BJE [2016] QCAT 324

CITATION: Re: BJE [2016] QCAT 324 PARTIES: BJE (Adult) APPLICATION NUMBERS: GAA565-16 / GAA566-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 20 April 2016 HEARD AT: Brisbane DECISION OF: Member Traves DELIVERED ON: 19 July 2016 DELIVERED AT: Brisbane ORDERS MADE: ENDURING POWER OF ATTORNEY 1. The Enduring Power of Attorney dated 1 August 2013 is reinstated but the terms are changed to provide that the Attorney cannot make a decision to remove BJE from Algester Lodge, except to the care and custody of an accredited nursing home. 2. The Attorney for financial matters must close the joint interest bearing deposit account held by BJE at Westpac Banking Corporation (Term Deposit 377827) immediately upon maturity thereof (if that has not yet occurred) and the full funds therein must be placed into an account in the sole name of BJE. 3. The Attorney must notify the Tribunal that the requirements in item 2 have been satisfied by 4:00pm on 29 July 2016. 4. The Attorney is directed to provide to the Tribunal: a financial management plan using the Tribunal form “A Financial Management Plan for appointed Administrators” by 4:00pm on 9 September 2016; copies of BJE’s bank statements including deposit or term -- 1 of 9 -- 2 accounts from the date of the reinstatement of the Enduring Power of Attorney to 1 July 2017 by 4:00pm on 1 August 2017; and copies of receipts for any individual items purchased in excess of $500.00 from the date of the reinstatement of the Enduring Power of Attorney to 1 July 2017 by 4:00pm on 1 August 2017. 5. The Attorney is directed to keep all records, receipts and dealings of transactions involving BJE’s assets, income and expenditure. GUARDIANSHIP 1. The application for the appointment of the Public Guardian as guardian is dismissed. ADMINISTRATION 1. The application for the appointment of the Public Trustee of Queensland as administrator is dismissed. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – ENDURING POWER OF ATTORNEY – whether Attorney should be reinstated – whether a need to appoint a substitute decision-maker for personal, health and financial matters. Guardianship and Administration Act 2000 (Qld) s 12, s 15, s 16, s 31, sch 4 Powers of Attorney Act 1998 (Qld) s 109A, s 122 APPEARANCES and REPRESENTATION (if any): PARTIES: Attorney represented by Jarrod Bell, NR Barbi Solicitor Pty Ltd The Public Guardian represented by Melanie Motavali The Public Trustee of Queensland represented by Kylie Retschlag -- 2 of 9 -- 3 REASONS FOR DECISION [2] The matter before the Tribunal relates to an application for the appointment of an administrator and guardian made in respect of BJE on 18 January 2016. The application was made by Sara Hopewell, a social worker at the QEII hospital. Ms Hopewell was involved in the treatment of BJE on the two occasions she was admitted to the QEII hospital. The first admission was from 30 October to 19 November 2015 and the second, from 14 January to 7 March 2016. [3] On 20 January 2016 an interim order was made by the Tribunal appointing the Public Guardian as guardian for decisions regarding accommodation, health care and services and The Public Trustee of Queensland (Public Trustee) as administrator for all financial matters. These appointments overtook the Enduring Power of Attorney then in existence which appointed BJE’s only surviving son, BC, as her Attorney for financial, personal and health matters. At the hearing on 20 April 2016, an order was made extending these orders for a further 3 months under s 58 of the Queensland Civil and Administrative Act 2009 (Qld). [4] BC seeks to have the decision of 20 January 2016 appointing the Public Guardian and Public Trustee set aside and the application for appointment of a guardian and administrator dismissed. He also seeks to have the Enduring Power of Attorney appointing himself Attorney for BJE reinstated. Background [5] BJE was born on 3 September 1926 and is 89 years old. [6] An Enduring Power of Attorney appointing BC as BJE’s Attorney for all financial and personal/health matters was entered into on 1 August 2013. [7] BJE moved in with BC in July 2014. Up until then she had lived on her own at her home in Petrie Terrace, Brisbane. The move coincided with her having a hernia and with BC forming the view that she should no longer live by herself. [8] BC lives at Pallara with his son, M, M’s wife T and their three children. The adult had her own room and shared the house with BC and his three grandchildren. M and T lived in a caravan on the property. [9] BJE no longer lives with BC and his family. She was admitted to hospital in January 2016 with left lower leg cellulitis and upon being discharged, on 7 March 2016, was transferred to the dementia unit of an aged care facility, Algester Lodge where she currently resides. [10] Concerns were raised about BJE’s care by her granddaughter, J. J had come across BJE while out shopping. She had run into her father at Officeworks and he