WJW
[2011] QCAT 409
•4 July 2011
| CITATION: | WJW [2011] QCAT 409 |
| PARTIES: | WJW |
| APPLICATION NUMBER: | GAA3042-10 / GAA3043-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 22 June 2011 |
| HEARD AT: | Atherton |
| DECISION OF: | L Clarkson, Presiding Member S Mills, Member |
| DELIVERED ON: | 4 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Adult Guardian is appointed as guardian for WJW for decisions about the following personal matter: (a) With whom WJW has contact and/or visits. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in twelve (12) months. 3. The Public Trustee of Queensland is appointed as administrator for WJW for managing the following financial matter: (a) Investigating all financial transactions between WJW and WME which may attract a presumption of undue influence under s 87 of the Powers of Attorney Act 1998. 4. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in twelve (12) months. 5. The Tribunal directs The Public Trustee of Queensland to provide a report in relation to the transactions referred to in order 3 within six (6) months. 6. The following Enduring Power of Attorney for WJW is declared invalid pursuant to section 113(2) of the Powers of Attorney Act 1998 and section 82(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of Attorney dated 24 June 2008 appointing WME and BVN as attorneys for financial, personal and health matters. 7. The following Enduring Power of Attorney for WJW is overtaken by the making of these appointments and, in accordance with section 22(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 26 July 2001 appointing MME and WLB as attorneys for financial, personal and health matters and which (after the marriage of WJW and MME in 2002) remains operative in relation to the appointment of MME only. |
| CATCHWORDS: | GUARDIANSHIP and ADMINISTRATION – capacity of adult to make enduring power of attorney – appropriateness of appointment for limited matters – presumption of undue influence by attorney Powers of Attorney Act 1998, ss 41, 87 |
APPEARANCES and REPRESENTATION (if any):
| Adult | WJW |
| Attorney and spouse of Adult | WME John Haywood, solicitor, and Dean Morzone, counsel, representing WME |
| Daughter of Adult | WLB |
| Daughter-in-law of Adult | WS |
| Son of Adult | WJ |
| Representative of The Public Trustee | Kirrily Turner |
| Dr Strivens | |
| Dr Gibbs | |
| RG |
REASONS FOR DECISION
WJW is an 86 year old man who resides with his spouse on his farm in North Queensland.
To the Tribunal’s knowledge, WJW has made three enduring powers of attorney, listed as follows in chronological order:
a)Instrument dated 14 September 1995 for financial matters in favour of WJ;
b)Instrument dated 26 July 2001 for personal and financial matters in favour of MME and WLB;
c)Instrument dated 24 June 2008 for personal and financial matters in favour of WME and BVN.
WJW’s daughter, WLB, applied to the Tribunal for the appointment of herself and her brother, WJ, as his guardians and administrators.
As the result of a compulsory conference, the parties (WME, WLB and WJ) executed a Deed of Compromise where they agreed that the applications should be adjourned to the registry for a period of 6 months to allow the terms of the Deed to take effect, and to determine if the difficulties between the parties might be resolved without the need for Tribunal intervention.
The parties complained that the terms of the Deed were not being adhered to, and after the expiry period, the applications were relisted for hearing.
Legislation and Issues
Relevant legislation included s 41 of the Powers of Attorney Act 1998, and ss 12(1), 14(2), and the definition of “capacity” in Schedule 4 of the Guardianship and Administration Act 2000.
Section 41 outlines the criteria for capacity to make an enduring power of attorney.
Section 12(1) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or administrator for an adult.
Section 14(2) provides that the Tribunal may appoint the Adult Guardian as guardian for a matter only if the Tribunal is satisfied that there is no other appropriate person available for appointment for the matter.
[10] The definition of “capacity” is outlined in Schedule 4, and includes three elements:
a)understanding of the nature and effect of decisions about a matter;
b)ability to make decisions freely and voluntarily;
c)ability to communicate decisions in some way.
[11] The relevant issues for the Tribunal were thus:
a)Does WJW have impaired capacity for decisions about relevant matters? (Relevant matters in this case include personal matters and financial matters.)
b)If so, is there a need for decisions about relevant matters to the extent that, without an appointment, WJW’s needs will not be adequately met or his interests will not be adequately protected?
c)If so, who is appropriate to be appointed as guardian and/or administrator?
