DKM [2020] QCAT 443

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DKM [2020] QCAT 443 PARTIES: In applications about matters concerning DKM APPLICATION NO/S: GAA11170-20, GAA11942-20, GAA12049-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 5 November 2020 HEARING DATE: 6 October 2020 HEARD AT: Brisbane via videoconference DECISION OF: Member Casey ORDERS: 1. The application for the appointment of a guardian for DKM is dismissed. 2. DR is appointed as administrator for DKM for all financial matters. 3. The administrator is required to provide a financial management plan to the Tribunal within three (3) months. 4. The Tribunal grants a full exemption to the administrator from the requirement to provide annual accounts but directs the administrator to keep records of dealings and transactions involving DKM’s income and property and directs the administrator to provide to the Tribunal within twenty-one (21) days of being notified that a review of their appointment has been commenced: (a) Copies of DKM’s bank statements/passbooks/term deposits for the past year; (b) A list of DKM’s current assets and liabilities; (c) A current fortnightly budget of income and expenditure; and (d) A signed and witnessed declaration as to continuing appropriateness for appointment. 5. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five years. -- 1 of 9 -- 2 6. The following Enduring Power of Attorney for DKM is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld): (a) The Enduring Power of Attorney dated 20 June 2017 appointing DR as attorney for financial, personal and health 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 declared invalid - need for the appointment of an administrator Guardianship and Administration Act 2000 (Qld) (‘GAA’), s 12, s 14, s 15, s 82(2), Schedule 4 Powers of Attorney Act 1998 (Qld) (‘POA’) s 44, s 62, s 113(2) Human Rights Act 2019 (Qld) (‘HRA’) s 13, s 24, s 25, s 48 APPEARANCES: Applicants: IJ – director of a non-governmental organisation (NGO) which provides in-home nursing support services to the adult Others: DKM – the adult DR – daughter of the adult DB – care manager and clinical nurse from the NGO Delegate of the Office of the Public Guardian CSB – Justice of the Peace (for part of the hearing) Interpreter (Nepali) REASONS FOR DECISION [1] DKM is 79 years old and of Bhutanese heritage. The adult’s language is Nepali. At the time of the hearing the adult was living with and being cared for by her daughter, DR, and was receiving in-home support from a non-governmental organisation (NGO) for nursing care. -- 2 of 9 -- 3 [2] The adult appointed DR as her Enduring Power of Attorney for personal, health and financial matters on 20 June 2017. The power for financial matters was to begin immediately. DR signed the attorney’s acceptance on the same day. [3] On 2 September 2020, the Tribunal received an application from IJ, the director of the NGO providing in-home support to the adult, seeking the appointment of the Public Guardian as guardian for the adult. On the same day, the Tribunal received an application from IJ for an interim guardianship order for the adult. The interim order was not granted by the Tribunal in a decision dated 4 September 2020. [4] On 24 September 2020, the Tribunal initiated an application for the appointment of an administrator for the adult. [5] On 28 September 2020, the Tribunal initiated an application for an order about an Enduring Power of Attorney. The Legislation [6] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the 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. [7] The adult is presumed to have capacity in accordance with section 7 of the GAA and General Principle 1 of Schedule 1 under the GAA. [8] The GAA defines capacity as follows:1 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 (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [9] 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. [10] 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. [11] 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. [12] The Tribunal must have regard to the POA in its consideration of DKM’s Enduring Power of Attorney dated 20 June 2017. [13] 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 POA. Section 1 GAA, Schedule 4 (definition of ‘capacity’). -- 3 of 9 -- 4 44 of the POA provides the formal requirements for making an Enduring Power of Attorney. The Tribunal may declare an Enduring Power of Attorney invalid if it does not comply with other requirements of the POA.2 Does DKM have capacity to make personal and financial decisions? [14] The Tribunal received a written report dated 26 August 2020 from DB, a clinical nurse who had been providing in-home nursing services to the adult for a period of six months. The report states that the adult sustained a cerebrovascular accident in 2017 and that the adult’s daughter, DR, is her primary caregiver. The report states that DR is making all decisions for the adult in relation to health care, lifestyle, accommodation and financial matters as the adult’s Enduring Power of Attorney. In DB’s opinion, the adult is able to indicate likes, dislikes, simple choices and requests for activities of daily living using simple expressive communication in English but is, however, unable to make all financial decisions and complex personal decisions due to dementia or a related disorder. [15] In her oral evidence to the Tribunal, DB confirmed her clinical opinion as outlined above, adding that the adult indicates her choices by saying ‘yes’ or ‘no’ to simple questions. [16] IJ, the applicant, concurred with the above evidence. [17] The adult participated in the hearing with the assistance of a Nepali interpreter. The adult told the Tribunal that she lives with her daughter. She said that she recently went to hospital because of a catheter, which she no longer uses. She said her daughter, DR, does everything for her, including cooking and barbeques. [18] DR told the Tribunal, with the assistance of an interpreter, that she makes decisions for the adult based on the adult’s views and wants, and that sometimes the adult ‘doesn’t know [what to do] so I do’. DR submitted she makes all of the adult’s financial decisions along with decisions in relation to the nature and extent of in-home service provision for the adult, and that she had also provided and had withdrawn consent for respite care for the adult in the past. Furthermore, DR submitted she had completed resuscitation consent forms, on behalf of the adult, during the adult’s recent hospital admission when requested to do so by hospital staff. [19] The Tribunal considered the clinical and oral evidence. The weight of evidence establishes that DKM has cognitive deficits which adversely impact on her ability to make financial decisions and complex personal decisions. Her daughter, DR, has commenced acting as her Enduring Power of Attorney for personal, health and financial decisions. Upon consideration of the evidence, the Tribunal is not satisfied that DKM understands the nature and effect of her financial and complex personal decisions. [20] Accordingly, the Tribunal rebuts the presumption of capacity for DKM for financial and complex personal matters. 2 POA, Section 113(2). -- 4 of 9 -- 5 Determination of the Enduring Power of Attorney dated 20 June 2017 appointing DR as attorney for DKM for personal, health and financial matters [21] The Tribunal’s rebuttal of the presumption of capacity for the adult for financial matters and complex personal matters enlivens the Enduring Power of Attorney dated 20 June 2017 appointing DR as attorney for personal, health and financial decisions. [22] Accordingly, the Tribunal addressed the application in relation to making an order about the above Enduring Power of Attorney. [23] There is no evidence before the Tribunal to rebut the presumption that the adult had the requisite capacity to make the Enduring Power of Attorney on 20 June 2017. [24] The Tribunal received both written and oral evidence from CSB, the Justice of the Peace who witnessed the Enduring Power of Attorney of 20 June 2017. In his written evidence to the Tribunal, CSB submitted that he was contacted to witness the Enduring Power of Attorney by the social worker at a hospital in which the adult was receiving care. He submitted that the request was urgent as the adult’s medical condition was expected to deteriorate. He said upon arrival he found the adult to be pleasant, calm and alert and, in his opinion, was ‘perfectly able to understand what had been previously explained to her by the social worker’. CSB further submitted that he went through the Statement of Understanding and that the adult indicated she understood and agreed with the Statement. He said the adult was unable to physically sign the document as ‘her condition had rendered her right arm useless’. CSB explained that the adult had ‘managed after a heap of effort’ to ‘make a mark in the appropriate space’ after he told her that such an action would ‘suffice’ for her signature. [25] Upon questioning, CSB submitted that he did not take notes of the meeting as it was not his ‘usual action to take notes on what happened’. He recalled that a man, unknown to him, had been present in the room for the duration of the time he had spent with the adult. CSB also recalled that the document itself had been prepopulated by the time he arrived, presumably by the social worker. He said he did not ask the adult questions in relation to her circumstances or her decisions about the Enduring Power of Attorney, as he assumed these factors had been canvassed by the social worker. CSB submitted that he could not recall the adult asking questions or making comments in relation to the document, adding ‘I cannot recall her saying anything at all’. He said the adult indicated she understood the Statement of Understanding as she ‘smiled and nodded’, and that she indicated she could not use her right hand to sign the document by lifting her arm, pointing to it and shaking her head. CSB advised that he wrote the adult’s name adjacent to the cross the adult drew in place of a signature. CSB told the Tribunal that he was not aware, when he attended the adult in the hospital, that she could not understand, speak or read English. He said that he had assumed she could understand English, otherwise he would not have agreed to witness the document. [26] The Tribunal considered the evidence of the witness to the Enduring Power of Attorney dated 20 June 2017. Notwithstanding the fact that an eligible signer3 was not called upon to sign on behalf of the adult, given the adult’s physical challenges in signing the document, the above evidence establishes that the witness did not take the 3 POA, Section 44(3)(a)(ii). -- 5 of 9 -- 6 necessary steps to satisfy himself that the adult understood the nature and effect of an Enduring Power of Attorney4 as documented in the Statement of Understanding. [27] By his own admission, the witness acted on the belief that another individual had ascertained the requisite