Re WT
[2010] QCAT 633
•24 November 2010
| CITATION: | Re WT [2010] QCAT 633 | |
| FILE NUMBER | G20851 | |
| APPLICATION NUMBER: | GAA5119-10 Application for the appointment of an administrator |
| MATTER TYPE: | Guardianship and Administration Matters |
| HEARING DATE: | 24 November 2010 |
| HEARD AT: | Maryborough |
| DECISION OF: | Julia Casey Presiding Member Simon Burgess Member |
| DELIVERED ON: | 24 November 2010 |
| DELIVERED AT: | Maryborough |
ORDERS MADE: | Guardian appointed; Administrator appointed; Enduring Power of Attorney declared invalid |
| CATCHWORDS : | Capacity of Adult, Validity of Enduring Power of Attorney, Need for Guardian and Administrator, Appropriateness of appointees, Powers of Attorney Act1998, Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION
| WTP WP BC NM and FC GN and HA BG and GA | son and attorney son (by telephone) daughter-in-law (by telephone) nurse from the nursing home in Hervey Bay (by telephone for part of the hearing) representatives of The Public Trustee of Queensland delegates of the Office of The Adult Guardian (by telephone) solicitors - attended the hearing as |
REASONS FOR DECISION
History of the Application
WT (the adult) is an 82 year old gentleman who resides in a secure unit of a nursing home in Hervey Bay.
On 29 March 2010 the adult appointed WL, his wife, and WTP, his son, as attorneys for financial and personal/health matters. The principal nominated that the attorneys make decisions in the following way: “first named attorney solely but upon her death or being unable to act then second named attorney”. The document authorizes WL to enter into conflict transactions and provides that the power for the attorney/s for financial decisions was to begin immediately.
On the same day WT and WL signed transfer documents, transferring their interest in their jointly held property in Maryborough to WTP “for natural love and affection” pursuant to “an oral agreement”.
On 13 July 2010 the Tribunal received an application from WM, the adult’s daughter-in-law, seeking the appointment of the Adult Guardian as guardian and the Public Trustee of Queensland as administrator for the adult.
The matters were partially heard on 12 August 2010 in Maryborough and then adjourned until 24 November 2010. An Interim Order was made by the Tribunal on 12 August 2010 appointing the Public Trustee of Queensland as plenary administrator for the adult and the Adult Guardian as guardian for matters pertaining to accommodation, provision of services, health care and with whom the adult has contact and/or visits. The orders were to expire 24 November 2010.The Enduring Power of Attorney dated 29 March 2010, or any purported Enduring Power of Attorney for the adult, was overtaken by the making of these appointments.
The issues and legislation
The issues for the Tribunal are:
a)Does WT have capacity for personal and financial matters?
b)Is the Enduring Power of Attorney dated 29 March 2010 valid?
c)Is there a need for a guardian? If so, who should be appointed?
d)Is there a need for an administrator? If so, who should be appointed?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship andAdministration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult.
WT is presumed to have capacity in accordance with section 7 of the Guardianshipand Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The Guardianship and Administration Act 2000 defines capacity as follows:
“Capacity for a person 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 decisions in some way”.
[10].The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the Powersof Attorney Act 1998. The Tribunal may make a declaration about the validity of an Enduring Power of Attorney in accordance with section 113 of the Powers of Attorney Act 1998.
[11].Section 41 of the Powers of Attorney Act 1998 sets out the capacity requirements of the Principal in order to make an Enduring Power of Attorney.
[12]. Section 44of the Powers of Attorney Act 1998 provides the formal requirements for making an Enduring Power of Attorney.
[13].The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the Guardianship and Administration Act.
[14].If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for WT, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship andAdministration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000.
The evidence
[15].In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below.
Does WT have capacity for personal and financial matters?
[16].The Tribunal had the benefit of a letter dated 7 August 2010 from Dr Hassan Morgan, a consultant physician, to Dr Magdy Abdel-Malek, a general practitioner. The letter provides collateral history, conveyed to Dr Morgan by WTP, that the adult:
· had displayed deteriorating short-term memory function in the past year – eg. forgetting names and places, losing articles and repeating himself in conversation;
· demonstrated outbursts of verbal aggression and restlessness;
· wandered at times;
· had lost interest in previous hobbies; and
· needed assistance with dressing but was able to shower himself.
