RBG
[2024] QCAT 100
•1 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
RBG [2024] QCAT 100
PARTIES:
In applications about matters concerning RBG
APPLICATION NO/S:
GAA15042-23; GAA15043-23; GAA15166-23
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
1 March 2024
HEARING DATE:
5 February 2024
HEARD AT:
Brisbane
DECISION OF:
Member Casey
DECISIONS:
1. The Public Guardian is appointed as guardian for RBG for the following personal matters:
(a) accommodation; and
(b) health care.
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in twelve (12) months.
3. XYT and YZT are appointed jointly and severally as administrators for RBG for all financial matters.
4. The Tribunal directs the administrators to provide an updated financial management plan to the Tribunal within three (3) months.
5. The Tribunal directs the administrators to provide accounts to the Tribunal:
a) Copies of RBG’s bank statements / passbooks / term deposits for the past year;
b) A list of RBG’s current assets and liabilities;
c) A current fortnightly budget of income and expenditure;
d) A copy of the latest accommodation account or statement for nursing home / hostel / rental property or other accommodation or the period;
e) Copies of receipts for any individual items purchased in excess of $500.000;
f) For any shares, investments or superannuation, a copy of all dividends notices or statements received during the year;
g) A signed Declaration as to continuing appropriateness for appointment,
i. For the initial year of the appointment no later than one (1) month after the anniversary of the appointment;
ii. For the year in which a review of the appointment will occur, three (3) months prior to the review of the appointment; and
iii. When requested by the Tribunal.
6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.
7. Before 5 May 2024 the administrator must:
(a) Record the appointment as administrator on any property registered in RBG’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
(b) Provide confirmation to the Tribunal that this has been completed by providing:
(i) A copy of the title search conducted identifying RBG’s property; and
(ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by him.
(c) If no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.
8. If the ownership of any property of RBG changes in any way or he acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
(a) Give a copy of this order to the Registrar of Titles and
(b) Give a notice to the Registrar about the changes or RBG’s interest in another property.
9. The following Enduring Power of Attorney for RBG is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998 (Qld) and section 82(2) of the Guardianship and Administration Act 2000 (Qld):
(a) The Enduring Power of Attorney dated 19 February 2014 appointing SBN, XYT and YZT jointly for financial, personal and health matters.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where any enduring power of attorney is revoked – where need for the appointment of a guardian and administrator
Guardianship & Administration Act 2000 (Qld), Schedule 4, s 7, s 11, s 12, s 14, s 15, s 82
Powers of Attorney Act 1998 (Qld), s 14, s 16, s 109,
s 116
Human Rights Act 2019 (Qld), s 13, s 17, s 19, s 24, s 25, s 48APPEARANCES:
Applicants:
XYT, son
YZT, son
Others:
SBN, wife
NDV, social worker
REASONS FOR DECISION
What is the application about?
RBG (‘the adult’) is 88 years of age and has been married to SBN for many years. The couple has two sons, XYT and YZT, who reside interstate.
On 19 February 2014, the adult made an Enduring Power of Attorney appointing SBN, XYT and YZT, jointly for personal/health and financial matters. The power for financial matters was to begin immediately. The attorneys signed their acceptances.
RBG has a long-standing diagnosis of dementia. As the adult’s condition progressed, his wife became his primary carer.
RBG was admitted to a Queensland hospital via ambulance on 18 November 2023 after sustaining a fall in the home on the preceding day. The adult’s wife had reportedly called the ambulance for him. Later the same day, RBG’s wife was admitted to the same hospital as RBG, following an incident where she was reportedly found wandering and confused in the community in search of her husband.
The adult and his wife were subsequently transferred to a Complex Management Unit (a restricted access ward) of another Queensland hospital on 4 December 2023 for further assessments and discharge planning, upon the hospital gaining consent from XYT and YZT.
On 15 December 2023 the Tribunal received an application from YZT, seeking to be appointed with XYT, to act jointly and severally as guardians and administrators for the adult.
