WRD - [2014] QCAT 696

CITATION:

WRD [2014] QCAT 696

PARTIES:

WRD

APPLICATION NUMBER:

GAA 6338 – 14
GAA 6339 – 14
GAA 8507 – 14
GAA 8512 – 14
GAA 8513 – 14
GAA 8514 – 14
GAA 8515 – 14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

22 September 2014

HEARD AT:

Cairns

DECISION OF:

Member Johnston

DELIVERED ON:

10 October 2014

DELIVERED AT:

Cairns

ORDERS MADE:

1 The Tribunal declares that WRD does not have capacity for complex financial and personal matters;

2 The Application by DW for the appointment of a Guardian is dismissed;

3 The Application by DW for the appointment of an Administrator is dismissed;

4 The Tribunal notes the existence of the following Enduring Power of Attorney for WRD:

(a) The Enduring Power of Attorney dated 12 November 2013 appointing DW as attorney for financial personal and health matters

5 The Tribunal revokes the Interim Order made on 11 July 2014 appointing DW as Guardian and Administrator for WRD.

6 Pursuant to section 115 of the Powers of Attorney Act 1998, the Tribunal declares that the powers given to the attorney under the Enduring Power of Attorney have begun.

7 The application for a confidentiality order is adjourned;

8 The application for a non-publication order is dismissed;

9 The application for a non-publication order; is dismissed;

10 The Application for Directions is adjourned.

CATCHWORDS:

Guardianship and administration matters for adults - adult‘s diminishing capacity – Enduring Power of Attorney in place

Powers of Attorney Act 1998 (Qld) s 115

REPRESENTATIVES:

APPLICANT:

