TBG
[2011] QCAT 474
•5 September 2001
CITATION: TBG [2011] QCAT 474
PARTIES: TBG
APPLICATION NUMBERS: GAA5771-11 / GAA5772-11 / GAA5773-11 / GAA5774-11 / GAA5775-11 / GAA5776-11
MATTER TYPE: Guardianship and administration matters for adults
HEARING DATE: 5 September 2011
HEARD AT: Caboolture
DECISION OF: Louise McDonald, Member
Adrian Williams, Member
DELIVERED ON: 5 September 2001
DELIVERED AT: Caboolture
| ORDERS MADE: | 1. That the following Enduring Powers of Attorney for TBG are revoked pursuant to s 116(d) of the Powers of Attorney Act 1998: (a) Any enduring power of attorney held by JJT as attorney for financial personal and health matters, (b) The Enduring Power of Attorney dated 21 December 2010 appointing JAT as attorney for financial personal and health matters. 2 The Enduring Power of Attorney dated 21 June 2011 appointing KAT and PAT as attorneys for financial, personal and health matters is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998. 3 The Adult Guardian is appointed as guardian for TBG for decisions about the following matters: (a) Accommodation (b) With whom TBG has contact/ visits (c) Health care 4 This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 5. The Public Trustee of Queensland is appointed as administrator for TBG for all financial matters. 6. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 7. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 8. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. 9. The Tribunal directs that the administrator seek legal advice regarding the validity of the Family Law Consent Order of 9 May 2011 with respect to the adult’s capacity to execute the minutes of consent. |
| CATCHWORDS: | Capacity of adult – need for administrator – need for guardian – appropriateness of appointee under power of attorney Powers of Attorney Act 1998 |
REASONS FOR THE DECISION
BACKGROUND
[1] On 21 December 2010 an Enduring Power of Attorney (EPA) was executed by TBG, (hereafter, the adult,) appointing JAT as attorney for financial and personal matters. The financial power was effective immediately. The document was witnessed by a Justice of the Peace.
[2] On 4 January 2011, the adult executed a revocation of any prior appointments as attorney of JJT.
[3] On 23 February 2011 a referral to the Adult Guardian raised concerns about actions taken by the attorney under the EPA of 21 December 2010. An investigation by the Adult Guardian under section 193 of the Guardianship and Administration Act 2000 ensued.
[4] On 5 May 2011, the adult executed Minutes of Consent in relation to his family law property settlement, which became Family Law Consent Orders in the Federal Magistrates Court dated 9 May 2011.
[5] On 21 June 2011, the adult executed a revocation of the Enduring Power of Attorney of 21 December 2010.
[6] On 21 June 2011, the adult executed an Enduring Power of Attorney appointing his brother KAT and PAT, his sister in-law, as attorneys for financial and personal matters. The financial power was effective immediately. This document was witnessed by a Justice of the Peace.
[7] On 30 June 2001 the Tribunal received an application for the appointment of an Administrator and Guardian for the adult from KAT and PAT proposing themselves as appointees.
[8] On 14 July 2011 the Tribunal received an application for an Interim Order from KAT and PAT. This application was heard on the papers and an interim order was made on 27 July 2011 appointing The Public Trustee of Queensland for a period of three months, until the matter could be heard by the Tribunal. The appointment overtook the EPA of 21 June 2011.
[9] On 21 July 2011, the Tribunal received applications from JAT for the appointment of an Administrator and Guardian for the adult, proposing herself as appointee in circumstances where the Enduring Power of Attorney held by her was no longer effective. Ms JAT is the daughter of the adult.
[10] On 26 July 2011 the Tribunal received an application for a declaration about the capacity to execute an Enduring Power of Attorney from KAT and PAT, brother and sister in law of the adult, TBG. This application pertains to the validity and appropriateness of the attorney’s actions under the enduring Power of Attorney of 21 December 2010.
[11] The applications were heard at Caboolture on 5 February 2011. Present at the hearing was: TBG, KAT, PAT, JAT, LW, (daughter), PW, (son), KD, (daughter in law), VW, (friend), SW (friend of daughter), MT, (son), (granddaughter), (ex wife), JJT (who recorded her relationship with the adult as wife) and DJ (who recorded his relationship as son).
