VMH
[2017] QCAT 194
•28 April 2017
CITATION: | VMH [2017] QCAT 194 |
PARTIES: | VMH |
APPLICATION NUMBER: | GAA1462-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 28 April 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Joachim |
DELIVERED ON: | 28 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | ADMINISTRATION 1. The appointment of The Public Trustee of Queensland as administrator for VMH for all financial matters is continued. 2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 4. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. DIRECTIONS 5. Within three (3) months, the Public Trustee of Queensland is to provide written submissions to the Tribunal, EH and NH on whether the former attorney EH is in breach of section 66 of the Powers of Attorney Act 1998 (Qld) and, if so, what if any action should be taken. 6. By 4.00pm, 6 October 2017, EH and NH are to provide the Tribunal, the Public Trustee of Queensland and each other with their responses to the Public Trustee of Queensland’s submissions 7. Unless any party requests an oral hearing, the Tribunal will decide any further action in this matter on the basis of written submissions. Not before 6 November 2017. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where review of Public Trustee of Queensland’s appointment is being conducted – where Public Trustee of Queensland has investigated actions of former attorney for financial matters – whether need exists for ongoing appointment – whether former attorney has breached s 66 of the Powers of Attorney Act 1998 (Qld) Guardianship and Administration Act 2000 (Qld), s 12, s 31 |
APPEARANCES: | |
FORMER ATTORNEY: | Represented herself |
ADMINISTRATOR: | Public Trustee of Queensland represented by Mr S. Taylor |
REASONS FOR DECISION
This matter concerns a review of the appointment of the Public Trustee of Queensland as administrator for VMH. VMH has been the subject of a number of orders from QCAT.
The matter first came to QCAT’s attention as a result of an investigation by the Public Guardian into the actions of the then Attorney of VMH.
VMH had appointed her daughter, EH under an enduring power of attorney dated 24 February 2011, with the power for financial matters to begin when VMH lost capacity as certified by a medical practitioner.
Following the Public Guardian’s investigation into the actions of EH the Tribunal subsequently appointed the Public Trustee of Queensland as administrator for all financial matters and appointed NH, another daughter, as a guardian to make decisions about health care.
These appointments took place on 31 July 2015. The Tribunal at that time issued directions to the Public Trustee in respect of his obtaining further information regarding the actions of the former attorney and any actions proposed to be taken as a result of those further investigations.
The Public Guardian’s report had indicated that VMH’s property had been sold and in excess of $130,000 was unaccounted for. There were unpaid nursing home fees. The Public Guardian had been able to obtain certain information regarding what had happened to the funds from the proceeds of the sale of VMH’s property, however they and the Public Trustee’s enquiries had stalled as a result of their being unable to obtain further information from EH. EH was to attend the Public Trustee to provide further particulars but failed to attend the appointment and failed to set a subsequent meeting date. As a result the Tribunal issued a notice to attend to EH on 9 February 2017. VMH attended the hearing in April. The information she provided will be described later in these reasons.
The review of the Public Trustee’s appointment takes place under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). At that end of the review the Tribunal must revoke the appointment unless satisfied it would make an appointment if a new application were to be made. This requires the Tribunal to consider s 12 of the GAA Act.
In relation to capacity, the evidence is very clear and uncontested. VMH has dementia and is unable to understand information on which to base decisions about her finances. She does not handle money, and all of her finances are managed by the Public Trustee of Queensland. She has severe cognitive impairment, confusion and short term memory loss. She has resided in residential aged care since November 2012. I am satisfied that the presumption of capacity to which adults are entitled is rebutted in relation to financial matters.
Is there a need to appoint an Administrator?
The Enduring Power of Attorney executed in February 2011 was revoked by the Tribunal at a hearing in July 2015.
The Public Trustee currently manage VMH’s Veterans Affairs Pension and pay all of her expenses. The bulk of her expenses are Nursing Home Fees and chemist accounts.
I am satisfied that there is a need for decisions about VMH financial matters and without an appointment her needs will not be adequately met and her interests not adequately protected.
