SRC
[2016] QCAT 444
•16 August 2016
| CITATION: | SRC [2016] QCAT 444 |
| PARTIES: | SRC |
| APPLICATION NUMBER: | GAA4982-16; GAA7605-16 |
MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 16 August 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Bayne |
| DELIVERED ON: | 16 August 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | ENDURING POWER OF ATTORNEY 1. SC did not have the capacity to execute an Enduring Power of Attorney on 28 July 2008. 2. The following Enduring Power of Attorney for SC 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 28 July 2008 appointing FD as attorney for financial, personal and health matters. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for SC for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within six (6) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. | ||
CATCHWORDS: | ENDURING POWER OF ATTORNEY – whether adult had capacity to execute an EPA – Victorian witness failed to assess capacity – concerns about the actions of the attorney – attorney no longer wishes to act ADMINISTRATOR – need for the appointment to sanction and manage a damages award – PTQ only option Guardianship and Administration Act 2000 (Qld) ss 5,6,7,12,15. Schedule 4, General Principles 1 Powers of Attorney Act 1989 (Qld) s41,s44, s113. Schedule 3, General Principles Schedule 1, s1 | ||
APPEARANCES:
HMCR Lawyers
TCCR Lawyers
MMPublic Trustee of Queensland
REASONS FOR DECISION
SC, now aged 28, incurred a head injury on 8 May 1998, when, at 9 years of age, he was involved in a school incident in which he was struck on the head by a rotary sprinkler.
On 28 July 2008, SC executed an Enduring Power of Attorney appointing his great uncle, FWD, as his attorney for financial, personal and health matters. FD has been significantly involved in a personal injuries claim for SC.
On 9 May 2016, CR, experiencing a number of issues in regard to the sanctioning and management of SC’s award of damages, submitted an application to the Tribunal seeking the appointment of an administrator.
CR outlines in the application:
Mr [FD] has been the main mode of contact in the Adult’s personal injuries claim. [FD] provided instructions to settle but will not complete the necessary documents for court action. We are unsure as to whether [FD] is acting in the adult’s best interests. We are unable to contact any other family member who might be able to assist. It might be appropriate to appoint the PTQ as administrator for the purposes of the personal injuries claim.
In response to the application, on 1 June 2016 the Tribunal issued a series of directions to the parties and on 25 July 2016 initiated an application for an order about an EPA.
The issues for the Tribunal at the hearing of the two applications in Brisbane on 16 August 2016 were:
a) Does SC have impaired capacity for relevant matters?
b) If so, is there a valid Enduring Power of Attorney for SC?
c) If not, is there a need for relevant decisions to be made to the extent that, without the appointment of an administrator, SC’s needs will not be adequately met and his interests adequately protected?
d) If so, who is appropriate for appointment as SC’s administrator?
Capacity
Capacity is defined in Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (the Act) and in Schedule 3 of the Powers of Attorney Act 1998 (Qld). Capacity requires that the person is capable of understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter and communicating the decisions in some way.
SC is presumed to have capacity in accordance with both of the Acts.[1] Unless there is sufficient evidence to rebut that presumption, it must stand.
[1]Section 7 and General Principle 1 under Schedule 1 Guardianship and Administration Act 2000 and General Principles, Schedule 1, section 1 of the Powers of Attorney Act 1998.
Reference as to SC’s capacity is made in various documents before the Tribunal including health professional reports, assessments and opinions from various health services and specialists
Of particular relevance, Ms AD, clinical neuropsychologist, has provided:
a) An Assessment Report dated 8 December 2008 referring to a neuropsychological assessment of intellect, memory and higher cognitive function undertaken on 5 November 2008
b) A letter dated 5 July 2011[2] addressing SC’s ability to make decisions about legal matters and his ability to manage financial matters
c) A health professional report[3] dated 9 April 2016.
[2]Addressed to CR, and based on her November 2008 assessment.
[3]On a QCAT health professional report form.
AD‘s conclusions can be summarised:
a)Longstanding and significant clinical history of intellectual, academic and behavioural problems
b)Possible substance abuse and psychiatric disorder
c)An overall level of intellectual function in the “borderline” range
d)Serious literacy problems
e)Limited ability to conceptualise information in an abstract fashion
f)Very slow appreciation of new concepts.
AD opines that SC is able to understand and make only simple personal and health decisions. She is convinced that SC has no capacity for complex financial matters and questions as to whether he could understand and make even simple financial decisions.
The views and opinions of FD are convincing. He makes numerous references to SC’s ongoing and current difficulties with financial management and decisions:
a) ‘Has never had any money to speak of, cannot handle it well’[4]
b) ‘He could no more handle money on his own than say a 15 year old’[5]
c) ‘Incapable of managing money’[6].
[4] Email to CR, 10 October 2010.
[5]Email to CR, 15 February 2012.
[6] Telephone call with QCAT Case Manager, 18 May 2016.
