PJK
[2010] QCAT 522
•9 April 2010
| CITATION: | PJK [2010] QCAT 522 |
| PARTIES: | PJK |
| APPLICATION NUMBER: | G20160 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 9 April 2010 |
| HEARD AT: | Gold Coast |
| DECISION OF: | Susan Gardiner – Presiding Member J Gallagher – Member |
| DELIVERED ON: | 9 April 2010 |
| DELIVERED AT: | Gold Coast |
| ORDERS MADE: | DECLARATION ABOUT CAPACITY 1. The application for a declaration about the capacity of PJK is dismissed pursuant to s47 of the Queensland Civil and Administrative Tribunal Act 2009. GUARDIANSHIP 2. That The Adult Guardian is appointed as guardian for PJK for decisions about the following personal matters: (a) Accommodation; (b) With whom PJK has contact and/or visits; (c) Provision of services 3. Unless the Tribunal orders otherwise, this appointment remains current for three (3) years. ADMINISTRATION 4. That The Public Trustee of Queensland is appointed as administrator for PJK for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 8. That the administrator shall within three (3) months: a) Identify, by way of a search of the records held by the Registrar of Titles or other means, any interest in real property registered in the name of PJK (“the adult”). b) Lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order. c) Provide to the Tribunal: (i) a copy of the search of records held by the Registrar of Titles referred to above and; (ii) a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order. 9. That if any change is made in an interest in land held by the adult which is the subject of this administration order or if there are any further dealings in land on behalf of the adult by the administrator, the administrator shall lodge with the Registrar of Titles within 14 days of the finalisation of such interest a copy of this order and a notice (in a form prescribed by the Registrar of Titles), concerning such changes or dealings. 10. That the administrator pay, from the adult’s funds, any fee associated with the above notices. ENDURING POWER OF ATTORNEY 11. That the following Enduring Power of Attorney for PJK is 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 10 April 2009 appointing PM as attorney for financial, personal and health matters. |
| CATCHWORDS : | Capacity of Adult, Need for Guardian and Administrator, Appropriateness of appointee under power of attorney, Powers of Attorney Act 1998, Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| The active parties attending the hearing were as follows: PJK, PM, PA, PJ, PB, PD, VD, HP & HK representing The Adult Guardian |
REASONS FOR DECISION
MS GARDINER: All right, ladies and gentlemen, what we are now going to do is to give you the – to go into the formal part of the afternoon, which is to give you the decision of the tribunal and also the orders that will be made. This is the part of the afternoon where you have to just listen to what we have to say and ‑ ‑ ‑
PJK: They’re not bad.
MS GARDINER: They aren’t bad, either. And to not interrupt, because at the end of giving the reasons and the order that signals the end of the hearing and that will finish things for today. And we’re not doing too badly at a quarter past four, so we will be out of here by five. All right. Could I start by saying I know how difficult this has been for everyone these last few months, particularly for PM, but for all ‑ ‑ ‑
PJK: It hasn’t worried you at all, has it?
MS GARDINER: But ‑ ‑ ‑
PJK: It hasn’t worried you, the session?
MS GARDINER: Yes. I think – I think she has been ‑ ‑ ‑
PJK: The pressure – right. It has more ‑ ‑ ‑
PM: It’s all right. It’s all right.
MS GARDINER: Okay.
PM: He’s worried about me.
MS GARDINER: Yes. I know it has been a stressful period for everyone for all sorts of reasons. I hope what we’ve crafted this afternoon will be the best outcome for PJK, because in the end everybody else has got their own capacity and we’re here really to put together what we hope is a protective strategy around PJK and to ensure that his future is happy and healthy and protected in all aspects. And that is what we want out of this afternoon’s hearing for him.
This application came to the tribunal in February this year from an application for the appointment of a guardian and an administrator and during what has been quite voluminous material from all of the parties – much of it, to be fair, really not going to the issues that we need to address, but really being evidence of the high degree of conflict that still exists between PJK’s children and his second family, if you like, his step-children and his wife. That doesn’t seem to have resolved over 30 years.
