AJM [2014] QCAT 251

CITATION: AJM [2014] QCAT 251 PARTIES: AJM APPLICATION NUMBER: GAA2479 – 14; GAA2480 – 14; GAA3647 – 14; GAA 3648 – 14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 20 May 2014 HEARD AT: Bundaberg DECISION OF: Member Milburn DELIVERED ON: 9 June 2014 DELIVERED AT: Hervey Bay ORDERS MADE: 1. The Public Trustee of Queensland is appointed as administrator for AJM for all financial matters. 2. The administrator is to provide a financial management plan to the Tribunal within six (6) months. 3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 4. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal. 5. Within 3 months of the date of order 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 notice on their prescribed form and a copy of this decision advising the Registrar 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 -- 1 of 9 -- 2 has been lodged for each property held by the adult; and ii. a copy of the current title searches. 6. 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 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. 7. The enduring power of attorney dated 23 January 2013 is varied to remove from QZM the power to make financial decisions for AJM. CATCHWORDS: ADMINISTRATION – where there are allegations that a person with impaired decision making capacity is at risk of financial loss – where there are allegations of financial impropriety by an attorney – where supportive family relationships have become dysfunctional due to conflict ADMINISTRATION – where the finding of the Tribunal is that the adult lacks capacity to make complex financial decisions – where the Public Trustee has been appointed as administrator with a plenary order – whether the Tribunal may appoint the Public Trustee only if there is no other appropriate person available for appointment for the matter POWER OF ATTORNEY – where upon the appointment of an administrator is appropriate to remove powers for financial matters from an attorney – where the power of attorney remains effective for future use for personal and health care matters CAPACITY – the significance of MoCA and MMSE assessments Guardianship and Administration Act 2000 (Qld) ss 6, 7, 9, 10, 11, 12, 14, 15, 82(2), schedule 1, schedule 2 -- 2 of 9 -- 3 Powers of Attorney Act 1999 (Qld) ss s33(4), 55, 82 MMA [2013] QCAT 718 AB [2013] QCAT 16 APPEARANCES and REPRESENTATION (if any): Adult: Applicant son/attorney: Applicant daughter: Husband: Social worker: Son-in-law: Public Trustee of Queensland Adult Guardian: Queensland Aged and Disability Advocacy Inc: AJM QZM COM QDM LR IM Represented by Anthony Williamson Represented by Allyson Lindsay Represented by Katherine Campbell REASONS FOR DECISION [1] AJM was diagnosed with a large tentorial meningioma and underwent craniotomy surgery in Brisbane in December 20131. Following the procedure her auditory comprehension was severely impaired; as were her reading skills. A Montréal Cognitive Assessment (MoCA)2 was undertaken following the procedure and she scored 17/30. She did not score any points in the memory test and scored 3/6 on the attention tasks. She was unable to recall coping strategies and was reluctant to take handouts to aid her memory3. She was also subjected to a mini mental state examination (MMSE)4 and scored 18/305 on 13 December 20136. 1 This information was confirmed in a social work report prepared by a social worker, RA, employed by Queensland Health 2 MoCA Version August 18, 2010 © Z. Nasreddine MD: “The Montreal Cognitive Assessment (MoCA) was designed as a rapid screening instrument for mild cognitive dysfunction. It assesses different cognitive domains: attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations, and orientation. Time to administer the MoCA is approximately 10 minutes. The total possible score is 30 points; a score of 26 or above is considered normal.” 3 This information was contained in a letter dated 28 January 2014 prepared by a treating psychologist, SA. 4 The mini mental state examination is a brief questionnaire test used to screen for cognitive impairment; commonly used in preliminary detection of dementia. The test was undertaken at St Andrews War Memorial Hospital on 13 December 2013. 5 A score of 18/30 in a mini mental state examination would place the participant at the very low end of mild cognitive impairment and only one point clear of severe cognitive impairment. Source: • Folstein MF, Folstein SE, McHugh PR: “Mini-mental state: A practical method for grading the cognitive state of patients for the clinician.” J Psychiatric Res 75;12:189-198. 