CD [2016] QCAT 183

CITATION: CD [2016] QCAT 183 PARTIES: CD APPLICATION NUMBER: GAA10062-15, GAA10063-15, GAA 1345-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 13 May 2016 HEARD AT: Southport DECISION OF: Member Mc Donald DELIVERED ON: 18 May 2016 DELIVERED AT: Southport ORDERS MADE: 1. CD has capacity for all financial matters. 2. The Appointment of the Public Trustee of Queensland as administrator for CD for all financial matters in revoked. 3. The following Enduring Power of Attorney for CD is declared invalid pursuant to s113(2) of the Powers of Attorney Act 1998 and section 82(2) of the Guardianship and Administration Act 2000: The Enduring Power of Attorney purported to be dated 4 February 2016 appointing MM. CATCHWORDS: Application for a declaration of Capacity where adult has executed an Enduring Power of Attorney, Review of Administration Sections 41, 113 of Powers of Attorney Act 1998, General Principles Schedule 1 and 4, section 31, Guardianship and Administration Act 2000 APPEARANCES: CD, MM, NTPTQ) -- 1 of 7 -- 2 REASONS FOR DECISION [1] CD is a 69 year old lady who has a brain tumour. She lives in a rental property that she has been in for 5 years with her carer/friend MM. He has been living with CD for two years. [2] CD’s medical history includes a cardiovascular accident (Cva) in 2013, and a gioblastoma. Rehabilitation Specialist Dr M’s, letter to the Tribunal of 11 March 2015 indicates that her brain tumour was treated with surgery and radiotherapy and she now has the complication of radionecrosis of her brain. According to Dr M, during her admission in the hospital in January 2015, severe impairments in memory and constructional ability were noted and moderate impairment of comprehension, calculations, judgement and planning were assessed. [3] The evidence of Dr M formed part of the medical evidence which resulted in the appointment of an administrator over CD’s financial affairs in May 2015. [4] CD sought to review this appointment, presenting more recent capacity evidence to the Tribunal and a freshly executed Enduring Power of Attorney. She informed the Tribunal that she had been confused in hospital in 2015 due to heavy medication which she claims that she is no longer receiving. She sought revocation of the Public Trustee on the basis that she considered that she was able to make financial decisions independently and that she considered she could validly execute an Enduring Power of Attorney to make substituted decisions if necessary. [5] The Tribunal reviewed the appointment of the Public Trustee as Administrator. The Public Trustee outlined that during its appointment a number of issues arose concerning CDs financial affairs. Specifically there had been a reduction in her overall assets because she has had to draw down upon these to fund her living costs, specifically a high rental. The Public Trustee had sought to recover a loan to CD’s brother of $20,000, however, negotiations and repayments arrangements had been unsuccessful to date in recovering any of the debt. CD had been in a rental property with a weekly outlay of rental of $550 per week. The Public Trustee had sought to obtain a rental contribution from MM in the sum of $275 per week, (being half the rent). The Public Trustee advised that MM had agreed to this contribution early in their appointment, and had made some inconsistent payments, and failed to pay since March which had generated an arrears owing of $ 2,970. The Public Trustee advised that they had difficulties pursuing this from MM who ultimately requested that he ceased contacting them. They informed him that they were not able to agree to this due to their obligations as administrator under the legislation. They have sought information from MM about his contributions in other financial ways to living costs to clarify that the accurate amount of his contributions to CD’s costs. -- 2 of 7 -- 3 [6] The Public Trustee informed the Tribunal that they had investigated concerns that he been raised at the previous hearing that there had been significant depletion of CD’s funds her bank account prior to the appointment of the Public Trustee. The Public Trustee informed the Tribunal that following investigation, they held no concerns about impropriety in of these funds which had all been accounted for by way of documented rental withdrawals. [7] The lease on her unit at $550 per week had been extended by CD without the Public Trustee’s knowledge for a further 12 month period until April 2017. CAPACITY TO EXECUTE AND ENDURING POWER OF ATTORNEY [8] If the Tribunal is to make the order that the Enduring Power of Attorney submitted with the application is valid, the Tribunal must be satisfied that the CD understands the requirements set out at section 41 of the Powers of Attorney Act 1998: 41 Principal’s capacity to make an enduring power of attorney (1) A principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney. (2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters— (a) the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; (b) when the power begins; (c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; (d) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; (e) the power the principal has given continues even if the principal becomes a person who has impaired capacity; (f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power [9] CD presented a medical report from Dr K dated 17 September 2015. Dr K stated in this report that she had been CD’s General Practitioner since 2008, last seeing her only 7 days before she wrote the report. She expressed the view that CD understood each of the elements identified at section 42(2) of the Act noted above. [10] The Tribunal quizzed CD about her understanding of the nature and effect of the document in the above terms also. She made it clear to the Tribunal -- 3 of 7 -- 4 that she understood that she would be giving full control over her finances to her appointed attorney and it was important that she had nominated a trusted appointee for that reason. She considered that she had taken in this into consideration in her appointment of MM. She said she understood that this would mean her attorney could do anything that she could do. She was asked when this power commenced and considered at first that it was down the track a bit. When it was brought to her attention that the document that she had signed had noted that the power commenced immediately, she explained that this had meant that at the time that she signed the document that she had wanted her attorney to commence dealing with her finances. She indicated that she had memory failings as a result of her brain tumour but that the immediate commencement was consistent with her intentions. She indicated that she understood that once she lost decision making capacity she could not change the nature of the appointment, and she herself would not be able to do anything about this in those circumstances. [11] The Tribunal was satisfied based on her response to the Tribunal’s questions and the evidence of Dr K that she understand the nature and effect of an Enduring