Re: Pp
[2013] QCAT 247
| CITATION: | Re: PP [2013] QCAT 247 |
| PARTIES: | PP |
| APPLICATION NUMBER: | GAA8306-12 / GAA8307-12 / GAA3707-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 1 May 2013 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Aaron Suthers, Member David Lewis, Member |
| DELIVERED ON: | 28 May 2013 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. The Application for the appointment of a guardian by PSG is dismissed. 2. The following enduring power of attorney for PP is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:
3. The following enduring power of attorney for PP is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:
4. PRJ and PJJ are appointed jointly as administrators for PP for all financial matters. 5. The administrators are to provide a financial management plan to the Tribunal within 2 months. 6. The Tribunal directs the administrators to provide accounts to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one year. 8. Within 3 months of the date of order the administrator must:
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 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: |
|
APPEARANCES and REPRESENTATION (if any):
PP
PSG son
PRG son
Lesley Jean Hutton
PRJ grandson
MLJ granddaughter
PJJ grandson
EJ niece
PS sister in law
Nelson Marks representing the Public Trustee of Queensland
REASONS FOR DECISION
The last 12 months have been very difficult for Mrs PP. The previously active 86 year old spent much of the period between August and September 2012 at the hospital bedside of her ailing husband of over 60 years. After his death on 29 September 2012, at a family gathering in preparation for his funeral, she fell whilst picking up her grandchild and fractured her pelvis. While she was able to attend the funeral with the use of a wheelchair she spent months in hospital recovering from this and subsequent injuries caused by falls.
As if this was not enough to deal with she was also faced with the bickering of her two sons, PRG and PSG. Whilst they both would say that they were only looking after her interests, neither show much insight as to how their behaviours impact on their mother.
So concerned was Mrs PP about the inability of her sons to work together cooperatively that she revoked an enduring power of attorney she had completed on 14 October 2011, which had appointed her sons, and replaced them by executing a new document appointing three of her grandchildren PRJ, MLJ and PJJ. The revocation of the earlier document and new enduring document appointing her grandchildren was completed by her whilst in hospital on 7 December 2012.
At that time she was still recovering from the effects of her fractured pelvis and spine, she had been out of her normal routine for a number of months and she had spent a significant period on strong painkilling medication. She was clearly upset by her sons’ behaviour and discussed her concerns with a social worker at the hospital who advised her to consider changing her enduring arrangements.
To change her enduring power of attorney Mrs PP contacted her solicitors Corser, Sheldon and Gordon. They took her instructions over the telephone and sent two of their secretarial staff to the hospital to confirm Mrs PP's instructions and witness her execution of the relevant documents. In particular the revocation and new enduring power of attorney were witnessed by Ms Lesley Hutton who works for that firm. It was she who was required to satisfy herself that understood the nature and effect of the decision she had made (and the content of the documents) when witnessing her signature.
Against this backdrop PSG had applied to the Tribunal in September 2012 for the appointment of a Guardian and Administrator for his mother. He proposed the Adult Guardian and Public Trustee respectively. In doing so, he acknowledged the unworkability of the 2011 power of attorney due to the inability of him and his brother to consult with each other on a regular basis to ensure that their mother's interests were not prejudiced.[1]
[1] Powers of Attorney Act 1998 (Qld), s 79.
Obviously, the intervening events have had an impact on the matters the Tribunal must consider when determining PSG's applications. At the hearing, the Tribunal instituted applications regarding the 2011 power of attorney and the revocation and new enduring power of attorney dated 7 December 2012.
As Mrs PP was present at the hearing and given the opportunity to comment, the Tribunal was minded to abridge time for notice of the hearing of those issues. Clearly they were required to be determined as part of the consideration of PSG's applications; and he had raised his concerns about the validity and efficacy of the documents in written submissions which were filed at the direction of the Tribunal.
As a result of the applications the Tribunal must consider Mrs PP's capacity to execute the enduring documents on 7 December 2012; and her capacity at the date of hearing. Mrs PP is presumed to have capacity unless and until the Tribunal is satisfied that there is sufficient evidence to the contrary.
In addition to the evidence the Tribunal received from the parties at the hearing, the Tribunal had the benefit of two health professional’s reports.