On 18 December 2023 the Tribunal received an application from XYT and YZT seeking an order concerning the Enduring Power of Attorney dated 19 February 2014. The applicants sought for the Tribunal to vary the enduring document by removing the adult’s wife as attorney (on the grounds that she had been deemed by the hospital treating team to lack capacity) and for the remaining attorneys to be appointed jointly and severally. Within their application, XYT and YZT also submitted that they sought to be appointed jointly and severally as guardians and administrators for the adult.
The statutory framework
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship & Administration Act 2000 (Qld) (‘GAA’) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult.
RBG is presumed to have capacity.[1]
[1]GAA, s 7(a).
The GAA defines capacity as follows:[2]
Capacity for a person for a matter, means the person is capable of -
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
[2]Ibid, Schedule 4 (definition of ‘capacity’).
The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA.
The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA.
The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of an Enduring Power of Attorney in accordance with section 109A of the Powers of Attorney Act 1998 (Qld) (‘POA’). The Court may, by order, remove an attorney or change or revoke the document under the provisions of section 116 of the POA.
Does RBG have capacity to make personal and financial decisions?
Evidence
In a report dated 7 December 2023 the occupational therapist within the Complex Management Unit references that the adult had been diagnosed with moderate-severe Alzheimer’s dementia by a geriatrician earlier in 2023 and had since declined intervention from Dementia Outreach. The adult attained scores of 1/30 on an orientation log and 11/20 on the Verbal Test of Practical Judgement, administered by the occupational therapist during the current admission. The occupational therapist reports that RBG demonstrates impaired cognition across multiple domains, including poor task initiation and orientation, memory, attention, sequencing, planning, problem-solving, safety and judgement awareness, executive function and insight into his ongoing care needs. RBG has been observed to be impulsive in mobilising and demonstrates a high risk of falls. The occupational therapist recommends that, due to his cognitive deficits and functional decline, RBG requires full assistance from another person to complete basic and complex personal and instrumental activities of daily living, medication management, financial management (basic and complex), community access and planning, organising and attending appointments. Without such support the adult may be at risk of malnutrition, medication non-compliance and subsequent health issues, self-neglect, poor hygiene and financial mismanagement of shared finances.
In her report dated 11 December 2023 a medical registrar of the Complex Management Unit refers to the above findings from the occupational therapy assessment and details the results of previous cognitive assessments wherein the adult attained the following scores:
(a)46/100 and 39/100 on the Addenbrooke’s Cognitive Examination – III, administered in September 2022 and January 2023, respectively; and
(b)15/30 on the Mini Mental State Examination administered in May 2023.
The medical registrar states that RBG has been diagnosed with dementia (of Alzheimer’s/vascular aetiology) and is prescribed antipsychotic medication pro re nata (PRN) to manage his behavioural and psychological symptoms of advanced dementia. The registrar provides the opinion that RBG is unable to understand the criteria necessary to make or revoke an Enduring Power of Attorney and is able to make simple, not complex, decisions about his personal and financial matters.
At the hearing, the hospital social worker from the Complex Management Unit submitted that, given the above findings, the multidisciplinary team recommends that RBG receive 24-hour care and supervision within a residential aged care facility upon discharge from hospital.
XYT and YZT accepted the medical evidence that the adult has been diagnosed with dementia.
Determination
The Tribunal considered the written and oral evidence.
The clinical evidence establishes that RBG is experiencing advanced dementia of mixed aetiology. He has been longitudinally assessed through multi-disciplinary assessment and clinical observation as having deficits across multiple domains.
During the current hospital admission, RBG has been medically assessed as unable to make complex personal and financial decisions.
Based on the above evidence, the Tribunal is not satisfied that RBG understands the nature and effect of his complex personal and financial decisions as a consequence of cognitive deficits attributable to dementia.
Accordingly, the Tribunal rebuts the presumption of capacity for RBG for his complex personal and financial decisions.