Medications prescribed to the adult at the time of the report were risperdal, thyroxine and zoloft. Dr Morgan examined the adult’s cognitive status on 7 August 2010 by way of a Mini-Mental Status Examination on which the adult achieved a score of 18/30. Dr Morgan concluded “this gentleman has moderate dementia probably due to Alzheimer’s Disease”.
[17].A report by the Aged Care Assessment Team, (ACAT), dated 16 June 2010 provided that the adult was assessed as eligible to receive low-level permanent residential care along with residential respite care. The report indicated that WT achieved a score of 19/30 on the Mini-Mental Status Examination administered on 15 June 2010, and that he experienced depression/mood affective disorders and regularly displayed short-term memory deficits and disorientation to time. The author provided an opinion that the adult would require a secure unit to prevent him from wandering if he were to be placed in a different residential aged care facility to that of his wife.
[18].In the guardian’s report to the Tribunal dated 19 November 2010 the delegate submitted that the Adult Guardian, under the interim order, made a decision for WT to be accommodated in a secure unit of a residential aged care facility providing high care at Hervey Bay due to his wandering, memory loss and overall limited decision making capacity.
[19].BC, a nurse from the unit, submitted that the adult achieved a score of 11 on the Psycho-geriatric Assessment Scales (PAS) on 22 November 2010, indicating a cognitive impairment.
[20].WTP provided the opinion that the adult had further deteriorated since August 2010, that the adult’s short-term memory is “bad” and that he “needs to be where he is”.
[21].WM and WP concurred with medical evidence and WM provided the opinion that the adult is unable to make simple and complex personal and financial decisions.
Conclusion
[22].WT is currently residing in a secure high care unit of a residential aged care facility. Clinical reports indicate that he has a diagnosis of moderate dementia with significant short-term memory impairment. Parties attending the hearing concurred with the medical evidence.
[23].Having regard to the medical and oral evidence the Tribunal is satisfied that WT has impaired capacity for personal and financial matters and rebuts the presumption of capacity for those matters.
Is the Enduring Power of Attorney dated 29 March 2010 valid?
[24].At the hearing WTP produced a Centrelink Medical Report that was signed by Dr Magdy Abdel-Malek on 19 January 2010 to support WTP’s application to receive a carer payment relating to the adult. The document provides that at the time of the report the adult:
· suffered from glaucoma;
· experienced hearing difficulty;
· displayed memory impairment;
· was in need of care for a significant period each day (at least the equivalent of a normal working day) due to disability and/or medical condition(s);
· required help with personal care, (e.g. face, hair teeth, dressing);
· was not cognitively impaired, but did however -
o display signs of depression “sometimes”,
o display signs of memory loss “most of the time”,
o withdraw from social contact “sometimes”,
o display aggression towards self or others “sometimes”.
[25].In his letter dated 7 August 2010 to Dr Abdel-Malek Dr Hassan Morgan, a consultant physician, provides collateral history that was provided to him by WTP at the appointment of the same date. It details observations that WTP had made about the adult in the 12 months preceding the appointment (and therefore from August 2009). The document provides that WTP had told the doctor that the adult:
· had displayed deteriorating short-term memory function in the past year – eg. forgetting names and places, losing articles and repeating himself in conversation;
· demonstrated outbursts of verbal aggression and restlessness;
· wandered at times;
· had lost interest in previous hobbies;
· needed assistance with dressing but was able to shower himself.
[26].In his oral evidence to the Tribunal WTP submitted that at a meeting on 9 February 2010, that was convened to organise the transfer the adult’s property, he informed BG, solicitor, that he had concerns about the adult’s memory. WTP told the Tribunal that BG had requested that he “get something from Dr Malek”. WTP stated that he did not provide documentation to support the adult’s capacity to enter into legal agreements as he had been caring for his mother and had been unable to attend medical appointments, with the adult, arranged for such a purpose. In his previous evidence to the Tribunal WTP submitted he and WL were in the same room as WT when he signed the Enduring Power of Attorney document.
