WAJ - [2015] QCAT 353

CITATION:

WAJ [2015] QCAT 353

PARTIES:	WAJ
APPLICATION NUMBER:	GAA1876-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

26 May 2015

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

DELIVERED ON:

13 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. WAJ does not have capacity for any financial matters.

2. The following revocation of Enduring Powers of Attorney by WAJ is declared invalid pursuant to S 113(2) of the Powers of Attorney Act 1998 and S 82(2) of the Guardianship and Administration Act 2000:

(a) The revocation dated 23 January 2015, removing BAW as attorney for financial, personal and health matters.

CATCHWORDS:

3. APPLICATION FOR A DECLARATION ABOUT CAPACITY——where an enduring power of attorney exist; where the attorney’s actions have been challenged; where the adult was found not to have capacity for financial matters or to revoke an enduring power of attorney make a gift to the attorney; S 113(2) of the Powers of Attorney Act 1998 and S 82(2) of the Guardianship and Administration Act 2000

APPEARANCES:

The Adult
The Adult’s attorney
Family members

REPRESENTATION:
Two representatives of WAJ
A representative of the Public Trustee of Queensland

REASONS FOR DECISION

In July 2014, the Public Guardian received a referral containing allegations that an attorney had breached the Powers of Attorney Act 1998 by undertaking transactions and by acting in other ways that were not in the interest of the principal. The attorney was BAW; the principal was his uncle, WAJ who, at that time was 93 years old.
The Public Guardian investigated three allegations, that: (1) the attorney withdrew a sum of money from an account belonging to WAJ and placed these funds in one of the attorney’s; (2) the attorney restricted access of WAJ to his wife; and (3) the attorney allowed WAJ to execute a Will and Enduring Power of Attorney knowing that his capacity to do so was unclear.
Following its investigation and the production of a report, the Public Guardian found that only Allegation 1 was substantiated, namely, that an amount of $133,481 was withdrawn from WAJ’s account (following the maturity of a term deposit) and placed in a third party account. The other two allegations could not be substantiated.
By way of background to this matter, BAW was appointed by WAJ as his attorney on 9 October 2013 for person/health and financial matters, the latter power to begin immediately. In November 2013, WAJ’s wife made applications to the Tribunal for decisions relating to WAJ’s decision-making capacity, the enduring power of attorney, and for the appointment of an administrator. These applications were heard on 6 February 2014. The Tribunal decided that WAJ had capacity to make simple financial decisions and noted the existence of the powers given to BAW under a valid Enduring Power of Attorney.
As a consequence of the Public Guardian’s investigation, the Public Guardian lodged an application with the Tribunal seeking a declaration about WAJ’s capacity. The application states that WAJ was taken by his wife and family members to a solicitor and a revocation of the powers given to BAW was prepared. The Public Guardian was of the view that WAJ did not have capacity to execute that revocation.
During the collection of evidence, various arguments and counter-arguments were presented in regard to this matter in writing and orally. Views were also expressed and explanations given for the actions of the attorney and WAJ’s family in regard to WAJ’s financial affairs. The primary issue under consideration in this hearing, however, is WAJ’s capacity to execute a revocation of an enduring power of attorney. The Tribunal concluded the hearing and reserved the decision but parties were provided with an opportunity to make further submissions within 21 days. Parties attending the hearing submitted that the matter could be finalised without further oral evidence being taken, that is, on the basis of information provided to the Tribunal to that point.
Did WAJ have capacity to execute a revocation of an enduring power of attorney?
Health professional reports have been provided to the Tribunal dating back to early 2012. WAJ’s general practitioner of about four years when he completed his report on 1 November 2013 gave a diagnosis of mixed vascular/Alzheimer’s dementia. Mini Mental State Examinations results were reported from 2012 and 2013, those being within the range of 17/30 to 22/30. The doctor was of the opinion that WAJ could make complex decisions about his personal affairs but only simple decisions about financial matters. A later report by the doctor in mid-2014 included the opinion that WAJ was then able to make simple decisions only in all areas.
A report is also available from another general practitioner who on 16 October 2014 had known WAJ for about 12 months. The diagnosis of vascular/Alzheimer’s dementia was repeated.
A further medical practitioner, Dr N, provided a report in January 2015. This report came as a result of a precautionary request by WAJ’s solicitor prior to the preparation of a Will. Dr N reaffirmed the opinion that WAJ was experiencing mixed vascular/Alzheimer’s dementia but was of the view that he had testamentary capacity. Dr N attended part of the hearing by telephone. He gave oral evidence that the intention of the consultation was to confirm that WAJ had capacity to make a Will. He stated that WAJ appeared to understand what his assets were and who he wanted to benefit from his Will despite showing some memory difficulties at the time. Dr N confirmed that there was no discussion during the consultation about enduring powers of attorney and that his assessment of WAJ’s capacity was limited to making a Will.
Dr N again consulted with WAJ in March 2015. This consultation was requested by WAJ’s solicitor. In her 25 May 2015 submission, She writes, “At a later date, I informed [WAJ] about the QCAT application on foot, and requested that he again attend to his doctor to get a more thorough and in depth doctor’s certificate and provided to him a copy of the ‘Guideline of Assessing Conpetence [sic] for Granting an Enduring Power of Attorney’ and asked that he give the document to his doctor to read.” It does not appear that Dr N had the benefit of this document.
Dr N gave evidence that he did not specifically interrogate WAJ about the demands required of a principal giving enduring powers but he expressed the view that WAJ would likely understand what he was doing. At the time of the consultation Dr N was given a hand-written letter from WAJ expressing his concern over money allegedly being taken from his account by his attorney and his wish to appoint his wife as attorney, but the doctor did not indicate that he explored this situation. It does not appear, therefore, that Dr N’s assessment did not take into consideration WAJ’s understanding of what he intended to do or on what information he was basing that decision.