PM: With me it has. I have nothing left to say.
MS GARDINER: And when PJK’s health has become a problem for him – and that has occurred because he has developed Alzheimer’s dementia and initially was in the early stages of that dementia, but it appears that it has progressed to moderate dementia and in that regard we have had evidence of his GP and evidence of Professor M both saying that really this is a progressive illness that has been diagnosed as dementia – as Alzheimer’s – of the Alzheimer’s type and Dr E says small vessel – that it was mild in early February of 2009 but that it has probably progressed to a moderate dementia now.
It is the medical opinion that PJK has lost the ability to make complex decisions, can probably still make some simple decisions, but that the major issues that he’s now facing in his life he cannot make those decisions himself. The illness has robbed him of that. Now, we know that it is a progressive illness and that it will not get better and that is the terror of this particular illness for – not only for PJK, but particularly for the people who love him around him. It is a very robbing disease. Everyone here today has agreed that as at today PJK is now not able to make the complex financial decisions and the complex personal decisions that are facing him in his life and the tribunal is satisfied that the presumption of capacity has been rebutted and that there is, therefore, a need to look at what now happens with the decision-making for PJK.
Now, we are not talking about his carers. We are not talking about his family’s role in caring for him, in loving him, in being a wife, a father, a step-father. We’re not talking about any of those roles. The focus of this legislation is very much on substitute decision-making, which is often in tandem with some of those other roles, but is not being addressed by the tribunal today. And we have touched on this a number of times today. There is no criticism from the tribunal intended in any of the directions and orders that we’re going to give today that go to the care that surrounded PJK. It is fair to say, I think, that PM has only just recently realised the extent and, perhaps, the severity of the dementia that her husband is suffering from and that is, in itself, a grieving process that she is going to have to come to terms with.
It is also fair to say that because of the things that have happened over the last little while there has been again a re-eruption of old hostilities between the family groups that, perhaps, haven’t needed to have been aired for some time. So our role today is to make a decision around what is best for PJK. He signed an Enduring Power of Attorney in February of last year.
MR GALLAGHER: 10 February.
MS GARDINER: On 10 February 2009. There is no evidence before the tribunal today to show that that was not a validly signed document. On the face of it, therefore, there would be no need to appoint a guardian or an administrator except for the issues that have recently erupted and, in particular, to be able to deal with the conflict between the two fractions within the family and also PJK’s own strong personality and his own very clear and very strongly held wishes about where he particularly wants to live. The tribunal, having listened very carefully to PM in discussing these matters, is of the view this afternoon that it is too much to ask her to make the accommodation and service provision and contact decisions; that it is simply too difficult in light of her husband’s views very strongly held to impinge on the wife/husband relationship.
And that in tandem with the conflict that exists within the family and, therefore, her inability, we believe, to be able to handle communication with her husband’s children in a way that will foster consultation as is required by the Act, that it is necessary to continue the appointment of the Adult Guardian, but not for all of PJK’s personal matters. The Enduring Power of Attorney that PJK signed appointing PM sets out that she will make decisions in all of his personal matters. We are going to appoint the Adult Guardian today to make decisions around accommodation, service provision and contact. We are of the belief that those – particularly the accommodation and contact decisions – are the most important and most difficult decisions that need to be made for PJK in the immediate future.
You may not have realised that what we have left with PM is all of his health decisions. Now, the appointment of the Adult Guardian today will override the Enduring Power of Attorney for only the nominated personal decisions. That’s accommodation, provision of services and contact; that all other personal decisions, including his health decisions, we are for the moment leaving to PM under the Enduring Power of Attorney. So there will be dual decision-making in guardianship matters. This places a very hard responsibility on both the guardian and on the attorney. What it means, particularly for you, PM, is – because you are the one that’s on the spot, that will be seeing PJK regularly – you have to speak regularly to the Adult Guardian and you have to consult on an equal basis as a substitute decision-maker with the Adult Guardian and keep the Adult Guardian informed about PJK’s health issues and how they are travelling.
