CJP [2014] QCAT 336

CITATION: CJP [2014] QCAT 336 PARTIES: CJP APPLICATION NUMBER: GAA1165–14; GAA1166–14; GAA3933–14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 May 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 25 June 2014 DELIVERED AT: Brisbane ORDERS MADE: GUARDIANSHIP 1. The Adult Guardian is appointed as guardian for CJP for decisions about the following personal matters: (a) Accommodation; (b) With whom CJP has contact and/or visits; (c) Health care; (d) 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. ADMINISTRATION 3. The Public Trustee of Queensland is appointed as administrator for CJP 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 one (1) year. -- 1 of 11 -- 2 NOTICE OF INTEREST IN LAND 7. That before 21 August 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 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. ENDURING POWER OF ATTORNEY 9. The following Enduring Power of Attorney for CJP is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made: (a) The Enduring Power of Attorney dated 17 March 2000 appointing RJP and CT successively as attorneys for financial, personal and health matters. CATCHWORDS: DUTIES OF ATTORNEY – APPOINTMENT OF GUARDIAN AND ADMINISTRATOR – with a need for appointments. Guardianship and Administration Act 2000 (Qld) ss 12, 14, 15, 22, 195, 196 -- 2 of 11 -- 3 Powers of Attorney Act 1998 (Qld) s 76 and General Principles 5, 6, 10 APPEARANCES and REPRESENTATION (if any): RJP CT FR CK AT BE SC AL GR Son and enduring power of attorney holder Ex-daughter-in-law and enduring power of attorney holder Carers Queensland - Representative Daughter Son-in-law Office of the Adult Guardian official Office of the Adult Guardian Investigator Public Trustee of Queensland official Public Trustee of Queensland official REASONS FOR DECISION Background [1] CJP is an 83-year-old female with a diagnosis of Alzheimer’s disease. She has been residing with her son/carer/attorney, RJP and his two teenage sons at the attorneys’ home in Trinity Beach. [2] An enduring document was made by CJP on 17 March 2000 whereby she appointed her son and former daughter-in-law, RJP and CT as her attorneys’ successively in the order named for all matters with the attorneys to make decisions and to begin to act only when CJP lost her testamentary capacity. This was her choice when she had capacity to make such an appointment. [3] The Adult Guardian received a referral which contained the following allegations: 1. It is alleged the attorney, RJP has breached section 76 of the Powers of Attorney Act 1998 which requires an attorney to comply with the General Principles. In this instance it is alleged the attorney has failed to comply with General Principle 10 ‘Appropriate to the circumstances’ as the way in which the adult’s funds are being expended are not appropriate to her characteristics and needs. 2. It is alleged the attorney, RJP has breached section 76 of the Powers of Attorney Act 1998 which requires an attorney to comply with the General Principles. In this instance it is alleged the attorney has failed to comply with the General Principles when making decisions affecting the adult’s life. Specifically: it is alleged the adult is not receiving services to meet her day to day care needs; and it is alleged the attorney is isolating the adult’s community access and contact with others. -- 3 of 11 -- 4 [4] These were serious allegations that have been laid against the attorney and pursuant to section 195(1) of the Guardianship and Administration Act 2000 (the Act), RJP’s authority to act as attorney for financial and personal matters for the adult was suspended on 20 November 2013 for a period of three months up to and including 20 February 2014. This suspension was made on the grounds of concern to section 195(2) of the Act; the Adult Guardian reasonably suspects the attorney is not competent. [5] The effect of this has meant pursuant to section 196(3) of the Act, that the Adult Guardian and the Public Trustee of Queensland have exercised the power as attorney for the adult for personal/health and financial matters respectively during the period of suspension, pending a hearing with the Queensland Civil and Administrative Tribunal in relation to the matter. Does CJP have capacity to make her own decisions? [6] The Adult Guardian’s Investigator in her Report notes: On 11 May 2012 Dr Frederico Cavesstany-Ricker Geriatrician diagnosed CJP with probable initial Alzheimer's type dementia. This was on the basis of a two year history of short-term memory loss in which the adult repeated stories, forgets conversations, suffered from vagueness, had difficulty in finding words, was disoriented in unfamiliar environments, would displace things and has become significantly dependent for most instrumental activities of daily living. She scored a Mini Mental State Examination (MMSE) Score of 19/30 on 11 May 2012 indicating a moderate cognitive impairment. The Geriatrician notes that RJP was present at this consultation. [7] The Report also notes: In a medical report