BE [2013] QCAT 185

CITATION: BE [2013] QCAT 185 PARTIES: BE APPLICATION NUMBER: GAA8560-12 / GAA10279-12 / GAA10652-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 5 March 2013 HEARD AT: Brisbane DECISION OF: C Endicott, senior member J Ford, member DELIVERED ON: 15 April 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appointment of the Adult Guardian as guardian for BE is changed by appointing the Adult Guardian for decisions about the following personal matters: (a) Accommodation; (b) With whom BE has contact and/or visits; and (c) Health care. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. 3. The Public Trustee of Queensland is directed to reimburse BM the sum of $22,145.48 from the funds of BE. 4. The Public Trustee of Queensland is directed to reject the claim by BM for $17,184.40 for legal fees. 5. The Public Trustee of Queensland is directed to take steps to place the unit owned by BE on the market for sale and if necessary to take steps to obtain vacant possession of the unit for the purposes of sale. 6. The Enduring Power of Attorney dated 28 February 2003 appointing BM and BW as attorneys for financial, personal and -- 1 of 10 -- 2 health matters is overtaken and can no longer be acted upon to the extent of the appointment made in this order. CATCHWORDS: GUARDIANSHIP – review of appointment of guardian – whether current appointee should be replaced – whether directions should be made for payments from the funds of the adult – whether asset of the adult should be sold in order to pay debts Guardianship and Administration Act 2000 sections 12 and 31(2), (3) and (4) APPEARANCES and REPRESENTATION (if any): BM MJ JI BW DB BC Elaine Galvin David Granzien Moana Solommona Fiona Phipps Ian Edwards ) ) all active parties and each appearing on their own behalf ) Active party and represented by Graeme Delaney, solicitor Active party and represented by Terence O’Connor, solicitor Both appearing for the Public Trustee of Queensland and represented by Stephen Taylor from the Office of the Official Solicitor Both appearing from the Office of the Adult Guardian Non party REASONS FOR DECISION [1] Mrs BE has six children who all take an interest in her welfare and care. BE resides in an aged care facility as her care needs can no longer be adequately met in her home. BE has demonstrated difficulties with decision making due to impaired cognitive functioning associated with the ageing process. She had appointed her son, BW and her daughter, BM, as her attorneys in 2003 but as conflicts had arisen between the attorneys rendering decision making problematic, this tribunal has appointed a guardian and an administrator for BE. [2] The appointment of the guardian was due to be reviewed around the middle of this year. One of the daughters of BE applied for orders to -- 2 of 10 -- 3 change the appointed guardian from the Adult Guardian to BM and MJ. This application is opposed by three of BE’s children. [3] The administrator’s appointment is not due for review this year as that appointment is ongoing and for an indefinite term. However the administrator applied for directions as to various claims for financial payment made to the administrator by one of the daughters of BE and directions as to the possible sale of BE’s house. The claims for payment are opposed by three members of BE’s family and there is not universal support from her family for the sale of the house at this stage. [4] After conducting a review of the guardian’s appointment, the tribunal must revoke that appointment unless an examination of the current circumstances leads the tribunal to being satisfied that a guardian is still required.1 To consider that issue, the tribunal must apply section 12 of the Guardianship and Administration Act 2000 (GAA2000). [5] BE did not attend the hearing conducted on 5 March 2013. All six of her children attended the hearing. BC lives outside of Queensland and attended by telephone. Unfortunately reception over the telephone line was poor and BC left the hearing part way through the hearing. He was represented by a lawyer who was present in person during the whole of the hearing. [6] The first issue that has to be determined is whether BE can make her own decisions about personal matters. Evidence was available to the tribunal that medical practitioners had diagnosed BE with dementia. There was evidence that she displays cognitive deficits that are associated with that condition such as disorientation in time and occasionally as to people, poor short term recall and some confusion. The persons attending the hearing confirmed that the cognitive deficits are progressive in nature and that BE would no longer be able to understand information on which personal decisions of some complexity (as opposed to simple day to day choices) are made. The parties were in agreement with their views that BE could not make her own decisions. [7] The tribunal accepted the evidence of the medical practitioners and of the parties as to capacity for decision making as there was virtually no divergence in the evidence from both medical and family sources. The tribunal finds that BE demonstrates regular disorientation as to time and occasionally as to