SN v Adult Guardian the Public Trustee of Queensland
[2013] QCATA 236
•27 August 2013
| CITATION: | SN v Adult Guardian The Public Trustee of Queensland [2013] QCATA 236 |
| PARTIES: | SN (Appellant) |
| Adult Guardian The Public Trustee of Queensland (Respondent) |
| APPLICATION NUMBER: | APL138-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | L. Clarkson, Presiding member S Gardiner, Member |
| DELIVERED ON: | 27 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused |
| CATCHWORDS: | APPEAL – GUARDIANSHIP – whether error of law occurred – where Tribunal failed to take material consideration into account on issue of capacity Guardianship and Administration Act 2000, Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
SL is a 90 year old widow who resides in an aged care facility in Queensland.
SL executed an enduring power of attorney in 2007, appointing her spouse, SE, and her sons, SM, and SN, as her attorneys for financial and personal/health matters.
SL executed a further enduring power of attorney on 27 October 2011 whereby she changed her attorneys to SN, MA, and SC, for the same range of matters as the earlier instrument.
SM brought applications for the appointment of a guardian and administrator for SL.
The applications were heard on 28 February 2012, and in the result the Tribunal appointed the Adult Guardian and The Public Trustee of Queensland as SL’s guardian and administrator respectively. The Tribunal also declared invalid the 2011 enduring instrument.
SN brought an application for leave to appeal or appeal against the Tribunal’s decision, and an application to stay the decision.
The Tribunal refused the application for a stay by order made on 4 May 2012.
The application for leave to appeal and appeal was adjourned pending a hearing of SN’s applications for a review of the current guardianship and administration appointments.
On 3 April 2013, the Tribunal reviewed the appointments, and in the result, revoked the guardianship appointment, and appointed SN in place of the Public Trustee as SL’s administrator, to take effect from 1 July 2013. The Tribunal also revoked the 2007 enduring instrument.
Notwithstanding the removal of the Adult Guardian and The Public Trustee, SN maintains his appeal against the initial Tribunal decision.
SN’s grounds
SN acknowledges that, at the time of the hearing of the reviews of the guardianship and administration appointments, SL’s capacity for personal and financial matters was impaired. However, the Tribunal’s finding about her impaired capacity at the initial hearing remains in issue. In other words, SN says that his mother’s capacity became impaired in the period between the two Tribunal hearings.
SN submits that the Tribunal made errors of law and fact in finding SL lacked capacity for personal and financial matters, the grounds of which will be particularised.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the findings are based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]An appellate tribunal may interfere, however, if the conclusion at first instance is contrary to compelling inferences in the case.[2]
[1] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at
125-126.
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Ground (1): The Tribunal erred by being overly reliant on the report of Dr F.
SN submits that the Tribunal placed weight on the date of the report (8 November 2011), and failed to notice that Dr F had not assessed SL since June 2011.
The Tribunal’s reasons for holding invalid the enduring instrument executed by SL on 27 October 2011 note that it was executed only days earlier than the opinion expressed by Dr F to the effect that SL did not have capacity to execute an enduring power of attorney. Dr F’s report states that he had not seen SL since 2 June 2011, and it is pertinent to note that he opines SL does not currently have capacity to execute an enduring power of attorney. That opinion can only be formulated as at June 2011. It does appear therefore that the Tribunal did not appreciate that Dr F’s opinions were based on his contact with SL five months earlier than the date of his report.
However, it is relevant to note the other opinions expressed by Dr F. He states that SL has dementia. Her cognitive impairment is progressive in nature and her level of impairment is severe. In summary, Dr F opines that SL cannot understand and make simple decisions about personal and financial matters.
Other evidence relating to SL’s capacity, relied upon by the Tribunal, included an ACAT assessment on 4 November 2010 which noted SL was experiencing slowly deteriorating cognition with bouts of confusion. Other difficulties were noted to be occasional problems with short term memory, and disorientation as to time and place. The assessment included a Mini Mental State Examination score of 23/30.
Further, SL’s GP, Dr A told the Adult Guardian’s representative that SL had age related decline in cognitive function and had some issues with memory. However, Dr A provided a letter dated 16 February 2012 stating his opinion that SL understands the implications and responsibilities of a power of attorney, and by separate certificate, he states that SL is capable of the decisions required under her husband’s enduring power of attorney.
Family members provided contrasting opinions about SL’s capacity.
The other source of evidence on the issue was SL’s oral evidence at the hearing. This is described in the Tribunal’s reasons that SL could not recall executing an enduring power of attorney. She could not explain her rights under an enduring instrument or the obligations of an attorney. In fact, she did not understand the concept of an enduring power of attorney. SL’s evidence demonstrated memory difficulties in other areas of her life. The Tribunal’s reasons for its decision make it clear that SL’s oral evidence was critical to its findings on the issue.
The Tribunal placed limited weight on the opinion of Dr R. That was expressed to be due to Dr R not addressing any relevant specific criteria, as opposed to the more detailed report of Dr F. While the Tribunal did not expressly comment on the point, it is relevant to note here that an opinion as to capacity, without stating the grounds on which that opinion is based, will likely be of limited assistance to the Tribunal in its determination of the issue.
While it is clear the Tribunal preferred the evidence of Dr F over that of Dr R, it is not evident that, if the Tribunal was cognisant of the date of Dr F’s last assessment of SL, it would have reached a different conclusion. That is because of Dr F’s categorisation of the progressive nature of SL’s illness. In that circumstance it is likely that her cognition in October 2011 would have deteriorated since Dr F’s last assessment. It is accepted that the cognition of a person with dementia may fluctuate, but on balance deterioration is inevitable.
