WRD
[2015] QCAT 490
•8 October 2015
| CITATION: | WRD [2015] QCAT 490 |
| PARTIES: | WRD |
APPLICATION NUMBER: | GAA9794-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 8 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. DW is appointed guardian for WRD for all personal matters. 2. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing. 3. This guardianship 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. 4. DW is appointed administrator for WRD for all financial matters. 5. 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. 6. 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. 7. That before 5 November 2015 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. 8. 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. 9. Any purported enduring power of attorney for WRD is overtaken by the making of these appointment(s) and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointment(s) have been made. |
| CATCHWORDS: | GUARDIANSHIP – where adult had been declared not to have capacity for complex personal and financial matters – where decision made that Enduring Power of Attorney was operative – where adult purported to revoke the Enduring Power of Attorney despite medical evidence that the cognitive capacities of the adult had deteriorated since the declaration about capacity had been made INTERIM APPOINTMENT – where adult had complex financial and legal issues – where adult is facing a criminal charge and is currently having his fitness to plead determined by the Mental Health Court – where other legal proceedings and negotiations are on foot involving adult’s assets – where allegations that adult’s welfare and property are at risk due to revocation of Enduring Power of Attorney – whether there is an immediate risk of harm without a substituted decision-maker in place Guardianship and Administration Act 2000 (Qld) – ss12(1) and 129(1) |
APPEARANCES and REPRESENTATION (if any):
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).
REPRESENTATIVES:
| APPLICANT: | DW represented by CRH Law, solicitors |
REASONS FOR DECISION
The Tribunal declared on 10 October 2014 that WRD did not have capacity for complex personal and financial matters. The Tribunal further noted on that day that the powers granted to DW as attorney for WRD had commenced.
On 2 October 2015 DW, who is a daughter of WRD, applied to the Tribunal for the appointment of a guardian and administrator for WRD. According to evidence provided by DW, since the decision made on 10 October 2014, WRD had experienced some serious health issues and falls and he had been placed into an aged care facility in a regional Queensland town.
The Tribunal was informed by DW that WRD had on 23 September 2015 revoked the Enduring Power of Attorney that he had granted to her. According to evidence provided to the Tribunal from a report dated 6 December 2014 of Dr Ian Curtis, psychiatrist, WRD is suffering from a mental illness involving a mixed dementia with consequent reactive depression and generalised anxiety disorder. Dr Curtis stated that WRD has a lack of insight into his financial and business affairs and he was at risk for financial predation by others.
Dr Curtis reported that WRD was in December 2014 transitioning from early symptoms of dementia to quite severe incapacities involving memory retrieval, speech, emotional control and a regression to primitive psychological mechanisms of defence including denial, avoidance, distortion, distraction and paranoia.
The Tribunal was not informed of the circumstances that resulted in WRD revoking the Enduring Power of Attorney which he had granted to his daughter. However DW informed the Tribunal that she had been told by her father that he wanted a Board, similar to the Board which runs BHP, to look after his affairs.
The Tribunal can make appointments of substituted decision makers if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an appointment, that the decision making needs of the adult will not be adequately met.[1] Appointments are made after a hearing by the Tribunal.
[1]Guardianship and Administration Act 2000 (Qld), s 12(1).
A hearing had been held on 22 September 2014 in which WRD had participated. He had objected to the appointment of a substituted decision- maker as he considered that he had capacity to make his own decisions. The Tribunal determined in a reserved decision made on 10 October 2014 that WRD did not have capacity for complex personal and financial matters but decided that the appointment of a guardian and administrator was not necessary as the attorney for WRD, DW, would adequately provide decision-making support for him in those matters.
New applications are now made to the Tribunal for the appointment a guardian and administrator. A hearing of those applications will be held. However, DW submitted that there was a need for an immediate appointment of decision-makers for her father. QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129(1) of the Guardianship and Administration Act 2000 (Qld) 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.
DW submitted that WRD had already been found to have impaired capacity for making complex personal and financial decisions. She stated that since the decision about his capacity was made in 2014, his physical and mental health had declined. DW submitted that the lawyers acting for WRD had taken various steps since the revocation, including lodging the revocation document with the Titles Office. This would permit dealings on real property owned by WRD to be registered.
DW stated that subsequent to the revocation, WRD had taken steps to contact his banks to access funds and had indicated an intention of leaving the aged care facility in which he resides. DW stated that there was pending action required involving a matter before the Mental Health Court for WRD. As well there are important negotiations on foot in relation to one of WRD’s mining tenements and work to be done in legal proceedings which had been issued against a third party who had a strong vested interest in undermining the decision making regime in the Enduring Power of Attorney.
It was further submitted by DW that she had been acting as her father’s decision-maker since July 2014. Prior to that time, she had been acting on an informal level in his financial and personal decision-making. She submitted that her father’s financial affairs are unusual and unwieldy in that his assets include a number of mining interests and a hotel property in Yungaburra. There are pressing issues to be deal with. DW submitted that she has built up knowledge of her father’s assets over the course of many years and holds information, and an understanding of his financial affairs that a third party could not readily acquire. She submitted that an interim appointment of a decision maker was required and that she was best placed for that role.
The evidence provided to the Tribunal and summarised in part in these reasons was sufficient to satisfy me that WRD had engaged in actions that had placed him at an immediate risk of harm to his welfare and financial assets because of the risk of abuse and exploitation arising from the revocation of the Enduring Power of Attorney granted to his daughter, DW. It had already been determined that WRD did not have capacity for complex financial matters. The Tribunal considers that making or revoking an Enduring Power of Attorney involves a person making a complex legal and financial decision. It had already been determined that the powers granted under the Enduring Power of Attorney were operative since October 2014.
In those circumstances, the Enduring Power of Attorney could not be revoked by WRD due to his impaired decision-making capacity to do so.[2] By taking such a step, he was clearly at risk that pending complex personal and financial decisions would be delayed, impeded or invalidly made by him. Dr Curtis had reported that WRD has a lack of insight into his financial and business affairs and he was at risk for financial predation by others. The evidence was sufficient to satisfy the Tribunal that there were reasonable grounds established by the evidence that there was an immediate risk of harm arising from the vacuum for decision-making following the purported revocation of the Enduring Power of Attorney. Personal decisions are required about where WRD lives and what care he receives as well as legal decisions about his Mental Health Court matter and criminal matter. Financial decisions are needed about his assets and legal matters involving his financial estate. Based on the existing declaration made by the Tribunal in October 2014, WRD does not have the capacity to make those decisions nor does he have capacity to appoint anyone else to make those decisions for him.
[2]Section 47(1) of the Powers of Attorney Act 1998 (Qld).
DW had established to the Tribunal that she was best placed to make decisions on an interim basis for WRD. She knows WRD, she had been trusted by him to be his attorney at an earlier stage when he had capacity and the evidence provide to the Tribunal has established to the Tribunal’s satisfaction that she has devoted much time and energy in competently looking after his interests since July 2014.
Interim appointments of DW as guardian and administrator for WRD would be the only appropriate response to the immediate risk of harm arising from the revocation of the Enduring Power of Attorney. These appointments would enable valid decisions on the complex affairs of WRD being made until such time as a hearing could rake place of the application about the Enduring Power of Attorney and about what appropriate decision-making regime should be in place for WRD.
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