[12] In examining the need for decisions and whether an appointment is necessary, the Tribunal must consider whether the enduring powers of attorney are valid instruments and whether, in any event, the attorneyship is operating effectively to protect WJW’s interests.
Does WJW have impaired capacity?
[13] The Tribunal was presented with a number of medical reports dating from 2007. The most recent and relevant reports were those of:
a)Report dated 22 April 2010 of Dr Strivens, Psychiatrist, and Ian Walch, Case Planner, Rural & Remote Home Care Services. The report stated that WJW’s medical conditions include moderate dementia – likely vascular. He has limited decision-making capacity, and is not capable of making decisions freely and voluntarily. He understands none of the criteria of an enduring power of attorney. Summary: WJW is capable of understanding and making simple decisions only about health care, lifestyle, and financial matters. The report lists Mini Mental State Examination scores of 22/30 in July 2007; 14/30 in August 2008; 20/30 in January 2009; 17/30 in May 2009.
b)Report dated 23 April 2010 of Dr Gibbs, then WJW’s GP of 6 months. WJW’s medical conditions include an acquired brain injury (20 June 2007), vascular dementia, and anxiety. He lacks ability to fully understand the implications of decisions, and can make decisions freely and voluntarily only of a limited nature. He executed an enduring power of attorney in 2001, and while he understood the criteria for executing the instrument at that time, WJW would not fully understand the criteria now. Summary: WJW is capable of understanding and making simple decisions only about health care, lifestyle, and financial matters.
[14] WJW gave evidence at the hearing. It consisted of his responses to questions asked of him by the Tribunal members. The evidence given by WJW was not detailed or lengthy as his memory deficits and lack of understanding made it clear to the Tribunal that he was not able to provide any meaningful input to the discussion of relevant issues.
[15] All parties at the hearing agreed with the opinions of the medical practitioners to the effect that, at this time, WJW is capable of understanding and making only the simplest of decisions.
Conclusion
[16] The opinions of the medical practitioners are consistent, and are supported by all parties.
[17] This is also consistent with the Tribunal’s view of WJW’s capacity after speaking with him about a number of topics.
[18] The Tribunal found that WJW has vascular dementia as the result of hypoxic brain damage following an in-hospital cardiac arrest on 20 June 2007. He is now capable of little meaningful input into decisions made on his behalf, and needs full support for a broad range of decisions.
[19] The Tribunal concluded that the presumption of capacity to which all Queensland adults are entitled, is rebutted in WJW’s case for decisions about relevant matters.
Capacity to make enduring power(s) of attorney
The evidence
[20] Another of the reports provided to the Tribunal was a Neuropsychological Assessment of Dr Sarah Russell, dated 26 May 2008. The report describes WJWs’s medical problems as including hypoxic brain damage following an in-hospital cardiac arrest on 20 June 2007. On examination, WJW stated that he tended to forget the names of people he knows well, including neighbours, and tended to lose items around the house. He also stated that he had lost interest and enjoyment in a lot of activities. His wife stated there had been considerable change in his personality and behaviour since the hypoxic episode. Testing of WJW was limited as he struggled with many tasks, had difficulty understanding some of the test instructions, and fatigued easily. He was disorientated to time and partly to place. Scores on the Geriatric Depression Scale fell within normal limits, although his loss of insight may have diminished his ability to rate his mood appropriately. Scores from CAMCOG-R (56/105) and MMSE (17/30) suggest that he has experienced a clinically significant decline in his cognition. He performed poorly on memory testing and had considerable difficulties on tests of executive functioning. Overall, WJW appears to have experienced a significant decline in his cognitive functioning, scoring well below the cutoff for dementia on a screening tool, with poor performances across a range of domains, particularly memory and executive functioning. He was able to follow simple instructions but had difficulties as the tasks increased in complexity. His cognitive difficulties appear consistent with those associated with hypoxia. It also appears that the damage has impacted on executive functioning and behaviour control.
[21] Dr Strivens gave oral evidence based on his examination of relevant clinical notes and Dr Russell’s report. He stated that WJW’s deficits have fluctuated but have been relatively stable. His view, on reading the report of Dr Sarah Russell, is that WJW’s deficits in cognition, memory, and executive functioning rendered it likely that he would struggle with more complex issues. While it was possible that WJW might have had the capacity to execute the 2008 instrument, it was more probable that he did not.
