VK
[2012] QCAT 117
•22 March 2012
| CITATION: | VK [2012] QCAT 117 | |
| PARTIES: | VK | |
| APPLICATION NUMBER: | GAA8122-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 31 January and 7 and 23 March 2012 |
| HEARD AT: | On the papers |
| DECISION OF: | Louise McDonald, Member |
| DELIVERED ON: | 22 March 2012 |
| DELIVERED AT: | Maroochydore |
ORDERS MADE: | 1. The following Enduring Power of Attorney is overtaken: (a) the Enduring Power of Attorney dated 14 February 2002 appointing CK as attorney for financial personal and health matters. 2. CK is appointed as administrator for all financial matters. 3. The administrator is directed to provide a financial management plan to the Tribunal within four months. 4. Unless the tribunal orders otherwise, this appointment remains current for 1 year. 5. The Tribunal directs that the financial management plan and accounts should make reference to actions taken to facilitate the sale of the adult’s real property. 5. The Tribunal directs the administrators to provide accounts to the Tribunal six (6) weeks prior to the anniversary of this appointment. |
| CATCHWORDS: | Obligation of attorney to act diligently Powers of Attorney Act1998, s 66 |
APPEARANCES:
CK, IC, KS
REASONS FOR DECISION
An application for the appointment of an Administrator was filed in the tribunal on 6 October 2011 proposing the appointment of the Public Trustee as administrator for VK (hereafter “the adult”). The application raised concerns about financial exploitation of the adult by the attorney, and in particular noted that there was significant debt outstanding to the nursing home where the adult resides.
CK was appointed as attorney for personal and financial matters for his mother, the adult on 14 February 2002.
The application for the appointment of an Administrator was partly heard on 31 January 2012 in Maroochydore, and adjourned to a hearing on the papers with the direction that CK file further evidence in support of his claims that he was acting diligently, specifically, CK was directed to submit documentation to the Tribunal for further consideration. This documentation required was photographic evidence of the condition of the property to support his claims that it was not able to be tenanted without substantial outlay that the adult could not afford; receipts from the sale of the adult’s car; statement of the adult’s bank accounts for the previous 12 months.
The adjourned hearing on the papers was conducted on 7 March 2012, following the receipt of additional evidence in support of CK’s claims. The material submitted gave rise to the need for further discussion, and the matter was further adjourned to a hearing on 23 March 2012.
Adult’s Capacity
The Tribunal has jurisdiction where an adult has impaired capacity for a matter. Section 12 of the Guardianship and Administration Act2000 requires the Tribunal to be satisfied that the adult has impaired capacity before an appointment can be made.
The Tribunal heard evidence and noted the health professional report from CD, Registered Nurse at the nursing facility where the adult resides. She notes a diagnosis of cardiovascular dementia, and a history of stroke. A psycho-geriatric assessment returned a score of 16/21 indicating a moderate to sever dementia on 25 May 2010. Her report noted that the adult was unable to make decisions about personal or health matters, or manage her finances due to her dementia.
This information was endorsed by all parties present at the hearing.
The tribunal finds the adult has impaired capacity for personal and financial decisions.
Enduring Power of Attorney 14 February 2002
Section 66 of the Powers of Attorney Act1998 obliges attorneys to act honestly and with reasonable diligence. The attorney’s actions were scrutinised in light of this provision.
Evidence presented by representatives from the facility where the adult is residing raised suggestions that there may have been financial abuse by the attorney. Specifically, $22,000 in accommodation charges remained outstanding. By the final hearing, this figure was approximately $23,000.
The applicant noted that some minimal contributions to the debt had been made.
Receipts provided by the attorney note that some payments have been made on various dates which he claimed were made when the adult could afford to do so. He indicated that the adult’s tight financial position was the reason for non payment. The attorney indicated that the adult’s former residence has been for sale for several months. Further, he indicated that he had made an offer to the nursing home that they could secure the debt through a second mortgage on the property.
The attorney presented a picture of financial hardship experienced by the adult. The adult has a mortgage over the property of $33,550, at the date of the initial hearing, with monthly repayments to service this at $293. This loan has encumbered the property for more than ten years and was initiated by the adult and her husband, now deceased.
