WIV
[2012] QCAT 608
| CITATION: | WIV [2012] QCAT 608 |
| PARTIES: | WIV |
| APPLICATION NUMBER: | GAA6822-12 / GAA6823-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julia Casey, Member |
| DELIVERED ON: | 23 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following enduring power of attorney for WIV is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: (a) The enduring power of attorney dated 4 November 2004 appointing TIN and WTD as joint attorneys for personal and health matters and TIN as sole attorney for financial matters. 2. The following enduring power of attorney for WIV 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 enduring power of attorney dated 12 June 2012 appointing WTD as attorney for financial, personal and health matters. 3. The Adult Guardian is appointed as guardian for WIV for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 4. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. 5. The Public Trustee of Queensland is appointed as administrator for WIV for all financial matters. 6. The administrator is to provide a financial management plan to the Tribunal within six (6) months. 7. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 8. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal. 9. Within 3 months of the date of order 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 notice on their prescribed form and a copy of this decision advising the Registrar that any interest in property held by the adult is subject to this order. (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. 10. 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 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. 11. TIN is directed to send to the Public Trustee of Queensland within 21 days all bank statements and any other records under her control relating to the transfer of $75,000 to XY on 10 May 2012. |
| CATCHWORDS: | Capacity of adult – validity of enduring power of attorney – revocation of enduring power of attorney – need for guardian and administrator –appropriateness of appointees Powers of Attorney Act 1998 |
APPEARANCES and REPRESENTATION (if any):
The following active parties attended the hearing:
WIV adult
Debra Green applicant and social worker (by telephone)
WTD husband
TIN daughter
REASONS FOR DECISION
History of the Application
WIV is a 94 year old woman who resides in a residential aged care facility in Brisbane.
WIV made an enduring power of attorney on 4 November 2004 appointing TIN, the adult’s daughter, and WTD, the adult’s husband, jointly as her attorneys for personal/health matters. On the same day the adult appointed TIN as her sole attorney for financial matters with the power for the financial attorney to commence immediately.
On 12 June 2012 WIV revoked the powers of the financial attorney and, on the same day, entered into an enduring power of attorney appointing WTD, her husband, as sole attorney for financial and personal/health matters, with the attorney’s power for financial matters to begin immediately.
On 6 August 2012 the Tribunal received an application from Ms Debra Green, social worker at the Princess Alexandra Hospital, seeking the appointment of the Adult Guardian as guardian and the Public Trustee of Queensland as administrator for the adult.
The issues for the Tribunal, based upon the legislation, are:
a) Does WIV have capacity to make personal and/or financial decisions?
b) Did WIV have capacity on 12 June 2012 to revoke the enduring power of attorney of 4 November 2004 and enter into a new enduring document?
c) Is there a need for tribunal orders to implement a decision making regime for personal matters? If so, should a guardian be appointed and who is the most appropriate person for appointment?
d) Is there a need for tribunal orders to implement a decision making regime for financial matters? If so, should an administrator be appointed and who is the most appropriate person for appointment?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (GAA Act) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult.
WIV is presumed to have capacity in accordance with section 7 of the GAA Act and general principle 1 of schedule 1 under the GAA Act. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
The GAA Act defines capacity as follows:
“Capacity for a person for a matter, means the person is capable of-
(a) understanding the nature and effect of decisions about a matter; and
(b) freely and voluntarily making decisions about the matter: and
(c) communicating the decisions in some way”.
The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of enduring powers of attorney in accordance with section 109A of the Powers of Attorney Act 1998 (POA Act). The Tribunal may make a declaration about the validity of an enduring power of attorney in accordance with section 113 of the POA Act. The Tribunal may also revoke an enduring power of attorney in accordance with section 116 of the POA Act.
Section 41 of the POA Act sets out the capacity requirements of the principal in order to make an enduring power of attorney.
Section 44 of the POA Act provides the formal requirements for making an enduring power of attorney.
The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA Act.
If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for WIV, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the GAA Act, have regard to the appropriateness considerations set out in section 15 of the GAA Act.
The evidence
In addition to written material contained on the Tribunal’s file, all of the parties attending the hearing were given the opportunity to express their views. The views, where specifically relied upon by the Tribunal, are outlined below.
Does WIV have capacity to make personal and/or financial decisions?