[27].The Tribunal heard evidence from BG who submitted that the meeting of 9 February 2010 was convened to discuss the transfer the Maryborough property to WTP and that during this meeting BG provided the opinion that the adult and his wife should get their “affairs in order” by disposing of their jointly held property to WTP.
[28].BG told the Tribunal that he advised the adult and his wife to appoint an enduring power of attorney.
[29].BG stated that he did not recall WTP advising him of his concerns about the adult’s memory, nor did he recall advising WTP to obtain documentation from the adult’s doctor, despite his notes from the meeting of 9 February 2010 including reference to Dr Malek.
[30].He provided that he did not ask WTP, on or prior to 29 March 2010, for any documentation from the adult’s doctor relating to the outcome of a medical assessment about the adult’s ability to enter legal agreements. BG told the Tribunal that he was present at the appointment of 29 March 2010 prior to the adult signing the enduring document, and that he explained the terms of the Enduring Power of Attorney agreement to the adult before GA, the witness who signed the document, entered the room.
[31].He recalls the adult was wearing reading glasses while perusing the document and that WT did not ask any questions. BG told the Tribunal that he was not aware the adult had a hearing impairment and does not recall if his hearing aids were in situ. The solicitor submitted that he is aware of, but does not refer to, the Queensland Law Society’s guidelines for solicitors who witness enduring documents. He opined that he must have asked the adult if he understood the document, (indicated by a “yes” or “no” response), as this was his usual practice.
[32].BG told the Tribunal Clause 3 of the document had been included at his suggestion and that he has inserted similar clauses in other enduring documents that he had prepared. Clause 3 states: “where my spouse is my attorney, I authorize my attorney to engage in a conflict transaction (including transactions relating to real property) on my behalf where my attorney’s interests and duty in relation to the transaction could conflict with my interests and duty in relation to the transaction. Without limiting the foregoing I expressly allow and authorize my attorney to contract on my behalf with herself, her relative and entities in which my attorney has an interest or control”.
[33].The Tribunal questioned BG about the fact that Clause 3 does not authorize WTP to enter into conflict transactions as attorney for WT. BG expressed surprise and concern that Clause 3 did not include WTP. He stated to the Tribunal that he was “not aware of that” and that the exclusion of WTP in Clause 3 was an oversight on his part. He concluded that he would not have informed the adult about this discrepancy when he would have explained the details of the document to him, prior to the principal signing the document, as he would not have been aware of his discrepancy at that time.
[34].In her oral evidence to the Tribunal GA, witness to the Enduring Power of Attorney, submitted that on 29 March 2010 she joined BG and the adult after BG had spoken with the adult and that she had presumed BG would have adequately explained the details of the document to the adult as this would have been consistent with his usual practice. She told the Tribunal that she then “touched over again” the terms of the agreement while the adult had the document in front of him. She recalls explaining “you keep it amongst husband and wife and then other attorneys” and did not recall “going into any depth” about Clause 3.
[35].GA stated that while she did not ask the adult to repeat or rephrase any of the details of the document she did, however, request the adult indicate, by a “yes” or “no” response, if he understood the terms and implications of the document. She provided that after the adult indicated “yes” she witnessed his signature and signed the document.
[36].According to GA, WT did not ask any questions about the terms of the agreement.
[37].The witness submitted that she was not aware the adult had a hearing impairment and does not recall if his hearing aids were in situ.
[38].GA provided that she does not refer to Queensland Law Society’s guidelines when witnessing enduring documents.
Conclusion
[39].Having regard to the written and oral evidence, the Tribunal is not satisfied that WT had capacity to enter into the Enduring Power of Attorney agreement of 29 March 2010 as he was consistently displaying memory deficits that significantly and adversely affected his functional daily abilities at that time, to the point where he required a carer.
[40].Furthermore, the evidence is that the witness who signed the document did not carry out the legislative duties required of her.
[41].The Tribunal is not satisfied that the witness properly certified the document and that the adult understood all the relevant clauses, particularly Clause 3.
[42].Consequently the Tribunal declares the Enduring Power Attorney agreement of 29 March 2010 invalid pursuant to s113 (2) of the Powers of Attorney Act 1998 and s84(2) of the Guardianship and Administration Act 2000.
