SGA
[2015] QCAT 15
•15 January 2015
| CITATION: | SGA [2015] QCAT 15 |
| PARTIES: | SGA |
| APPLICATION NUMBER: | GAA9030-14, GAA 9031-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 12 December 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Member Mc Donald |
| DELIVERED ON: | 15 January 2015 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | PRELIMINARY APPLICATIONS 1. The application for adjournment is dismissed. 2. The Application by LWS for leave to be represented is dismissed. ENDURING POWER OF ATTORNEY 3. The following Enduring Power of Attorney for SGA is overtaken by the making of these appointments and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 19 June 2014 appointing LWS as attorney for financial, personal and health matters. GUARDIANSHIP 4. The Public Guardian is appointed as guardian for SGA for decisions about the following personal matters: (a) Accommodation; (b) With whom has contact and/or visits; (c) Health care; (d) Provision of services; 5. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. ADMINISTRATION 6. The Public Trustee of Queensland is appointed as administrator for SGA for all financial matters. 7. The administrator is to provide an updated financial management plan to the Tribunal within four (4) months. 8. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 9. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. NOTICE OF INTEREST IN LAND 10. That before 12 March 2015 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name. (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order. (c) Give to the Tribunal: (i) a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) a copy of the current title searches. 11. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: (a) give a copy of this order to the Registrar of Titles and (b) give a notice to the Registrar about the changes or the adult’s interest in another property. |
| CATCHWORDS: | Suspension of Enduring power of Attorney - undue influence in decision making - decisions not freely and voluntarily made. Guardianship and Administration Act 2000 (Qld) s 12, Schedule 4 |
APPEARANCES: AL, Investigative Officer, Public Guardian, IM, Delegate of the Public Guardian, NT, Delegate of the Public Trustee of Queensland, LWS, Attorney (attended for part of the hearing before departing).
REASONS FOR DECISION
SGA is a 93 year old lady with significant visual and hearing impairments. SGA has been living in her own home under the care of her son LWS. On 19 June 2014, LWS became SGA’s Enduring Power of Attorney for personal health and financial matters. Prior to that he held no formal appointment.
The Public Guardian suspended SGA Enduring Power of Attorney on 7 July 2014, following allegations raised by the ANZ bank in relation to the conduct of LWS in attempting to access SGA’s funds. The concerns raised by the ANZ to the Public Guardian largely predate the execution of the Enduring Power of Attorney, and include concerns that this document has been signed under the undue influence of LWS.
As a result of these investigations the Public Guardian initiated an application to the Tribunal for the appointment of an Administrator and Guardian for SGA. The Tribunal further suspended the Attorney on an interim basis pending hearing of the application. The Public Guardian was granted guardianship on 2 October 2014 interim appointment as Guardian, and on 7 October 2014, the Public Trustee of Queensland was appointed as interim Administrator. The Tribunal has applied Section 12 of the Guardianship and Administration Act 2000 (Qld) in considering this application, and the provisions of the relevant provisions of the Powers of Attorney Act 1998 (Qld).
SGA appears to have had fluctuating capacity since 2013. She has had recent hospital admissions due to constipation and falls in the home. In May 2013, cognitive deficits were noted on admission to John Flynn Hospital. These notes also record concerns that SGA appeared to be torn between going home to keep her son happy and placement in residential care. There was noted to be disagreements about rental properties and finances between SGA and LWS during her admission in May 2013 at John Flynn Hospital. She was however considered at the time to have the capacity to make her own decisions.
In April 2014, Pindara Private Hospital record SGA as being confused and found hitting another patient in her room. She was noted in May to be disoriented due to hearing and sight impairments and thought she was home. Extreme concerns were noted to be expressed by social worker regarding SGA’s home situation.
Most recently there have been allegations that SGA’s decisions regarding her finances are being unduly influenced by her son LWS. The Public Guardian’s investigations identified that the Attorney had breached the Powers of Attorney Act in several ways. Prior to his appointment as Enduring Power of Attorney, there is considerable evidence that LWS was putting pressure on SGA to provide him with access to her bank accounts. It may well be that the decision to execute an Enduring Power of Attorney was not freely and voluntarily made, but the Tribunal has made no finding in relation to this, without being in a position to question SGA. However, the Tribunal has found considerable evidence arising from the Public Guardian’s investigation that that the attorney is substantially in breach of the Powers of Attorney Act and is not a competent or appropriate appointee under the provisions of this Act.