In any event, SL’s own evidence served only to confirm the notes in the ACAT assessment about SL’s deteriorating cognition and memory problems, and also Dr F’s opinions. Indeed, it is difficult to envisage how the Tribunal could have held that the opinion of Dr R could hold sway against the other evidence before the Tribunal, particularly that of SL herself.
In its finding that SL’s capacity was impaired, it was open to the Tribunal to hold that the opinion of Dr R did not outweigh the other evidence to the effect that SL’s cognition had been deteriorating for some time, particularly with memory deficits, and which was essentially confirmed by her own evidence.
It is not established that the finding was against the evidence and wrong, and the appeal on this ground must fail.
Ground 2: The Tribunal erred by placing no weight on SL’s advance health directive, witnessed by her treating general practitioner on 22 September 2011.
The Tribunal’s reasons do not canvass the advance health directive. It is not known why that is the case. It is, however, pertinent to observe that the issue of capacity is decision-specific. That is to say: there is not a fixed standard of capacity applicable to all areas of decision-making. A person must be able to understand the general nature of what he is doing by his participation in each particular matter or piece of business transacted.[3]
[3] Gibbons v Wright (1954) 91 CLR 423.
It may well be that SL, at the relevant time, had the requisite capacity to provide directions about her future medical treatment, but for the reasons already outlined, it was open to the Tribunal to hold that her decision-making capacity in the relevant areas was impaired.
The appeal on this ground must fail.
Ground 3: The Tribunal failed to apply the general principles (Schedule 1 Guardianship and Administration Act 2000). Specifically it is submitted that the Tribunal did not give sufficient weight to the presumption of capacity, given the conflicting evidence.
In essence, the conflicting evidence is this. On one hand are the plain assertion of Dr R and the oral evidence of SN. On the other hand are the ACAT assessment, Dr F’s report, the oral evidence of SM and SA, and critically, the oral evidence of SL herself.
For reasons already outlined, a finding that SL’s capacity was impaired, and thus the presumption of capacity was rebutted, was open to the Tribunal on the evidence before it, and the appeal on this ground must fail.
It is noted that SN’s submissions contain a number of other assertions and submissions which do not appear to bear on the issues before the Appeal Tribunal and it is possible they were not intended to form part of the formal basis of argument. In any event, they are not formally listed as grounds. Nevertheless, on the basis that SN considers these matters are significant (and relevant), and it is appropriate therefore to pass comment on them.
SN’s submissions refer to his concern with the executor of his father’s estate refusing to act in accordance with his mother’s expressed wishes in relation to the funerals of herself and her spouse, as set out in SL’s statement dated 19 June 2012.
In essence, the Public Trustee, as the executor, disallowed SN’s claim for reimbursement of the costs his relatives incurred in attending his father’s funeral. Those costs included travel, accommodation, and food. SN claims that the executor did not take his mother’s views into account because she had been found to lack capacity at the relevant time.
SN is concerned therefore that the discounting of SL’s wishes about her spouse’s funeral will apply also to the arrangements for her own funeral. SN seeks to allay this concern by overturning the Tribunal’s finding about SL’s lack of capacity at the initial hearing.
SN’s concern about future funeral expenses appears to be his motivation for proceeding with the appeal. A successful appeal may tend to clarify the question of such costs, and it may well be that this outcome will be the only practical benefit to SL in proceeding with the appeal.
This may require a decision in the future for SL’s executor in his or her consideration of what are reasonable testamentary expenses. But it is not a matter for the Tribunal. There is no jurisdiction in this regard, and in any event, the matter has no bearing on the question of the Tribunal’s findings about SL’s capacity, or any other issue before the Appeal Tribunal.
If this matter was in fact intended to be a ground of appeal, then it must fail.
The submissions also deal extensively with the appointments of the Adult Guardian and the Public Trustee under interim orders made on 16 December 2011.
The general thrust of these submissions includes: a perceived lack of procedural fairness in not giving notice to relevant parties; questions about the authority of the Tribunal to make such orders; an assertion that there was not a strongly arguable case that SL required immediate protection and the interim order should not have been made, and was thus flawed; and the statistics recorded in the Annual Report of the Adult Guardian indicating a strong connection between interim and permanent decisions.
These submissions and assertions have been supported by references to relevant authorities. In general, the Appeal Tribunal takes no issue with the principles SN says should apply to appointments by way of interim orders. However, any further response by way of argument on specific issues is not productive because these matters are simply not relevant to the issues here.
Again, if this matter was in fact intended to be a ground of appeal, then it must fail.
SN, on the grounds set out, challenged the findings and conclusions of the Tribunal in relation to his mother’s capacity. Having considered the evidence, this Appeal Tribunal is unable to identify any error in the findings and conclusions reached.
Leave to appeal will ordinarily only be granted where there is some question of general importance on which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that SN would obtain further substantive relief. Leave to appeal is granted when it is necessary to correct a substantial injustice to SN, caused by some error.
For the reasons outlined, the Appeal Tribunal does not find any errors in the decision under appeal that give rise to a necessity to correct an injustice to SN. Leave to appeal is refused.
Member Susan Gardiner:
I have had the benefit of reading the reasons of the presiding member in draft. I agree with his reasons and his conclusions, and the order he proposes
0
5
0