a company account, belonged exclusively to him and that PL had no entitlement to them.
He argued that this allegation is baseless because when the funds were transferred in August 2014, PW lacked capacity and therefore PL was entitled to exercise all the powers conferred upon her under PW’s EPOA. Mr Lynham argued that “the distinction which PLW seeks to make between his father's monies and his mother's monies is repugnant to a couple who have been married for almost 70 years and for whom no distinction between ‘his’ and ‘her’ property could seriously be made”.
He contended that the explanation for PL's actions is contained in a letter from the family accountants where the Principal of the firm, HD says
·PL sought his advice;
·Her motivation in transferring the funds was to preserve the savings for her and PW for their retirement;
·The funds in the account were being diminished by the business;
·The account from which the funds were transferred was owned entirely by PW and PL.
Regarding W’s allegation that his mother stole his father’s funds, Mr. Lynham submitted that in fact PL has preserved those funds from being further diminished for the benefit of her and husband. On that basis he argues that PL has acted in PW’s best interests.
The Tribunal finds that at this stage of his life, PW will require decisions to be made about his accommodation, his healthcare, with whom he has contact, what services he receives, and many other day-to-day issues that arise. It is equally clear that there is substantial conflict between family members regarding how these issues should be managed in a PW’s best interests.
The Tribunal also finds that PW has substantial assets and other funds that he owns jointly with PL. There will be an ongoing need for these funds and assets to be managed in his interests. Again it is clear that there are significant differences between family members as to how PW’s finances should be managed.
The Tribunal is therefore satisfied that there is a need for a decision maker in relation to these matters because unless these decisions are made, it is likely that PW’s needs will not be adequately met and his interests will not be adequately protected.
These proceedings were initiated by PLW seeking that he be appointed solely as PW’s guardian and administrator. GJS has subsequently sought that both she and TV be appointed jointly and severally as PW’s guardians and administrators.
The Tribunal is also conscious of the existence of the Enduring Power of Attorney executed by PW on 24 August 2008.
Mr. Lynham, on behalf of GJS and TV, has submitted that the Tribunal has potentially at least three options open to it:
i. Dismissing both applications and allowing the existing EPOA to remain in operation;
ii. Appointing PL as guardian or administrator but should she become incapacitated including orders for successive appointments;
iii. To appoint one of the respective applicants with effective immediately.
The Tribunal is also mindful that in matters such as this it has the option on its own initiative to appoint the Office of the Public Guardian and/or the Public Trustee of Queensland if it is satisfied that there is no other appropriate person available for appointment for the matter. This would appear to be a significant consideration in this matter.
What is the relevance of the Enduring Power of Attorney executed by PW on 24 August 2008?
On 24 August 2008 both PW and PL executed similar Enduring Powers of Attorney. However, there were some notable differences.
PW appointed his wife PL, his son PLW and his son PR to act as his attorneys. He directed that PL was to act as his attorney immediately and that “PLW and PR shall act as my attorneys successively upon becoming incapacitated whether through unsoundness of mind or body as certified by a duly qualified medical practitioner”.
Further PW directed it that “…(PL) shall act as my attorney solely. In the event that (PL) shall be unwilling (as notified by her in writing) or incapable whether through unsoundness of mind or body (as certified by a duly qualified medical practitioner) then and in such case I direct that the said PLW and PR shall successively act as my attorneys jointly”.
Similarly at the same time and place, PL appointed WP and GJS as her attorney(sic). PL directed that PW was to act as her attorney immediately. However she also directed that “(GJS) shall act as my attorney successively upon my becoming incapacitated whether through unsoundness of mind or body as certified by a duly qualified medical practitioner”.
PL further directed that “…(PW) shall act as my attorney solely. In the event that PW shall be unwilling (as notified by him in writing) or incapable whether through unsoundness of mind or body (as certified by a duly qualified medical practitioner) then and in such case I direct that GJS shall successively act as my attorney”.
Mr. Turnbull submitted that the EPOA executed by PW in August 2008 was an effective communication by him of his true desires and intentions in relation to not only guardianship issues, but also financial administration issues.
He said that PLW stated that he understood that at the time, the initial exercise of the power would be by PL and then successively by PLW and PR. He claimed that PLW understood that PW had provided that if he lost capacity at any stage, he did not want PL to continue as his attorney but wanted PLW and PR to take over.
Mr. Turnbull submitted that when PW lost his capacity, PLW and PR assumed control of his affairs under the EPOA based on an “honest belief” that they were complying with his intentions and also as a result of legal advice from their solicitors.
When they were advised by the National Bank in Ayr that the EPOA was ambiguous on the face of the document they deposited the contents of PW’s safe in a safety deposit box at the National Bank, Ayr as “trustee for PW”. With respect to these actions it is asserted that they were acting in good faith.
Mr. Turnbull acknowledged that there is an ambiguity in the document and suggested that if the word “my” was inserted after the word “upon” in the second line of the second part of clause 5 of the EPOA then it would clearly have the meaning contended for by PLW.
He pointed out that the EPOA executed by PL at the same time before the sign solicitor does have the word “my” inserted in the same place. He proposed that it is therefore “readily believable that a typing error has occurred in the equivalent clause in PW’s EPOA.
He argued strongly that the ambiguity in the EPOA “should now be a powerful reason for the Court(sic) to conclude that it should now disregard that document, given the matters regarding his care and financial affairs… and now substitute its own views as to the appropriate guardianship and financial administration of (PW’)s affairs now that (he) is incapacitated”.
