BMD [2013] QCAT 479

CITATION: BMD [2013] QCAT 479 PARTIES: BMD APPLICATION NUMBER: GAA3172-13 GAA3173-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 16 July 2013 and written submissions HEARD AT: Maroochydore DECISION OF: R M Clifford, Presiding Member, L McDonald, Member DELIVERED ON: 9 September 2013 DELIVERED AT: Brisbane ORDERS MADE: [1] The Adult Guardian is appointed as guardian for BMD for decisions about whom BMD has contact and or visits. [2] Unless the Tribunal orders otherwise this appointment remains current for a period of 2 years. [3] The following Enduring Power of Attorney for BMD is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made: The Enduring Power of Attorney dated 27 June 2005 appointing GKA as Attorney, and RIB successively as Attorney, for financial, personal and health matters. [4] The application for appointment of an administrator for BMD is dismissed. CATCHWORDS: Guardianship and Administration - need for appointments - Enduring Power of Attorney in existence - conflict between family members and Attorney -- 1 of 8 -- 2 Guardianship and Administration Act 2000 Powers of Attorney Act 1998 APPEARANCES and REPRESENTATION (if any): ATTENDEES GKA – Attorney DAJ - Applicant & daughter RMC - Applicant & daughter SD - daughter Marion Hall - Representing Public Trustee of Queesnland REASONS FOR DECISION Background [5] BMD is an 89 year old man who has lived on the Sunshine Coast for many years. BMD has five daughters. His son died at Easter this year. [6] Some of BMD’s family live on the Sunshine Coast whilst others live in Victoria. [7] BMD now resides in an Aged Care Facility on the Sunshine Coast. This is the same facility in which his wife died some years ago. [8] On 27 June 2005 BMD appointed his Solicitor, GKA, as his Attorney for financial, personal and health care matters when he lost capacity. BMD also appointed his grandson, RIB, Attorney successively. [9] In November 2012 the Tribunal received an application from DAJ for an order about an Enduring Power of Attorney. In April 2013 the Tribunal also received an application for the appointment of a guardian and an application for the appointment of an administrator by DAJ and RMC. [10] On 16 July 2013 the Tribunal declared that BMD had capacity to execute the Enduring Power of Attorney dated 27 June 2005 and was satisfied that the document was valid. Oral reasons for decision were delivered that day. In summary, the Tribunal was not persuaded that the testimony of family members outweighed the specialist and contemporaneous general practitioner medical evidence provided. [11] The Tribunal will now consider the other applications. Does BMD have capacity? -- 2 of 8 -- 3 [12] As all adults are presumed to have capacity, the Tribunal must be satisfied that BMD no longer has the capacity to make his own decisions about his personal, health and financial matters before it considers whether there is a need for an appointment.1 [13] Capacity means a person is capable of understanding the nature and effect of decisions, is able to make the decisions freely and voluntarily and is able to communicate the decision in some way about the matters.2 [14] BMD’s current capacity is not disputed. [15] On 10 September 2012 Dr Andrew Chester, BMD’s current general practitioner noted BMD had advancing dementia of the mixed vascular/Alzheimer type with expressive dysphasia. He was of the opinion he did not have capacity to manage his own affairs. Dr Chester further reported in April 2013 BMD was not able to communicate about simple tasks and that on 19 July 2013 reported BMD has a high level of need in feeding, bathing, dressing, grooming and toileting. Whilst noting moments of slight insight, Dr Chester noted a Mini Mental State Examination undertaken by BMD in July 2013 was 13/30. [16] The Tribunal finds BMD is an 89 year-old man with declining cognitive ability and a diagnosis of mixed vascular/Alzheimer’s dementia. BMD resides in a secure unit of an aged care facility and requires assistance and support for all activities of daily living. BMD has limited communication. [17] The Tribunal is satisfied that the presumption of capacity that is ordinarily accorded to an adult has been rebutted in BMD’s circumstances in relation to personal, health and financial matters. Is there a need for a decision about health or personal matters; and without an appointment will BMD’s needs not be adequately met? [18] The Applicant daughters submit, in summary, that there is a need for decision because there is history of conflict and acrimony between the Attorney and some family members. They further submit that the Attorney alienates rather than invites, family participation and thus weakens supportive family relationships. [19] In particular the Applicants submit the Attorney’s requirement that family members obtain permission from him before attending the nursing home or taking their father out for lunch results in delays or permission not being obtained with family members returning home without having seen their father. 1 Guardian ship and Administration Act 2000 ss, 7, 12, Schedule 1 (General Principles). 