people, some confusion and has poor short term memory. The tribunal is satisfied that the evidence establishes that BE cannot understand the nature and consequences of decisions about personal matters due to her impaired cognitive functioning. The evidence has rebutted the presumption of capacity and the tribunal concluded that BE cannot make her own decisions about personal matters. [8] BE is living in an aged care facility but some of her family are not happy with the level of care that is being provided to her at that facility. BM and 1 Section 31(2) of the Guardianship and Administration Act 2000 (GAA 2000). -- 3 of 10 -- 4 MJ, if appointed as guardians, want to have the authority to make decisions to change BE’s accommodation to another aged care facility. [9] The current guardian, the Adult Guardian, has authority to make decisions about accommodation, services, health care and contact. The guardian reported to the tribunal that no decision has been made since July 2011 about accommodation but in reality the guardian has in effect made a decision not to change BE’s accommodation in response to the requests strongly made by three members of her family to relocate BE to another facility. At the hearing the guardian’s representative stated that there had been two accommodation reviews conducted by the guardian and after considering the options put forward, the guardian had decided that the current accommodation was the most suitable for BE. [10] Since July 2011, the guardian reports that there have been 28 decisions made about contact between BE and her family, 8 health care decisions and one decision made about service provision to BE. [11] When reviewing the appointment of a decision maker appointed under GAA2000, the tribunal must revoke that appointment unless it is satisfied that it would make an appointment in the event that a new application were to be made to the tribunal for the appointment of a decision maker.2 As such, the tribunal must consider the relevant criteria for appointment set out in section 12 of the Act, namely whether there are decisions that need to be made for BE and whether the only way that those decisions can be made to adequately meet the needs of BE is by a guardian appointed by the tribunal. [12] From the evidence presented to the tribunal, it is clear that ongoing health care decisions will need to be made for BE. Her health is likely to deteriorate over time and her health care needs will change and possibly increase. BM had been involved with arranging and facilitating health care for BE as her carer before BE moved into residential aged care. It does not appear to be disputed that the support given by BM in the past to her mother about health care decisions was appropriate. [13] However it is apparent that some members of the family do not agree with current proposals made by BM for re-assessment of the health care needs of BE and for the re-engagement of a medical practitioner who had treated BE prior to her accommodation in the aged care facility. A dispute over the nature or extent of health care decisions for BE is likely to arise and to cause delays or interruptions in the delivery of medical treatment if there is not a person clearly with authority to make those types of decisions for BE. [14] BM no longer has authority to make health care decisions as her appointment as an attorney for personal matters for BE has for some time been overtaken by the appointments made by the tribunal. In the event that there is no guardian in place to make health care decisions for BE, 2 Section 31(2) of GAA2000. -- 4 of 10 -- 5 the attorneys for personal matters (BM and BW) will again have authority to make health care decisions for BE. The attorneys cannot presently agree on a variety of issues regarding their mother and there is a palpable mistrust existing between them. BW told the tribunal that his sister is unlikely to place any value on his opinion in matters concerning their mother. That comment seems appropriate to sum up the state of the relationship between the attorneys. [15] The tribunal is satisfied that the attorneys could not co-operate and consult about health care issues so that unambiguous and concise instructions could be given to health care providers about BE. Similarly the tribunal is satisfied that leaving health care decisions to persons who would be BE’s statutory health care attorneys3 would not be likely to deliver unambiguous and concise instructions to health care providers about BE. The family members cannot agree on decisions about aspects of health care and the consensus required for effective informal decision making is not present in this case. The tribunal is satisfied that a guardian is needed to make health care decisions for BE. [16] Services are usually provided by and associated with an accommodation provider in an aged care setting. The only service provision decision made since July 2011 related to the engagement of a paid companion for BE. That service has been discontinued. There is no evidence that there are decisions currently needed to be made about service provision to BE. [17] Much of the evidence provided to the tribunal and most of the discussion at the hearing