BC [2016] QCAT 499

CITATION: BC [2016] QCAT 499 PARTIES: BC APPLICATION NUMBER: GAA9152-16; GAR9153-16; and GAA9154-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 7 October 2016 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 19 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The following Enduring Power of Attorney for BC is overtaken by the making this appointment and, in accordance with section 22 (2) the Guardianship and Administration Act 2010 can no longer be acted upon to the extent this appointment has been made: (a) the Enduring Power dated 23 May 2005 appointing FD for financial, personal and health matters. 2. The Tribunal declares that BC lacks capacity for all personal and financial matters. 3. FD and GG are appointed jointly for BC for the following personal matters: accommodation; with whom BC has contact and/or visits; and provision of services. 4. FD and GG are appointed jointly as administrators for BC for all financial matters. 5. The Tribunal dispenses with the requirement for the administrators to provide a financial management plan. 6. The Tribunal grants a partial exemption to the administrators from the requirement to provide accounts but directs the administrators to provide to -- 1 of 10 -- 2 the Tribunal two months prior to the anniversary of this appointment and annually thereafter: a. copies of the adult’s bank statement/passbook/term deposits/for the past year b. copy of the latest statement from nursing home c. copy of receipts for any individual items purchased in excess of $500 d. for any shares, investments or superannuation, a copy of all dividend notices or statements received during the year e. a signed and witnessed Declaration as to Continuing appropriateness for appointment 7. The administrator is to conduct a search to see if there is any land in the adult’s name and if so to lodge a notice interest over such property or properties and provide a copy of the notice to the Tribunal. 8. The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five years. CATCHWORDS: DUTIES OF ATTORNEY – to act in the best interests of the adult – adult poorly cared for and in need of Nursing Home placement – significant family concerns over welfare of the adult Powers of Attorney Act 1998 (Qld), s 73, s 87 Guardianship and Administration Act 2000 (Qld), s 12, s 14, s 15 -- 2 of 10 -- 3 APPEARANCES: FD- daughter FE - son-in-law GV - sister-in-law GG - brother GNG - niece GMG - nephew GR - nephew Vanesa Key - social worker Sharon Weston – social worker REPRESENTATIVES: FD: Daniela Parlapiano represented by Apels Solicitors and Notary REASONS FOR DECISION Background [1] On 22 May 2005, BC appointed her daughter FD as her attorney under an Enduring Power of Attorney. [2] In March 2016, BC was admitted to the East Ward of the Mareeba Hospital. The treating doctor was of the view that her family should have placed BC in a nursing home. BD and FD insisted that they would care for their mother at home where she would be fully supervised at either FD’s family home or BC’s home where BD also resided until a nursing home placement was found. [3] Maria McCann the senior social worker at the hospital stated in the attachment to the Application as follows: On 19 July 2016, SW received PC from Mr BR, claiming he had to break into his aunt BC’s home to assist her. He found her to be alone in a frightened, soiled, dehydrated and hungry state. He called a female relative and together they settled her and took her to their home to shower and change. They left a note on the door for BC’s son BD. Later that night, when BC was brought back, FD and her brother were heard having an argument about BC’s estate, which other family members thought distasteful. The next day 21 July 2016, I received another phone call from BR who told me he visited BC again and found her to be in a similar state as she was in the previous day. I told him to bring BC into the Mareeba Hospital Emergency Department or call QAS for transport to hospital. He agreed to this request. RD, BC’s niece brought BC into Mareeba District Hospital where she was found to have a bruised wrist, was dehydrated and afraid. RD reported the house was dirty with overflowing ashtrays, urine soaked floor covering and bedding. RD brought urine soaked slippers and other dirty clothing with her to show social worker the condition of her aunt’s belongings. RD purchased another pair of slippers for BC. -- 3 of 10 -- 4 During this time, I attempted to contact FD on three occasions including a SMS message via email over the course of the next two or three hours however she was not responding. FD came to the hospital approximately four hours later. When social worker explained her mother was being admitted FD reported, “I cannot cope” also explaining she had left her mobile phone at home while she was at work. Social worker admitted BC to East Ward Mareeba Hospital where she was subsequently transferred to Herberton Hospital Inpatient Aged Care on 24 July 2016. Queensland Police Service also visited the home on 20 July 2016. Constable Sarah Norris and Constable Vicki Edwards from the Mareeba Police attended the home. Apparently, they investigated, took photos but did not charge anyone due to capacity and language issues. In the applicant’s opinion, FD demonstrates limited knowledge and insight about the responsibilities of being a health attorney and providing care for a person with dementia. For instance, she knowingly left her mother unsupervised while she and her brother BD went to work. She was also aware that her brother was not organised in making safe decisions in terms of caring for his mother. DB also displays limited insight into the importance of supervising his mother in terms of risk. It