RJA
[2010] QCAT 301
•17 June 2010
| CITATION: | RJA [2010] QCAT 301 |
| PARTIES: | RJA |
| APPLICATION NUMBER: | GAA124-10 GAA125-10 |
| MATTER TYPE: | Guardianship and administration matters |
| HEARING DATE: | 12 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Allen K Geraghty |
| DELIVERED ON: | 17 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | ENDURING POWER OF ATTORNEY 1. The Tribunal declares the following Enduring Power of Attorney for RJA valid: (a) The Enduring Power of Attorney dated 17 September 2009 appointing RFM and RRC as attorneys for financial, personal and health matters. GUARDIANSHIP 2. That the application for the appointment of a guardian for RJA is dismissed. ADMINISTRATION 3. That the application for the appointment of an administrator for RJA is dismissed. |
| CATCHWORDS : | Capacity – validity of Enduring Power of Attorney – appropriateness and competence of Attorneys and proposed Guardians and Administrators Guardianship and Administration Act sections 12, 14, 15 schedule 1 and 4, Powers of Attorney Act 1998 section 41, 113 and 116. |
APPEARANCES and REPRESENTATION (if any):
| The followings active parties attended the hearing - JA, JAC, RFM and RRC. The Public Trustee of Queensland was represented by Ms Elaine Galvin DT attended the hearing as an interested party and a witness. |
REASONS FOR DECISION
History of the application
Mr RJA is a 90 year old retired banker and currently resides in a Nursing Centre. RJA and his wife RFM have two (2) children, RRC and JAC.
RJA appointed RFM and his son, RRC as his attorneys for both personal and financial matters on 17 September 2009. RJA resided in his home until he was hospitalised in December 2009 as a result of urinary tract issues. RJA was admitted to Hospital for interim care following surgery and was later placed at the Nursing Centre.
RJA’s granddaughter, JA was concerned about the actions taken by RFM and RRC acting under the Enduring Power of Attorney for RJA and made an application to the Tribunal.
The issues and legislation
The issues for the Tribunal are:
(a)Does RJA have capacity for the matter?:
(b)Did RJA have capacity to make an Enduring Power of Attorney on 17 September 2009?:
(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 and Administration Act 2000 as the Tribunal must be satisfied that RJA has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for RJA.
RJA is presumed to have capacity in accordance with section 7 of the Guardianship and 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 RJA.
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.”
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 Powers of 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. Section 113 of the Powers of Attorney Act:
“113 Declaration about validity
(1) The court may decide the validity of a power of attorney, Enduring Power of Attorney or advance health directive.
(2) The court may declare a document mentioned in subsection (1) invalid if the court is satisfied—
(a) the principal did not have the capacity necessary to make it; or
(b) it does not comply with the other requirements of this Act; or
(c) it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.
(3) If the court declares the document invalid, the court may, at the same time, appoint 1 or more attorneys for the principal.”
Section 41 of the Powers of Attorney Act 1998 sets out the capacity requirements to make an Enduring Power of Attorney as follows:
“41 Principal’s capacity to make an Enduring Power of Attorney
(1) A principal may make an Enduring Power of Attorney only if the principal understands the nature and effect of the Enduring Power of Attorney.[1]
(2) Understanding the nature and effect of the Enduring Power of Attorney includes understanding the following matters[2]—
(a) the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
[1] However, under the general principles, a person is presumed to have capacity—schedule 1, section 1.
[2] If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.
(b) when the power begins;
(c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the Enduring Power of Attorney;
(d) the principal may revoke the Enduring Power of Attorney at any time the principal is capable of making an Enduring Power of Attorney giving the same power;
(e) the power the principal has given continues even if the principal becomes a person who has impaired capacity;
(f) at any time the principal is not capable of revoking the Enduring Power of Attorney, the principal is unable to effectively oversee the use of the power.”
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 as follows:
“12 Appointment
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.(2) The appointment may be on terms considered appropriate by the tribunal.
(3) The tribunal may make the order on its own initiative or on the application of the adult, the adult guardian or an interested person.
(4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.”
10. The fact that there may be an attorney appointed under an Enduring Power of Attorney is especially relevant in determining whether an adult’s need will not be met without an appointment.