RELEVANT LAW
[12]The Powers of Attorney Act 1998 outlines the attorney’s obligations and the Tribunal’s powers in relation to enduring documents:
66 Act honestly and with reasonable diligence
(1) An attorney must exercise power honestly and with reasonable diligence to protect the principal's interests.73 Avoid conflict transactions
(1) An attorney for a financial matter may enter into a conflict transaction only if the principal authorises the transaction, conflict transactions of that type or conflict transactions generally.
(2) A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between(a) the duty of an attorney towards the principal; and
(b) either
(i) the interests of the attorney, or a relation, business associate or close friend of the attorney; or
(ii) another duty of the attorney.76 General principles for adults with impaired capacity
The principles set out in schedule 1 (the general principles and, for a health matter, the health care principle) must be complied with by a person or other entity who performs a function or exercises a power under this Act, or an enduring document, for a matter in relation to an adult who has impaired capacity.
86 Keep property separate
(1) An attorney for a financial matter must keep the attorney's property separate from the principal's property.
Maximum penalty 300 penalty units.
(2) Subsection (1) does not apply to
(a) property owned jointly by the principal and attorney; or
(b) property acquired jointly by the principal and attorney in place of property owned jointly by the principal and attorney.
(3) Subsection (1) does not affect another obligation imposed by law.113 Declaration about validity
(1) The court may decide the validity of a power of attorney, enduring power of attorney or advance health directive.
(2) The court may declare a document mentioned in subsection (1) invalid if the court is satisfied
(a) the principal did not have the capacity necessary to make it; or
(b) it does not comply with the other requirements of this Act; or
(c) it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.
(3) If the court declares the document invalid, the court may, at the same time, appoint 1 or more attorneys for the principal.116 Order removing attorney or changing or revoking document
The court may, by order
(a) remove an attorney and appoint a new attorney to replace the removed attorney; or
(b) remove a power from an attorney and give the removed power to another attorney or to a new attorney; or
(c) change the terms of a power of attorney, enduring power of attorney or advance health directive; or
(d) revoke all or part of a document mentioned in paragraph (c).117 Changed circumstances as basis for change or revocation
Without limiting the grounds on which the court may make an order changing the terms of a power of attorney, enduring power of attorney or advance health directive, or revoking all or part of 1 of these documents, the court may make the order if the court considers the principal's circumstances or other circumstances (including, for a health power, advances in medical science) have changed to the extent that 1 or more terms of the document are inappropriate.
POWERS OF ATTORNEY ACT 1998 – SCHEDULE 1
PRINCIPLES
1 Presumption of capacity
An adult is presumed to have capacity for a matter.2 Same human rights
(1) The right of all adults to the same basic human rights regardless of a particular adult's capacity must be recognised and taken into account.(2) The importance of empowering an adult to exercise the adult's basic human rights must also be recognised and taken into account.
3 Individual value
An adult's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account.4 Valued role as member of society
(1) An adult's right to be a valued member of society must be recognised and taken into account.
(2) Accordingly, the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account.5 Participation in community life
The importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.6 Encouragement of self-reliance
The importance of encouraging and supporting an adult to achieve the adult's maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.7 Maximum participation, minimal limitations and substituted judgment
(1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
(2) Also, the importance of preserving, to the greatest extent practicable, an adult's right to make his or her own decisions must be taken into account.
(3) So, for example
(a) the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult's life; and
(b) to the greatest extent practicable, for exercising power for a matter for the adult, the adult's views and wishes are to be sought and taken into account; and
(c) a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult's rights.
(4) Also, the principle of substituted judgment must be used so that if, from the adult's previous actions, it is reasonably practicable to work out what the adult's views and wishes would be, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must take into account what the person or other entity considers would be the adult's views and wishes.
(5) However, a person or other entity in performing a function or exercising a power under this Act, or an enduring document, must do so in a way consistent with the adult's proper care and protection.
(6) Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.8 Maintenance of existing supportive relationships
The importance of maintaining an adult's existing supportive relationships must be taken into account.9 Maintenance of environment and values
(1) The importance of maintaining an adult's cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.(2) For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.
