S (Aka MP) P (Aka M) M
[2010] QCAT 59
•1 February 2010
CITATION: S (aka MP) P (aka M) M [2010] QCAT 59
PARTY: S (aka MP) P (aka M) M
APPLICATION NUMBER: G19620
MATTER TYPE: Guardianship and Administration matters
HEARING DATE: 1 February 2010
HEARD AT: Southport
DECISION OF: B Bayne
J Gallagher
DELIVERED ON: 1 February 2010
DELIVERED AT: Southport
ORDERS MADE: Declaration about Capacity
Application for Guardianship dismissed
Appointment of Administrator
Enduring Powers of Attorney invalid
CATCHWORDS: Multiple Enduring Powers of Attorney, Validity, Interim Order, Need for the appointment of a Guardianship and/or Administrator, Family Conflict
APPEARANCES and REPRESENTATION (if any):
SM
BP, daughter and attorney
BM, son and attorney
SP, son
BS, daughter in law
McPS, representing The Public Trustee of Queensland
WA, advocate (with leave) for BP
REASONS FOR DECISION
HISTORY OF THE APPLICATION
SM is 84 years of age and since September 2009 has been living in a care facilty in Queensland. SM is also known as PM and SPM.
SM has three children: BP who lives in Queensland, BM who lives in Queensland and SP who lives in Victoria. There has been a history of conflict between MS’s children.
Prior to September 2009, SM had been living in Sydney for some years, close to her fourth child, her son BJ. She was admitted to a Nursing Home in March 2007 following a series of falls. BJ was assisting SM with all her personal, health and financial matters.
BJ died unexpectedly in August 2009 and SM is the sole beneficiary of his estate. Mr EC of GC Solicitors in NSW is acting for BJ’s estate.
SM had made several enduring powers of attorney:
(a)2 September 2009 appointing BP as her enduring guardian under the NSW Guardianship Act 1987
(b)2 September 2009 appointing BP as her attorney under the NSW Powers of Attorney Act 2003
(c)9 September 2009 appointing BP as her attorney for personal/health and financial matters under the Queensland Powers of Attorney Act 1998, both powers to start immediately
(d)7 October 2009 appointing BM as her attorney for personal/health and financial matters under the Queensland Powers of Attorney Act 1998, both powers to start immediately.
On 22 October 2009, the Guardianship and Administration Tribunal received an application from BP proposing the appointment of herself as guardian and administrator for her mother.
On 13 November 2009, the Guardianship and Administration Tribunal, being satisfied at the time that urgent action was required, made an Interim Order appointing the Public Trustee of Queensland (PTQ) as SM’s administrator for all financial matters. The period of appointment was expressed to remain current for three (3) months.
This Order was made under Section 129 of the Guardianship and Administration Act 2000 (the Act) which provides:
129 Interim Order
(1) If the tribunal is satisfied urgent action is required, it may make an interim order in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.A hearing of the applications from BP was held on 1 February 2010 by the Queensland Civil and Administrative Tribunal. The decision was announced at the hearing. The parties were advised that written reasons for the decision of the Tribunal would be available shortly.
PRELIMINARY MATTERS
The Tribunal recognised the complexity in the applications before it and the difficulties for parties in understanding the various issues. It therefore took some time in the hearing on 1 February 2010 to outline its role as well as the legislation.
The Tribunal advised all parties that it had no authority under Queensland legislation to deal with the documents executed on 2 September 2009 under the NSW Guardianship Act 1987 and the NSW Powers of Attorney Act 2003. The Tribunal noted BP’s statement to the Tribunal on 1 February 2009 that she had no intention of using the NSW powers.
[12].The Tribunal was aware that one of the contentious issues in this matter was SM’s will. It therefore advised all parties present that, because it had no authority under the legislation to deal with wills, there could be no discussion on this matter.
The Tribunal acknowledged that it was aware of the considerable family conflict in this matter. It informed the parties that discussions in the hearing would be limited to relevant issues and the Tribunal would only rely on competent and factual evidence.
THE ISSUES AND THE LEGISLATION
On 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal).replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Tribunal
The Guardianship and Administration Act 2000 (the Act) is an enabling Act conferring original and review jurisdiction on the Tribunal.
