WH
[2014] QCAT 533
•31 October 2014
| CITATION: | WH [2014] QCAT 533 |
| PARTIES: | WH |
| APPLICATION NUMBER: | GAA5793-14; GAA5794-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 18 August 2014 and 14 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Clifford |
| DELIVERED ON: | 31 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. WH does not have capacity for complex personal or financial matters. 2. The application for the appointment of a guardian is dismissed. 3. The application for the appointment of an administrator is dismissed. 4. The application for costs is dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – COSTS - Where Adult married for 27 years – where legal title of property in wife’s name only - where conflict with Adult’s parents – whether Adult’s interests adequately protected – whether need for appointment – where costs sought – whether exceptional circumstances Guardianship and Administration Act 2000 (Qld) |
APPEARANCES:
| Mr WH – the Adult |
REASONS FOR DECISION
Background
Mr WH is a 51 one year-old man. Mr WH lived with his parents until he was about 16 years of age when he moved in with his Great Aunt, HA, as his parents were separating. Mr WH sustained an acquired brain injury following a motorcycle accident in 1980 when he was 17 years of age. Mr WH continues to experience seizures following this accident.
Mr WH met Mrs WH in 1984 and they married in 1990. Great Aunt HA died in 1988, and Mr WH was a major beneficiary under her Will. Mr WH’s mother, Mrs PG, and other relatives apparently contested the Will. Mr WH reportedly received around $80,000.00 from the estate in 1994.
Mr WH and his wife later purchased a property in Rochedale, in joint names, and lived there for around 13 years. It is reported towards the end of that time Mr WH reconnected with his father for a period, however that relationship became strained when his mother, Mrs PG, also sought to reconnect with Mr WH.
Mr WH and his wife sold the Rochedale property in 2007, and in early 2008 they purchased a property on the Gold Coast. Because of concern by them, that family members would seek to gain control of Mr WH’s funds, this property was registered in Mrs WH’s name only.
In early 2009, for a period of about 2 months, Mr WH and Mrs WH were not living together. Mr WH was living with his mother and doing some work with his father on the cranes that he operated. It is apparent this was a turbulent period for Mr WH, and there was conflict between Mrs WH and the family. Mr WH however returned to live with his wife after this short period.
Later Mr WH and his wife sold the Gold Coast property, and in early 2011 purchased a property in Kenmore. This is their current residence. The property is registered in Mrs WH’s name only.
On 25 June 2014 the Tribunal received an application for the appointment of a guardian and an application for the appointment of an administrator from the Public Guardian. The application was made following a referral to the Public Guardian alleging Mr WH’s personal and financial interests were not being adequately protected. It was alleged Mr WH was undernourished, lacked basic hygiene, unkempt and that he was not receiving adequate medical care, amongst other historical matters. It was also alleged Mrs WH was not adequately protecting Mr WH’s financial interest, as his name was not on the Kenmore property title.
In its Investigation Report of 16 June 2014, the Public Guardian outlined its inquiries, and reported difficulties in obtaining information from Mrs WH. The Public Guardian was unable to substantiate the allegation concerning personal care issues, but noted Mr WH’s treating doctor had no concerns regarding his health. Likewise the Public Guardian was unable to substantiate concerns about the alleged failure of Mrs WH to protect Mr WH’s financial interests.
The Public Guardian however had ongoing concerns about the decision-making process for Mr WH, a person with apparent impaired capacity, and in particular in regard to contact with his family, and the proper protection of his property interests.
Legal framework
Before the Tribunal may make an order appointing a guardian or administrator the Tribunal has to be firstly satisfied that Mr WH has impaired capacity for the matter; and if so, be satisfied that there is either a need for a decision, or be satisfied that Mr WH is likely to do something that involves an unreasonable risk to his health, welfare or property; and that without an appointment Mr WH’s needs will not be adequately met or his interests adequately protected.[1]
[1]Guardianship and Administration Act 2000 (Qld) s 12.
Capacity
The Guardianship Act provides that an adult is presumed to have capacity.[2] Capacity means that a person is able to understand the nature and effect of decisions about a matter, and is able to make decisions freely and voluntarily, and is able to communicate the decision.[3]
[2]Ibid s 7.
[3]Ibid, Schedule 4 – Dictionary.