You can be responsible for ensuring that he attends – the caring side of things, which is taking him to appointments and working with the nursing home to ensure that his health, his podiatry, his eyes, his ears, are all up to scratch. The Adult Guardian, in turn, has responsibility for ensuring that you are kept informed about the decisions that the Adult Guardian makes about accommodation, which means that the Adult Guardian will choose where PJK lives and also inherent in that will be the services provided to him and will also assist – will make decisions about how often he leaves the nursing home, perhaps, to come home. So in order to make those decisions you have to keep him informed of that help. Now, we have set up what we hope is a decision-sharing regime, we hope, in a way that will focus things on PJK so that you can be responsible for the things that you have day-to-day control over, but the more difficult important decisions right now we vest with the Adult Guardian.
It may not work. If it doesn’t work somebody will be back here relatively quickly and there will be one decision-maker only. We are attempting to set up a situation where there is equal, but divided, decision-making around PJK for various areas and it involves a fair amount of good will and a lot of communication with the Adult Guardian. Do not sit back and wait for the Adult Guardian to come to you. Keep in contact with Mr H or whatever guardian is looking after PJK and keep him informed – or them informed – by telephone, by letter, by email, if you wish it, whatever. And this is something that you need to assist your mother with, because if it doesn’t work and we are faced with having to make another decision it could go either way.
And, you know, we are hopeful that this will be a workable solution and we are trusting that it will be, but it takes some effort. And that’s what – we are hoping that PM, now that she understands – she says she has – you say you have informed yourself about dementia. You understand more clearly now where it is going. You understand the importance of, as you said during the hearing, looking after him as if he were a child. That is what will unfortunately eventually occur and you know that now. And so you need to come to terms with that and we are of the belief that this part of – part of what has happened is your grieving about losing an equal partner and that is very difficult for you and we accept that. But we hope that given time to get used to this, being fairly close to the nursing home that he’s living in, seeing him frequently, hopefully, having him home and being involved in his health decisions will give you some comfort, but also will be an appropriate decision-maker for PJK because you are accessible and available.
But, please – we’re not sure that this is going to work. We are hopeful that it will. We will see. If it doesn’t there will be another application. In terms of administration, we are satisfied that as we have appointed an independent substitute decision-maker for accommodation it is necessary that the Public Trustee continue to be responsible for PJK’s financials because the two go hand in glove. So we will today continue the appointment of the Public Trustee until further order to, again, work with you, PM. Remember that what we have set up here is a tripartite decision-making process around your husband. We have set up three substitute decision-makers. One for finance and two for personal matters in the same way that you are an equal substitute decision-maker, but for different areas, with the Adult Guardian, so there is a responsibility that you work with the Public Trustee as an equal, as an equal substitute decision-maker to look at the issues around his health and for funding for those matters and also to deal with all of the other areas in which your finances are intertwined.
Because after 30 years of marriage it’s basically joint ownership and that, we hope, is also acknowledged by the way we’ve set up this regime. So the formal orders today from the tribunal will be that the Adult Guardian is appointed as guardian for PJK for accommodation, service provision and contact. That to the extent – that the Public Trustee is appointed – sorry, and we will make that appointment for three years – I should have said that earlier. That the Public Trustee is appointed for PJK for all financial matters. We dispense with the requirement for a further financial management plan. And the appointment will remain current until further order.
The reality is that PJK will need an administrator for the rest of his life now and such is the nature of this illness and so for the foreseeable future that will be the Public Trustee. We will ask the Public Trustee to notify the Registrar of Titles as they have done under the interim order of a longer term appointment and we will ask that they provide accounts as directed by the tribunal. Is there anything that you want to add to any of that that I have missed?