Is there a need for the appointment of a guardian?
[43].At the time of the application WT was living at the Maryborough property and was receiving care from WTP who was struggling to meet the adult’s increasing care requirements and demonstrated difficulty in coping with the deterioration of his wife’s health.
[44].In September 2010 WT was admitted to Maryborough Base Hospital by WTP for assessment.
[45].Under the interim order the Adult Guardian decided there was a significant risk to the adult’s health and wellbeing should he return to live in the community with WTP and that the adult required admission to an appropriate residential aged care facility.
[46].On 7 October 2010 the Adult Guardian made the decision that WT be discharged to Fairhaven Maryborough, a low care facility. Due to a further deterioration in the adult’s health and the facility being unable to meet his care requirements the Adult Guardian decided to move WT to his present accommodation at Fairhaven Hervey Bay, a high care secure (dementia-specific) facility.
[47].The adult’s current accommodation circumstances require monitoring to ensure that his care needs are met and his interests are protected.
[48].Health care decisions will be necessary to ensure the adult receives appropriate treatment for conditions relating to thyroid and liver function, hypertension and mental health.
[49].In the report to the Tribunal dated 19 November 2010 the Adult Guardian stated that nursing staff at Fairhaven Maryborough raised concerns about the appropriateness of visits from WTP. The Adult Guardian is of the view that all contact visits from WTP may require monitoring and reviewing. In his evidence to the Tribunal WTP submitted that he had only once visited the adult at Fairhaven Hervey Bay and that was on Sunday 21 November at 6am.
Conclusion
[50].Pursuant to section 12 of the Guardianship and Administration Act2000 the Tribunal is satisfied that there is a need for decisions pertaining to accommodation and health care matters and with whom the adult has contact and/or visits, and that without an appointment with adult’s needs will not be adequately met nor his interests adequately protected.
Who should be appointed as guardian?
[51].The options for appointment are the Adult Guardian or WTP who submitted at the hearing he was willing to act in that role.
[52].In her application to the Tribunal WM submitted that whilst WTP was receiving carer payments from Centrelink to care for the adult and WL, he left them alone in the Maryborough property for three days whilst he left town. WTP told the Tribunal that the event occurred after the Aged Care Assessment Team’s report of 16 June 2010. The report is based upon assessment by the team’s members along with collateral information provided to them by WTP. The report provides that at that time the adult required assistance with:
· communication,
· health care,
· transport,
· activities involved in social and community participation,
· domestic assistance,
· meals and
· home maintenance.
[53].The report details that WT:
· required encouragement to shower;
· required prompting to change clothes;
· was disoriented to time;
· was administered mediations by his son, WTP;
· required assistance by others to understand and retain information whether in written form or by telephone;
· experienced difficulty reading, writing and using the telephone; and
· became agitated when separated from WL or in unfamiliar settings.
[54].In his written and verbal submissions to the Tribunal WTP stated that at the time of his departure his parents were capable of caring for themselves and each other, and that he advised Centrelink of his absence.
[55].WL was assessed by the Aged Care Assessment Team, (ACAT), on 5 June 2010 as requiring assistance with personal hygiene, mobility transfers, meal preparation and taking medication. ACAT notes dated 6 June 2010 indicated that WT and WL “are now quite reliant on their son (WTP). In home carers were not required at this stage as their son is willing to assist them with domestic and personal cares”. The evidence is clear that WL was unable to take care of her husband at that time.
[56].On balance, the Tribunal is not satisfied that WTP had acted in a way that was consistent with the adult’s proper care and protection, or in a way that was appropriate to the adult’s characteristics and needs as required by general principles 7(5) and 10 respectively by deciding to leave Maryborough for three days and not taking appropriate steps to ensure proper services were being provided to WT for his ongoing care and welfare.
[57].Additionally, there is ongoing significant conflict and the problematic communication between WTP and WP regarding the increasing care requirements of the adult. Furthermore, WTP stated to the Tribunal that he has not informed the adult’s wife about significant health issues of the adult as she “worries about every little thing”. The Tribunal heard evidence that WTP was verbally aggressive toward nursing staff at Fairhaven Maryborough when he attempted to communicate his concerns regarding the adult’s deteriorating health. In response, WTP submitted that whilst the adult was accommodated at Fairhaven Maryborough he did become “upset” when he attempted to express his concerns to nursing home staff about the adult’s deteriorating health and the suitability of the care he was receiving.