An order about an Enduring Power of Attorney
Evidence
Within a report dated 7 December 2023, by a social worker within the Complex Management Unit, information is disclosed about the decision-making capacity of SBN, wife of the adult. The report includes that SBN has been clinically assessed during her current hospital admission as lacking capacity for welfare, lifestyle, financial and health decisions.
In his applications for the appointment of a guardian and administrator for the adult, YZT indicated that he sought to be appointed jointly and severally with XYT as guardians and administrators for the adult. The applications included statutory declarations that were individually completed and signed by XYT and YZT, detailing their appropriateness for appointment. In contradiction, the applicant stated within his application that he and XYT ‘would like the administration of the EPOA to pass to’ themselves.
In their application for an order about an Enduring Power of Attorney, XYT and YZT sought for the Tribunal to remove of RBG as attorney (on the grounds of her decision-making incapacity) and change the terms of the document so that they may act jointly and severally, rather than jointly. The application was to be considered together with an application by YZT seeking the joint and several appointments of XYT and YZT as guardians and administrators for the adult.
Further to the applications, XYT lodged a feedback form to the Tribunal wherein he stated that the original Enduring Power of Attorney dated 19 February 2014 could not be located. He submitted that the original document was held by a law firm which no longer exists and that one of the lawyers within the firm had since had his licence to practice revoked.
The applicants provided the Tribunal with the only proof of the existence of the Enduring Power of Attorney which they could locate, being an uncertified copy of the document.
Determination
The undisputed evidence before the Tribunal is that wife of the adult, SBN, has a diagnosis of dementia and has been assessed by the treating team as unable to make personal/health and financial decisions as an attorney for the adult appointed under his Enduring Power of Attorney dated 19 February 2014.
The applicants have been inconsistent in their applications and submissions to the Tribunal as they have sought their appointments as guardians and administrators for RBG, whilst simultaneously seeking to act as attorneys for the adult. In any event, the applicants are proposing to be empowered to act jointly and severally as formal decision makers for the adult.
Given the above clinical evidence in relation to SBN’s incapacity to act as attorney for the adult, and the fact that neither the original Enduring Power of Attorney document nor a certified copy of the original has been located to establish proof of power of the attorneys,[3] the Tribunal decided to revoke the Enduring Power of Attorney dated 19 February 2014[4] and hear the applications before the Tribunal submitted by two of the adult’s attorneys seeking their appointment as guardians and administrators for the adult.
Is there a need for the appointment of a guardian for RBG?
[3]POA, s 14.
[4]Ibid, s 16 (d); GAA, s 82(2).
Evidence
Prior to his hospitalisation RBG was in receipt of a twice-weekly wound care service for a leg ulcer. He is eligible via My Aged Care for nursing services and transport.
The hospital treating team has since assessed the adult as requiring 24-hour care and supervision due to the nature and scope of his cognitive and functional impairments. The treating team is recommending that the adult be discharged to a residential aged care facility, together with his wife, SBN.
An accommodation decision is required to ensure the adult will be discharged to appropriate accommodation commensurate with his care requirements to ensure his safety and wellbeing.
With the progression of his dementia, RBG will continue to require complex decisions in relation to his health and wellbeing. RBG also has multiple physical health conditions, for which a decision-maker is needed to consent, or withhold consent, to treatment in accordance with the general principles[5] and the health care principles.[6]
[5]GAA, s 11B.
[6]Ibid, s 11C.
Determination
The evidence establishes that, pursuant to section 12 of the GAA, there is a need for decisions in relation to accommodation and health care matters. There must be an adequate and effective decision-making regime in place for the adult, as otherwise his needs will not be adequately met, nor his interests adequately protected.
Who is the most appropriate person for appointment as guardian for RBG?
Evidence
The options for appointment are the Public Guardian or XYT and YZT.