The attorney gave oral evidence that the condition of the real property meant that it could not be tenanted. A damaged pool needed extensive repair to the coping. This was too costly to repair and without repair would cause a hazard to any potential tenant. He considered that there would be a real risk of injury should it be tenanted. He indicated costs of repair were precluded because of the adult’s presently strained financial position. He had considered a reverse mortgage would overcome this but had been declined. The tribunal adjourned the proceeding, directing the submission of photographic and documentary evidence in support of claims that the property is untenantable. At the adjourned hearing on the papers, photographs submitted by the attorney were noted to reflect extensive damage to coping of the pool, and the tribunal accepts the attorney’s claims that there is real risk of injury having sighted the photographic evidence. A quote for repair of the same was submitted to accompany these photos from Mad Pool Interiors, a Master Builder, dated 30 March 2010 indicating repair of paver coping would cost $6,930. Although the quote is somewhat out of date, the Tribunal accepts that the adult’s financial position precludes this outlay. The attorney stated that he had sought a reverse mortgage to pay for these repairs, but been declined.
The house remains vacant; however, the attorney advised that the adult is applying costs to maintain the property including lawn mowing and electricity supply. Electricity supply he stated is necessary to maintain the pool to assist to effect a sale. In the adjourned hearing of 7 March 2012, he provided receipts from Jims Mowing and Noosa Pool and Spa in relation to these costs. The Tribunal accepts the attorney’s submission that these outlays are necessary to effect sale of the property.
A credit card is maintained by the attorney on the adult’s behalf. The attorney claimed it is maintained for emergencies given the adult’s strained finances. The Westpac Credit card statement for November / December 2011 was produced to the Tribunal for the hearing of 7 March 2012 reflecting activity only being the incursion of a $45 annual card fee.
The adult’s daughter KS attended the hearing by teleconference on the 31 January 2012. She indicated that she was very happy with the attorney’s activities and is distressed that the attorney has been characterised as financially abusing her mother. She indicated that the attorney and all of the family have a close relationship and consider the attorney is acting in the adult’s best interest under difficult circumstances. She confirmed that genuine efforts have been made to sell the property, but a flat real estate market has been reflected in a lack of interest. She confirmed that the property was unsafe to be tenanted and needed additional outlays for a new stove and hotplate which were not functioning.
At the hearing of 31 January 2012, the attorney advised the adult’s car is being maintained, but used only by daughters when visiting from interstate. At that hearing, he quoted a value of $100 for the vehicle, and indicated that he had plans to have this wrecked. Costs incurred in maintenance include insurance, registration, service and maintenance. By the hearing of 23 March 2012, the vehicle had been deregistered and was no longer in use. He acknowledged a wrecking value of $50. The attorney has recognised that the vehicle was a wasting asset and not a diligent use of the adult’s limited finances, and acted accordingly between the first and final hearing date.
Further, the real property has been on the market for several months without successful offer. It was listed initially at $575,000 and dropped some six months ago to $545,000. The attorney indicates that agents are suggesting the price be lowered but he is reluctant in case he does not obtain a reasonable offer. In light of the heavily strained financial position the adult is in, and in particular the debt and expense to income scenario, this may suggest that there may need to be a reconsideration of the listing price.
The tribunal is largely satisfied that the attorney’s conduct of the financial matters is reasonable, but, in light of the significant debt to the nursing home, and the shortfall between income and expenses considers that the decision making to rectify this matter has not been prudent. While there is no concern in relation to the honesty of the attorney’s action, the tribunal considers action taken to rectify the major outlay of cost to maintain the house needs to be monitored. Accordingly, the tribunal has made a short appointment for administration to facilitate this review. During this period the enduring power of attorney will be overtaken, and CK will be appointed as administrator for his mother for a 12 month period. He will be asked to provide a financial plan in four months which details his plans regarding facilitating the sale of the property.
The Tribunal may only appoint an administrator under s 12 of the Guardianship and Administration Act 2000 which provides:
12 Appointments
(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.The attorney has provided a statutory declaration as to his appropriateness for appointment in terms of the legislative criteria.
The Tribunal finds there is a need a financial decision maker where the decisions need to be made about rectifying the adult’s debt and excessive expenses in maintaining the costs of the real property. The Tribunal is satisfied that CK is the appropriate person in the circumstances, having regard to family support for his involvement and the co-operative approach he takes to consulting with family members about decisions he makes. A short appointment has been made to facilitate review of his decisions with respect to managing to the shortfall of income to expenditure. The enduring power of attorney shall be overtaken for the period of the appointment.
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