The first report of Dr Crowley dated 24 October 2012 confirms that Mrs PP was examined as an inpatient at the hospital. The doctor did not discuss the preparation of the report with Mrs PP because he noted that the report had been requested by PSG as a result of the tensions existing between PSG and PRG. The doctor did not want to cause further anxiety to Mrs PP by raising the matter with her, which he saw as potentially delaying her recovery.
In particular Dr Crowley noted that, in addition to other physical issues, Mrs PP had age-related involution of her cerebrum and cerebellum, mild chronic ischaemic vascular changes and episodic acute confusion. The report makes it clear that the episodic confusion was of unknown origin and may have been related to depression or the effect of the painkilling medication Mrs PP was being administered. The doctor also noted the poor family dynamic between PRG and PSG and felt that Mrs PP’s reluctance to remove either of them or change her enduring documents might be contributing to her anxiety, stress and depression which may itself be having an impact on her cognitive function.
The doctor recorded that Mrs PP was having difficulty with her memory and in summary felt that Mrs PP at that time did not have capacity to make enduring documents and would not understand complex personal and health, lifestyle and accommodation, or financial decisions. The doctor's view was that the question of whether Mrs PP had formal capacity would probably only become fully apparent with the passage of time, after the reduction in her pain relief and the resolution of her initial bereavement reaction to the loss of her husband.
In a report dated 21 December 2012 Dr Mendis also noted Mrs PP’s physical conditions, which include a hearing and sight deficit. The report, which is short on detail, concludes that Mrs PP at that time could understand making an enduring document and had the ability to make complex decisions in all areas of her life.
The Tribunal also had a report from Ms Peta Maclean a social worker at the hospital. The report was dated 29 October 2012. In that report Ms Maclean raises concerns that the report of Dr Crowley, and the Montréal cognitive assessment which informed it, were, by that stage, already not reflective of Ms PP’s true capacity. Ms Maclean felt that at the date of her report Mrs PP was able to make her own decisions and communicate them although she put the proviso that this was particularly around lifestyle decisions. It was Ms Maclean who raised with Mrs PP the possibility of altering her enduring documents but when she discussed it with Mrs PP she indicated a reluctance to do so and cited not wanting to upset her sons.
There was no contemporary medical evidence to assist in the assessment of Mrs PP’s capacity at the date of hearing. Any input which PSG was able to have was restricted to comments on his own observations of his mother at the hearing. He had not seen his mother or spoken to her since last December. When he found that his mother had changed her enduring power of attorney without telling him, he confronted her at the hospital but felt overwhelmed and unable to speak to her about it and had not spoken to her since. Whilst he felt that he was in some way prevented from doing so there is no evidence of that and he acknowledged that he had not tried.
Mrs PP and all of the other parties who gave evidence at the hearing felt that Mrs PP had full capacity to make her own decisions. All of the other parties have had recent and regular contact with Mrs PP either in person or by telephone. There was some consensus that Mrs PP’s cognitive functioning had been impaired during part of her hospitalisation, but a number of parties to the hearing noted significant improvements in Mrs PP’s well-being and cognition in the weeks leading up to the hearing.
Whilst noting the views of the parties the Tribunal took some time to speak to Mrs PP and assess her level of understanding of decisions relating to matters relevant to her.
Mrs PP was well oriented at, and cognisant of the nature of the Tribunal's hearing. She was able to clearly express her views and wishes in all areas of her decision-making.
The Tribunal also had evidence from Mrs PP’s sister in law PS that Mrs PP was competently making the financial decisions which she observed whilst she had been involved in assisting Mrs PP by taking her shopping and to do her banking. Based on this evidence and the Tribunal's own observation of Mrs PP the Tribunal is satisfied, noting the presumption of capacity, that Mrs PP has no impairment in her capacity to make personal, health and lifestyle decisions or financial decisions of a minor, day-to-day, nature.
In relation to more complicated or sophisticated financial decisions, however, the Tribunal is satisfied that there is enough evidence to rebut the presumption of capacity.
It was apparent during the course of the Tribunal's discussion with Mrs PP that she takes little interest in her overall financial circumstances. Many aspects of her finances had previously been arranged by her husband. Mrs PP was unable to advise the Tribunal what was held in the bank accounts which her husband had formerly operated even though that money was now within her control and had been dealt with in material filed in the Tribunal. She had always utilised her own personal account and seemed to take no interest in what other monies she was obliged to make decisions about by virtue of her husband's death.
