PM
[2011] QCAT 363
•2 August 2011
| CITATION: | PM [2011] QCAT 363 |
| PARTIES: | PM |
| APPLICATION NUMBER: | GAA9786-10 / GAA10227-10 / GAA10250-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 27 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member B Bayne, Member |
| DELIVERED ON: | 2 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for an order about an Enduring Power of Attorney is dismissed. 2. The Adult Guardian is appointed as guardian for PM for decisions about the following personal matters: (a) With whom PM lives; (b) With whom PM has contact and/or visits. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 4. The Public Trustee of Queensland is appointed as administrator for PM for all financial matters. 5. The administrator is to provide a financial management plan to the Tribunal within three (3) months. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. 8. 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 PM (“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. 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 fourteen (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. The administrator pay, from the adult’s funds, any fee associated with the above notices. |
| CATCHWORDS: | GUARDIANSHIP – capacity for decision making – where adult influenced by family members – where adult found unable to understand complex matters – where family conflict – where family members inappropriate for appointment – where independent decision makers required Guardianship and Administration Act 2000, s 12 |
REASONS FOR DECISION
PM is 82 years of age. She lives in her family home with two grandsons. She is a widow and she has six adult children. Two of those children, SE and PA, lodged applications with the Tribunal seeking the appointment of an administrator and a guardian for PM as well as seeking orders about an Enduring Power of Attorney. The applications were supported by two other adult children, TM and HH, but were opposed by PM and by two further adult children, PAN and GI.
On 27 July 2011 the applications came on for hearing by the Tribunal. PM, her six adult children and two grandchildren, and the husband of one of the grandchildren, attended the hearing. An interpreter was present and interpreted all the proceedings for PM.
The issues for the Tribunal are:
(a) Does PM have capacity for making personal and financial decisions; and if not,
(b) Is there a need for a Guardian? If so, who should be appointed?
(c) Is there a need for an Administrator? If so, who should be appointed?
The Guardianship and Administration Act 2000 defines capacity as:
“capacity”, for a person for a matter, means the person is capable of-
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only in regard to capacity but also as to the need for appointment as set out in section 12 of the Act and as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
The Tribunal relied on the written material contained on the Tribunal file. In addition to that material, all of the parties attending the hearing were given the opportunity to express their views. The hearing took place over a 3 hour period but at 5pm the tribunal had not finished its deliberations. The tribunal informed the parties that the decision was reserved and reasons would be delivered shortly after the hearing.
DOES PM LACK CAPACITY FOR THE MATTER?
The Tribunal obtained a health professionals report from Dr H, a GP who states that she has known PM for 20 years. In the report dated 17 December 2010, Dr H reported that PM probably had no current medical conditions, that in the past PM had sometimes had some confusional states, PM is very reluctant to see any specialist and to take medication. Dr H stated that PM had been referred to see Dr Kortlucke, a geriatrician, at the end of January 2011. Dr H could not provide any opinion on PM’s ability to understand and act on information about personal or financial matters. Dr H did state that PM was influenced by different family members and that the influences are confusing. Dr H would not provide an opinion as to whether PM could make either simple or complex decisions. Dr H reported that PM had in the past hallucinations although she had felt well at the time.
A report dated 25 January 2011 was provided to the tribunal by Dr Peter Kortlucke, a geriatrician. PM had consulted Dr Kortlucke on one occasion only. Dr Kortlucke reported that PM had scored 27 out of 30 on a Mini Mental State Examination which score was described by Dr Kortlucke as being within the normal range. He expressed the opinion that PM had normal cognition and was quite capable of understanding and acting on financial information and she gave a good account of current issues with her family and she could quote accurate figures. Dr Kortlucke was of the opinion that PM could make decisions freely and voluntarily and was not influenced by others. Dr Kortlucke was of the opinion that PM could make all simple and complex decisions.
A further report from a health professional was received from Dr K dated 16 February 2011. Dr K had seen PM on only one occasion by that date. Dr K reported that PM had scored 30 out of 30 on the Mini Mental State Examination. Dr K stated that PM drives her own car and has not been sick for 3 years. He stated that PM had only a grade 6 level education but she does her own banking and pays her bills. Dr K expressed the opinion that PM was not influenced by other people. He reported that she had executed an Enduring Power of Attorney after her husband had died but was of the opinion that she could not understand any of the elements of an Enduring Power of Attorney. Dr K was of the opinion that PM could make all complex decisions.
Dr Kortlucke and Dr K both consider that PM has capacity to make her own decisions. They had only each seen PM on one occasion and naturally have accepted as accurate the history she gave them about her current circumstances. The tribunal has taken the views of these doctors into account (Dr H did not express an opinion on capacity) but it is the role of the tribunal to reach its own conclusion, based on all the evidence, about PM’s capacity. The tribunal has taken into account the views about capacity expressed by all the persons who attended at the hearing.