Dr O, Mr WH’s regular General Practitioner since 2011, notes in his report of June 2014, that Mr WH has an acquired brain injury and is prescribed anti-seizure medication, Epilim and Tegretol. Dr O opines Mr WH ‘requires guidance and supervision’ for personal, lifestyle and financial matters, has capacity for simple personal and lifestyle decision-making, but has no financial decision-making capacity. Dr O however opines Mr WH has capacity to understand the nature and effect of an Enduring Power of Attorney.
Dr K a General Practitioner based in Logan, who has seen Mr WH on and off since 2008, in her report of 24 April 2013 (two weeks after she last saw Mr WH), opined Mr WH had limited decision-making capacity concerning health and lifestyle decisions. Dr K observed Mr WH as passive and vague in discussions about his diet, medications and where he wanted to live. And that he appeared self-neglecting, thin, malnourished and unkempt. Dr K reported ‘unknown’ for Mr WH’s decision-making around finances.
The Public Guardian relies on the reports of the health professionals and notes both health professionals opine Mr WH does not have capacity for complex decision-making.
Mrs WH provided mixed views about Mr WH’s decision-making capacity. In the Public Guardian Investigation Report Mrs WH is reported as stating Mr WH does not have capacity, and she manages all decisions for her husband. In her written response to the applications dated 21 July 2014, she states Mr WH makes decisions about many aspects of his life, and that he has capacity to contribute to making joint decisions like any other married couple. At hearing Mrs WH stated Mr WH has left decision-making to her for many years.
Mr WD opined his son is fairly capable with all decisions. Mrs PG stated her son used to do lots of things himself, go to the Bank and make his own decisions. Mrs PG opined some people easily influence Mr WH. Mrs CL stated that around 2010 Mr WH could make decisions, and although he was a bit slow filling out forms he could do it all. Mrs CL however opined that he could be easily swayed, but further stated that he was an individual.
At hearing in August 2014, the Tribunal was advised by Mrs WH that Mr WH would only appear before the Tribunal in the absence of his parents and the Public Guardian. With their consent, they vacated the hearing for a period.
Mr WH presented as an anxious person, concerned that the proceedings were an attempt to get him away from his wife, who he refers to as ‘C’, advisedly, as in the 1980’s sitcom ‘C in C’. Mr WH described his living circumstances and indicated that he had a happy marriage with occasional problems. Mr WH indicated he had difficulties with reading and writing, that he took medications for seizures and that he didn’t go out on his own ever. He stated that he liked to stay at home and work around the yard.
Mr WH advises that the Kenmore house he shares with his wife is theirs together, but that it was in his wife’s name ‘in case of others stepping in and trying to get me to sign papers.’
Mr WH could not remember signing the Enduring Power of Attorney dated 22 August 2003.
At hearing in October 2014, Mr WH would only appear in the absence of his parents. With their consent they vacated the hearing for a period.
This time Mr WH presented as less anxious before the Tribunal, and would pat his wife’s hand, as if to indicate to her not to interrupt, when she was asked to desist from doing so from the Tribunal.
Mr WH confirmed that he was 51 years of age and that he was entering his 27th year of marriage. Mr WH indicated that he was happy in his marriage, but acknowledged a few up and downs. Mr WH indicated that he had previously enjoyed going to his father’s place to mess about with cranes, but he advised that he now goes to a local ‘Men’s Shed’ where he gets to undertake some manual work with steel and other metals.
Mr WH indicated that he does not wish to see his parents at the moment, and he opined that he was not sure if he would so in the future, but stated that it would depend on the circumstances.
Mr WH indicated he couldn’t recall why the house was in his wife’s name but states it was ‘safe that way’.
Mr WH clearly indicated that he preferred his wife making decisions and that he didn’t want that arrangement to change.
The Tribunal accepts the evidence of the two recent health professionals in terms of Mr WH’s decision-making capacity. They both opine Mr WH does not have capacity for complex decision-making. The Tribunal agrees with this view. Mr WH himself stated he had difficulties with reading and writing, and at hearing he was forgetful about details concerning his health care and about documents he had signed in the past. Mr WH could not remember signing an Enduring Power of Attorney in 2003 and he did not mention that he had signed a Revocation some years later in 2009.