In their written submissions to the Tribunal, XYT and YZT stated that, should they be granted a formal appointment, they sought to manage all personal/health decisions for SBN and authorise his service contracts. They sought to purchase ‘an apartment in a retirement complex’, so that RBG and SBN could be discharged from hospital to reside together. In their financial management plan, the applicants budgeted $30 per fortnight for the adult’s care and paid support services. In XYT’s feedback form to the Tribunal dated 16 January 2024, he stated that he and YZT sought to make decisions ‘as/when required’ in relation to ‘medical support’ and ‘home assistance’.
The oral submissions of the applicants are summarised below:
(a)They confirmed their plan to purchase an independent living unit within a privately funded aged care complex so that the adult and his wife could live together in their own apartment;
(b)The applicants had identified a specific retirement complex in Queensland and were waiting for the hospital treating team to provide care plans so that staff at the retirement complex could assess the eligibility of RBG and SBN;
(c)XYT and YZT disputed the functional assessment findings of the treating team by stating that, from their observations when they had last visited the adult, he had spent the majority of his time ‘sitting in a chair’ and ‘looking out the window’ and was ‘feeding himself’, ‘dressing himself’ and ‘walking independently’;
(d)Their proposal would enable the adult’s wife to provide him with supervision and meals, whilst support workers could provide assistance to the adult with showering and medication.
The social worker from the hospital’s Complex Management Unit confirmed at the hearing that:
(a)RBG requires 24-hour care from professionals within a residential aged care facility to manage his care needs and his behaviours and psychological symptoms associated with dementia (‘BPSD’); and
(b)SBN cannot supervise and assist the adult as she herself requires 24-hour supervision for her own safety and wellbeing.
Determination
The evidence establishes that XYT and YZT do not accept the discharge recommendations of the Complex Management Unit’s multi-disciplinary treating team which have been informed by longitudinal clinical observation and assessments over two consecutive hospital admissions.
It is a concern to the Tribunal that the proposed appointees would seek to discharge the adult to a new environment wherein he would be deprived of necessary 24-hour clinical supervision and assistance, in circumstances wherein:
(a)the adult has an established diagnosis of dementia;
(b)the adult is being prescribed medication to modify his BPSD;
(c)the treating team has provided details to the applicants in relation to the nature and extent of the adult’s cognitive and functional status his requisite care needs;
(d)the applicants are aware of the circumstances in which the adult was hospitalised, wherein the adult’s wife, SBN, was his primary carer;
(e)the applicants have been informed that SBN has been diagnosed with dementia during the current admission;
(f)the treating team has informed the applicants of SBN’s cognitive and functional challenges and capabilities;
(g)the treating team is recommending that SBN receive 24-hour support and supervision to ensure her own safety and wellbeing;
(h)the applicants have been advised by the treating team that SBN is therefore not capable of providing supervision or assistance to the adult.
The evidence establishes that the proposed actions of XYT and YZT as guardians for RBG would likely pose a risk to the health, safety and wellbeing of both RBG and SBN.
The Tribunal, therefore, is not convinced that XYT and YZT understand, or are likely to understand, the nature and extent of the adult’s cognitive decline and the associated impact on his functional abilities. As a consequence, the Tribunal is not convinced that XYT and YZT understand, or are likely to understand, the adult’s current care needs to ensure his safety and wellbeing.
The Tribunal, therefore, is not satisfied that either XYT or YZT would be able to discharge appropriate decision making for RBG in relation to his accommodation and health care requirements.
The Tribunal is of the view that the Public Guardian, as a guardian with extensive knowledge, skills and experience, would be able to effectively consult with the adult’s treating team and make decisions in accordance with the general principles[7] and the health care principles.[8] The Tribunal determines that the Public Guardian is more appropriate for appointment[9] than XYT or YZT.
[7]Ibid, s 11B.
[8]Ibid, s 11C.
[9]Ibid, s 15.
Accordingly, the Tribunal appoints the Public Guardian as guardian for RBG for the accommodation and health care matters. The appointment is to remain current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in twelve (12) months.
Is there a need for the appointment of an administrator for SBN?