In particular the tribunal has taken into account the evidence given by PM at the hearing and also the evidence contained in a statement that she has signed. In listening to the evidence of PM, it became apparent that PM’s decision making was influenced by her perceptions of what various members of her family had done to diminish her ownership in her house. It is important for that reason to set out what PM told the tribunal, both at the hearing and in the statement provided to the tribunal about her ownership of the house.
PM was asked to explain to the tribunal the circumstances about the ownership of the house in which she lived. She told the tribunal that she and her husband had owned a half interest in the house and when he died her husband had left his part to her for as long as she lived. The other half interest had been in the name of TM her daughter who had sold that interest to PM’s other daughter, SE. PM told the tribunal there was a mortgage over the house as SE did not have the money to buy the interest of her other daughter.
This evidence is for the most part corroborated by the documents obtained from the Titles Office. The current title search reveals that PM has a one quarter interest in the house and the personal representatives of her late husband’s estate hold a one quarter interest as well. SE has a half interest. The property is subject to a mortgage to a bank.
However PM has given a different account of the ownership on other occasions. On 3 February 2011 (described also as 3 February 2010 but this is a mistake) PM signed a written statement in support of a complaint she had made to the police. She stated that she had lived in the house for about 13 years with her husband and that the title of the house was at that time in the name of her and her husband. That statement was wrong as will be seen later.
She further stated that after the death of her husband on 1 November 2007 four of her children (TM, HH, PA and SE) started to ask her about the house title. She stated that the children had said that they would put her husband’s share in the house in PM’s name. She stated that her son PAN and her daughter, GI had then told her that her name had been taken off the land title. Again, this was not correct.
In the statement, PM states that the historical title records show that on 17 January 2007 the land title was in the name of her husband, PM, TJ and TM. She further states that on 19 October 2007 the title search reveals that the title is in the names of PM and her husband but on 2 November 2007 a correction of title is made. On 18 March 2008 a transmission with the original will shows the names on the title as HH and PA and PM as the tenant. On 1 May 2008 the title shows the names of HH and PA with PM and SE as tenants. Again this is not correct. The parties are shown as tenants in common (not tenants) and the title correctly states the legal terminology for the manner in which more than one person holds a joint title in property.
This statement reveals that PM misunderstood in February 2011 many of the details about the state of the title to her house. According to the historical title records from the Titles Office, the house was transferred to the family in 1999. It was owned in 1999 by PM and her husband as to one half share and by TM and TJ as to the other half share. TJ’s interest was transferred to TM (but confusingly she was named as PM in the transfer document) on 19 October 2007.
It is quite obvious that the transferee of the interest (i.e. the person who got the benefit of the transfer) that was registered on 19 October 2007 is the same person called TM in these proceedings as the same commissioner of declarations on the same day had witnessed the signatures of the person who had signed as TM and as PM respectively. The signatures are virtually identical for the name “M” as would be expected if the same person signs the name twice.
PM in her statement to the police in February 2011 wrongly assumes that the PM referred to in the transfer document registered on 19 October 2007 is herself when it is actually her daughter. PM states that the signature is not her signature. That is correct as it was not meant to signify PM but signifies her daughter.
PM repeats this mistake when she refers to the transfer document that is used to register the transfer of the half interest in the house to SE. PM assumes the signature on that transfer document is supposed to be her signature when it is always meant to be her daughter’s signature who was the owner of the half interest in the house being transferred to SE. The confusion stems from TM using the name PM in these transfer documents. This confusion occurs elsewhere: there are several examples in this proceeding where E and I use the surname of P for some events but then use S or G respectively at other times.[1] The correction made by the Titles Office on 2 November 2007 clearly is meant to distinguish between PM with a one quarter share and PM (TM) with a half interest in the house.
[1]Letter from Centrelink dated 26 October 2010 refers to PI but she is described as GI in the 3 February 2011 police statement. PE is used in the Titles Office documents but SE is the name used in the application documents in this tribunal.
GI and PAN have accused TM and their other siblings of forgery and fraud. The documents do not show any such state of affairs. GI and PAN have told PM, and appear to have convinced her, that her other children have effectively stolen her interest in the house. PM’s comments at the hearing reveal that she has been influenced by these incorrect statements from PAN and GI.
