WBC
[2014] QCAT 502
•8 October 2014
| CITATION: | WBC [2014] QCAT 502 |
| PARTIES: | WBC |
| APPLICATION NUMBER: | GAA5500-14; GAA5501-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 19 September 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 8 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | GUARDIANSHIP 1. The Public Guardian is appointed as guardians for WBC for decisions about the following personal matters: (a) Accommodation; (b) With whom WBC has contact and/or visits; and (c) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for WBC for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 7. That before 19 December 2014 the administrator must: (a) Search the records of the Registrar of Titles to identify any property registered in the adult’s name; (b) Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property held by the adult is subject to this order; and (c) Give to the Tribunal: (i) A copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and (ii) A copy of the current title searches. 8. 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 9. The following Enduring Power of Attorney for WBC is overtaken by the making of these appointments and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 17 October 2009 appointing LW and ODL as attorneys for financial, personal and health matters. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – where one attorney applies to be administrator due to breakdown in relationship with co-attorney – whether breaches of Powers of Attorney Act make attorney inappropriate for appointment. Powers of Attorney Act 1998 (Qld), s 66, s 67, s 80, s 84, s 85 |
APPEARANCES and REPRESENTATION (if any):
Present at the hearing were ODL, WL and WD.
REASONS FOR DECISION
Introduction
WBC is 84 years old and until recently resided in her own home supported by her children, ODL and WL. She is currently an inpatient at Prince Charles Hospital waiting for placement in an aged care facility.
In 2009 WBC appointed her children jointly as her attorneys for financial and personal/health matters. A joint appointment requires that both attorneys must agree on all decisions.
ODL made an application to the Tribunal on 17 June 2014 to be appointed WBC’s guardian and administrator. The basis of the application was that there was conflict between herself and her co-attorney WL. She stated in the application that WBC is not mobile and relies on her to do the bulk of the shopping and pay the bills, which she has been doing for six years. That WBC signs withdrawal slips and ODL also signs them to withdraw money from Suncorp. WBC does not like leaving the house except for medical and other appointments. She acknowledged that WBC’s financial and legal decisions are currently being made by an attorney. Though there have not been any major financial and legal decisions, only grocery shopping and bill paying. ODL was concerned that WL had put a new lock on the room where WBC’s safe is kept and has not notified her or given her a key. She said that WBC could not even access the room. And that he has moved all her money from her bedroom so she only has access to a small amount of money in her purse.
In regard to health decisions ODL stated that she would be WBC’s statutory health attorney and she has always taken her to the GP, specialists, podiatry, radiology etc. appointments. That WBC is still able to express her wishes which ODL respects. ODL stated she arranged for Anglicare nurses to visit to administer medication and mobile physiotherapist to visit twice weekly when necessary.
ODL also stated in the application that WL was not a suitable person to be in charge of WBC’s affairs and that ODL wished to be able to look after WBC without being intimidated, harassed or abused by WL against whom she currently has a temporary protection order.
The legislation
Before the Tribunal can make an appointment of a guardian and/or administrator it must be satisfied of the matters set out in s 12 of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’). This requires the Tribunal to be satisfied that:
a) WBC has impaired capacity for personal decisions in regard to guardianship and financial decisions in regard to administration;
b) There is a need for a decision in relation to the matters or WBC is likely to do something in relation to the matters that involves, or is likely to involve unreasonable risk to the adult’s health welfare or property; and
c) Without an appointment her needs will not be adequately met or her interests will not be adequately protected.
If the Tribunal determines that WBC does have impaired capacity and there is a need for decisions it will have regard to the current enduring power of attorney before making an appointment. It may be that her needs could be met under that arrangement. If the Tribunal does appoint a guardian or administrator then the attorneys may exercise power only to the extent authorised by the Tribunal.[1] When considering the appointment of decision-makers the Tribunal has regard to the requirements as to the competence and appropriateness of the proposed appointees set out in the GA Act.[2]
[1]GA Act s 22.
[2]GA Act s 14 and s 15.
Capacity
WBC is profoundly deaf and as a result has some communication difficulties. More recently she has had a diagnosis of dementia since 1 January 2009 which has affected her cognition. Dr Catherine Yelland. Geriatrician advised that WBC ‘can make simple decisions, with some help, because of communication problems. Would need assistance with complex decisions’. In recent correspondence to the Suncorp Bank dated 6 July 2014 Dr Yelland stated
I consider that WBC does fit the definition of dementia, in that she has cognitive impairment which is impacting on her function. Mini Mental State examination score of 20/30 compared with 23 when I saw her in December.
Wendy Gunn, physiotherapist advised Dr Turner, WBC’s GP, in August 2013 that she was concerned by WBC’s cognitive deterioration.