about the scope of personal decisions that needed to be made focussed on accommodation and contact decisions. BM raised examples of what she considers to be an inadequate standard of care being provided at BE’s current accommodation. There is disagreement among her siblings about the adequacy of that care being provided. Despite the accommodation reviews already conducted by the guardian, BM and two of her siblings still want to relocate BE to another facility where they believe better care will be provided. Three of her siblings want BE to remain residing in her current accommodation. Concerns were raised that relocation is unnecessary and would be likely to have an adverse impact on her dementia. [18] The tribunal was satisfied that a decision is needed to be made to determine the issue of whether BE should remain living in her current accommodation or whether she should relocate to another aged care facility. Once that issue is decisively resolved, one of the issues that has been dividing the family for a prolonged period of time will be put aside. On the same grounds already discussed in paragraphs 14 and 15, the tribunal is satisfied that a guardian is needed to make the accommodation decision in this case. [19] The issue of contact remains a divisive issue within BE’s family. BM visits her mother nearly every day and at times has taken BE out of the facility 3 See section 63 of the Powers of Attorney Act 1998. -- 5 of 10 -- 6 for a couple of hours and has taken her for overnight stays at BE’s former home. Other family members visit BE at the aged care facility and on some infrequent occasions, the desired visiting times have clashed. The prospect of the family co-operating to arrange visits was explored at the hearing. Some of the family were able to consider favourably that prospect, but others could not. [20] A high level of mistrust appears to prevent this family from being willing or able to communicate with each other to devise an otherwise simple process that many families develop to avoid clashes when they visit their relative in an aged care facility. In the absence of informal arrangements, the tribunal is satisfied that decisions need to be made about the ongoing contact that family members will have with BE. The tribunal is satisfied that the attorneys would be unable to reach agreement on contact arrangements. The tribunal is satisfied that a guardian is required to make ongoing contact decisions in this case. [21] Having been satisfied that there are appropriate grounds for the appointment of a guardian to continue, the tribunal is required by subsections (3) and (4) of section 31 of GAA2000 to continue the current appointment of the Adult Guardian unless that appointee is no longer competent or another person is more appropriate for appointment. It is contended by three of BE’s children that BM and MJ should be appointed as guardians for BE. [22] Extensive submissions have been filed in the tribunal both in support of and opposing the change of guardian. In essence it is contended that the appointed guardian has not been competent as established by repeated changes in personnel at the Office of the Adult Guardian involved in decision making for BE, by a failure of incoming personnel to read the whole of the file relating to BE, by a refusal by the guardian to consider relocating BE to another aged care facility, by the failure of the guardian to act on a poor standard of care being provided to BE, by a failure of the guardian to have BE assessed by another geriatrician, by a lack of proper consultation with family about contact, by late making of decisions about contact so that there could be no effective review of those decisions, and by the guardian taking advice from the care provider into account when making decisions which limited contact by the family with BE. [23] Examples of specific contact decisions were provided to show how those decisions were not made fairly. The starting point in making contact decisions must be what is considered to be in the interests of the adult. In the letters produced to the tribunal from the guardian setting out the reasons for decision, there appears to have been a consistent record of careful consideration having been made of the relevant facts at the time and a careful consideration of the interests of BE from an objective standpoint. [24] It is understandable that some of the decisions have been the subject of criticism from those persons disappointed with the decision but the tribunal could not discern incompetence or lack of proper care being taken by the -- 6 of 10 -- 7 guardian in making the decisions in question. The complaints of poor care at the facility where BE lives have not been established to the satisfaction of the guardian. Two reviews have been conducted by the guardian and the outcome has resulted in BE remaining in the facility where she is settled and where she is apparently happy. [25] The tribunal is unable to find that the guardian is no longer competent after an analysis of the evidence provided to the tribunal. [26] It was contended that BM and MJ are more appropriate for appointment as guardians than the Adult Guardian. It is clear from the comments