A report dated 7 February 2012 by Dr A Pearson, a geriatrician, provides that WIV had been undergoing a slow progression of cognitive decline evidenced by a history of poor recall and diminishing results on cognitive assessments. Dr Pearson stated that the adult achieved a score of 18/30 on the Mini Mental State Examination administered in July 2011 at Logan Hospital, and a score of 12/30 on the Rowland Universal Dementia Assessment Scale on 7 February 2012. Dr Pearson concluded the adult had a diagnosis of moderate vascular dementia.
Further medical evidence is provided by Dr Sandra Thomson, a psycho-geriatrician, in an entry in the adult’s medical chart at the Princess Alexandra Hospital, in relation to the adult’s review on 20 July 2012. Dr Thomson provides that WIV achieved a score of 4/10 on the Mental Status Questionnaire and that the adult evidenced significant cognitive impairment associated with dementia, possibly exacerbated by psychosocial stress and change of environment. Dr Thomson further explains the adult’s mood state contributed to her cognitions and persecutory thoughts, and that due to her risk of misadventure the adult was not permitted to leave the hospital ward.
The report dated 26 July 2012 by Dr Jason Hockings, a resident medical officer at the Princess Alexandra Hospital, echoes that the adult has vascular dementia with possible depression / anxiety with paranoid component. He stated the adult has a severe cognitive impairment secondary to small vessel ischemic changes, a lacuna infarct and other age-related changes and that the adult achieved a score of 17/30 on the Mini Mental State Examination on 16 July 2012. Having regard to the clinical history, examination and results of investigations available to him, Dr Hockings provided the opinion that WIV was unable to make all simple and complex personal and financial decisions and that she was not capable of appreciating the consequences of signing legal documents.
In her evidence to the Tribunal Debra Green stated the adult was admitted to the Princess Alexandra Hospital on 14 July 2012 in a confused, fearful and disoriented state. Ms Green told the Tribunal the adult was brought to the hospital by Queensland Ambulance Service personnel after an incident during which the adult walked to the home of a new neighbour and was unwilling to return to her own home due to her reported fear of her husband.
Ms Green further provided that during the adult’s hospital admission she was assessed by the Aged Care Assessment Team, (ACAT), as having “an established moderate to severe dementia” and requiring regular redirection and assurance regarding her safety. Ms Green stated that the Aged Care Assessment Team assessed the adult as eligible to receive keypad secure high-level care and that WIV was admitted to a residential aged care facility on 25 September 2012.
WIV provided minimal input to the hearing. She stated she did not know the purpose of the proceedings, nor did she remember granting any enduring power of attorney. She incorrectly informed the Tribunal she resides in the property she shares with her husband, rather than within a secure residential aged care facility.
WTD opined the adult could make some decisions after being afforded lengthy explanation. He was ambivalent about the adult’s ability to recall the explanations or decisions afterwards.
All other parties concurred with the medical evidence in relation to the adult’s inability to make all simple and complex decisions.
Conclusion
The tribunal makes findings that WIV has significant cognitive deficits associated with moderate to severe vascular dementia.
WIV regularly demonstrates disorientation, confusion and poor recall and is at risk of misadventure due to wandering behaviour.
The adult is receiving high-level care in a secure residential aged care facility.
Having regard to the medical and oral evidence the Tribunal is satisfied that the presumption contained in the GAA Act that WIV has capacity for personal and financial matters is rebutted. The tribunal concludes that WIV due to her cognitive decline cannot understand the nature and effect of decisions about her personal and financial matters.
Did WIV have capacity on 12 June 2012 to revoke the enduring power of attorney of 4 November 2004 and enter into a new enduring document?
The report dated 7 February 2012 by Dr Pearson, a geriatrician, explains a history of cognitive decline since July 2011 with the adult achieving an impoverished score of 18/30 on the Mini Mental State Examination in July 2011. He stated WIV attained 12/30 on the Rowland Universal Dementia Assessment Scale on 7 February 2012 in the context of ongoing poor recall and requiring increasing support with medication and assistance with activities of daily living.
Dr Pearson’s evidence reveals the adult’s significant cognitive impairment and diagnosis of moderate vascular dementia approximately four months prior to the date the adult entered into the agreements.
Taking the medical evidence in isolation, the Tribunal could find that that evidence was likely to rebut the presumption that WIV had capacity to execute the instrument. Against this, however, is the evidence of the witness who certified that WIV had the requisite capacity at the relevant time.