had volunteered that J’s grandmother was waiting in the car outside and that she should go and see her. -- 3 of 9 -- 4 [11] J had not seen her grandmother for a number of years due to the family conflict that exists between J and family members living with her grandmother. J was concerned at how much her grandmother had deteriorated since she saw her last and at the general state of her health. At the time, BJE had been on antibiotics for a leg infection for a week. J said she told her father that he had to take her to a doctor. Later that afternoon, J arrived at her father’s home at Pallara when she arranged to take her grandmother back to her place, ostensibly to give her father a break. J instead took her grandmother to hospital. On BJE’s admission on 14 January 2016 the hospital records state that she presented as unclean, unkept and oderous, that she had dirt and ants in her hair and that she was under-nourished and dehydrated. She was diagnosed with bilateral cellulitis of her legs. [12] BJE was discharged from hospital on 7 March 2016 and is now a permanent resident at Algester Lodge where she is reported to have settled in well. [13] The application for the appointment of a guardian and administrator necessarily involves consideration of the status of the Enduring Power of Attorney appointing BC as his mother’s Attorney. Relevant principles [14] Section 12 of the Guardianship and Administration Act 2000 (Qld) (‘the GAAT Act’) provides: (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. (2) The appointment may be on terms considered appropriate by the tribunal. [15] Personal matter is defined to include a matter relating to the adult’s care, including the adult’s health care, or welfare including, relevantly, where the adult lives and with whom.1 Financial matter is defined as a matter relating to the adult’s financial or property matters and includes, relevantly, 1 or more of the following – paying maintenance and accommodation expenses for the adult, including purchasing an interest in or making another contribution to an establishment that will maintain or accommodate the adult; paying the adult’s debts; paying rates, taxes, insurance premiums or 1 GAAT Act, sch 2 pts 2, 2(a), 2(b) respectively. -- 4 of 9 -- 5 other outgoings for the adult’s property; insuring the adult’s property; and withdrawing money from, or depositing money into, the adult’s account with a financial institution.2 [16] The issues for the Tribunal are: Whether the adult has capacity to make decisions about personal and financial matters? If not, whether there is a need to appoint a substitute decision-maker for personal and/or financial decisions? If there is a need, who would be the most appropriate person to appoint in respect of that need? Capacity [17] Before the Tribunal can appoint a guardian or administrator for an adult, the Tribunal must be satisfied the adult has impaired capacity for the matter. [18] Schedule 4 to the GAAT Act defines capacity for a person for a matter to mean 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. [19] If any of these elements are missing, a person has impaired capacity. [20] The Tribunal is required to determine capacity as at the date of hearing. [21] A person is presumed to have capacity in accordance with s 7 of the GAAT Act and General Principle 1 of Schedule 1 under that Act. [22] On 29 September 2015, BJE was admitted to the Princess Alexandra Hospital due to a fall. She was discharged on 6 October 2015. The relevant Medical Records state she had “Deconditioning. Parkinson’s like movements”. [23] On 30 October 2015, BJE was admitted to the QEII hospital. Her principal diagnosis was stated to be “Functional decline”. She was discharged on 19 November 2015. The multidisciplinary treating team at the time recommended that a nursing home placement was the best option for her. BC decided however to keep her at his house but to arrange for Blue Care to provide extra support for hygiene and health care matters. [24] The medical health report by Dr Anojan Koneshamoorthy of the QEII hospital dated 15 January 2016 states that BJE has dementia and no capacity for decision-making, in particular, that she lacks capacity for all complex and simple decisions regarding personal and financial matters. Dr Koneshamoorthy refers in his report to further evidence including to BJE’s 2 GAAT Act, sch 2 pts 1, 1(a), 1(b), 1(g), 1(h), 1(p). -- 5 of 9 -- 6 assessment by the geriatrics team some time after November 2015, which reported her MMSE to be 15/30. [25] This evidence as to capacity was not contested at the hearing. I accept it. [26] The Tribunal finds on the basis of the written material and evidence given at the hearing that BJE is unable to understand the nature and effect of decisions or to communicate them in some way. Accordingly, the Tribunal finds that the presumption of capacity has been rebutted. Need for the appointment of a Guardian [27] The Public Guardian provided a Report dated 