DM [2012] QCAT 638

CITATION: DM [2012] QCAT 638 PARTIES: DM APPLICATION NUMBER: GAA5630-12 / GAA5631-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 4 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for the appointment of a guardian by DJ is dismissed. 2. The application for the appointment of an administrator by DJ is dismissed. CATCHWORDS: GUARDIANSHIP – where applicant sought to be appointed as guardian and administrator for his wife – where wife was no longer living with her husband – where husband was the subject of a domestic violence order taken out on behalf of his wife – where enduring power of attorney made after wife commenced living apart from her husband – where diagnosis of dementia and moderate impairment of cognitive functioning – where evidence of improvement of functioning Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 47 Powers of Attorney Act 1998, s 50 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] DM had lived with her husband, DJ until September 2011 when she went to live with her son from a previous marriage. According to evidence -- 1 of 5 -- 2 provided by her son, RS, an incident had occurred between his mother and her husband on 2 September 2011 which resulted in DM being very distressed. DM had sustained some bruising on her arms from the incident and she took steps to make a complaint to the police. The police later obtained a domestic violence order against DJ. [2] DM has not resumed cohabitation with her husband subsequent to 2 September 2011. On 26 November 2011 DM made an enduring power of attorney in which she appointed her son, RS, as her sole attorney for personal, health and financial matters. DM had made an earlier enduring power of attorney on 29 July 2009 in which she had appointed her husband to be her sole attorney for these same matters. [3] DJ applied to QCAT to be appointed as the guardian and administrator for DM. In his application DJ stated that the outcome he was seeking was for his wife to live with him in an independent living unit with support services. Although he did not actually file an application for an interim order, DJ included in the documents filed at QCAT a document in which he asked for an interim appointment. He stated in that document that prior to his wife’s removal from their matrimonial home, they had lived happily together. DJ sought an order that he was best suited to be his wife’s carer. [4] DJ submitted that the enduring power of attorney granted by his wife in September 2011 was procured without his wife’s proper knowledge and understanding as it was obtained after she had been diagnosed with dementia. DJ provided a medical report from his wife’s general medical practitioner dated 26 June 2012. This doctor had not seen DM since January 2012. The doctor referred to a diagnosis of senile dementia since late 2010 and a diagnosis of anxiety and depression. He referred to a Mini Mental State Examination result of 26 out of 30 as at 30 March 2011 but he described this result as questionably high. [5] The doctor was not able to express an opinion as to whether DM could understand and act on information about her personal and financial affairs but he did state that she had not been able to understand and act on information about her financial affairs in the past. He did express an opinion that DM could make decisions freely and voluntarily. He could not comment on whether she had an understanding of issues to do with making an enduring power of attorney and he could not comment on whether she could or could not make simple or complex decisions as he had not seen DM since January 2012. [6] The doctor attached to his report copies of letters that the doctor had received from Dr Khateeb who had been consulted by DM in 2011. Dr Khateeb is a physician and geriatrician. The letters by Dr Khateeb revealed that in May 2011 DM had a history of memory problems and episodes of confusion. Dr Khateeb’s letter revealed that DM believed her husband was a little controlling and was taking liberty away from her. During the consultation in May 2011 Dr Khateeb noted that DJ had interrupted his wife many times and that DM had been frustrated over this -- 2 of 5 -- 3 and there was obvious conflict between them. DM scored 21 out of 30 in a Mini Mental State Examination but Dr Khateeb noted that she was quite stressed during the consultation. Dr Khateeb concluded that DM has cognitive impairment and had stressors associated with her husband. [7] A later letter from Dr Khateeb was dated 10 August 2011. He saw her again in the company of her husband. Dr Khateeb reported on the results of a CT scan which showed generalised cerebral atrophy and another brain assessment revealed changes in the brain which would be consistent with vascular dementia or Alzheimer’s dementia. In a repeat Mini Mental State Examination DM scored 19 out of 30 which was described as in keeping with mild to moderate cognitive impairment. Dr Khateeb prescribed Aricept to treat the symptoms of memory impairment. [8] The application for the appointment of a guardian and administrator was opposed by DM’s son, RS. He has stated that DM’s anxiety and general health have improved significantly since she came to live with her son and his family in September 2011. He stated that DM had scored 27 out of 30 on 26 July 2012 in a Mini Mental State Examination. RS submitted that