FLA [2014] QCAT 521

CITATION: FLA [2014] QCAT 521 PARTIES: FLA APPLICATION NUMBER: GAA5371-14;, GAA5372-14;, GAA5374-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 30 July 2014 HEARD AT: Bundaberg DECISION OF: Member Lewis DELIVERED ON: 22 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Public Guardian is appointed as guardian for FLA 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 two (2) years. 3. The Public Trustee of Queensland is appointed as administrator for FLA for all financial matters. 4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in two (2) years. 7. That before 22 December 2014 the administrator must: a. Search the records of the Registrar of Titles to identify any property registered in the adult’s name. b. Give the registrar of titles a copy of this order and a notice to the registrar advising that any interest in property -- 1 of 11 -- 2 held by the adult is subject to this order. c. Give to the Tribunal: i. a copy of the “Lodgement Summary Form” from the Titles registry confirming the notice has been lodged for each property held by the adult; and ii. a copy of the current title searches. 8. If the ownership of any property of the adult changes in any way or the adult acquires an interest in another property the administrator must, within fourteen (14) days of such changes: a. give a copy of this order to the Registrar of Titles; and b. give a notice to the Registrar about the changes or the adult’s interest in another property. 9. The following Enduring Power of Attorney for FLA is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000: a. The Enduring Power of Attorney dated 4 June 2014 appointing WMD as attorney for financial, personal and health matters. 10. The following Enduring Power of Attorney for FLA is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998: a. The Enduring Power of Attorney dated 30 March 2006 appointing the Public Trustee of Queensland as attorney for financial matters. CATCHWORDS: ENDURING POWER OF ATTORNEY – where capacity of principal to execute document is in issue – whether document should be declared invalid GUARDIANSHIP AND ADMINISTRATION – capacity of adult – where attorney seeks appointment if EPA invalid – where conflict between hospital staff and attorney – where attorney’s insight into adult’s condition is in issue – where attorney may have a conflict of interest – whether attorney is appropriate Guardianship and Administration Act 2000, s 14, Schedule 4 -- 2 of 11 -- 3 Powers of Attorney Act 1998, ss 41, 113, 116, Schedule 3 APPEARANCES and REPRESENTATION (if any): FLA (Adult) EW (Applicant, social worker) SB (social worker) Mrs WMD (attorney, carer) Mr WD (carer) AW (Public Trustee of Queensland) REASONS FOR DECISION [1] Mrs A is an 88 year old lady who lives in the Burnett region. She had been married, and though she and her husband divorced some years ago, they continued to live next door to each other, and remained on good terms, until his death in 2012. [2] It appears they have no children although there is a foster daughter living overseas. Little seems to be known of this person, at least to those at the hearing, and no contact was made with her. [3] For some years, Mr D and his wife Mrs D have been assisting Mrs A, and while he was alive her husband, with house maintenance and other chores. They live a few blocks away. They have become in effect Mrs A’s carers. [4] In June 2014, Mrs A became ill, and Mr D arranged an ambulance to take her to the Bundaberg Base Hospital where she was admitted. Initial assessments indicated that she had significant cognitive impairment. However during this period, she signed an enduring power of attorney in favour of Mrs D. She also indicated a desire to go home, and, concerned that she would discharge herself when she was still unwell, the medical staff contacted the Adult Guardian and obtained a direction as statutory health attorney, that she be kept in hospital for the time being. [5] Hospital staff held discussions with Mr and Mrs D, but notwithstanding those discussions, they attended at the hospital the next day and discharged Mrs A contrary to medical advice. It was only after the hospital threatened to involve the police that Mr D brought her back to the hospital, where she remained for another two weeks or thereabouts. [6] During the course of these few days, Mrs A had made various statements to the staff concerning her house and will. She told them that she had signed her house over to the Ds, but now regretted that she had. She thought that was about 3 weeks previously. Discussions with Mr D appear to have indicated that this occurred some months earlier. [7] Against this background, Ms EW, a hospital social worker, brought this application, seeking to have the Public Trustee appointed as administrator, -- 3 of 11 -- 4 and the Adult Guardian (as the office then was) as guardian. By necessary implication, she also sought orders with respect to the enduring power of attorney. [8] The Ds seek that the enduring power of attorney not be set aside, or if it is, that Mrs D be appointed Mrs A’s administrator and guardian. [9] The Tribunal had the benefit of reports from Dr FN, Ms O (occupational therapist), Ms RH (psychologist), and from the