11. If the Tribunal determines that the Enduring Power of Attorney of 17 September 2009 is valid the Tribunal must then consider whether the appointed attorney should continue in that role or whether their appointment should be revoked under section 116 of the Powers of Attorney Act 1998 or made subject to the appointment of a Guardian or Administrator under section 22 of the Guardianship and Administration Act 2000.
12. In making that determination the Tribunal would consider the conduct of RFM and RRC as Attorney for RJA and whether they have exercised their powers in accordance with the Powers of Attorney Act 1998.
13. If the Tribunal determines that there is a need for the appointment of a Guardian and or Administrator for RJA, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000 as follows:
“15 Appropriateness considerations
(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—
(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;
(c) the extent to which the adult’s and person’s interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than 1 person is to be appointed—whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.”
The evidence
14. 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 RJA lack capacity for the matter?
15. Dr A prepared a health professional report while RJA was a patient at the Private Hospital. In her report Dr A noted that RJA’s current medical conditions were dementia which had a date of onset of months, hypertension, which he had for years, and renal calculi/UTI’s, onset of years. Dr A noted that a mini mental state examination had been carried out on RJA on 14 December 2009 with a score of 9 out of 30 and that a neuropsychological assessment had been done on 11 January 2010. Dr A stated that RJA had no ability to understand and act on information relevant for making decisions about personal health care, lifestyle and accommodation choices and financial affairs. In summary, Dr A found that RJA would not be able to make any decisions and would not understand any of the matters necessary for the making of an Enduring Power of Attorney. In regard to the dementia Dr A stated there was a gradual onset over months.
16. As noted in Dr A’s report a neuropsychological assessment was carried out by Ms S, Clinical Neuropsychologist. Ms S saw RJA on 11 January 2010 and notes that RJA has a history of delirium. The assessment was requested according to the report to ascertain his current cognitive and function status to determine his cognitive capacity to make competent lifestyle, health and financial decisions. Ms S notes RJA’s history which she obtained from his Private Hospital file as follows:
He attended his general practitioner on 23 November 2009 following painful frequent voiding of urine and abdominal pain. His GP then requested that RJA go to the Private Hospital and further investigation found a bladder stone and a urinary tract infection. It was stated that he was also noted to have an enlarged prostate and he underwent TURP.
17. Ms S states that:
“ during his admission it was noted that RJA was confused, intermittently agitated and he was calling out. Risperidone was administered PRN. His MSQ was variable. On 9 December 2009 it was noted that his confusion had increased following radiology of his prostate. His MMSE on 14 December 2009 was 9 out of 30 indicating significant cognitive impairment. Dr P had examined RJA and diagnosed delirium secondary to OA. He was admitted to hospital on 17 December 2009.”
18. Ms S states that collateral history was obtained from RJA’s wife:
“RFM reported a gradual decline of her husband’s short term memory over the years. He became progressively inactive at home and spent most of the day sleeping. She has noted the deterioration in his cognitive processes over time.”
19. Ms S noted a medical history of appendicectomy, bladder stones, hypertension, OA, subdural haematoma 2003 and deafness. Ms S states that there was no known psychological or psychiatric history.
20. Ms S states that she examined RJA at his bedside at the hospital and that while he was generally co-operative, he became mildly agitated on some tasks. Ms S administered the mini mental state examination and RJA’s score was fifteen (15) out of thirty (30). Ms S noted that he was disorientated for the year, the date, the day, the month, the season and place. He believed that he had been admitted to hospital only two (2) weeks ago, his delayed recall was zero (0) out of three (3) and he had trouble repeating the sentence but his hearing impairment contributed. His comprehension was (0) out of three (3), his copy of the pentagons was abnormal. Her assessment was that these performances indicated moderate cognitive decline.
21. Ms S stated that RJA had difficulties holding information in his working memory and mentally manipulating it. His attention was reduced, he was slow to process information. Ms S noted that RJA had difficulties with language and intellectual and executive functions. Her opinion was that:
“ performance on memory test indicated severe impairment, his attention and processing speed were impaired. He has mild to moderate difficulties with comprehension, which his deafness contributed to. He was moderately concrete in his thinking and his reason and capacity was impaired. Planning and organising was significantly reduced. These collective problems would impair his judgement. His performance on other cognitive tests suggested moderate generalised cognitive impairment (MMSE 15 out of 30). Essentially RJA does not have the cognitive capacity to make competent lifestyle, health and financial decisions.”