10 Appropriate to circumstances
Power for a matter should be exercised by an attorney for an adult in a way that is appropriate to the adult's characteristics and needs.11 Confidentiality
An adult's right to confidentiality of information about the adult must be recognised and taken into account.117 Changed circumstances as basis for change or revocation
Without limiting the grounds on which the court may make an order changing the terms of a power of attorney, enduring power of attorney or advance health directive, or revoking all or part of 1 of these documents, the court may make the order if the court considers the principal's circumstances or other circumstances (including, for a health power, advances in medical science) have changed to the extent that 1 or more terms of the document are inappropriate.
[13] The Guardianship and Administration Act 2000 (hereafter the GAA Act) outlines the legal parameters around the appointment of a Guardian or Administrator.
12 Appointment
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.(2) The appointment may be on terms considered appropriate by the tribunal.
(3) The tribunal may make the order on its own initiative or on the application of the adult, the adult guardian or an interested person.Schedule 4 of the GAA Act defines capacity, as
Capacity for a person for a matter, means the person is capable of
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.S 15 Appropriateness considerations
(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.
(3) Also, the fact a person may be a beneficiary of the adult's estate on the adult's death does not, of itself, mean the adult's and person's interests are likely to conflict.
(4) In considering the person's appropriateness and competence, the tribunal must have regard to the following”
(a) the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;
(b) the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;
(c) if the proposed appointment is of an administrator and the person is an individual”
(i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and
(ii) the nature and circumstances of a proposed, current or previous arrangement with the person's creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and
(iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
(5) In this section”
attorney means”
(a) an attorney under a power of attorney; or
(b) an attorney under an advance health directive or similar document under the law of another jurisdiction.
power of attorney means”
(a) a general power of attorney made under the Powers of Attorney Act 1998; or
(b) an enduring power of attorney; or
(c) a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or
(d) a similar document under the law of another jurisdiction.
[14] The General Principles to be applied at Schedule 1 of the GAA Act are those articulated at Schedule 1 of the Powers of Attorney Act 1998 outlined above.
CAPACITY
[15] TBG was present at the hearing and was questioned briefly by the Tribunal. He had significant difficulty hearing the proceeding and did not engage of his own initiative. He indicated that he did not understand the nature or purpose of the proceeding. For the purpose of clarity, TBG shall be referred to hereafter as “the adult”. Those active parties present agreed that TBG had significant difficulty with his memory.
[16] Psycho-geriatrician, Dr Penny King in correspondence to the adult’s GP on 16/7/09 noted that the adult had a moderate cognitive impairment and considered that Alzheimer’s disease was present with cerebrovascular disease. In her correspondence dated 20 April 2011 to the Adult Guardian during their investigation, she noted that he had not been compliant with memory enhancing medication and noted that he presented as vulnerable. On 19 April 2011 he communicated to her a desire to live with his wife. She noted he had little ability to explain his financial demands or funds. She noted he was “vulnerable in terms of capacity domains that require higher level of cognitive functioning such as finances and establishing legal documents. There is considerable conflict surrounding him that is an influence.” She noted organisational problems related to his cognitive impairment affected his compliance with medications. Her correspondence noted that Mrs JJT attended with the adult on 19 April 2011. In her report she notes that the adult’s wife informed her of concerns about finances in 2009.
[17] On 13 April 20011 Dr Vidgen provided an open letter stating that he did not consider the adult is “capable of understanding the ramifications of any Court Order”. This is understood to be a reference to the domestic violence order served at the nursing home on or about 4 April 2011. The protection order was made by the Southport Magistrates Court on 7 March 2011.
[18] In a report to the Tribunal dated 30 June 2011, Dr Vidgen, GP indicated that the adult had a severe and progressive cognitive impairment from his Alzheimer’s disease originating in 2008. In his view he was not capable of executing an enduring power of attorney. He considered that the adult lacked the capacity to understand the impact of his decisions relating to finances, or make justifiable accommodation choices. He also noted that there was significant attempt to influence the adult’s decision making by family members and that conflict between his wife and numerous family members seemed to be at the adult’s expense. He considered the adult could not make complex decisions about health care or personal matters, but could cope with simple things such as what he would like to do for the day. Dr Vidgen stated it was unknown whether the adult had the capacity to execute an EPA in December 2010, but doubted the situation would have been markedly different from the current.
