WU

[2017] QCAT 476

CITATION:

WU [2017] QCAT 476

PARTIES:

WU

APPLICATION NUMBER:

GAA2938-17, GAA2939-17, GAA3104-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

5 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

20 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

GUARDIANSHIP

1.   The application by SJK and WM for the appointment of a guardian for WU is dismissed.

ADMINISTRATION

2.   The application by SJK and WM for the appointment of an administrator for WU is dismissed.

ENDURING POWER OF ATTORNEY

3.   The Application for an order about an enduring power of attorney is dismissed.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – application for appointment of guardian and administrator – where adult had major stroke – whether adult has regained capacity – where questions about adult’s decision making in respect of his spouse – where tribunal satisfied that presumption of capacity not rebutted and applications dismissed

APPEARANCES:

The following parties appeared at the hearing:

WU, the adult; SK, the adult’s step-daughter; WM, the adult’s daughter; CM, the adult’s brother-in-law; BB, the adult’s brother-in-law’s de facto; PK, the adult’s son-in-law; WNI, the adult’s sister; KR, the adult’s niece; HB, solicitor for the applicants; WA, support for KS; Ba and Pm, representing the Public Guardian; KM, representing the Public Trustee of Queensland; HR, and AJ, lawyers for the adult; LSL, support for the adult

REASONS FOR DECISION

1. WU is 77 years old and currently resides in an aged care facility at which his wife is also a resident. Prior to WU having a major stroke he had been the in-home carer for his wife. Following the stroke, he was not able to provide the level of care required by his wife who has a diagnosis of dementia and he required assistance with his own care. Accordingly, a decision was made to transition both of them to aged care. WU has not adjusted to being in aged care and has made it clear that he wants both himself and his wife to live in the community. He has plans to move to Victoria and be supported by family members and reside on a property owned there by relatives.

2. The applications before the Tribunal are to consider whether a guardian and administrator should be appointed for WU. When considering applications of this type the Tribunal does so in accordance with s 12 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) which requires the Tribunal firstly to be satisfied that WU has impaired capacity for personal and financial matters before an application can be further considered. Each adult in Queensland is presumed to have capacity[1] for a matter and it is for that presumption of capacity to be rebutted at a hearing if an appointment is to be made.

   [1]GAA Act, s 7(a).

3. WU was assessed by Dr Vecchio, a psychiatrist, on 16 March 2017. She noted the cerebrovascular accident which occurred in February 2016. Dr Vecchio noted that the cerebrovascular accident was in the right frontoparinetal region and has resulted in left hemiplegia. She stated that WU has very poor insight into his disability, anosognosia. On review, WU was angry and frustrated in regard to his current social situation but did not convince Dr Vecchio of any pervasive mood disorder or psychosis. Her working diagnosis was adjustment disorder, anosognosia and dysexecutive dysfunction. Dr Vecchio stated that in her view WU was not able to weigh up the consequences of decisions and therefore did not have capacity. This was particularly so in regard to weighing up the consequences of a change in accommodation or his care needs. She noted that WU had scored 24/26 on a modified MMSE, as he was unable to complete the written component.

4. A Myagedcare support plan for WU, which was completed 21 April 2016, noted the following results for WU: Blind MOCA 18/23 atten.5/8, language 3/3, naming 3/3, delayed recall 3/5, orient 6/6 and that he had reported occasions of confusion and agitation. A psychological exam showed deficits in attention, listening, comprehension, auditory memory, access to remote memory, problem solving skills, abstract verbal reasoning and maths skills, that he showed lack of insight into his condition and medications and had not considered alternative living arrangements. The results were said to indicate that he was not competent to make informed decisions regarding lifestyle and finances.

5. Dr Andrew Pearson stated in an open letter dated 11 March 2016 that WU no longer has the capacity to make decisions regarding health, lifestyle and financial matters and that his enduring power of attorney can be invoked.

