VJM
[2017] QCAT 258
•23 June 2017
CITATION: | VJM [2017] QCAT 258 |
PARTIES: | VJM |
APPLICATION NUMBER: | GAA6459-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Guthrie |
DELIVERED ON: | 23 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | ADMINISTRATION 1. VS is suspended as administrator for VJM for all financial matters under section 155 of the Guardianship and Administration Act 2000 (Qld). 2. The Public Trustee of Queensland is appointed administrator for VJM for all financial matters. 3. The Tribunal directs The Public Trustee of Queensland to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 4. This administration appointment of The Public Trustee of Queensland 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 5. Before 28 days of the date of order 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. 6. 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 POWER OF ATTORNEY 7. The following enduring power of attorney for VJM is 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 VJ and GKG successively as attorneys for financial, personal and health matters. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult diagnosed with dementia and has a complex medical history – where adult cannot make complex or simple decisions – where adult resides in an aged care facility – where adult shares joint bank account with his wife – where there is a history of conflict between the adult’s sons – where applicant’s brother was appointed as adult’s attorney in New South Wales – where applicant seeks to suspend administration appointment and appoint the Public Trustee of Queensland – where interim appointment sought – whether the adult was at an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 155 |
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
VJM is currently residing in an aged care facility with his wife, VJ. It is the Tribunal’s understanding that VJM’s finances are jointly held with his wife, VJ. There are applications before the Tribunal concerning VJ.
On 22 October 2015, the Tribunal appointed VJM’s son, VS, as administrator for VJM for all financial matters and for a reviewable period of five years. At that time VS was also an attorney appointed under an enduring power of attorney completed by VJ.
On 25 May 2017, VJM’s other son, GKG, applied for a review of the appointment of his brother as administrator for their father, alleging that VS was not acting in their father’s best interests.
A review of the appointment of an administrator is conducted by the Tribunal under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA). At the end of a review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were made so that the Tribunal must consider the terms of s 12 of the GAA. Under s 12 of the GAA, the Tribunal must 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.
If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may continue its order or change its order, including by removing an appointee. However, the Tribunal may make an order removing an appointee only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.[1] The Tribunal will consider those matters at the hearing of the review in due course.
[1]GAA, s 31(2), (3), (4).
GKG also made an application for an interim order because he was concerned that VS intended using their parents’ funds to purchase a home near his property and move VJM and VJ from the aged care facility to the new home. The Tribunal dismissed the application for an interim order on 13 June 2017.
Subsequently, on 16 June 2017, VS applied to the Tribunal for a suspension of the Tribunal’s appointment of him as administrator pursuant to s 155 of the GAA. The basis for that application was that he had found himself unable, despite being the appointed administrator, to access his father’s bank accounts as he had previously been able to since his appointment.
The Tribunal became aware that, on 9 June 2017, VJM had executed an enduring power of attorney appointing VJ as his attorney for personal, health and financial matters, and, in the event that she became incapable of carrying out her duties as attorney, his son, GKG, as his successive attorney. The enduring power of attorney states that the powers of the attorney in relation to financial matters are to commence immediately. On 9 June 2017, VJ also executed an enduring power of attorney in similar terms, appointing VJM as her attorney and GKG as her successive attorney.
In support of his application for the review of the appointment of his brother, GKG filed a “Report by medical and related health professionals” completed by Dr Robert Mortimore. Dr Mortimore states that he has been the VJM’s general practitioner for two years and last saw him on 9 June 2017, the same date the enduring power of attorney was executed. Dr Mortimore states that the VJM has been diagnosed with dementia and had recorded a PAS score of six and a Cornell score of zero. The results of those assessments were also provided to the Tribunal.
In response to the questions in the report: 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 decision or lack of decision regarding: personal healthcare, lifestyle and accommodation choices and financial affairs?’ Dr Mortimore states that VJM was “unable to contribute”.
Dr Mortimore also indicates that VJM is not capable of making decisions freely and voluntarily. In response to the questions about whether or not VJM had the capacity to execute an enduring power of attorney, Dr Mortimore has ticked the box for “no” in response to the following questions:
Do you consider that the adult understands or understood…
·they can limit the types of decisions their attorney can make
·when the attorney’s power begins
·the attorney can make all decisions given to them in the EPA
·the adult is able to revoke the EPA provided they have the capacity to do so
·the attorney can use their power even after the adult loses capacity
·once the adult loses capacity, they are unable to oversee the use of the power.
Dr Mortimore also expressed the opinion that VJM could not understand and make his own decisions, either complex or simple of any kind.
It is of concern that the enduring power of attorney was executed with the assistance of a legal practitioner on the same date as Dr Mortimore’s report and despite the Tribunal’s order appointing VS as administrator.
Section 155 of the GAA provides that the Tribunal may suspend the operation of all or some of the powers of an administrator, relevantly in this case, if the appointee is not competent if, for example, a relevant interest of the adult has not been or is not being adequately protected.[2]
[2]GAA Act, s 155(2)(a).
Section 155(4) provides that the suspension may not be for more than three months. Section 155(6) provides that during the suspension of the operation of power of an administrator, the Public Trustee of Queensland is taken to be the administrator for the adult for the exercise of the suspended power.
It is the Tribunal’s view that, due to the enduring powers of attorney executed on 9 June 2017 by both VJM and VJ, the administrator is unable to adequately protect the financial interests of VJM. He was unable to access his father’s accounts and was informed by the bank that his mother could access the accounts at any time or change the arrangements for access.
Pending the hearing of the substantive application, it is appropriate for the suspension order to be made and for the Public Trustee of Queensland to be appointed as administrator to manage VJM’s financial affairs.
The making of the suspension order by the Tribunal was effectively at the request of VS. It should not be inferred by the making of this order that the Tribunal considers or has made any findings that VS, as the appointed administrator, neglected his duties or abused his powers or otherwise contravened the GAA.
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