[22] Dr Gibbs stated in oral evidence that he lacked the expertise of Dr Strivens in such matters and would defer to the opinion of Dr Strivens in this regard.
[23] Other medical reports of relevance include a letter from Dr Chemont, dated 22 July 2008, in which he states that WJW has a history of dementia, and refers to his ability to manage his finances as slightly impaired. On 12 August 2008, a Case Conference Report by Aged Care Services referred to diagnoses, including, cognitive impairment – post cerebral hypoxia/cardiac arrest. The report included a comment that he lacks insight and appears to hallucinate. On 18 December 2008, WJW underwent an assessment by the Aged Care Assessment Team. The assessment referred to cognitive impairment, and that he exhibited the following difficulties: short term memory problems – always; depressive symptoms, confusion, disorientation as to time – regularly.
[24] The witness to the 2008 instrument was RG, JP, and licensee of the local Post Office. She filed an affidavit and gave oral evidence at the hearing.
[25] RG stated that she knew WJW and his spouse. They attended at the Post Office with an instrument already prepared, and she questioned WJW about the instrument in the presence of his spouse. The interview lasted between 5 and 10 minutes, and she did not make a written record of the interview. In essence, her examination consisted of two questions, and his affirmative answers led her to conclude that she had no doubt that WJW appeared to understand what it was he was signing. In essence, the two questions were:
a)Did he understand the nature and effect of the instrument? and
b)Is that what he wanted to do?
[26] Mr Morzone submitted that, on balance, the Tribunal ought to be concerned with WJW’s capacity to execute the 2008 enduring power of attorney, and that it was open on the evidence for the Tribunal to rebut the presumption of capacity.
Conclusion
[27] The instrument dated 14 September 1995 was revoked by the later instrument dated 26 July 2001 (s 50(1), Powers of Attorney Act 1998).
[28] The 2001 instrument was in turn revoked by the marriage of WJW to MME on 9 November 2001 (s 52, Powers of Attorney Act 1998). That section provides that the revocation is to the extent of power given to someone other than WJW’s spouse, namely WME, nee M.
[29] The 2001 instrument was revoked by the 2008 instrument if the latter instrument is held to be valid. If the Tribunal were to find that the 2008 instrument was invalid for want of capacity, the document is void from the start (s 114 Powers of Attorney Act 1998). In this event, the revocation of the 2001 instrument would also be ineffective.
[30] Section 41(2)(a) to (f) of the Powers of Attorney Act 1998 outlines the matters which the principal should understand in order to understand the nature and effect of the enduring power of attorney. These matters are contained in Section 8 of the instrument, headed ‘Statement of Understanding’, and they are the matters which the witness certifies the principal appeared to understand.
[31] Superimposed on s 41(2) is the more general definition of capacity in Schedule 4 of the Guardianship and Administration Act 2000. One of the elements in that definition is the ability of an adult to make decisions freely and voluntarily.
[32] When the Tribunal is required to rule on a person’s capacity to execute an enduring power of attorney, it is sometimes the case that contemporary medical evidence on the point is notably lacking. In that event, the evidence of the witness is critical, as that person is best placed at the precise time of execution to form an opinion as to the person’s understanding of the instrument.
[33] However, in this case, the Tribunal had the benefit of an in-depth Neuropsychological Assessment less than a month prior to the execution of the 2008 instrument.
[34] Medical reports in the months following the execution of the instrument tend to confirm that WJW would have struggled with decisions of a complex nature.
[35] Taking the medical reports in isolation, the consistent findings about capacity (or the lack thereof) before and after 24 June 2008 would incline the Tribunal to the view that the presumption of capacity to execute the instrument has been rebutted. Against this is the evidence of the witness who is confident WJW had the requisite capacity at the relevant time. Does this evidence outweigh the opinions of the medical practitioners, particularly that of Dr Russell?
[36] The Tribunal concluded that it does not.
[37] That is because the Tribunal believes the witnessing process was flawed. There are guidelines issued by the Office of the Adult Guardian and the Queensland Law Society which 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)Making a record of questions and responses.
c)Requesting the principal to read the instrument.
d)Avoiding closed questions on the basis that responses requiring a yes/no may be inadequate to determine capacity.
[38] The evidence indicates that these recommendations were not adopted by the witness.
