BP [2019] QCAT 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BP [2019] QCAT 40 PARTIES: In an application about a matter concerning BP APPLICATION NO/S: GAA12357-18; GAA12358-18 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 1 February 2019 HEARING DATE: 1 February 2019 HEARD AT: Southport DECISION OF: Member McDonald ORDERS: 1. KN and TN are appointed jointly and severally as guardians for BP for the following personal matters: (a) Accommodation; and (b) Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 3. KN and TN are appointed as administrators for BP for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within three (3) months. 5. The Tribunal directs the administrators to provide accounts to the Tribunal two (2) months prior to the anniversary of this appointment and annually thereafter. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. 7. The following Enduring Power(s) of Attorney for BP are revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld): -- 1 of 5 -- 2 (a) The Enduring Power of Attorney dated 2 August 2011 appointing VI as attorney for financial, person and health matters. Catchwords: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – whether the adult has impaired capacity in relation to personal matters – Whether the adult has impaired capacity for financial matters- whether there is a need for a decision to be made and whether without an appointment the adult’s needs will be met or interest adequately protected Guardianship and Administration Act 2000 (Qld), s 12, s 110, s 118(1) s 118 (4), Schedule 1, Schedule 4 Powers of Attorney Act 1998 (Qld), s 66, s 88, s 116 REASONS FOR DECISION [1] BP is an 81-year-old gentleman of Serbian descent who was hospitalised in October last year following an unwitnessed fall in the unit in which he lived alone. During his admission, the treating team became concerned about his cognitive capacity and undertook assessments to determine if he had the capacity to manage his affairs. [2] BP had executed Enduring Power of Attorney appointing VI his as attorney for personal health and financial matters on 2 August 2011. [3] The Tribunal heard from the Applicant, a Queensland Health Social Worker on the team which treated BP in hospital, that there were concerns about financial abuse where multiple parties may have access to BP’s bank account, and allegations made that funds had been removed. The application noted conflict amongst decision makers. Subsequent to the application she advised that the attorney was no longer acting for the adult. [4] The Applicant sought the appointment of a Guardian and Administrator for BP, initially seeling the appointment of the Public Guardian and Public Trustee of Queensland respectively in these roles. At the hearing, she sought leave to amend her application to seek the appointment of PN and KN, BP’s nephew and nephew’s wife respectively. BP indicated strong agreement to this at the hearing, and leave was granted for the same. The Tribunal, noting BP’s knowledge of and agreement to the amended application, abridged time pursuant to sections 110 and 118(1), (4) of the Guardianship and Administration Act 2000 (Qld) (‘the Act’), so the application could proceed at the listed hearing as scheduled. [5] When the Tribunal determines an application for appointment of a Guardian or Administrator, it must be satisfied under section 12 of the Guardianship and Administration Act (Qld) 2000 of the following considerations: -- 2 of 5 -- 3 (1) The Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the Tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and (c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected. Does BP have impaired capacity for the matter? [6] In support of her application, the Applicant submitted a report from Neuropsychologist Elspeth Mitchel, dated 21 December 2018 which noted BP had a severe cognitive impairment with marked deficits across multiple areas, including bilateral reasoning, processing speed, memory, and executive function. She identified BP had relative strengths in auditory attention and working memory, however, referred to significant impairments in idea generation, cognitive flexibility and abstract reasoning. She considered that concrete thought processes were evident and his global cognitive impairment rendered him vulnerable to influence. She assessed that he would require significant assistance with planning and organising his day. [7] Dr Yoveko-Lahovec, a Geriatrician, assessed BP at his local hospital. She noted in her report to the Tribunal dated 24 October 2018 that BP had progressively worsening cognitive impairment, or dementia, with very poor understanding of the health and accommodation issues affecting him. [8] Dr Malik, a General Practitioner, in an open letter dated 18 January 2018, stated that he had conducted a mini-mental state examination and BP scored 24/30 which he suggested meant that BP was capable of making is own decisions. [9] BP advised the Tribunal that he considered that he could make decisions about his personal and financial affairs. He could not remember seeing the first two report writers referred to above, but could recall seeing Dr Malik, and considered the Tribunal should rely on his evidence. He was very concerned about actions taken by the appointed Enduring Power of Attorney, believing he had taken money from him, and had physically assaulted him. [10] The Tribunal considers the specialist evidence of the Neurologist and Geriatrician who have extensively assessed BP during his recent extended admission to hospital under their care, has greater weight that the GP’s MMSE test, conducted in isolation. [11] The weight of the evidence indicates that BP is not able to make personal and financial decisions freely and voluntarily and is vulnerable to financial abuse; and that he has cognitive impairments which