The Tribunal is satisfied that WBC has impaired capacity for both personal and financial decisions as a result of the cognitive effects of dementia.
Guardianship
WBC is currently in hospital awaiting placement in an aged care facility. The admission to hospital was as a result of a fall and upon admission the treating team determined that it was not safe for WBC to return home. ODL with the assistance of the hospital social worker sourced an appropriate aged care facility. WL was consulted and the eventual choice of facility was a compromise having regard to the locations of both ODL and WL in terms of ensuring that they would both be able to visit WBC. The Tribunal notes that this is a new decision and at this point WBC has not taken up residence and it may be that there will be further decisions required in regard to accommodation.
To enable WBC to continue residing at home various service provision decision were made by ODL including regular visits by physiotherapists and Anglicare. Over time the level of service needed to increase as WBC deteriorated. Both ODL and WL acknowledged that WBC had a strong desire to remain in her own home and that the decisions made in regard to service provision reflected the desire to meet those wishes. There will need to be continuing decisions about such things as podiatry and physiotherapy while in the aged care facility and so service provisions decisions will be needed in the future.
WBC has many ongoing health issues and there will need to be continuing health care decisions made.
Wendy Gunn provided a physiotherapy report in which she stated that ‘during the time I have been involved in WBC’s care I’ve had dealings with the daughter ODL and son WL equally, It is to their shared credit that QBC remained in her home as long as she did’. Anna Chipa, physiotherapist visited WBC twice weekly, she stated that ‘she had met WL on a few occasions and found him to be a caring and concerned son who clearly held his mother’s best interests at heart. She had recognised that he and his sister have conflicting opinions about her present and future care but they are working towards a common outcome of providing what is best for her whilst considering her wishes’.
There is no independent evidence to indicate that WL is not an appropriate decision maker for his mother. He has continued to visit her regularly and has regular contact with her doctors and other health care providers. He has also maintained contact with ODL, mainly via email. That is not to say that ODL has not done everything she could to assist her mother to stay in her home by providing food, arranging for services and taking her to appointments.
At the hearing ODL stated that her relationship with WL started to break down after her mother broke her hip for the second time and WL indicated to ODL that she was not spending enough time with her mother. ODL took offence to this and they did not speak for some time. WL explained at the hearing that he was not implying that ODL did not do a lot for her mother only that he felt he was not able to give the support to her that ODL could as a woman.
The conflict between them worsened when WL began to question the way ODL was dealing with WBC’s finances as there were large sums of money withdrawn from WBC’s bank account and not only was there large sums of money around the home it also appeared that for some time the money withdrawn was not being given to WBC. There were a series of emails between them which resulted in a confrontation at the house. ODL now has a temporary protection order against WL and there is limited ability for him to communicate with her. As a result of ODL’s lack of cooperation in regard to financial transparency WL with support from Dr Yelland arranged for WBC’s bank account to be frozen.
ODL and WL are joint attorneys and the relationship has broken down and so they are unable to act jointly. There is nothing to substantiate that WL would not act in WBC’s best interests nor that he is in any conflict with her. While both parties have contributed to the breakdown in the relationship the Tribunal is satisfied that it is the lack of transparency by ODL in regard to finances which has resulted in the relationship breaking down.
There are clearly decisions which will need to be made for WBC in regard to health care and services and possibly accommodation. The enduring power of attorney cannot operate as the joint attorneys are unable to act together. While the recent accommodation decision was made it was mandated by the hospital.
The Tribunal does not consider that the actions of ODL were in the best interests of WBC in terms of not cooperating with WL and being transparent in regard to the bank account. This resulted in a position where there were no funds available to meet WBC’s needs. ODL by her actions in not making decisions as attorney in accordance with the enduring power of attorney is also in breach of the Act.[3] ODL has put WBC at risk both personally and financially by allowing an amount of $95,000 to accumulate at WBC’s house and has not invested the funds as required.[4] The Tribunal is satisfied that ODL is not an appropriate appointee as guardian. WL has not put himself forward for the role and due to the conflict between him and ODL the level of communication required to enable the views of all parties to be taken into account by a decision maker is not available.
[3]Powers of Attorney Act 1998 (Qld) (‘POA Act’) s 80.
[4]POA Act s 66 and s 84.
Where there is no other appropriate person available the Tribunal may appoint the Public Guardian as guardian.[5] The Tribunal appoints the Public Guardian as WBC’s guardian for decisions about accommodation, health and provision of services for a period of 2 years. The enduring power of attorney is overtaken to the extent of these appointments.
[5]GA Act s 14(1) and (2).
Administration
WBC owns her own home at Shorncliffe and currently has in excess of $240,000 held with the Suncorp Bank. Her bank balance increased by $95,000 when WL deposited the funds which were located at WBC’s house. WBC is in receipt of a war widow’s pension and prior to her entry into an aged care facility she has the usual household expenditure. As WBC is transitioning to aged care decisions will need to be made in regard to her house whether to rent or sell it and then if it is sold the investment of the proceeds of sale. All decisions will need to take account of the effect on her pension and aged care fees.
