WM
[2016] QCAT 534
•21 January 2016
CITATION: | WM [2016] QCAT 534 |
PARTIES: | WM |
APPLICATION NUMBER: | GAA649-16 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Endicott |
DELIVERED ON: | 21 January 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | ADMINISTRATION 1. TAR is appointed administrator for WM for all financial matters. 2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 3. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. NOTICE OF INTEREST IN LAND 4. That before 18 February 2016 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. (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. 5. 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 POWERS OF ATTORNEY 6. The following enduring power of attorney for WM is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made: (a) The enduring power of attorney dated 11 January 2016 appointing TAR, MMK and AK as attorneys for financial, personal and health matters. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where adult has revoked an Enduring Power of Attorney and made a new enduring document – where evidence that adult had been assessed with moderate cognitive impairment associated with dementia – where adult’s house was on the market for sale and where arrangements had been made to give away some valuable household – where attorneys were unsure whether to make financial decisions for the adult due to uncertainty about the validity of the current Enduring Power of Attorney – where application made for appointment of guardian and administrator ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where interim appointments sought – whether there was an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 129(1) |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
WM is a patient in a rehabilitation unit in an outer Brisbane area. He has been diagnosed with Parkinson’s disease and dementia together with a range of other physical disorders. Discharge arrangements were being made for WM’s discharge from the rehabilitation unit.
WM had made an Enduring Power of Attorney on 20 March 2015. He had appointed SJN and TAR as his attorneys jointly for health, personal and financial matters. Both attorneys were willing to act when WM’s medical specialist reported that WM did not have capacity to make complex personal, healthcare, financial or accommodation decisions. The Tribunal was informed that the Enduring Power of Attorney was activated on
21 December 2015.
On 11 January 2016, WM revoked his Enduring Power of Attorney. The revocation document was witnessed by Graham Knight, legal practitioner, who certified that WM had signed the revocation in his presence and that WM appeared to have capacity to make an Enduring Power of Attorney giving the same power as the document being revoked: that is WM was certified as being able to understand the matters set out in part 2 of the revocation document.
On 11 January 2016, WM made a new Enduring Power of Attorney appointing TAR, AK, and MMK as his attorneys for personal, health and financial matters. TAR was to act jointly with either AK or MMK. The new Enduring Power of Attorney document was witnessed by Graham Knight who also certified that WM had signed the document in his presence and that WM appeared to understand the matters required by s 41(2) of the Powers of Attorney Act 1998 (Qld).
A social worker at the rehabilitation unit where WM was a resident filed an application in the Tribunal seeking the appointment of a guardian and administrator, a declaration about WM’s capacity and for an order about the Enduring Power of Attorney. The applicant primarily was seeking an order from the Tribunal that would clarify which attorneys had the right to make decisions for WM.
Discharge planning is in progress and decisions are being made to sell WM’s house and to arrange placement into a residential aged care facility. The uncertainty as to who are the proper decision-makers for WM would impede his discharge into suitable care accommodation. An offer has been received on the sale of his home and an offer of placement into an aged care facility has also been received. The applicant has been told by TAR that WM is handing over possessions to strangers and that TAR is concerned to keep WM’s belongings safe.
The applicant also applied for an interim appointment of TAR as a guardian and administrator for WM. The Tribunal can make an appointment of a decision maker on an interim basis for up to three months under s 129(1) of the Guardianship and Administration Act 2000 (Qld) (GAA) without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
The issue to be determined is whether the Tribunal is satisfied, on reasonable grounds, that WM is at an immediate risk of harm. WM had appointed attorneys on 11 January 2016 and these attorneys would be able to act on both offers made to WM. However, the applicant stated that the lawyer who prepared the new Enduring Power of Attorney had told the family of WM that WM should make his own major financial decisions and the attorneys were uncertain as to who should sign the legal documents needed to complete the sale of WM’s house and entry into aged care accommodation.
Without an order from the Tribunal, it was likely that the stalemate about WM’s affairs would be prolonged. Evidence had been filed in the Tribunal about WM’s decision-making capacity. Dr Ogilvie-Brown, a rehabilitation registrar, had reported on 15 January 2016 that WM had been diagnosed with Parkinson’s disease, mixed dementia and other medical disorders. A cognitive assessment, MOCA, conducted on 4 November 2015 had resulted in a score of 20 out of 30.