[39] The Tribunal finds that, while the witness states she was in no doubt as to WJW’s capacity at the time of signing the enduring power of attorney, her own evidence about the process she undertook to reach that opinion does not, on any reasonable or objective basis, justify such a conclusion.
[40] The evidence of the witness is therefore insufficient to prevent a rebuttal of the presumption of capacity to execute the enduring power of attorney.
[41] The Tribunal held that the enduring power executed on 24 June 2008 was invalid.
[42] The operative enduring power of attorney is therefore the instrument executed on 26 July 2001, whereby WME is the sole attorney for personal and financial matters.
[43] It is pertinent to note that there were no submissions, or any evidence to suggest, that WJW’s capacity was in question in 2001. The medical evidence established that his cognitive deficits arose out of the cardiac arrest he experienced in 2007.
Need for appointment – guardianship
The evidence
[44] Many written statements from family, friends, members of the community, and various professionals were filed in support of WME and WJW’s children. These statements tended to corroborate their respective submissions.
[45] Dr Gibbs, WJW’s general practitioner, stated in evidence that he had no concerns with health care decisions made for WJW.
[46] None of the parties suggested that WJW’s spouse (and attorney) was making inappropriate decisions about health care matters.
[47] While there had been difficulties in the past with communication of relevant information to WJW’s children about his health status, this difficulty had been rectified by WME’s authority for Dr Gibbs to do so.
[48] WJW’s children were also concerned with (in their view) the isolation of the farm and the difficulty in accessing relevant services. Their father’s farm is about 25 kilometres from a town, and WJ stated that the drive was difficult and dangerous, particularly in fog. In his view, his father would be better suited living closer to town.
[49] WME’s evidence is to the effect that the road is passable and she manages the journey. She further stated that she and WJW have purchased a residence close to town (and to relevant facilities) where they intend to live when it becomes necessary to do so.
[50] WJW receives services by way of attendance at a respite centre at least once each week. Despite concerns expressed by WJW’s children, they did not produce evidence particularising what further services might be beneficial to him.
[51] One of the major causes of conflict and frustration affecting the relationship between WJW and WME on the one hand, and WLB and WJ on the other, has been the childrens’ lack of access to their father. They allege that WME influences or discourages her spouse in relation to childrens’ visits and contact.
[52] This issue was one the essential matters covered in the Deed of Compromise executed by relevant parties. The parties complain that the arrangement has not worked, and each alleges inappropriate behaviour by the other.
[53] WME supported the appointment of an independent guardian with power to make decisions about contact and visits between WJW and his children. Such appointment might in her view ease the tension between her and the children of her spouse.
Discussion of the evidence
[54] The personal decisions referred to in evidence included, decisions about health care, where WJW resides, the support services he receives, and contact and access considerations.
[55] Decisions made for WJW by his attorney were not challenged in relation to health care. WME’s conduct in this regard was supported by WJW’s doctor, his dentist, a clinical nurse and discharge nurse.
[56] Apart from the possibility of further care at his home, no party established that WJW’s wellbeing would significantly benefit from the provision of more services that those he presently receives. In fact, the possibility of further care at home (raised by WJW’s children) appeared to arise more out of concern for WME, and the need to relieve her of some of the burden of caring for her spouse.
[57] No party opposed the intervention of an independent guardian in a limited decision-making role relating to arrangements for contact and visits with WJW.
[58] Of the many statements in support of the respective parties, the Tribunal placed greater weight on those supporting WME. That was because the evidence included professionals who were not simply persons purporting to claim friendship or kinship with one side or the other. They included their General Practitioner, their dentist, respite centre coordinator, clinical nurse consultant, and hospital discharge planning nurse. Other statements supporting WME emanated from professionals with whom WJW and WME have had business dealings and normal community interaction, including: RSL Welfare Officer, real estate auctioneer, shopkeeper/grocer, and a bank manager. Further, the knowledge of these persons appears to be generally more current than the knowledge of WJW’s children and those persons whose evidence supports their applications.
Conclusion
[59] The weight of evidence established that WME provides significant support to her spouse, and he is totally reliant on her.
[60] The weight of evidence also indicated that the attorneyship arrangements which WJW put in place at a time when he had the capacity to do so are working in his best interests, at least in relation to personal matters outside the scope of decisions surrounding contact and visits.
