SZ
[2010] QCAT 64
•26 February 2010
| CITATION: | SZ [2010] QCAT 64 |
| PARTIES: | SZ |
APPLICATION NUMBER: GAA10389-09 GAA10390-09
| MATTER TYPE: | Guardianship and administration matters |
HEARING DATE: 16 February 2010
HEARD AT: Brisbane
| DECISION OF: | C Endicott, senior member J Ford member |
DELIVERED ON: 26 February 2010
DELIVERED AT: Brisbane
ORDERS MADE: Appointment of a guardian and administrator
| CATCHWORDS : | Impaired decision making capacity - not able to make decisions freely and voluntarily - pending legal claim - conflict of interest by attorney |
APPEARANCES and REPRESENTATION (if any):
The applicant, XX Solicitors, was represented by a solicitor and The Public Trustee of Queensland was represented by Marion Hall.
REASONS FOR DECISION
HISTORY OF THE APPLICATION
- SZ sustained serious injuries, including a complete C4/5 tetraplegia, in a single vehicle accident on 4 November 2006. She had been a passenger in the vehicle being driven by her husband, SS.
- SZ received extensive treatment and rehabilitation for her injuries and she was not discharged from the spinal injuries unit of the Princess Alexandra Hospital until 19 October 2007. SZ resides in her home with care provided by her husband.
- On 24 January 2007 SZ appointed her husband as her attorney for personal, health and financial decisions under an Enduring Power of Attorney. The power to make financial decisions was stated to commence immediately on the granting of the power.
- A legal firm, XX, was instructed by SZ’s attorney on 5 June 2007 to act for SZ in a claim to recover damages for her personal injuries. All instructions received by the legal firm to date in the claim have been provided by the attorney for SZ and all meetings between the legal firm and SZ have been conducted in the presence of SS.
- The legal firm has experienced difficulty in obtaining instructions from SZ or her attorney since January 2009. The limitation period for the damages claim expired on 4 November 2009 but the compulsory third party licensed insurer of the vehicle (Suncorp), which has admitted liability in the claim, has agreed not to rely on the limitation period defence if proceedings are commenced by 4 March 2010.
- On 10 December 2009 an application was lodged with the Tribunal by a partner of XX, seeking the appointment of a guardian and administrator for SZ. A directions hearing was held on 1 February 2010 when the applicant was directed to provide written submissions about the decision making capacity of SZ. Written submissions were lodged with the Tribunal on 15 February 2010.
- Directions were made to SZ’s attorney to provide written submissions as to why he should retain decision making power about the damages claim and as to whether there was another person more appropriate to exercise that power for SZ. No written submissions were received from SS and he did not make any contact with the Tribunal registry seeking information about the application or the directions.
- The application for the appointment of a guardian and administrator came on for hearing on 16 February 2010.
The Issues and the Legislation
- The issues for the Tribunal are:
Does SZ have capacity for the matter?
Is there a need for a guardian? If so, who should be appointed? andIs there a need for an administrator? If so, who should be appointed?
- For adults there is a statutory presumption that they have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”). Unless there is sufficient evidence to rebut that presumption, it must stand.
- The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of-
- understanding the nature and effect of decisions about the matter; and
- freely and voluntarily making decisions about the matter; and
c.communicating the decisions in some way.
12.If the presumption of capacity has been rebutted, the Act provides the means by which a substituted decision maker can be appointed for an adult with impaired decision making capacity.
- Section 12 of the Act deals with the question of need for an appointment and provides, where relevant, as follows:
(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected…..
- Section 15 of the Act provides considerations for deciding whether a person is appropriate for appointment as a guardian and administrator as follows:
(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—
(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;
(c) the extent to which the adult’s and person’s interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than 1 person is to be appointed—whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
(2) The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict….
- Section 11 of the Act and Section 76 of the Powers of Attorney Act 1998 both provide that a person exercising a power under those Acts must apply the General Principles which are set out in those Acts.
The Evidence
16.The applicant provided the Tribunal at the time of lodging her application with a copy of the Enduring Power of Attorney dated 24 January 2007, a copy of the notice of claim form, being the initiating document in the damages claim, a copy of a discharge summary by a social worker at the Princess Alexandra Hospital dated 19 October 2007 and a copy of a report by Dr Vernon Hill dated 23 April 2008.