PM’s actions since about November 2010 appear to have been motivated by a desire to get back her entitlement in the house when in actuality her interest in the house has not changed since 1999. Her statements in writing and made orally to the tribunal reveal a misunderstanding of the complex issues involved in the ownership of her house. That misunderstanding has been encouraged by the misinformation given to her by GI who informed the tribunal that she had carried out the research which would prove (wrongly) the forgery and fraud of her siblings.
That is not the only mistaken belief that the evidence reveals is held by PM about her affairs. She purported to revoke an Enduring Power of Attorney on 23 February 2011. At the hearing the tribunal was told that GI had convinced PM that she had given an Enduring Power of Attorney to her children TM, HH, PA and SE. This was not correct. There was no Enduring Power of Attorney. PM could not explain adequately to the tribunal why she had revoked a document that she should have known she had not made.
Those matters reveal to the tribunal the limitations in the understanding and knowledge held by PM about her affairs. Those limitations are not explained away by the fact that PM’s first language is not English. Her evidence at the hearing was given via an interpreter and every word spoken at the hearing was translated. PM gave every impression of understanding what was being said at the hearing and was comfortable about expressing her views.
Further matters can be taken into account when considering the issue of PM’s capacity for decision making. PM stated that she wants to hold TM to an agreement made some years ago to sell a half share in the house to PM for $60,000. This agreement is no longer able to be carried out as TM has not owned a half share in the house since May 2008. Evidence was given by both TM and SE that PM had supported the arrangement for the sale of TM’s half share to SE in 2008.
PM listened to this evidence but did not dispute this evidence at the hearing. She was aware of the sale in 2008. PM was aware that a mortgage had been taken out over the whole of the interest in the house to support that sale. PM gave evidence that she is attempting to make the fortnightly repayments on that mortgage although she was not the only borrower of the loan that is secured over the house.
PM did not appear to understand that she no longer could pay $60,000 to TM for the rest of the interest in the house. PM’s thought processes appear to be unreasonably fixated on obtaining the rest of the interest in the house for $60,000. She is encouraged in that belief by her daughter, GI who had at one stage engaged lawyers on behalf of her mother to pursue her purported lost entitlements in the house.
PM could explain some day to day financial matters but could not explain more complex issues such as the extent of her obligations under the mortgage, why she was trying to repay the full monthly mortgage instalments when SE was also responsible for the mortgage, the effect of the mortgage being in default or what the arrears of mortgage were. The financial information she provided to the tribunal lacked detail and PM manifested in her evidence a lack of a true appreciation of the consequences of actions she had taken.
PAN and GI told the tribunal that they believed that PM could make all her own decisions. However PAN also stated that PM needed protection and would be lost without that protection. The other children were of the view that PM was being unduly influenced and that she could not make her own decisions.
The tribunal commenced the hearing with the presumption that PM had the capacity to make her own decisions. The medical evidence provided to the Tribunal did not rebut that presumption. However evidence about PM’s decision making capacity was not solely contained in the medical reports but was also provided to the tribunal in the oral evidence given by the parties at the hearing. .
The Tribunal analysed the evidence given by PM and the other active parties in terms of the criteria for determining capacity set out in the Act. The tribunal finds that PM could not understand the decisions that had been made about the ownership shares in her house and about taking out a mortgage over her interest in the house. These are complex matters. The tribunal finds that PM could not understand the consequences of some of the decisions she had made such as using her limited income to make all the monthly repayments on a mortgage that was not solely for her benefit or supporting the transfer of a half interest in the house to SE but still expecting TM to honour an agreement to transfer that interest to her mother.
PM has been influenced in decision making by those family members on whom she has relied from time to time. She was influenced against her own interests to take out a mortgage of $230,000 over her one quarter share in the house but received only a small benefit from the borrowings. She was influenced to believe that she had been the subject of forgery and fraud when the Titles Office documents clearly reveal otherwise. She has been influenced to allow members of her family to live in the house with the consequence that the house is not being tenanted and with the consequence that an income stream, which could help pay expenses such as the mortgage, is foregone.
After considering all of the evidence, the tribunal concludes that PM cannot understand the nature and effect of decisions about complex matters and cannot make decisions freely and voluntarily about complex matters.
The Tribunal concludes that the presumption of capacity has been rebutted by the evidence and concludes that PM does not have capacity to make decisions about complex matters.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
Under section 12 of the Guardianship and Administration Act 2000 the tribunal may appoint an administrator if there is a need for decisions to be made for an adult about financial matters and without an appointment the decision making needs of the adult cannot be adequately met.
Decisions about complex financial matters will be required to be made for PM in the near future: the mortgage over her house is in default and arrears are outstanding, there is no rental income coming in, her current level of expenditure is not covered by her income. It is not clear what contribution is being made to the household expenditure as a result of her grandsons living in the house with PM.