made at the hearing that the appointment of BM and MJ would not resolve the division within BE’s family but is likely to continue, and even perhaps to exacerbate, that division. At present three of the six children of BE consider that decisions made by the Adult Guardian are made fairly and appropriately. If BM and MJ were to be appointed as guardians, three of the six children of BE are likely to consider that decisions will not be made with their views taken into account and consequently will not be fairly made. [27] The presence of conflict and division within the family is however not a definitive ground against the appointment of BM and MJ as guardians. Many decision makers have to contend daily with deep divisions within a family and battle against mistrust but they can still appropriately fulfil their statutory duties. In the case of BE, the tribunal simply cannot reach a level of satisfaction that BM and MJ are more appropriate for appointment as guardians over the current appointee. [28] An analysis of the evidence leads the tribunal to the point where it is unable to be satisfied that at the present time BM and MJ would exercise the powers of the guardian in a way consistent with BE’s proper care and protection.4 BM appears to be determined to relocate her mother despite medical opinion that this would not be in her interests. The reasons put forward for relocation are frankly not convincing and discount the adverse affect that changing surroundings is likely to have on BE’s confusion and cognitive functioning. The tribunal was not satisfied that a case had been established for relocation in the context of BE being settled where she is and manifesting deteriorating cognitive functioning including increased confusion. Having to learn to live in another new environment is likely to be an unnecessary burden rather than a benefit for BE. [29] The tribunal considers that the current appointee is best placed to make an accommodation decision that will ensure BE’s proper care and protection. The tribunal is confidant that the Adult Guardian will take all relevant information into account, will compare the merits of the various options for accommodation, will consult with family and will then make a decision applying the General Principles. The tribunal similarly considers that the current appointee is also best placed to make decisions about contact and health care for BE. 4 See General Principle 7(5). -- 7 of 10 -- 8 [30] The tribunal continues the appointment of the Adult Guardian as guardian for BE but changes the scope of the decision making areas to accommodation, health care and contact only. The appointment will be until further order of the tribunal, is reviewable and is to be reviewed in 5 years. Any shorter review period will not be in the interests of BE. Certainty in decision making is required at this stage of her life. The divisions within her family cannot heal if her children are regularly putting forward public and bitter denunciations of each other in the prospect of a change in her decision making regime. Coming to the tribunal over their mother should not continue to be a contestable annual feature of their lives. [31] The remaining application was filed by The Public Trustee of Queensland and sought directions as to the payment of moneys claimed by BM by way of reimbursement from BE and directions as to the sale of the unit owned by BE. Submissions filed by the administrator reveal that the claim for reimbursement of $22,145.48 is supported by the administrator. However some of the siblings of BM argue that reimbursement of $22,145.48 from the funds of BE should not be allowed. [32] The objection to reimbursement stems from an argument that the expenses of BM were incurred in her role as a daughter and should be viewed as a voluntary contribution by her to the comfort of her mother and not as expenses repayable by BE. It was contended that the other siblings spent their own money in similar ways for their mother and they did not expect reimbursement from her funds. [33] That may be true but that argument does not inevitably result in BM’s claim for reimbursement being refused. Unlike her siblings, BM has chosen to seek reimbursement of expenses that were incurred on her mother’s behalf. According to the records produced, the expenditure by BM covers purchase of clothing and underwear, toiletries, mobility aides, hair cuts as well as purchase of food treats, lunches and gifts and appears, from what has been told to the tribunal, to be far greater in total and extent than expenditure by her siblings. As far as the tribunal can discern, the moneys have been properly expended by BM and the administrator is satisfied with the accuracy of the amounts claimed. The moneys claimed of $22,145.48 should be paid to BM from the funds of BE when funds are available for that purpose. [34] However the claim for reimbursement of legal fees of $17,184.40 incurred by BM is quite different from the first mentioned claim. BM instructed lawyers to act on her behalf in June 2010 to bring proceedings in this tribunal. BM and BW had been acting as the attorneys for BE at that time. They did not agree as attorneys on where BE should