A mere disinterest of a person in their finances is not, of course, in and of itself proof of impairment in their capacity to make financial decisions. Here, though, the matter is more complex. Mrs PP’s lack of knowledge of the contents of the accounts her husband had previously utilised came in the face of her having the bank book for at least one of the accounts in her purse at the hearing. When asked by the Tribunal to consider the bank book and advise how much was contained in the account, Mrs PP made an error when trying to interpret the document. Similarly, when asked to advise the contents of the account which she has always operated, she accessed her passbook but again was unable to interpret it to provide the accurate balance. The Tribunal notes that it appears that Mrs PP may have confused two similarly shaped numbers, thereby misinterpreting the balance of her account by tens of thousands of dollars. Given Mrs PP’s problems with vision this can be easily explained. Of more concern to the Tribunal is that she had no real knowledge, within tens of thousands of dollars of her actual account balance and her lack of surprise or acknowledgement when the balance she read was so considerably different to the real balance, leads the Tribunal to infer that she takes no real interest in her greater financial position and has no understanding of it.
Mrs PP has for years been making significant financial contributions to her son PRG. In the past, she and her husband had given him significant funds when he became bankrupt, paid a loan they guaranteed for him when he defaulted and paid his drink driving fine. As recently as February 2013 she made a payment to PRG of $10,000.00. The payments are contentious, at least to PSG[2], and were at the forefront of discussion of part of the hearing. PRG is insistent that his mother understands all of her financial decisions but at the hearing she could neither recall making any payments of that nature within the last few months, nor advise the Tribunal that she had made a recent significant payment to her son. In trying to recall a ten thousand dollar payment, when pressed, she could only offer an explanation of other, far more minor and insubstantial payments.
[2]Perhaps understandably, given the effect of s 87 Powers of Attorney Act 1998 (Qld) and that some of the payments were made while PRG was his mother’s attorney.
It is trite to say that to understand the nature and effect of complex financial decisions requires an understanding of your financial position and an ability to recall any previous decisions, of consequence, which should impact upon your reasoning.
At this point in time Mrs PP is not in a position to do either of these things. The Tribunal is satisfied that she has impaired decision making capacity for complex financial decisions. For clarity the Tribunal notes that this would include any financial decisions beyond the simple day to day matters involved in attending to her own banking and shopping.
Having determined that Mrs PP has capacity to make personal, health and lifestyle decisions the Tribunal does not need to consider any further the application for the appointment of a Guardian.
The Tribunal is however required to consider whether there is the need for the appointment of an administrator for Mrs PP and if so, who it should be.
There are two separate enduring powers of attorney which, if either were valid and capable of meeting Mrs PP’s needs for financial decision making, would be sufficient to show that there is no need for the appointment of an administrator.
Clearly though, even if the Tribunal found its revocation was invalid, the 2011 document which appointed PSG and PRG can no longer be utilised to meet Mrs PP’s needs for financial decision making. Whilst they are authorised by that document to make their decisions severally, that is, either of them can make the decision independently, they are completely unable to consult with each other on a regular basis to ensure that their mother's needs are not prejudiced. This was acknowledged by them both at the hearing but each thought the other to blame. In any event, their history of conflict, which even pervaded arrangements for their father's funeral, is sufficient to satisfy the Tribunal that the 2011 enduring power of attorney will not appropriately meet Mrs PP needs.
The Tribunal then needed to consider the validity of the enduring power of attorney executed by Mrs PP on 7 December 2012. The Tribunal accepts the evidence of both Dr Crowley and Dr Mendis as being correct. Clearly Mrs PP’s capacity was fluctuating in the latter part of 2012 during her hospitalisation. It would be improper for the Tribunal, in those circumstances, to rely on either of the reports to definitively validate or invalidate the enduring power of attorney.
Mrs PP is presumed to have capacity to have entered into the enduring documents on 7 December 2012[3].
[3]Guardianship and Administration Act 2000 (Qld), General principle 1 and Schedule 2 3(b).
The best evidence of Mrs PP’s ability to understand both the new enduring power of attorney and the revocation of the old document (which were executed together) was that provided by the witness to those documents, Ms Hutton.