[61] WJW rarely has contact with his children or grandchildren. There are a number of circumstances contributing to this situation. Whether he wants this arrangement to continue was not clear from his evidence at the hearing. In any event, given WJW’s apparent deficits, it would be unsafe to rely on his evidence about his wishes in this regard.
[62] It is clear from the evidence of disinterested parties that WJW resents the attitude of his children, and that there is a degree of conflict between his spouse and his children. The fact of conflict between family members is not, of itself, a relevant concern for the Tribunal. However, it is equally clear that the conflict impacts on WJW’s general wellbeing – and that circumstance does become a concern for the Tribunal.
[63] The Tribunal found that there were a range of personal decisions which are or will be required to be made for WJW.
[64] His attorney is attending to most matters in a reasonably competent manner.
[65] However, in relation to decisions about contact and visits, the Tribunal was concerned with the fact that WJW is almost totally dependent on his spouse for a wide range of matters. He is well aware of the conflict between his spouse and his children. In the circumstances, the Tribunal was not satisfied that WJW’s apparent decisions to shun both of his children arose of his own volition and free from considerations about the preferences of others.
[66] The appointment of a decision-maker for this limited area would tend to promote decisions which may reflect WJW’s preferred wishes, free from influence. It may also, as WME submits, tend to reduce tension between family members which to date has impacted on WJW.
[67] In the circumstances the Tribunal concluded that at this time, without the appointment of an independent guardian for matters relating to contact and visits, WJW’s needs would not be adequately met or his interests would not be adequately protected.
Who should be appointed as guardian?
[68] Section 14(2) empowers the Tribunal to appoint the Adult Guardian as guardian for an adult only if there is no other appropriate person available for appointment.
[69] While other persons were suggested for appointment by the parties, those persons were not before the Tribunal. It was not known if the parties were eligible appointees, whether they were appropriate for appointment, or whether they were willing to accept an appointment.
[70] In the event, no party objected to the appointment of the Adult Guardian, and the Tribunal found that, on the evidence presented at the hearing, no other appropriate person was available for appointment for the matter.
Need for appointment – administration
The evidence
[71] WJW’s bank manager provided a statement supporting WME’s decision-making in relation to dealings with bank accounts and investments.
[72] However, it was adduced in evidence that WJW converted one or more of his bank accounts to the joint names of him and his spouse.
[73] Further, a residential property co-owned by WJW and WME was transferred into the name of WME solely.
[74] The bank accounts and property transactions took place after WJW’s cardiac arrest and his subsequent cognitive decline. Apart from these issues, the Tribunal was presented with no evidence to suggest the attorney was not properly performing her duties in relation to decisions about WJW’s financial affairs.
[75] WME stated that the transfer of the house property into her name arose out of WJW’s concern that, on his death, his children might challenge the terms of his will. And the bank accounts were adjusted in order to more efficiently operate the household financial arrangements.
[76] WJW’s children supported the appointment of an independent administrator to investigate the subject transactions, and offered to contribute one-half of the costs of the administrator’s fees and charges.
Conclusion
[77] It appears that the transactions involving the bank accounts and the dwelling house were carried out by WJW himself, and were not occasioned by the attorney exercising her powers.
[78] However, the transactions are between a principal and an attorney. As such, they fall within the ambit of s 87 of the Powers of Attorney Act 1998, and attract a legal presumption that the principal was induced to enter the transactions by the attorney’s undue influence.
[79] The Tribunal was not in a position to draw conclusions or make a judgement about the subject transactions.
[80] They are matters which must be investigated, and if necessary, remedial action considered.
[81] It is not appropriate for WME to conduct the investigation in her role as an attorney, or in any other role. She finds herself in a conflict situation as the beneficiary of the subject transactions.
[82] The appointment of an independent administrator to investigate the subject transactions (and any other transactions which may require explanation) is imperative in order to maintain the perception of transparency and accountability.
[83] The Tribunal concluded that, without the appointment of an administrator, for the purpose outlined above, WJW’s interests in this regard will not be adequately protected.
Who should be appointed?
[84] The Tribunal concluded it was appropriate to appoint an independent administrator to investigate certain financial transactions.
[85] No person at the hearing was proposed, apart from the Public Trustee, and the parties did not object to the appointment of the Public Trustee.
[86] The Tribunal concluded that the impartiality and professionalism of the Public Trustee were essential requirements in the circumstances of this case, and that such an appointment was therefore appropriate.
[87] Orders were made accordingly.
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