BJD [2011] QCAT 615

CITATION: BJD [2011] QCAT 615 PARTIES: BJD APPLICATION NUMBER: GAA3517-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 12 August 2011 HEARD AT: Brisbane DECISION OF: E Morriss, Presiding Member B Cullen, Member DELIVERED ON: 12 August 2011 DELIVERED AT: Brisbane ORDERS MADE: BJD does not have capacity for any complex personal and financial matters. CATCHWORDS: Guardianship – capacity APPEARANCES and REPRESENTATION (if any): APPLICANT: BJD represented by Catherine Delaney Dr Lillian Wong JAB and SAB, daughters of BJD REASONS FOR DECISION [1] On 27 April 2010 the Queensland Civil and Administration Tribunal received an application from BJD for a Declaration of Capacity. [2] The application was heard on 12 August, 2011. [3] BJD is a 66 year old man. He was placed in high care dementia secure accommodation at Canossa on 20 October 2008 following a fall and admission to the Mater Hospital. He has a history of multiple brain injuries, alcoholism, and alcohol related medical conditions. [4] An Enduring Power of Attorney was executed on 8 May 2006 appointing his three children BDJB, SAB and BAJ as attorneys for personal/health matters and financial matters, to act successively. BDJB was to act solely, and then SAB, and BAJ to act severally. The attorneys have acted since 2008 as BJD was deemed to not have capacity. DOES BJD HAVE CAPACITY FOR PERSONAL AND FINANCIAL MATTERS? -- 1 of 5 -- 2 [5] The Tribunal must consider whether BJD has capacity for decision-making about his matters. There is a presumption at law that all adults have the capacity to make their own decisions. [6] The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of- (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [7] The Tribunal considered a number of health professional reports about capacity. [8] Letters from Dr Lu (geriatrician) dated 9 March 2010 and 17 May 2010, indicate diagnoses of head injury in 1974, alcoholism, subdural haemorrhage in 2008 and right middle cerebral infarct 2008, hypertension, asthma. According to Dr Lu, BJD is a retired psychologist and guidance officer with tertiary education. He performed well on cognitive screens, but his pre-injury high level of functioning should be taken into account. Dr Lu has concerns about BJD’s ability to make decisions about his health/lifestyle and financial matters and would support the Enduring Power of Attorney remain invoked. [9] A letter from Dr Lillian Wong (geriatrician) dated 20 August 2010, refers to BJD’s long history of extremely heavy alcohol use with associated alcohol encephalopathy. He had a fall at home with serious injuries, and was admitted to the Mater Hospital and subsequently placed at Canossa. Significant functional and cognitive impairments were reported in the two years prior to this admission. Assessments by Dr Lu (geriatrician) and Ms Linda Troy (neuropsychologist) were consistent with significant frontal and mild temporal lobe dysfunction, most likely as a result of his head injury superimposed on increased vulnerability due to chronic alcoholism. BJD’s cognitive skills were considered unlikely to be adequate for independent living. Dr Wong agrees with Dr Lu that given BJD’s significant frontal impairment and reduced insight, the complex decisions about his future abode be left to the decision of his EPOAs. [10] A Neuropsychology Assessment Report from Ms Lynda Troy dated 23 March 2010 indicates performance at a level likely to cause significant impairments in everyday functioning and decision making, including impairments in verbal memory (mild), recognition (severely impaired), delayed recall of visual information (mild), abstract reasoning (mild, but at level of 9 year old child), comprehension of what he hears (severe), comprehension of what he reads (severe), ability to use feedback (severe), mental flexibility and ability to adjust to conceptual set (severe with marked cognitive perseveration, self monitoring (severe), ability to use rules to guide behaviour (severe), response inhibition (mild) and planning to meet objectives (severe). Ms Troy indicates a pattern which suggests significant compromise of frontal lobe and left temporo-parietal functioning. Cognitive -- 2 of 5 -- 3 ability to manage his affairs was marred by poor language abilities, concrete reasoning, executive dysfunction and lack of insight. Whilst BJD was able to recall information (albeit inefficient), and had basic knowledge of numerical operations, he showed a compromised ability to understand relevant issues or the context, to integrate what he knows, generate alternatives, and evaluate alternatives. He was unable to use feedback, with perseverative thinking impairing his ability to consider alternatives introduced by others. He showed a tendency to respond impulsively and have difficulty in stopping himself from acting on what he was thinking, and was unable to keep track of what he was doing. He had no insight into his cognitive or functional deficits, and did not have any realistic plans for managing his alcohol usage. The cognitive profile indicates that even if he had a sensible plan, he does not have the ability to follow it. Due to deficits in language, reasoning, and integrating material he was vulnerable to the influence of others, and would have difficulty independently evaluating information or advice. Ms Troy indicates that her opinion, BJD “does not have the cognitive skills to make decisions regarding his financial matters, and does not have the ability to make decisions regarding lifestyle or placement issues”. [11] A Health Professional Report from Dr Lillian Wong, dated 23 May 2011, describes diagnoses of previous alcohol encephalopathy, subdural haemorrhage and right parietal frontal trauma secondary to fall in 2008, osteoarthritis, hypertension, depression, asthma, and a previous motor vehicle accident in 1974 with head injury and bilateral injuries. Cognitive testing on the Rowland Universal Dementia Scale (RUDAS) was 28/30 in August 2010 and the Mini Mental Status Examination (MMSE) was 29/30. Dr Wong now believes that BJD now appreciates that alcohol has affected his health and resulted in his placement in residential care. He would like to live in a retirement village or open hostel and is willing to sign a contract to abstain from alcohol. In regard to lifestyle and accommodation, he is frustrated with his accommodation. He is likely to be able to manage simple finances but would need help with complex finances. BJD is functioning at a level which can be managed in open low care. He can make simple and complex health and lifestyle