applicant Ms W, all of which bear on the issue of capacity, as well as other occupational therapists who inspected the adult’s home, and a dietician who cared for her during hospitalisation and afterwards. It also had a statement from the witness to the enduring power of attorney, and a statement from Mrs D. In addition, the various parties gave oral evidence and submissions at the hearing. [10] The hospital notes say that when Mrs A came to hospital on 2 June, she had delirium and confusion, causing worsening behaviour and wandering. Mr D reported that she had placed clothing over a heater, which had caused burn marks and holes in the clothing. She reported that she had signed her house over to Mr D, but now regretted it. She was referred to the social worker for assessment.1 [11] The occupational therapist saw her on 4 June, when she admitted she was not coping. She consented to doing a Standardised Mini Mental State Exam, but after about seven questions she refused to speak or answer more questions. She declined to participate in a functional kitchen assessment.2 [12] The psychologist RH saw her on 6 June. She noted that Mrs A was oriented as to time, place and person. However Mrs A also reported that she was concerned about paperwork she had signed the previous night, but was unable to clarify what document she had signed. Ms H recommended that formal testing be deferred.3 Ms W reports that the psychologist noted that she ‘was not medically fit to participate in health or financial decision making’.4 This does not appear in Ms RH’s report, although it may have been in her notes, which were not produced. [13] As mentioned above, Mrs A sought to discharge herself that day. However the medical staff were concerned. Ms W records that Mrs A had reported to staff that ‘last night she signed over her house to (Mr and Mrs D) in the presence of Wanda, an official person’. Mrs A was to mention Wanda on a number of occasions, although there was no one called Wanda involved with her. Further, Ms W says that the hospital doctor conducted a mini mental exam that day resulting in a score of 16 out of 1 EW, Report 25/07/2014. 2 Ms O, Report 11/06/2014. 3 RH, Report 10/06/2014. 4 EW, op cit. -- 4 of 11 -- 5 30.5 Ms EW told the hearing that any score of less than 23 indicates cognitive impairment. [14] There were discussions that day with Mr and Mrs D. On 7 June the Ds arrived at the hospital with a note from Mrs D stating that as attorney she was discharging Mrs A into her and her husband’s care and that they would care for her and take her to her local general practitioner weekly. The letter noted: ‘We have been advised there is no medical condition holding (her) in hospital’. As previously noted Mr D did in fact remove her, and brought her back only after the intervention of the Adult Guardian and threats by hospital staff to involve the police. [15] The occupational therapist conducted a further SMMSE on 10 June, with a result of 20 out of 30. Later that day she saw Ms H again. After a short conversation she became irritable and didn’t want to answer any more questions. She said she felt very unwell, experiencing pain variously, but wanted to go home. She said that she had no further concerns about the paperwork, and had sorted it out “yesterday”. She wrongly reported her date of birth, by some 20 years. She was assessed on the Geriatric Depression Scale and Geriatric Anxiety Scale, and Ms H noted these results were not congruent with her presentation. She concluded that her presentation and results suggested she was cognitively impaired in ways which may impact on her functioning in financial decision making and tasks such as medication regimes.6 [16] Ms W further reported that Mrs A had reported to social work staff that ‘D doesn’t have my house anymore because Wanda, the solicitor from (the hospital) came in and whited it out on the paper and she doesn’t have to worry anymore’. Later a nurse explained that to alleviate her distress she had pretended to white out some information on a piece of paper, and Mrs A then settled. [17] On 11 June the staff discussed the Tribunal application with Mr D. He became upset, and stated that there was nothing wrong with Mrs D, and that the doctors didn’t tell him anything. Later he sought to have her sign some document concerning access to medical information and in the ensuing upset the police were involved. [18] On 13 June the psychologist again attempted to assess capacity but Mrs A did not cooperate. She said she no longer wanted to be friends with her carer, that she was worried because “Wanda” had cancelled her will, that her bank was her power of attorney, and that she no longer trusted anyone.7 [19] Ms W also says that Mrs A told her she had taken her certificate of title to her solicitors. Mr D told Ms W that she had signed her house and will over to him over six months ago, and that the solicitor they first consulted was 5 Ibid, and orally at the hearing. 