Mr. Lynham submitted on behalf of GJS and TV that the EPOA executed by PW on 24 August 2008 is badly drafted. He said that, in particular, paragraphs 5 and 7 of the EPOA are confusing in their terms and arguably inconsistent in the way they were drafted such that it is at least arguable that neither PLW nor PR would become PW’s attorney should PL no longer be capable of acting.
He said that the confusion created by the drafting of the document is attested to by the fact PLW and PR made a claim that they were their father’s attorney in late 2014 which they now concede was an error.
Who should be appointed as PW’s decision maker?
Mr. Lynham submits that if the Tribunal accepts that for the time being PL is the most appropriate person to be PW's attorney then she would also be the most appropriate person to be appointed as PW’s guardian and/or administrator because of the following factors:
· PL is PW’s appointed attorney;
· She has been his wife for nearly 70 years;
· She has consistently acted in PW’s best interests including seeking to preserve funds for use by the couple;
· She continues to reside with PW;
· She will re-locate to aged care facilities with PW should the need arise;
· She jointly owns with PW the substantial portion of the assets of the marriage;
· She is someone whom PW clearly needs and depends upon.
Mr. Turnbull argued that the appointment of PLW will obviate any risks to the preservation of PW’s assets and ensure the proper application of his funds to his needs, without the risk of a miserly use of the funds not in PW’s interests but rather in the interests of the ultimate beneficiaries or the misallocation of his share of the joint assets to family members favored by PL and GJS to the ultimate frustration of the intentions expressed in his will.
Mr. Turnbull argues that PLW has not personally obtained any benefit in relation to any of the issues raised and simply wants to see justice and fair play for his two brothers. He is a person who has PW’s best interests at heart and has an excellent relationship with him.
Mr. Turnbull also points out that in reality PLW and PR who supports his application may end up as administrators of PW’s estate which would involve identifying and gathering his assets. If so then the appointment of PLW now to supervise his financial affairs would be entirely consistent with and complement those duties.
The Tribunal has had the benefit of hearing from and observing all the members of PW’s family who were present at the hearing. In particular the Tribunal has had the pleasure of the attendance of PL throughout the hearing. It was clear that PL was fully aware of the proceedings and the decisions of that had to be made.
The Tribunal had evidence before it from a number of health professionals regarding PL’s general health and capacity. Dr. OO, a doctor of Geriatric Medicine in a report dated 18 November 2014 confirmed that PL has capacity to manage her personal and financial matters. Dr OO noted that she also has the Enduring Power of Attorney for her husband for which she has exercised this right up to the present moment. There is no evidence of cognitive, depression or any mental issues to warrant changes to this arrangement.
Dr OO also conducted a mini-mental state it examination with PL who scored 30/30 which would indicate a normal cognitive state with no evidence of depression.
Ms. HT, Senior Physiotherapist, in a report dated 19 January 2015 states that “(i)t is my professional opinion that PL’s physical injuries have not impacted upon her cognition or decision-making. It is further my professional opinion that at times, due to her injuries she was unable to physically care for her husband, while she was being rehabilitated. On being discharged from hospital PL was very capable of caring for both herself and her husband with support in place for manual handling. Due to PL’s chronic back injury she will need ongoing physical assistance to care for her husband whilst they remain in their family home.”
At the hearing the Tribunal was left in no doubt regarding PL's perspective on these proceedings. She made it very clear that she continues to make her own decisions and that she is not influenced by any family members including GJS.
The Tribunal has also taken into account the correspondence from HD, Principal, of SM, Accountants and Advisors, dated 21 January 2015 and to March 2015 who has personally attended to the accounting and taxation affairs of PW and PL for the last 8 years.
HD recorded in his letter of 2 March 2015 that PL explained to him that “she was heartbroken by all of the children continually bickering and that it was taking a toll on her physically. She did not single out any of her children in particular but she made it clear that she has had enough of all of the fighting for the control and assets by her children.”
In his previous letter dated 21 January 2015 HD commented that “(i)t was never PL’s intention to deprive PW of any of these funds, but rather to protect them from being diminished further through the operation of the business side of the funds so that the funds would be available for both her and PW to access during their retirement
Mr. Lynham drew the attention of the Tribunal to the fact that PL's advanced years and recent health problems raise the risk that she might become incapacitated and thereby be unable to continue to act as PW’s guardian or administrator. He suggested that to avoid the need for further litigation by the family members in the event that PL does become incapacitated, there is utility in making orders for successive appointees.
After considering all of these matters, at length, the Tribunal makes the following findings of fact:
· The correct and preferable interpretation of the Enduring Power of Attorney executed by PW on 24 August 2008 was that he intended that PL, his wife, be his Attorney until such time as she became incapacitated “whether through unsoundness of mind or body as certified by a duly qualified medical practitioner”. In the event that PL became incapacitated then the successive appointments would come into effect;
· The current Attorney for PW, PL has demonstrated to the satisfaction of the Tribunal that she has the capacity, skills and desire to continue in the role of Attorney;
· The Tribunal is not satisfied that the evidence has demonstrated that PL has not acted in the best interests of her husband;
· PL is appropriate to continue in the role of Attorney for PW.
Therefore the Tribunal makes the following orders:
1. The applications of PLW dated 6 December 2014 are dismissed.
2. The applications of GJS dated 19 February 2015 are dismissed.
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