WBG

[2011] QCAT 352

CITATION: WBG [2011]QCAT 352

PARTIES: WBG

APPLICATION NUMBER:   GAA881-11; GAA2428-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 27 April 2011

HEARD AT: Toowoomba

DECISION OF: Professor A Ashman, Member

DELIVERED ON: 27 April 2011

DELIVERED AT: Toowoomba

ORDERS MADE:     

1.    The application for the declaration about capacity for WBG is dismissed.

2.    The application by RJL and RKL for leave to withdraw as attorneys for WBG is granted.

CATCHWORDS :  Declaration about decision making capacity; Leave to withdraw as attorney

APPEARANCES and REPRESENTATION (if any):
RJL, RKL, WBG, VT representing the Public Trustee of Queensland

REASONS FOR DECISION

1. In June 2010 WBG gave enduring powers of attorney to his sister RJL and her husband RKL to make decisions about personal/health matters.

2. On the same day, WBG gave an enduring power of attorney to the Public Trustee of Queensland for financial matters, subject to the condition that the attorney could not exercise any power given until the attorney received a certification from a qualified medical practitioner to the effect that WBG was incapable of making decisions in relation the financial matters, or on other written instructions.

3. RKL and RJL’s appointment was not unexpected as they have had a long and personal involvement in WBG’s life and supported him as much as they could while he was living independently. However, in September 2010, WBG’s medical practitioner, Dr NA, wrote to indicate that his patient needed supported care due to his medical condition and RKL and RJL assisted WBG to move from his accommodation unit to an aged care facility.

4. On 5 January 2011, the Public Trustee of Queensland received notification from Dr NA that WBG was unable to handle and control his financial issues due to his medical and mental condition. WBG delivered this letter to the Public Trustee’s office while seeking the Public Trustee’s assistance in preparing a new will. On the basis of Dr NA’s opinion, the Public Trustee took action to secure WBG’s assets. Within a week of this action, WBG lodged an application with the Tribunal seeking a declaration of capacity for financial matters.

5. The Tribunal turned its attention first to this application.

6. RKL and RJL gave evidence to the Tribunal that WBG can make some reasoned decisions but is very confused at times and that this has become increasingly apparent over the past 12 months. RJL stated that her brother telephones from time to time but does not know what day it is. She stated further that WBG has become progressively more abusive toward her and her husband notably when they have attempted to make personal decisions appropriate to his needs. She stated that he was not capable of living independently but was also dissatisfied with his current accommodation. She was not convinced that her brother could cope in an independent living arrangement.

7. VT gave evidence that WBG often phones and visits the office of the Public Trustee of Queensland. He presents often in a confused state, does not know where he is, does not recall visits made to the Public Trustee’s office on the same day, and confuses the Public Trustee with the Commonwealth Bank.

8. WBG agreed that his memory was not good and admitted that he becomes confused at times. He was unable to give an accurate account of his financial circumstances, the extent of his debts (although he was aware of debts), and the effect that his limited income and financial resources might have on securing independent accommodation. He gave no consideration to the impact of his failing memory on his ability to live independently in the community. As written evidence of his confusion, in his application to the Tribunal, WBG indicated that he was unsure if he had given an enduring power of attorney for personal/financial matters or made an advance health directive.

9. On the basis of the evidence provided, the Tribunal is satisfied that WBG experiences significant memory lapse and confusion. While it can be conceded that at times he recalls his actions and the purpose of those actions, his memory lapses and confusion were apparent during the hearing as he was unable to articulate his decision making processes in personal and financial matters.

[10]  The Tribunal is not satisfied that WBG has capacity for personal and financial matters and, finds that way. Therefore, the Tribunal dismisses WBG’s application for a declaration of capacity for financial matters.

[11] The Tribunal then turned its attention to RKL and RJL’s application for leave to withdraw as WBG’s attorneys for personal matters. Section 72(1) of the Powers of Attorney Act 1998 provides that an attorney may resign by signed notice given to the principal. The Tribunal has on file a copy of a letter from the attorneys to WBG dated 10 January 2011 resigning as his attorneys for personal and health matters. In his application, WBG writes that his attorneys have withdrawn.

[12]  The Tribunal also has file notes from early February 2011 reporting telephone conversations between officers of the Tribunal and Public Trustee that draw attention to WBG’s faulty memory and confusion, and to numerous attempts to explain his personal circumstances to him, including matters relating to his accommodation.

[13]  Based on evidence presented during the hearing in regard to WBG’s declining capabilities over the past 12 months, and the confusion he was displaying early in 2011, the Tribunal finds that the presumption of capacity for personal and health care matters at the time the attorneys notified him of their resignation is rebutted.

[14] Section 82 of the Powers of Attorney Act 1998 allows an attorney to resign with the court’s leave when the principal has impaired capacity. The Tribunal, therefore, grants leave for RKL and RJL to resign as WBG’s attorneys for personal matters.