6 This information was contained in a specialist geriatric report dated 15 December 2013. -- 3 of 9 -- 4 [2] MoCA and MMSE assessments are quick screening processes which provide some assistance to the Tribunal; but the results should not necessarily cause the Tribunal to draw a specific conclusion. [3] AJM is presumed to have capacity for a matter7. [4] In determining this matter the Tribunal had the benefit of a report from a specialist hospital-based geriatrician8. The practitioner was able to conclude that as early as 15 December 2013 AJM was capable of understanding and conveying her decisions regarding her medical treatments. The specialist indicated that AJM was able to participate in her own discharge planning, make accommodation choices and consider the notion of community services that may assist her post discharge rehabilitation. That was the case despite the speech difficulties she had suffered as result of her acquired brain injury9. The specialist concluded that AJM was able to undertake decision-making in relation to all but complex decisions pertaining to her financial issues. [5] The Tribunal received evidence from a number of sources which indicated that AJM had improved substantially since the time that she was subjected to brain surgery10. [6] Save for the evidence of QDM, the estranged husband of AJM, all parties able and willing to proffer an opinion at the hearing concurred with the medical evidence that AJM did not have capacity for complex financial matters. [7] The Tribunal concludes, as a finding of fact, that AJM does lack capacity to make decisions of a complex nature in relation to financial issues. However the Tribunal concludes that she does have capacity to make other decisions. That means AJM is found to have appropriate decision- making capacity in relation to all personal and health related matters and simple financial issues. The Tribunal finds that AJM's decision-making capabilities are impaired to such a degree that the presumption of capacity has been rebutted for decision-making in relation to complex financial matters. [8] The Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1999 (Qld) authorise the exercise of power for a matter for an adult with impaired capacity for the matter11. 7 Guardianship and Administration Act 2000 (Qld), section 7 and schedule 1 (general principles). 8 The report was prepared by Doctor GK, is dated 15 December 2013 and was prepared as a health professional report for the Office of the Adult Guardian. 9 A speech pathologist, IV, provided a report to the Tribunal dated 12 March 2014 and indicated that AJM showed mild to moderate impairment in naming tasks; her auditory comprehension was severely impaired and her reading skills were also severely impaired. 10 The Tribunal accepts the speech pathologist report by IV dated 12 March 2014; evidence at the hearing from a senior social worker, LR and family members. 11 Guardianship and Administration Act 2000 (Qld) s 9(1). -- 4 of 9 -- 5 [9] This may be done on an informal basis by members of the adult’s existing support network or on a formal basis in a number of ways12. In relation to financial decision-making, the formal basis authorising the exercise of substitute decision-making power for the adult may be conferred through an enduring power of attorney or by appointment of an administrator13. [10] On 23 January 2013, AJM executed an enduring power of attorney in favour of her son QZM for financial and personal/health matters. In doing so she appointed her son to make decisions immediately in relation to financial matters. She did not introduce any restrictions or impose any conditions upon him in relation to the manner in which he was to exercise any of his powers. The power of attorney document was drawn by a solicitor who witnessed the signature of AJM; and in doing so, certified14 that in his view she "appeared to me to understand the matters contained in clause 8". Clause 8 of the document, which is headed ‘Statement of Understanding’, provides for a number of important issues relating to the principal’s understanding of the nature and effect of the power of attorney document. No evidence was produced to the Tribunal which suggested, in any way, that the power of attorney document was drawn inappropriately or that AJM did not fully understand the nature and effect of the documentation. [11] Therefore, on its face, the enduring power of attorney dated 23 January 2013 remains effective as the appropriate substitute decision-making document for financial matters. Prima-facie then, unless there is good reason to do so, the Tribunal need not make any orders in relation to substitute decision-making with respect to financial matters for AJM. [12] One of matters for which a substitute decision maker can exercise power for an adult is a financial matter15. Schedule 2 to the Guardianship and Administration Act 2000 (Qld) defines a financial matter, for an adult, as the matter relating to the adult’s financial or property matters, which includes receiving and recovering money payable to the adult, preserving the adult’s estate and a legal matter relating to the adult’s financial property matters. The power of a substitute decision maker to make decisions in relation of these specific financial matters becomes relevant in the context of an allegation of impropriety by the adult’s son, QZM, as the appointed attorney. The issue of substantial conflict within the family and broken communication within it, is also of significance. [13] A person who performs a function or exercises a power under the Guardianship and Administration Act 2000 (Qld) ,for a matter in relation to an adult with impaired capacity for the matter, must apply the principles stated in schedule 1 to the Act16. Schedule 1 of the Act provides for the general principles. 12 Ibid s 9(2). 13 Ibid s 9(2). 14 The certification is included on page 8 of the document. 15 Guardianship and Administration Act 2000 (Qld) s 10. 