22. JA stated at the hearing that she hadn’t seen RJA for a number of months, she noted though that he is confused, he did not know which granddaughter she was and that he couldn’t hold conversations. She also confirmed that he was residing at the Nursery Centre with a high care ACAT assessment. JA stated to the Tribunal that she had seen her father last week when she went to the dentist with him. She agreed with the report from the health professional. She stated that he was up and down at times he can have a shallow conversation, and that he was depressed a couple of weeks ago. She said that she thought he had dementia quite a few years ago. RRC stated that he had seen RJA on the week-end before the hearing and that he had seen his mental condition deteriorate over the last couple of decades. He stated that RJA had always had a sharp mind and interest in various aspects of life. He stated that the loss of capacity had occurred following the operations that were performed at the Private Hospital. He said that some days RJA can conduct a conversation but, particularly in January when having conversations, RJA would say unusual things or sometimes recognise a voice but on other days not. He stated that he didn’t believe RJA could make decisions about personal matters. JA further stated that RJA had a history of depression and that he had been reviewed by a psychiatrist. Ms JA had stated that her father had been depressed a couple of weeks ago and said he wanted to die and that when she contacted the doctor he said that it was probably as a result of a minor stroke.
Conclusion
23. RJA has a high care ACAT assessment and is currently residing in the Nursing Centre. The medical reports indicated that he has a diagnosis of dementia and that he is currently unable to make any decisions. RJA’s family agree with the medical reports and confirm that RJA currently would be unable to carry on a coherent conversation in regard to his affairs.
24. The Tribunal is satisfied that RJA has impaired capacity for both personal and financial matters.
Capacity to make Enduring Power of Attorney
25. While it has been established that RJA currently has impaired capacity, his capacity to make the Enduring Power of Attorney on 17 September 2009 is a separate matter. The Tribunal has received a letter from Dr F, RJA’s General Practitioner dated 21 January 2010 which confirms that he is RJA’s usual doctor and that he visits him regularly at home and he last saw him 5 November 2009. Dr F’s opinion was that:
“ Whilst RJA is a 90 year old gentleman he has retained most of his mental faculties according to my judgement. He is mentally agile and alert and although I did no formal testing on recent visits, I would be happy to state that he had testamentary capacity and understood the concept and consequences of signing an Enduring Power of Attorney document.”
26. In his oral evidence to the Tribunal, RRC advised that a panel of Doctors had looked at the possible effects on RJA’s capacity of performing the operations in December as against the chances of him regaining continence and they had advised that the prognosis was good. RRC advised that subsequent to the operation RJA deteriorated but he was told the effect would wear off. He stated that RJA had never regained capacity he had before the operation.
27. At the hearing the Tribunal was provided with copies of two (2) Enduring Powers of Attorney made by RJA. The first dated 3 February 1994 appointed RFM as his Enduring Power of Attorney and the second dated 16 June 1994 appointed RRC as his Enduring Power of Attorney. The Tribunal notes that these Enduring Powers of Attorney were made under the Property Law Act 1974 and that the making of the latter Enduring Power of Attorney did not revoke the earlier Enduring Power of Attorney. Therefore at the time RJA made his Enduring Power of Attorney on 17 September 2009, he had two (2) Attorneys appointed under separate instruments, RRC and RFM. The Tribunal notes that an Enduring Power of Attorney made under the Property Law Act 1974 only relates to financial matters.
28. In his oral evidence to the Tribunal, DT stated that he had a long history with RJA and that RJA had been his boss at the Bank and that they had maintained a relationship over the years. DT stated that RJA was as sharp as a tack although he had slowed down over the years. He stated in regard to the Enduring Powers of Attorney that the attendances were arranged by RJA and that, in his opinion, RJA was lucid and understood what he was doing at the time he was signing the documents. DT stated that RJA read through both his and his wife’s Enduring Power of Attorney carefully. DT stated that he went through the Enduring Power of Attorney with RJA discussing things such as when the Power of Attorney took effect. He stated that RJA wanted the Enduring Power of Attorney to take effect immediately. In regard to the reason why RJA requested a new Enduring Power of Attorney, DT stated that RJA wished to update his Enduring Power of Attorney as the previous ones did not cover personal matters. DT also provided to the Tribunal a file note of his attendance at the time the Enduring Powers of Attorney were executed. When questioned by the Tribunal DT indicated that he was aware of the Queensland Law Society Enduring Power of Attorney witness guidelines and that though he did not use the formal client interview techniques, which would be expected under those guidelines, he was satisfied that RJA had the capacity to make the Enduring Power of Attorney.