FD also refers to what he considers to be SC’s high level of financial vulnerability: [7]
There has never been any doubt….he will spend the dough on rubbish and all his hangers on will rip his compensation money off him in no time. … friends etc requests, or demands for money should he be conned into borrowing or accruing debt or a judgement against his name at any time. He has been taken advantage of many times over the years.
[7] Email to HM of CR, 19 April 2015.
The Tribunal finds that SC’s cognitive functioning is affected to the extent that he is unable to understand and make decisions about most financial matters and that he is also unable to make decisions freely and voluntarily.
The Tribunal also finds that there is no evidence to support that SC’s capacity for financial matters has changed or improved since 2008.
The Tribunal is satisfied that the presumption of capacity as defined under legislation is for SC rebutted for financial matters.
The Enduring Power of Attorney
When dealing with an application for the appointment of an administrator,[8] the Tribunal must consider whether an attorney should continue in that role under an existing and valid EPA. This is because, if there is an appropriate attorney under an enduring power, there is generally no need for the appointment of an administrator.
[8]Section 12 of the Act.
Given its own application, the Tribunal is required to determine whether SC had the capacity to make an EPA on 28 July 2008.
The Tribunal has considerable concerns about this EPA.
Firstly, the Tribunal accepts the compelling evidence that, for some years (if ever), SC has not been able to understand and make decisions about complex matters.
In 2007, following an unreported Supreme Court decision,[9] the then Guardianship and Administration Tribunal of Queensland accepted expert medical opinion that, for most members of the community, enduring powers of attorney were both more unfamiliar and more complex than a will. Consequently, this Tribunal considers that a high level of cognitive ability and therefore a high standard of capacity are required for the execution of an enduring power of attorney. In other words, this Tribunal considers that the making of an EPA is a complex matter.
[9]Adult Guardian (In Re Enduring Power of Attorney of Vera Hagger) v Vera Hagger, Declan James Barry and Albert Craig Ray (Unreported Supreme Court of Queensland, SC Qld No 1083 of 2001).
Secondly, and in the view of this Tribunal contentiously, FD has provided the Tribunal with two versions of the EPA. The first one is a copy of a Queensland document,[10] fully completed and fully ticked throughout, including all of Section 9 Witness’ Certificate. It is not signed by any party or dated, but is notated ‘C’, ‘JP’ and ‘date’ in the appropriate places. The second version, dated 28 July 2008, is identical except that it has been signed and dated by SC and the witness where notated.
[10]Form 2, Queensland Powers of Attorney Act 1988 (Section 44(1)).
It is understood that in July 2008, SC was staying in Melbourne. His EPA was witnessed on 28 July 2008 in Victoria by HWL, a Justice of the Peace in that State.
By email to the Tribunal on 13 July 2016, HL explained that he didn’t recall the specific document executed eight years ago, or the donor. HL described his usual procedure and informed that:
Under the Victorian Act the JP must be satisfied that the Principal is making his or her document freely without duress and with the understanding that the information is relevant and the effect of the decision.
[26]Section 41[11] and Section 44[12] of the Powers of Attorney Act 1988 set out the essential elements of understanding required for the execution of an EPA under Queensland law. As provided in s44, a witness to an enduring document has more onerous responsibilities than those generally imposed on witnesses in other circumstances. The witness must certify that the document was signed by the principal in the witness’ presence, and must also certify that the principal appeared to have the capacity necessary to make the enduring document.
[12]Formal requirements.
By 2008, the Queensland Adult Guardian had published the 2005 ‘Capacity guidelines for witnesses of Enduring Powers of Attorney’[13]. These guidelines are useful in suggesting how to conduct interviews with the principal to assess their mental capacity to execute an EPA. The guidelines include examples of the questions to ask, the signs to look for that might suggest incapacity (and therefore the need for a medical assessment) and the important issue of note taking.
[13]Superseded in 2013 by the now Office of the Public Guardian ‘Guidelines for Witnessing Enduring Document’.
The Tribunal is of the view that any reasonable consideration of SC’s ability to understand an EPA should have alerted an eligible witness to his significant limitations.
It is at least arguable that HL merely signed and dated the document as notated. There is no evidence to support that HL questioned or even contemplated SC’s capacity. There is indeed no evidence to support that HL was aware that the EPA was a Queensland document, of the requirements under Queensland legislation or that he had independently followed to any extent the recommendations of the Queensland guidelines.
The Tribunal finds that the witness had failed to take appropriate measures to determine as to whether SC did in fact understand the complex document.
The Tribunal declares the Enduring Power of Attorney dated 28 July 2008 to be invalid[14] on the grounds that SC did not have the capacity necessary to make it.
[14]Section 113 Powers of Attorney Act 1998.
The Tribunal also has concerns about the actions of the attorney over the past five years.
The Tribunal notes that FD insists, that pre-1998 and contrary to almost all of the medical evidence, SC had only attention deficit hyperactivity disorder and bad behaviour. FD remains convinced that SC’s current cognitive impairments were caused by the incident in 1998.