2 Ibid Schedule 4 (Dictionary). -- 3 of 8 -- 4 [20] The Applicants also submit that the Attorney failed to consult with family members about funeral arrangements and made his own arrangements for cleaning out their father’s previous accommodation Unit. [21] The Applicants further submit that as the Attorney no longer resides on the Sunshine Coast and is out of the country on a regular basis this causes delays in obtaining permission for visits or seeking information or relaying concerns in regards to BMD’s health. [22] In particular the Applicants raised concerns that BMD was not receiving regular podiatry services and that he had developed an eye infection. The Applicants submit that the Attorney gives the care staff too much control over medical aspects of their father’s care. [23] The Attorney submits that there is no need for an appointment because the Enduring Power of Attorney covers personal and health care needs. [24] The Attorney submits there is no evidence that he is making inappropriate decisions in relation to health and personal matters, and no evidence of a breach of the Powers of Attorney Act. The Attorney submits he relies on the advice of Dr Chester who states BMD is well served by the ongoing care at the aged care facility with good nutritional and emotional support.3 The Attorney also cites the decision of RJA4 to support his submission that there is no need for decision. [25] Whilst the Tribunal acknowledges the Applicants’ concerns around some issues relating to their father’s health care including whether adequate podiatry services are in place and whether BMD was treated for conjunctivitis, the Tribunal accepts the Attorney’s testimony that once he is aware of issues he raises these with the medical and care staff. [26] Although noting the Applicants view that Dr Chester is not independent from the Attorney, the Tribunal has no evidence that Dr Chester who has been BMD’s general practitioner since August 2012 is not providing adequate professional care. He has been BMD’s treating practitioner for the past year and is well placed to provide professional opinion on the likely impact of a relocation on BMD’s health. [27] BMD is receiving care in the Aged Care Facility and is being attended to regularly by Dr Chester for ongoing management of his various medical conditions. These are appropriate decisions made by the Attorney under the appointment. [28] The Applicants or any family member are at liberty to raise any health concerns they observe when they visit. The health examples the Applicants raise are clearly the type of matter that can be raised with care staff directly. This is an appropriate approach to concerns. The care staff can address issues that fall under their service provision obligations and if 3 Dr Chester report dated19 July 2013. 4 RJA [2010] QCAT 301, (17 June 2010). -- 4 of 8 -- 5 a more serious concern arises and a formal decision or consent for treatment is required the care staff can contact the Attorney, or medical practitioner if there is an emergency. [29] The Applicants are also at liberty to raise any health concerns with the Attorney directly. Whilst it is apparent BMD wishes were that his Attorney make health decisions, the Tribunal would encourage the Attorney to consult with family members about health and personal matters in keeping with the spirit of substitute decision-making. [30] Overall the Tribunal is satisfied that there is no need for a decision in relation to health care. [31] In the applications and at hearing there was references and discussion about where BMD should reside. The family had given some thought to moving BMD to Victoria so that extended family could visit him more regularly. The Attorney was of the view BMD should stay in his current care facility given his health status and his connections to the area where he had resided for many years. [32] In their written submissions the Applicants stated they would not move BMD if he continues to receive care that meets his needs and they would not move him if unbiased medical advice considers it detrimental to his health. [33] The Tribunal sought a report from Dr Chester in relation to a potential move interstate. Dr Chester in his report of 19 July 2013, noting BMD’s significant health history, opined: .... although would survive a new nursing home facility, would no doubt struggle greatly in the loss of things and people familiar to him…..I emphisize that there is a potential risk to his health in such a transfer knowing he has heart disease and other comorbitities…..I would not be encouraging such a move as the outcome could be damaging for him in increased falls, recurrent heart attacks and high levels of stress and anxiety. [34] The Tribunal accepts Dr Chester’s report as a reasonable and professional opinion of the effect such a move would have on BMD. The Tribunal is satisfied, notwithstanding the interstate family members desire to be able to see their father more regularly, that in light of Dr Chester’s report such a move is not in BMD’s best interest. [35] The Tribunal further notes BMD’s long-term connection to the care facility and area and that he has family members also residing in Queensland. In the circumstances the Tribunal is satisfied there is no need for a decision concerning where BMD should reside as the Attorney is making appropriate decisions in this regard. -- 5 of 8 -- 6 [36] In relation to the issue of contact and or visits, the Power of Attorney Act requires an Attorney to comply with the General Principles.5 [37] Clause 8 of the General Principles provides: The importance of maintaining an adult’s existing supportive relationships must be taken into account. [38] The Applicants submit that the formality of permission for contact, and visits and associated delays in obtaining permission, does not engender the maintenance of supportive relationships. The Attorney made no specific submission in relation to contact and or visits. [39] It is clear to the Tribunal that there has been tension or conflict between the Attorney and some family members. When asked who constitutes BMD’s existing supportive relationships at hearing the Attorney named only RIB and his fiancé. RIB is BMD’s grandson and successive Attorney under the EPA. [40] The Tribunal is concerned this is an extremely narrow view of existing supportive relationships and further notes that conflict now exists between RIB and other family members including his mother, one of the Applicants. [41] Whilst it may be reasonable for an Attorney to require that permission be obtained for contact or visits in special or specific circumstances, there is no evidence before the Tribunal that the type of special circumstances that would warrant such formality currently exist in BMD’s case. [42] Whilst the Tribunal notes the Attorney has to some degree considered