15 April 2016 and gave evidence at the hearing to the effect, that, in its view, there was no longer a need for an appointment of a guardian. [28] In terms of accommodation decisions, the Public Guardian advised that a permanent place at Algester Lodge was secured on 2 March 2016, that BJE is settled there and that family members, including BC, accept she is appropriately placed in an appropriate facility. It reported there had been no need to make any decisions with respect to the provision of services as these needs were met by Algester Lodge. Finally, in respect of health care decisions, the Public Guardian advised that no decisions had been required and that, in respect of any future health care decisions, that the Public Guardian is statutory health attorney of last resort and does not, therefore, need to be formally appointed for this purpose alone. [29] This evidence was not contradicted. The Tribunal finds, in accordance with the evidence given by the Public Guardian, that there is no need at this time for any decisions to be made with respect to personal matters. [30] This is prefaced however on the assumption that BJE will stay at Algester Lodge. She has been living there since March 2016 and is settled and well cared for there. That she should remain there is, in my view, of critical importance. Her dementia has severely curtailed her ability to look after herself. For so long as she remains at Algester Lodge there is no need to appoint a Guardian on a formal basis as her accommodation, health care and service provision needs are met and there is no need for a decision to be made regarding any of these matters. [31] The Public Trustee at the time of the hearing reported that although the residential care agreement had been received from Algester Lodge requesting maximum payment of nursing home fees that the Public Trustee has been unable to “act regarding the document as further information has been requested and needs to be provided before any action can be taken”.3 The Public Trustee is unable to complete the Assets Assessment for Aged Care until the adult’s asset ownership and property details have been verified. Although these matters were outstanding at the hearing, BC said at the hearing that he would be happy to provide an undertaking that he 3 Public Trustee Report dated 5 April 2016. -- 6 of 9 -- 7 would not move his mother from her current accommodation at Algester Lodge. In a letter dated 27 April 2016 to the Tribunal the solicitors for BC state that he has “no intention” of removing her from Algester Lodge and suggested, to alleviate any concerns in this respect, that restrictions be placed on the Enduring Power of Attorney to eliminate his ability to remove her from a nursing home. [32] I have decided to change the terms of the Enduring Power of Attorney to remove the Attorney’s ability to move BJE from Algester Lodge, other than to the care and custody of an accredited nursing home. Clearly there would need to be appropriate reasons to move BJE at all when she appears settled and well cared for at Algester Lodge but the possibility remains that circumstances may change and there is therefore some latitude for the Attorney to move her to another accredited nursing home, should there be appropriate reasons for doing so. [33] The Public Guardian confirmed that BC was in agreement with the recommendation that his mother be discharged to an aged care facility and that he had assisted in identifying an appropriate aged care placement for his mother. The Public Guardian also reports that Algester Lodge staff have not raised any concerns in relation to contact between BJE and her son, nor have there been any reports raised about BJE’s removal from the facility. [34] On balance, and considering all the evidence before the Tribunal, the Tribunal is not satisfied that there is a need to appoint a decision-maker in relation to BJE’s personal matters. Further, the Tribunal is not satisfied that without an appointment, given her current placement at the aged care facility, that her needs will not be adequately met or her interests adequately protected. The important accommodation decision to transfer BJE to a nursing home has been made and placement has meant that there are no decisions with respect to the provision of services to be made. In relation to health care decisions, should the need arise, the Public Guardian could act as Statutory Health Attorney of last resort in accordance with the provisions of s 62 and s 63 of the Powers of Attorney Act 1998 (Qld). [35] The Tribunal therefore dismisses the application for the appointment of the Public Guardian. Need for the appointment of an Administrator [36] BJE needs assistance in making financial decisions associated with owing her home in Petrie Terrace. Her home has been unoccupied for about 12 months and is not rented. It has an approximate value on the internet of $800,000. The Public Trustee has reported it has been unable to obtain a valuation