SG

[2010] QCAT 234

CITATION: SG [2010] QCAT 234

PARTIES: SG

APPLICATION NUMBER:   GAA7233-09 and GAA7234-09

MATTER TYPE: Guardianship and Administration Matters

HEARING DATE:     24 March 2010

HEARD AT:  Brisbane

DECISION OF:

E Benson-Stott, Presiding Member

J Cockerill, Member

DELIVERED ON: 24 March 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

ENDURING POWER OF ATTORNEY

1. That the following Enduring Power of Attorney and the Revocation of an Enduring Power of Attorney for SG are declared invalid pursuant to S113(2) of the Powers of Attorney Act 1998 and S84(2) of the Guardianship and Administration Act 2000:

2. (a)  The Enduring Power of Attorney dated 4 September 2009 appointing MS as attorney for financial, personal and health matters; and,

   (b)   The Revocation of an Enduring Power of Attorney dated 4 September 2009.

1. That the following Enduring Power of Attorney for SG is overtaken by the making of these appointments and, in accordance with S22(2) of the Act can no longer be acted upon to the extent that these appointments have been made:

   (a)The Enduring Power of Attorney dated 19 July 2007 appointing SJ and  SA as attorneys for financial, personal and health matters.

GUARDIANSHIP

1. That the Adult Guardian is appointed as guardian for SG for decisions about the following personal matters:

(a)Accommodation;

(b)Health care;

(c)Provision of services;

(d)Day-to-day issues, including, for example, diet and dress;

(e)Legal matters not relating to the adult’s financial or property matters.

1. Unless the Tribunal orders otherwise, this appointment remains current for five (5) years.

ADMINISTRATION

1. That The Public Trustee of Queensland is appointed as administrator for SG for all financial matters.

1. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

1. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

1. This appointment remains current until further order of the Tribunal.

DIRECTIONS

1. The Tribunal directs that:

(a)The Public Trustee of Queensland investigate the validity of the transfer of the interests of SG to SJ in certain real property, namely:

(i)Lot 3 on RP52787, County of Stanley, Parish of Nundah, Reference 13398097;

(ii)Lot 36 on RP29100, County of Stanley, Parish of Nundah, Reference 12417189.

(b)That pursuant to the undertaking given to the Tribunal by SJ, The Public Trustee of Queensland arrange for the proceeds of the account held in the name of SJ as trustee for SG at the ANZ Bank Sandgate to be vested in The Public Trustee of Queensland as administrator for SG (approximately $18,000).

(c) That the Principal Registrar of Queensland Civil and Administrative Tribunal report the conduct of LMK (JP) to the Registrar, Justice of the Peace Branch, Department of Justice and Attorney-General for investigation.  It is the recommendation of the Tribunal that she undertake further education in relation to the role of Justices of the Peace in witnessing Enduring Documents. The Principal Registrar of Queensland Civil and Administrative Tribunal is authorised to provide a copy of this decision and oral reasons to the abovementioned Registrar.

CATCHWORDS :  Capacity, Enduring Power of Attorney, Family Conflict, EPA and Revocation declared invalid, guardian and administrator appointed

APPEARANCES and REPRESENTATION (if any):

The Adult Guardian
Steven Genrich for The Public Trustee of Queensland via telephone

RG, AD, LB, SM, daughter, SJ, son

REASONS FOR DECISION

1. This is the matter of SG. The application number is G19644. It was a hearing held today, the 24th of March 2010, in the Queensland Civil and Administration Tribunal here in Brisbane, with the following members: Elizabeth Benson-Stott Presiding, and Mr James Cockerill.

2. On the 28th of October 2009, an application about SG, known as the adult, was lodged by SJ, son of the adult, with the Queensland Civil and Administration Tribunal, seeking the appointment of an administrator and the appointment of a guardian.

3. Mr SG, known herein as the adult, is 98 - sorry, 89 years of age, who was admitted to the Prince Charles Hospital Rehab Unit on the 21st of September 2009. The adult is still in the ECU at Prince Charles Hospital, Chermside, and is currently on a waiting list for placement at Eventide Nursing Home. The adult has a degenerative neurological disorder which, according to a neuro-psychological assessment, has been present for some time.

