Re GS; GY v Adult Guardian
[2011] QCATA 76
•30 March 2011
| CITATION: | Re GS; GY v Adult Guardian [2011] QCATA 076 |
| PARTIES: | GY (Applicant/Appellant) |
| v | |
| Adult Guardian (Respondent) |
APPLICATION NUMBER: APL305-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 30 March 2011
DELIVERED AT: Brisbane
ORDERS MADE: Appeal dismissed.
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – CAPACITY – where adult diagnosed with having significant intellectual impairment from birth – where adult signed EPA – where solicitor took instructions for, and witnessed execution of, EPA – whether adult had capacity to execute EPA – whether evidence of solicitor given sufficient weight Queensland Civil and Administrative Tribunal Act 2009, s 143 Legal Services Commissioner v Ford [2008] LPT12, applied |
APPEARANCES and REPRESENTATION (if any):
This appeal was determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Act 2009 and by an order of the Tribunal of 18 January 2011.
REASONS FOR DECISION
President:
In this matter the appeal was, by direction, determined on the papers. The Appeal Tribunal for that purpose was comprised of QCAT Senior Member Clare Endicott, Member Peta Stilgoe, and me.
Ms Stilgoe has prepared reasons for a decision which would refuse the appeal. I agree with her reasons, and the order she proposes.
Senior Member Clare Endicott:
I have also had the advantage of reading Ms Stilgoe’s reasons in draft and agree with them, and the order she proposes.
Member Peta Stilgoe:
GS is an adult male. On 25 September 2009, as an adult, he executed an enduring power of attorney in favour of his mother, GY. In December 2009 the manager of the facility in which GS resided applied for the appointment of the Adult Guardian for accommodation decisions and for the appointment of The Public Trustee of Queensland for financial matters. In January 2010, GY filed an application that she be appointed administrator and that GY, together with other members of the family, be appointed as guardians for GS.
At a hearing on 18 May 2010 a QCAT Tribunal declared the enduring power of attorney invalid and appointed the Adult Guardian as guardian for GS, but declined to make any appointment of an administrator.
GY appeals the Tribunal’s decision, arguing that the Tribunal erred in law by:
a) Misdirecting itself as to the question to be asked, being the capacity of GS at the time of the making of the enduring power of attorney, not his capacity at the time of the hearing;
b) Failing to give adequate weight to the experience and knowledge of GS of Mr Bevan, a solicitor, in determining whether GS had capacity at the time he executed the enduring power of attorney; and
c) Raising the ‘precaution’ of having an independent medical report as to capacity to the level of a mandatory requirement, when no such requirement is directed by law.
These are, the Appeal Tribunal accepts, questions of law and an appeal may be brought: QCAT Act, s 142.
GY says that the Tribunal identified that GS’s capacity was to be determined as at 25 September 2010. In fact, the transcript shows that the relevant date at which GS’s capacity had to be determined was 25 September 2009.[1] That is the date on which GS executed the enduring power of attorney.
[1] Transcript, page 1-5, line 13.
GY’s submissions on this issue assert that, although the Tribunal may have directed itself to the correct date, it did not direct itself to the right evidence in making its decision.
GY’s real complaint is that the Tribunal should have placed more weight on the evidence of the solicitor, Mr Bevan, who had known GS for many years and was aware of the way in which GS spoke and how he expressed himself; and, that Mr Bevan’s view of GS’s capacity to execute the enduring power of attorney should be preferred.
The transcript of the hearing and the Tribunal’s reasons show that the Tribunal found that GS has had a significant intellectual impairment from birth; that he is easily influenced by others; that he has a strong desire to please others, and answers ‘yes’ to questions put to him; and, that he is unable to make or understand complex financial decisions or matters.
In coming to that decision, the Tribunal relied on a report from John Rogers, psychiatrist, dated 5 May 2006, a letter from Professor Bernhard Baune, consultant psychiatrist dated 3 February 2010 and the evidence of Carron Bullock who told the Tribunal:
… [the adult] can make day-to-day decision adequately, but he is not able to remember things very well and she did not think that he had capacity.[2]
[2] Transcript, page 1-6, lines 11-17.