the extended family it has been undertaken in a manner that has resulted in unnecessary conflict and feelings of alienation. [43] BMD has a large family and there is no evidence, outside the usual ups and downs of family dynamics and the appointment of an Attorney external to the family, which suggests BMD did not want open and unrestricted involvement of all his children in his life. [44] Unnecessary formality around family contact and visits is not in the spirit of the General Principles, in particular Clause 8. As it has been reported that family members have missed out on and have been dissuaded from visiting BMD because of delays in obtaining unnecessary permission for contact or visits, the Tribunal is satisfied these arrangements are not in compliance with the General Principles and that that there is a need for a decision concerning contact and visits. The Tribunal is also satisfied that without an appointment BMD’s needs in the maintenance of existing relationships will not be adequately met. 5 Power of Attorney Act 1998 s 76, Schedule 1 (General Principles). -- 6 of 8 -- 7 Proposed appointees and appropriateness for appointment [45] The Guardianship and Administration Act provides the eligibility requirements and appropriateness considerations to be taken into account when deciding an application for appointment.6 [46] The Applicant daughters propose they be appointed as guardians. In their applications the Applicants duly declare their eligibility and submit they are appropriate for appointment. [47] In particular the Applicants submit they are firstly family who are committed to their father’s ongoing care and support and would provide a more responsive and personalised decision making process. The Applicants submit they would be guided by the General Principles. [48] The Attorney submits if the Applicants were appointed Guardians, and he was left as Attorney for financial affairs as suggested by the Applicants in their written submission, it would be unworkable and inevitably lead to conflict. The Attorney submits if the Tribunal decides some appointment be made that an independent body be appointed. [49] Whilst the Tribunal is generally satisfied that the Applicants would ordinarily be appropriate for appointment, given the history of conflict and animosity between the Applicants and the Attorney and more recently the successive Attorney, and in light of BMD’s decision to not appoint one of his children as Attorney, the Tribunal is of the view that an independent decision-maker is a more appropriate decision-maker for contact decisions. [50] The Adult Guardian is always available for and is more appropriate for appointment in the circumstances. Order [51] The Adult Guardian is appointed as guardian for BMD for decisions about whom BMD has contact and or visits. [52] Unless the Tribunal orders otherwise this appointment remains current for a period of 2 years. [53] The following Enduring Power of Attorney for BMD is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made: The Enduring Power of Attorney dated 27 June 2005 appointing GKA as Attorney, and RIB successively as Attorney, for financial, personal and health matters. 6 GAA Act, op.cit; sections 14 -16. -- 7 of 8 -- 8 Is there a need for a decision about financial matters; and without an appointment will BMD’s needs not be adequately met? [54] In the applications and at hearing the Applicants expressed various concerns relating to the Attorney’s management of their father’s financial affairs. The Tribunal notes most of these concerns relate to the formality and tone, said to be accusatory, of the Attorney’s communications. [55] In the Applicants written submissions they state we are willing to compromise on administration and are happy for the Attorney to continue to pay accounts and mange our father’s financial transactions and further submit ’we repeat that we would be happy for the Attorney to retain the administration of our father’s affairs if this be the decision of the Tribunal, but requests the Tribunal make directions concerning auditing and reporting of their father’s financial affairs. [56] The Tribunal considers and accepts that the Applicants are not pressing with their application for appointment of an administrator, however for completeness, notwithstanding the history of conflict concerning the communications of the Attorney the Tribunal is satisfied that currently there is no need for a financial decision as BMD’s needs are being met and interests protected through the management of his financial affairs by his appointed Attorney. Order [57] The application for the appointment of an administrator for BMD by DAJ and RMC is dismissed. Application for an Order about an Enduring Power of Attorney [58] On 24 October 2012 the Tribunal received an application from DAJ concerning her father’s Enduring Power of Attorney dated 27 June 2005. As noted earlier in this decision the Tribunal on 16 July 2013 declared that BMD had capacity to execute the document and was satisfied the document was valid. Whilst that application mainly concerned the validity of the document, which has been dealt with, it also sought ‘advice, directions or recommendations’ in relation to the document. Although it appears that that request related to the issue of ‘successive’ Attorney, which has also been dealt with by the validity decision, in written submissions the Applicants request that the Tribunal direct the Attorney provide regular financial reports to the family. [59] The Tribunal may, on application, give directions, advice or make a recommendation,7 however, as the concerns the Applicants raise mostly relate to issues of communication rather than more serious questions of misuse or abuse of authority, the Tribunal is not persuaded that a formal direction is required, but would encourage the Attorney to consider providing a brief financial update to BMD’s daughters from time to time. 7 Power of Attorney Act 1998 ss 109A, 110 and 118. -- 8 of 8 --