Re RPB
[2013] QCAT 77
| CITATION: | Re RPB [2013] QCAT 77 |
| PARTIES: | RPB |
| APPLICATION NUMBER: | G24730 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 7 February 2013 |
| HEARD AT: | Townsville |
| DECISION OF: | Peta Stilgoe, Senior Member Wayne Pennell, Member |
| DELIVERED ON: | 7 February 2013 |
| DELIVERED AT: | Townsville |
ORDERS MADE: | 1. The application for adjournment is refused. 2. The application for an interim order is dismissed. 3. The power of attorney dated 7 June 2012 is valid. 4. The application for the appointment of a guardian is dismissed. 5. The application for the appointment of an administrator is dismissed. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – whether capacity to give enduring power of attorney – whether attorney exercising powers appropriately |
APPEARANCES and REPRESENTATION (if any):
| Betty | Adult |
| Ben Ralph | Solicitor from Guides & Elliott on behalf of Peter, applicant and son |
| Robert | Son |
| Tess | Partner of Robert |
| Sian | Ex-wife of Peter |
| Mark Phillips | The Adult Guardian |
| Steve Pederson | The Public Trustee of Queensland |
REASONS FOR DECISION
Eighty-six year old Betty has two sons: Peter, who lives in California; and Robbie, who lives in Townsville. Peter and Robbie have very different lifestyles and rarely communicate.
On 7 June 2012, Betty gave a power of attorney to her brother John and to Robbie. On 9 June 2012, Betty fell and broke her hip. She was hospitalised, she suffered life threatening complications, and it became apparent that Betty would not be able to return to her home where she had lived for 64 years. With a heavy heart, and after much deliberation, Betty agreed to sell her home and move to residential care in Townsville. Robbie sold the house and moved Betty to an RSL Care home. Robbie did not consult Peter about the move.
Peter thinks that Betty did not have capacity to give the power of attorney; that Robbie is abusing his powers; and that Betty is at risk. He wants the Tribunal to declare the powers of attorney invalid and for the Tribunal to appoint him, or his daughter Alamela, as Betty’s guardian and administrator.
We must decide whether the power of attorney is valid. If it is valid, the Tribunal need do no more. If it is not valid, we will have to decide whether we should appoint a guardian and administrator for Betty.
The validity of the power of attorney involves two questions. Firstly, did Betty have capacity to give the power? Secondly, has Robbie acted in a way that is inconsistent with his duties as attorney?
Preliminary matters
Peter wants to adjourn today’s hearing. He only had two days’ notice of the hearing because he has just returned to California from Brazil. He says that he wants to give the Tribunal more evidence which he has not been able to prepare.
Betty, Robbie and Robbie’s partner Tess are here today. They want the hearing to proceed. Robbie told us that the hearing is distressing Betty. Betty told us that she just wants it over and done with. Peter’s ex-wife, Sian appeared by telephone. She was concerned by the late notice but told us that she just wanted what was best for Betty.
Peter filed his application in August 2012. The Tribunal has already vacated one hearing date. Peter has not visited his mother since her fall, hospitalisation and move to Townsville. The Tribunal’s main concern is Betty’s welfare. Because she wants the hearing to go ahead, we see no good reason to grant an adjournment.
Peter also filed an application for an interim order which is in the same terms as his original application. For the reasons that follow, that application is dismissed.
Did Betty have capacity to grant the powers of attorney?
Betty’s GP, Dr Julia Brogan, thought Betty did have capacity to grant a power of attorney. On 7 June 2012, the day the power of attorney was granted, Dr Brogan wrote:[1]
…she is mentally sound and orientated to time, place and person. I believe she is capable of making decisions regarding the appointment of a guardian in her affairs. I believe that she understands the process and is able to make her own decision.
[1] Document H8.
Reginald John Forster, a solicitor in New South Wales, witnessed Betty’s signature. He certified that she executed it voluntarily and appeared to understand the effect of the document.
Dr Rodger attended Betty when she was admitted to hospital after her fall. He did not think Betty had dementia. Betty told him:[2]
… she realised it was not feasible (to return to her home) and…she would go to a nursing home in Townsville and was very happy with this decision.
[2] Letter Rodger to Abigail 24 September 2012. Part of document H41.
Dr Goodall attended to Betty when she was admitted to Manly Private Hospital on 19 June 2012. By then, she had broken her hip, had severe rectal bleeding and a blood transfusion. He reports[3] that, despite these medical setbacks, he had no concerns for Betty’s cognitive status. In his opinion, Betty always retained full capacity to consider and make decisions.
[3] Document H24.
Dr Paul Goldstraw, a gentorologist, reported on Betty’s cognition and testamentary capacity[4]. He had no concerns about her capacity to give a power of attorney:
… she fully understands the legal constructs and reasonably foreseeable consequences of the decisions that she has undertaken. Thus demonstrates capacity for decision making.