is reported, he would extinguish cigarettes on the carpet, did not keep the home clean or well maintained. This is demonstrated by leaving his mother in a darkened room without working lighting. It was reported that an unidentified person had called police, as they knew BC was sitting alone in the dark. An interested person reported overhearing BD remark “You’ve got the bank book” when EPOA asked him to attend to replacing the light bulbs. It is a well-known fact that BD and FD’s relationship was poor typified by heated disputes on various matters, which further impeded the quality of care provided to BC by her children. [4] Daniela Parlapiano of Apels wrote to the Tribunal on 22 September 2016 which they stated on behalf of FD as follows: Since being appointed as Attorney our client instructs that, she has always sought to act in a way, which is in the best interests of the Adult. With respect to the administration of the Adult financial affairs, we are instructed that the Adult’s pension is paid directly into her bank account and our client has always ensured that all expenses for the Adult are paid as and when they fall due. This includes rates, insurance, food, medication and other general living expenses of the Adult. Some time ago, the adult’s son BD took up residence with the Adult at her property. Unfortunately, this arrangement has resulted in conflict between our client and BD particularly in relation to the maintenance of the Adult’s property and contribution towards ongoing expenses. Recently, BD agreed to contribute $60 each week towards rates for the property and is now responsible for all electricity charges during his occupancy…. Our client -- 4 of 10 -- 5 regrets her decision to put her trust in BD to also provide appropriate supervision to the Adult in her absence. We are instructed that since the Adult placement into residential care, the Adult has adapted well to her new living environment and is doing well. Our client does not believe that it is in the best interests of the Adult for her to be relocated to alternative residential care. Our client is greatly concerned that to do so would unduly confuse the Adult and called her to regress. Our client accepts that due to the conflict between herself and her brother this has limited in some respects her ability to deal freely with the Mareeba property. Our client is of the view that even if a family member such as GG was appointed as the alternative Administrator, this will do nothing to resolve the family conflict. The conflict surrounding BD extends to all members of the extended family… In the event that the Tribunal desires to revoke, our clients appointment as Attorney, while our client does not object to the application seeking GG’s appointment, our client is also support the appointment of the Public Trustee as the financial administrator of the Adult and the Office of the Adult Guardian as the guardian. What should the Tribunal do with the Enduring Power of Attorney? [5] The Tribunal heard no evidence that questioned the validity of the Enduring Power of Attorney. [6] The Tribunal finds: a) the Enduring Power of Attorney by BC dated 23 May 2005 appointing her daughter FD as her attorney for financial and personal and health care immediately was validly executed. [7] The Tribunal with the Application received a Health Professional Report from Dr Merrilee Frankish from the Mareeba Hospital in which she stated that BC had been diagnosed with dementia on 5 May 2011 and had little or no ability to make decisions. Dr Frankish referred to Dr Ahern the Geriatrician who had done a CT Brain Scan that had shown brain atrophy. Dr Ahern had diagnosed BC with dementia on 18 April 2011. [8] The Tribunal notes that all family members agreed with the medical evidence that showed that BC lacked capacity for personal matters and financial matters. [9] The Tribunal makes the following findings: a) BC was diagnosed with dementia on 18 April 2011 by Dr Ahern the Geriatrician; b) BC’s abilities have declined further because of her dementia to the point she is unable to make decisions on their own behalf. -- 5 of 10 -- 6 Conduct of the Attorney FD [10] FD gave evidence in relation to the arrangements that she had put in place to care for her mother. This included regular visits by HACC and Blue Care each Wednesday. She stated that on a day-to-day basis, her husband FE would spend time with her mother and she would be returned to her home. [11] FD acknowledged that there was conflict with her brother over the living arrangements for their mother. [12] FD admitted that things had gone horribly wrong on the 21 July 2016 with Blue Care being cancelled, her husband unavailable and being unable to organise for her cousin RD to be available to care for her mother. [13] FD stated that her mother was now placed in the Herberton Hospital Nursing Wing and was settled. She remained concerned about conflict with her brother BD but believed that the care arrangements for her mother were in her best interests. She told the Tribunal that she wanted to remain Attorney for her mother. BR [14] BR is BC’s nephew. He confirmed that because of his concerns for BC’s well-being that he contacted the social worker, which led to BC being hospitalised. [15] BR was highly critical of FD’s actions as attorney saying that she had not looked after BC‘s best interests. He was of the view that the Enduring Power of Attorney should be overridden and BC’s brother GG should be appointed BC’s decision-maker. GNG [16] GNG is BC’s niece. She agreed with BR’s concerns and supported BC’s brother GG being appointed as decision-maker. GMG [17] GMG is BC’s nephew. He agreed with BR’s concerns and supported BC’s brother GG being appointed as