[19] The medical evidence clearly indicates that the adult does not have the capacity for decisions regarding personal or financial matters or to make an Enduring Power of Attorney as at 30 June 2011. Earlier reports of Dr King indicate that this condition has been present since 2008, and he has had a moderate cognitive impairment in 2009 as a result of his diagnosis of Alzheimer’s disease.
[20] The presumption of capacity at the date of hearing is rebutted in personal and financial matters.
ENDURING POWER OF ATTORNEY – DATED 21 DECEMBER 2010
[21] The applications of 30 June 2011 and 14 July 2011 raised concerns about the appropriateness of the attorney’s actions under the Enduring Power of Attorney of 21 December 2010. The applicants provided medical material from Dr Ashok Chauhan, dated 16 December 2010, which indicated that the adult had a diagnosis of Alzheimer’s disease which had been reported by the wife to have been worsening.
[22] Copies of email material provided to the Tribunal raised concerns that substantial unaccounted funds had been withdrawn from the adult’s account since the attorney’s appointment on 21 December 2010. At the hearing the Tribunal questioned Ms JAT about withdrawals made from two Suncorp Accounts. JAT provided receipts in relation to each of these withdrawals, with the exception of two withdrawals, on 19 April 2011, and 23 March 2011. The receipts provided are for legal fees debt collection, telephone bills, and the Tribunal is satisfied that these expenses were incurred as a result of her duty as attorney.
[23] She explained that the bank cheque made out to her name of 19 April 2011 in the amount of $6,000 was a transfer of funds which she redeposited into the term account the following day. The Suncorp account notes a deposit in this same amount on 20 April 2004.
[24] Ms JAT advised the Tribunal that on 23 March 2011 she withdrew $5,000 from the adult’s account in order to protect his funds from withdrawal by his recent ex wife. She advised that $2,000 of this was used to pay his rates water and phone bills, and the balance of $3,000 was held in her bank account on his behalf. She indicated that she does not touch these funds.
[25] The Tribunal was concerned that the mixing of the adult’s funds by the attorney on 23 March 2011 and 14 April 2011 was in breach of obligations under section 86 of the Powers of Attorney Act 1998.
[26] The Tribunal did not consider that there was any suspicious motive in this regard, but the attorney appeared to act without knowledge of these obligations under the Powers of Attorney Act 1998. Irrespective of this, the obligation upon attorneys not to mix funds is strict.
[27] The applicants raised concerns at the hearing and in a bulk of written material forwarded to the Tribunal that the attorney had removed the adult from his home and not advised relevant family of his whereabouts. They were also concerned that their contact with the adult at his residence at the nursing home where he was eventually relocated was restricted.
[28] Ms JAT relayed the circumstances around the adult’s relocation from the former matrimonial home. She stated that she had been approached by the adult seeking support and accommodation following the breakdown of the relationship with JJT. She advised that during the time he was staying with her he was served with an application for a Protection Order naming JJT as the aggrieved, and an Initiating Application to the Family Court in relation to a property dispute. She indicated that her action was taken in this context. She indicated that she made accommodation decisions in response to his need for housing following the relationship breakdown. Her siblings were all consulted and informed and supported the decision. She indicated that there was a lengthy history of relationship problems in which the adult had sought her support and that of her siblings. She noted that there had been ongoing tensions between herself, her siblings and JJT, her step mother throughout the marriage.
[29] The Tribunal is satisfied that the attorney’s actions in relocating the adult were appropriate in the circumstances.
[30] Ms JAT advised that she was acting in her father’s best interest in protecting given the circumstances of the protection order and related conflict. She considered that she had attempted to consult with all parties in relation to the choice of accommodation, but stated that she was met with obstruction from KAT who refused to speak with her. The Tribunal notes the conflict between KAT and JAT, and JAT and JJT caused difficulties ensuring relevant people were kept informed.
