Re LWS - [2024] QCAT 197

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RE LWS [2024] QCAT 197

PARTIES:

In applications about matters concerning LWS

APPLICATION NO/S:

GAA1363-24
GAA1364-24
GAA1402-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

14 May 2024

HEARING DATE:

19 April 2024

HEARD AT:

Ipswich Courthouse

DECISION OF:

Member Lobban

ORDER:

1.     The deed of revocation of an Enduring Power of Attorney for LWS dated 16 January 2024 is declared invalid pursuant to the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld).

2.     The Tribunal notes the continuing existence of the Enduring Power of Attorney for LWS dated 1 September 2011 appointing LKM and SAS severally as attorneys for financial, personal and health matters.

3.     The application for the appointment of a guardian for LWS is dismissed.

4.     The application for the appointment of an administrator for LWS is dismissed.

CATCHWORDS:

GUARDIANS, ADMINISTRATORS, APPOINTMENT – POWERS OF ATTORNEY – CAPACITY

Whether an order about an enduring document is appropriate – where applicants alternatively seek orders about appointment of a guardian and an administrator – whether adult has impaired capacity for complex financial decision making.

APPEARANCES & REPRESENTATION:

LWS represented by Jennifer Sampson, TASC

LKM and SAS in person

REASONS FOR DECISION

Background to the Application

LWS is a 78-year-old previously resident at Eastern Heights in Queensland, where he lived for 55 years.
On 1 September 2011, LWS validly executed an enduring power of attorney document by which his wife Dianne was appointed immediately as his attorney for personal health and financial matters. If Dianne was unable to act in that capacity, the document had the effect of appointing his daughter LKM and his son SAS severally as his attorneys for those matters.
Dianne ceased to act on 25 October 2022 at which time she was a resident of the Bluecare Brassall residential aged care facility.
From that time, LKM and SAS acted as attorneys for LWS.
Following a recent hospital admission, LWS has been discharged and now resides at Cabanda Care, Rosewood, Queensland.
On 16 January 2024, LWS signed a deed of revocation of power of attorney. The document referred to the “enduring power of attorney dated 01/11/2011 which appointed [LKM] and [SAS]”. Clearly this date was incorrect. All subsequent events, including the hearing, proceeded as if it were a reference to the document referred to in paragraph 2 of these reasons, dated 1 September 2011.
The parties, including LWS’ representative, were unable to inform the Tribunal as to the identity of the author of the document and s/he did not therefore give evidence as to the perceived capacity of LWS at the time of signature.
The document was apparently witnessed by a justice of the peace, Mr Robert de Vere, at Rosewood Community Centre, who provided a short nine-line email dated 26 February 2024 to the Tribunal but was not called to give evidence. Mr de Vere’s email was of little assistance to the Tribunal and at least in part did not make sense. The adult’s representative did not refer to it during the hearing and did not appear to rely on it as evidence of his capacity to validly execute the document.
Upon learning of the deed of revocation, LKM and SAS applied for guardianship and administration orders, with the Tribunal making an interim guardianship appointment on 8 February 2024 which interim order was continued on 19 April 2024 pending delivery of the Tribunal’s decision and reasons today. The interim order was limited to accommodation decisions.
The Tribunal initiated an application for an order about the power of attorney and the deed of revocation. It is firmly settled law that the making or revocation of an enduring power of attorney involves a complex financial decision. To consider whether the deed of revocation is valid, the Tribunal must firstly make a finding as to whether LWS has capacity to make complex financial decisions.

Does LWS have capacity for financial matters?