AL from the Public Guardian Investigations Unit informed the Tribunal that the ANZ had raised multiple concerns with them. On or about April 2014, on at least two occasions, SGA had given the ANZ branch at Broadbeach specific instructions that her son LWS not have access to her accounts or be added as an authorised signatory to any of her accounts. Branch manager AP, had informed the Public Guardian in email correspondence of 24 June 2014, that she had clear direction from SGA about LWS’s access to her accounts when she had reason to speak with her in circumstances that she considered LWS had forged SGA’s signature on a cheque drawn from her account. On this occasion AP stated SGA’s informed her employee MM that LWS was not to have any access to her money. She said SGA has done this on other occasions when LWS was not present. AP considered SGA had been very clear about her instruction that LWS being denied access to her accounts. This was in contrast to SGA’s presentation on 13 June 2014 when she attended the branch with LWS to add him to her accounts. She noted that SGA appeared confused upon her presentation and that LWS had prompted her to say that she wanted him to be able to authorise all of her accounts. She had responded that she “supposed it would be ok”. AP noted that LWS became extremely verbally aggressive when ANZ personnel sought a private discussion with SGA. In this correspondence, AP indicated that she was not comfortable with the inconsistency in SGA’s instructions and suggested an Enduring Power of Attorney was the most appropriate means of satisfying the request to provide LWS with access to her accounts.
MM bank officer of the ANZ noted in this same correspondence that SGA had been very concerned about LWS’s activity on her bank accounts. She recounted that her son and grandson had presented cash cheques from account to cash cheques which almost nullified her balance. She noted SGA liked to keep $14,000 in a particular account. She recalled a conversation with SGA that where SGA specifically stated she did not want her son and grandson taking money from her account, and more generally that no-one was to access her account. She further noted that LWS had attended the branch on a number of occasions to enquire about the maturity date for SGA’s term deposit, informing them that SGA was ill in care and he wanted to break the period of the term deposit. Several days later SGA attended the branch with Louis and her grandson to the branch to have LWS added as a signatory to her account.
MM noted that she had spoken with SGA in private and SGA was unable to answer why she was at the bank. She said in her opinion SGA appeared confused. On that occasion, in private, SGA informed MM and JS that she did not want LWS to have access to her accounts. When the ANZ representatives informed LWS that they could not add him as a signatory he became very angry and swore extensively at the staff. MM identified that she considered it was very clear that SGA was confused as to why she was presenting to the branch. She noted SGA was apologetic for LWS’s behaviour.
JS, employee of the ANZ Broadbeach Branch noted in this same email chain to the Public Guardian, that LWS’s son had dropped in a “forged letter” purportedly from SGA authorising LWS to be a signatory to her accounts. She further noted that on or about 19 June 2014, LWS had a teenage girl unrelated to the accounts present an Enduring Power of Attorney in the absence of SGA. JS reported that LWS demanded to be seen by the bank staff in strongly offensive and threatening language. She further reported that on 24 June 2014, SGA had left a message on the branch’s answering machine where Mr LWS could be heard in the background saying, ‘speak into it, and tell them this is recorded. SGA is heard to say. Hello, this is SGA My son Louis is Power of Attorney just help him and do what you can for him.’ JS’s correspondence continued noting that the recording then records LWS to say to SGA,’ do whatever he says’.
The Public Guardian’s investigations sought information DV, SGA’ social worker of 5 years, through the Department of Veteran Affairs. DV’s correspondence to the Public Guardian dated 18 August 2014 indicated that SGA was first referred to her due to concerns that SGA’s son was abusive toward her and had weapons. DV noted that over the years LWS could be quite intimidating, was present on most occasions when she attended on SGA, and would become involved in the conversation. She noted that she observed him to have “very little tolerance towards SGA.” She noted that LWS made it clear he wanted his mother to remain living at home and would continue to be carer for her. She advised that Bluecare nursing assistance for SGA ceased in 2013 due to LWS’s aggressive behaviour to Bluecare staff, whereupon they withdrew their services. She advised that similarly, Clinical care Professionals have withdrawn their in home support services due to Mr LWS’s aggressive conduct.
DV advised in this correspondence that her own and medical opinion has been expressed to SGA and LWS that she requires permanent residential placement. LWS has consistently rejected this advice.
She notes SGA has “strong loyalty” to LWS despite many of her friends and acquaintances refusing to come to the home due to her son’s demeanour. She noted that “she doesn’t tend to speak back too much compared with years ago” She stated that she has always had concerns but had considered SGA appeared to have capacity, and had chosen to stay at home and not accept too much support. She noted her concerns have increased over time and there was regular discussions about her going into care, with her expressing a desire to do so and then later changing her mind. She further noted it was difficult where SGA’s GP, Dr A is a personal friend of LWS, but did not share the other professionals concerns about her care from LWS at home.
DV expressed concerns about the risks SGA may be exposed to in her current living circumstances. She noted that she observed LWS to be quite irrational at times, difficult to communicate and dismisses concerns expressed to him. She gave the example that when SGA hadn’t passed a bowel movement and was experiencing pain. LWS refused to call an ambulance and told DV to mind her own business. SGA was later admitted to hospital requiring medical treatment when DV called an ambulance. Her admission lasted several days.