17.The written submissions lodged on 15 February 2010 contained evidence in support of the application as well as submissions on the law. The following documents were attached to the submissions:
Enduring Power of Attorney dated 24 January 2007
Occupational Therapy discharge summary by Glenda Price
Social work discharge summary by Lis Vale
Report of Dr Vernon Hill dated 23 April 2008
Letter to XX from Suncorp dated 16 August 2007
Letter to Suncorp from Spiritus dated 13 December 2007
Letter to Suncorp from Queensland health dated 20 December 2007
Letter to XX from Suncorp dated 11 April 2008
Letter to XX from Suncorp dated 1 May 2008
Letter to XX from Suncorp dated 15 October 2008
Facsimile letter to Suncorp from BlueCare dated 6 July 2009
Letter to the Tribunal from XX dated 23 December 2009
DOES SZ LACK CAPACITY FOR THE MATTER?
18.Medical evidence provided to the Tribunal in the report of Dr Hill stated that SZ had sustained a fracture dislocation of the 5th/6th cervical vertebra. Surgical treatment reduced the fracture dislocation and the lesion was stabilised with an anterior fixation plate and bone graft. SZ was transferred from Intensive Care into the Spinal Injuries Unit on 27 November 2006.
19.Neurological examination indicated that SZ had sustained a complete tetraplegia below the level of 5th cervical segment. Her tracheostomy tube was removed on 14 December 2006 and she started attending rehabilitation. Due to the high level of her lesion, SZ was reported as being unable to take an active part in most activities of daily living. She was discharged from hospital on 19 October 2007 to her home.
20.There is no evidence that SZ sustained any head injuries in the accident. The discharge report by a hospital social worker made reference to SZ, in the early stages of her admission to the spinal injuries unit, manifesting some symptoms of post traumatic stress as a consequence of being trapped in the car for a lengthy period of time. By the time of discharge, no assessment had been carried out as to the level of adjustment made by SZ to her severe disability or as to the presence of any psychological impact arising from her injuries.
21.Evidence was provided to the Tribunal in the social worker discharge report that SZ and her husband both understand and communicate well in English but the spinal injuries unit initially utilised the services of an interpreter to ensure complete and effective understanding of complex issues. A request was made by SZ and her husband to cease the use of the interpreter and SS then interpreted for his wife.
22.The social work discharge report described SS as a very dominant man and that it had been very difficult to engage SZ in a private setting without the presence of SS or their sons. It was stated that the spinal injuries unit had at times found communication and decision making to be difficult with the family and the staff of the unit had employed the assistance of their solicitor who had developed a great rapport and trust with SS.
23.In written submissions from the applicant, the Tribunal was told that XX had only ever been able to obtain instructions from SS, that SS had not allowed the lawyers to obtain instructions directly from SZ and that SS had always responded to questions on SZ’s behalf. When her lawyer had explained that they required instructions from SZ, SS continued to answer for his wife or SZ would simply confirm what SS had already said.
24.The submissions referred to an occasion on 5 November 2007 when the lawyer for SZ attended at her house to discuss the provision of care and assistance by Spiritus. SS was not at home and SZ refused to talk to the lawyer and service providers until SS returned home.
25.On 7 August 2008 SZ’s lawyer attended at her home for the purpose of having her sign a Notice of Accident Claim form on behalf of a company of which SZ was a director and employee. SS would not allow the lawyer to talk directly with SZ and would not allow SZ to sign the claim form as it stated that SS, as driver of the vehicle, had been at fault in the accident and he maintained that he had not been at fault. After that incident, communication between SS and the lawyers effectively broke down.
26.The submissions related that a number of appointments for a medico-legal examination of SZ had been cancelled by or at the request of SS. When the lawyers sought to make arrangements for a medico-legal examination to take place at SZ’s home on a weekend, SS refused to allow the examination to proceed.
27.The applicant submitted that SZ will recover a very substantial award of damages if she pursued her claim. As neither SZ or her husband are working and as considerable expense is involved in providing for SZ’s health and well being, SZ will experience financial hardship if she does not recover damages in her claim.
28.It was submitted that it is in her best interests for SZ to proceed with her claim. SZ has failed to provide instructions to her lawyers about her claim since January 2009. It was submitted that her failure has given rise to a concern that she does not understand the nature and effect of decisions about her claim.
29.It was further submitted that SZ is unable to use a conventional telephone and cannot communicate in writing due to her physical restrictions. Her lawyers are unable to communicate with SZ unless they attend at her home. When they have done so on several occasions in the past, SS has not allowed them to speak with SZ directly and she has not been permitted to convey her instructions directly to her lawyer.
30.It was submitted that SS is exerting control over and influencing SZ such that he is preventing her from freely and voluntarily making decisions about her claim and communicating those decisions to her lawyers. In oral submissions the Tribunal was told that SS exercises such control over SZ that she has no choice but to abide by his decisions made for her.
31.The representative of The Public Trustee submitted that the Tribunal had to distinguish between a situation where a person has impaired capacity because that person cannot make decisions freely and voluntarily and a situation where a person cannot make decisions because of impaired communication due to language barriers. As SZ spoke with her husband in her own language, care must be taken not to confuse the second situation (which is not determinative of impaired capacity) with the first.
