VJ
[2017] QCAT 259
•13 July 2017
CITATION: | VJ [2017] QCAT 259 |
PARTIES: | VJ |
APPLICATION NUMBER: | GAA6376-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Guthrie |
DELIVERED ON: | 13 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | ADMINISTRATION 1. The Public Trustee of Queensland is appointed administrator for VJ for all financial matters. 2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 3. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. NOTICE OF INTEREST IN LAND 4. Before 21 July 2017 the administrator must: a. Record the appointment as administrator on any property registered in the adult’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. b. Provide confirmation to the Tribunal that this has been completed by providing: i. A copy of the title search conducted identifying the adult’s property; and ii. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult. c. If no property is held, a Record of a search of the Land Registry from the Registrar of Titles confirming no property is held. 5. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property, the administrator must within fourteen (14) days of such changes: a. Give a copy of this order to the Registrar of Titles; and b. Give a notice to the Registrar about the changes or the adult’s interest in another property. ENDURING POWERS OF ATTORNEY 6. The following enduring powers of attorney for VJ are overtaken by the making of this appointment and, in accordance with section 22(2) of the Act, can no longer be acted upon to the extent that this appointment has been made: a. The enduring power of attorney dated 9 June 2017 appointing VJM and GKG successively as attorneys for financial, personal and health matters. b. The enduring power of attorney dated 19 January 2015 appointing VRS and DMG severally as attorneys for financial, personal and health matters. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult had appointed her son and daughter-in-law as attorneys severally for financial and personal/health matters – where adult resides in an aged care facility – where adult shares joint bank account with her husband – where there is a history of conflict between the adult’s sons – where adult has executed another enduring power of attorney appointing her husband and other son successively – where interim appointment sought – whether the adult was at an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 12, s 129 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
VJ resides in an aged care facility with her husband, VJM. The Tribunal understands that they have joint finances. On 19 January 2015, VJ appointed VS and DMG, her son and daughter-in-law, as her attorneys severally for financial and personal/health matters. The power for her attorneys for financial matters was to begin immediately. On 22 October 2015, VS was appointed by this Tribunal as administrator for VJM for all financial matters.
On 5 June 2017, VJ’s other son, GKG, filed in the Tribunal an application for the appointment of a guardian and an application for the appointment of an administrator for VJ. He proposed he be appointed. In the substantive applications filed by GKG, concerns were raised about his brother and then appointed attorney for VJ, VS, spending VJ’s money on a property to be purchased beside the property owned by VS. GKG filed similar applications in relation to VJM.
Such appointments are made after a hearing has been held and the Tribunal is satisfied that the factors set out in s 12 of the Guardianship and Administration Act 2000 (Qld) (GAA) have been satisfied. Those factors require the Tribunal to be satisfied that the adult in question has impaired decision-making capacity for the matter, that there are decisions that need to be made, and that appointing a decision-maker is necessary to give adequate support to the adult in the decision-making process. In this case, an enduring power of attorney had been executed so any appointment of an administrator or guardian would require the overtaking of the enduring power of attorney or some other order by the Tribunal to prevent it being acted upon.
An interim application filed at the same time by GKG was dismissed by the Tribunal on 13 June 2017.
On 16 June 2017, DMG applied for an interim order stating that an unknown person had attended at the Bendigo Bank branch at the Gold Coast and had the account of VJ and VM changed. The attorneys, she claimed, were no longer able to access the account which they had been able to do for 19 months. They were therefore concerned that VJ’s finances were at risk.
Appointments of decision-makers can be made prior to a determination being made on the substantive applications if the Tribunal is satisfied that the requirements of s 129 of the GAA are established. That section provides that where there is an immediate risk of harm to the health or welfare of the adult, an appointment can be made for up to three months before a hearing of the applications are heard and determined. An interim order can also be made in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including s 118, the provision which sets out the requirements for advising persons concerned in the proceeding of the hearing.
The Tribunal became aware that VJ had executed another enduring power of attorney on 9 June 2017 by which she appointed VJM as her attorney and, in the event that VJM was unable to act, her son, GKG, successively as her attorneys for financial and personal/health matters with the power of the attorneys for financial matters to begin immediately. The enduring power of attorney also permitted conflict transactions in relation to death benefit nominations and the self-managed superannuation fund.
The Tribunal has a “Report by medical and related health professionals” completed by general practitioner, Dr Robert Mortimore. Dr Mortimore states that he has known VJ for two years and that he last saw her on 9 June 2017, the date that the second enduring power of attorney was completed. Dr Mortimore reports that cognitive assessments of VJ have been undertaken. He has supplied the psychogeriatric assessment scales cognitive impairment PAS results, where it is recorded that a PAS score of three was achieved and the Cornell, zero.
Dr Mortimore also states that VJ has the ability to understand and act on information relevant for making decisions in relation to personal health care matters that are simple decisions. He states that she is able to express consistently a desire to stay in supported care. In response to the question, ‘to what extent does the adult have the ability to understand and act on information relevant for making decisions, and to what extent does the adult appreciate the consequences of the decision or lack of decision regarding financial affairs?’ he states ‘unable to do this’. He also expresses the opinion that VJ is not capable of making decisions freely and voluntarily.
Further, Dr Mortimore reports that VJ has mild early dementia. In section 8.2 of the report, which deals with the ability of a person to understand relevant matters for the execution of an enduring power of attorney, Dr Mortimore has ticked the box ‘no’ in relation to the questions, ‘do you consider that the adult understands when the attorney’s power begins?’ and ‘the adult is able to revoke the enduring power of attorney providing they have capacity to do so’. He indicated that this could vary from day to day. He expressed the opinion that VJ can understand and make her own decisions about simple personal/health care matters, complex and simple lifestyle accommodation choices, and only simple financial affairs decisions.
It is clear there is some conflict between VJ’s children.
Section 129 of the GAA applies if the Tribunal is satisfied on reasonable grounds there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by the adult.
The Tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including s 118.[1] An interim order has the effect for the period specified in the order. The maximum period that may be specified in an interim order is three months.[2]
[1]GAA, s 129(2).
[2]Ibid, s 129(4), s 129(5). An interim order may be renewed but only if the Tribunal is satisfied there are exceptional circumstances justifying the renewal: s 129(6).
The Tribunal is satisfied that there are reasonable grounds on which it is can be satisfied that there is an immediate risk of harm to VJ’s finances. The Public Trustee of Queensland should be appointed on an interim basis pending the hearing of the substantive applications before the Tribunal filed by GKG. The Tribunal has reached those conclusions taking into account the timing of the most recent enduring power of attorney executed by the VJ. The Tribunal also notes that the enduring power of attorney authorises conflict transactions in relation to particular matters. The report of Dr Mortimore expresses opinions about VJ having impaired capacity for making financial decisions and for making an enduring power of attorney and is dated the same date as the enduring power of attorney appointing VJM and GKG successively as her attorneys was made. At the time of execution of that enduring power of attorney document, another enduring power of attorney appointing VS and DMG was being acted upon. It does not appear that any notice was given to VS that another enduring power of attorney had been executed. It does not appear that VS and DMG were informed of the change in circumstances that prevented him accessing his mother and father’s accounts. The level of conflict between the family members, particularly GKG and VS, supports the conclusion that the appointment of the PTQ as administrator on an interim basis is appropriate.
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