[16].Section 6 of the Act explains that the Act seeks to strike a balance between
(a) the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
(b) the adult’s right to adequate and appropriate support for decision making.
The Act provides a simple and inexpensive way of meeting the decision-making needs of adults who are unable to make decisions for themselves and where the existing arrangements are not working.
Most adults with impaired decision-making capacity do not need a guardian or administrator appointed because their family, friends and support network help them deal with important choices, such as where they live or how to arrange their financial affairs. Often, formal arrangements such as an enduring power of attorney are used appropriately by family or friends to help adults with impaired decision-making capacity.
Section 84(2) of the Act provides that the Tribunal has concurrent jurisdiction with the Supreme Court of Queensland in regard to changing, revoking, or overtaking an Enduring Power of Attorney. Sections 116 and 117 of the Powers of Attorney Act 1998 apply.
The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
In determining the applications concerning SM, the Tribunal considered the following issues:
(a)Did SM have the capacity to execute the Enduring Powers of Attorney in September and October 2009?
(b)If not, what was the effect on the Enduring Powers of Attorney?
(c)Was there a current need for the appointment of a Guardian?
(d)Was there a current need for the appointment of an Administrator? If so, who should be appointed?
THE EVIDENCE
[22].In addition to the written material contained on the Tribunal 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.
DID SM HAVE THE CAPACITY TO EXECUTE THE ENDURING POWERS OF ATTORNEY IN SEPTEMBER AND OCTOBER 2009?
[23].The Act defines capacity in Schedule 4 of the Act:
“capacity”, for a person for a matter, means the person is capable of-
understanding the nature and effect of decisions about the matter; and
freely and voluntarily making decisions about the matter; and
communicating the decisions in some way.
[24].SM was presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity had been rebutted for her.
From 2008, various medical reports on the Tribunal’s file began to indicate some concerns with SM’s cognitive functioning:
(a) A letter dated 27 July 2008 addressed to “Whom it May Concern” from Dr WM in Sydney stated “SM … has signs of early dementia. Her most recent MMSE score was 24/30 indicating ‘minimal cognitive impairement (sic)”
(b) A letter dated 4 August 2009 to Dr W from Dr UG, Staff Specialist in Psychiatry of Old Age, Concord Repatriation General Hospital stated “SM was mildly cognitively impaired, with memory difficulties … some frontal lobe impairment probably on a vascular basis. … MMSE equivalent score 19/30”
(c) The Transfer Form dated 4 September 2009 from a Sydney Nursing Home recorded on SM’s relocation to Queensland:
Mental State: can be confused at times, impaired short term memory
Comprehension: can be confused and disorientated
(d) An ACAT report dated 10 September 2009 recorded a prime diagnosis of dementia and an MMSE score of 17/24. It stated “Requires prompting and guidance/assistance to attend every day care needs. Repetitive in conversation”. High permanent care and high respite care were approved on an indefinite basis
(e) A report from Dr KA, General Practitioner, dated 23 October 2009 considered that SM had been diagnosed with dementia in August 2009, was able to make only simple personal health care and lifestyle/accommodation decisions and was vulnerable to influence of family members.
[26]. BP informed the Tribunal that in September 2009 she had organised for an enduring power of attorney (EPA) to be signed by SM. She said she had done so in order to ”…put my mother in full time care for her own benefit. So I could sign any papers needed for her to reside in the nursing home “.
[27].The document, dated 9 September 2009, appointed BP as attorney for financial matters, personal/health matters and financial and personal/health matters. The terms were stated as “to handle all financial, health, matters sell houses or anything that is needed”, and the power of the attorney for financial matters was to start immediately.
[28].The EPA was witnessed by a justice of the peace named HAD. No evidence was provided as to how Mr H satisfied himself that SM understood the matters in the statement of understanding.
[29].On 6 October 2009, SM was assessed by Dr KP, a psychiatrist/psychogeriatrician. The referral made, via Dr K, on the request of the Nursing Home, sought clarification about SM’s “mental state and capacity and cognitive capabilities”.
[30].Dr KP’s two page report dated 12 October 2009 states in part:
“M … doesn’t recall signing a POA document recently nor can she tell me what a POA does”.