Whilst the Tribunal is satisfied that Mr WH can make simple decisions, which is in keeping with the testimony of the other attendees, the Tribunal is not satisfied, in light of Mr WH’s history of brain injury and seizures, poor recall and literacy difficulties, that Mr WH has the capacity to understand the nature and effect of complex information relating to his personal or financial affairs, such as the legal or equitable ownership of property, or the full understanding of the operation and effect of an Enduring Power of Attorney, or complex health care matters.
Mr WH has an acquired brain injury sustained following a motorcycle accident many years ago, and has suffered seizures on and off since. Mr WH has literacy difficulties and poor recall. Mr WH has acquiesced decision-making to his wife. In the circumstances the Tribunal is satisfied that Mr WH does not have capacity for complex personal or financial decision-making.
There is considerable conflict between Mr WH’s family and his wife, particularly between Mrs PG and Mrs WH. This was evident during the hearing where both could not desist from making disparaging remarks against the other. There have been cross-accusations of undue influence over Mr WH between Mrs WH and Mrs PG. Although the Tribunal has already made its decision concerning Mr WH’s capacity, for completeness it makes the following observation in regard to concerns of undue influence.
Mr WH has indicated he wants a quiet life. He has generally handed decision-making to his wife. Mrs WH presented as a very emotional and defensive person. Mrs WH was also fiercely protective of Mr WH to an extent it appeared overbearing, demonstrated by her sitting extremely close to Mr WH, coaching and prompting his responses, and talking over him. However, history has demonstrated that Mr WH can extricate himself from a situation if he chooses. In 2009 he left his wife and lived with his mother for around 2 months, and then chose to return home to his wife. In 2013 he partly walked to his father’s home so that he could do some work with him on the cranes. He returned to his wife a couple of days later. Mr WH was patting his wife’s hand at hearing to get her to desist from interrupting. Mr WH has been clear in his views to the Tribunal about his marriage and the importance of his wife in his life, notwithstanding some ups and downs. The Tribunal was persuaded that notwithstanding the conflict between family members, and the defensiveness of Mrs WH, which appears as overbearing, Mr WH is clear about his views and the Tribunal places great importance on Mr WH’s views and accepts his views as his alone.
Is there a need for an appointment, and without which, Mr WH’s interests would not be adequately protected.
Earlier in the proceeding the Public Guardian and the Tribunal were under the impression that an Enduring Power of Attorney (EPA) executed by Mr WH in 2003, appointing his wife Mrs WH as his Attorney for personal and financial matters, was in place, notwithstanding Mrs WH’s advice that she had not been acting pursuant to it and had never taken it out of its envelope.
However during the proceeding Mrs PG indicated that Mr WH had revoked that EPA some years later when he was living with her in 2009.
The proceeding was adjourned and Directions issued in relation to that purported document, and the filing of written submissions. All material was duly filed and the hearing resumed on 14 October 2014.
A copy of a Revocation of an Enduring Power of Attorney, duly signed by Mr WH and witnessed by a Solicitor, on 18 March 2009 was provided. Whilst the Revocation instrument did not state the actual date of the EPA it was revoking, it clearly indicated it was the EPA appointing Mrs WH as Attorney, and the Tribunal is satisfied that the instrument was in accordance with the formal requirements for a written revocation of an enduring document.[4]
[4]Powers of Attorney Act 1998 (Qld) s 49.
The Tribunal was not advised of what reasonable steps Mr WH took to advise Mrs WH of the revocation, however, given the passage of time and Mr WH’s current capacity status, the Tribunal did not press on this issue, and is satisfied that the Revocation of Enduring Power of Attorney instrument dated 18 March 2009, duly revokes the EPA of 22 August 2003.
Therefore, since the date of the Revocation any personal or financial decision-making, has been made either by Mr WH himself, or by his wife on an informal basis, or Mrs WH as statutory health attorney[5] as his spouse, for health care decisions.
[5]Ibid ss 62 and 63.
Given that the Tribunal is satisfied that Mr WH does not have capacity for complex decision-making, the issue to be considered by the Tribunal is whether there is a need for a formal decision-maker, and whether without an appointment, Mr WH’s interests would not be adequately protected.
In relation to personal matters, the Public Guardian, Mrs PG and Mr WD raise concerns about Mr WH’s ability to have contact with his family. Mr WD also raises concern about the state of Mr WH’s health.
