CI [2024] QCAT 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CI [2024] QCAT 83 PARTIES: In applications about matters concerning CI APPLICATION NO/S: GAA12014-23; GAA12015-23 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 6 February 2024 HEARING DATE: 11 January 2024 HEARD AT: Brisbane via videoconference and teleconference DECISION OF: Member Casey DECISIONS: 1. The Public Guardian is appointed as guardian for CI for the following personal matters: (a) accommodation; (b) provision of services; and (c) health care. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three (3) years. 3. The Public Trustee of Queensland is appointed as administrator for CI for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 7. Before 11 April 2024 the administrator must: (a) Record the appointment as administrator on any property registered in CI’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision. (b) Provide confirmation to the Tribunal that this has been completed by providing: -- 1 of 11 -- 2 (i) A copy of the title search conducted identifying CI’s property; and (ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by her. (c) If no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held. 8. If the ownership of any property of CI changes in any way or she 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 CI’s interest in another property. 9. The following Enduring Power of Attorney for CI is overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 (Qld) can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 10 November 2020 appointing SN as first attorney, and DA and DB successively and severally, for personal/health and financial matters. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity is rebutted – where any enduring power of attorney is overtaken – where need for the appointment of a guardian and administrator Guardianship & Administration Act 2000 (Qld), Schedule 4, s 7, s 11, s 12, s 14, s 15, s 22(2) Powers of Attorney Act 1998 (Qld), s 6, s 9, s 33, s 66, s 85, s 86, s 87, s 109, s 116 Human Rights Act 2019 (Qld), s 13, s 17, s 19, s 25, s 15, s 48 -- 2 of 11 -- 3 APPEARANCES: Applicants: DA, daughter DB, daughter Others: SN, son JT, partner of DA KM, son-in-law SA, daughter-in-law [CI did not attend the hearing] REASONS FOR DECISION [1] CI ('the adult’) is 87 years old and has been widowed since September 2020. [2] On 10 November 2020, the adult appointed SN, her son, as her Enduring Power of Attorney for personal/health and financial matters and her daughters, DA and DB, severally as successive attorneys, should SN be incapable, unwilling or otherwise unable to act. The power for financial matters was to begin when the principal became ‘physically or mentally incapable of either making, carrying out or communicating or understanding the nature and effect of a decision’, as stated in writing by her treating medical practitioner. All attorneys had signed their respective attorney’s acceptances. [3] In May 2021, SN and his wife moved into the adult’s home on her rural property, at which time the adult was moved into a dwelling that had been recently relocated onto her property. CI’s two daughters, DA and DB, reside in separate localities to the adult, (i.e. interstate and in a different regional area of Queensland). [4] On 12 October 2023, the Tribunal received applications from DA and DB, seeking their appointments as guardians and administrators for the adult. The Legislation [5] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship & Administration Act 2000 (Qld) (‘GAA’) as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a Guardian and Administrator for the adult. [6] CI is presumed to have capacity.1 [7] The GAA defines capacity as follows:2 Capacity for a person for a matter, means the person is capable of - (a) understanding the nature and effect of decisions about a matter; and 1 GAA, s 7(a). 2 Ibid, Schedule 4 (definition of ‘capacity’). -- 3 of 11 -- 4 (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [8] The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult. [9] The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the GAA. [10] The Tribunal is required to act in accordance with sections 14 and 15 of the GAA when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA. [11] The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the Powers of Attorney Act 1998 (Qld) (‘POA’). If there are attorneys, it is necessary to consider whether they are carrying out their duties in such a way as to protect the adult’s interests and are otherwise acting in accordance with the POA. Does the adult have capacity to make personal and financial decisions? The evidence [12] Written evidence before the Tribunal includes a letter dated 1 August 2023 by the adult’s general practitioner stating that the adult, whom had he had treated since October 2013, ‘suffers permanent significant cognitive impairment’ and that she ‘no longer has capacity to make decisions regarding her health and finances’. [13] The adult’s general practitioner also provided a report dated 6 October 2023. Details within the report follow. In addition to having multiple physical health conditions for which she is prescribed medications, CI has experienced a gradual cognitive decline over the last four years, which has been accelerated in the last twelve months. CI was diagnosed with vascular dementia in 2021 at which time she attained a score of 23/30 on the Montreal Cognitive Assessment. The adult attained a score of 15/30 on the same instrument when administered to her on 1 August 2023. CI is able to perform basic physical care needs, but needs supervision with her medication and monitoring with food intake to ensure adequate