Re: CDO

[2013] QCAT 276

CITATION: Re: CDO [2013] QCAT 276

PARTIES: CDO

APPLICATION NUMBER: GAA2539-13
GAA3174-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 13 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for a declaration about capacity is dismissed pursuant to s47 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

ENDURING POWER OF ATTORNEY – capacity to make grant – where evidence did not rebut the presumption of capacity – where application lacked substance

Power of Attorney Act 1998 – Schedules 1 & 3
Queensland Civil and Administrative Tribunal Act 2009 s 47

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. CDO is 91 years of age.  She has a large family of sons and daughters.  Over the past few years she has at times shown particular favour to some of her children and then she appears to fall out with them.  CDO has made three Enduring Powers of Attorney over this period, reflecting the periodic change in her attitudes to her children. 

2. One of her children, CR, applied to QCAT seeking a declaration about the capacity of CDO to revoke on 24 September 2012 an Enduring Power of Attorney in which he had been appointed the sole attorney for CDO.  CDO also made a new Enduring Power of Attorney on that day appointing one of her grandchildren as her sole attorney.

3. One of her other children, CJ, applied to dismiss the application before hearing under section 47 of the QCAT Act rather than the application for a declaration about capacity having to proceed to a hearing. QCAT has the power to bring an early end to proceedings if the tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.

4. The General Principles set out in Schedule 1 of the Powers of Attorney Act 1998 express the presumption at law that an adult has capacity for decision making. QCAT must apply the General Principles when considering applications under the Powers of Attorney Act 1998. The presumption can be rebutted by evidence that an adult does not in fact have decision making capacity in terms of the definition of capacity in Schedule 3 of the Powers of Attorney Act 1998. 

5. CR is seeking a declaration that CDO did not have capacity on 24 September 2012 when she made a new Enduring Power of Attorney and revoked an earlier grant of power to him.  As applicant, CR must provide some evidence that is capable of rebutting the presumption that CDO had capacity to undertake those actions.  CR provided a copy of an assessment conducted by the Aged Care Assessment Team (ACAT) dated 26 June 2012 and copies of correspondence setting out information about the rather fractured family relationships during 2011 and 2012.            

6. According to the ACAT assessment, CDO had scored 21 out of 30 in a Mini Mental State Examination (MMSE) and 23 out of 30 on a Rowland Universal Dementia Assessment Scale (RUDAS).  While a score of 21 on the MMSE generally is interpreted as an indicator of the presence of some mild impairment of cognitive functioning, a score of 23 on the RUDAS may not generally give rise to the same indication.   The ACAT assessment also mentioned that CDO had exhibited some behaviours of concern, lacked insight, had paranoid ideation, and had demonstrated regular short term memory problems.  The assessment also referred to occasional long term memory problems, confusion and impaired orientation as to time and place. 

7. CR had submitted that in changing her attorney, CDO was in fact demonstrating signs of dementia and of impaired capacity.  That might be a valid conclusion to draw in cases when an elderly person does not recall that they had appointed an attorney and makes repeated but contradictory appointments over a short period of time.  CR did not provide any cogent evidence to support a conclusion that in merely exercising her lawful right to change attorneys CDO was in fact demonstrating a lack of capacity to understand what she was doing.  It is clear that CDO had changed her allegiances between 2011 and September 2012 and that she wanted to change her attorneys to fit in with her changed attitude to various family members. 

8. However the ACAT assessment did provide some limited evidence relevant to the issue of capacity but that evidence has to be considered in light of other evidence provided to QCAT.  Dr O’Dempsey provided a report dated 14 September 2012.  He referred to CDO achieving a MMSE score of 25 out of 30 on 10 August 2012.  Dr O’Dempsey stated that there may be the possibility of some cognitive impairment.  He reported that CDO was very suspicious of her five children. 

9. Dr McGree had been CDO’s general medical practitioner between 1999 and 2011 when she left Gladstone for medical and rehabilitation treatment for a fracture of her left femur. CDO returned to Gladstone in about October 2012 and she consulted Dr McGree again.  In a report dated 23 October 2012, Dr McGree expressed an opinion that CDO was oriented in time, place and person and noted that CDO scored 29 out of 30 on a MMSE on 22 October 2012.  He expressed the opinion that she was fully able to understand the nature and effect of an Enduring Power of Attorney and to understand decisions about financial, personal and health matters made under an Enduring Power of Attorney.     

10. Dr McGree concluded that the MMSE score indicated that CDO has no significant cognitive impairment, she does not suffer from any disorder which could affect her sound mind, important memory and understanding. Dr McGree noted that with her new hearing aids CDO did not present anywhere near as vague as she had previously.

11. Between June 2012 and 22 October 2012 there were at least 3 occasions when CDO participated in a MMSE and on the latter two occasions she showed an improved score.  According to the correspondence provided to QCAT, she had been upset and made anxious over family matters in 2012 up until she returned to Gladstone in October 2012.  Fitting of new hearing aids may also have had a positive influence on the improved scoring. 

12. I concluded that the evidence provided by the MMSEs is capable of supporting an inference that CDO’s functioning was not indicative of any significant cognitive impairment during the period from June 2012 to October 2012 and her functioning may have been adversely affected prior to October 2012 due to anxiety issues and to a lack of appropriate hearing aids.  Evidence was provided by family members which was consistent with the inference that CDO was not demonstrating any significant cognitive impairment in that period although at times she was changeable in her affections and allegiances.  However, those changes in her attitude to family members appear to coincide with CDO becoming aware of activities involving her property that she opposed, such as restrictions placed on withdrawals from her bank account or the proposed sale of her house.  A letter written by CDO in April 2013 confirms this inference. 

13. The last piece of evidence that is directly relevant to the issue of CDO’s capacity as of 24 September 2012 was provided by the person who had certified as to her understanding of the Enduring Power of Attorney.  Michael Clive was a lawyer of over 18 years experience in September 2012 and he had taken instructions from many clients over those years about making Enduring Powers of Attorney.  He stated that CDO had demonstrated a good recall of the events that resulted in her decision to make a new Enduring Power of Attorney.  He stated that she demonstrated to him an understanding of the powers exercised by an attorney and why she wanted to make a change of her attorney.  Mr Clive later sought medical opinion as to CDO’s capacity to understand the Enduring Power of Attorney and was confirmed in his opinion by the report of Dr McGree discussed above. 

14. CR made submissions as to why the application should not be dismissed but he produced no evidence to satisfy me that he had successfully contradicted the opinions of Dr McGree or Mr Clive.  I was not persuaded by his submissions in the absence of some objective evidence to support his assertions that CDO had some relevant impaired decision making capacity.  Other family members in addition to CJ supported the application being dismissed prior to hearing and made submissions that in effect the evidence did not rebut the presumption of capacity.

15. After considering the voluminous amount of documents filed by the parties, I have concluded that the evidence produced to the tribunal is not capable of rebutting the presumption that CDO had capacity to make a new Enduring Power of Attorney on 24 September 2012 and to revoke her former grant of power.  The medical evidence established that CDO manifested no significant cognitive impairment on 24 September 2012 and the witness who certified as to her understanding of the document provided clear and unequivocal evidence of the sound grounds on which his certification had been given.  

16. A hearing would in those circumstances serve no useful purpose and would place unnecessary anxiety onto CDO and would reinforce divisions within the family. I concluded that the application lacked substance and should be dismissed under section 47 of the QCAT Act.