FD signed a settlement agreement on 18 May 2011. By mid-June 2016 however, he alleges that he signed under extreme duress and direct threat,[15] this is strenuously denied by CR.
[15]Emails to QCAT on 15 and 24 June 2016 and to Crown Law on 21 July 2016.
FD has not applied for sanction of SC’s damages claim because of his ongoing concerns in regards to the amount of the settlement, the legal fees charged by CR as well as administration and sanction fees and costs.
The Tribunal considers that FD continues to demonstrate some difficulty in fully understanding the issues involved in SC’s damages award matters as well as the roles and responsibilities of the various stakeholders; his ability and commitment to work with the stakeholders to resolve the outstanding issues remains elusive.
It is also of concern to the Tribunal that very little information is available on SC’s views and wishes. Seemingly at the determination of his attorney, SC has had minimal involvement in his own personal injuries claim proceedings. His current contact details were only divulged very recently by FD at the insistence of the Tribunal.
Other concerns include FD’s failure to:
a) Provide contact details for SC to his solicitors
b) Fully comply with the directions of the Tribunal made on 1 June 2016
c) Inform SC of the QCAT proceedings.
The Tribunal also notes that FD has clearly expressed, on several occasions, his intention to stand down as attorney. On 19 April 2016, he writes: ‘I have made it very clear …(I) personally never want to be involved in the distribution of his funds’.[16]
[16]Email to HM of CR.
On 21 July 2016 FD emails: ‘I will cancel my POA by this day’s end.. I will no longer act as his POA by close business today’.[17]
[17]Email to Greg Cooper, Crown Law.
The Need for the Appointment of an Administrator
The Tribunal accepts that, despite copious communications between various parties including FD, CR and Crown Law over the past five years, there are still a number of matters outstanding with regards to the sanctioning and management of SC’s award of damages.[18]
[18]See for example the email from Greg Cooper of Crown Law to FD, 1 July 2016.
All parties agree that there have been, and still are, complex and difficult issues; the various views of the parties are well documented and many were discussed extensively in the hearing
Given that SC does not have the capacity for these complex matters, the invalidity of his EPA and concerns as to the appropriateness of his attorney (who wishes to stand down), the Tribunal finds that there is a need for a substitute decision-making regime for SC for the outstanding matters.
FD has proposed the establishment of a family trust to manage the damages award. On 29 August 2012 he proposed ‘one family member and one external trustee, that preferably remain anonymous’.[19] More recently, he argues for a ‘family trust to manage funds – to be run by our own in-house family Lawyer … and his grandmother’.[20]
[19]Email to CR.
[20]Email to Greg Cooper, Crown Law, 21 July 2016.
There are no further details available; under the circumstances, the Tribunal does not consider that such an arrangement would be appropriate.
The Tribunal is satisfied that the issues with the sanctioning and management of SC’s award of damages need to be resolved as soon as possible, and in SC’s best interests. A competent administrator appointed for these matters could do so.
The Tribunal then considered whether there was a need for the appointment of a plenary administrator.
There is very little information available as to SC’s current living arrangements and financial circumstances. The evidence on file refers to two partners and several children in recent years as well as periods of stays with his grandmother, in several locations in Queensland and possibly with other family members. SC’s income, his contributions to various household costs and expenses, as well as any possible loans or debts, are unclear. In addition, the damages settlement might have an impact on SC’s budget and day-to-day finances, including his Centrelink entitlements.
The Tribunal notes again the doubts expressed by AD as to SC’s capacity to understand and manage even simple financial matters. Of particular persuasion are FD’s convictions as to SC’s inability to manage money, his financial vulnerability and what FD describes as not infrequent instances of financial exploitation.
FD has clearly been providing financial decision-making support to SC for some years, both as attorney and seemingly as a family member.[21] However, FD writes of his health issues and his intention of standing down as attorney; his willingness and indeed ability to provide ongoing support to SC is uncertain. The availability of any other person who could provide appropriate financial assistance to SC in the absence of FD is very uncertain.
[21]See for example, email to CR dated 10 October 2010.
Although the Tribunal recognises the importance and significance of Sections 5 and 6 of the Act, it is persuaded however that in this case an appointment of a plenary administrator for SC is required at present to ensure that his needs are met and his interests protected.
Appropriateness for Appointment as Administrator
The Tribunal finds that as no other person has indicated any interest in an appointment as SC’s administrator, The Public Trustee of Queensland is the only option. It is noted that the PTQ was originally proposed by FD.
The Public Trustee of Queensland is an independent decision maker with extensive skills and experience, and is able to resolve the outstanding issues in the best interests of SC.
The PTQ is available and willing to act and will comply with the general principles contained in the relevant legislation in the ongoing management of SC’s financial matters.
Orders are made accordingly.
[11]Principal’s capacity to make an enduring power of attorney.
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