6. Dr Foreman completed a health professional report on 17 March 2017 noting the above reports. He stated that WU had refused to answer his questions. In Dr Foreman’s opinion WU had poor insight and was incapable of making meanful (sic) decisions about personal health care. He stated that he had no insight into making decisions, no insight into consequences in regard to lifestyle and accommodation matters, and that he was not capable of making meaningful decisions in regard to finances. WU did not have any impairment in regard to communication. In Dr Forman’s opinion, WU did not have the capacity to make an enduring power of attorney or any decisions in regard to personal and financial matters.

7. A referral for cognitive assessment was prepared for WU on 23 March 2017 by Dr Wijerrathne. This notes that:

   a)WU is unhappy in the aged care facility.

   b)WU is unhappy about his daughter who is attorney.

   c)WU is unhappy that he cannot access his money and he is under the Public Trustee.

   d)WU wants to have a change of attorney and be able to manage his affairs.

   e)An MMSE was performed in which he scored 29/30, and this result indicates that no significant cognitive impairment has been identified.

8. A hearing of the Tribunal occurred when this was the extent of the evidence in regard to capacity. It was noted that WU was trying to rely on Dr Wijerrathne’s assessment and the Tribunal did not consider that was sufficient. Directions were made to have a full capacity assessment performed with a report for the Tribunal.

9. An assessment was performed by Dr Kortlucke with a report dated

   
   

   27 July 2017. DR Kortlucke noted the history of the cerebral haemorrhage in February and that WU had transitioned to aged care with his wife. Dr Kortlucke appears to have been told that WU had managed through QCAT to have the power of attorney granted to his daughter revoked and that he wished to go through the QCAT process and become guardian for his wife.

10. Dr Kortlucke reviewed the old CT scans and noted that WU certainly had a very large haemorrhage last year and that he obviously still has some deficits, which he describes of a physical nature. He notes that he has some left sided inattention but all in all cognitively came across quite well in discussion. An MMSE of 28 out of 30 was noted, with one error in short term memory and his topographical apraxia was still said to be obvious from the right parietal involvement of the stroke. All in all, Dr Kortlucke believed that WU had capacity at this stage and that his cognition was within the normal limits of the MMSE and his general discussions were said to be coherent and sensible. He did not seem too have too much inattention or neglect of his left side that he does not understand his situation, and, as such, Dr Kortlucke believed that he had insight into his physical and cognitive state. Dr Kortlucke thought he had capacity at this stage and probably he could be made guardian for his wife, but that was up to the Tribunal to determine.

11. At the hearing, WU was able to respond appropriately to the Tribunal’s questions and explained his attentions in regard to moving to Victoria if he were able to make his own decisions. He was able to show that he understood the risks of providing funds to relatives for the purpose of gaining accommodation in a property which was ultimately owned by his nephew and that there would be appropriate community care arrangements in place. He had legal representatives and they noted that in accordance with s 5 of the GAA Act, he had a right to support in respect of decisions and a right to make decisions to which others did not agree.

12. In regard to support I note that WU has a large amount of support from his family and they wish to assist him to ensure that he regains his independence. Unfortunately, they have not assisted him to repair his relationships with his daughter and step-daughter. It must be said that at the time of his stroke in 2016, WU clearly had lost capacity and any decisions made by attorneys at that stage would have been made on advice that his loss of capacity and need for placement in an aged care facility was permanent as can be ascertained from the ACAT assessment.

13. WU’s daughter and step-daughter are very concerned that he will place himself and his wife at risk if they leave the aged care hostel and submissions were made in this regard by their legal representative. I note though that WU was questioned to give him the opportunity to answer their concerns.

14. Having regard to the report of Dr Kortlucke and WU’s presentation at the hearing, I consider that through immense effort he has regained capacity for personal and financial matters. Therefore, the presumption of capacity has not been rebutted and the applications must be dismissed.