information from the adult prior to his arrival at the hospital. In this context, he relied on the smiles and nods of the adult, in the absence of any verbal expressive language of the adult, in his consideration of the adult’s capacity to make the Enduring Power of Attorney. Had the witness carried out his duties in accordance with his legislative requirements and conducted his own questioning in relation to the adult’s capacity to make the Enduring Power of Attorney, he would have established that the adult requires a Nepali interpreter and translator to understand spoken and written English, respectively. In these circumstances, according to his own evidence, CSB would not have agreed to witness the document as he would not have been able to satisfy himself that the adult understood the necessary criteria to make the Enduring Power of Attorney. [28] The Tribunal is therefore not satisfied that CSB, as the witness to Enduring Power of Attorney dated 20 June 2017, properly certified the document as he did not ascertain the adult’s understanding of the nature and effect of an Enduring Power of Attorney, having regard to section 41(2) of the POA. [29] Accordingly, the following Enduring Power of Attorney for DKM is declared invalid pursuant to s 113(2) of the POA and s 82(2) of the GAA: the Enduring Power of Attorney dated 20 June 2017 appointing DR as attorney for financial, personal and health matters. Is there a need for the appointment of a guardian for the adult? [30] In the context of the Tribunal’s rebuttal of the adult’s capacity for making financial and complex personal decisions, together with the Tribunal’s declaration of the invalidity of the Enduring Power of Attorney dated 20 June 2017, the Tribunal proceeded with the applications for the appointment of a guardian and administrator for the adult. 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. [31] The Tribunal obtained evidence in relation to the complex personal decisions that are required for the adult. [32] DKM resides in the home of DR, her daughter and primary carer. She receives daily in-home support services, to a maximum of 12 hours per week, from a NGO, the director of which is the applicant in the guardianship matter. The NGO had been providing services to the adult since February 2019. [33] The applicant submitted that staff from the NGO had recently observed indicators of alleged neglect and/or abuse of the adult when they had provided in-home care to the adult. The applicant stated the adult had sustained injuries (e.g. broken finger, bruising and inflammation) which the NGO staff believed had been caused by members of the adult’s family when providing care and assistance to the adult. Care staff had also reported allegations that the adult was spending long periods in bed with raised bedrails, increasing the risk of pressure injuries and deconditioning, and that 4 POA, Section 41. -- 6 of 9 -- 7 the family were providing the adult with insufficient fluids causing dehydration. Care staff had also reported that DR had previously told them that she was unwell and not able to cope with her continued role as carer for the adult. [34] The applicant was seeking the appointment of a guardian for health care, provision of services and day-to-day issues for the adult. The applicant had submitted the application to the Tribunal when the adult was hospitalised, together with an application for an Interim Order for the appointment of a guardian, the latter of which was not granted by the Tribunal in a decision on 4 September 2020. [35] The evidence before the Tribunal is that the care provider and family members facilitated the adult’s admission to the hospital. The adult was discharged from hospital after 14 days, and was returned to the home of DR. The Tribunal obtained the hospital discharge summary dated 10 September 2020, which documented the reasons for the admission were a urinary tract infection and faecal loading, with low abdominal pain and decreased urine output. An indwelling catheter was in situ on admission. [36] The Tribunal also had documentation in relation to two previous presentations to the hospital’s emergency department on 1 August 2020 and 9 August 2020, both in relation to complications of the urinary catheterisation, including urinary tract infection and urinary retention. Within all of the hospital documentation before the Tribunal, there was no reference to suboptimal care or suspected abuse/neglect by her family. After both presentations to the hospital and the hospital admission, the adult was returned to the home of DR, to be cared for by family members, supported by service providers. [37] In her written and oral evidence to the Tribunal, DR strongly disputed the accusations of the service providers. She denied all allegations of abuse and neglect, and submitted that she remained willing and able to care for the adult at home. DR described that her care of the adult encompasses practices that have significant cultural and religious significance to the adult. She explained that all decisions are made after collaboration with others and in consultation with the adult in a language that the adult understands. Her submissions were supported by written evidence from other individuals, including two general practitioners, her sister (and daughter of the adult), a community leader and a senior social worker from a community centre. The written evidence included that the family has a deep Hindu faith and that, to them, their mother is their first Guru to