29. When RFM was queried in regard to the collateral information she had given to Ms S in regard to RJA’s decline in his short term memory and deterioration of cognitive processes she stated that she couldn’t remember when the short term memory problems started and that he was always very sharp.
30. JA indicated that RJA had a history of depression being reviewed by a psychiatrist and that his decline was coming on for some time. JA stated that he had already had an ACAT assessment for high care prior to the making of the Enduring Power of Attorney. She further stated that ambulances had been called to the house due to RJA falling and at those times he had been confused and distressed. She also stated that his finances had been confused, that he had been investigated by the Australian Taxation Office and that his Accountant had attended at the house and there was documents spread over several rooms of the house.
31. JA stated that the block of units which was owned by her grandfather in which she resided had been poorly maintained and that she had been asked to prepare the Body Corporate minutes in respect of the units and that the last Body Corporate minutes had been prepared for the year 2005.
32. The Enduring Power of Attorney that was made on 17 September 2009 appoints RFM and RRC as Attorney for financial and personal health matters. The financial powers commenced immediately although it was indicated by ticking yes in the box in clause two (2) that terms would be set, there were no terms set. DT indicated that was a mistake. The powers commenced immediately in regard to financial matters and the attorneys were to act severally. In essence then, the Enduring Power of Attorney of 17 September 2009 repeats the powers that were given in the Powers of Attorney made in 1994 in regard to financial matters and increases the powers so that they cover personal and health matters for RJA.
33. The Tribunal notes that it was upon the instructions of RJA that a new Enduring Power of Attorney was prepared for him by DT and that the instructions for the preparation of the new Power of Attorney were consistent with RJA’s previous Enduring Power of Attorney and acted as an update of those Powers of Attorney to include personal and health matters.
Conclusion
34. RJA’s General Practitioner, Dr F, was of the opinion that as at the time the Enduring Power of Attorney was executed that RJA would have had the capacity to understand an Enduring Power of Attorney. The witness to the Enduring Power of Attorney, DT, also confirmed that RJA understood the matters necessary for the making of an Enduring Power of Attorney. While it is clear that RJA now has impaired capacity the Tribunal accepts the evidence of RRC that prior to the operations at the Private Hospital, RJA had capacity for such matters as the making of an Enduring Power of Attorney. The evidence that the Tribunal has received from JA and JAC indicates that RJA may have had a period of depression though this is not supported by the report of Ms S. There is also the issue in regard to RJA not maintaining the records for the Body Corporate of the block of units that he owned. It is clear that RJA was 90 years old and he had slowed down to some extent. His lack of attention though, to such matters, is not of itself evidence of a lack of capacity. The Tribunal is therefore satisfied that RJA had capacity to make an Enduring Power of Attorney on 17 September 2009.
Is there a need for a Guardian and if so who should be appointed?
35. Ms S’s report notes that there are:
“ Complex family agendas regarding the continued care of RJA. Although RFM has expressed concerns regarding the continuing care of her husband at home, she has been reluctant to make a decision about residential care. This situation is complicated by reports from RJA’s daughter, JA, that RFM’s capacity to care for him properly at home has deteriorated and that allowing him to return home would put him at risk. RFM and her son hold EPOA. Ann intends to make an application to QCAT to assist with the decision making process, whilst the son is supporting RFM.”
36. At the time of the hearing a decision had been made to place RJA in the Nursing Centre as a result of his deterioration in health and an acceptance by the family that it was not appropriate for him to return home.
37. JA at the hearing raised issues about the appropriateness of the Nursing Home making allegations about such things as there being no air conditioning, no security and that the unit reeked of urine. These allegations were refuted by RRC who stated that the Nursing Home was close to RFM’s residence enabling her to visit regularly, that it had a high staff ratio and was recommended by the Private Hospital, and that a new building was being constructed that RJA would be able to use.