CONCLUSION
32.There is no evidence that SZ sustained head injuries in her accident, no evidence that she has any cognitive impairment or any current psychological or medical condition adversely affecting her judgement. The applicant has submitted that despite the absence of evidence of cognitive impairment or impaired judgement, there is evidence that SZ cannot make decisions of her own free will and seeks a finding that SZ has impaired decision making capacity about her damages claim.
33.In making a determination about SZ’s capacity to make decisions about her damages claim, the Tribunal has embarked on an examination of the second limb of the definition of capacity in the Act: whether SZ is capable of freely and voluntarily making decisions about the matter.
34.The Tribunal has interpreted this phrase to mean that in order for an adult to have decision making capacity it must be established that the decision is the decision of the adult and of no one else. There is impaired capacity to make decisions when an adult’s free will has been so completely overborne that there has been an inability of that adult to make up his or her own mind. The issue for determination is whether SZ has made decisions about the damages claim or whether the decisions have been made by some one else.
35.After considering the evidence in this case, the Tribunal finds that SS has provided all the instructions to XX about SZ’s damages claim since June 2007. He has responded to all questions raised by the lawyers and he acted independently of the lawyers when he cancelled arrangements for SZ to undergo medico-legal appointments.
36.Such findings would not necessarily lead to the conclusion that SZ has not made the relevant decisions herself and then relied on her husband to implement the decisions or to communicate the decisions to XX but for the incident on 7 August 2008. On that occasion, SS refused to permit his wife to sign a notice of claim form as he did not agree that he should be described as at fault in the accident. That incident provides a very clear example of a decision about SZ’s claim being made by a person other than SZ. The Tribunal finds that SZ had no say in a decision that should have been only hers to make.
37.In the context of that finding, the Tribunal is persuaded by the submissions made by the applicant that the evidence establishes that SS is exerting control and influence over SZ such that she is prevented from freely and voluntarily making decisions about her claim. In particular the Tribunal is satisfied that SZ cannot freely and voluntarily make decisions about continuing with her damages claim when it is clearly in her interests to do so. Liability has been admitted and unless the claim proceeds in the near future, the opportunity to recover significant damages will be lost.
38.Whether SS’s actions have been triggered by concern for his wife or out of guilt for his actions is not relevant in this case but the fact that he is the potential defendant in the claim makes his actions most egregious.
39.The Tribunal is not persuaded that an examination of the evidence leads to an alternative conclusion, namely that SZ has not made decisions in her damages claim because of impaired communication due to language barriers. The Tribunal is satisfied that essential information about her claim has been effectively communicated to SZ since June 2007 both in person and in writing. That information has been translated into SZ’s primary language by her husband in the presence of her lawyers who have been available to clarify any queries that SZ may have raised.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
40.The applicant has sought the appointment of a guardian as SZ needs care and assistance to address the disabilities arising from her injuries. The applicant asserts that SS has repeatedly cancelled services by care providers or has not facilitated services being commenced that have been arranged for SZ. Work to modify SZ’s house to cater for her disabilities and to install equipment to improve her quality of life has not been proceeded with.
41.It was submitted by the applicant that given the catastrophic nature of SZ’s injuries, what would be a minor ailment for another person is potentially a life-threatening ailment for SZ.
42.SZ appointed her husband as her attorney for personal and health matters. That appointment commenced when SZ’s decision making capacity became impaired. The applicant was unable to provide evidence as to any positive action taken by SS, either in an informal support role or in his role as attorney for personal and health matters, to provide care and assistance appropriate to the level of disability exhibited by SZ. However, it was conceded by the applicant that SS may have done so without consulting SZ’s lawyers.
CONCLUSION
- Based on the information provided to the Tribunal, it can be determined that there is a need for decisions to be made about SZ’s health and care needs. She is almost totally dependent on other people for most activities of daily living and the consequences of contracting a minor ailment may be dire given her vulnerable state of health. However the Tribunal is not satisfied that the evidence has established that only by the appointment of a guardian will the needs of SZ be adequately met or her interests will be adequately protected.
44.She has appointed an attorney who is responsible for making decisions about the personal and health needs of SZ. The Tribunal cannot be satisfied on the evidence currently available that the attorney is not adequately meeting the decision making needs of SZ in the areas of personal matters and health care. There may be adequate personal care and health care arrangements in place of which the applicant is unaware.
45.Nevertheless, the evidence of SS cancelling services by care providers does raise concerns. SS did not attend the hearing and did not provide any response to the application for appointment of a guardian. The adult, SZ, is the focus of this matter and her interests must be taken into account by the Tribunal. The Tribunal considers that it is essential that some active steps are taken to ensure that her needs are being adequately addressed.