16 Ibid s 11. -- 5 of 9 -- 6 [14] The Tribunal must make an order which reflects the legislative requirement to encourage involvement in decision-making by the members of the adult’s existing support network17. [15] The Tribunal accepts that there is a considerable degree of family conflict which must be taken into account. This is because one of the general principles imposed upon a substitute decision maker is the responsibility to maintain the adult’s existing supportive relationships18. [16] In exercising his role as attorney for his mother, QZM has found it difficult to differentiate between his duty as an attorney and his desire to follow the ongoing directions of his mother. While it is acknowledged that the views and wishes of the adult with impaired capacity for matter must be recognised and taken into account19, as a substitute decision maker he must make the decisions as he sees fit; even if this is not in accordance with the direction to him by the adult. This is particularly the case in circumstances where the adult provides a direction to the attorney which constitutes a conflict transaction; if undertaken by the attorney. [17] An attorney cannot justify entering into a conflict transaction merely because he or she did so at the direction of the principal. In this regard there are issues which have come to light that should be the subject of appropriate and independent investigations. [18] It is incumbent upon the Tribunal to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making20. The Tribunal will only make an order if it is established there is need to do so21. [19] The Tribunal may make an order appointing an administrator for a financial matter if satisfied that the adult has impaired capacity for the matter; and there is a need for a decision in relation to the matter or that 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 without appointment the adult’s needs will not adequately be met; or the adult’s interests will not be adequately protected22. [20] The Tribunal finds that there is a need for a substitute decision maker with respect to financial matters because AJM has substantial assets and may be readily susceptible to undue influence. AJM has received a substantial inheritance and the evidence before the Tribunal suggests that a large proportion of this has already been gifted or lent to third parties. It is appropriate and necessary for some investigations to be undertaken in relation to these financial transactions. 17 Ibid s 7. 18 Ibid schedule 1, paragraph 8. 19 Ibid schedule 1, paragraph 7(1). 20 Ibid s 6. 21 Ibid ss 7(b) and 12 (1). 22 Ibid s 12(1). -- 6 of 9 -- 7 [21] The adult’s husband, QDM, did submit to the Tribunal that no appointment is necessary, because AJM is capable of decision-making in relation to her financial affairs but in any event he believes that they can informally look after their financial affairs together. I cannot accept his position in this regard. There has been substantial conflict within the family and his proposed role is not supported by his wife or his children. [22] Having come to the determination that the adult, AJM, does lack capacity to make decisions in relation to complex decision-making matters, a further question remains as to whether the adult lacks capacity in relation to any other matter. The Guardianship and Administration Act 2000 (Qld) categorises various matters23 and it is clear the distinction can be drawn between matters. The Tribunal is of the view that the adult, AJM, does not lack capacity in relation to her ability to make decisions in relation to personal and health related matters. Accordingly, the Tribunal makes no order which would cause to render invalid or ineffective the enduring power of attorney signed by the adult on 23 January 2013 in favour of her son, QZM, in relation to personal and health matters. [23] The Tribunal may appoint an administrator being a person or persons, subject to certain limitations, or the Public Trustee or a trustee company24. In any event, the Tribunal must have regard to the matters mentioned in section 15(1) of the Guardianship and Administration Act 2000 (Qld) and appoint the person most appropriate for appointment. The Act specifically provides that, in relation to matters pertaining to personal and health issues, the Tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment. No such constraint is imposed upon the Tribunal in relation to administration matters. [24] That is, there is no reason why the Public Trustee of Queensland can only be appointed as administrator where there is no other appropriate person available for appointment. However, the Tribunal generally does consider the appointment of the Public Trustee of Queensland as administrator where there is no other nominee for administrator considered to be appropriate for appointment25. [25] In determining who is to be the appropriate appointee, the Tribunal took a number of matters into consideration. Firstly, while it is clear that the adult was very happy for her son to continue in this role, given the filing of a lack of capacity and the potential that she may be financially exploited, I attribute weight to her desire in this regard. I do note that the adult’s son has cooperated with representatives from the Office of the Adult Guardian who undertook preliminary enquiries into alleged impropriety and has indicated that he wished to be released from the power imposed upon him pursuant to the power of attorney dated 23 January 2013. I accept the evidence of a social worker treating AJM that, in her view, the financial 23 Ibid s 10. 