caloric intake. CI manages her basic needs with the assistance of her son, although the maintenance of her home’s safety, cleaning and hygiene is substandard. CI is able to make simple, not complex, decisions in relation to her personal/health and lifestyle/accommodation matters and is unable to make all financial decisions. [14] DA and DB concurred with the medical evidence. [15] SN disputed the evidence of the adult’s general practitioner and provided oral submissions which appeared to be relayed to him by his wife, who was attending the hearing via phone from the same location as SN. SN told the Tribunal that he had a hand-written letter from the same general practitioner dated 1 August 2023 stating that CI could make her own decisions. SN said that the general practitioner told him that he and his wife were to look after CI and that she doesn’t need to ‘go into a home’. SN told the Tribunal at the commencement of the hearing that he had not acted as the -- 4 of 11 -- 5 adult’s Enduring Power of Attorney, stating that CI makes her own decisions in a process that involves discussion with himself and his wife. He told the Tribunal that if the adult ‘doesn’t want to do something we don’t do it, unless it is extremely important’. [16] Later in the hearing, SN submitted that he commenced acting as the adult’s attorney for financial matters on or around May 2021, when he and his wife moved into the main dwelling on the adult’s property. He said that he had shown the Enduring Power of Attorney dated 10 November 2020 to the banks and that ‘the solicitor has it’. He stated that he had not obtained a statement in writing from the adult’s treating medical practitioner in relation her incapacity in order to commence acting as her attorney for financial matters, as per the terms within the Enduring Power of Attorney. Determination [17] The Tribunal considered the medical and oral evidence. SN provided inconsistent evidence to the Tribunal when he stated he believed the adult was making her own decisions and then submitted that he had commenced acting as the adult’s attorney for financial matters in May 2021. [18] SN’s submissions about a purported hand-written letter penned by the adult’s general practitioner on 1 August 2023 stating that the adult can make her own decisions is in direct contrast to the written evidence before the Tribunal from the same general practitioner dated 1 August 2023 and 6 October 2023. [19] Given the medical evidence that is before the Tribunal, which has been informed by longitudinal assessment, observation and treatment of the adult over a period spanning thirteen years, the Tribunal does not accept the oral submissions and opinions of SN in relation to the adult’s decision-making capacity. [20] The medical evidence establishes that CI has increasing cognitive deficits attributable to vascular dementia that preclude her from making financial and complex personal decisions. Upon consideration of the evidence, the Tribunal is not satisfied that CI understands the nature and effect of her financial and complex personal decisions, due to her cognitive deficits. [21] Accordingly, the Tribunal rebuts the presumption of capacity for CI for financial and complex personal decisions. What decisions are required for the adult? The evidence [22] With the progression of her dementia, CI will continue to experience a cognitive and functional decline, necessitating complex decisions in relation to her health and wellbeing. Details of CI’s personal circumstances are outlined below. [23] CI was assessed by the Aged Care Assessment Team (‘ACAT’) on 31 August 2023 as eligible to receive a level 4 home care package, at high priority, with support services to include personal care assistance including showering and medication administration, meal preparation and meal set up, regular social support and interaction, domestic assistance and transport services. CI is only receiving domestic assistance through the home care package. Further decisions are required to enable -- 5 of 11 -- 6 the adult to obtain appropriate support within her accommodation and in order to safely access and engage with her community. [24] Given that the adult is eligible for the highest level of home care services, at a high priority, ongoing decisions are required to monitor the appropriateness of the adult’s accommodation as her care needs increase with the progression of her dementia. [25] As CI has multiple physical health conditions, a decision-maker is needed to consent, or withhold consent, to health care treatment including polypharmacy, in accordance with the general principles3 and the health care principles.4 [26] In relation to the adult’s financial circumstances, CI has assets, income and expenditure that require management. CI is the sole owner of the rural property where she resides. Other assets include several bank accounts, superannuation and shares. The adult derives her income from interest on her cash investments and dividends from a share portfolio. Her expenditure is in relation to her property and personal/living costs. There are no reported liabilities. Determination [27] The evidence establishes, pursuant to section 12 of the GAA, that there is a need for decisions in relation to service provision, accommodation, health care and financial matters. There must be an adequate and effective decision-making regime in place for the adult, as otherwise her needs will not be met and her interests will not be protected. Is the current decision-making regime adequately meeting the adult’s needs and protecting her interests? The evidence (personal matters) [28] The applicants told the Tribunal that they agreed to the decisions whereby SN and his wife would