The Tribunal notes that Daryl Cameron Parsons, a Justice of the Peace who completed the witness’s certificate on the enduring power of attorney, did not sign page 10 of the document as a witness to the adult’s signature on the statement of understanding, nor did he write the date as witness, as WTD had crossed out and initialed these sections.
WTD, who is himself a Justice of the Peace and friend of Mr Parsons, told the Tribunal he contacted Mr Parsons to arrange the enduring power of attorney as the adult’s “daughter was interfering with money” and that he “had to put my hand down and stop it”. He gave evidence that he himself completed pages 8 and 9 of the document on behalf of the adult, and crossed out and initialed sections of the document that he believed were irrelevant, as it was “quicker and easier for me to do it”.
WTD further told the tribunal that he and Mr Parsons “took over two hours to explain” to the adult “what it (the enduring power of attorney) was about”. He provided that he and Mr Parsons asked the adult “the right questions” which he defined as “one-way questions” and which he later described as questions which could be answered by “yes” or “no”. WTD further advised that at no stage did he vacate the room to allow the adult time alone with the witness and that he remained in the room when the principal signed the document.
There are guidelines issued by the Office of the Adult Guardian and published on the web site of the Queensland Law Society that outline recommended procedures for a witness to an enduring power of attorney. They include:
a. endeavouring to interview the principal alone. This procedure is designed to develop rapport and to establish the context within which the principal has decided to execute the instrument. It also gives the witness the opportunity to ascertain if the principal is subject to influence.
b. avoiding closed questions on the basis that “yes/no” responses will likely be inadequate to make an informed determination about capacity.
In this case, the witness interviewed WIV in the presence of her spouse and asked closed questions.
The Tribunal finds that while the witness may have concluded that the principal had the requisite capacity, the evidence of WTD, who was present for the duration of the witness’s performance of his duties, does not, on any reasonable or objective basis, justify such a conclusion. The Tribunal finds that the witnessing process was flawed as the process bore little resemblance to the recommended protocols that would provide an objective basis to the assessment of capacity to make an enduring power of attorney.
The Tribunal prefers the evidence of Dr Pearson on the issue of the adult’s capacity.
Conclusion
Having regard to the written and oral evidence, the Tribunal is satisfied that WIV did not have capacity on 12 June 2012 to enter into the enduring power of attorney and to revoke the enduring power of attorney of 4 November 2004, as she was displaying significant cognitive deficits associated with moderate vascular dementia that adversely affected her decision-making ability for personal and financial matters.
Furthermore, the tribunal finds that the witness who certified WIV’s capacity to grant the enduring power of attorney on 12 June 2012 did not adequately or satisfactorily discharge the legislative duties required of him. The Tribunal rejects the evidence of that witness that WIV had capacity to grant an enduring power of attorney at that time.
Consequently the Tribunal declares the enduring power of attorney of 12 June 2012 invalid pursuant to section 113(2) of the POA Act and section 82(2) of the GAA Act.
Is there a need for tribunal orders to implement a decision making regime for personal matters?
By declaring the 2012 enduring power of attorney invalid the Tribunal has enlivened the previous enduring power of attorney of 4 November 2004.
The Tribunal notes that on 4 November 2004 the adult also signed a revocation of a previous enduring power of attorney dated 28 July 2004.
There is no evidence before the Tribunal to rebut the presumption that WIV had capacity on 4 November 2004 to enter into the enduring power of attorney and to revoke her previous enduring power of attorney dated 28 July 2004.
Under the terms of the enduring power of attorney of 4 November 2004 the adult appointed TIN and WTD as joint attorneys for personal/health matters. The Tribunal notes that WTD has not signed the attorney’s acceptance for personal/health matters on the document. Until his formal acceptance of the role of personal/health attorney, there is in fact only one attorney in place.
The fact that there has been an attorney appointed under an enduring power of attorney is relevant in determining whether the adult’s needs will not be met or whether the adult’s interests will not be protected without an appointment of a guardian. The Tribunal must consider whether the appointed attorney/s should be allowed an opportunity to continue in that role or whether the appointment of the attorney/s should be revoked.
The evidence pertaining to the adult’s personal circumstances follows. WIV entered her current accommodation at a residential aged care facility in Brisbane on 25 September 2012, having been assessed by the Aged Care Assessment Team as being eligible to receive high care accommodation in a secure environment. This decision, in relation to the adult’s accommodation, was facilitated by the applicant after she gained agreement from the adult’s husband and daughter upon meeting with each of them on separate occasions.