6 H, op cit. 7 This and preceding paragraphs, see W, op cit. -- 5 of 11 -- 6 ‘a bit funny’, and wouldn’t help them. When the solicitor mentioned that the will was made out to someone else (apparently the foster daughter), D had said ‘well that’s too bad’.8 [20] Doctor N noted Mrs A’s medical conditions as including acute kidney injury, dehydration, malnutrition, confusion and depression. He said she had no insight into her medical condition, and summarised her ability to understand and make decisions as lacking for both complex and simple decisions across the range of personal and health care, lifestyle and accommodation choices, and financial affairs.9 [21] It is not necessary to go into detail concerning Mrs A’s medical conditions, but it should be noted that her weight and diet was a significant source of concern. The dietician Mr MW reported that at admission, she weighed 36.5 kg, down from a reported 48 kg some 3 to 6 months earlier. She was significantly depleted, and had severe loss of subcutaneous fat and extensive muscle wastage. There were continuing issues with her nutrition, and on discharge she weighed only 34.22 kg. When reviewed in early July she was still below her admission weight.10 [22] Mr D told the Tribunal that Mrs A had been unwell for some time before admission, but was resistant to going to hospital. He had pleaded with her for weeks but she was clear that she did not want to. He said that in her mind she had blamed the hospital for her husband’s death. She was feisty, and had a mind of her own. [23] In a conversation with Tribunal staff on 13 June Mrs D said that Mrs A had witnessed her family being shot during the war, and had been in a concentration camp, and was therefore scared of government institutions. [24] The Ds were concerned that the food the hospital was supplying was not to Mrs A’s liking and that this was why she was not putting on weight. She was very selective about her food. Mr D said that he had been there on several days, when she ate only a teaspoonful, then pushed her food away. After that he took up food for her that he knew she would eat. [25] Concerning the discharge from hospital on 7 June, Mrs D said in the discussion with QCAT staff on 13 June, that she had spoken to the doctor the night before, and he had said that there was nothing medically wrong with her. They maintained this position at the hearing. They believed she wanted to go home (as indeed she did). In the 13 June discussion, she then said they were happy for Mrs A to live with them at their home, and be cared for by them. [26] With respect to the matter of transferring the house, and making her will, Mr and Mrs D said the house had not been transferred to them. Mr D said that in December 2013 they had taken her to her solicitors. She had 8 Ms W, email 23/6/2014. 9 Dr N, Report, 10/06/2014. 10 MW, Report 30/07/2014. -- 6 of 11 -- 7 consulted a solicitor in the absence of the Ds, and as a result of that she had made a will. Later she had shown them the will, and in it, she had left the house to them. This was the first they had known of this intention. She had however expressed some concern that the solicitor had provided for himself to be executor. [27] Because of her concern about the executor, they took her back to the same firm in January 2014. However she saw a different lawyer, again in their absence. They understand she has made a different will, but they have not seen this one. They say she was quite alert at this stage. [28] Mrs D says that the matter of an enduring power of attorney had been discussed with Mrs A for some months before that was actually signed. They had discussed it many times, but on each occasion when it might have been prepared and signed, something had come up. They had arranged with the witness for Mrs A to sign the document at about the time she was hospitalised, but given that she was in hospital, had rearranged for the witness to attend on her there. [29] In summary, the D’s position on Mrs A’s capacity is this: she was quite alert and capable in December 2013 and January 2014 when she signed her wills; she was still alert and knew what she was doing when she signed the power of attorney on 4 June 2014; but that she deteriorated after that, especially after she was forced to return to hospital on 7 June; and that after her discharge in late June she has made good progress, and her ability to act independently is improving day by day, but that she was very forgetful and much less able than at the beginning of the year. [30] The witness to the enduring power of attorney, Mrs DR, was an employee of the hospital, as was Mrs D. She provided a statement as to the circumstances of the signing. She confirms that it had been the intention to see Mrs A earlier, but that due to her hospitalisation, Mrs D had asked her to see her there. When she called, Mrs D was there, assisting her with a meal. Mrs D gave Mrs DR the documents, and she then had a conversation with Mrs A. [31] Mrs D left the bedside and Mrs DR was able to have a conversation with Mrs A apparently privately. She asked her a variety of questions concerning her understanding of an enduring power of attorney, such as whether she understood it, and was willing to sign it, and if she wanted Mrs D to be her attorney, to each of which Mrs A answered yes. She says that Mrs A was quite bright and understood what she had explained, and that she saw no problem. [32] Two more matters should be added to this matrix of facts. First, Ms W notes that Mrs A was bitten by a