BDF [2016] QCAT 38

CITATION: BDF [2016] QCAT 38 PARTIES: BDF APPLICATION NUMBER: GAA10164-15, GAA10165-15, GAA10166-15, GAA10302-15 and GAA10303-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: Brisbane HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 29 January 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Guardian is appointed as guardian for BDF for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 3. The Public Trustee of Queensland is appointed as administrator for BDF for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. 7. Any purported Enduring Powers of Attorney for BDF are overtaken by the making of these appointments and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the -- 1 of 7 -- 2 extent that these appointments have been made. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – where conflict between adult’s children in regard to accommodation decisions – appropriateness and competence considerations – where attorney becomes paid carer for adult. Guardianship and Administration Act 2000 (Qld), ss 11, 12, 14, 15, 22 and 26 Powers of Attorney Act 1998 (Qld), s 59 APPEARANCES: The following persons attended the hearing:- BDF, DH, DP, DS, VL, KP, MC, BK, AR and FR. REASONS FOR DECISION [1] BDF is 81 years and resides in an aged care facility. She has five children four of them daughters living in Brisbane and a son living in the United States. Until 20 September 2015 BDF was residing in her own home. Following a family meeting in June 2015 it had been decided that her daughter, DH would resign from her job as a nurse to provide BDF with full time care. It was also later agreed that DH would receive payment form BDF of $550 per week. This arrangement continued until 19 September 2015 when DH left BDF home and BDF was collected by one of her other daughter’s DP. [2] As a result of these events BDF’s stayed with DP for several days and was placed in respite care at the Seabrook facility on 2 October 2015. A letter was sent to family members advising them of the respite placement and noting that BDF did not wish to see DH or MC, her niece and that the facility had been instructed accordingly. [3] DP and DH had been appointed jointly as attorneys for both financial and personal health matters by BDF under an enduring power of attorney on 10 October 2006. DP executed a revocation of attorney on 31 August 2015 due to issues between her and DH. A new enduring power of attorney was made by BDF on 24 September 2015 which appointed her daughter’s DP and DS severally as her attorneys for both financial and personal/health matters. The making of the new enduring power of attorney was communicated to DH and other family members by letter of 26 September 2015. [4] The respite placement ended on 15 October 2015 and BDF was then placed in the Holy Spirit Northside Hospital. An application for an interim order was received from KO, community liaison manager at the hospital citing the need the need for the appointment of independent decision makers due to -- 2 of 7 -- 3 severe family conflict and the recent changes to BDF’s enduring power of attorney at a time when she did not have capacity. On the same date DH made an application for an interim order nominating the Pubic guardian as guardian for BDF citing issues with her health care while she was under the control of DP and DS also filed an application to be appointed as guardians and administrators for BDF on 20 October 2015 to enable them to be considered which enabled them to be considered for appointment under the interim order. The Tribunal appointed DP and DS as interim guardians and administrators on 20 October 2015. Following these appointments BDF was permanently placed at the Emmaus Nursing Home on 4 November 2015 [5] The Tribunal notes that DH had earlier made an application to the Tribunal to grant her leave to resign as attorney for BDF under the 2006 enduring power of attorney and an application for guardianship and administration nominating the Public Guardian as guardian and the Public Trustee of Queensland as administrator. For the reasons mentioned below there was no need to procced with the application for leave to resign as attorney as that appointment was revoked automatically when DH became BDF’s paid carer1. DH confirmed at the hearing that she had received payment of $7,900 from BDF’s bank account for the services she provided as carer. [6] A subsequent application was received from DH nominating herself as guardian and MC as administrator. [7] When considering the appointment of guardians and administrators the Tribunal does so in accordance with section 12 of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’). That requires the Tribunal firstly to be satisfied as to whether or not BDF has capacity to make decisions in regard to personal and financial matters. Each adult in Queensland is presumed to have capacity and it is for that presumption of capacity to be rebutted. The Tribunal then considers what decisions are required to be made in respect of those matter and whether in accordance with the least restrictive option and necessary decisions can be made by the adult with the support of their informal network. [8] If the Tribunal is satisfied there is a need for a formal decision maker it must consider whether the current arrangements, that is any attorneys, are adequate in terms of their appropriateness and competence. If that is the case those attorneys will be left in place. If the Tribunal is satisfied there is a need for the formal appointments of a guardian and or administrator it must consider the appropriateness and competence of the proposed appointees. The Public Guardian may be appointed if there are no family members available for appointment and the Public Trustee of Queensland is available for appointment as administrator. 