SZ
[2017] QCAT 338
•23 August 2017
CITATION: | SZ [2017] QCAT 338 |
PARTIES: | SZ |
APPLICATION NUMBER: | GAA8031-16; GAA8032-16; GAA8033-16 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 8 August 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Clifford |
DELIVERED ON: | 23 August 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. SZ does not have capacity for complex personal and financial matters. 2. The Tribunal declares that the revocation of an Enduring Power of Attorney by SZ dated 13 July 2016 in relation to the Enduring Power of Attorney dated 20 November 2009 is invalid. 3. The Tribunal notes the existence of the Enduring Power of Attorney dated 20 November 2009 appointing ME and MA (successively) as attorneys for financial, personal and health matters. 4. Pursuant to s115 of the Powers of Attorney Act 1998 the Tribunal declares that the powers given to the attorneys under the Enduring Power of Attorney dated 20 November 2009 have begun. 5. The application by ME for the appointment of a guardian for SZ is dismissed. 6. The application by ME for the appointment of an administrator for SZ is dismissed. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – Guardianship and Administration – Enduring Power of Attorney – Revocation of EPA – Capacity to revoke – capacity to manage personal and finances matters Guardianship and Administration Act 2000 (Qld) |
APPEARANCES and REPRESENTATIVES: | |
APPLICANT: | ME – self respresentation. |
ADULT: | A. Anderson, Counsel, instructed by A. Robins of James Conomos Lawyers. |
ATTENDEES: A. Berquier of the Office of the Public Guardian;
Messrs Miles and Cross of the Public Trustee, Qld;
MA;
SH; WR; MM;
Dr Merson, Professor Byrne and Dr M.Leong, all in part.
REASONS FOR DECISION
Background
SZ is an 87-year old man of Ukrainian background who migrated to Australia in 1949. SZ married in 1967, and he and his first wife had three children, ME, SR and PI. SZ accumulated significant property holdings in early adulthood and following divorce from his first wife in 1981, in February 1982 he set up The SZ Family Trust. Whilst some property became assets of the Trust, SZ maintained property that he owned with his older brother SW, as tenants in common, in his personal capacity. Initially SZ’s other brother SO, was the trustee of the Trust but following SO’s death in 2015, SZ Investments P/L, a company previously established by SZ became the Corporate Trustee. SZ is sole Director of that Company. SZ and his three children are shareholders. SZ is the principal beneficiary.
SZ remarried in the late 1980’s, however, whilst SZ and his second wife have maintained contact they have been living separately for around twenty years. They had no children together, however, SH has children from an earlier marriage.
SZ has spent a large part of his life developing and selling the land he acquired in stages. Stage 1 and Stage 2 have been completed. Stage 3 has progressed very slowly. Significant funds have been expended through development applications, loans and repayments and gifts. Significant funds have been acquired through sale of the developed property. Funds have been variously transacted either directly by SZ, or through the Family Trust.
It is undisputed SZ has worked hard throughout his life. He has however experienced a not insignificant medical history. It is recorded as including ischaemic heart disease, atrial fibrillation, aortic valve replacement, coronary bypass surgery, congestive cardiac failure, acute myocardial infarction hypertension, peripheral vascular disease, Insulin dependent Type 2 Diabetes Mellitus, chronic kidney disease, headache and delirium and cognitive impairment.
Enduring Power of Attorney 2009
Prior to heart surgery in late 2009, SZ executed an Enduring Power of Attorney (EPA) dated 20 November 2009, whereby he appointed his daughter ME, and his son-in-law, MA, successively, (Clause 7.) as his Attorneys for financial, personal and health matters. The EPA contained express provisions. At Clause 3. My Attorney is not authorised to sell real property pursuant to this Enduring Power of Attorney. And at Clause 5, as to when the attorney for financial matters begins: In the event that I do not have capacity to make or communicate decisions regarding my financial affairs as confirmed in writing by a treating Medical Practitioner of myself. The Attorneys signed their Acceptance on 29 November 2009. The Attorneys informally assisted SZ with all matters since that date up until events following his discharge from hospital on 2 July 2016.
Hospital admission June 2016
On the evening of 17 June 2016 SZ called his daughter as he could not lie down or sleep because of a severe headache. SZ was taken to QEII Hospital by his son-in-law where he stayed overnight and was admitted the following day. ME reports SZ was confused during hospitalisation and at the request of medical staff, and as Attorney under the EPA, provided consent for a biopsy of SZ’s temporal artery to ascertain if he had inflammation of the artery. SZ was also prescribed steroids around this time. The procedure went ahead on 27 June 2016 but the biopsy did not show temporal arteritis. ME reports SZ was angry at her following the procedure, was confused and accused her of selling his property.
