Re: GQ
[2013] QCAT 138
•27 February 2013
| CITATION: | Re: GQ [2013] QCAT 138 |
| PARTIES: | GQ |
| APPLICATION NUMBER: | GAA10427-12 / GAA10428-12 / GAA1664-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 26 February 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 27 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following Enduring Power of Attorney for GQ is declared invalid pursuant to s 113(2) of the Powers of Attorney Act1998 and s 82(2) of the Guardianship and Administration Act2000: the Enduring Power of Attorney dated 1 March 2012 appointing GM as attorney for financial, personal and health matters. 2. The application for the appointment of a guardian by GM for GQ is dismissed. 3. The appointment of the Public Trustee of Queensland as administrator for GQ for managing the award of damages made pursuant to the order of the Supreme Court of Queensland on 11 March 2010 is continued. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. Directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in 5 years. |
| CATCHWORDS: | Application for Guardianship - Review of Appointment of an Administrator - capacity of adult - validity of Enduring Power of Attorney - need for a guardian. Guardianship and Administration Act 2000 (Qld), s 12 82(2) |
APPEARANCES and REPRESENTATION (if any):
| GQ - the adult | GM - adult’s wife |
| Public Trustee Queensland | Alan Albury |
REASONS FOR DECISION
GQ is a 65 year-old man who resides on the Sunshine Coast, Queensland, with his wife GM.
In August 2006 GQ sustained, amongst other serious injuries, a closed head injury from a motorbike accident.
GQ made a claim for damages for negligence arising from the motorbike accident. GM was appointed as Litigation Guardian for that proceeding.
On 11 March 2010, following an application to sanction the settlement of the claim, the Supreme Court of Queensland ordered the payment of the damages sum along with costs. The Court also ordered, pursuant to s 12 of the Guardianship and Administration Act 2000, that the Public Trustee of Queensland be appointed as Administrator, to manage the balance of the compromise sum after deductions.
The Tribunal notes experts’ reports to the Supreme Court proceeding considered GQ incapable of managing his own financial affairs.
On 1 March 2012 GQ signed an Enduring Power of Attorney (EPA) appointing GM as his attorney for personal, health and financial matters. Mr Brian Smith, Justice of the Peace, witnessed the EPA.
On 21 November 2012 GM made an application to the Tribunal seeking review of the appointment of the administrator (PTQ) over the remaining settlement sum. GM also made an application for the appointment of a guardian. GM proposed herself for both appointments.
GQ and GM both attended the hearing at Maroochydore in person. Alan Albury, Regional Manager, Redcliffe Office represented the Public Trustee of Queensland (PTQ). Mr Albury attended by telephone.
Capacity and enduring power of attorney
Before making any substantive appointment the Tribunal needs to be satisfied GQ does not have capacity for the matters. In this case, personal and financial matters. Capacity means a person is capable of understanding the nature and effect of decisions, can make those decisions freely and voluntarily and can communicate those decisions in some way.
Dr Brendan Meagher, General Practitioner of GQ for over four years provided a report dated 30 July 2012. Dr Meagher notes, amongst other medical conditions, GQ sustained an acquired brain injury in 2006 and cerebral aneurysms in 2008. Dr Meagher opines GQ is pretty good at understanding information concerning personal health care and lifestyle choices, but not very well and needs assistance for financial decision-making. Dr Meagher opines GQ understands information about an Enduring Power of Attorney, but further opines GQ can make only simple financial decisions.
At hearing GQ indicated that he understood the proceeding was about his competence, not wasting money and the appointment of his wife as guardian.
GQ gave a broad overview of his financial situation and the role of the PTQ in his financial affairs. At times GQ was patchy in detail and forgetful and contradictory in his explanation.
GQ was often tangential in his conversation, declaring he loved his wife and suggesting when the Australian Prime Minister was in New Zealand someone suggested she was a terrorist.
GQ sat slumped over the table when not being directly questioned.
GM advised the Tribunal that she and GQ make all decisions together when GQ has periods of clarity and lucidity. GM expressed the view GQ was under pressure at the hearing. GM gave an example of the process of buying a new car and how over time GQ came to understand that a car more appropriate to his physical needs was necessary.
GM advised the Tribunal that GQ has been residing in an Age Care Facility for around ten months but that he sleeps there only as he comes to their home in Maroochydore each day.
In regards to the EPA of 1 March 2012 GQ couldn’t recall exactly when he signed it but thought it was Christmas last year or the year before. GQ stated the EPA gives his wife a chance to affect the places where he stays and their income.