46.The Tribunal has made findings that SS is exerting control and influence over SZ such that she is prevented from freely and voluntarily making decisions about her claim. It is a concern of the Tribunal that SS may also be exerting control and influence over SZ preventing her from accessing care and assistance appropriate to her level of disability.
47.To address those concerns, the Tribunal considers it is appropriate to appoint a guardian for the limited purpose of seeking help and making representations for SZ about her health and care needs. By that means a report can be provided to the Tribunal about the adequacy of the current decision making process about SZ’s personal and health care matters.
IF SO WHO SHOULD BE APPOINTED?
48.The applicant sought the appointment of the Adult Guardian as guardian for SZ. No other person has been proposed or indicated any willingness to be appointed as guardian.
CONCLUSION
- The Adult Guardian is an independent decision maker and has extensive skills and experience in making representations on behalf of persons with impaired decision making capacity. The Tribunal considers that the Adult Guardian is the appropriate appointee as guardian for the limited purpose outlined in paragraph 47 of these reasons for a period of two years.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
50.An administrator can be appointed by the Tribunal to make decisions about a financial matter for an adult with impaired capacity. A financial matter is defined in the Act as including a legal matter relating to an adult’s financial or property matters. [1] A legal matter is defined in the Act as including the use of legal services to bring or defend a proceeding before a court, tribunal or other entity and as bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding. [2]
[1] Schedule 2, part 1 of the Guardianship and Administration Act 2000
[2] Schedule 2, part 3 of the Guardianship and Administration Act 2000
51.SZ has appointed her husband to be her attorney for financial matters. He is the potential defendant in the claim for damages commenced by SZ.
52.SZ has not provided instructions to her lawyers to proceed further with her claim. The limitation period for the commencement of the a claim has expired but her lawyers have negotiated with the compulsory third party insurer that the expiry of the limitation period will not be raised as a defence of the claim if proceedings are commenced by 4 March 2010.
- As liability has other wise been admitted by the insurer, the claim should result in the recovery of considerable damages if the expiry of the limitation period is not pleaded as a defence in the claim. The damages will provide the means to improve SZ’s quality of life and to reduce carer strain.
CONCLUSION
54.The Tribunal is satisfied that there are decisions that need to be made about SZ’s damages claim. Her lawyers have not received any contact from SZ since January 2009 and her instructions are needed in order to finalise quantification of her claim and the pre-court stage of the claim as well as to take steps to commence action in the courts to avoid her claim being barred by the effects of the expiry of the limitation period. The absence of instructions has given rise to an unreasonable risk to SZ’s prospects of recovering damages for her injuries.
55.The Tribunal is satisfied a decision maker must take steps immediately to protect SZ’s interest in the legal matter involving her damages claim. There is already a decision maker in place for SZ – her husband as attorney for financial matters under an Enduring Power of Attorney. The Tribunal is satisfied that it would be inappropriate to leave SS with the power to exercise decision making as attorney for SZ about her damages claim.
56.There is a conflict of interest inherent in SS exercising decision making powers for the claimant in a damages claim in which he is potentially a defendant as the tortfeasor. The Tribunal is aware that the compulsory third party insurer actually conducts the defence of the damages claim and not the tortfeasor directly but nevertheless the information provided by the driver and, in this case, the carer of the claimant informs several aspects of the insurer’s response to the claim.
- Under section 73 of the Powers of Attorney Act 1998 an attorney is prohibited from entering into conflict transactions without the authority of the principal. A conflict transaction is defined as a transaction in which there may be conflict between the duty of an attorney towards the principal and another duty of the attorney. SS has a duty to co-operate fully with his insurer in the claim brought by his wife. The duty to act with fidelity to the insurer in this claim cannot co-exist comfortably with the attorney’s duty under the general principles to exercise his powers as attorney consistent with the adult’s proper care and protection.
IF SO WHO SHOULD BE APPOINTED?
58.The applicant seeks the appointment of The Public Trustee of Queensland as administrator for SZ for the legal matter involving the bringing, settling or otherwise finalising of her damages claim. SS was invited by the Tribunal to provide submissions as to whether there was another person more appropriate to be a decision maker for legal matters than himself. No response was received to this invitation.
CONCLUSION
59.The Tribunal is satisfied that The Public Trustee of Queensland can make decisions about SZ’s legal matters that best meet her needs. The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case for legal matters for a period of two years.
- The Enduring Power of Attorney dated 24 January 2007 appointing SS as attorney for SZ for personal, health and financial matters is overtaken only in relation to the limited powers given in the appointment of a guardian and an administrator and the attorney can exercise his decision making authority in all remaining areas.
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