The Public Guardian investigations noted that the information provided by Clinical Care Professionals, Blue Care, Department of veterans Affairs, Pindara Private Hospital and John Flynn Private Hospital report “concerns about LWS’s conduct toward service providers and the inadequacy of her care arrangements in the home”. The Public Guardian’s report further notes that SGA is regularly hospitalised due to constipation and more recently due to falling and seriously injuring herself. It noted that her home has several trip hazards. SGA is significantly visually impaired.
The concerns identified by the support services indicate that SGA is not receiving optimal care, and is at risk in her home environment. Further, that LWS’s conduct has been responsible for the loss of key support services. It is apparent that Medical opinion is that she requires residential placement and has been equivocal in her position on this. It is apparent that LWS has expressed strong opinion that SGA should remain living with him. There is a strong suggestion that he has been verbally abusive and intimidating toward SGA, which may be influential in her equivocation. The Tribunal considers that in these circumstances SGA is not likely to be making decisions freely and voluntarily.
The concerns noted above suggest LWS does not have adequate insight into SGA’s needs and is not prepared to consider medical and professional opinion in this regard. Further, the evidence suggests that he has been unable to co-operate with support services around SGA’s needs and has caused detriment by way of withdrawal of services based on difficulties services have experienced due to LWS’s aggression toward them. Furthermore, the pattern of conduct established in his dealings with the ANZ in relation to SGA’s finances suggests he is unable to put SGA’s needs ahead of his own interests. As the current Attorney for personal and heath matters, the Tribunal is not satisfied that adequate decisions have been made in relation to her care needs and her health.
Section 76 of the Powers of Attorney Act 1998 requires an attorney to apply the General Principles of the Act in their decision making. Schedule 1 of the Act sets out these Principles. In particular Principle 10 stipulates that powers should be exercised in a manner appropriate to the adult’s needs and circumstances. It cannot be said that LWS has exercised his decision making authority as statutory health attorney, and more recently as Enduring Power of Attorney in a manner appropriate to SGA’s needs.
There are clear needs for decisions in relation to her health, accommodation and services which are not being made in SGA’s interest. If LWS continues to act as either statutory health attorney or enduring power of attorney, it is the Tribunal’s view that her interests will not be adequately met. A substitute decision maker is however necessary given her high degree of vulnerability.
The Public Guardian informed the Tribunal that Reagan Brown, Occupational Therapist at Blue Care had stated that she observed LWS place a cheque for $10,000 in front of SGA advised her it was for rates, and required her to pay it. SGA is visually impaired. The Public Trustee report that they have has established that rates have were outstanding on all of the adult’s 5 real properties. This observation makes clear that SGA is being deceived by LWS about the purposes of cheques she is signing.
The evidence of the Adult Guardian’s investigation of ANZ’s reports confirms that LWS has made several attempts to influence SGA’s financial decision making and gain access to her substantial funds against her wishes. Her apparent confusion and contradiction of her own clear instructions suggests she is being co-erced. LWS has been noted to be highly verbally aggressive in dealings with the ANZ bank, with DV, SGA’s social worker. Indeed the Tribunal observed LWS to be highly aggressive to the Tribunal during the oral hearing, necessitating security services being called to assist to manage his inappropriate and aggressive conduct toward the Public Guardian’s representative and the Tribunal Member. Given the consistent identification of LWS’s aggressive and controlling conduct is apparent to the Tribunal that SGA is not making decisions of personal or financial nature on a free and voluntarily basis. The test for capacity is outlined at Schedule 4 of the Guardianship and Administration Act 2000. To have capacity for a matter, a person must understand the nature and consequences of a decision, make decisions freely and voluntarily and communicate their decision. The Tribunal finds she is not making personal or financial decisions freely and voluntarily, and therefore has impaired capacity in these matters.
The Public Trustee of Queensland provided further evidence of concerns about LWS’s management of SGA’s finances. The Public Trustee was appointed under interim order upon suspension of the attorney.
The Public Trustee reports that SGA has five properties in Broadbeach and Southport, all of which SGA owns outright. They advised that rates were outstanding on each property until their appointment. Further no properties had been insured. The B1 property has $11,000 in rates arrears. The B2 Property had $2,700 outstanding rates. Water rates were also outstanding on each of the properties. The Public Trustee has now remedied all outstanding arrears and insured each of the premises.
The Public Trustee advised each of the properties have been managed informally by LWS. The Public Trustee advised that they were thwarted at all attempts to take over the management of the property by LWS. They informed the Tribunal that he did not co-operate in the provision of information. They also stated that in their discussions with some of the tenants, they had been threatened about co-operating with the Public Trustee and are vacating the premises out of fear.
The Public Trustee has been unable to determine whether rental funds have been received for these premises. They indicate that her accounts do not identify that rental funds are received to any of SGA’s bank accounts.