dated 31 August 2012, Dr Gavin Miller, Senior Medical Officer, Regional Geriatricians, Older Persons, Health, Services, Clinic was of the opinion the adult has a diagnosis of probable initial Alzheimer's disease, the adult’s repeat MMSE Score on 31 August 2012 was 19/30 indicating moderate cognitive impairment. Dr Miller also indicated he had seen the adult in the presence of RJP. [8] The Report refers to several other medical reports and concludes: based on the medical information obtained, this Office considers that the presumption of capacity has been rebutted for the purposes of enabling the Office of the Adult Guardian to make enquiries into the concerns raised. [9] The Tribunal accepts the evidence contained in the reports of Dr Frederico Cavesstany-Ricker Geriatrician; Dr Gavin Miller; and Dr Rosie Watson that CJP has a diagnosis of Alzheimer's disease which has resulted in a major cognitive impairment. [10] The parties present at the hearing agreed with the medical evidence that established that CJP did not have capacity. [11] The Tribunal is satisfied that the presumption under the Act for personal and financial matters is rebutted. -- 4 of 11 -- 5 [12] The Tribunal makes the following findings of fact: a) CJP has developed Alzheimer's dementia. b) This illness has caused a moderate cognitive impairment c) The illness is progressive in nature so that CJP’s capacity will unfortunately continue decline with time. What should the Tribunal do with the Enduring Power of Attorney? [13] The Adult Guardian received a referral in relation to CJP (see paragraph 3 of these Reasons). The first point which SC made was that RJP attended his mothers’ medical appointments so would have been aware from the comments of the geriatrician and other doctors that his mother did not have capacity to make important decisions. This means that the Enduring Power of Attorney would have become operative placing an onus on RJP to take on the responsibility of acting as his mothers’ attorney. [14] The Tribunal notes that it is an onerous obligation taking on the responsibility of making decisions for someone else. This is quite clear on a plain reading of the enduring document which RJP signed. RJP on page 16 of the document signed the attorney’s acceptance. He ticked the box stating that he had read the enduring power of attorney document. He ticked the box to indicate that by signing the document he took on the responsibility of exercising the power it been given in the document. He ticked the box to say that he understood that he must exercise the power in accordance with the Powers of Attorney Act 1998. Adult Guardians’ Investigation Report - Allegation one [15] The Investigator obtained a copy of CJP’s financial records. This raised concerns about the use to which CJP's funds were being used. The Adult Guardian directed RJP to provide information regarding the use of CJP’s funds. The Report notes: in his written responses to this Office dated 12 and 18 December 2013, the attorney advised he was not aware that his role and responsibility as the adult’s appointed attorney required him to keep records and/or receipts for expenses claimed. Despite the attorney advising this Office he had some of the following invoice/receipts for expenses claimed, the attorney has not provided any such documentation for several of the listed expenses… [16] The Investigator reports that an amount totalling approximately $400,293 has been drawn from the adult’s account between April 2012 and September 2013. These included: two bank cheques totalling $45,400 drawn on 21 December 2012 to 11 January 2013 to Westco Motors; a bank cheque drawn on 7 August 2013 to SP and KG (for the purchase of the Trinity Beach property); and the payment of the amount of $22,500 in the period 24 July 2012 to 2 November 2013 for the attorney’s personal legal fees. -- 5 of 11 -- 6 Mazda Dual Turbo Cab Utility Motor vehicle [17] In relation to the motor vehicle documentation was obtained indicating that the adult’s funds were used to purchase a new motor vehicle (Mazda Dual Turbo Cab Utility) on 21 December 2012 totalling $45,400, and the adult and attorney were listed as joint owners. Records also appeared to show the adult’s funds have been used to register the new vehicle under the name of the attorney and insured the motor vehicle under the names of the attorney and her former daughter-in-law. The attorney advised the Investigator that the purchase of the new vehicle took into account the adult’s need for comfort due to increasing mobility issues and adequate space required to meet her future needs. The attorney also advised he took into account the transport requirements of his whole family which included his teenage sons. In the Report the Investigator notes: an adult with mobility issues may struggle to gain access to a dual cab utility due to the fact the cab of the vehicle sits much higher than a standard motor vehicle. It appears the attorney has not contributed financially to the purchase of this vehicle, nor to the on road costs or insurance. Purchase