an increase in positive stimulus, outings, care and diet has showed visible positive and quantifiable results for DM. [9] RS provided a short letter from his mother’s general medical practitioner dated 21 November 2011 in which it was stated that DM’s dementia had improved on therapy and he was of the opinion that she can manage her affairs and can make a decision to revoke her enduring power of attorney which she had made some years ago. [10] RS submitted that the relevant issue for QCAT was not that his mother had been diagnosed with dementia but what was the level of that condition and its impact on her capacity for decision making. He submitted that the medical evidence from her general medical practitioner was that her functioning had improved by November 2011 and that she had capacity. RS submitted further that Dr Khateeb had been told on 22 February 2012 by DM that she did not want him to release any information to her husband and that DM had put this instruction in writing and Dr Khateeb had accepted her instructions. [11] QCAT was also provided with a statement dated 26 July 2012 from a carer for DM. The carer stated that she has observed that DM is well cared for at her son’s house and that she loves being there. The carer stated that DM sometimes stays at a respite centre which she also enjoys. The carer takes DM to a wide range of social events including dances where she meets up with DJ. The carer reported that she has observed DM being upset at times by the actions or words of her husband at these dances. [12] RS submitted that the witness to the enduring power of attorney made on 26 November 2011 had certified that DM had capacity to grant that power. Her long standing doctor had stated an opinion that she had capacity to do so on 21 November 2011. -- 3 of 5 -- 4 [13] RS also made submissions that DJ was not an appropriate person to appoint as a guardian and administrator for DM. He was the subject of a domestic violence order which is current for a two year period from 20 January 2012. [14] The tribunal made directions requiring DJ to file a response to the submissions of RS as to why the tribunal should not consider dismissing his applications for the appointment of a guardian and administrator for DM under section 47 of the QCAT Act. The only response was an email from a carer advocate on behalf of DJ who stated that she had been told by DJ that he cannot respond as he does not have any evidence to support his allegations. The carer advocate stated that DJ cannot obtain any medical evidence from his wife’s doctor. The email stated that was the end of the matter. [15] Section 47 of the QCAT Act gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The exercise of this power in an appropriate case is consistent with the statutory objects of the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. [16] A request had been made by RS to dismiss the applications on the basis that there was evidence that there was already a valid decision making regime in place for DM. She had appointed RS as her attorney and by doing so she had revoked her earlier enduring power of attorney.1 There was evidence capable of supporting the validity of the enduring power of attorney made on 26 November 2011. There was evidence that DJ may not be an appropriate person to appoint as a guardian and administrator as he had been removed from decision making roles by his wife and he was the subject of a current domestic violence order made in her favour. [17] The tribunal gave DJ an opportunity to respond to the request that his applications be dismissed under section 47 of the QCAT Act. His response conceded that he did not have any evidence to support the allegations he had made in his applications. His response indicated that he considered that the matter was at an end ie that he would not actively proceed any further with his applications. [18] I find that DM has been assessed as having some cognitive impairment associated with dementia. Her functioning was moderately impaired when she was living with DJ. I also find that her functioning prior to 2 September 2011 had been contributed to by stressors associated with her husband. I find that in about August 2011 DM commenced on medication which had resulted in an improvement to her memory and functioning. [19] In the absence of evidence to challenge the opinion of her doctor of 21 November 2011 that DM had capacity to revoke her then existing 1 Section 50 of the Powers of Attorney Act 1998. -- 4 of 5 -- 5 enduring power of attorney and to manage her own affairs, I was satisfied that the applications by DJ to appoint him as a decision maker for his wife lacked substance. There was no evidence of any need for such appointments. As the applications lacked substance, it was in my view unnecessary to proceed to a hearing as to do so would be likely to cause undue distress to DM who had on earlier occasions expressed frustration over what she regarded as her husband’s controlling behaviour towards her. Proceeding to a hearing of these applications would be likely to be regarded by her as yet another example of his unwelcomed controlling behaviour. [20] Applying the objects set out in section 3(b) of the QCAT Act, the tribunal considered that it was appropriate to bring an early end to the proceedings and dismissed the applications under section 47 of that Act. -- 5 of 5 --