4. The adult signed an enduring power of attorney form on the 19th of July, 2007, appointing SJ, his son, and SA for financial and personal health matters, to start immediately and to act in succession. On the 4th of September 2009 the adult revoked the EPOA, however the EPOA revocation only referred to the appointment of SJ. On the 4th of the 4th, 2009, the adult made a new EPOA, appointing the adult's daughter MS, as his attorney for financial and personal health matters, to start immediately.

5. The persons attending the hearing today were SJ, son of the adult, via telephone, and he was also the applicant; MS, the daughter, who is attending in person; RG, the ex-daughter-in-law, attending in person; AD, the grandson of the adult, attending in person; LB, granddaughter of the adult, attending in person; SM, daughter-in-law of SJ, the applicant, attending in person; and Steven Genrich from the Public Trustee of Queensland, attending via phone.

6. The information presented to the Tribunal in relation to this matter was quite extensive and the documents numbered H001 to H041 were submitted to the Tribunal. Some of these documents included the enduring power of attorney, dated 19th of the 7th, 2007; the revocation of the enduring power of attorney, the 4th of the 9th, 2009; the appointment of an attorney, dated the 4th of the 9th, 2009; financial matters letter, received 27th of the 10th, 2009, from SJ; speech pathology report, received 27th of the 10th, '09 from Leonie Robinson; an aged care assessment on the 13th of the 1st, 2010; terms of settlement, 8th of the 12th, 2009; Supreme Court order, dated 21st of the 10th, '09; an application in relation to this hearing; an adult guardian report dated the 20th of the 10th, 2009; a neuro-psychological report dated the 7th of the 10th, 2009; a professionals report from the rehabilitation specialist Dr Noonan, dated the 8th of the 10th, 2009; a professional report from Dr Turner, dated the 24th of the 3rd, 2010; a will dated the 29th of the 11th, '06; and a interim order decision dated the 30th of the 10th, '09, referred as document number T001. Plus in addition to these other documents, we received documents numbered R001 to R005, which are case letters and documents from QCAT.

7. With regards to the issues and legislation before the Tribunal today, the issues for the Tribunal were: did the adult have capacity for the matter, and if not, was there a need for a guardian, and if so, who should be appointed? And was there a need for an administrator, and if so, who should be appointed?  The Guardianship and Administration Act 2000 defines capacity as, "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, when considering the appointment of a guardian or an administrator, must be satisfied, not only in regards to capacity, but also in regards to the need for the appointment, as set out in section 12 of the Act, and as to appropriateness of proposed appointees, as set out in sections 14, 15 and 16 of the Act.

8. With regards to, "Does the adult lack capacity for the matter?" the Tribunal considered the following evidence about the adult's capacity: the adult is not capable of understanding consequences or formulating information. The adult is unable to understand complex ideas, communicate complex ideas, or make complex decisions. The adult has been diagnosed with primary progressive aphasia, an intellectual disability. All parties agreed that the adult lacked capacity. The adult has been disorientated to time and place, and has moderately to severely impaired capacity to make complex decisions.

9. The Tribunal made the following findings of fact about the capacity of the adult: a neuro-psychological report, dated the 7th of the 10th, 2009, from Dr Mia Marianie, clinical psychologist, stated the adult had severe visual and hearing deficits; the adult had moderately to severely impaired receptive language and severely impaired expressive language ability; the adult was disorientated in time and place; the adult had moderate to severe impaired capacity to make complex decisions such as appointing an EPOA to manage financial and personal matters; that there was a history of family discord, and probable financial abuse; and that the adult had not had capacity to appoint his daughter, MS, as attorney on the 4th of September 2009.

10. An aged care assessment, dated the 13th of the 1st, 2010, by Patricia Thesebeild, stated that the adult required high-level care and support; that a CT head scan demonstrated progressive generalised atrophy; and that the adult needed personal care support.

11. A speech pathologist report dated the 15th of the 9th, 2009, by Leonie Robinson, indicated that the adult had moderate to severe receptive and expressive aphasia.

12. A professional report from the rehabilitation specialist, Dr Rachel Noonan, dated the 8th of the 10th, 2009, stated that the adult had a moderate level of cognitive impairment, the adult had no capacity for simple decision-making in any area, and that the adult had no capacity to execute an EPOA.