Mrs WH submits that there is no need for an appointment of a guardian because she has been married to Mr WH for nearly 27 years and she has protected his interest all this time and has made any personal decisions in his best interest. Mrs WH further submits Mr WH does not want to see his family and that she has been looking after Mr WH’s health with regular medical appointments for years.
Mr WH wants his wife to make decisions on his behalf.
Mr WH has been married for nearly 27 years. Whilst there has been conflict between his wife and some family members, and some ups and downs in the marriage, Mr WH is committed to the marriage, as is Mrs WH. Mr WH does not wish to see his parents, and it was undisputed that historically, there have been long periods of Mr WH’s life where there has been no contact between them.
The Public Guardian suggests, that if appointed, it could act as an independent body to facilitate contact given the history of conflict. Whilst the Tribunal accepts that the Public Guardian as a facilitator of contact is often very beneficial in family conflict situations, the Tribunal is not persuaded that there is any utility is such a role given Mr WH’s clear indication that currently that he does not wish to see his parents, and when the Tribunal is satisfied that in the past Mr WH has demonstrated that he can and will contact with his parents if he choses to do so.
Mr WH is a 51 year-old man with a long-standing marriage. The Tribunal is of the view it would be unnecessary and intrusive into Mr WH’s life and marriage to appoint a substitute decision maker for contact decisions in these circumstances.
In relation to healthcare decisions, the Public Guardian acknowledges that Mrs WH, could as Mr WH’s spouse, act as statutory health attorney for health care decisions if required, and notes Dr O’s view that he holds no concerns about Mr WH’s health or welfare. Mr WD however expresses concerns about his son’s health and refers to Dr K’s report concerning his welfare and the low level of seizure medication in his blood.
Whilst the Tribunal acknowledges Mr WD’s concern and accepts Dr K’s observations and results, the Tribunal is not satisfied that this in itself is sufficient to persuade the Tribunal that there is a need for an independent decision-maker concerning health care. This is particularly so when Mr WH’s usual and local General Practitioner, reports that he has seen Mr WH regularly and has no concerns with his health and welfare, and he opines Mrs WH has only ever exhibited appropriate concerns regarding Mr WH’s general welfare when in attendance at appointments.
Overall the Tribunal is not persuaded that there is a need for the appointment of a guardian, and it is satisfied that Mr WH’s personal interests are being adequately met under current arrangements.
In the circumstances the application for the appointment of a guardian is dismissed and the Tribunal orders accordingly.
In relation to financial matters the Public Guardian, the Public Trustee of Queensland, Mr WD and Mrs PG submit that there is a need for the appointment of an Administrator, and all express concern that Mr WH’s financial interests are not being adequately protected in the current arrangements.
Mr Phillips of the Public Guardian submits that although Mr WH has interest in the Kenmore property, his interest is not properly recognised as it is registered in his wife’s name alone. Mr Phillips further submits that, whilst noting Mrs WH’s submissions that Mr WH has an equitable interest is the property and would have protection under family law provisions, exercise of any rights under these laws requires a reactive response to circumstances, and that this is onerous for a person in Mr WH’s circumstances.
Ms Galvin of the Public Trustee of Queensland, concurred with the Public Guardian’s concerns, and submits Mr WH’s protective rights are not covered. Ms Galvin suggests that the Kenmore property be transferred back into joint names, with acknowledgment of the relevant financial contributions.
Mrs WH submits that there is no need for an Administrator as she has her husband’s best interest at heart. Mrs WH stated that she and her husband sought legal advice, as to the best protection to Mr WH’s property, following a period of conflict with the family and in light of the history of litigation surrounding Mr WH’s Aunt’s Will. Mrs WH submits that not unlike many married couples they decided to register the Gold Coast property, and subsequently the Kenmore property in her name only. Mrs WH submits any transfer of property back to Mr WH would be costly and against his wishes.
Mrs WH also submits that Mr WH clearly has an equitable interest in the property, and she stated at hearing that that interest is an equal interest.
Mrs WH also submits in the unlikely event of separation (which she suggests Mr WH’s family are implying), Mr WH would have rights under family law provisions. Furthermore Mrs WH states Mr WH’s interests are met under provisions of her Will should she predecease him.
