Re: EWH
[2013] QCAT 137
| CITATION: | Re: EWH [2013] QCAT 137 |
| PARTIES: | EWH |
| APPLICATION NUMBER: | GAA9409-12 / GAA9404-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 8 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | E Morriss, Member L Clarkson, Member |
| DELIVERED ON: | 8 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to EM and ES to resign as attorneys for EWH under the Enduring Power of Attorney dated 15 March 2001. 2. The Adult Guardian is appointed as guardian for EWH for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. 4. The Public Trustee of Queensland is appointed as administrator for EWH 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 of The Public Trustee of Queensland remains current until further order of the Tribunal. 8. That before 8 May 2013 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 9. If the ownership of any property of the adult changes in any way or the adult 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 the adult’s interest in another property. |
| CATCHWORDS: | Guardianship and administration – capacity – Enduring Power of Attorney Guardianship and Administration Act 2000 (Qld), s 12, s 118, s 119, s 124, s 125 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MF Solicitor |
REASONS FOR DECISION
EWH is a seventy nine year old retired doctor. He lives with his wife EM and their son ES. He has a wide range of interests, including collecting rocks and fossils, listening to classical music, attending concerts and art exhibitions, and reading books.
The Queensland Civil and Administrative Tribunal (QCAT) received an application regarding EWH from MF, Solicitor, for the appointment of a guardian, nominating the Adult Guardian, and an administrator and nominating the Public Trustee of Queensland.
An application for an interim order was received from MF Solicitor but this was dismissed by the Tribunal on 6 November 2012.
The Tribunal was informed that there was an Enduring Power of Attorney in place dated 15 March 2002 appointing EM and ES attorneys for financial and personal/health matters, severally. The financial powers were nominated to begin immediately.
EM and ES had been acting as financial attorneys for EWH after assessments by Dr Vearncombe and Dr Kennett from the Healthy Ageing Team determined he did not have capacity for financial matters.
The matter was scheduled for hearing on 16 November 2012, but the matter was adjourned to allow for assessments of EWH’s capacity and of the family psycho-social circumstances.
A further application for interim orders was received from MF, on 4 December 2012. This application was dismissed by the Tribunal on 19 December 2012.
The hearing was held on 8 February 2013.
Leave to Appear
The Tribunal may give leave for an active party to be represented by a lawyer or agent under ss 124 or 125 of the Guardianship and Administration Act 2000. Under s 119, the adult is considered an active party. Any current attorney for the adult is also considered an active party, so this would include EM and ES. Parties may also be represented under s 43 of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal received an application from MF for EWH to be represented. In the interests of justice the Tribunal granted leave to appear on his behalf to CH, Counsel.
The Tribunal also received an application from MW Solicitor for EM and ES to be represented. The Tribunal granted leave to DP, Counsel to appear on their behalf.
No objections were raised for either parties to have representation.
Leave to Resign as Attorneys
The Enduring Power of Attorney dated 15 March 2002 appointed EM and ES as attorneys for financial and personal/health matters, severally, and the financial powers were nominated to begin immediately.
Correspondence was received from WP Solicitors dated 7 February 2013 indicating that EM and ES wished to resign from the role of attorneys. All parties at the hearing were informed regarding this application, and the Tribunal abridged time required to give notice of this matter under s 118 of the Guardianship and Administration Act 2000, to enable the application to proceed.
At the hearing, DP indicated that although dedicated to EWH, EM and ES had experienced practical difficulties in fulfilling their roles. They believed that continuing as decision makers would lead to animosity and conflict in the family. They wished to remain involved and to be consulted in decision making, but requested the Tribunal give them leave to resign, and if appropriate, independent decision makers could be appointed.
No objections were raised. Leave to resign was granted.
Does EWH have capacity to make financial and personal decisions?
The Tribunal is required to determine capacity in accordance with s 12 of the Guardianship and Administration Act 2000. The Tribunal considered medical reports to determine EWH’s decision making capacity:
a) A letter from Dr Gerard Byrne (Psychiatrist) dated 25 May 2010 to the Medical Board of Australia indicates EWH had clinically significant cognitive impairments. New learning ability was poor, difficulties with verbal fluency and with clock drawing. He was impaired and not fit to practice. Mini Mental State Examination was 26/30 but this reflects his high level of premorbid intellectual function.
b) A letter from Dr Devadason Consultant Psychiatrist dated 11 April 2011, refers to clinically significant dementia, with evidence of cognitive impairment and deterioration in cognitive domains i.e. attention and memory.
c) A report from Dr Colin Kennett (Geriatrician) from the Healthy Ageing Team dated 18 July 2012 notes a medical history of dementia, anxiety or depression, diabetes, hypertension, and hypercholesterolemia. Based on collateral history, past medical history, psychiatric history and apparent in sightlessness he concluded EWH lacked financial capacity. A report from Dr Katherine Vearncombe (Neuropsychologist) dated 5 July 2012 also indicated he lacked financial capacity.
d) A report from Dr Moyle (Psychiatrist) dated 23 October 2012 referred to impaired frontal lobe function, with a risk of impulsive actions. He concluded that EWH retained some ability to express his views on how his finances should be spent, he is unable to weigh up multiple interests of others and he needs a guardian to ensure his best interests are met without his poor judgement interfering with those decisions
e) A report from Dr Gerard Byrne (Psychiatrist) dated 31January 2013 referred to clinically significant cognitive impairment of sufficient severity to warrant a diagnosis of dementia of mild to moderate severity. His new learning is impaired with rapid forgetting of newly acquired information. There is evidence of frontal lobe or parietal impairment or both. There is the appearance of self-neglect and limited insight into his difficulties. There is underlying brain damage causing dementia, caused by excessive consumption of alcohol over an extended period or cerebrovascular disease with some recovery or both. In regard to specific areas of decision making:
Finances:
i)Cognitive impairment is of a type and severity to deprive EWH of capacity to make major financial decisions. He has impaired understanding of the nature and effect of decisions. There is no impairment of ability to make decisions freely and voluntarily, or of his ability to communicate his decisions.
ii)He has impaired financial decision making, previous and planned.
iii)His judgement is poor.
iv)He knows assets but underestimates their value and does not appear to have actively managed assets.
v)He retains capacity to make minor financial decisions.