13. The adult guardian report, dated the 23rd of the 3rd, 2010, was investigating the revocation of the enduring power of attorney document made on the 4th of September 2009, which may be invalid, and that there may be a mismanagement of funds.

14. MS, daughter, gave information today that the adult cannot manage or make complex decisions; that she has been the current decision-maker in relation to health care; that the hospital would ring her if there was any needs in relation to her father's care; that she had felt that the adult had capacity on the 4th of the 9th, 2009, to revoke the power of attorney.

15. SJ, the son, stated that he had disagreed with Dr Turner's report early in 2009; that he has had no communication with his sister and did not know what was occurring in relation to his father's care at present, but felt that his father did not have capacity to make decisions.

16. A report submitted today, the 24th of the 3rd, 2010, by Dr Turner, which is a health report, stated, "He could not state if the adult had capacity due to aphasia."

17. The Tribunal finds the evidence established that the adult cannot understand the nature and effect of decisions about the matter; the adult is not capable of making decisions freely and voluntarily; and the adult is not capable of communicating decisions. The Tribunal determined that the adult does not have capacity to make decisions about the matter.

18. The Tribunal, when considering the appointment of a guardian, must be satisfied, not only as to the need for the appointment, as set out in sections 12 of the Act, but also as to appropriateness of a proposed appointee, as set out in sections 14, 15 and 16 of the Act. The following issues were raised as a basis for the guardianship application: issues arising from the adult's accommodation, adult's health care, services that the adult needs, day-to-day issues.

19. The Tribunal determined that there is a need for a decision in relation to the matter, and that without an appointment the adult's interests would not be adequately protected due to the family conflict, and previous mismanagement by the family. The Tribunal determines that the need for the appointment of a guardian has been established. So, if so, who should be appointed as guardian?  The Tribunal made the following finding that the adult guardian would be the most appropriate body to be appointed as they are an independent, and would be in a better place to liaise with all parties that were interested in the decisions of the adult's.

20. Secondly, is there a need for the appointment of an administrator? The following issues were raised as the basis for the administration application: there is current conflict within the family; that there is a possibility of financial abuse occurring; and that the adult is vulnerable to financial exploitation.

21. The Tribunal made the following findings of fact in the administration application: the adult currently has the following assets: an ANZ bank account held in his name that was set up by his daughter MS, which currently has, as of the 11th of the 3rd, 2010, $12,010.97 in the account. And as reported by the adult's son, SJ, with the ANZ Bank, Sandgate, there is a trust account for approximately $18,000 that was placed into the account in September '09.

22. The adult has an income from the Veteran Affairs, of approximately $850 a fortnight, and has current liabilities of nursing fees, dating back approximately one month since he was placed in the ECU.

23. The Tribunal determined that there was a need for the decision in relation to this matter; that is - if there is not an appointment, there is likely to involve unreasonable risk to the adult's property, and that without an appointment, the adult's interests would not be adequately met.

24. The Tribunal determined that the need for the appointment of an administrator has been established. If so, who should be appointed as administrator? The Tribunal looked at the Public Trustee of Queensland.  All parties agreed that the Public Trustee of Queensland would be the most appropriate body to be the administrator.

25. There is a current conflict within the family. There has been reported financial abuse by family members against the adult, and the PTQ is an independent party who will ensure the best interests of the adult is maintained.

26. An aged care assessment from Patricia Thesebeild, dated the 13th of the 1st, 2010, stated that the adult has progressive generalised atrophy, a neuro-psychological report by Dr Mia Marianie, dated the 7th of the 10th, 2009, stated that there was a probability of financial abuse of the adult; that the adult lacked capacity; that the adult could not make simple or complex decisions in any matter.

27. The rehabilitation physician report, dated the 8th of the 10th, '09, by Dr Rachel Noonan, stated that the adult has lacked capacity for some time and that the adult cannot make simple or complex decisions in relation to finances.

28. In information heard today, Steven Genrich, via phone, from the Public Trustee of Queensland, state that he felt it was beneficial to appoint the PTQ who would be in a better position to be able to consult with all stakeholders.

29. MS, the daughter, stated that she felt that the adult was not able to make complex decisions; that her brother, as attorney, managed the adult's affairs from 2010; that she felt that the adult did not have capacity to make decisions in 2007 or to appoint an attorney then; that the adult's mental capacity since 2007 has fluctuated over times with signs of impairment; and that the JP who signed the revocation of the EPOA was known by her and went to the same church as herself.