Post discharge from hospital
SZ was discharged from hospital on the evening of 2 July 2017. ME reports SZ remained confused. Dr David Wong, Geriatric Advanced Trainee, QEII Jubilee Hospital, provided a letter to ME, dated 1 July 2016 stating SZ had impaired capacity for complex health, lifestyle and financial decisions, that he will require assistance from his EPA, and that he should not drive or operate complex machinery.
The Queensland Health Discharge Summary dated 5 July 2016, indicates SZ was admitted on 18 July 2016 and discharged on 2 July 2016. It notes SZ was admitted with head and neck pain, possible temporal arteritis for which he had a number of investigations including biopsy which returned negative findings. SZ was commenced on Prednisolone 40 mgs daily. The Discharge Summary notes that along with the principal reason for admission SZ had ‘delirium whilst an inpatient’ and ‘functional decline and confusion - Geriatrics review – lacks capacity for driving, complex machinery, accommodation, lifestyle, health and financial decisions – OT review for cognitive assessment and hyperglycaemia. The Discharge Summary indicates that SZ was discharged on various medications including Prednisolone 40 mgs daily, with a recommendation to his GP, Dr Serdiuk, to wean the Prednisone down over a 9-month period as per up to date recommendations for temporal arteritis.
SZ’s son SR in his letter to the Tribunal dated 30 May 2017 noted he visited his father a few days after discharge and reported that SZ remained in a confused state, telling SR that there was an underground tunnel from his home to the QEII Hospital, and despite reassurances, was convinced he was being poisoned, that his land was being sold and that his son-in-law was trying to take his money.
Revocation of EPA 13 July 2016
On 13 July 2016 SZ signed a Revocation of an Enduring Power of Attorney. Part 1 of that document: Statement revoking the appointment of an attorney, whilst identifying ME and MA as the Attorneys does not provide the date of the EPA or the order in which they were appointed. Part 2: Statement of Understanding, noted the revocation pertained only to financial matters. Part 3: Witness Certificate, Rajesh Gopal, Lawyer, duly signed the Witness’s Certificate. And under cover letter of Gopal Lawyers, addressed to ME and MA dated 13 July 2016, Mr Gopal writes: Whilst our client was in hospital recently MA and ME got him to sign a document which he believes was an Enduring Power of Attorney, however our client cannot be sure that it was a Power of Attorney as he was unwell at the time. A revocation of the Power of Attorney is enclosed… SZ wishes to advise everyone that none of the land owned by him or SZ Investments Pty Ltd is to be sold.
Applications to the Tribunal August 2016.
On 3 August 2016 the Tribunal received Applications from ME concerning an Order about an Enduring Power of Attorney/Revocation, and seeking the Appointment of a Guardian and Appointment of an Administrator. An Application for an Interim Order was dismissed on 10 October 2016.
Since the applications SZ has instructed a number of lawyers in relation to the matters and has obtained various medical reports under Direction of the Tribunal or independently. The hearing on the applications has been subject to adjournment on 15 December 2016 and 21 March 2017.
The Tribunal received a large amount of material including the following health professional reports and letters.
a)Qld Health Discharge Summary July 2016, as described above, and November 2015.
b)Dr Efinoff GP 22 July 2016: brief single page letter - notes a score of 22/30 indicating mild cognitive impairment, states SZ is clear about what he owns and who are his children, that he wants to make a will and leave his estate divided equally amongst his children.
c)Dr Ranka Djordjevic, GP 26 July 2016: brief single page letter – notes mentally healthy and mind sound, opines SZ is able to manage finances.
d)Dr Lillian Wong, Geriatrician 16 and 17 September 2016: 3 page letter and Tribunal Health Professional Report – outlines information provided by SZ and his friend, outlines assessments and opines overall SZ’s capacity is impaired for complex decision making due to reduced executive function and impaired memory, and that he is unable to understand elements of an EPA.
e)Dr Serdiuk, GP, 26 September 2016; 16 May & 2 August 2017: brief letters - opines SZ is mentally fit to manage his life affairs, notes he was treated with high dose Cortisone, and begun to display psychotic symptoms including delirium and hallucinations due to side effects of Cortisone. Further notes patient returned to normal behaviour when Cortisone ceased (no date) and has no lasting side effects.
f)Dr Slavica Jelesic-Bojicic, Psychiatrist, 26 September 2016: 5 page report - notes SZ and his wife interviewed in August and September 2016, spoke with a friend and obtained QEII progress notes and discharge summaries and letters from GPs. Opines SZ appeared cognitively preserved, oriented to person, time and place, scored 30/30 on RUDAS, and whilst reports has not found signs of major cognitive incapacity, notes diagnostically consistent with mild cognitive impairment, not severe enough to affect his daily function, or handling his life affairs well. Also suggests given high work ethics, possibility of OPCD traits.