GM advised the Tribunal prior to signing the EPA GQ was showing gaps in his memory. GM suggested this may have been caused by pain and medication.
GM states they attended the witness’ home to sign the document. GM advised that the witness, Mr Smith, was also a neighbour. GM stated she was with GQ all the time. GM described Mr Smith asking GQ questions about current affairs to ensure GQ understood what he was signing.
The Tribunal is satisfied that GQ is a 65 year-old man who sustained a closed head injury following a motorbike accident in 2006 and was treated for cerebral aneurysms in 2008. In March 2010 the Supreme Court of Queensland appointed the PTQ as administrator to manage GQ’s settlement money. In July 2012 Dr Meagher opined GQ needed assistance with complex financial matters. GM provides significant support to GQ in arriving at joint decisions such as buying a car. At hearing GQ was at times patchy, forgetful and contradictory in his communications with the Tribunal.
The Tribunal is satisfied that although GQ can make simple decisions he requires assistance, particularly from his wife, to deal with complex personal, health and financial decisions. In the circumstances the Tribunal is satisfied that the presumption of capacity for personal and financial matters is rebutted.
The Tribunal is also satisfied, based on GQ’s presentation at hearing, the medical evidence of Dr Meagher of July 2012 and the circumstances of the signing of the EPA given by GM, that GQ did not have the required capacity to understand the nature and effect of the various provisions of an EPA. An EPA is a complex legal document and whilst the Tribunal is satisfied GQ has a basic understanding of an EPA, and it is his wish that his wife generally takes care of their affairs, the Tribunal is not persuaded GQ had the capacity to execute the EPA in March 2012.
The Tribunal accordingly orders that the Enduring Power of Attorney dated 1 March 2012 appointing GM for financial, health and personal matters for GQ is invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000.
Need for a Guardian
GM indicated to the Tribunal she is heavily involved in GQ’s everyday activities and personal and health care. Although GQ resides in an Aged Care Facility overnight he spends his day with GM at their home or on outings and attending various appointments. GM has met no difficulty in obtaining services for GQ. GM can, and has in essence already been undertaking, the role of statutory health attorney as required.
In the circumstances the Tribunal is satisfied that GQ’s personal and health care needs are being adequately met through the informal support and care of his wife and the age care facility where he resides and that an appointment is not required to meet these needs.
The application for the appointment of a guardian is accordingly dismissed.
Need for an Administrator
The PTQ advised the Tribunal that pursuant to the Supreme Court of Queensland order of March 2010 it has managed GQ’s settlement moneys. Mr Albury advised that following the necessary deductions the balance at the time of the order was around $291 000.00.
PTQ advised that following advice from RBS Morgans, $240 000.00 was invested in a Macquarie Superannuation Pension Fund and the remainder deposited in the PT Cash Account.
In the PTQ tribunal briefing report, dated 8 January 2013, the PTQ advised it had obtained financial advice three times since December 2011 as GQ’s living arrangements had changed, with GQ’s move to an aged care facility and the purchase of a new home.
At hearing Mr Albury advised the Tribunal that the current balance of the Macquarie Pension Fund was around $158 000.00 and that $6 890.00 remained in the PT Cash Account. Mr Albury advised that the PTQ assisted GQ and GM with funds for the purchase of a new car and top-up funds for the purchase of the new home. Mr Albury advised that around $2 600.00 per month is being drawn on the Pension Fund to meet the age care facility fees.
GM advised the Tribunal that she manages the remainder of GQ’s assets and that they are jointly owned. GM indicated that if she was appointed administrator that she would seek advice concerning the current managed funds and probably arrange a similar investment. GM expressed some frustration in the process of seeking funds from the PTQ.
The Tribunal is satisfied that GQ has the remainder of his settlement funds to manage and without a formal appointment GQ’s needs may not be adequately met or his interests adequately protected.
On application for review of the appointment of an administrator GM indicated she would like to be appointed in place of the PTQ.
At hearing and after some discussion with GM about the responsibilities and obligations of an administrator, including the reporting requirements to the Tribunal, GM in brief consultation with GQ decided that she did not wish to press with the application and that it would be easier for the PTQ to continue in the role.
In the circumstances the Tribunal orders that the appointment of the Public Trustee of Queensland as administrator for GQ for managing the award of damages made pursuant to the order of the Supreme Court of Queensland on 11 March 2010 is continued.
The Tribunal dispenses with the requirement for the administrator to provide a financial management plan and directs the administrator to provided accounts the Tribunal when requested.
This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five years.
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