move onto the adult’s property and the adult would be accommodated in a relocated home on her property. They said the decisions were made in response to the adult’s unwillingness to receive residential aged care. [29] In their submissions, DA and DB expressed concern that SN had not been acting responsibly to the adult. They said that CI was living in conditions that were not clean and that SN and his wife did not pay attention to renewing the adult’s scripts and ensuring that she was taking her medications as prescribed. The applicants said that due to their concerns about CI’s wellbeing, they consulted with the adult’s general practitioner to enable her to be referred for specialist consultation, and that DA was present when the adult was reviewed by a geriatrician. The applicants submitted that SN’s attention to renewing scripts and ensuring that the adult was taking her medications only improved after their intervention on 1 August 2023 by contacting the adult’s general practitioner who advised SN of his obligations as personal attorney for the adult. [30] The applicants said that they had tried to work with SN to put a home care package in place, but SN and the adult were opposed to the idea. They submitted that the adult’s home care package was instigated through their interactions with the adult’s general practitioner and the aged care assessment team, and that the adult was still not 3 Ibid, s 11B. 4 Ibid, s 11C. -- 6 of 11 -- 7 receiving necessary support and assistance. They stated that CI lives a life of isolation on her property, with no social interaction or mental stimulation, and insufficient emotional support. They said that the relocated dwelling in which CI resides is in need of repair in areas including the bathroom to ensure the health and safety of the adult. They told the Tribunal that ‘we want her to stay in her little house’ with ‘the facilities repaired’ and ‘to be cared for properly’. They expressed concern that SN and his wife have health issues and do not have the ability to help CI. The applicants also indicated an intention to consider residential aged care for the adult at a time when her needs can no longer be met in the community. [31] In response, SN submitted that the adult has been making her own decisions in relation to the nature and scope of services provided to her. SN and his wife told the Tribunal that they provide informal support to the adult by supervising her medication, providing her with meals and transporting her to medical appointments. They said that CI receives domestic assistance through the home care package and that hand rails are to be installed in the bathroom. The evidence (financial) [32] The undisputed evidence before the Tribunal is that the adult’s funds were utilised by SN to move the secondary dwelling onto her property and to improve the first dwelling in which he and his wife reside. [33] The applicants contended that SN had been managing the adult’s finances since the death of her husband in September 2020. In their submissions, the applicants expressed concern that SN and his wife had been using the adult’s bank accounts to advance their personal position and lifestyle. They based their submissions on their visits to the adult’s property and from perusal of bank statements for one of CI’s accounts for the period from 1 April 2022 to 1 March 2023, which they obtained from the adult and submitted to the Tribunal. [34] The applicants contended that the bank statements contained multiple unexplained and significant withdrawals and outgoing transfers with no plausible explanations. They said that the statements indicate that the adult’s sole source of income for the period was approximately $27,812, which was obtained from her investments, including a term deposit redemption of $17,000. They submitted that in the same period withdrawals from CI’s account totalled approximately $76,681. They said that SN added a double garage to the main dwelling on the property from the adult’s funds, for his personal use, in circumstances where CI neither owns nor drives a vehicle. They submitted that the adult was paying for all outgoings on the property. [35] The applicants said that, on at least five occasions, separately and together, they had attempted to speak with SN to obtain information about CI’s ongoing care and the financial anomalies in relation to her bank account. They said that on more than one occasion SN became aggressive, including an occasion within a solicitor’s office. They told the Tribunal that SN was not willing to advise them of the costs to the adult pertaining to the renovation of the primary dwelling and relocation of the secondary dwelling. The applicants said that when they had last visited the property SN did not permit them inside the main dwelling. They submitted that SN’s wife had communicated with them via text and telephone using what they described as obscene language in an attempt to intimidate and threaten them should they pursue their enquiries about the adult’s financial circumstances. -- 7 of 11 -- 8 [36] In oral evidence to the Tribunal, SN submitted that he could not recall with certainty when he started to informally support the adult with her decisions. He said that he thought that he had commenced acting as CI’s Enduring Power of Attorney for financial matters on or around May 2021, when he and his wife commenced living in the main dwelling on the adult’s property. He said that he managed the relocation of the secondary dwelling prior to May 2021, which cost the adult approximately $49,000. SN said that approximately $76,000 was spent by the adult on renovations to the main dwelling which took approximately 12-18 months. He submitted that he