g)Dr Elizabeth Merson, Physician, 20 November 2016: Completed Tribunal Health Professional Report. Notes examined SZ alone with assistance of telephone interpreter on two occasions. SZ scored maximum of 60/100 on Addenbrooke’s Cognitive Examination. Overall opines can make simple personal, health and financial decisions but does not understand elements of an EPA.
h)Professor Gerard Byrne, Psychiatrist, 6 March 2017: 15-page Report outlines instructions, information considered and assessment process and findings. Overall opines SZ is likely to lack capacity for major health, lifestyle and financial decisions because of either mild cognitive impairment or possibly even mild dementia. And opines whilst SZ had a basic understanding of an EPA, he did not have a clear grasp of the details.
i)Dr Michael Leong, Psychiatrist, 28 April and 18 May 2017: 15 page Report and supplementary 2-page letter along with the Tribunal Health Professional Report. Outlines instructions, information considered and assessment process and findings. Whilst notes MMSE 23/30(qualified) and reports cognitively slightly impaired with decreased attention, concentration and short term recall, and has overvalued ideas in relation to family members, opines no diagnosed psychiatric disorder and appears to be capable of operating his bank account, paying bills and is aware of the extent of his property holdings and worth. Was uncertain whether SZ understood elements of an EPA.
Legislation and capacity issues
The Guardianship and Administration Act 2000 (Qld), the Powers of Attorney Act 1998 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) are the relevant laws in relation to the applications.
Under the guardianship law all Adults are presumed to have capacity unless rebutted. Capacity means a person is capable of understanding the nature and effect of decisions about a matter, can make the decision freely and voluntarily and the person is able to communicate their decision in some way. The matters in question relate to SZ’s health, personal and financial decisions. Decision-making can relate to simple and complex matters. The Tribunal is satisfied on the material and information provided SZ has complex financial arrangements involving significant property development and sales, management of a family trust as Director of the Corporate Trustee and management of high value personal finances and property. SZ’s health history is extensive and complex.
In relation to SZ’s capacity, the Tribunal is required to consider whether SZ has capacity at hearing and whether he had capacity to revoke the EPA on 13 July 2016. The Tribunal considered all of the written health professional reports along with the information Dr Merson, Professor Byrne and Dr M. Leong provided in person at the hearing. Whilst a significant amount of health information was provided, and the attending health professionals clarified particulars of reports, they in essence reiterated their report findings. Almost all of the material indicated SZ has a mild cognitive impairment and most noted SZ has had a period of confusion variously described as delirium, hallucinations or psychotic symptoms, the origin of which was suggested by Dr M. Leong as a possible reaction to high dose steroids. Professor Byrne and Dr Merson both agreed that such reaction can occur in high dose steroids, but both opined should dissipate within days of lowering and or ceasing the medication. The Tribunal makes no specific finding in relation to this suggestion as no detail was recorded or reported as to when confusion or delirium was first identified, the actual date on when the steroid was introduced or how and when it was weaned or discontinued.
The health professional reports span the period of hospitalisation in June 2016 (Dr David Wong, Qld Health Discharge Summary) to the April and May 2017 reports of Dr M. Leong. The Tribunal accepts the health reports as findings observed or assessed by the health professionals on the dates they each examined SZ. However, the Tribunal gives less weight to the brief letters, particularly those of the general practitioners that did not outline the manner of any assessment process or how formal cognitive testing was undertaken. The Tribunal also prefers the reports that indicated that open questioning was utilised in assessment as closed questioning often elicits single word or simple answers and does not fully demonstrate full understanding of a particular matter. Professor Byrne’s assessment of SZ’s understanding of an EPA followed the recommended Office of the Public Guardian guidelines, and Professor Byrne outlined how he gave SZ all of the information and then retested him, whereas Dr M. Leong confirmed that he accepted that a person such as SZ would not necessarily understand all elements of an EPA as he expected SZ would utilise financial or legal advisors.
At hearing SZ appeared, and as he had instructed his lawyer, without the use of a formally accredited interpreter. The Tribunal notes a Ukrainian interpreter was variously utilised at the Tribunal and during medical assessments. The Tribunal agreed to proceed noting SZ is a long-standing resident of Australia and has dealt with complex property transactions. SZ also speaks Polish. A non-accredited interpreter attended with SZ and SH, but was not utilised by the Tribunal.
It became very clear early into the Tribunal’s questioning of SZ, that he did not understand the nature of the proceedings and that he could not recall dates or documents, including the Revocation of EPA even suggesting ‘that it would be false’. Whilst SZ provided some very basic detail about the existence of the Family Trust and Corporate Trustee, SZ preferred speaking of events in the 1960s and it was difficult to guide or direct him from those times into the present. Neither Counsel for SZ, or the Applicants, nor the statutory office attendees wished to press with further questioning of SZ.