The tribunal considers that informal arrangements for decision making are unlikely to be adequate to meet the decision making needs of PM. She is vulnerable to influence. Events over the past 12 months (such as the change from SE to GI as nominee for PM at Centrelink) have shown that it is necessary for one person to have demonstrable legal authority to make financial decisions for PM. The tribunal is satisfied that an appointment of an administrator is necessary under section 12 of the Act.
WHO SHOULD BE APPOINTED AS ADMINISTRATOR?
The applicants, SE and PA, seek the appointment of themselves as administrators for PM. It was quite apparent from the hearing and from the documents filed by the active parties that PAN and GI would not accept the validity of decisions if made by their siblings, PA and SE. There is such a high level of conflict between the siblings that each of the camps regards the other with highly vocalised contempt.
One of the responsibilities of an administrator is to consult with the adult and with persons within the adult’s support network before decisions are made. The tribunal is satisfied that communication between the siblings has broken down irretrievably after accusations of forgery and fraud were made to the police and after applications to obtain domestic violence orders against family members were made.
The tribunal cannot be satisfied that any family member, if appointed as administrator, would be able to comply with the obligation to consult genuinely with the family and take their views into account when making decisions. SE is a joint owner of the house with PM. Decisions made by SE about dealings with the house would almost certainly be subject to complaints of conflict of interest.
The tribunal is of the view that an administrator from outside the family and independent of the family would be better placed to liaise with all interested parties, assess the relative merits of options for action about the house and PM’s income and expenditure and make decisions that best meet her needs. In this respect, The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The tribunal considers that The Public Trustee of Queensland is the appropriate appointee as administrator in this case.
The appointment of the administrator is made until further order of the tribunal. This means that the appointment is made for an indefinite term. Parties can apply to the tribunal to seek a review of the appointment at any time but must be able to satisfy the requirements of the Practice Direction of the tribunal as to the existence of a change in circumstances together with evidence that another person is more appropriate for appointment as PM’s administrator at that time.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
Section 12 of the Guardianship and Administration Act 2000 also provides the grounds on which a guardian can be appointed by the tribunal. Are there decisions about personal matters that need to be made for PM and can those decisions be made if a guardian is not formally appointed by the tribunal?
PM has resided in the family home with two grandsons for most of this year. This situation came about following the actions of some of her adult children in building a fence on the property without proper consultation with PM. The fence was later removed and some of her family members have stated that there is a need for PM to have some on the spot protection in the house.
Other family members disagree with this arrangement, regard the presence of the grandchildren as an attempt to isolate them from their mother, consider it is nothing more than their mother being taken advantage of and is an unnecessary burden on an elderly woman. They alleged that PM had indicated that she did not like her grandsons living with her. At the hearing PM appeared to be content with the arrangement.
It was alleged that family members are being prevented from seeing their mother or coming to the house to visit her. PM did not attend the wedding of her granddaughter as a result of the family conflict. It was alleged that her non-attendance at the wedding was the result of influence by other members of her family.
The evidence has satisfied the tribunal that there are decisions that need to be made about who PM lives with and who she has contact with. Over the past several months, decisions about these personal matters have been made for PM on the basis of promoting the aims of the feuding camps within the family.
The tribunal is satisfied that the family members who have been instrumental in these particular decisions being made have not proceeded from a consideration of what PM would properly want but on what they can achieve in the conflict with their siblings. It is extremely regrettable that PM was persuaded not to attend her granddaughter’s wedding as that opportunity will not occur again. The tribunal considers that that decision was likely to have been influenced by the same intemperate language used by PAN at the hearing who told the tribunal that he had given his mother a choice between evil people who bash sick old people and people who want to protect her.
The tribunal has been satisfied that the evidence supports the need for the appointment of a guardian. The Tribunal is again of the view that an independent appointee would be better placed to liaise with all interested parties and to assess the relative merits of options for decisions about the people PM lives with and who she has contact with. Family members have proven to be inappropriate when making personal decisions for PM as they are irretrievably in conflict with each other and are unwilling to speak to each other. The tribunal is satisfied that neither side of the conflicting parties would accept the validity of decisions made by the other. The family has demonstrated an inability to apply the general principles when decision making for PM.
The Adult Guardian is an independent decision maker and has extensive skills and experience. The Adult Guardian is considered by the tribunal to be the appropriate appointee as guardian in this case. The tribunal appoints the Adult Guardian for the limited purpose of making decisions about who lives with PM and who she has contact with. The appointment is to be reviewed in two years.
The remaining application related to orders about an Enduring Power of Attorney. As the tribunal is satisfied by the evidence that PM had not granted an Enduring Power of Attorney, the application is dismissed.
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