organised all of the work in accordance with Council requirements and that the adult may have been signing cheques for approximately 18 months. [37] When asked about details of cash withdrawals from one of the adult’s bank accounts, (e.g. two cash withdrawals of $5,000 each from two separate banks on 8 November 2022 and a cash withdrawal of $10,000 on 8 February 2023), SN told the Tribunal that he had supported the adult to withdraw cash to pay for the renovations (including some payments to a person he defined as ‘a mate’ who provided products/services) and for other expenses such as rates. He said that some of the cash withdrawals were in response to the adult’s requests to have cash on hand. [38] When asked, SN said he could not recall the reasons for a staff assisted transfer of $10,000 on 6 February 2023 to a National Australia Bank account number and two separate staff assisted transfers totalling $16,000 to a different National Australia Bank account number on 23 March 2023 and 12 April 2023. SN submitted that he and his wife would have paid for some items in the main dwelling, however he didn’t know. He then offered that he had paid for a dishwasher and a new stove. He said that he had kept some records in relation to the adult’s financial matters. [39] SN said that he had not identified all of the adult’s assets (e.g. details of her share portfolio) and that the applicants do not talk to him and have not asked him about the adult’s finances. When questioned, he told the Tribunal that he did not consult with or advise the applicants about any of the adult’s expenditure on the main dwelling, adding that ‘they went through the bank accounts.’ SN said that he was seeking to continue to act as the adult’s financial attorney. Determination [40] SN provided contradictory evidence to the Tribunal in relation to when he began to exercise power under the Enduring Power of Attorney. SN told the Tribunal that he had commenced acting as financial attorney for CI on or around May 2021 when he moved onto the adult’s property, yet he also submitted that he had managed the relocation of the secondary dwelling onto the property prior to May 2021, including organising all of the work in accordance with Council requirements. [41] The evidence establishes that the letter dated 1 August 2023 by the adult’s general practitioner, which is before the Tribunal, served to authorise SN’s power to commence as Enduring Power of Attorney for financial matters for CI, in accordance with the terms of the instrument.5 However, in SN’s oral evidence to the Tribunal, he has not recognised the letter as such, submitting that the general practitioner provided him with a hand-written document dated the same day advising him that the adult can make her own decisions and that he should increase his care and support for the adult. 5 POA, s 9(1). -- 8 of 11 -- 9 [42] SN’s power for both personal and financial matters became exercisable during any or every period that CI had impaired capacity for the matters.6 The Tribunal is of the view, therefore, that SN had the authority to exercise his power as Enduring Power of Attorney for CI before the general practitioner’s written statement of 1 August 2023 that advised of the treating practitioner’s assessment that CI was incapable of making personal and financial decisions. [43] In relation to SN’s financial decision making for the CI, the Tribunal finds that SN failed to keep property separate7 when he and his wife moved into the adult’s main dwelling and spent, by his own admission, approximately $76,000 of the adult’s funds on extensive renovations. His actions include the expenditure of a sum, which he estimates as $49,000 of the adult’s funds, to move a dwelling onto CI’s property to accommodate her so that he and his wife could move into CI’s primary dwelling. These circumstances give rise to a presumption in the adult’s favour that she was induced to enter such transactions by SN’s undue influence.8 [44] In addition, by his own admission, SN failed to act with reasonable diligence9 by not identifying and protecting all of the adult’s assets (e.g. share portfolio), and did not keep and preserve accurate records and accounts of all dealings and transactions made under his power as financial attorney.10 Of further concern to the Tribunal is that whilst SN was acting as financial attorney for CI, she was signing cheques and withdrawing large sums of cash from her bank account. [45] The evidence before the Tribunal is that SN does not understand, and has not understood, the nature of the adult’s dementia diagnosis and the need for the adult to receive extensive support, at a high priority, both within an accommodation setting and in order to access and engage with her community. CI remains on her property with insufficient support services, contrary to the recommendations of the Aged Care Assessment Team as at 31 August 2023. [46] The evidence further establishes that SN has not adequately consulted with the adult’s successive attorneys (the applicants) when making decisions for the adult. [47] The Tribunal, therefore, is not satisfied that SN has applied, or would be able to apply, the general principles11 nor the health care principles12 as required under the POA. [48] Accordingly, the Tribunal is not satisfied that SN has or is likely to discharge effective decision-making in relation to personal and financial matters for CI. [49] Who should be appointed as guardian and administrator for the adult? The evidence [50] The options for appointment as guardian and administrator are the applicants or the Public Guardian and the applicants or the Public Trustee of Queensland, respectively. 6 Ibid, s 33. 7 Ibid, s 86. 8 Ibid, s 87. 