Up until the Suncorp bank account was frozen ODL was dealing with WBC’s finances by withdrawing the whole of her pension of $1,000 each fortnight with withdrawal slips signed by WBC and countersigned by ODL. ODL commented in her material that ‘I gave WBC her pension every fortnight, minus any money I needed for paying bills and groceries etc. There was a large clutch purse full of cash (in $100s and $50 notes) in her bedroom wardrobe. Once I have given the pension to WBC, I have nothing more to do with it’. Dr Yelland in her correspondence makes it clear that ODL acknowledged that this was done without the involvement of her co-attorney WL. In a letter from Dr Yelland to Suncorp Bank she also states
Her daughter told me that the Power of Attorney has appointed her and her brother jointly, so they should be acting together. At present she feels that she is not using the Power of Attorney, because her mother signs the withdrawal slips, however I think that as WBC has little idea what is going on, that it would be regarded as actually managing her financial affairs, and therefore she should be doing this with the full knowledge and agreement of her brother. I will leave this to the Queensland Civil and Administrative Tribunal to sort out.
ODL states in her material that having WBC sign the withdrawals was not a problem until WL questioned about WBC’s capacity. She also stated that ‘WBC did not remember or show any interest in the amount of the withdrawal or the total of her pension. She wished to keep withdrawing her pension every fortnight as Dad had done’. The only reason given for this was that they had been concerned that their pension would be reduced if they had too much money in the bank.
The fact that WBC could not remember these things is clearly indicative of her capacity issues and that she was not concerned about the large amount of cash building up in her house when there were people regularly visiting such as tradespeople and carers also shows a lack of insight into the risk.
WL advised the Suncorp Bank of his concerns in regard to his mother’s capacity and with ODL having her sign withdrawal forms for later use. Suncorp Bank in a letter to WL stated that ‘after discussions with both he and ODL that a dispute between you has arisen in relation to the management of your mother’s affairs and further that a dispute in relation to her capacity exists’. They also referred to the letter from Dr Yelland. As a result the bank placed an immediate hold on the account and suspended all access by the enduring power of attorney holders. The bank stated that a determination by the Tribunal would be required.
The enduring power of attorney commenced immediately in accordance with its terms and so as the attorneys were appointed any decision of a financial nature needed to be made by both attorneys. The attorneys were subject to the Powers of Attorney Act 1998 (Qld) (‘POA Act’) from the time they accepted their appointment and were required to ensure that WBC’s interests were protected.[6] The leaving of large sums of monies at WBC’s residence put WBC at personal risk, deprives of her an income from the money which could have been invested and puts her in a position where she may need to repay amounts to Veterans Affairs due to an overpayment of the pension. ODL was not aware of the amount of funds held at the residence so she was not keeping records as required.[7] An attorney is required to invest in accordance with the prudent person rules,[8] holding $95,000 in cash at home is clearly not prudent.
[6]POA Act s 66.
[7]POA Act s 85.
[8]POA Act s 84.
The powers of an attorney must be exercised subject to the terms of the document in particular here the powers must be exercised jointly.[9] The result of ODL not exercising her powers jointly with her brother was that he became suspicious and eventually with the assistance of Dr Yelland had WBC’s bank account frozen. This meant that WBC was potentially not able to pay her bills or have funds available for necessities.
[9]POA Act s 67 and s 80.
Having regard to the fact that the whole of WBC’s pension was being withdrawn and according to ODL’s application only $406 of it was required to meet WBC’s needs the concern WL expressed about the withdrawal of the whole of the pension was justified.
The relationship between the attorneys has broken down so the enduring power of attorney which appointed them jointly is unworkable. ODL has asked that she be appointed administrator for her mother. The Tribunal is satisfied that ODL has not acted appropriately as attorney by trying to avoid having to make joint decisions with her co-attorney, by withdrawing large sums of money and leaving them around her mother’s house, by not investing such money and not disclosing this money to the Department of Veterans Affairs and by not being transparent with WL which ultimately resulted in the bank account being frozen. Due to these failures to carry out her duties as an attorney ODL is not an appropriate person to be a decision maker for her mother. The Tribunal notes that WL has not put himself forward as administrator.
WBC requires an administrator and the Tribunal appoints the Public Trustee of Queensland as her administrator for all financial matters. The Public Trustee must provide a financial management plan to the Tribunal within 4 months. The Tribunal directs the administrator to provide accounts as requested, the order must be registered in the Titles Office and this appointment is current until further order of the Tribunal. The enduring power of attorney is overtaken to the extent of these appointments.
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