[31] Whilst acting under the Enduring Power of Attorney, Ms JAT advised that she assisted the adult to negotiate a property settlement in response to the Federal Magistrates Court Initiating Application (Family Law) served upon the adult in March 2011. The matter was set down for hearing for 9 May 2011 but settled on 5 May 2011. The Consent Orders note that the adult is to pay JJT a sum of $160,000 within 7 days of the order, and in the event this is unpaid, that the former matrimonial home be sold. The adult indicated at the hearing that he had no understanding of the document and no recollection of completing it. He further indicated that it was his view that he was still married to JJT. The Tribunal notes the progressive nature of his condition according to Dr Vidgen’s report.
[32] The Minutes of Consent attached to the Order are signed by the adult, not the attorney acting on the adult’s behalf. It is understood that the attorney was managing the day to day financial affairs of the adult over this time, and assisted the adult to negotiate the agreement by liaising with solicitors together with him.
[33] Correspondence dated 6 July 2011 to the Tribunal from the adult’s solicitors stated that they had met with him on 10 January 2011 and considered that he had the capacity to instruct them in his family law matter. The Minutes of Consent were executed several months after this assessment was made on 5 May 2011 and witnessed by a Justice of the Peace, rather than the solicitor. Ms JAT advised the Tribunal that this was a matter of convenience and the solicitor had been involved in the negotiations. However, it is not apparent that solicitor had sighted the adult since January and it would appear from Dr King and Dr Vidgen that there has been a significant decline apparent in April and June 2011, affecting his ability to manage complex documents. Although he has had the support of his attorney throughout the transactions, they remain executed in his own name. This raises issues in relation to the attorney’s diligence, under section 66 of the Powers of Attorney Act 1998, where she was acting on the adult’s behalf in less complex transactions on the grounds of his incapacity, but was not the substitute decision maker in the highly complex issue of the property settlement. The Tribunal considers that JAT was motivated at all times by her father’s best interest, but has overlooked her obligations under the Powers of Attorney Act 1998.
[34] The aforementioned solicitor’s letter also contemplates that they considered that the adult knew who was his Attorney and the power given to his Attorney to manage his affairs. The Tribunal does not find sufficient evidence to invalidate the EPA of 21 December 2010 on the grounds the adult lacked the capacity to execute the document in light of this evidence.
[35] It is apparent to the Tribunal that the extensive conflict between JAT, KAT and PAT and JJT make this EPA unworkable. All parties are significant to the adult, but intractable conflict and enmeshed social circumstances pose difficulties with meeting the General Principles under Schedule 1 of the Powers of Attorney Act 1998.
[36] The Tribunal also notes the attorney’s failure to comply with obligations under sections 86 and 66 of this Act and finds that in the overall circumstances, it is not appropriate that JAT continue to be the attorney for the adult.
[37] The Enduring Power of Attorney dated 21 December 2010 is revoked pursuant to s 116(c) of the Powers of Attorney Act 1998.
THE ENDURING POWER OF ATTORNEY OF 21 JUNE 2011
[38] This document purported to appoint KAT and PAT as attorneys for financial, personal and health matters.
[39] This document was executed in circumstances where KAT approached the adult in the nursing home with pre-prepared EPA documentation. He was accompanied by a justice of the peace who witnessed the execution.
[40] Mr KAT indicated that the suggestion to complete fresh EPA did not come from the adult, but was initiated by him in response to concerns about JAT’s actions as attorney.
[41] Under this purported EPA of 21 June 2011, the attorneys acted to remove the adult from the nursing facility in which he had been living for several months, and accommodate him at their home.
[42] This process occurred in the absence of consultation with the existing attorney who was informed after the fact. Ms JAT indicated she and her siblings were concerned that this action was distressing and confusing to the adult.
[43] The Tribunal has before it evidence of the adult’s capacity on 30 June 2011 from Dr Vidgen, referred to earlier. He had been treating the adult for six months. Dr Vidgen’s report made days after this EPA provides a very clear statement that the adult lacked the capacity to execute the EPA. On these grounds, the Tribunal declares this EPA invalid in accordance with section 113 of the Powers of Attorney Act 1998.
EPA APPOINTING JJT
[44] There is evidence to suggest that the adult appointed JJT as attorney for financial and personal matters at some time in 2008. The Tribunal has not sighted this document, nor been informed of the exact date of execution. It is understood that this document was revoked; however, questions remain around the adult’s capacity at that time to revoke such a document.