24 Ibid s 14. 25 MMA [2013] QCAT 718 at [33]. -- 7 of 9 -- 8 affairs of the adult would be more appropriately managed by the Public Trustee as administrator than by the adult’s son. [26] Of fundamental importance to the Tribunal in determining whether a person is appropriate for appointment as an administrator, is whether the person proposed is able and willing to apply the general principles26, contained in schedule 1 of the Guardianship and Administration Act 2000 (Qld). The Tribunal must also consider the extent to which the adult’s and the person’s interests are likely to conflict27. Given that the role of her son in acting as attorney for financial matters was, and is, likely to remain under investigation; and his stated desire to relinquish the role as financial attorney in any event; the Tribunal finds that AJM's son is not an appropriate appointee. The tribunal finds that AJM's husband is not an appropriate appointee. The only other possible appointee is the daughter of AJM, COM, who lent her support to the proposed appointment of the Public Trustee. [27] I propose to appoint the Public Trustee as the administrator for AJM. I propose to make the appointment on a plenary order. This begs the question whether my finding, that the adult has some decision-making capacity in relation to financial matters, is incompatible with the proposed plenary order. Clearly the finding indicates that the adult is capable of making simple financial decisions. In my view there is no incompatibility in this regard. The Tribunal should make an order which is the least intrusive insofar as the adult is concerned. The Tribunal finds, however, that given the family conflict the appointment of the Public Trustee on a plenary basis will assist in diffusing family conflict. The Tribunal notes that, despite making such an order, the inevitable practice of the Public Trustee will be to provide the adult with a modest allowance and corresponding authorisation to enable her to spend this money as she sees fit. [28] The appointment of the Public Trustee by a plenary order is not inconsistent with the objective to make an order which is least obtrusive to the adult, nor is it inconsistent with the finding that the adult has capacity to make simple financial decisions. [29] Given the finding of the Tribunal in this case, that AJM has not lost capacity to make personal and health care decisions, the power of attorney signed by her on 23 January 2013 remains dormant at this time in relation to those matters. [30] AJM's son, QZM, who was appointed to act as her financial attorney pursuant to the power of attorney signed by her on 23 January 2013, has made it clear that he no longer wishes to make decisions in relation to financial matters for his mother. A signed notice in writing is regarded as an appropriate and necessary means of resignation pursuant to section 55 of the Powers of Attorney Act 1998 (Qld), but only when the principal has the appropriate capacity. Accordingly, even though there is no evidence to 26 Guardianship and Administration Act 2000 (Qld), section 15(1)(a). 27 Ibid s 15(1)(c). -- 8 of 9 -- 9 suggest that the attorney has resigned by providing a signed notice to the principal to that effect,28 his intent is clear. [31] The Tribunal could grant him leave to withdraw from acting as attorney for financial matters. The Tribunal has power under section 82 of the Powers of Attorney Act 1998 (Qld) in this regard29. [32] The preferred approach is to ensure that there is certainty in the process. Accordingly, the alternate approach available to the Tribunal is to vary the terms of the enduring power of attorney by removing the financial powers from the attorney. [33] Given the appointment of the Public Trustee by these orders, the power conferred upon QZM for financial decision-making is made redundant. [34] I respectfully adopt the procedure adopted by Senior Member Endicott in AB [2013] QCAT 16. The Tribunal ruled that where the powers granted to the attorney for financial matters was made redundant; such powers are best removed so as to avoid any confusion which may otherwise arise about the proper and correct route for decision-making about the principal’s financial matters. The learned Senior Member said in the above-mentioned case: QCAT has authority under sections 109A and 116 of the Powers of Attorney Act 1998 to make changes to the powers granted to an attorney. I am satisfied that this is an appropriate case for the Tribunal to exercise a statutory authority.30 [35] In essence, therefore, I order that the power of attorney, dated 23 January 2013, is varied by the removal of the financial power previously conferred upon QZM. In his stead, I appoint the Public Trustee to fulfil the financial decision-making role on behalf of AJM on a plenary basis until further order. I make appropriate ancillary orders. 28 As contemplated in section 55 of the Powers of Attorney Act 1998 (Qld). 29 Section 109A of the Powers of Attorney Act 1998 (Qld) confers upon the Queensland Civil and Administrative Tribunal the same jurisdiction powers of enduring documents as the Supreme Court. 30 AB [2013] QCAT 16 at [7]. -- 9 of 9 --