Based on SZ’s own testimony, which indicated poor understanding of the nature of the proceedings, inability to recall important dates and documents, and impaired insight into his capabilities against a background outlined in the health professional reports, the Tribunal was satisfied SZ did not have capacity for complex health, personal and financial matters, and that the presumption of capacity was rebutted in those matters. The Tribunal ordered accordingly.
It was undisputed by the majority of health professionals seen by SZ over the past 12-14 months that SZ has mild cognitive impairment. SZ had a significant period of delirium and confusion whilst hospitalised in mid-June to early-July 2016. Dr David Wong treating practitioner certified that SZ did not have capacity and that the EPA that he signed in 2009 should come into effect. SZ’s daughter ME and son SR provided statements that SZ remained confused days after his discharge from hospital on 2 July 2016 and missed taking his medication, including insulin, on a number of occasions prior to the date of signing the Revocation. These specific claims were essentially uncontested. At the date of Revocation SZ was unable to provide details of the EPA he was revoking, and under letter of the Certifying Witness, it is apparent SZ remained under a misapprehension that someone was intending to sell or attempting to sell his land, which an authority to do so under the 2009 EPA expressly prohibited. The Tribunal is satisfied that SZ’s poor recall of the existence of the 2009 EPA or the specifics and the express provisions of it, or any other purported EPA, at the time of the Revocation demonstrates poor understanding of the nature and effect of the document he was signing and the full implications. The brief reports of Drs Efimoff and Djordjevic, dated 22 July and 26 July 2016 respectively, do not refer to any Revocation of an EPA, or of SZ’s understanding of either the elements of an EPA or consequences of a Revocation document. Notwithstanding all other health professional reports were written many weeks or months after the date of the Revocation, and there was mixed views as to SZ’s general capacity, all specialists noted underlying mild cognitive impairment at time of examination.
In the circumstances the Tribunal was satisfied on the balance of probabilities that SZ did not have the capacity to understand the nature and effect of the Revocation of an EPA on 13 July 2016. It was declared invalid and the Tribunal ordered accordingly.
Need for the appointment of under the a Guardian and Administrator
Notwithstanding a person may lack capacity for personal and financial matters, the guardianship law provides that the Tribunal may make an appointment for a guardian or administrator if it is also satisfied there is a need for a decision or a person is likely to do something that is likely to involve an unreasonable risk to health, welfare or property and that without an appointment SZ’s needs may not be adequately met or his interests protected. That is, can SZ’s needs and interested be protected through other arrangements such as informal family arrangements, the statutory health attorney regime or through the operation of an Enduring Power of Attorney. The guardianship law provides that the balance between protection and autonomy for a person with impaired capacity, is that the least restrictive option is preferable.
In light of the Tribunal’s decisions concerning capacity and the consequential standing of the 2009 EPA, and following discussion about the potential for the Tribunal to revoke the EPA and the existence and effect of the statutory health attorney regime, the parties took an opportunity outside the proceeding to discuss the need for the appointment of a guardian and or administrator.
On return to the hearing ME indicated that her main concern around SZ’s health was his compliance with taking medications. ME also indicated to the Tribunal that she wanted her father to remain in his home for as long as possible. ME submitted that the EPA should stand as it gave expression to SZ’s longstanding wishes and it contained the limitations SZ had intended. MA agreed.
SZ, through Counsel, also indicated that the EPA with its specific provisions in relation to the non-sale of land, and the appointment of ME as the first Attorney, addressed his concerns and was in keeping with his wishes. SZ then, through the informal assistance of his stepson WR speaking Polish, indicated to the Tribunal that he wished ME alone assist him, and he accepted, on the Tribunal’s explanation, that the 2009 EPA expressly prohibited the sale of land.
All parties clearly indicated that they did not want the statutory authorities, Public Trustee or Public Guardian, involved.
Representatives of the Public Trustee and Public Guardian expressed the view that there was no need for appointment of a guardian or administrator at this stage in light of the standing 2009 EPA.
The Tribunal was satisfied that there was no need for the appointment of either a guardian or administrator in light of the 2009 EPA. And, notwithstanding some tension or mistrust between some family members, the Tribunal was persuaded SZ’s needs and interests could be adequately met and protected both personally and financially through SZ expressing his views and undertaking everyday simple decisions, any informal family and or service arrangements put in place, and through the formal operation of the EPA. An EPA that reflects SZ’s wishes and addresses his main concerns. The Tribunal therefore noted the existence of the EPA dated 10 November 2009, and declared that powers under the EPA had begun and ordered accordingly.
Given the above the Tribunal did not need to consider the appropriateness of any proposed appointee, and the applications for appointment of a guardian and an administrator were dismissed. The Tribunal ordered accordingly.
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