[4] Letter Goldstraw to O’Dempsey 26 November 2012. Document H49.
Doug Marshall, a solicitor in New South Wales, first met Betty in December 2011. He met her again on 9 June 2012. He describes Betty’s frame of mind on the second meeting as:
… still chipper … still as sharp as ever
The contemporaneous evidence suggests that Betty was capable of understanding, and granting, a power of attorney on 7 June 2012.
Peter’s assertion that Robbie “secretly” obtained the power of attorney is not evidence that Betty lacked capacity to give it. The fact that the family home was sold is not evidence that Betty lacked capacity to give a power of attorney. The fact that Betty may have had some regrets about the changes in her life does not mean that she lacked the capacity to give a power of attorney.
Peter’s ex-wife, Sian said that she had conversations with Betty around the time she gave Robbie the power of attorney. Sian thought that Betty did not understand the implications of her decision and that Betty had rushed into the power of attorney. Sian has not seen Betty for about 12 years although, she says, she phones Betty every six months or so. Interestingly, Sian’s comments are in direct contrast to the comments of Robbie’s ex-wife, Debbie who wrote to Peter in these terms:[5]
You seem to think arrangements have been made without her knowing, I can assure you she is 100% capable of thinking for herself, and very able to make her own decisions.
[5] Email Debbie Rowan to Peter Rowan 14 September 2012. Document H26.
We prefer the evidence of the doctors to Sian’s evidence which, we find, is vague and unsubstantiated, given she has not seen Betty for many years. We are satisfied that Betty did have capacity to give the powers of attorney.
Has Robbie acted in a way that is inconsistent with his duty as attorney?
Our primary concern is Betty’s welfare. We are not interested in family history or family squabbles unless it impacts directly on Betty. Whether or not Betty leaves any money to her children or grandchildren is irrelevant. Robbie’s relationship with his children and grandchildren are irrelevant. Peter’s belief as to what would happen, and his position as the older brother, is irrelevant. Whether or not Betty promised her jewellery to Peter’s daughter, Alamela, and the unfortunate episode surrounding Alamela’s visit to her grandmother are also irrelevant.
Peter lists a number of acts which, he says, show that Robbie is not exercising his power properly. Robbie has sold the family home. He secretly took Betty from hospital, flew her to an undisclosed location and placed her in a long term care facility far away from her life long friends, home and community. He has taken Betty’s personal possessions and is arranging for them to be auctioned, with the proceeds going to charity. He has not allowed Betty to participate in decisions about her personal property. He fabricates and misleads Betty and other family members to achieve his own goals. Peter says that Robbie has a drinking problem. He says that Robbie has shown extremely poor judgment in Betty’s physical care and that Robbie is committed to spending Betty’s money.
Robbie used $885,000 from the proceeds from the sale of the house to pay the accommodation bond at RSL Care. He has invested $155,000 in an interest bearing deposit. He has bought her a car that is fitted for wheelchair access and the balance remains in a current account. The accounts are in Betty’s name.
Robbie researched available care options and decided that Betty should have 5 star accommodation so he decided that Betty should take the “extras” package. He told the Tribunal that Betty’s solicitor looked over the contract before Robbie signed it. Betty is happy. She told us that the nurses are “wonderful”. Robbie’s choice of RSL Care appears to be appropriate. The cost of the bond, as it is Betty’s money and being used for Betty’s care, is not a matter for concern.
Sian shares Peter’s concern about Robbie’s drinking and says that Robbie has tried to turn Betty against Peter but, as we have noted, for the last decade or so her contact with Betty has been limited to a phone call every six months. We do not place any weight on Sian’s evidence.
Dr Goldstraw reports that, while missing (Sydney) after so many years, Betty has come to terms with her new lifestyle. She told him that her grandson visits daily and she is making new friends.
The director of nursing at RSL Care, Ms van Tonder, reports[6] that Betty was distressed about leaving her home but understood that changes had to be made as she had been feeling very alone and far away from her family. Ms van Tonder also reports that, since moving in, Betty has been very content and there have been no disruptive or negative episodes.
[6] Report 28 August 2012.
There is simply no evidence to support any of Peter’s contentions and there is objective evidence to the contrary.
Conclusion
Although Peter wants and adjournment of today’s hearing, Betty wants this matter resolved. Peter has had ample time to produce evidence to support his case. We understand that he is not happy with the reports to date but we are satisfied that they are objective and honestly given.
Independent reports show that Betty did have capacity to give a power of attorney to Robbie. We are satisfied that Robbie has acted in Betty’s best interest and we can find no reason to disturb the power of attorney.
Because the power of attorney addresses Betty’s needs, there is no reason to appoint either a guardian or administrator. Peter’s applications should be dismissed.
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