SED
[2018] QCAT 347
•22 October 2018
CITATION: | SED [2018] QCAT 347 |
PARTIES: | SED |
APPLICATION NUMBER: | GAA6583-18 Appointment of Administrator GAA6584-18 Appointment of Guardian |
MATTER TYPE: |
|
HEARING DATE: | 19 September 2018 |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston |
DELIVERED ON: | 22 October 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The following Enduring Power of Attorney for SED is declared invalid pursuant to s113(2) of the Powers of Attorney Act 1998 and s82(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of attorney dated 24 April 2018 appointing BA as attorney for personal and health matters. |
CATCHWORDS: | HEALTH LAW – OTHER MATTERS- VALIDITY OF NON-CONFIRMING ENDURING POWER OF ATTORNEY – where a non-standard enduring document did not have a commencement date or powers. Advice to legal practitioners about the steps involved in witnessing enduring documents. Powers of Attorney Act 1998 s113(2) and Guardianship and Administration Act 2000 s82(2) |
| APPEARANCES: GS – social worker REASONS FOR DECISION Background |
On 24 April 2018 whilst in hospital, the adult SED executed an Enduring Power of Attorney in favour of AB. The question for the Tribunal was whether the adult had capacity to execute the Enduring Power of Attorney.
Written evidence in relation to capacity
Dr AA provided a Health Professional Report dated 24 May 2018. The report stated:
a)that during a neuropsychiatry assessment of the patient did not exhibit sufficient cognitive ability and understanding to meet criteria for decisions making capacity in respect of personal matters;
b)that the patient suffered from the following medical conditions: previous alcohol excess; subacute subdural haemorrhage; mechanical subarachnoid haemorrhage.
c)that the patient was able to carry out simple personal healthcare task but needed prompting with more complex tasks;
d)that the patient was able to express preferences for lifestyle and accommodation but was unable to make other complex parts to achieve this;
e)that there was some concern that the adult might experience difficulties with complex money matters and transactions;
f)that the adult was able to make decisions about simple day-to-day activities however, he struggles with complex multistep decisions. He would be unable to independently carry out a complex set of tasks but at present was able to follow simple steps with step prompts;
g)that the adult appears to be unable to comprehend and follow complex tasks and would be unable to weigh up all risks and benefits with complex decision-making. He also struggles with facts and recall, which may further impede complex decision-making.
The doctor in the summary at paragraph 9 on page 10 states that the adult suffered multifactorial neurocognitive impairment secondary to previous alcohol excess and vascular factors including a subarachnoid haemorrhage in January 2017 and a subdural haematoma on 14 April 2018. The doctor was of the view that the adult could only make simple decisions.
The doctor in relation to the validity of the Enduring Power of Attorney referred to the neuro psychiatry assessment completed by Dr NJ on 10 May 2018.
Dr NJ neuropsychologist
Dr NJ in her report stated:
a)the criteria for decision-making capacity are understanding relevant information, appreciation of consequences, demonstration of reasoning and communication ability. The adult did not demonstrate an understanding of the relevant information either in the matter of deciding where he should live and the associated risks and management of those risks. He did not demonstrate an appreciation of the consequences of his own and others’ actions (he denies his excessive use of alcohol). He demonstrated limited reasoning such as when he gave the reasons for choosing his son as is EPA; however, he did not allow for the fact that his son lives too far away to be of any practical help (as noted by his son). He demonstrated adequate receptive and expressive communication for the purpose of receiving information and communicating his decisions. In my opinion, SED did not exhibit sufficient cognitive ability and understanding to meet criteria for decision-making capacity in respect of personal matters including appointing an EPA or personal matters.
b)Having found that SED does not have decision-making capacity the question of whether the EPA currently lodged on SED’s ward chart is a valid document is raised. Seems unlikely that SED would have been able to demonstrate decision-making capacity at the time of signing the EPA less than three weeks ago and now have a cognitive disability, which no longer supports decision-making capacity. This issue was raised with SED’s medical consultant Dr D.
The oral evidence presented at the hearing
SED
The adult SED told the Tribunal that he had capacity to manage his own affairs. He could not explain how he ended up in hospital or explain if he had any health issues, which could affect his capacity.
GS
The hospital social worker GS told the Tribunal that the adult was in hospital with a subdural haemorrhage and had a cognitive impairment when the EPA was executed and the treating team were of the view that the adult did not have capacity to execute the EPA.
GS provided a copy of the hospital Progress Notes for SED at the time. The Notes show that the adult was admitted to hospital on 14 April 2018 due to recurrent falls. The Notes state that the adult was significantly below the baseline of functioning. On 24 April 2018 and 29 April 2018 SA the speech pathologist in the Progress Notes, refers to areas of difficulty for the patient, which include reading, writing and using numbers, social interactions and divergent communication. His primary area of difficulty related to social interaction and conversations… Based on the patient’s areas of difficulty he may encounter difficulties with completing ADL’s that rely on reading, writing and using numbers effectively and would benefit from support these areas in the community.