Seven medical reports which refer to LWS have been filed with the Tribunal. A health professional report was authored by Dr Ahmed and dated 5 January 2024, almost immediately prior to the execution of the deed of revocation. The report notes an existing diagnosis of vascular dementia and the effects of a stroke and concludes with a finding that LWS has no complex decision-making capacity, including as to financial matters. In doing so it refers to four earlier reports from medical professionals to the same effect.
One of these earlier reports is from Dr Wen Law, a geriatrician, who conducted a Montreal cognitive test assessment or MOCA, resulting in a score of 21/30 indicative of cognitive impairment. Mr Law’s report stated that LWS does not understand safety concerns or the cognitive deficits which were caused by the stroke which he suffered in 2022 and concluded that those deficits and memory loss were apparent. The doctor recommended an occupational therapists’ assessment be obtained.
Two such assessments were conducted. One by Nedjo Djordjic was conducted over a one-and-a-half-hour examination period. The assessment report recites a full medical and personal history for LWS and concludes that although he participates largely independently in activities of daily life, LWS experiences short term memory problems, impulsivity and a lack of insight into his limitations which present a risk to his own safety. An Addenbrookes cognitive assessment or ACE III was conducted with a score of 73/100 indicating impairment.
LWS’ sister-in-law who has known him over a 56-year period completed a feedback form noting that he refuses to accept the medical advice given, instead believing he has capacity. She believes that his attorneys have exercised their role with ultimate care and regard for their father’s interests.
LWS feels his condition has substantially improved and that the tests were unfair, and expressed a strong and understandable desire to return home being dissatisfied with his current accommodation. He believed he was safe in his home environment and addressed the Tribunal personally on improvements to the home which he had done or could do to render it safe in his opinion despite the indications to the contrary in the reports tendered.
Indeed much of the hearing, including photographic records and the submissions of LWS’ representatives, focused on the home at Eastern Heights and alternative accommodation rather than the issue of capacity. It was LWS’ position that his children did not take into account his wishes for alternate accommodation options in breach of the General Principles which was denied.
When asked, LWS’ representatives did not express a view on the question of capacity, focusing, no doubt on instructions, on the availability of other accommodation options and submitting that the General Manager of Cabanda believed that “other accommodation options should be pursued”. It was also submitted that a new geriatrician’s report had been commissioned which would confirm that LWS had regained capacity.
Late in the hearing however, evidence was taken from Mr Robin Christelow, the General Manager of Cabanda Care, which was persuasive. He supported the observations of LWS’ children as to their father’s lack of capacity and insight into his conditions, as well as his needs for safe and appropriate accommodation and service support. In his opinion LWS was placed in Cabanda nursing home as there was nowhere else suitable for him. In his opinion LWS could not support himself in the community without extensive assistance and that LWS was “not interested in getting those services.”
Mr Christelow noted that LWS had engaged in “doctor shopping” to obtain a report as to capacity most recently engaging Dr Tim Heely of “The Lockyer Doctors” to obtain a report. It transpired that Dr Heely in turn engaged Dr Li Na Sam, a specialist geriatrician for an opinion as to current capacity. As the report had only become available it was scanned to the Tribunal and made available to the parties for consideration.
The report is dated 15 April 2024 i.e. immediately prior to the hearing. Dr Sam also noted LWS’ practice of doctor shopping adding that he was the third geriatrician engaged to opine on capacity. The report noted that:
(a)His assessment was performed objectively with no third party present;
(b)An extensive chart review of all previous and available reports and records was conducted as well as an in-person examination;
(c)LWS had reported dissatisfaction with his attorneys’ actions;
(d)He concluded that this was largely due to LWS’ failure to recall what the family had communicated to him correctly. A secondary issue was LWS’ limited understanding of the rationale for the decisions;
(e)Despite his inability to list his assets it was LWS’ intention to manage his own lifestyle accommodation and financial matters;
(f)LWS did not understand the significance of these decisions with limited insight into his abilities;
(g)He remains a high fall risk regardless of the amount of community support due to impulsivity and lack of insight into his functional limitations were he to return home; and
(h)In conclusion LWS “does not have capacity to change his Enduring Power of Attorney due to a fluctuating understanding and poor retention of the information regarding the concept of EPOAs and crucial components such as the three domains…”.
A presumption of capacity applies to all adults (s 11B and General Principles of the Guardianship and Administration Act 2000 (Qld)).
LWS is entitled to that presumption.
In considering capacity, the Tribunal applies the Schedule 4 definition to the effect that:
Capacity for a matter, means the person is capable of:
(a)      Understanding the nature and effect of decisions about the matter; and
(b)      Freely and voluntarily making decisions about the matter; and
(c)      Communicating the decision in some way.
The elements are inclusive; that is, all must be present.
It is apparent from the evidence that LWS does not understand the nature and effects of complex financial decisions and therefore does not have capacity for complex financial decisions. Dr Sam has addressed the three criteria for capacity in this regard.
Consequently, the purported deed of revocation is invalid. The Enduring Power of Attorney dated 1 September 2011 is valid.

Other considerations

In view of the Tribunal’s findings, an alternate decision maker is in place for LWS and the applications for the appointment of a guardian and an administrator are not required.
Although LWS has made no application for removal of his attorneys or for them to be replaced as alternate decision makers it is to be inferred from his submissions that it is his position that the attorneys have acted inappropriately in not taking into account his wishes as required by the general principles in the Powers of Attorney Act 1998 (Qld), particularly with respect to an accommodation decision.
It is the case that LWS lacks capacity for an accommodation decision based on all of the evidence, lacking an appreciation of the potentially serious and harmful consequences to him of that decision. Dr Sam’s report in that regard is most clear and the evidence otherwise all supports that conclusion.
The evidence supports a finding by the Tribunal that the attorneys have acted in accordance with LWS’ best interests, have consulted him and are prepared to investigate all viable accommodation options to respect his wishes.
There is no need for the attorneys to be removed or for a guardian or administrator to be appointed. The applications for that relief are dismissed.
In making all these decisions the Tribunal as a public entity must make a decision that is compatible with human rights (Human Rights Act 2019 (Qld), s 56). Human rights must only be subject to reasonable and justifiable limits (Human Rights Act 2019 (Qld), s 13).
Given that the purpose of this decision is to ensure LWS is adequately cared for and protected in an environment most appropriate for him and that the attorneys must apply the general principles which apply to LWS, the Tribunal finds that it is reasonable and justifiable to limit LWS’ rights and that this decision is compatible with human rights.