Power of Attorney. She is therefore deemed to a have the capacity to execute and Enduring Power of Attorney. VALIDITY OF THE ENDURING POWER OF ATTORNEY SIGNED AND SUMBITTED TO THE TRIBUNAL [12] Although CD has the capacity to execute an Enduring Power of Attorney, the document that she has signed which was submitted to the Tribunal that purports to be an Enduring Power of Attorney does not comply with the formal legal requirements. It has not been appropriately witnessed at page 15 of the document. The Justice of the Peace who has purported to witness the document has signed the witness certificate but failed to witness CD’s signature and date its execution. Section 44(3) (b) of the Power of Attorney Act 1998 requires the document to be signed and dated by an eligible witness. [13] The enduring document presented to the Tribunal is therefore invalid in form. However, there is no reason why a new, properly witnessed Enduring Power of Attorney would not be valid as the Tribunal has formed the view CD has the capacity to execute such a document. CAPACITY TO MAKE FINANCIAL DECISIONS [14] CD has also brought an application for a declaration of her capacity to manage her financial affairs. [15] She relied on the report of Dr K referred to above to support her claim that she is able to make these decisions on her own behalf. Dr K noted that CDs conditions include a Gioblastoma and held the view that CD was able to make decisions freely and voluntarily. She was ale to talk about her finances and banks accounts and the consequences of not paying bills. She considered she could make complex financial decisions. -- 4 of 7 -- 5 [16] At 3.2 of her report the question is posed “What are the adult’s views about her ability to make decisions?’ Dr K writes: “Angry about financial decisions being removed from her. Feels this decision was made when she was vulnerable post op and using analgesia.” At hearing MM incorrectly informed the Tribunal that it was Dr Ks view that she was affected by medication for the 2015 report of Dr M. Dr K’s response very clearly relates to the adult’s view of her decision making capacity on this matter of medication. Despite this the Tribunal accepts that Dr K is of the opinion that CD is currently able to make complex financial decisions. [17] The Tribunal questioned CD about some of the financial decisions the administrator considered were necessary. [18] CD informed the Tribunal that she was aware of the budget deficit and that she sought to manage this by a number of means. She first sought to recover outstanding loan of $20,000 due from her brother. She stated that once she could locate him, she would seek to negotiate with him, and failing negotiations, she would take court proceedings to recover funds. She was not entirely clear at first how to do this, but indicated after some processing and prompting from MM that she would engage a solicitor. She was unable to give the Tribunal any response about any drawbacks of this proposal. [19] She indicated that the rent was expensive and she sought to take on a reduced rental property at the end of the current lease. She considered $450 was more affordable. She indicated that she had not moved to date because she been in the premises for five years and it was difficult to find homes that were adequately modified to allow for her wheel chair. She considered it was an option to gain contribution from MM, but then later contradicted herself saying that it was not fair on MM because he was a lodger and should not be required to pay rent. When asked to clarify her meaning she explained that he did a lot of things for her related to her physical care needs. She confirmed that MM was a carer for her who she understood received the Commonwealth Carers payment. She considered that he already contributed in care and living costs sufficiently. [20] MM informed the Tribunal that considered if a commercial rate was placed upon his care provisions to CD comparable to her current service provider then he would be providing a substantial contribution. He acknowledged that he was receiving carer’s pension for his role with CD. He stated that he contributes in excess of $200 each week in addition to care provision for food groceries her toiletries and medication, and also pays bills that fall due. [21] The Public Trustee noted that only $100 for living expenses per week had been drawn down with no request for additional funds during the appointment, which may support MM’s statement that he directly subsidises CD’s living costs, rather than making rental payments. -- 5 of 7 -- 6 [22] MM informed the Tribunal that CD had been given a prognosis of 3-18 months to live and that he had given members of her family a commitment to continue as her carer until the end of the present lease. It would appear that part of the decision to sustain the higher rental at a detriment to her financial position balances factors of quality of life against affordability. In this regard, sustaining this high cost rental is likely to be supported by General Principle 10, to act appropriate to the adult’s circumstances.. [23] The Tribunal noted that there were occasional memory lapses in CD’s discussion of her financial position, and plans for future financial decision making. Despite these minor lapses, the Tribunal found CD’s responses about how she would deal with the financial issues confronting her to demonstrate clear understanding of the issues facing her, the consequences of these decisions around debt recovery, and possible means of resolving her budget deficit. The current medical evidence from her treating doctor of 8 years is that she has the capacity to make decisions. Her responses to the Tribunal do not undermine that assessment. [24] The Tribunal finds that CD has capacity for financial decisions and makes a declaration accordingly and revokes the appointment of the Public Trustee. CONFLICT TRANSACTION [25] It has been noted at paragraph 12 here-in that the Enduring Power of Attorney submitted to the Tribunal without a date of execution is invalid due to its failure to meet the formal requirements of the Powers Of Attorney Act 1998. Should CD see to appoint MM in a fresh document, the Tribunal considers that is likely to be conflict transactions which would require authorisation by the adult of she chose to do so. The Tribunal notes that the following are conflict transactions: (i) MM’s continued residence in the rental property and terms around contribution to either rental and /or living costs; (ii)The decision to pursue or waive rental arrears identified by the Public Trustee at $2970 (iii) Execution of any further lease at the current premises. [26] The Tribunal cannot make any order in relation to such an appointment where no document exists, and the current document is invalid. -- 6 of 7 -- 7 [27] These points are therefore noted for the information of CD and MM. While the Tribunal may appoint an attorney pursuant to section 113(3) the Tribunal declines in this circumstance to enable a fresh document to be executed having regard to the afore-mentioned considerations. -- 7 of 7 --