Health and Lifestyle Decisions
vi)He lacks capacity to make major health and lifestyle decisions. He has impaired understanding of the nature and effect of decisions. He can make decisions freely and voluntarily and communicate his decisions.
vii)There is evidence of self-neglect, impaired insight, and impulsive decision making.
viii)A substitute decision maker should be involved in major decisions.
Capacity for Legal Decisions
ix)He has understanding of the need to brief lawyers in relation to the QCAT application.
x)He does not have sophisticated appreciation of risks and benefits of decision making options.
xi)He has capacity to provide a simple legal brief but if legal decision requires a complex brief, he doubts he retains capacity.
Collateral information from family has also been provided by EM and ES. They have concerns regarding EWH’s capacity for decision making regarding his finances and lifestyle and health matters.
CH (Counsel) made submissions that EWH may have some capacity to make small financial decisions, and although he required the support and assistance of a substitute decision maker for both personal and financial matters, it was very important that he was consulted and allowed to pursue his many interests.
The Tribunal is satisfied that EWH does not have capacity for financial or personal matters:
a) EWH has been diagnosed with dementia or organic brain impairment, likely related to his history of alcohol consumption or cerebrovascular disease.
b) EWH has significant cognitive impairments, including impairments with memory and capacity to retain new information which impact on his decision making for financial and personal matters.
c) EWH has evidence of frontal lobe impairments affecting his judgement and reasoning.
d) He has limited insight regarding his impairments and needs, and this affects his decision making, and places him at risk in regard to financial and personal decision making.
e) He has limited understanding of the nature and effect of decisions.
f) His decision making is impulsive placing him at risk in regard to both financial and personal matters.
g) He can express his views in regard to financial and personal matters, and should be consulted to the extent practical, with regard to the complexity of the decisions to be made.
Is there a need for the appointment of an administrator?
EWH has significant financial assets requiring management, including farm properties near Warwick, and two residential properties in Brisbane, all of significant value. He also has a number of motor vehicles, superannuation investments, and substantial savings which will require management. Some of these assets are held jointly with his wife.
There have been concerns regarding EWH’s management of his finances, including:
a) Spending a large sum on a trip overseas without consulting family. He subsequently travelled on his own without medication or sufficient clothing. He required medical assistance to return to Australia.
b) He had sold a parcel of land for $350 000 but some money was unaccounted for.
c) He spent large sums of money on other items.
d) Properties that he owns are in a very poor state of repair.
e) He is not spending funds on basic maintenance and cleaning which would make his property safe and habitable.
f) He owns a number of vehicles which are in a poor state. He is not medically cleared to drive.
g) If he travels he requires supervision and assistance to do so.
The Tribunal determined that an independent decision maker was necessary to ensure that EWH’s financial needs were met and his interests were protected.
What are the most appropriate arrangements?
All parties, including EWH, and EM and ES preferred the appointment of the Public Trustee of Queensland. The Tribunal made orders accordingly.
Is there a need for the appointment of guardian?
EWH has a number of medical diagnoses including dementia, anxiety and depression, diabetes, hypertension, and hypercholesterolemia, which will require ongoing treatment and management.
Concerns have been expressed by various health professionals and by family that EWH is not able to attend to decision making regarding his health care and management, accommodation needs, and the services that he may require.
a) He has made decisions about travel overseas without consideration for his medical and care needs, not taking medication or clothing with him. He required assistance to return to Australia.
b) He has limited insight regarding his hygiene and self care needs.
c) He is at risk in regard to consistency of medication use.
d) He is at risk in regard to alcohol consumption, particularly if he were to have access to large sums of money.
e) He may require services in place to provide support (including with cleaning and home maintenance), but has poor appreciation of his needs, and the consequences of decision making or lack of decision making.
There is already conflict between EWH and his family regarding the level of care that he requires and his family are concerned he does not have insight regarding his mental health and cognitive difficulties and the impact they have on others. EWH family require support to assist them in putting services in place to provide ongoing, consistent care. Without the assistance of an independent decision maker it would be difficult for family to overcome EWH strong views and lack of cooperation.
Decisions will be required in the immediate future about EWH’s health care, accommodation needs and the provision of services.
The Tribunal determines that there is a need for an independent decision maker to ensure EWH’s needs are met and his interests protected.
What are the most appropriate arrangements?
A Psychosocial Assessment was completed by Johanna Bakerman's (Social Worker, Family Consultant and Mediator) dated 18 January 2013. Concerns were identified regarding differing views and perspectives within the family, difficulties with communication, and the impact of EWH’s alcohol consumption and increasing care needs. The report highlighted the risk of increased friction within the family and the need for support, advice and services to assist the family. The difficulties identified in the report underline the value of an independent decision maker.
All parties at the hearing supported the appointment of an independent decision maker, the Adult Guardian. The Tribunal made orders accordingly.
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