Evidence
According to the applicants, SBN is a self-funded retiree whose assets include a sole superannuation account along with assets jointly held with his wife (being his principal place of residence, cash deposits in two bank accounts and a vehicle). SBN derives his income from his superannuation stream and interest from his cash investments. His expenditure is in relation to his property, vehicle, long-stay hospital fees and personal/living costs. There are no reported liabilities. A contract with an accommodation/service provider is likely to require authorisation, pending the decision of the guardian.
Determination
SBN has complex financial matters that require management.
The Tribunal is satisfied that, pursuant to section 12 of the GAA, there are many financial decisions that are required for SBN. There must be an adequate and effective decision-making regime in place for the adult, as otherwise his needs will not be adequately met, nor his interests adequately protected.
Who is the most appropriate person for appointment as administrator for SBN?
Evidence
The options for appointment are the Public Trustee of Queensland or XYT and YZT.
In their submissions to the Tribunal the applicants said that XYT had been informally supporting the adult with bill paying since his hospitalisation as XYT’s daughter had been attending the adult’s Queensland property and has forwarded all invoices to XYT. The applicants submitted that, should they be appointed as administrators, they would utilise the adult’s cash deposits to meet all expenditure. Their proposed actions did not indicate consideration of the adult’s superannuation fund or associated income stream. In XYT’s feedback form to the Tribunal dated 16 January 2024, he stated that the adult’s jointly held property would ‘ultimately’ be sold.
The applicants told the Tribunal that, as they have been successful in managing their individual financial interests, they would therefore be able to utilise their acquired skills to effect financial decision making as administrators for the adult. Both XYT and YZT submitted completed and signed statutory declarations in relation to their appropriateness for appointment.
In their oral submissions at the hearing, prior to being advised of the outcome of their guardianship application, XYT and YZT provided assurances that, should the Tribunal appoint the Public Guardian as guardian for SBN, they would as administrators work collaboratively with the guardian and give effect to accommodation and health care decisions made by the guardian.
Determination
The Tribunal accepted the oral submissions of XYT and YZT, in so far as they have sought to support the adult informally with financial decision making using their acquired knowledge, skills and experience.
The Tribunal did not accept the applicants’ financial management plan dated 15 December 2023 for the following reasons. The document:
(a)includes their intention to utilise the adult’s funds to purchase an independent living unit within an aged care complex for the adult and his wife, which is contrary to the treating team’s recommendation of residential aged care for the couple; and
(b)does not include details of the applicants’ proposed management of the adult’s superannuation account valued at approximately $300,000 and the associated income stream.
Notwithstanding the above factors in relation to the applicants’ financial management plan, the Tribunal is satisfied that XYT and YZT would be able to liaise with all stakeholders, including the Public Guardian, and make financial decisions that best meet the adult’s needs in accordance with the general principles.[10] XYT and YZT are considered the appropriate appointees, having regard to the provisions of section 15 of the GAA.
[10]Ibid, s 11B.
Accordingly, the Tribunal appoints XYT and YZT as administrators for RBG for all financial matters. The administrators are to provide an updated financial management plan to the Tribunal within three (3) months. The plan is to include consideration of financial decisions pertaining to the adult’s real estate property in the context of an accommodation decision being made by the guardian. The administrators are directed to submit financial documentation to the Tribunal at the following times: no later than one (1) month after the anniversary of the appointment (for the initial year of their appointment); three (3) months prior to the review of the appointment; and when requested by the Tribunal. The administrators are also required to undertake a title search at the office of the Registrar of Titles for details of the adult’s real estate, lodge the order of the Tribunal with the Registrar, and provide a copy of the lodgement summary and title search to the Tribunal by 5 May 2024. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.
The Tribunal gave consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. RBG’s rights to property,[11] freedom of movement,[12] privacy,[13] and protection from being subject to medical treatment without his full, free and informed consent[14] are engaged and limited by the guardianship and administration appointments. Taking into account the findings above in relation to the criteria set out in the GAA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA.
[11]HRA, s 24.
[12]Ibid, s 19.
[13]Ibid, s 25.
[14]Ibid, s 17.
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