1 Powers of Attorney Act 1998 (Qld), s 59. -- 3 of 7 -- 4 Capacity [9] BDF was diagnosed with dementia by Dr H, Geriatrician in 2014. A health professional report prepared by Dr C, BDF’s longstanding general practitioner, states that she had a deterioration on many fronts over the next 12 months with increasing confabulation and reducing recall and capacity. Her scores on cognitive screening tests were 22/30 in July 2014 and then 10/30 in June 2015 on the RUDAS test and MMSE scores of 29 out of 30 in February 2012 to 23 out of 30 in March 2014 and 22 out of 30 in March 2015. [10] The Tribunal notes that an undated letter was provided by Dr O stating that BDF had the capacity to make her own decisions following four consultations since 20 September 2015 and an MMSE done by his nurse. This is contrary to an earlier report prepared by Dr H which stated that at the time of his review on 16 June 2015 he was of the opinion that BDF lacks the capacity to manage her own finances and that the enduring power of attorney for BDF should be enacted as there was significant vulnerability existing in her case. Prior to that in a report of 9 March 2015, Dr H had stated that in his opinion BDF lacked capacity to consent to surgery and that her attorneys should be in agreement about any surgery. [11] BDF attended the hearing and was unable to participate to any great degree. The parties at the hearing indicated that they agreed that as a result of her dementia BDF was not able to make personal and financial decisions. That is not to say that she is not capable of expressing her wishes and the Tribunal notes that she has a clearly expressed wish to stay in her own home. [12] The Tribunal is satisfied that BDF as a result of the effects of dementia has impaired capacity to make decisions in regard to personal and financial matters. Guardianship [13] BDF is currently residing in an aged care facility and it said that she has her bags packed ready to go home and she wishes to be cared for by her daughter DH with other external service provision to be provided. BDF’s sister, BK confirms that she has discussed this with her sister while she had capacity and that it was her wish that she be cared for at home by DH. DH and VL, another one of BDF’s daughters support this change in BDF’s accommodation and service provision. DH has also nominated herself as guardian for BDF. [14] DP and DS while acknowledging BDF’s desire to live in her own home consider that she should continue to reside in the aged care facility in accordance with the advice from medical professionals. [15] There are two groups within the family with the major issue being the continuing care of BDF. There also appears to be some issues between the -- 4 of 7 -- 5 daughters about how DH cared for her mother during the period she was providing care. [16] BDF has ongoing health issues which will require decisions to be made in particular about her cholesterol, blood pressure and heart condition. [17] While DH nominated herself as guardian for BDF if appointed she has indicated that she will become her mother’s paid carer. When considering whether someone is eligible to be appointed as guardian for an adult the Tribunal may appoint a person as guardian only if the person is relevantly not a paid carer for the adult2 and if a person is appointed as guardian and they become a paid carer for the adult there appointment ends automatically.3 The Tribunal must also consider that the person is appropriate for appointment.4 [18] While DH is not currently a paid carer and so is eligible for appointment the decisions which she is likely to make would result in her appointment being revoked. The appropriateness considerations require that the person would be available and accessible to the adult and there appropriateness and competence to perform functions and exercise powers under an appointment. I do not consider a person is appropriate for appointment as guardian where the appointment is likely to be revoked by decisions which they will make and they will then no longer be accessible to the adult in terms of them being able to continue as guardian. DH is therefore not an appropriate person to appoint as guardian for BDF. [19] DP and DS nominated themselves as guardians for BDF. They are supported in that role by their brother, SF and were appointed interim guardians by the Tribunal for decisions about accommodation, health care and the provision of services. While they have made their decisions in such a way as to ensure that BDF’s needs are met those decisions are not supported by DH and VL nor to the extent she is able to by BDF. [20] DH and VL also complain that there has been a lack of consultation with them and they are only told after decisions are made. DH provided confirmation of this in emails received from DP and DS advising that BDF had been placed at Emmaus Aged Care. Prior to this DH and VL had been given 24 hours to give any suggestions for a suitable placement. DP and DS responded that this decision was urgent and that they had fulfilled their role by informing the other of decisions made. [21] In my view consultation is a process of seeking views of interested persons about decisions which are pending and not simply informing them of decisions. While informing parties of decisions once made is important so that they are aware of such things as where an adult is residing and their care that is the outcome of a larger process and there must be consultation before hand. This is to ensure that other family members feel that they have 2 GAA Act, s 14. 