The Public Trustee in addition to the functions listed above also manage VMH’s savings which is in the vicinity of $8,340.00 and a debt to the Official Solicitor of over $22,000.00.
The Public Trustee have essentially completed all of their enquiries as described below. I have decided to continue the appointment of the Public Trustee as I will require from them a submission in respect of whether EH has breached s 66 of the Powers of Attorney Act 1998 (Qld) (Powers of Attorney Act). Section 66 of the Powers of Attorney Act requires an attorney to act honestly and with reasonable diligence in managing a principal’s finances.
The history of the sale of the house
VMH bought a Merrimac property as a principal place of residence in May 1997 for $155,000. It was subsequently sold on 11 January 2013 for $330,000. The contract and the transfer documents were signed by the attorney EH.
Some years earlier VMH, whilst she had capacity, refinanced the property and used the funds for various improvements to the property as well as other unknown expenditures.
EH advised that by 2011 her mother was not keeping the house properly, she was wandering the streets, she was driving but hitting vehicles, she was unable to look after herself and her memory was fluctuating. At that time EH was living with her mother for most of the time.
By August 2012, Dr Pang advised that VMH was unable to make any decisions for herself. The contract for the house was dated 11 June 2013, some 7 months after VMH was placed in aged care.
EH advised that the reason the house was sold was that it was too much for her mother and ACAT had advised her that her mother needed to be placed in care.
EH advised that she did not want the enduring power of attorney because she was illiterate. Nevertheless she accepted it. She advised that she had to clean out the house. She recalls seeing a settlement statement of 12 August 2013 in which the refinance company received $184,901 and VMH $128,923. She recalls seeing the cheque by letter of 12 August 2013 coming in the mail. She recalls putting the cheque into a joint account in the name of her mother and herself with Greater Union. She held two accounts with her mother for the management of these funds. The accounts were opened on 13 August 2013 and by 31 December 2013 there was a balance of $13.44.
The Public Trustee enquiries led to the table at Annexure A being produced for the Tribunal.
There is in my view prima facie evidence that EH has not acted appropriately as attorney, following various admissions she made at the hearing in April. These include that she couldn’t recall the reasons for ATM cash withdrawals of up to $35,650.00. She advised that she spent these funds for herself and could not recall spending any of this money on her mother. The various transactions with cash converters totalling $8,781.00 were all for herself. A number of significant transactions and other withdrawals totalling over $56,000.00 were all for her own benefit with nothing for the adult. She could not explain why the nursing home fees were in arrears of over $9,000.00. There were also transactions at Bunnings of $630.00. She stated that she didn’t care about the money and that she just wasted it.
EH explained that before her mother became demented she helped her mother all the time and her siblings did not help at all. She stated that her mother wanted to leave her some money. EH told her mother she didn’t want any. In fact, she stated her mother said she was going to leave it all to her. When questioned what this meant EH said her mother wanted her to have all her money now.
EH advised that she used some of the money to provide for the purchase of vehicles for herself and family members.
She said her mother didn’t want to stay at the nursing home and that it was the hardest thing she had ever done putting her mother in the nursing home. Her sisters did not help at all at that time. She said her mother told her she didn’t want them to have any of her money. She stated that her mother had said the other two have never helped me and I want you to have it all. EH said she didn’t want it because it will cause trouble, but when she had to place her mother in the nursing home without any assistance from her sisters she decided that she would take the money. She further stated that her mother would have left her money to various animal causes.
The Tribunal has been advised by the Public Trustee that they hold a will for VMH. There is no provision in that will for any benefit to go to any charity associated with animals. All of VMH’s estate is to be distributed to family members according to that will.
The Tribunal decided that the Public Trustee should provide submissions to the tribunal and to the active parties within three months as to whether EH has breached s 66 of the Powers of Attorney Act with a response from the active parties to be provided within two months of receipt of the Public Trustee’ submissions. The Tribunal will then decide whether this matter should be referred to Crown Law for a possible prosecution against EH under s 66 of the Powers of Attorney Act. That section provides for maximum penalty 200 penalty units. One penalty unit is currently worth $120.00.
Annexure A
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