[45] Irrespective of the capacity issues, by virtue of s 53 of the Powers of Attorney Act 1999, divorce automatically revokes the enduring document. Although the parties are not formally divorced, it is not appropriate that JJT continue to act as attorney following separation and initiation of property settlement action given the apparent conflict of interest. Continuing to act while property settlement action has been initiated is a clear conflict transaction and would place JJT in breach of s 73 of the Powers of Attorney Act 1998. It is therefore not appropriate that given the change of circumstances that JJT act as attorney. In accordance with s 117, the Tribunal views her appointment as inappropriate and revokes her appointment under s 116 of the Powers of Attorney Act 1998.
[46] JJT was questioned as to her view of the status of her relationship with the adult, but did not provide the tribunal with a conclusive answer. The adult maintains regular and frequent contact with JJT, and was frequently known to visit her at her home when he was in the nursing facility.
IS THERE A NEED FOR THE APPOINTMENT OF A GUARDIAN?
[47] The enduring documents have been found unworkable, and the adult lacks capacity for personal and financial decisions.
[48] Personal decisions currently need to be made in relation to the adult’s accommodation. He was removed from the nursing facility which initially accommodated him by KAT and PAT. His children unanimously seek his return there. He is currently accommodated with his brother and sister in law on a temporary basis, but this is not supported by the children. The Tribunal finds that there are accommodation decisions to be made. Currently the adult is living in the community and there is likely to be a need for service provision, contingent upon the accommodation decision being made.
[49] The adult has a diagnosis of Alzheimer’s disease with cerebrovascular disease. There is significant conflict across the family, and given the confusion in relation to his relationship status, the statutory health attorney regime would be ineffective. There is a need for an appointment with regard to health decisions.
[50] There is a domestic violence protection order against him naming JJT as the aggrieved, and requiring him to be of good behaviour toward her and not commit domestic violence. He advised the Tribunal that he has regular contact with JJT, and considers they are still married. There may be the need for a decision with respect to contact from time to time. There is substantial material from nursing home progress notes which indicated that the adult has experienced significant distress as a result of contact with some family members. This is a matter that appears to fluctuate, but it appears that from time to time, decisions may necessary. There is a need for decisions regarding contact.
[51] The Tribunal concludes that there is a need for a Guardian in relation to accommodation, health, services and contact matters. Having regard to matters expressed at paragraphs 54 and 55 below, the Tribunal has formed the view that the Adult Guardian is the appropriate appointee in the circumstances.
IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR?
[52] Currently, decisions which need to be made relate to management of the adult’s day to day income and expenses, and preservation and investment of his savings accounts. The adult has income and expenses to be managed. There is a Court Order which requires the sale of his property and distribution of $160,000 to JJT. Action in compliance with the court order needs to be taken unless the document is invalid. This needs to be ascertained by a substitute decision maker.
[53] The report of Dr Vidgen of 13 April 2011 together with Dr King’s letter of 20 April 2011 collectively suggest that the adult’s capacity to execute the minutes of consent in the Federal Magistrates Court property settlement on 5 May 2011 cannot be assumed, such that the validity of the Consent Orders of 9 May 2011 may therefore be in doubt. There is a need for a decision in relation to this issue.
[54] This issue may be tied into matters relating to the adult’s accommodation and uncertainty around his relationship status. Any financial decision maker may need to collaborate with the guardian in relation to accommodation issues. The level of conflict with its extensive history outlined to the Tribunal suggests that no family members are likely to be impartial in the role of substitute decision maker. Both proposed appointees have declared that they comply with the requirements of s 15(4)(a)-(c), however, it is the Tribunal’s view that given the conflict between the family members and lack of clarity around the adult’s relationship status, both proposed private appointees would have difficulty in applying Principle 8 of the General Principles.
[55] Having regard to this and the s 15 Guardianship and Administration Act 2000 considerations, the Tribunal has formed the view that neither applicant for appointment is appropriate. As such an independent appointee who can consult impartially with all the relevant parties would be the appropriate appointee in the circumstances.
[56] The Tribunal considers there is a need for decisions in relation to financial matters.
[57] The Tribunal considers that The Public Trustee of Queensland is the appropriate appointee.
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