Of the five Properties, SGA lives at one of these with her son LWS. The remaining properties are investment properties. The premises at B3 are not in receipt of any income. The Public Trustee advised that they believe that a relative of SGA lives in the premises, paying no rent. Under their appointment, they have commenced eviction processes.
The Public Trustee reported that the premises at B1 are tenanted with an informal agreement managed by LWS. The Public Trustee under their appointment instituted a formal lease. The tenants have been threatened by LWS and advised that they seek to vacate. The Public Trustee Advise that SGA’s premises at B4 are tenanted by SGA’s great grandson and SGA receives no income from this.
The evidence suggests that LWS has managed these properties on SGA’s behalf. LWS’s management of the four investment properties represent multiple breaches of his obligations as Attorney under the Powers of Attorney Act 1998. There is no clear record of income the premises receive, in breach of section 85 of this Act. Rates and water expenses are outstanding on the properties, exposing SGA to risk of recovery action. LWS is in breach of section 66 obligations to act with reasonable diligence. LWS has not acted with diligence in relation to the receipt of income for the properties on SGA’s behalf. It remains open to further investigation whether his actions have been dishonest in this regard. His failure to co-operate with the Public Trustee in disclosing information about the receipt of rental income does not support a finding in his favour.
The occupation of premises by family members where SGA receives no financial benefit for rental is likely to be an unapproved conflict transaction, in breach of section 73 of the Powers of Attorney Act 1998.
The Public Guardian’s investigations noted that prior to his appointment as Enduring Power of Attorney LWS attempted to gain access to $300,000 held in SGA’s ANZ term deposit for the purchase of an investment property by LWS’s son. It’s balance was $749,461 at that time. This attempt was thwarted by the ANZ bank. He had sought to be added as a signatory on all SGA’s accounts. It appears that he applied pressure to SGA in pursuit of that outcome. Ultimately he was appointed Enduring Power of Attorney, probably in application of further pressure. The Tribunal has made no finding in relation to the validity of this document. SGA was not present to provide evidence. Nevertheless, the evidence is very clear that LWS is in breach of multiple obligations of this appointment.
These findings in conjunction with the evidence provided by the ANZ bank and Blue Care’s Reagan Brown point to alarmingly dishonest conduct.
LWS had the opportunity to respond to these allegations at the hearing. On the eve of the hearing he sought leave for legal representation and an adjournment of proceedings on the basis he had insufficient time to prepare for the hearing, and his lawyers were unable to appear. This was denied because LWS was sent a notice of hearing on 12 November 2014 giving him ample time to brief any lawyers. His request for representation was denied as there were no complex matters of fact or law at hand. His application was unable to specify any complexity. During the proceeding, he sought an adjournment because he stated that he was unwell. He informed the Tribunal that he considered he was likely to have a stroke. The Tribunal denied this request as he was unable to furnish the Tribunal with any medical evidence in support of his claim to ill health. LWS was highly disruptive throughout the proceeding. He requested a brief adjournment to obtain medication from a chemist. Upon his return he informed the Tribunal that he could not participate any longer and left the proceeding. The Tribunal notes LWS’s conduct was obstructive to the proceeding throughout the period of his attendance. He departed the hearing in aggressive circumstances requiring the intervention of security services when he approached the Bench. It should be noted that LWS’s conduct toward the Public Guardian’s representative was observed by the Tribunal to be excessively aggressive, and necessitated the direction of security services to assist the Public Guardian’s representative to have safe egress from the courtroom.
IM delegate of the Public Guardian provided with the Tribunal with a written report dated 10 December 2014. The report noted that DV social worker had identified concerns for SGA’s safety and that as a result a welfare check was requested. IM report noted that the police had attended on SGA, noted her as well and with no concerns. On this basis he concluded in the report that there was not a need for a guardian. At the hearing, upon hearing the evidence of the Investigative officer of the Public Guardian, IM retracted his recommendation, and identified a need for decisions about accommodation, services, health and contact. He advised that he had not sighted the investigation report prior to the hearing.
The Tribunal makes a finding that the attorney is not competent to act under the appointment of 19 June 2014, notwithstanding that it is unlikely to be a valid document. Given this, there is a clear need for a substitute decision maker in relation to the management of SGA’s income and assets and personal decisions in relation to accommodation, services, health and contact. Having regard to Section 12 of the Guardianship and Administration Act 2000, the Tribunal has formed the view that is a need for a decision and without an appointment SGA’s interests will not be adequately protected.
The Tribunal appoints the Public Guardian as Guardian for SGA for decisions about accommodation, services, health care and contact until further order. The Tribunal appoints the Public Trustee of Queensland as Administrator for SGA for all financial matters until further order. The purported Enduring Power of Attorney is overtaken by these appointments.
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