Dr Ogilvie-Brown had reported that WM was able to make simple health care decisions but does not fully understand his medical conditions and their treatments. Dr Ogilvie-Brown also reported that WM could make simple lifestyle/accommodation decisions but that WM did not appreciate risks of falling due to poor mobility and the risks of living alone. Dr Ogilvie-Brown was of the opinion that WM could make simple financial decisions and give basic instructions about his financial wishes. Dr Ogilvie-Brown stated that she did not believe that WM could make decisions freely and voluntarily.
Dr Ogilvie-Brown stated an opinion that WM did not have capacity to understand making an Enduring Power of Attorney on 11 January 2016. She stated that WM did not in her opinion have capacity to make any complex decision as at 15 January 2016 but that he had capacity to make simple decisions.
In a further report by Dr Ogilvie-Brown on 14 January 2016, she stated that WM had been admitted to the rehabilitation unit on 29 October 2015 for reconditioning following an admission to a Brisbane hospital due to back pain and reduced mobility. It was reported that WM’s mobility had not progressed to a level that would enable him to safely live independently. It was reported that WM had demonstrated poor planning, problem solving and safety awareness skills during a kitchen assessment on
25 November 2015. It was reported that during a home visit on
9 December 2015, WM required constant supervision for safety and for the appropriate use of his mobility aid.
Dr Ogilvie-Brown reported that a neuropsychological assessment conducted in December 2015 found global cognitive functioning in the moderately impaired range, that WM demonstrated poor judgement/awareness and insight of safety risks and associated support needs. Dr Ogilvie-Brown reported that Dr Chan, a rehabilitation physician, had reviewed the occupational therapist and neurological reports and had determined that WM does not have capacity to make complex personal, healthcare, financial or accommodation decisions. Dr Ogilvie-Brown reported that the cognitive impairment is likely to be the result of a mixed dementia.
The Tribunal had also been provided with a copy of a report by Dr Bruggeman, a clinical neuropsychologist, dated 17 December 2015. WM had told Dr Bruggeman that he wanted to change his Enduring Power of Attorney as he no longer trusted one of his nieces, SJN, to be his attorney following recent communications he had with her. Dr Bruggeman reported that WM was aware that he had been confused on occasions following urinary tract infections and that he had recent experiences that were not based in reality but that WM had remained convinced that his recent communications with SJN really happened and WM did not shift his position. Dr Bruggeman reported that WM was unable to explain why he had signed the Enduring Power of Attorney earlier in 2015 appointing his two nieces and that WM had denied he signed that document until he was presented with his signature.
Dr Bruggeman reported that WM did not appear to fully grasp the purpose of the assessment and potential implications. WM showed limited ability to appreciate how cognitive deficits may impact on his functioning or on his ability to make complex decisions. Dr Bruggeman reported that WM showed moderate to severe impairments in aspects of executive functioning including complex attention, planning, problem-solving, self-monitoring skills, motor programming and inhibitory control, verbal reasoning and verbal fluency. WM also showed poor judgement/awareness and insight of safety risks and associated support needs.
The Tribunal is not required to make a finding on WM’s capacity for decision-making when considering an application for an interim order. However, the evidence about WM’s capacity provided to the Tribunal was sufficient to raise a reasonable inference that WM would struggle to understand the nature and effect of complex decisions about his care needs, accommodation and financial matters. The Tribunal was satisfied by the evidence that decisions about complex care, accommodation and financial matters were needed immediately and that further delay in making those decisions could give rise to an immediate risk of harm to WM’s financial position.
In particular, the Tribunal was satisfied that there was evidence that WM had made arrangements to give his possessions to a person unknown to his attorneys and that WM had arranged for a courier to collect valuable items of his property. His house was on the market for sale but his attorneys were unsure whether to make any financial decisions due to the uncertainty around whether the current attorneys had been appointed under a valid enduring document. The resulting stalemate was likely to have an adverse effect on the welfare of WM and on the cogency of decision-making for him.
The Tribunal determined that a clear decision-making pathway had to be in place so that financial decisions for the welfare of WM could be made without delay. The Tribunal was satisfied that the evidence reasonably gave rise to an immediate risk of harm to WM unless an administrator was appointed to make financial decisions. The applicant proposed TAR as the person to appoint as an administrator under an interim order. TAR was agreeable to being appointed to that interim role.
According to the choices made by WM as to his attorneys, TAR was common to both the 2015 and 2016 enduring document. The Tribunal was satisfied that TAR was appropriate for appointment under an interim order as the administrator for WM so that decisions could be made about WM’s financial affairs up to the date when the substantive applications could be fully heard and determined by the Tribunal. TAR would be required to give an account of her actions before the next hearing and would be held accountable for her decisions.
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