30. SJ, the son, stated that the adult does not have capacity; that talking to him, he had noticed a deterioration; that he had not seen his father since the 5th of December 2010 [sic]; that a transfer of $14,000 occurred to look after the dad's flat, and that was done by the father; that there was an $18,000 trust account held in SJ's name that was of the adult's money; that in 2007 the adult transferred half of his property and shares into SJ's names to ensure that his daughter - the adult's daughter, MS, did not get the property; and that SJ maintained that these assets are now his.

31. The Tribunal therefore found that the best and most appropriate person to be appointed as administrator was the Public Trustee of Queensland, as they are independent, and would be in a better place to liaise with all parties.

32. Therefore, the orders of the Tribunal are as follows:

33. in relation to guardianship, that the Adult Guardian is appointed as guardian for decisions about the following personal matters: accommodation, health care, provision of services, day to day issues, and legal matters not relating to the adult's financial or property matters, and that unless Tribunal orders otherwise, this appointment remains current for five years;

34. that in relation to the enduring power of attorney - that the enduring power of attorney dated the 4th of the 9th, 2009, appointing MS for financial, personal and health matters, is declared invalid, pursuant to section 113.2 of the Powers of Attorney Act 1998, and the revocation of the enduring power of attorney, dated 4th of the 9th, 2009, is declared invalid as well.

35. The evidence that we heard before the Tribunal and which came to the Tribunal, with regards to revoking this, is from Dr Mia Marianie, clinical neuro-psychologist report dated the 7th of the 10th, 2009, in which she stated the adult had no capacity to execute an EPOA or to appoint an EPOA; and that the adult had a severe and long-standing impairment and that he has lacked this capacity for some time; the adult did not have capacity to appoint his daughter as EPOA on the 4th of the 9th, 2009. There was also evidence from Dr Rachel Noonan, a report - rehabilitation report dated the 8th of the 10th, 2009, that stated the adult cannot make simple or complex decisions in relation to finances, and that the adult has lacked capacity for some time.

36. The evidence of Dr Turner in a letter in 2009, as to capacity, was not accepted by the Tribunal as it was not an accurate assessment of  SG's capacity, and his updated report on the 24th of the 3rd, 2010, stated he was unable to assess capacity due to the aphasia. There was also an indication, or a statement from MS, daughter, that her father has fluctuated over times since 2007 in regards to his mental capacity. In addition, the way that capacity was assessed by the JP was not appropriate as only clarifications were sought from the adult and not a proper assessment. Therefore the EPA [sic] dated the 4th of the 9th, 2009, and the revocation order dated the 4th of the 9th, 2009, is declared invalid.

37. That the following enduring power of attorney, dated the 19th of the 7th, 2007, appointing SJ, and  SA, for financial, personal and health matters, is overtaken; that the PTQ is appointed as administrator for all financial matters; that the administrator is to provide a financial management plan to the Tribunal within four months; and that the Tribunal directs the administrator to provide accounts to the Tribunal when requested; that this appointment of the PTQ as administrator remains current until further order of the Tribunal.

38. In addition, the Tribunal directs that, a) that the PTQ investigate the validity of the transfer of the interests of SG, and certain real property, namely one, Lot 3 on RP52787, County of Stanley, Parish of Nundah, Reference 13398097; and two, Lot 36 on RP29100, County of Stanley, Parish of Nundah, Reference 12417189, to SJ. That, b) that pursuant to the undertaking given to the Tribunal by SJ, known here as SJ, the PTQ is to arrange for the proceeds of the account held in the name of JDS as trustee for SG at the ANZ Bank, Sandgate, to be vested in the PTQ as administrator for SG, which was approximately $18,000 in September 2009. And c) that the Principal Register of QCAT report the conduct of LMK, JP, to the Register Justice of the Peace branch, Department of Justice and Attorney General for investigation. It is the recommendation of the Tribunal that she undertake further education in relation to the role of JPs in witnessing enduring documents. The Principal QCAT Register is authorised to provide a copy of this decision and oral reasons to the above mentioned register.

39. That concludes our hearing today. The orders will be sent out within seven to 10 business days. So thank you for everyone attending.