Whilst the Tribunal accepts that legal title has priority in law and is a clearer and more transparent expression of a person’s interest in property, the Guardianship and Administration Act does not require that property of person without financial capacity, who is not subject of an Administration Order, be held in any particular manner. The main issue in these circumstances is whether Mr WH’s interests are currently, and in the foreseeable future, being adequately protected.
It is undisputed Mr WH holds an interest in the Kenmore property. Mr and Mrs WH both acknowledge this interest, and Mrs WH states the property is owned equally. It is also apparent Mr and Mrs WH have for many years jointly shared their income and assets like many married couples, holding a joint account and paying for everyday living expenses from pooled resources. They have been married for nearly 27 years. Recent property they have owned has been registered in Mrs WH name only because of concerns of family influence, and the history of litigation over Great Aunt HA’s Will.
The Tribunal accepts that given the history of conflict and litigation concerning the Will, these are not unreasonable concerns held by Mr and Mrs WH. After reportedly seeking legal advice, they made arrangements to protect Mr WH’s interest in the property by registering the title in Mrs WH’s name only.
Whilst there is suspicion from family members (who it is apparent have never been enamoured by Mrs WH) about her intentions, there is no evidence Mrs WH has or intends to disabuse Mr WH of his property rights. To the contrary, Mrs WH has not sought to deny Mr WH’s interest in the property. Mrs WH has declared in writing, and on the record to this Tribunal, that she and Mr WH share the property equally. Mere suspicion is not sufficient to persuade the Tribunal that Mr WH’s interests are not being adequately protected in this type of property arrangement within a long-term marriage, that may have had some ups and downs, but which appears enduring.
Furthermore, whilst the Tribunal accepts that pursuing property rights in equity or under family law requires more reactive steps, the Tribunal is satisfied that if such circumstances arose Mr WH would then seek assistance from his family.
Overall the Tribunal is satisfied that Mr WH’s property rights are being adequately protected and is therefore satisfied that there is no need for the appointment of an Administrator.
In the circumstances the application for the appointment of an Administrator is dismissed and the Tribunal orders accordingly.
Costs
In submissions Mrs WH makes application for costs, and submits that the Public Guardian pay the costs incurred for legal help in this case. Mrs WH provides copy of correspondence to the Public Guardian and invoices from their legal advisor.[6]
[6]Submission of Mr and Mrs WH, dated 23 September 2014, see attachments.
The Guardianship and Administration Act states that each party to a proceeding is to bear the party’s own cost.[7] However, the Tribunal may order an applicant pay an active party’s costs in exceptional circumstances.[8] In example, when an application is found to be frivolous or vexatious.
[7]Op.Cit Guardianship Act s 127(1).
[8]Op.Cit Guardianship Act s 127(2).
Mrs WH submits that there are exceptional circumstances as the Public Guardian brought the application despite not substantiating the complaint, and when Mr WH’s local treating doctor had expressed no concerns for his welfare. Mrs WH also submits that the application contained incorrect information and lies, and caused relentless stress.
The Public Guardian submits[9] that the application was neither frivolous nor vexatious. Furthermore, the Public Guardian submits that it was unable to substantiate the allegations raised, as Mrs WH failed to respond adequately to its inquiry. Moreover, the Public Guardian submits it had ongoing concerns about Mr WH’s welfare and the adequate protection of his property rights.
[9]Submission of the Public Guardian dated 20 October 2014.
The Public Guardian has a protective statutory role. The Tribunal accepts that the concerns it continued to hold, after the finalisation of an inadequate/incomplete inquiry, were reasonable given its statutory role and the limited information it had been initially provided. The concerns related to the type of matters that are regularly dealt with by the Tribunal, and in fact disclosed the existence of a Revocation of an Enduring Power of Attorney that was important and relevant to the case. Moreover, it was only at the hearing that the Tribunal was able to fully consider Mr WH’s capacity and to directly hear his views.
Whilst the Tribunal has dismissed the applications, the Tribunal is satisfied that the subject matter of the applications were neither frivolous nor vexatious, and were appropriately brought to the Tribunal’s attention in its ‘protective’ jurisdiction under the Guardianship and Administration Act.
And whilst the Tribunal accepts that the process has been stressful for Mr and Mrs WH, the Tribunal does not accept that this is an exceptional case whereby costs should be awarded against the ordinary rule, that each party should bear its own costs.
The application for costs is dismissed and the Tribunal orders accordingly.
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