or undertake pest and building inspections due to the limited availability of funds currently being held by the Public Trustee for BJE. At the time of the hearing, BJE’s belongings were still in her home. [37] BJE has two accounts in her name alone with the Commonwealth Bank of Australia and Westpac Banking Corporation (Westpac) and a Term Deposit, -- 7 of 9 -- 8 currently in joint names with BC, also with Westpac. The amount of the term deposit was $571, 540.17 as at 6 April 2016. [38] A term deposit previously in BJE’s name alone held with Westpac matured on 27 October 2015 (Term Deposit 301152). On that same day, 27 October 2015, the principal paid on the term deposit ($571,540.17) was transferred to a term deposit in the joint names of BJE and her son, BC (Term Deposit 377827). [39] BC gave evidence at the hearing that the term deposit matures on 27 May 2016. He gave evidence that he was unaware that he should not, as Attorney, put the account in joint names and that he did so in order to protect the funds. He gave an undertaking to the Tribunal that he would transfer the funds back into his mother’s sole name. There was no other evidence before the Tribunal of misappropriation of his mother’s accounts. [40] I find that there is a need for decisions to be made with respect to the management of BJE’s financial affairs, in particular with respect to her nursing home fees, her home at Petrie Terrace and the bank accounts she holds with Westpac and the Commonwealth Bank of Australia. [41] The issue arises as to whether there is a need to appoint an administrator in view of the fact that BC was appointed Attorney for all financial matters under an Enduring Power of Attorney on 1 August 2013. This in turn depends upon whether the Tribunal decides to revoke or change the terms of the Enduring Power of Attorney in view of his conduct in failing to keep his property separate from the property of the adult,4 and in placing the term deposit money into a jointly held account. [42] Although this conduct is highly concerning, I am satisfied that the Attorney has assisted his mother over many years with her financial affairs and has otherwise managed her financial affairs in a competent way. Her financial affairs are relatively straightforward. She has a house and cash savings and her expenses include those associated with her house, health care and her nursing home fees. [43] The Attorney did not act in accordance with his statutory obligations. I am however willing to reinstate the Enduring Power of Attorney but with a change in terms to restrict the Attorney’s ability to make accommodation decisions. The Attorney will also be required to provide evidence to the Tribunal that the joint term deposit account has been closed and the funds transferred to an account in the BJE’s name alone. The Attorney will also be required to provide a financial management plan within two months and certain other financial documents to the Tribunal by 1 August 2017. [44] On this basis, I am satisfied that the Enduring Power of Attorney should be reinstated with the restriction as to accommodation decisions as described above. The Attorney has power, pursuant to that authority, to make 4 Powers of Attorney Act 1998 (Qld) s 86(1). -- 8 of 9 -- 9 decisions regarding BJE’s financial affairs. There is therefore no need, at this point in time, to appoint an Administrator. [45] I order accordingly: 1. The Enduring Power of Attorney dated 1 August 2013 is reinstated but the terms changed to provide that the Attorney cannot make a decision to remove BJE from Algester Lodge except to the care and custody of an accredited nursing home. 2. The Attorney for financial matters must close the joint interest bearing deposit account held with BJE at Westpac Banking Corporation (Term Deposit 377827) immediately upon maturity thereof (if that has not yet occurred) and the full funds therein must be placed into an account in the sole name of BJE. 3. The Attorney must notify the Tribunal that the requirements in item 2 have been satisfied by 4:00pm on 29 July 2016. 4. The Attorney is directed to provide to the Tribunal: (ii) a financial management plan using the Tribunal form “A Financial Management Plan for appointed Administrators” by 4:00pm on 9 September 2016; (iii) copies of BJE’s bank statements including deposit or term accounts from the date of the reinstatement of the Enduring Power of Attorney to 1 July 2017 by 4:00pm on 1 August 2017; and (iv) copies of receipts for any individual items purchased in excess of $500.00 from the date of the reinstatement of the Enduring Power of Attorney to 1 July 2017 by 4:00pm on 1 August 2017. 5. The Attorney is directed to keep all records, receipts and dealings of transactions involving the principal’s assets, income and expenditure. 6. The application for the appointment of the Public Guardian is dismissed. 7. The application for the appointment of the Public Trustee of Queensland is dismissed. -- 9 of 9 --