The solicitor prepared WAJ’s Will and the revocation of the Enduring Power of Attorney. She outlined the process she undertook in her 25 May 2015 submission to the Tribunal. Therein, she reports asking WAJ a number of background questions (e.g., age, residential address), but as he appeared to be uncomfortable in the one-to-one situation, he requested the presence of his wife and son-in-law who then joined the consultation. It is not clear from the written submission if she sought WAJ’s explanation of the nature and consequences of revoking the enduring powers given. This was explored during the taking of oral evidence.
The solicitor stated that she explained the Enduring Power of Attorney and the Will to WAJ and that she had used a NSW documents that describes Enduring Powers of Attorney (the document to which reference is made in (13) but she did not say that she sought WAJ’s full understanding of the powers given, or intended to be taken away, or their consequences. She was also not aware of the allegations of inappropriate financial dealings at the time of preparing the revocation. Her questioning suggests that WAJ had a limited understanding of enduring powers, namely, giving someone the legal rights to do things on his behalf. WAJ also was not aware that the powers given to his nephew could be acted upon immediately.
The Public Guardian’s report addresses WAJ’s decision-making capacity. Therein, WAJ’s wife is reported as making several submission to the investigation asserting her husband’s lack of capacity to execute enduring documents due to Alzheimer’s disease or dementia. This diagnosis was noted in her original application to the Tribunal, received in November 2013, and also in correspondence dated, for example, 7 February 2014, 20 July 2014, and 23 September 2014. In a letter addressed to the Tribunal, the wife writes, “[The attorney] has been utilizing his power of attorney in a [sic] unconscionable manner over his uncle, by taking advantage of a person who has Alzheimers [sic] disease and limited capacity …” and “P.S. Can a person with Alzheimers [sic] legally appoint a power of attorney?”
In his evidence, BAW also drew attention to the wife’s vehement assertion that her husband did not have capacity to make an enduring power of attorney.
BAW’s gave evidence that he had lengthy conversations with his uncle about alleged misappropriation of his money by the wife and his intention to secure his uncle’s assets by transferring the large amount into an account that was not accessible to his wife, from whom WAJ was separated. As a consequence of the Public Guardian’s investigation, the attorney transferred a large amount of money held in an account into one in WAJ’s name, where it remains.
Subsequent to the hearing, submissions were received from WAJ and his wife, alone and separately. These documents allege BAW’s misappropriation of funds despite explanations provided by BAW and the representative of the Public Guardian indicating that WAJ’s assets remain safe and in his name.
BAW also lodged a further submission. This document largely reviews WAJ’s personal history, his frugal lifestyle, and reiterates the belief that the wife and her family had, and continue to have designs on WAJ’s assets.
The Public Guardian provided copies of medical consultation notes about general health matters, and correspondence from the wife, the majority of which is already known to the Tribunal.
WAJ’s counsel, who represented him at the hearing, outlines the outcome of a previous Tribunal hearing, presents a view that WAJ’s interactions at the present hearing would not support a position that he has capacity, and outlines medical evidence about WAJ’s capacity since 2012. Counsel also states that if the Tribunal is not satisfied that WAJ had capacity to revoke the enduring power of attorney, then it would be appropriate to appoint the Public Trustee of Queensland, due to suspicion and the breakdown of communication between the parties.
In coming to a decision in this matter, the Tribunal has taken into consideration the medical evidence provided by the three doctors. The first wrote that consultations with WAJ did not deal with complex decisions, including financial matters, so a sound assessment could not be made. At the time of writing (16 October 2014), the second indicated that WAJ had capacity for simple decisions in personal matters, there was a lack of clarity about financial decisions, but no capacity to execute an Enduring Power of Attorney. The latter view is contrary to that given in evidence by Dr N.
WAJ’s wife has asserted in many documents that her husband has a dementing conditions and did not have capacity to give enduring powers to BAW in 2013. Given these very firm positions, it is difficult to understand why she would then argue that he had the capacity to understand the complexities of the revoking of those powers some two years later.
It is apparent from the various submissions signed by WAJ written before and after the present hearing concerning his distrust of BAW that he is convinced that his attorney’s has misappropriated his money. It is not unreasonable that he might wish to revoke those powers. However, it does not appear as though he understands the reasons for the attorney’s actions in attempting to ensure that WAJ was not subject to exploitation, and that his assets are safe.
Evidence taken by the Tribunal during the hearing suggests that WAJ no longer is aware of his financial circumstances or the manner in which his financial affairs are being managed. WAJ’s legal representative for the hearing, Ms Harding, conceded in her submission of 15 June 2015, that the discussion WAJ had with the presiding member would “lend support to a conclusion that [WAJ] did not have capacity to make decision in relation to complex financial matters on the day of the hearing.” He could not recall making the Enduring Power of Attorney or revoking those powers in January 2015, or recall the circumstances of the making of an Enduring Power of Attorney in October 2013.
The Tribunal concurs with Counsel’s views and finds that WAJ does not have capacity of any financial matter at this time.
The Tribunal does not have sufficient evidence before it to sustain a position that WAJ had the capacity in January 2015 to revoke the Enduring Power of Attorney given to BAW on 9 October 2013. The Tribunal, therefore, declares the revocation invalid.
Counsel seeks the appointment of an independent financial decision maker. Such an appointment is outside of the consideration of the present matter and would require an application to the Tribunal.