[58].The Tribunal is not satisfied WTP would fulfill the requirements of an appointed guardian to effectively consult with family members and nursing home staff and to apply the general principles and the health care principle, as required by the Act, in order to make personal decisions for the adult and in the adult’s best interests.
[59].Section 14(2) of the Guardianship and Administration Act 2000 provides that the Tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
[60].The Adult Guardian is an independent decision maker with extensive skills and experience. The Tribunal is of the view that the Adult Guardian would be able to effectively liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs.
Conclusion
[61].The Tribunal is satisfied the Adult Guardian is the appropriate appointee and appoints the Adult Guardian as guardian for WT to make decisions about the following matters: accommodation, health care and with whom WT has contact and/or visits.
[62].Unless the Tribunal orders otherwise, this appointment remains current for five years.
Is there a need for the appointment of an administrator?
[63].The representatives of the Public Trustee of Queensland provided a brief summary of the adult’s financial affairs since the interim order of 12 August 2010. WT is in receipt of a Centrelink pension of $831.30 per fortnight. Assets include $2312 in a common fund, a joint bank account with WL containing minimal funds, a joint bank account with WTP containing $26,797, and an unregistered vehicle valued at approximately $1000. The Public Trustee has been attending to payment of nursing home fees and other necessary expenses such as medications. There are no liabilities.
[64].The Public Trustee representatives informed the Tribunal that on 30 August 2010 an amount of $25,382 was transferred into the joint account shared by the adult and WTP. They advised the Tribunal that it was not until 7 September 2010 that the Public Trustee of Queensland forwarded correspondence, including copies of the interim order, to the bank, electoral office and Centrelink.
[65].WTP provided oral evidence that prior to the interim order the adult and WL had approximately $50,000 in a joint term deposit account for which WTP was signatory. WTP informed the Tribunal that he transferred the funds from the term deposit account into the joint account he shared with the adult whilst he was aware the Public Trustee of Queensland was the appointed administrator for the adult under the interim order of 12 August 2010.
[66].The representatives told the Tribunal that the nursing home agreement remains unsigned and has been referred to the Public Trustee’s legal officers for consideration.
[67].They further advised that Centrelink has requested a copy of the transfer of title document in order to establish the details regarding the transfer of property and assess the adult’s ability to contribute to the cost of aged care.
Conclusion
[68].The evidence is that the adult has assets, income and expenses that require management. He requires a nursing home agreement to be signed on his behalf and in his best interests.
[69].An investigation will need to occur regarding the timing and circumstances of the transfer of the adult’s property to his son, to consider the appropriateness of this transaction given the adult’s circumstances, and to consider Centrelink implications.
[70].There is a further need for an administrator to investigate the unauthorized transfer of the adult’s funds under the interim order, with the view to seeking compensation for the adult who has sustained a substantial reduction in his funds as a result of the transaction.
[71].The Tribunal is satisfied that there is a need for the appointment of an administrator with regard to the provisions of section 12 of the Guardianship andAdministration Act 2000
Who should be appointed as administrator?
[72].The options for appointment are the Public Trustee of Queensland or WTP who submitted at the hearing he was willing to act in that role.
[73].WTP has provided evidence to the Tribunal that he transferred funds from the adult’s account into a joint account he shared with the adult whilst he knew he had no authority to do so as there was an administrator appointed for the adult. It is probable that the adult has suffered a substantial financial loss as a result his actions.
[74].The Tribunal is not satisfied that he is an appropriate appointee with regard to the provisions of section 15 of the Guardianship andAdministration Act 2000.
[75].The Public Trustee of Queensland is an independent and experienced administrator.
Conclusion
[76].The Tribunal is satisfied that the appointment of The Public Trustee of Queensland is appropriate to ensure that the adult’s financial needs are met and his financial interests are protected.
[77].The Tribunal appoints the Public Trustee of Queensland as administrator for WT, for all financial matters, until further order of the tribunal.
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