“…(SM) is suffering from a dementia syndrome of unclear aetiology but with moderate impairments. She does not have the capacity to enlist a Power of attorney at interview nor revoke one. She is unaware of what this entails. She would be struggling with managing her finances similarly. … she struggles to list new assets left to her from her son’s estate, let alone the current holdings she has.”
[31].On 7 October 2009 SM executed an EPA appointing BM as her financial and personal/health and attorney with BS as successive attorney. Financial power was to start immediately.
[32].The EPA was witnessed by a solicitor, BJ of CMcM. BJ informed the Tribunal that although she had only met SM on one occasion (7 October 2009), she had spent a considerable amount of time with SM and had been satisfied that
“she had capacity. In particular I was satisfied that she understood the nature and effect of the document and her decision … was made freely and voluntarily. She had no trouble communicating her decisions to me and was very clear in her instructions”.
[33].BJ provided a series of documents to the Tribunal including
(a) handwritten notes of the meeting on 7 October 2009
(b) typed file note of the meeting on 7 October 2009
(c) copy of her law firm’s EPA check list
(d) letter to SM dated 19 October 2009
(e) letter to BM dated 19 October 2009
(f) typed file note of a telephone conversation with EC of GC Lawyers NSW on 19 November 2009
[34].The Tribunal pursued the documents provided by BJ and noted various comments in them:
“…(BP) went to a meeting with a man ….. made her sign some documents. (SM) … did not know what she was signing”
“… couldn’t remember his (BM) wife’s name”“… some money in the bank, but is not sure of the amount”
“.. medication … several tablets a day… does not know what they are all for”
“… (SM) did repeat herself a few times”
[35].The Tribunal also noted that there was no reference in the documents to the EPA executed on 9 September 2009, or to the documents executed in Sydney on 2 September 2009.
[36].The evidence indicated that BJ became aware of the health assessment undertaken on SM on 6 October 2009. On or about 15 October 2009 she was faxed a copy of Dr King’s report. BJ’s initial comments on this report on 19 November 2009 read (in part):
“I saw that the doctor had commented … that SM does not have the capacity to prepare a power of attorney. This was contrary to my assessment of SM.
As I understand it, Dr KP was not specifically instructed to assess SM’s capacity to make a Will and EPA”.
[37].In the telephone conversation with EC on 19 November 2009, BJ ‘explained to EC that we have quite particular tests in Queensland about capacity for an enduring power of attorney and Will and I was not sure the geriatrician had applied the correct test.”
[38].On 19 October 2009, BJ arranged a second assessment by Dr PG, a specialist in Geriatric Medicine and Rehabilitation, and also wrote to BM recommending that he did not exercise his powers under the EPA.
[39].Dr P’s six page report is dated 19 November 2009. The summary reads in part:
“ SM has moderate cognitive impairment, poor memory, poor new learning and poor information processing.”
“She is repetitive in her speech.”
“She does not understand a Power of Attorney… and has vague recollections of singing documents.”She has limited knowledge of her assets.”
“SM is not capable of signing or revoking an Enduring Power of Attorney.”
[40].In the hearing on 1 February 2010 SM expressed some strong opinions, most of which involved her feelings towards her children. She demonstrated little understanding of the matters under discussion and was preoccupied with perceived problems with some of her children, repeating her concerns a few times.
[41].In her written and orally evidence to the Tribunal, BP opined that her mother had problems with her memory due to dementia, and had had for some time. She stated that she thought that her mother could not make her own decisions.
[42].SP informed the Tribunal that he thought that SM was not able to make her own decisions. He considered that she had short term memory problems and was vulnerable to undue influence.
[43].BM stated that in his opinion SM had the mental ability to make her own decisions. He explained at some length that SM had been subject to considerable stress in August and September 2009. He considered that there were inconsistencies in the various medical reports and contented that some days continued to be better than others for his mother. Several times throughout the hearing, he repeated his belief the SM’s wishes for the future of her properties should be upheld.
[44].He said that he thought Dr K’s report was inaccurate to a point, and was a bit unjustified in that her conclusions were not arrived at in the right way. He thought that SM would not have been particularly interested in financial matters in that these were not important to her.
[45].BM eventually stated that that he did not disagree with the findings of Dr Powell’s report.