At the time of the hearing WTD had given the nursing home 7 days notice of his intention to remove the adult to their jointly held property. TIN also submitted that she was seeking the adult’s relocation to a facility at Tweed Heads.
Decisions are required in relation to the appropriateness of the current accommodation along with the sourcing and monitoring of potentially more appropriate and permanent accommodation as WIV’s care requirements increase.
Ongoing decisions are necessary in relation to the nature and extent of support services to be provided to the adult and such decisions are dependent on the circumstances of the adult’s accommodation.
Health care decisions will be required to ensure the adult receives appropriate treatment for a number of conditions including vascular dementia, hypertension, osteoarthritis, depression/anxiety and reduced mobility.
While WIV enjoys regular contact and visits with family members who are informally arranging separate visiting times the medical evidence of Dr Sandra Thomson, a psycho-geriatrician, is that the adult experiences persecutory cognitions that may or may not be based in reality. The extent and consequence of any ongoing persecutory ideation by the adult will be contributing factors to accommodation and health care decisions made in relation to the adult.
The enduring power of attorney of 4 November 2004 empowers the adult’s husband and daughter to act jointly to make personal decisions on her behalf, and the exercise of powers by WTD is dependent upon him signing the attorney’s acceptance.
There was evidence that there has been long-standing conflict and poor communication processes between WTD and TIN.
At the hearing both parties submitted they were unwilling to work together as the adult’s personal attorneys, with TIN stating her support for the proposed appointment of the Adult Guardian as guardian for the adult.
In his evidence to the Tribunal WTD confirmed his intention to remove the adult from her current accommodation at the residential aged care facility within two days after the hearing, and to return her to their jointly held property. WTD told the Tribunal he was not aware of the adult’s current care needs, including the type, dosage and purpose of medication being prescribed to the adult, the nature and extent of assistance the adult requires in her activities of daily living, or the environmental modifications that have been recommended by medical and health professionals for the adult.
WTD did not consider the adult’s care needs may have increased due to possible de-conditioning associated with her hospital admission or that the adult’s mental state may have been affected by recent changes to her environment and routine. He further provided that he would contact the adult’s former general practitioner once he had removed the adult from the care facility, and that the general practitioner would prescribe medication to the adult if necessary. WTD did not consider if the general practitioner would have information from the hospital or the nursing home in relation to the adult’s recently ascertained care requirements, including psychotropic medication.
Conclusion
Pursuant to s 12 of the GAA Act the Tribunal is satisfied there is a need for decisions pertaining to accommodation, provision of services and health care matters. There must be an adequate and effective decision making regime in place for WIV as otherwise the adult’s needs will not be met nor will her interests be adequately protected.
The Tribunal is not satisfied that WTD would be able to discharge decision making for WIV in a way that was consistent with the adult’s proper care and protection, or in a way that was appropriate to the adult’s characteristics and needs as required by general principles 7(5) and 10 respectively by removing the adult from a secure residential aged care facility where she is receiving high level care without proper consultation with medical and health professionals.
Furthermore, the Tribunal is not satisfied WTD would act jointly with the other attorney in making decisions for his wife nor would he consult with family members, as required by the Act, in order to make personal decisions for the adult and in the adult’s best interests.
The decision of the Tribunal is that the decision making regime set up by the enduring power of attorney of 4 November 2004 will not be an effective means of ensuring that the decision making needs of WIV are met. The Tribunal therefore revokes the enduring power of attorney, dated 4 November 2004 for personal/health matters, pursuant to section 116(d) of the POA Act and section 84(2) of the GAA Act. There is a need for the tribunal to implement an effective decision making regime for WIV.
Should a guardian be appointed and if so, who should be appointed as guardian?
The Tribunal concludes that an independent guardian must be appointed for WIV. A guardian must liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs. The best option for the person to fulfill this role and responsibilities is the Adult Guardian who is an independent decision maker with extensive skills and experience.
The Tribunal is satisfied the Adult Guardian is the appropriate appointee and appoints the Adult Guardian as guardian for WIV to make decisions about the following matters: accommodation, provision of services and health care.
This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five years.
Is there a need for tribunal orders to implement a decision making regime for financial matters?
Under the terms of the enduring power of attorney of 4 November 2004 the adult appointed TIN as sole attorney for financial matters with the power for the financial attorney to commence immediately.