affect his ability to understand the nature and effects of decision around his lifestyle and accommodation and financial affairs. -- 3 of 5 -- 4 [12] The Test for Capacity is stated at Schedule 4 of the Guardianship and Administration Act. To have ‘capacity’, for a person for a matter, means the person is capable of— (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [13] The evidence before the Tribunal indicates that the presumption of capacity is rebutted for decisions about personal and financial matters. Guardianship Application [14] The Tribunal considered whether there were personal decisions to be made. Evidence before the Tribunal is that VI the appointed Enduring Power of Attorney no longer wishes to act. BP further informed the Tribunal during the proceeding that he had been physically assaulted by VI, and that he wanted someone to take action in relation to this. The Tribunal also notes the evidence of Public Trustee of Queensland who identified under its interim appointment as administrator that VI had withdrawn $65,000 of BP’s funds and placed these funds in his own bank account. VI had informed the Public Trustee of Queensland that he was earmarking these funds in his account for BP’s funeral. [15] VI was not present at the hearing to respond to these allegations, although he received notification of the hearing. The evidence indicates he has failed to keep the adult’s property separate to his own by mixing funds BP’s his own account in breach of s 86 of the Powers of Attorney Act 1998 (Qld). He has failed in his obligation to diligently protect BP’s funds, and the action is in the Tribunal’s view dishonest, in breach of s 66 of the Powers of Attorney Act 1998 (Qld). The available evidence strongly suggests that VI is not appropriate to continue in the role of BP’s enduring power of attorney and makes orders under section 116 Powers of Attorney Act 1998 (Qld), revoking his appointment. [16] BP is presently living in a residential aged care facility on the Gold Coast. His nephew and nephew’s wife have expressed that they would like BP to move to live closer to them in Sydney. BP stated that he considered KN and PN ‘like his own’ and wanted to be living near them. The Applicant social worker has been liaising with these family members around this and supports this proposal. BP’s friends RA and JS supported this decision. BP does not have the capacity to make this decision, and a formal decision maker will be necessary to agree to appropriate accommodation in New South Wales. [17] BP presented strong views about an alleged assault by VI about which he would like someone to take action. There may be legal matters not related to finance or property which may need to be addressed about these concerns. [18] The Tribunal finds that there is a need for decisions about accommodation and legal matters not related to finance or property and without an appointment BP’s needs will interests will not be adequately protected. -- 4 of 5 -- 5 [19] The Tribunal considered the appropriateness of KN and PN in the role of guardians for BP. KN indicated that she had maintained regular contact with BP by phone and visited several times in recent months and over previous years. She was well acquainted with his local network, and RA and JS who were part of this network, strongly supported their appointment. [20] The Applicant indicated her strong support for KN and TN’s appointment based on their dealings with the proposed appointees while BP was in hospital, identifying that they were responsive and available to BP through the admission. Most importantly, BP endorsed their appointment, identifying that he trusted them and liked the prospect of living closer to them. [21] The Tribunal accepted oral evidence of compliance with section 15(1) appropriateness considerations, and determined that KN and PN are appropriate for appointment, and sough the proposed appointees provide statutory declarations to the Tribunal of the same within 7 days. Administration Application [22] The Public Trustee provided evidence that BP has funds held in the Commonwealth bank which need managing and investing. Further, they have requested and received the recovered funds redirected inappropriately from BP to VI while acting under the enduring Power of Attorney. In addition to this, BP has Centrelink income and day to day expenditure which needs to be managed. While the Public Trustee of Queensland acting as interim administrators had recently terminated BP’s Department of Housing tenancy, decisions remained in relation to his furniture and belongings. As residential care placement is proposed it is likely that there are contractual and financial decisions residential care for which a decision maker is required. [23] RA also informed the Tribunal that $570 in cash of BP’s funds handed over to him at admission to hospital had not been returned and actions needed to be occur to recover this amount. [24] The Tribunal is satisfied in the basis of these considerations, that there are a number of decisions to be made around BP’s finances, and without an appointment, BP’s interests will not be adequately protected. [25] KN and PN are proposed as appointees with the support of BP, the Applicant and Boris’s friendship network present at the hearing. KN indicated that she understood the obligations upon administrator explained at hearing and undertook to comply with these. Subject to receipt of the statutory declaration of appropriateness in accordance with the legislative requirements, the Tribunal considers the proposed appointees appropriate. Accordingly, they are appointed as administrators for all financial matters. [26] Written reasons have issued in this matter, where the adult required a translator throughout the hearing, and oral reasons were unable to be issued at hearing due to these language considerations. -- 5 of 5 --