MR GALLAGHER: And the EPA.
MS GARDINER: Yes. I should say the EPA has not been revoked. It has been overtaken. It has been overtaken to the extent that a financial administration order has been made and to the extent that an appointment has been made to the Adult Guardian. For all other matters the EPA is a valid document. It just simply cannot be used and the order that comes out will reflect that. If, at any stage in the future, either the Adult Guardian’s appointment is revoked or the Public Trustee’s appointment is revoked then the responsibility would revert to you, PM, under the enduring Power of Attorney, but that would take another hearing of this tribunal.
PM: So what do I have to do?
MS GARDINER: Okay.
PM: Where does it leave me?
MS GARDINER: It leaves ‑ ‑ ‑
MS ..........: So basically it leaves it the same as it is now.
PM: Yes, ..... there.
MS GARDINER: It doesn’t.
MR GALLAGHER: But understand the difference – just before we do go and that’s the reasons given – the Enduring Power of Attorney still exists. It’s still there.
PM: Yes, but I can’t do anything with it.
MR GALLAGHER: Hang on, just listen. And you can use it for personal decisions, except accommodation, visits and services. But for everything else you’re it from the personal ones.
PM: Well, what is there left?
MS GARDINER: The very big issue of ‑ ‑ ‑
MR GALLAGHER: All the personal ones, health, in particular.
MS GARDINER: ‑ ‑ ‑ health is ‑ ‑ ‑
MR GALLAGHER: And day-to-day issues.
MS GARDINER: There’s going to be a very big ‑ ‑ ‑
MR GALLAGHER: Anyway, that’s it. But as far as finances, no, that’s the Public Trustee.
MS GARDINER: Right.
PM: When I get a ‑ ‑ ‑
MR GALLAGHER: So they are going to go along together.
MS GARDINER: PM, we’ve done our best to explain it to you. I’ve highlighted for you today the importance of you as an equal substitute decision-maker with the two other appointments we’ve made and we’ve explained to the extent that we’re able to explain that the EPA is only overtaken for those personal matters that we have nominated to the Adult Guardian. Please go away and digest what we have said, think about it, talk to your family about it, speak to the Adult Guardian – they may – if you have any questions about how this is going to work on a practical basis. If it doesn’t work the tribunal will review the situation again at a later date, but we would be hopeful that when you’ve had time to move away from today’s hearing and you digest and think about what has happened you will see that you have, and continue to have, a very important and pivotal role in your husband’s life in all areas and also as a substitute decision-maker in some areas. All right.
What will happen now is, practically, the tribunal will issue an order reflecting the matters that we have outlined in the next couple of weeks and we will try and get it out as soon as we can to you. But the arrangements – the appointments have been made from today and will start from today, but it will be followed up with a formal order in the next couple of weeks.
MS……….: Can you just explain to me – when you say the accommodation – that that means that ‑ ‑ ‑
MS GARDINER: Where your step-father lives and with whom he lives.
MS……….: So who is going to decide on whether he should come home or not? That’s the guardian.
MS GARDINER: That’s a contact issue. That will be the Adult Guardian.
MS……….: That’s contact.
MS GARDINER: That’s contact.
MR GALLAGHER: Well, it’s both. If it were permanent accommodation and if it’s on and off visits it is contact.
PM: It doesn’t leave much for me, does it?
MR GALLAGHER: Okay.
MS GARDINER: Thank you, ladies and gentlemen, that’s the end of the hearing today.
MR GALLAGHER: And if you want to discuss it there too, but grab the opportunity of discussing it with who you want to today outside.
MS GARDINER: Have some time outside. And, J, we will finish the hearing now. Thank you.
MS……….: Thank you.
PJK: Thank you very much.
MR GALLAGHER: Thanks, everyone.
MS……….: Bye.
MR GALLAGHER: Bye now.
MATTER ADJOURNED INDEFINITELY
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