dog, and consequently admitted to hospital in 2009. This fact received some publicity, and a woman called “Cindy” came to visit her in hospital, claiming to know her. Mrs A said she did not know Cindy, but somehow Cindy came to obtain a set of keys to Mrs A’s house, and these were retrieved only with some difficulty. A Montreal Cognitive Assessment was conducted for Mrs A at the time, -- 7 of 11 -- 8 and the score was 21 out of 30, a score which Ms W notes indicates cognitive impairment. [33] Secondly, the hospital occupational therapy team carried out assessments of both Mrs A’s home, and the Ds’ home when the time came for discharge. As noted, the Ds had indicated they would get Mrs A to live with them. The assessment was that the Ds’ home was quite unsuitable for Mrs A. It noted that the front yard was littered with multiple cars and car parts, the front door was accessed through a piece of shade cloth which had to be lifted, and the interior was devoid of floor coverings and quite cluttered. Mrs A’s home had some issues, and needed some facilities, but was manageable, although not suitable for the Ds to move into. [34] Mrs A attended the hearing, and was asked to comment on the matters that had been raised. She recalled seeing her solicitor some time ago, but no longer knew why. She didn’t remember making an enduring power of attorney. When asked what that was, she said she thought it was a document that put things right when they were wrong. She remembered signing something at the hospital but did not know what it was. She denied discussing her house or will with hospital staff. [35] While she was able to engage to a degree, it was clear that she had only a limited understanding of the proceedings. It was also clear however, that she was fond of the Ds, and had a good bond with them. [36] So far as concerns the issue of capacity, the Tribunal must decide first if Mrs A had capacity to enter into an enduring power of attorney on 4 June 2014; and secondly, if she did not, whether the presumption of capacity could be said to be set aside now so that we might consider the need for an alternative decision maker. [37] Both the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 define capacity, relevantly, as meaning that the person is capable of understanding the nature and effect of decisions about the matter, and freely and voluntarily making such decisions.11 [38] Prior to her admission on 2 June, Mrs A had been unwell for some time but had been refusing to go to hospital. She may well have had concerns about government institutions, or blamed the hospital for her husband’s death, as reported, but it is hard to see these positions as indicating a good understanding as to the nature and effect of decisions in relation to her health, and in turn that is evidence of her capacity for other matters. [39] All parties agree that she was quite unwell when she was admitted to hospital on 2 June. On 4 June she was not prepared to continue with a cognitive assessment test. On 6 June a test gave her a score of 16/30. That day she was seeking to discharge herself when the medical opinion 11 Guardianship and Administration Act 2000 Schedule 4, Dictionary, and Powers of Attorney Act 1998 Schedule 3, Dictionary. -- 8 of 11 -- 9 was that she was not at all well. On 10 June she scored only 20/30 on a further test. There is ample evidence that throughout this time she was making statements that were not in touch with reality. The medical opinion is unequivocal that she was not able to make decisions for herself at this time. [40] Against this, we have the opinion of the Ds that she had capacity on 4 June; and we have the evidence of Mrs DR, the witness to the power of attorney. The questions asked of her by Mrs DR were questions to which the adult could give a simple yes answer, and such closed questions are of little help in assessing capacity. No test was performed on 4 June, but it is difficult to accept that, given the data from the tests on 6 and 10 June, and the observations of the medical staff generally, her condition was materially different on 4 June compared with the days just before and after. [41] I must conclude that the Ds and Mrs DR were mistaken in their assessment of Mrs A’s capacity on the relevant day. [42] Section 41 of the Powers of Attorney Act 1998 provides that a principal can make an enduring power of attorney only if the principal understands the nature and effect of the document; and Chapter 6 of the Act gives the Tribunal power to decide the validity of an enduring power of attorney, and to declare such a document invalid if it is satisfied that the principal did not have the capacity to make it.12 I find that Mrs A did not have capacity for executing an enduring power of attorney on the day that she signed the document, and accordingly will order that the enduring power of attorney is invalid. [43] At the hearing, the Public Trustee advised that there was an earlier enduring power of attorney appointing the Public Trustee attorney for financial matters, made 30 March 2006. Given my finding as to the invalidity of the 2014 document, that power may well be revived. In any event, in view of the orders I propose to make as to an administrator, I will revoke that document as well. [44] I must then decide if Mrs A still lacks capacity, before I can decide if there is a need to appoint a decision-maker for her. [45] Having heard Mrs A at the hearing, and having taken into account the matters that have been raised on this issue, I am not satisfied that the position concerning Mrs A’s cognitive abilities has improved since June 2014. I find therefore that she still lacks the capability to understand the nature and effect of decisions about complex matters with respect to both personal and financial matters. I am therefore satisfied that the presumption of capacity for both personal and financial matters has been rebutted. 