Mr Brian Herd CRH Lawyers representing DW

REASONS FOR DECISION
Background

WRD is a highly successful and intelligent 85-year-old man who has a long history of working in the mining industry. He is a pleasant and likeable person.
WRD has been having problems with his memory since 2011 and he has been attending the memory clinic.
WRD had a fall in January 2014 and bumped his head. He was left lying unconscious. He was admitted into his local regional Hospital and was unconscious for several days. He spent 19 days in the hospital.
WRD executed an Enduring Power of Attorney on 12 November 2013 appointing his daughter DW as his attorney. WRD by executing this document indicated his preference for the person who should make decisions for him if he no longer had that ability.
The question for the Tribunal is whether that time has arrived.
Does WRD have capacity to manage his own affairs?
WRD spoke eloquently to the Tribunal about his history in the mining industry. He acknowledged that he had been suffering from memory loss for a number of years and that he had “a bit of dementia”. He confirmed that he had been suffering from a bit of cognitive impairment. He blamed those problems on a very bad fall that he experienced five months ago. He explained that he had spent 19 days in hospital. He told the Tribunal that he was apparently unconscious for a number of days.
WRD told the Tribunal that the fall had affected his hearing and his thoughts had been impaired for a while but he thought that he had recovered his abilities. WRD told the Tribunal that he did need more support but that was in the form of more support in his administration office.
WRD told the Tribunal that he was not going to oppose his daughter’s application but the Court needed to include an order to provide for the employment of extra staff in his office.
Dr Webb
Dr Webb has been WRD’s GP for a number of years. He told the Tribunal that he did not believe that WRD had the capacity to manage his financial affairs. WRD's affairs were complex and he had major memory problems that would affect his ability to manage his affairs.
Dr Webb has seen significant signs of WRD's deterioration over a number of years. He was able from his discussions with WRD to determine that WRD's short- term memory was very poor.
Dr Web received information from WRD’s daughters, about WRD’s inability to make operational decisions in relation to a motel, which he owned. WRD had apparently measured the front counter day after day but could not initiate the required action to have the front counter activated.
Dr Webb's view of WRD's short- term memory is that it is completely gone and that he has a consequent cognitive impairment because his short- term memory is necessary to function properly. This affects his personal and financial affairs.
Dr Webb told the tribunal in relation to health care that WRD had been told on a number of occasions that he has prostate cancer, which is in remission. WRD does not believe that he has prostate cancer
ADW
ADW told the Tribunal that she had been at Dr Webb’s surgery and had heard all the things that the doctor had told her father. It was clear to her that his short-term memory was very poor.
In June 2014, she had attended with WRD at Dr Les Thompson's surgery when he told WRD that his prostate cancer was in remission. Her father has forgotten about this appointment.
BW
BW told the tribunal that a biopsy was taken from his brother and that this was a very painful procedure. WRD does not remember this procedure taking place. He agrees with Dr Webb that his brother has problems with his short-term memory.
DW
DW told the Tribunal that in the preceding 12 months she and her sister ADW had received a number of calls raising concerns about her father's health and ability to manage his affairs. This included calls from employees and contractors. She told the Tribunal that he had a number of falls and she was concerned about his welfare.
Dr Cavestany Ricker the geriatrician had sought her out because of concerns that he had about her father's ability to manage his affairs. Dr Cavestany Ricker talked about WRD having mixed dementia.
DW talked about a number of issues around the management of WRD's motel and her father's decision to purchase extra mining tenements that raised serious concerns about her father's ability to manage his finances. This was the basis of her application for interim orders. She was seeking to protect her father’s health and financial position.
DW told the Tribunal that she had since discovered $1 million in loans. She believed that some of these loans were examples of people having taken advantage of her father financially.
Dr Cavestany Ricker
Dr Cavestany Ricker is a specialist geriatrician. He told the Tribunal that he had known WRD since November 2011 when WRD had been attending the memory clinic because of concerns about memory loss.
Dr Cavestany Ricker told the Tribunal that for a long time he had not been able to get collateral about WRD's functioning in the community. This was because WRD was quite a private person. Dr Cavestany Ricker stated that in the intervening period he has suspected that WRD's cognitive functioning was slowly deteriorating but did not have all the information that he needed to make a diagnosis.
Dr Cavestany Ricker stated that WRD was much worse after his fall. He lost track of conversations and had concentration lapses.
Dr Cavestany Ricker requested a neuropsychology review report and the results of this review by Dr Norrie highlighted significant problems in WRD's short-term memory. The report recommended that he take steps to move to retirement.
Dr Cavestany Ricker has subsequently received collateral. WRD's accountant came with him on his last visit in July. WRD is aware that he has short-term memory problems. His awareness of things around him fluctuates. On some days, he is quite aware of what is happening around him and on other days, he is not and is confused.
Dr Cavestany Ricker believes that WRD was neglecting his duties to his business because WRD told him that at times “he couldn't be bothered and would just go to bed”. Dr Cavestany Ricker was concerned because of the complex nature of WRD’s financial affairs that WRD had lost his capacity to manage those affairs. It was not that WRD should not be involved in his affairs but he needed to be supported and someone else needed to be responsible for making the actual decisions.
Dr Cavestany Ricker diagnosed WRD with extensive early-stage mixed dementia of Alzheimer’s type. He also diagnosed WRD with significant fluctuations in his day-to-day abilities due to vascular disease, which has been confirmed by recent MRI testing.
Dr Joan Norrie
Dr Norrie undertook the neuropsychological review report at the request of Dr Cavestany Ricker. In her report on page 4, she found that WRD's “problem solving ability was lower than expected”; “he exhibited cognitive inflexibility. He had difficulty with “category tasks combined with poor memory for task instructions”. Dr Norrie comments on page 5: WRD continues to meet the criteria for Mild Cognitive Impairment with Amnestic features and significant executive functioning difficulties.
Dr Norrie notes that WRD has arranged for his daughter DW to have Enduring Power of Attorney and says that: it is advisable that he actively engage in succession planning while he is able to be involved in the decision-making.
Discussion of the evidence
The Tribunal accepts that for WRD making his own decisions is an important part of his dignity as a person. However, the Tribunal has heard from both Dr Webb his GP and Dr Cavestany Ricker the specialist geriatrician who have both told the Tribunal that they did not believe that WRD has capacity to manage his own affairs. The Tribunal accepts the evidence of Dr Web and Dr Cavestany Ricker as to WRD's capacity.
The neuropsychology report of Dr Norrie and MRI testing confirmed the concerns of Dr Webb and Dr Cavestany Ricker.
The Tribunal has heard from WRD's daughters DW and ADW who both told the tribunal that they had serious concerns about their father’s ability to manage his affairs. The tribunal accepts this evidence as to WRD's capacity.
The Tribunal has heard from WRD himself who acknowledges that he has problems with his short-term memory and has problems with his concentration. The tribunal accepts this evidence regarding WRD's capacity.
The Tribunal has heard that WRD is resistant to help, as he is a very private person. The Tribunal has heard that when WRD is overwhelmed he avoids making decisions.
The Tribunal is satisfied on the balance of probabilities that WRD does not have capacity. There is fact a wealth of information supporting concerns about WRD's ability to manage its own affairs.
The Tribunal is also satisfied that there are significant risks to WRD’s health and financial well - being without a formal decision maker.
The Tribunal accepts that WRD will be disappointed with these findings. The purpose of the Guardianship legislation is however to help support adults who through birth, accident or illness lose the capacity to manage their own affairs. The appointment of a decision maker is to support WRD through this difficult time in his life.
The Tribunal finds that WRD has been having problems with his memory for several years.
The Tribunal finds that WRD had a fall in January 2014 and was unconscious for several days.
WRD's cognitive abilities in particular his short-term memory has deteriorated further since his fall.
The Tribunal is satisfied that the presumption of capacity for personal and financial matters has been rebutted.