38. JA also raised issues in regard to RJA’s eyesight and need for dental care. The Tribunal notes that RJA’s General Practitioner, Dr F, visits the nursing home and will be able to continue with his care of RJA.
39. JA acknowledged at the hearing that the relationship between herself and her mother and brother was poor and stated that she had not been kept in the loop in regard to medical issues for her father. It is clear that she is concerned for her father and that she would like to assist in his future health care.
Conclusion
40. RFM made an appropriate decision to ensure that RJA transitioned to a nursing home when she was no longer able to properly care for him at home. Whilst RRC resides in Japan, it is clear that when major decisions are required, such as the placement in the nursing home, he will make himself available to assist RFM in that decision making process. It is clear also that JA, as a daughter of RJA, wishes to be involved and has a contribution to make to his personal decision making.
41. In accordance with section 76 of the Powers of Attorney Act 1998 an Attorney must act in accordance with the general principles and health care principles in particular here general principle 8:
“ the importance of maintaining an adults existing supportive relationships must be taken into account.”
42. While there is no evidence that JA is not allowed contact with RJA it is clear that she is not consulted about decisions and not informed of decisions. She advised the Tribunal that she was not told that RJA had moved to the Nursing Centre, she only found out by contacting the Private Hospital. RFM and RRC as Attorneys for RJA are under a duty to ensure that JA and JAC are kept informed of decisions.
43. The Tribunal is satisfied that the Attorneys RFM and RRC have acted appropriately in regard to personal health matters to date and that they are adequately meeting RJA’s needs. There is no need for an appointment of a Guardian for RJA as his needs are being met by his Attorneys and the application in that regard will be dismissed.
Is there a need for an Administrator for RJA and if so who should be appointed?
44. RJA is a joint tenant with his wife in respect of the family home and a unit and two (2) bank accounts. RJA also owns four (4) units in a block. His sources of income include rent, a DVA pension and superannuation.
45. The firm of BDO Kendalls, accountants have been assisting RJA and RFM with their financial affairs for some time. Mr RRC stated that BDO Kendalls have been assisting RFM in putting arrangements in place for the managing of RJA’s financial affairs including the suggestion of such things as a direct debit for payment of the nursing home fees. RFM stated that from the time RJA went into hospital she commenced the management of RJA’s financial affairs with the assistance of BDO Kendalls. Mr RRC stated that he had helped his mother reconcile accounts and prepare material for the accountants.
46. The major concern raised by JA and JAC relates to the block of units in which RJA owns four (4) units. The Tribunal notes that JA is the owner of one (1) of the units in the block and that she therefore has a good knowledge of the issues in regard to the block of units. JA and JAC have raised issues about maintenance and repair of the block of units and also the lack of Body Corporate accounts and the fact that no levies have been raised for some time. While RJA had capacity his attorneys could have undertaken this work on his instructions but, now that he has impaired capacity, it is incumbent upon them in accordance with section 66 of the Powers of Attorney Act 1998 to act honestly and with reasonable diligence. This requires that the issues in regard to the block of units be addressed in a timely fashion to protect the interests of RJA.
Conclusion
47. The Tribunal is satisfied that the Attorneys have placed appropriate arrangements in place by continuing with the engagement of BDO Kendalls as RJA’s accountants and ensuring that such things as his nursing home expenses are paid by direct debit. Due regard must be had to the change in family circumstances resulting from RJA transitioning from residing at home with RFM to him now residing in a nursing home which will require additional financial resources to those previously needed by RJA and RFM.
48. The Tribunal notes that JA nominated her mother JAC as Administrator for RJA, it is clear though that there is conflict between JA and her mother and that any decision maker for RJA would need to deal with RFM not only in regard to joint assets but also to ensure that RFM as a dependant of RFM was provided for in accordance with section 55 of the Guardianship and Administration Act 2000.
49. The Tribunal is satisfied that RFM and RRC as Attorneys for RJA are adequately meeting his needs in regard to financial matters and therefore there is no need for an appointment of an Administrator in accordance with section 12 of the Guardianship and Administration Act 2000. The application for administration will therefore be dismissed.
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