12 Powers of Attorney Act 1998 s 113. -- 9 of 11 -- 10 [46] Turning to the issue of need, so far as personal matters are concerned, it is not seriously in issue that her health is a matter of ongoing concern, and decisions may have to be made in this area. So far as relates to accommodation, it appears that Mr and Mrs D have implemented the recommendations of the occupational therapists, and that her home was, at the time of the hearing, manageable for her. However she would need considerable help with daily living activities, and the home was not suitable for any live-in care. Given her state of health and the condition of her dwelling, it may be necessary for some further decision on accommodation in the foreseeable future. Service decisions are also likely to be required. [47] With respect to financial matters, Mrs A receives a pension and has reasonably significant savings which will need to be managed. Depending on any later accommodation decisions it may be necessary to sell or let her home. [48] I find therefore that there is a need for a decision maker in these areas, and that without an appointment Mrs A’s needs will not be adequately met, nor her interests adequately protected. [49] The application seeks that the Public Guardian be appointed as guardian, and the Public Trustee be appointed for financial matters. The Ds seek that Mrs D be appointed to these positions. [50] Mrs A submitted a short letter to the Tribunal, in which she said that she was happy to have Mrs D looking after her, and wanted Mr and Mrs D to make decisions for her. She said they were her family, and she trusted them. It was obvious from her demeanour and comments at the hearing that she was indeed trusting and fond of them. Similarly, I have no doubt that they are fond of her and have a genuine desire to help her. [51] The Applicant, on the other hand, is concerned that the conduct of the Ds at the time of hospitalisation showed very poor judgment, given the serious consequences that their purported decisions may have had on Mrs A’s health; and that they were liable to accept Mrs A’s wishes even when they were not in her best interests. They were emotionally involved and reluctant to over-ride her. [52] Of particular concern is the Ds’ inability to discern the limitations in Mrs A’s cognitive capacity, especially given they were receiving expert advice contrary to their opinions at the time. I accept that they know her well, and perhaps see aspects where she is quite perceptive, but at the end of the day, there is ample evidence of cognitive impairment, which they should be more prepared to acknowledge and act on. [53] On financial matters, I note the concerning comments that the Applicant has reported as having been said by Mr D concerning Mrs A’s proposal to leave the house to them in her will, as set out above. Granted Mr D may not accept this version, but there is nonetheless a possibility of a conflict of interest here if Mr or Mrs D was appointed. There are, moreover, some -- 10 of 11 -- 11 concerns which, while they may prove to be groundless, would benefit by being investigated by an independent decision maker. [54] One is naturally reluctant to go against the wishes of the adult, especially one who, notwithstanding the findings on capacity, is well capable of stating such an opinion. I am also conscious of the provisions of section 14(2) of the Guardianship and Administration Act 2000 which provide that the tribunal may appoint the Public Guardian only if there is no other appropriate person available. In this case however, in all the circumstances I find that it is more appropriate that independent decision makers be appointed. [55] That said, I am nonetheless concerned to ensure that Mrs A is not deprived of the assistance and society that the Ds have provided her. No doubt the Public Trustee and the Public Guardian will consult with them as significant people in the adult’s life, and they will continue to have a role. Given the experience of working with those organisations, it may be that Mr and Mrs D will gain greater insight into the roles of guardian or administrator, and that a year or two hence the concerns about the suitability of them will no longer apply. It may be that after a period, it will be appropriate to appoint them to a decision-making role. In those circumstances, I propose to order that these appointments be reviewed in two years, rather that the longer periods which would usually apply. Any party can of course apply sooner if that is indicated. [56] The formal orders will reflect these findings. -- 11 of 11 --