Who should support WRD making important personal and financial decisions?

WRD has made an Enduring Power of Attorney nominating his daughter DW as his attorney. This is his choice of whom he would like to make decisions on his behalf.
The Tribunal notes that DW’s actions in seeking an interim appointment were motivated by protecting WRD's health and financial welfare.
The Tribunal notes that there is a positive relationship between WRD and his daughters DW and ADW.
The Tribunal notes that WRD indicated that he would not oppose his daughter DW’s application.
The tribunal notes that DW has shown a willingness to work in consultation with her father. DW has demonstrated a good understanding of the General Principles that guide decision-makers who are making decisions for an adult with impaired capacity.
The Tribunal would like to highlight General Principal No 7, which requires an attorney to consult with the adult as much as possible about important decisions.
The Tribunal is satisfied that DW is an appropriate person to support WRD.
The Tribunal can see no reason why the Enduring Power of Attorney executed by WRD should not commence to assist WRD at this difficult time.
The Tribunal makes the following Orders:
1     The Tribunal declares that WRD does not have capacity for complex financial and personal matters;
2     The Application by DW for the appointment of a Guardian is dismissed; and
3     The Application by DW for the appointment of an Administrator is dismissed;
4     The Tribunal notes the existence of the following Enduring Power of Attorney for WRD:
(a)The Enduring Power of Attorney dated 12 November 2013 appointing DW as attorney for financial personal and health matters
5     The Tribunal revokes the Interim Order made on 11 July 2014 appointing DW.
6 Pursuant to section 115 of the Powers of Attorney Act 1998, the Tribunal declares that the powers given to the attorney under the Enduring Power of Attorney have begun.
7     The application for a confidentiality order is adjourned;
8     The application for a non-publication order is dismissed;
9     The application for a non-publication order; is dismissed;
10.   The Application for Directions is adjourned
The Tribunal's decision means that WRD's daughter DW will be able to use the powers given under the Enduring Power of Attorney to make complex financial and personal decisions for WRD. The purpose of these orders is not to strip away WRD's ability to be involved in complex financial and personal matters. The purpose is to provide WRD with support around complex financial and personal matters. The purpose of these decisions is to help WRD at this difficult time in his life.
The Tribunal notes that the Applicant filed a cluster of applications, which included an application or a confidentiality order; the application for a non-publication order; and the application for a closure order. The tribunal notes that these applications have been addressed by the orders in paragraph 51.
The Tribunal notes in relation to the Application for Directions, which are related to directions in relation to certain costs that had been incurred by DW that the tribunal did not have time to consider this application. This application was adjourned and the Applicant DW was directed to bring the application on before Senior Member Endicott if directions were still being sought.