Even GY told the Tribunal that GS is able to be easily influenced.[3]
[3] Transcript, page 1-6, lines 25-27.
GY says that the Tribunal failed, in considering all the evidence about capacity:
a) To acknowledge that GS’s capacity fluctuated (an examination of the transcript shows that the Tribunal, in fact, specifically acknowledged this evidence[4]);
[4] Transcript, page 1-6, line 31.
b) To appreciate that there was a lack of reference to any want of capacity in the medical documents – but that, too, was acknowledged by the Tribunal;[5]
c) To appreciate GS’s capacity to make day-to-day decisions – but again, as I have already noted, that evidence was acknowledged by the Tribunal; and
d) To give proper weight to the presumption of capacity; but again, as it is required to do, the Tribunal acknowledged that there is a presumption of capacity, and that it was necessary to determine whether that presumption is rebutted.[6]
[5] Transcript, page 1-6, lines 35-41.
[6] Transcript, page 1-6 lines 47-51.
The Queensland Law Society has adopted the Office of Adult Guardian capacity guidelines for witnesses of enduring powers of attorney. These guidelines suggest that, where a practitioner knows or reasonably considers that a person has a diagnosed condition that may affect his decision-making capacity, the practitioner should:
a) Meet with the person alone,
b) Ask open-ended questions,
c) Record both the questions and the responses,
d) Take adequate notes, and
e) If there are issues about a person’s responses to the questions, suggest a professional opinion be sought about capacity.
The application of those guidelines was considered by the Supreme Court in Legal Services Commissioner v Ford.[7] Justice Fryberg found that, in not applying the guidelines, the solicitor’s conduct fell short of a standard of competence and diligence that a member of the public was entitled to expect and, therefore, the solicitor was guilty of unsatisfactory professional conduct.
[7] [2008] LPT 12 (Ford).
Ford demonstrates that, while the application of the guidelines may not be mandatory, a practitioner should depart from them with caution.
There is a letter on file dated 23 February 2010 from Mr Bevan in which he details the procedure he followed with GS on 25 September 2009. Mr Bevan also gave evidence before the Tribunal. It is not entirely clear, but I am prepared to assume that Mr Bevan did interview GS in the absence of his mother.
However, as was the case in Ford, there was no evidence before the Tribunal that Mr Bevan recorded his questions, and the responses from GS, or that he took any notes of the attendance.
It is apparent that the Tribunal determined that Mr Bevan did not ask GS open-ended questions, as he was required to do if complying with the guidelines.[8]
[8] Transcript page 1-7, lines 1-12.
The Tribunal also noted that the precaution of a medical report is ‘strongly advised’ by the guidelines.[9]
[9] Transcript page 1-7, line 33.
The Tribunal’s comment that ‘… Mr Bevan did not take the necessary precautions of obtaining an independent medical report’[10] does not, in my view, elevate that step to a mandatory requirement.
[10] Transcript page 1-7, lines 27-31.
The Tribunal’s comments must be read in the context that:
a) There was clear evidence that GS lacked capacity to make complex financial decisions, and that he had lacked that capacity since at least 2003;
b) There was evidence that GS’s capacity for day-to-day understanding fluctuated;
c) All parties acknowledged that GS was easily influenced, and was eager to please; and
d) GS attended the appointment with the solicitor with GY; and, GY had instigated the idea of an enduring power of attorney.
Given those factors, the Tribunal was entitled to take the approach it did to the solicitor’s evidence, in the absence of a corroborating report from a medical practitioner as to GS’s capacity on the day he executed the enduring power of attorney.
The Tribunal, again, did not raise the requirement of an independent medical report to a mandatory requirement; rather, it found that such a report was a necessary precaution in the context of these particular facts and observed – correctly – that the guidelines express it to be something that is ‘strongly advised’.
None of the grounds of appeal are made out, and the appeal should be dismissed.
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