9 Ibid, s 66. 10 Ibid, s 85. 11 Ibid, s 6C. 12 Ibid, s 6D. -- 9 of 11 -- 10 [51] In their submissions, the applicants stated that even though they live in different regions to the adult, their decision making would be informed from visiting the adult more frequently and from obtaining information from their adult children who could also travel to visit the adult. They expressed confidence in being able to make decisions in consultation with SN. [52] In relation to the adult’s financial matters, the applicants submitted that they would be able to identify the adult’s assets and obtain bank statements through electronic means, as they have computers and mobile phones. Determination [53] The evidence before the Tribunal is that the applicants have been effective in liaising with the adult’s general practitioner and providing support to the adult. Their actions have enabled the adult to be referred for specialist medical consultation and assessed by the aged care assessment team in order for her to access services within a home care package at high priority and residential respite or permanent care, if required. They are compatible with the adult and with each other. They are willing to act as decision-makers and have signed statutory declarations as to their appropriateness for their proposed appointments. [54] Notwithstanding the above, it is of concern to the Tribunal that the applicants, since at least May 2021, have known and have not been opposed to SN and his wife residing in the main dwelling on the adult’s property, with the adult being moved into the second dwelling, while the main dwelling in which SN was accommodated was being extensively renovated. Consequently, the applicants were aware that in circumstances where SN was making financial decisions for the adult, her finances were not kept separate to those of SN and that SN was benefitting from the adult’s funds being utilised to subsidise his living costs and those of his wife. [55] Whilst the applicants submit that should they be appointed they would endeavour to engage with SN to inform their decision making, the evidence establishes that they have been unsuccessful in their attempts to consult with SN to date. There is a history of conflict with inadequate and negative communication processes between SN and the applicants, which has included the engagement of lawyers and the applicants being denied entry into the main dwelling on the adult’s property. The Tribunal is not convinced that there would be adequate consultation to ensure CI’s interests were not prejudiced by such a breakdown in communication between them. Furthermore, any decisions made by an administrator in relation to the adult’s property will have personal consequences for SN and his wife. Should the applicants be appointed as administrators for the adult, the conflict between SN and the applicants would likely be exacerbated in these circumstances, further reducing the likelihood of a positive outcome for the adult. [56] Accordingly, the Tribunal is not satisfied that DA and DB would be able to discharge effective decision-making for the adult in a way that was consistent with the legislative requirements of the GAA. [57] The Tribunal determines there is a need for an independent and experienced guardian, who would be able to consult with all parties and make decisions in accordance with -- 10 of 11 -- 11 the general principles13 and the health care principles.14 The Public Guardian is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA. [58] Accordingly, the Tribunal appoints the Public Guardian as guardian for CI for the matters of accommodation, provision of services, and health care. The Public Guardian is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA. The Tribunal determined that the appointment of the guardian is to remain in place until further order of the Tribunal. The appointment is reviewable and is to be reviewed in three years. [59] In relation to financial decision-making, the Tribunal is of the view that the Public Trustee of Queensland, as an independent, skilful, and experienced administrator, would be able to make financial decisions that best meet the adult’s needs, in accordance with the general principles.15 The Public Trustee of Queensland is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA. [60] Accordingly, the Tribunal appoints the Public Trustee of Queensland as administrator for CI for all financial matters. This appointment remains current until further order of the Tribunal. [61] The Enduring Power of Attorney for CI dated 10 November 2020, appointing SN as first attorney and DA and DB successively and severally for personal/health matters and financial matters, is overtaken by the making of the appointments of a guardian and administrator and, in accordance with s 22(2) of the GAA, can no longer be acted upon to the extent that these appointments have been made. [62] The Tribunal gave consideration to the relevant human rights as set out in the Human Rights Act 2019 (Qld) (‘HRA’). As required by section 48 of the HRA, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. CI’s rights to property,16 freedom of movement,17 privacy,18 and protection from being subject to medical treatment without her full, free and informed consent19 are engaged and limited by the guardianship and administration appointments. Taking into account the findings above in relation to the criteria set out in the GAA and POA, the Tribunal is satisfied that the limits imposed by the decision of the Tribunal are reasonable and justified in accordance with section 13 of the HRA. 13 GAA, s 11B. 14 Ibid, s 11C. 15 Ibid, s 11B. 16 HRA, s 24. 17 Ibid, s 19. 18 Ibid, s 25. 19 Ibid, s 17. -- 11 of 11 --