Conclusion
The Tribunal examined the range of evidence concerning capacity, appreciating that some of it was contradictory.
The Tribunal considered that the medical and health professional reports were consistent in their conclusions that SM had been experiencing for some time cognitive impairment that would affect her decision-making, notably through memory loss, poor information processing, poor new learning, some confusion and lack of insight.
Most of the parties present at the hearing did not dispute this finding.
The Tribunal determined that, on balance, SM had impaired capacity for personal and financial decisions and had had so since at least early September 2009.
WHAT WAS THE EFFECT ON THE ENDURING POWERS OF ATTORNEY?
Section 113 of the Powers of Attorney Act 1998 provides
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;
The Tribunal therefore concluded that the Enduring Powers of Attorney made by SM on 9 September 2009 and 7 October 2009 were invalid.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
The Tribunal considered SM’s personal and health matters.
The Tribunal, when considering the appointment of a guardian, must be satisfied as to the need for appointment as set out in section 12 of the Act.
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.
All oral and written evidence before the Tribunal, including that from SM herself, indicated that SM was well settled in the Nursing Home. She was afforded good services and no party had any intention of relocating her.
The Tribunal explained the role of a statutory health attorney to the parties present; sections 62 and 63 of the Powers of Attorney Act 1998 apply.
A statutory health attorney is someone with automatic authority to make health care decisions on behalf of an adult whose ability to make decisions is permanently impaired. There is no need to formally appoint a statutory health attorney. A person automatically acts in this role when the need arises because of their relationship with the patient for example, a child.
A statutory health attorney can consent to most health care issues, including medical and dental treatment and withdrawing or withholding life-sustaining measures. As a last resort, the Adult Guardian, an independent statutory official, would be authorised by law to make health care decisions for SM.
After some discussion, the family, despites their differences, unanimously agreed that they could and would be able to make health decisions for SM and would be able to communicate any such decision to all other members of the family.
CONCLUSION
The Tribunal was satisfied that, under the circumstances, there was no need for an appointment of a guardian for SM.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINSTRATOR?
The Tribunal, when considering the (new) appointment of an administrator, must be satisfied as to the need for appointment as set out in section 12 of the Act.
Information from the PTQ, appointed as interim administrator for SM under an order dated 13 November 2009, indicated that she had complex financial matters including:
(a) Income - a CentreLink aged pension and rent from a property in NSW
(b) Expenses - nursing home fees, personal spending and property costs
(c) Assets - the property in NSW (currently under a caveat registered in October 2009) and the late BJ’s estate, worth approximately $1.1 million
(d) Liabilities – a bond payable to the Nursing Home ($350,000) and arrears in the Nursing Home fees ($9,000)
(e) Approximately $5,500 in the CBA and PTQ cash account
(f) Negotiations with solicitors in NSW and the NSW Trustees with regards to the finalisation of BJ’s estate
(g) Consideration of how the residential bond should best be funded.
The Tribunal, when considering the (new) appointment of an administrator, must be satisfied as to the appropriateness of an appointee. Section 15 of the Act provides:
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.
Although BP had nominated herself as administrator, she informed the Tribunal in the hearing that she now supported the appointment of the PTQ.
SM advised that she would like the appointment of the PTQ, and BP indicated strong support of the PTQ.
BM reiterated his conviction that, despite the bond liability, the Sydney properties, in accordance with SM’s wishes, should not be sold. He advised that he did not support the appointment of the PTQ and instead nominated BJ, solicitor.
The Tribunal noted that no application had been made on behalf of BJ. As her wishes and appropriateness in this regard were unknown, the Tribunal could not consider her.
CONCLUSION
The Tribunal was satisfied that SM’s financial matters were complex and considered that the need for the appointment of an administrator for her was clear.
The Tribunal was well aware of the high level ongoing conflict between SM’s children, their very poor communication and the lack of trust between them.
The Tribunal determined that the Public Trustee of Queensland, an independent professional decision maker with extensive skills and experience, was the appropriate appointee as administrator in this case.
The Tribunal was satisfied that the Public Trustee of Queensland can assess the relative merits of options for decisions on financial matters and make decisions that best meet SM’s needs and properly protect her interests in the future.
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