decision-maker. GV [18] GV is BC’s sister. She agreed with BR’s concerns and supported BC’s brother GG being appointed as decision-maker. -- 6 of 10 -- 7 Vanessa Key [19] Vanessa Key is a social worker who has been involved with BC. She told the Tribunal that FD was not able to stand up to her brother BD and needed support. GG [20] GG is BC’s brother. He told the Tribunal that he was quite capable of managing BD and would be able to help his sister with decision-making. Discussion of the evidence [21] The Tribunal having heard the evidence came to the view that there were appropriate circumstances to override the Enduring Power of Attorney. Who should make decisions for BC? [22] The Tribunal having heard the views of the parties asked FD if she was willing to accept a joint appointment as guardian and administrator with her uncle GG. FD indicated that she was prepared to accept such an appointment. [23] The Tribunal asked GG if he was willing to accept a joint appointment as guardian and administrator with FD. GG indicated that he was prepared to accept such an appointment. [24] The Tribunal asked the parties if this solution would address the concerns, which had been raised about FD’s actions as attorney. BR, GNG, GMG, GV and Vanessa all agreed that this would address their concerns. [25] The Tribunal adjourned the proceedings for 30 minutes, directed FD, and her solicitor to meet with GG and see if they could work together. [26] On their return FD and GG told the Tribunal that they had agreed that they could work together if appointed jointly. Does BC need a guardian? [27] BR told the Tribunal that whilst BC was settled in the Herberton Nursing Home that family wanted her placed in a nursing home in Mareeba, which was nearer to, where the family lived. [28] FD indicated that there would be a need for a guardian in relation to her mother’s health care. She indicated to the Tribunal that it would be useful to have a guardian for service provision and contact. [29] The Tribunal notes that all parties agreed that these were the matters that needed to be addressed for BC. -- 7 of 10 -- 8 [30] The Tribunal makes the following findings: a) BC’s family are happy with the standard of care that she is receiving in the Herberton Hospital Nursing Wing; b) BC’S family would like her placed in Mareeba where her family live; c) BC’s health is deteriorating and there will be a need for future health care decisions. Are FD and GG appropriate to be appointed? [31] The Tribunal notes that the appointees are close family members. [32] The Tribunal notes that when she had capacity BC had chosen her daughter to be attorney. [33] The Tribunal notes that all parties present supported the appointment of FD and GG jointly. [34] The Tribunal makes the following findings: a) FD is willing to work with her uncle GG to ensure that her mother’s personal needs are met. What need is therefore an administrator? [35] FD told the Tribunal that it was appropriate to sell her mother’s house, pay bills and manage her mother’s investments. She told the Tribunal that her mother received a Centrelink pension and an Italian pension, and had a term deposit with the Commonwealth Bank of Australia. The bulk of her pension goes to making nursing home fees and paying costs associated with her home. [36] GG told the Tribunal that he was happy to help FD arranging for the house to be sold and dealing with other financial issues. [37] The Tribunal notes that there were no other issues raised by family or other parties at the hearing in relation to BC’s financial affairs. [38] The Tribunal makes the following findings: a) BC owns her own house; b) BC has some savings; c) BC receives a Centrelink pension and Italian pension; d) BC’s funds are needed to pay for a nursing home fees and the cost of her residence. -- 8 of 10 -- 9 Who is most appropriate to be appointed as administrators? [39] FD told the Tribunal that she would work with GG. [40] GG told the Tribunal that he have the necessary experience to work with FD. [41] The Tribunal notes that all parties agreed to support the appointment of FD and GG. [42] The Tribunal makes the following findings: a) FD is willing to work with her uncle GG to ensure that her mother’s financial needs are met. The determination of the Tribunal [43] The Tribunal overrides the Enduring Power of Attorney by the making of these orders. [44] The Tribunal appoints FD and GG as guardians jointly to make decisions about the following personal matters: accommodation, health care, services, and contact for a period of five years. [45] The Tribunal appoints FD and GG as administrators jointly to make all financial decisions. [46] The Tribunal dispenses with the requirement for the administrators to provide a financial management plan. [47] The Tribunal grants a partial exemption to the administrators from the requirement to provide accounts but directs the administrators to provide to the Tribunal two months prior to the anniversary of this appointment and annually thereafter: a) copies of the adult’s bank statement/passbook/term deposits/for the past year b) copy of the latest statement from nursing home c) copy of receipts for any individual items purchased in excess of $500 d) for any shares, investments or superannuation, a copy of all dividend notices or statements received during the year e) a signed and witnessed Declaration as to Continuing appropriateness for appointment. [48] The administrator is to conduct a search to see if there is any land in the adult’s name and if so to lodge a notice interest over such property or properties and provide a copy of the notice to the Tribunal. -- 9 of 10 -- 10 [49] The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five years. -- 10 of 10 --