SB Brother
SB told the Tribunal that the adult was suffering from alcohol delirium when admitted into hospital, and was unable to care for himself and would not have had the ability to execute an enduring power of attorney.
BC Sister
BC agreed with SB that the adult had a strong alcohol addiction, which invalidated his ability to make appropriate decisions about his self-care. She had no confidence in his abilities to be able to pay his bills or manage his financial affairs.
SW Brother
SW agreed with SB and BC.
The Tribunal’s view in relation to the adult’s capacity
The Tribunal was of the view that the presumption of capacity for personal and financial matters has been rebutted.
The Tribunal accepts the evidence of Dr NJ that SED did not have capacity to execute the Enduring Power of Attorney. The report of Dr AA and the evidence of family members support this evidence. The evidence from the Progress Notes around this time also raise serious issues about SED’s capacity.
The Tribunal made the following findings:
a)SED suffered a stroke with resultant cognitive impairments on about 14 April 2018;
b)SED’s cognitive abilities have been affected by his alcohol excess;
c)SED has recovered to some extent but still need substantial support around more complex decisions decision-making especially in relation to the areas of financial management.
The Tribunal is of the view that the Enduring Power of Attorney is invalid because it is incomplete. There is no commencement date or powers for the attorney. The Tribunal found that the Enduring Power of Attorney did not meet the requirements to be a valid enduring power of attorney.
If the Enduring Power of Attorney had been in the appropriate form, the Tribunal would still believe that it was invalid because the adult did not have capacity to sign the document. On this basis, the Tribunal makes the findings in the following paragraph.
The Tribunal in relation to the Enduring Power of Attorney makes the following findings:
a)the adult had been admitted to hospital on 14 April 2018;
b)the adult’s functioning level had seriously deteriorated at the time of the admission;
c)the adult suffered a stroke on 14 April 2018 and his cognitive abilities were impaired;
d)the adult had problems with reading, social interaction on the day the enduring power of attorney was executed.
The Tribunal would like to comment on the form of the Enduring Power of
Attorney and the practice of witnessing enduring powers of attorney for people who been admitted to hospital
The Enduring Power of Attorney was not in a standard form. The Tribunal asked the attorney to identify the clause that provided for the commencement of the enduring document. He was unable to find a commencement date. The Tribunal asked the attorney to identify the clause that provided for the powers given to the attorney. The attorney was unable to find such a clause within the enduring document. The enduring power of attorney that was executed was not a standard document and did not contain any reference to the commencement of the enduring document or the powers that were being given to the attorney. The Tribunal is of the view that the absence of such provisions goes to the heart of the enduring document making it invalid.
There is a lesson for legal practitioners that they must take care in drafting non-standard documents that they do meet the essential or mandatory requirements of enduring documents. The commencement of the powers provided for in the enduring document and the powers are fundamental parts of the enduring document. The Tribunal is of the view that to leave out these provision means that the powers are inoperative so that on the face of the document is not valid. The trap for practitioners is not take shortcuts. The Tribunal has no issues with the use of non-standard documents so as long as they meet the mandatory requirements for enduring documents. This case is an example of trap in not doing so.
The second issue for the Tribunal is the solicitor attending hospital the purpose of taking instructions and assisting the adult with an enduring power of attorney. A solicitor must be very careful when taking instructions from someone who suffered a stroke and who has a history of previous health issues affecting his capacity. The health staff were of the view that the adult did not have capacity. The adult had recently suffered a stroke. His functioning was significantly below his baseline at the time of his admission. On the day that the EPA was executed a Progress Note refers to the patient having problems with reading, writing social interaction and cognitive functioning. On 29 April 2018 SA, the speech pathologist was under the impression that he had problems with writing and using numbers, social interactions and divergent conversation to the point that he difficulty completing ADLs i.e. the Activities of Daily Living and would be required to be supported around these activities in the community. The Progress Notes refer to him being confused at times.
Dr NJ was of the view that SED did not have capacity to execute the enduring power of attorney that he had executed less than three weeks previously.
The attorney was unable to provide any notes from the solicitor who witnessed the EPA. The legislation provides for a solicitor in such circumstances to keep notes so that these can be used to substantiate the validity of the execution of the enduring document. The Law Society refers to this as being one of the most fundamental roles that a solicitor can provide for an adult. The Public Guardian has guidelines for the witnessing of enduring documents. The Law Society warns that not taking appropriate care in relation to the execution of enduring documents can constitute professional negligence.
The attorney was unable to refer the Tribunal to any such notes.
The Tribunal accepted the evidence of Dr NJ, which was supported by the Progress Notes taken at the time.