of property in Trinity Beach [18] In relation to the purchase of the Trinity Beach property according to the attorney, the adult intended to purchase a property when she relocated to Trinity Beach and if she did not purchase a new home she would be further disadvantaged by the loss of the pension due to her funds in a bank account. The documentation obtained by the Investigator appear to show a contract was signed by the adult and the adult’s funds were used to purchase the property on 9 July 2013 (two-bedroom duplex) totalling $290,000 from owners, SP and KG with settlement on 8 August 2013. It also appears the adult’s funds were used for payment of legal costs associated with the purchase of property totalling $6,427.77. The Investigator notes that the former owners of the property were friends of the attorney and that no evidence of valuation was provided to the Investigator. The Investigator also notes that the attorney had not sought a medical certificate in relation to the adult’s capacity prior to the adult signing a contract to purchase the property. [19] The Investigator notes that the adult’s funds have been used for costs totalling $36,204 associated with renovations on the property including the purchase and construction of the totalspan shed. SC reports: all of these alterations and renovations appear to be done at the adult’s expense. For the attorney to decide the adult should be responsible for the entire costs associated with offering two-bedroom home become a four- bedroom home to accommodate the attorney and his two children, this does not seen reasonable and appropriate to the adult’s characteristics and needs. Legal costs [20] SC was told by the attorney that he had borrowed from his mother $22,500 for payment of his personal legal fees associated with his divorce -- 6 of 11 -- 7 settlement. The attorney advised that an informal agreement had been made for these funds to be reimbursed at the time when the attorney’s property was sold. The attorney was not able to provide the Investigator with any further details in relation to when such an agreement was made, nor whether it is intended for the adult to receive any interest on those funds. Attorney’s Response to the allegations [21] RJP accepted that most of what had been said by SC in relation to the investigation was correct. He now had a better understanding of the role and responsibility persons acting as attorneys. [22] FR told the Tribunal that she had spoken extensively to RJP about the role of attorney and he now understands that the purchase of the property was a conflict transaction; and that he had to be accountable in managing his mother’s funds. He was not aware of any of the procedures or requirements in undertaking the role. Findings in relation to allegation one [23] SC was of the view that the attorney had failed to provide a financial record of transactions that have been made. Although requested, there were a number of transactions where his expenses claimed were not supported by records and/or receipts. She was of the view that the actual costs and outlays for the adult could not be adequately calculated due to the lack of adequate record-keeping by the attorney. [24] SC was of the view that the attorney lacked insight into his role and responsibilities as the adult’s attorney in protecting the adult’s interests. The way in which the adult’s funds have been expended by the attorney appears to be of benefit to others, including the attorney, with the purchase and renovations to the property, purchase and ongoing costs associated with the new motor vehicle and the ongoing payment of the attorney’s personal legal fees. She was of the view that allegation one had been substantiated. [25] The Tribunal accepts that these findings are reasonable given the results of the investigation. Adult Guardians’ Investigation Report - Allegation two [26] The second allegation against the attorney was that he had not provided adequate access to the community to the adult and that he had in fact isolated her. [27] SC spoke to CJP’s GP and was informed of the conflict between the parties. It was clear that CJP was receiving some services. However as of February 2014 when CJP was assessed to be high care she has been in need of a nursing home placement and in the interim there would be benefits to her receiving respite care. RJP has been reluctant to allow -- 7 of 11 -- 8 CJP access respite care even though it is clear that he has been experiencing carer stress. Whilst the attorney shows care and concern he lacks insight into the adult’s needs not allowing her to have appropriate supportive services. There also has been difficulties with the adult’s having contact with other family members. [28] RJP told the Tribunal that contact with her daughter would cause negative changes in CJP's behaviour and would not be in her best interests. [29] BE told the Tribunal that the adult no longer wanted to have contact with her daughter that the adult’s daughter had been estranged from her for many years. Her daughter wished to