The Tribunal must consider whether the appointed attorney should continue in that role or whether the appointment of the attorney should be revoked under section 116 of the POA Act, or be made subject to the appointment of a guardian or administrator under section 22 of the GAA Act.
WTD submitted that a property he jointly owned with the adult was sold in early 2012 for $360,000 and that the proceeds from the sale of the property were used by the couple to purchase another property as tenants in common for approximately $265,000.
WTD further informed the Tribunal the adult’s share of the proceeds from the property transactions (after commissions and fees) was approximately $37,000. Bank records indicate that $36,759 was deposited in the adult’s Heritage Bank account on 9 May 2012.
On 10 May 2012 bank records further indicate a sum of $75,000 was transferred from the adult’s Heritage Bank account to a Westpac Bank account.
It is the evidence of TIN that she transferred the $75,000 to the bank account of her son in law, XY, as the bank “recognized” her “power” as financial attorney for the adult.
TIN further provided that the adult had previously loaned one of the adult’s grandsons, $45,000 on 22 February 2005 and that on 31 March 2009 XY took over the loan. TIN told the Tribunal the original loan was for a three-year period and that regular interest-only repayments were negotiated. TIN further provided that the terms of the loan were revised on a yearly basis and in 2011 the nature of the agreement was significantly altered in that “on her (the adult’s) demise . . the full amount (was) to be paid to the Public Trustee of Queensland as executor of her will”.
While TIN submitted at the hearing that she had not acted as the adult’s financial attorney until she transferred the $75,000 on 10 May 2012, she did provide that she had supported the adult to manage her finances for many years. The evidence is that there has been long-standing conflict and poor communication between WTD and TIN in relation to the management of the adult’s finances.
Section 73 of the POA Act provides that financial attorneys must avoid conflict transactions. The evidence is that TIN was acting as the adult’s financial attorney when she entered into a conflict transaction in transferring $75,000 from the adult’s bank account into that of her son-in-law. There is little satisfactory evidence to explain how the transaction was in the best interests of WIV.
The Tribunal is not satisfied that TIN acted in accordance with the legislative requirements in order to protect the adult’s financial interests and meet her financial needs while she was appointed as financial attorney for the adult.
The Tribunal is satisfied that the decision making regime for financial matters set up by the enduring power of attorney of 4 November 2004 is not an adequate and effective regime for WIV.
Conclusion
The decision of the Tribunal is therefore to revoke the enduring power of attorney, dated 4 November 2004 for financial matters, pursuant to section 116(d) of the POA Act and section 84(2) of the GAA Act and to appoint an administrator under the GAA Act.
An administrator should undertake an investigation of the transfer of $75,000 to XY on 10 May 2012, with the view to return of the funds to the adult.
Furthermore, the administrator is needed to investigate the loan of $45,000 to the former attorney’s relative.
The depletion of the adult’s funds by up to $120,000 may have implications for Centrelink as the adult’s nursing home fees would have been calculated at the time she entered the facility based on her financial situation as assessed by the Department of Health and Ageing. It is unlikely the determination would have included the loans to the attorney’s relatives of up to $120,000. An administrator will be required to advise the Commonwealth Government in relation to any revised financial position of the adult and to manage the financial implications of any potential underpayment of the adult’s accommodation fees.
An administrator is also necessary to manage the adult’s Australian aged pension, her British part-pension, the cash assets in the Heritage Bank account (the balance of which was approximately $10,000 on 21 September 2012), her interest in the jointly held property, accommodation fees and a possible debt to Princess Alexandra Hospital in relation to long-stay fees that were incurred after the adult was assessed as eligible to received high care in a residential aged care facility.
Who should be appointed as administrator?
As a result of the findings that neither of the attorneys would be likely to discharge ongoing responsibilities as decision makers for WIV in an adequate and effective manner, the tribunal is not prepared to appoint either of WTD or TIN as an administrator. It was proposed to the Tribunal that The Public Trustee of Queensland should be appointed to that role. The Public Trustee of Queensland is an independent and experienced administrator.
The Tribunal is satisfied that the appointment of The Public Trustee of Queensland is appropriate to ensure that the adult’s financial needs are met and her financial interests are protected.
Consequently, The Public Trustee of Queensland is appointed as administrator for WIV for all financial matters, until further order of the Tribunal.
The Tribunal directs TIN to send to The Public Trustee of Queensland within 21 days all bank statements and any other records under her control relating to the transfer of $75,000 to XY on 10 May 2012.
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