The Tribunal makes the following recommendations to the legal profession:
a)a legal practitioner needs to read the guidelines produced by the Public Guardians Office for witnessing enduring documents;
b)a practitioner should obtain a history from the adult that provides information relevant to the adult’s capacity. The Tribunal sets out in the following paragraph some approached regarding capacity that might assist practitioners;
c)a practitioner should obtain the treating health teams’ perspective of the adult’s capacity and any factors that might impact upon that capacity;
d)a practitioner should obtain some collateral from a family member or friend which will ensure that the adult is not just confabulating or making things up;
e)the practitioner should document the steps being taken and the basis for accepting that the adult had capacity;
f)the legal practitioner should provide the patient and the attorney with a copy of that record so that it can be produced in the event that the validity of the document is challenged.
If the enduring document was valid then this matter would have turned on whether SED had capacity at the time of the execution of the Enduring Power of Attorney namely 24 April 2018. What is being asked is whether SED had the capacity to understand the relevant information; the capacity to evaluate the character of the situation and possible consequences; and the capacity to handle the information rationally. The capacity to understand relevant information emphasises the importance of the adult’s comprehension of the information related to the issue at hand. With regard to this standard, it is necessary to distinguish between the mere capacity to understand information, and actual understanding. Merely having the capacity to understand is not sufficient consideration for actual understanding. An individual may have the intellectual capabilities to understand information, but nonetheless may misunderstand information as a result of selective attention, wishful thinking or deficits in the handling of information. The focus in this standard is on cognitive capabilities that are needed to understand information in the context of his personal affairs. The capacity to evaluate the character of the situation and the possible consequences differs from the mere ability to understand information in the abstract, by requiring that an adult is able to apply the information to his own personal situation. It requires adult’s recognition that information given to them about their affairs is significant and applicable to their own circumstances.
This means that the capacity to express a choice is only part of demonstrating that a person has capacity to understand the nature and effect of the decision that they are being asked to make.
Eight cognitive functions are supposed to be necessary in order to think rationally:
i)seeking information;
ii)thinking in terms of consequences;
iii)comparative thinking;
iv)complex thinking;
v)generating consequences;
vi)weighing consequences;
vii)transitive thinking;
viii)thinking in terms of chances.
The Tribunal is of the view looking at these cognitive functions that SED did not have capacity to execute the enduring document.
The Tribunal offers the following as a simple method of getting some insights into the capacity of an adult. The use of an electricity or rate account bill. The adult can be questioned about:
a)who is the account addressed to;
b)the account number;
c)the amount to be paid;
d)the date bill is due;
e)three options for the payment of the bill; and
f)the contact number for enquiries.
This gives useful insights into adult’s functional level. The payment of bills is a common everyday occurrence and the inability to understand such a document raises serious concerns. In the present case, the evidence is that the adult was not even in a position to read the document let alone understand the nature of the information being provided.
Another approach is to ask the adult to outline their financial situation:
a)How much is their pension;
b)How often is it received;
c)Who they bank with and how much is in the bank;
d)What are their major expenditures; and
e)What would happen in an emergency e.g. the car broke down
This approach reveals whether the adult has an understanding of their financial position. An adult who is capable of outlining this information shows they have some understanding where as a person with no understanding raises questions about their capacity.
Another approach is to ask an adult to write down their budget on a piece of paper. A person living on a pension is required to live within limited means. Pensioners usually have a very good understanding of how far their budget extends and being able to budget is a usual part of managing. An adult who cannot do a budget or who leaves out essential items raises questions about their capacity. The budget should include reference to:
a)Rent;
b)Power and water;
c)Telephone/internet;
d)Food;
e)Petrol;
f)Medical;
g)Entertainment; and
h)Clothes and linen;
The Tribunal finally notes that legal practitioners do not have training in relation to assessing capacity so that if the legal practitioner were concerned in any way about the evidence then of obtaining the opinion of the health service treating the patient about his capacity would seem to be an appropriate step to take.
The Tribunal is of the view in the present case that the solicitor could not have taken appropriate details of the adult’s medical history as far as is concerned his capacity. The Tribunal is further of the view that the adult having had a stroke put the legal practitioner on notice that she should have sought the opinion of the treating health team as to the adult’s capacity. The Tribunal is also of the view in these circumstances that notes or a record of instructions should have been taken and should have been made available to the Tribunal when these proceedings were initiated. An attorney undertakes very serious obligations and responsibilities when acting for an adult with impaired capacity. The attorney in cases such as these should be able to provide a copy of the notes around the execution of the enduring document so as to defend his or her appointment as attorney.
The Tribunal made the following order in relation to the Enduring Power of Attorney:
7. The following Enduring Power of Attorney for SED is declared invalid pursuant to s113 (2) of the Powers of Attorney Act 1998 and s82 (2) of the Guardianship and Administration Act 2000:
(a) The Enduring Power of Attorney dated 24 April 2018 appointing BA as attorney for personal and health matters.
These reasons are in addition to the oral decision made on 19 September 2018, which dealt with the Enduring Power of Attorney; the capacity of the adult at the date of the hearing and the need for a guardian appointment and administrator appointment.
The Tribunal directs that a copy of these reasons be provided to the President of the Queensland Law Society for use for the education of legal practitioners.
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