be accommodated. Directions were sought by BM from the tribunal to prevent the implementation of a decision being made by one of the attorneys. She also applied on 30 June 2010 to be appointed as the guardian and administrator of BE. -- 8 of 10 -- 9 [35] No orders for costs were made by the tribunal in August 2010 when the applications were determined. The tribunal cannot find that the applications by BM were brought as an incidence of her role as attorney. The proceedings in fact sought to overtake the authority of the attorneys as decision makers for BE. The legal costs incurred by BM cannot be found to have been incurred as agent for her principal. The legal costs incurred by BM are her own responsibility and cannot be paid from the funds of her principal. The tribunal directs that the claim by BM for reimbursement of $17,184.40 from the funds of BE is refused. [36] The administrator seeks a direction for the sale of a unit owned by BE. The tribunal was told that the administrator had received financial advice to the effect that this asset should be sold in order for funds to be made available to discharge debts of BE and to pay for her ongoing care. An alternate strategy for renting the unit has been discounted on the basis that the income raised would be insufficient to meet the liabilities of BE. [37] The financial advice was disputed by some of BE’s family. Much of the dispute relates to past actions by the administrator in failing to stop distributions from a family trust in which BE was a beneficiary. If the majority of the distributions had been made to BE, there would be sufficient funds available to pay her debts and to fund her ongoing care and her unit would not have to be sold. However the distributions have been made and this tribunal has no authority to interfere with the actions of the trustees. [38] BM objects to the sale of the unit. She has been living in the unit since 2004, initially with BE as her mother’s carer but since 2010 she has lived in the unit by herself. She has not paid rent although she has made an offer to the administrator to pay rent at a figure under the assessed market rent. This offer has not been accepted by the administrator. BM submits that the unit should not be sold as her mother retains the capacity to enjoy occasional visits to the unit and it is to her mother’s benefit that the unit is available for her enjoyment. [39] The tribunal accepts that it would be of benefit for BE to enjoy some ongoing familiarity with her former home but that is merely one factor to be considered. The tribunal accepts the submissions made by the administrator that funds must be raised to pay for the liabilities being incurred by BE, including care fees, reimbursement to her daughter as well as body corporate fees and other holding costs of the unit. The tribunal accepts that holding onto the unit and renting it out, even for market rent, will not be a viable strategy to meet the liabilities of BE. [40] The tribunal cannot endorse the proposal that retaining the unit for occasional visits by BE should be a paramount consideration as that would place BE in a position of not being able to pay her due debts. That position is intolerable, especially when she has a professional administrator who is wiling and able to make appropriate decisions to protect her financial position. The capital value of the unit must be realised to meet the financial needs of BE. -- 9 of 10 -- 10 [41] It has been submitted that the administrator should be directed to pursue another strategy, namely to take out a reverse mortgage over the unit thereby accessing funds to pay all the outstanding liabilities and the future care costs of BE. The strategy has been rejected by the administrator on the basis of financial advice received that there is no benefit in incurring additional liabilities for BE in this manner. The administrator also submitted that the criteria for reverse mortgages usually require the owner to be a resident in the property and this is not the case with BE. However BM disputes this submission as the advice she has received is that her mother would qualify for a reverse mortgage. [42] The tribunal agrees with the submissions of the administrator that there is no perceived benefit to BE to take out a reverse mortgage. She would incur liabilities in high interest and other associated costs of the mortgage. If the unit were to be sold, BE would gain earnings on the net invested proceeds of sale after payment of her debts rather than losing money by paying interest to a mortgagee. The tribunal concludes that the only viable strategy to be followed is the sale of the unit as soon as possible. [43] To implement that strategy, the unit must be readied for sale and BM should make arrangements to vacate the unit within the next 2 months. That should be sufficient time for BM to move to other accommodation. She has had notice of the fact that the administrator had formed the decision to sell the unit since the end of 2012. [44] The tribunal directs the administrator to take steps to place the unit on the market for sale and if necessary to take steps to obtain vacant possession of the unit for the purposes of sale. -- 10 of 10 --