reconnect with her mother but that it would need for CJP to want that contact. CJP wanted to connect with her grandson GA but that he would not see her if she would not see his mother. [30] The second allegation against the attorney was that he had not provided adequate access to the community to the adult and that he had in fact isolated her. [31] The Investigator noted: although currently accepting services for the adult, it appears the attorney remains reluctant to allow the adult community access and respite. According to the attorney, the adult attended the service on one occasion but did not wish to return. The delegate Guardian advised that the attorney appeared to lack insight into the need for the adult to access services including respite and community access and advised that the adult might benefit from the appointment of an independent decision maker to protect her ongoing interests regarding health care, service provision, contact and accommodation matters. [32] SC was of the view that the attorney had not complied with General Principle five ‘Participation in community life’ as the way in which the attorney was making decisions affecting the adult’s life did not appear to take into account the importance of encouraging and supporting the adult to participate in community activities and respite. She was also of the view that the attorney had not complied with General Principle six ‘Encouragement of self-reliance’ as the way in which the attorney was making decisions affecting the adults life did not appear to take into account the importance encouraging and supporting the adult’s independence through service provision. [33] RJP pointed out that he had attempted to engage services prior to the involvement of the Adult Guardian. The involvement of the RSL providing support services came as a result of his initiative. He also pointed out that attempts to organise contact with other family members had not always been successful due to factors outside his control. -- 8 of 11 -- 9 Findings in relation to allegation two [34] SC notes: although it appears the adult began receiving services to assist with her with showering in October 2013, since the involvement of the Adult Guardian on 20 November 2013 a decision has been made by the delegated Guardian for services to also include medication prompting and a decision made to accept an extended high care package on behalf of the adult commencing on 24 February 2014… It is difficult to assess at this time what benefits the adult may receive from community access and respite as it appears by all accounts the attorney remains reluctant for the adult to attend day respite activities and/or extended respite. Due to the apparent carer stress, ongoing family conflict and the continued isolation of the adult at home, it would appear that the attorney has not been actively seeking social interaction for the adult which may not only benefit the adult but also provide the attorney and his teenage sons with a break at times from their role in caring for the adult. … While acknowledging the attorney clearly shows care and concern for the adult, it also appears the attorney lacked insight into the need for the adult to access ongoing services including respite and community access, prior to the suspension of his powers for personal matters. [35] SC was of the view that the allegation had been substantiated. [36] The Tribunal accepts the evidence provided in the Investigation Report by the Adult Guardian. The Tribunal also accepts the oral evidence given by SC at the hearing. RJP has acknowledged his failures. [37] The Tribunal makes the following findings of fact: a) RJP has not kept appropriate records outlining the expenditure of his mother's finances. b) RJP had his mother sign a contract to purchase land at a time when he knew or ought to have known that she did not have capacity to do so. c) RJP entered into a transaction with friends to purchase the property without providing evidence that independent valuation had been obtained. d) RJP has not deal appropriately with the money that he has expanded in accordance with the General Principles. [38] The Tribunal was of the view in the circumstances that it was appropriate to override the Enduring Power of Attorney made 17 May 2000 in favour of RJP. Does CJP need a Guardian? [39] BE told the Tribunal that she saw a need for a Guardian around: health, service provision, accommodation and contact. Oz Care Services have been appointed to provide services for medication prompting. CJP needs to be prompted to take her medication and has been known to refuse to -- 9 of 11 -- 10 take her medication. This takes pressure off family having to ensure compliance. RSL Care is providing nine hours of support. CJP has a range of health issues. She has been suffering from recurring urinary tract infections because she will not shower on a regular basis and needs to be prompted every 3 to 4 days to shower. There has been a change by respite providers in relation to the provision of services where someone has a high care