Ms Hutton is experienced in preparing and witnessing of powers of attorney, having previously worked for the Public Trustee of Queensland. She confirmed that she was aware of the guidelines to the witnessing of enduring documents published by the Adult Guardian and adopted by the Queensland Law Society. She felt that she complied with those guidelines. Certainly, she saw Mrs PP alone (other than for the presence of another secretary from her firm) and asked questions of her to ascertain her understanding of the documents. She made a general record of the conversation she had with Mrs PP but it was not contemporaneous. It is clear that she made an attempt to satisfy herself as to Mrs PP’s capacity to execute the documents.
Against this though is the fact that Mrs PP did not read the documents. When Mrs Hutton suggested that she should, Mrs PP told her that she had "read one before" and that she knew “what it's all about". Had Mrs PP read the new enduring power of attorney she may have noticed that MLJ's surname was incorrectly shown. The document referred to her maiden name, not her married name. She had been married for about seven years. Whilst there was some evidence that MLJ occasionally still used her maiden name, she felt certain enough that the document should show her married name that she amended it before signing to accept the power given to her by that document. She initialled the change and gave it back to the solicitors. They did not refer this change to Mrs PP and there was no evidence that Mrs PP had seen the document after its execution.
The Tribunal has the power to change the document, if it was necessary[4] and appropriate, to overcome any difficulty caused by the amendment. The Tribunal finds though, that the document sufficiently and correctly identifies MLJ. The Tribunal is however concerned that Mrs PP’s failure to read the document before executing it does raise a significant concern about whether she understood its nature and effect. The evidence also reveals that no attempt was made by Ms Hutton to ensure that Mrs PP understood that she could specify or limit the power given to her attorneys or instruct them about the exercise of the power. Mrs PP was not questioned, in an open-ended way, to ensure that she knew and could explain when the powers she gave to her attorneys would begin.
[4] Powers of Attorney Act 1998 (Qld) s 116 (a).
Additionally, whilst Mrs PP could recall Ms Hutton from other dealings, she had no recollection of Ms Hutton coming to the hospital to see her or witnessing her enduring documents.
When Mrs PP was asked to look at the enduring power of attorney at the hearing, simply to identify it, she painstakingly read it, in stark contrast to her dismissive response to Ms Hutton at its execution. When her attention was drawn to the page bearing her signature she recognised the signature as her own but acknowledged that she was not able to identify the document up to that point.
Whilst the Tribunal has no doubt that Ms Hutton did in fact attend at the hospital and witness Mrs PP’s execution of the enduring documents, as a result of the evidence outlined above the Tribunal is not satisfied that Mrs PP in fact had sufficient understanding of those matters required to be able to execute the enduring power of attorney. The question of whether she understood the revocation document does not need to be determined, given the Tribunal's findings about the 2011 enduring power of attorney.
Mrs PP does have significant financial resources available to her. The Tribunal finds that in the absence of an appointment of an administrator Mrs PP’s interests will not be adequately protected. She has a demonstrated propensity to make significant financial decisions which she cannot recall.
The Tribunal has to consider who would be most appropriate for appointment as administrator for Mrs PP. Whilst PSG proposed the Public Trustee of Queensland, the Tribunal confirmed with PRJ, MLJ and PJJ at the hearing that they would seek appointment if the Tribunal felt that administrators were required. PSG opposed the idea of their appointment but only because he felt that they would side with PRG as they were all PRG’s children. No evidence was proffered to support this contention.
On the contrary, the Tribunal was impressed by PRJ, MLJ and PJJ. They thoughtfully answered any questions asked by the Tribunal and showed a genuine concern for their grandmother's well-being. They keep in regular touch with her and with each other. They also have the support of Mrs PP as her substitute decision makers. Subsequent to the hearing MLJ informed the Tribunal that she did not wish to be considered for appointment.
The Tribunal is satisfied that PRJ and PJJ should be appointed jointly as administrators for Mrs PP.
Noting the Tribunal's findings that Mrs PP still has capacity for simple day-to-day financial decisions; the Tribunal considered whether the appointment of the administrators should be limited in some way. Given the complexity of defining, in a meaningful way, what would constitute a simple financial decision in terms of an order, the Tribunal is satisfied that would be artificial to attempt to do so in this case. The Tribunal is satisfied that the appointed administrators will follow general principle seven and allow Mrs PP, to the greatest extent practicable, the right to make her own decisions. Their appointment though, will provide the financial protection Mrs PP needs.
Given the recent and ongoing improvement in Mrs PP’s wellbeing the Tribunal will review its Order in one year.
Orders will be made accordingly.
7
0
0