whom they are devoted. DR, as daughter and primary caregiver to the adult, was described as the adult’s life and soul. [38] The Tribunal considered the oral and clinical evidence. The adult’s accommodation and care arrangement, at the home of DR, is culturally and religiously significant to the adult and her family. An accommodation decision is not needed as the adult’s accommodation is both stable and appropriate to the adult’s holistic needs. [39] The adult requires support services for her activities of daily living. Care staff from the NGO continue to provide daily support to the adult, to a maximum of 12 hours per week. Decisions in relation to the provision of services for the adult are made by DR, supported by her family and their community, in consideration of the adult’s holistic requirements, having regard to the General Principles.5 These informal arrangements 5 GAA, Schedule 1. -- 7 of 9 -- 8 for service provision decisions continue to meet the adult’s needs and protect her interests. [40] The adult has multiple physical health conditions which require a decision-maker to consent, or not consent, to health care treatment, in accordance with the General Principles and the Health Care principle.6 The adult has recently had three presentations to the Emergency Department of the hospital, with one presentation resulting in a hospital admission. Family members have a demonstrated history of enabling the adult’s access to health care, liaising with clinicians and making decisions in accordance with the General Principles and the Health Care Principle.7 The Statutory Health Attorney (SHA)8 regime is an appropriate decision-making process in relation to health care matters for the adult, as DR and other members of the adult’s family remain willing and able to make health care decisions for the adult. [41] The evidence establishes, pursuant to section 12 of the GAA, that while there is a need for decisions in relation to the provision of services and health care for the adult, the adult’s needs will be met and her interests will be protected by the adult’s family making decisions for the adult informally and under the SHA regime, respectively. [42] Accordingly, the application for the appointment of a guardian for DKM is dismissed. Is there a need for the appointment of an administrator for the adult? [43] The Tribunal obtained evidence in relation to the financial decisions that are required for the adult. [44] DR provided evidence to the Tribunal in relation to the adult’s financial circumstances which included that the adult receives a full Australian Age Pension into the bank account of DR as the adult does not have a bank account. The adult’s pension is utilised by DR to pay for all expenditures pertaining to the adult. DR could not identify any savings within her account that were the property of the adult. There were no reported liabilities. [45] The evidence establishes that DKM has income that requires management to ensure funds are available for her needs, including accommodation, lifestyle and care requirements, at the present time and into the future. There must be an adequate and effective decision-making regime in place for the adult, as otherwise her financial needs will not be met and her financial interests will not be protected. [46] The Tribunal determines that the provisions of section 12 of the GAA have been satisfied in relation to the necessity of the appointment of an administrator for the adult. Who is the most appropriate person for appointment as administrator? [47] At the hearing, DR submitted she sought appointment as administrator for the adult. The options for appointment as administrator for the adult, therefore, were DR or the Public Trustee of Queensland. 6 GAA, Schedule 1. 7 GAA, Schedule 1. 8 POA, Section 62. -- 8 of 9 -- 9 [48] The Tribunal had regard for the appropriateness considerations set out in section 15 of the GAA in relation to proposed appointees. [49] The evidence establishes that DR has knowledge of the adult’s holistic circumstances and has informally managed the adult’s income so that funds have been available for the adult’s requirements having regard to her accommodation, care, religious and cultural considerations. DR has provided evidence to the Tribunal that she has the support of the adult, family and community members. At the hearing, DR provided the Tribunal with an assurance that she understood the necessity of establishing a bank account for the adult into which the adult’s pension would be received. In this way, the adult’s cash assets would be separate and identifiable, enabling transparency and accountability. [50] The Tribunal is of the view that DR would be able to identify, protect and manage the adult’s assets, income and expenditure, and make financial decisions that would best meet the adult’s needs, in accordance with the General Principles.9 DR is considered the appropriate appointee, having regard to the provisions of section 15 of the GAA. [51] Accordingly, the Tribunal appoints DR as administrator for DKM for all financial matters. The appointment is reviewable and is to be reviewed in five years. [52] The Tribunal gave consideration to the relevant human rights as set out in the 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. DKM’s rights to property and privacy are engaged and limited by the administration appointment. 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 demonstrably justified in accordance with section 13 of the HRA. 9 GAA, Schedule 1. -- 9 of 9 --