3 GAA Act, s 26. 4 GAA Act, ss 14 and 15. -- 5 of 7 -- 6 had a say in decisions which affect their loved ones and helps to ensure harmony within the family group. [22] The Tribunal when exercising power in relation to BDF must do so in accordance with the general principles set out in schedule 1 of the Act.5 In particular general principles 7 - which deals with the adult’s participation in decision making and taking their wishes into account when making decisions while ensuring the decisions are consistent with the adults proper care and protection and 8 – maintenance of existing supportive relationships. [23] In this case DP and DS have made a decision that BDF reside in an aged care facility which is against her wishes and means that she is not being cared for by DH who is her preferred family carer. [24] The material before the Tribunal and the oral evidence at the hearing make it clear that there is a great deal of conflict between BDF’s children and that the appointment of one group over the other may not lead to decisions which will ensure that BDF’s care needs are met to the greatest extent possible in accordance with her wishes. [25] To ensure that all parties including BDF have valued input into decisions which affect her and that in particular in regard to accommodation full consideration is given to whether it would be possible to have her cared for at home it is not appropriate to appoint DP and DS. [26] As there are no other appropriate person available for appointment as guardian6 I appoint the Public Guardian as guardian for BDF for decisions about accommodation, health care and the provision of services for a period of one year. Administration [27] BDF is in receipt of a part aged pension and a comsuper pension. She also receives dividends form a share portfolio. BDF owns a home with its contents and a motor vehicle. Her current expenses include aged care fees and the expenses for rates, repairs and maintenance of her home. If BDF is to continue to reside in aged care then decisions are required as to whether to sell her home and pay the accommodation deposit or to rent it and pay the accommodation charge. If she is to return home then decisions will need to be made about how to fund her support services including DH. [28] DP and DS obtained financial advice and had intended to sell BDF’s house to pay her accommodation deposit. MC has also nominated as administrator. She supports DH and had a plan which indicated that there would be sufficient funds to pay for support services for several years from the realisation of BDF’s other assets and then contemplated a reverse mortgage over the house to pay for her ongoing care. MC is a well known 5 GAA Act, s 11. 6 GAA Act, s 14(2). -- 6 of 7 -- 7 financial planner and her competence to perform the role of administrator is not in question. She is though not a neutral party and is supported by DH and VL and not supported by DP and DS. [29] Whoever is the administrator will have to work with BDF’s guardian and consult with other interested parties to ensure that appropriate arrangements are in place to not only protect her assets but to enable the financial resources be available for any personal decisions. They will also need to be acceptable to other interested parties so that BDF is not subject to some parties antagonising her about the actions of the administrators. I note that DP and DS were in agreement that the in the circumstances of the family conflict it would be appropriate to appoint the Public Trustee of Queensland [30] For these reasons I am satisfied that the independent professional Public Trustee of Queensland should be appointed as BDFs administrator for all financial matters for one year. With the Public Trustee to provide a financial management plan within four months and accounts as requested. During the course of preparing these reasons, I noted that the Tribunal should have made an order that the administrator file a copy of their order in the Registrar of Titles office and the order has been amended accordingly. Enduring power of attorney [31] BDF made an enduring powers of attorney in 2006 at a time when there has been no issue raised about her capacity. DP purported to resign as attorney for BDF on 31 August 2015 and BDF made a new enduring power of attorney on 24 September 2015. Both of these events occurred at a time when BDF’s capacity was in question. The resignation would require the approval of the Tribunal and the later enduring power of attorney would be invalid if BDF was found not to have capacity. For these reasons it is not certain who actually held power as attorney for BDF at the time of the hearing. Though DH powers were revoked by her becoming paid carer for BDF. [32] The Tribunal has appointed a guardian and administrator for BDF and in accordance with s 22 of the GAA Act any attorney for BDF may only exercise to the extent authorised by the Tribunal. In this case that means that they cannot be acted upon to the extent the appointments have been made. There was no order made to this effect original and the order of the Tribunal will be amended accordingly. -- 7 of 7 --