assessment. In these cases they are no longer able to provide day respite. This limits community access for a wide range of people including CJP. [40] BE visited CJP who explained that there was still significant conflict between herself and her ex-daughter-in-law CT, and her daughter CK. This underlines that there is ongoing conflict and a need for an independent decision-maker to help with this issue. BE has referred CJP to Rights in Action to help with supervised contact. RJP now accepts that he is no longer able to care for his mother and that a nursing home placement is appropriate. He is now looking at which nursing home is best for his mother. [41] All the parties agreed that these were the areas of need for the appointment of a Guardian for CJP. Who should be appointed as CJP as Guardian? [42] All parties present supported the appointment of the Adult Guardian as Guardian for CJP. [43] The Tribunal makes the following findings of fact: CJP’s skills and abilities to live independently have declined materially to the point she has become significantly dependent on her son for the activities of daily living ; RJP has expressed carer stress providing support for his mother; there are limited services in the community to support CJP given her assessment as needing high care; CJP's health is declining and her poor hygiene is contributing to urinary tract infections which impact further on her health; and there is a history of significant conflict between different members of CJP's family which has frustrated attempts of some family members to have contact with her. [44] The Tribunal accepts that the Adult Guardian as an independent professional Guardian is the most appropriate appointment in the circumstances. The Tribunal appoints the Adult Guardian for a period of one year in relation to the following matters: health; accommodation; service provision; and contact. The appointment of the Adult Guardian will ensure that CJP and all family members who have an interest in CJP's welfare will be able to have some input in terms of important decision- making. Does CJP need an administrator? [45] GR from the Public Trust of Queensland (the Trustee) told the Tribunal that the registration of the Mazda had been transferred into her name and -- 10 of 11 -- 11 insured in her name with her son RJP as the nominated driver. The property in Trinity Beach has been insured with Suncorp and a notice of interest in land has been lodged. CJP’s aged care pension has been redirected. He told the Tribunal that RJP had been very cooperative in providing information and responding to the Trustees queries. The Australian Taxation Office has been contacted. Overpayments by Centrelink have been identified. Health insurance with BUPA has been initiated. An independent valuation has been obtained of the property at Trinity Beach which values it at $295,000. An amount of $113,428.72 has been withdrawn from her account and placed in a term deposit. The Trustee holds $8,608.89 in their cash account for her. [46] The Trustee has asked the attorney to provide a proposal in relation to the money loaned for his personal legal fees. A recent meeting took place with regard to the debt to totalspan in relation to the shed. RJP has paid most of that bill with a balance of $1,000 outstanding. If CJP cannot live in the Trinity Beach property then the best option might be to sell the property. The Trustee will talk with the Adult Guardian and get some information from CJP's GP before making any decision. Whilst CJP is residing with RJP there is an issue of paying board and lodgings. The Trustee intends to set off against these charges against any money that RJP owes to CJP. [47] The Tribunal makes the following findings of fact: CJP receives a pension; owns a property and has other assets that need to be managed; CJP Castella's future accommodation needs have to be established and a decision made in relation to the use of the property Trinity Beach. [48] The Tribunal is satisfied that a need exists. The Report of the Adult Guardian highlights several issues in relation to the actions of the attorney in managing CJP's finances. The Trustee has started to take steps to address the issues raised by the Investigator. It is clear that CJP cannot manage her finances. There is a clear need for independent professional administrator to be involved. All parties present at the hearing accept that there is a need for the appointment of an administrator. Who should be appointed as administrator? [49] All parties present at the hearing accepted that the Public Trustee of Queensland was the appropriate appointee. The Tribunal agrees with parties that the Trustee is the most appropriate appointment. [50] The Tribunal appoints the Trustee for a period of one year. The Tribunal dispenses with the need for the administrator to provide a financial management plan. The Tribunal notes that the administrator has filed a notice of interest in land. The Tribunal directs the administrator to provide to accounts as directed by the Tribunal. -- 11 of 11 --