decisions, and only simple financial decisions. [12] A neuropsychology report dated 26 May 2011 was available from Dr Annette Broome (neuropsychologist). Her assessment indicated that BJD had difficulty on even easy arithmetic tasks, and had marked problems with comprehending or analysing simple written assertions, and required assistance with financial paperwork. He was unable to identify that he would require assistance, and although he could talk at length about moving out of the dementia unit, he lacked specific workable plans/proposal regarding his finances or other sequential planning aspects of finding and maintaining accommodation. In regard to his Enduring Power of Attorney he was able to explain the most elements, but struggled to give a concise description of his assets, and did not appear to appreciate any social/financial vulnerability. Dr Broome noted concerns regarding language and cognitive functioning and concluded that BJD required some level of assistance with financial, health and lifestyle decisions. [13] A letter from Dr Soo (general practitioner) dated 28 July 2011 referred to BJD’s history of alcoholism and numerous admissions to hospital with -- 3 of 5 -- 4 alcohol related illnesses. His opinion is that BJD would struggle to look after his health/financial affairs on his own and that he has a high risk of relapsing if removed from his current situation. [14] The Tribunal took the opportunity to speak directly to Dr Lillian Wong, as her views regarding capacity were not consistent across her reports and differed from other views. Dr Wong indicated that the determination of capacity in BJD’s circumstances was complex, as he had reasonable concerns about his accommodation and living circumstances and no longer required high level secure care. However Dr Wong’s final opinion is that BJD does not have full understanding of risks due to his cognitive and language impairments, and needs someone else to make decisions. Having had the opportunity to consider the assessments (referring to Ms Troy and Dr Broome), she now considers that BJD has impaired decision making capacity and requires assistance with complex personal and financial decision making. The impairments evident on neuropsychological assessment were likely to be permanent, and it is likely given BJD’s age that his cognition will decline. BJD requires assistance with complex decision making. [15] BJD was provided with the opportunity to make submissions to the Tribunal about his application. BJD stated that he did have capacity and that he wanted to “live and undertake a worthwhile lifestyle of enduring and indulgent living activity”. BJD’s main concerns arise about his placement at Canossa, and this was the main focus of his arguments. He does not believe that he requires the level of assistance provided to him, and wishes to move to alternative accommodation. A trial had occurred in a more open section of Canossa, where he had more independence and freedom, but this is no longer available. He was unhappy with his children, as although other accommodation options had been investigated, which are more appropriate, in his view nothing had happened and this was unsatisfactory. He did not believe that he should remain at a “dementia specific” facility. [16] BJD’s advocate DC from QADA also raised concerns that his current living arrangements were not appropriate for his current level of functioning, which had improved since his admission in 2008. Whilst his family were making decisions in his best interests, there may be some advantage of independent decision makers, such as the Adult Guardian or The Public Trustee of Queensland. [17] Views of BJD’s family members were sought. BDJB is living in England and supports the current decision making arrangements continuing. JAB and SAB attended the hearing in person, and are of the view that BJD continues to have impaired capacity and does not have the understanding necessary for decisions about his personal or financial matters. They explained that they had been attempting to obtain more suitable accommodation for their father, and had in fact completed applications for three facilities which would allow BJD more independence. No vacancies were currently available but they would pursue these alternatives. Their father did not understand the processes required in changing accommodation and did not have the ability to understand the consequences. -- 4 of 5 -- 5 [18] It seemed to the Tribunal that most of BJD’s dissatisfaction with his children as his attorneys stems from his dissatisfaction with his current living arrangements, and that there might be further opportunity to improve communication and to work together towards more appropriate options. BJD’s family confirmed their willingness to continue to support him, and to pursue alternative arrangements with accommodation. BJD clearly has strong views regarding his circumstances which need to be considered by his attorneys, however there is no evidence that they are not acting in his best interests or making appropriate decisions. If BJD continues to be dissatisfied with their decision making, he could make application for the appointment of independent decision makers such as The Public Trustee of Queensland or the Adult Guardian. [19] In regard to the issue of capacity the Tribunal has taken account of the views of all of the medical professionals who have provided information regarding BJD. Although Dr Lillian Wong had expressed a view that BJD had capacity to make decisions about health and lifestyle matters, including accommodation, following review of two neuropsychological assessments, and evidence of a range of impairments, she is now of the view that BJD does not have capacity for complex personal or financial matters. All other medical/professional reports indicate that BJD continues to have a range of cognitive and language impairments which impact on his understanding and decision making capacity, and that he also has limited awareness and insight regarding his circumstances. BJD continues to require assistance with complex decision making. These difficulties were evident in discussion with BJD at the Tribunal hearing. The Tribunal is satisfied that the presumption of capacity as set out in the Guardianship and Administration Act 2000 in regard to BJD’s ability to make decisions about personal and financial matters is rebutted. [20] The Tribunal made findings of fact about capacity as follows: (a) BJD has a history of alcoholism which has led to encephalopathy and brain impairment; (b) He also has a history of brain injury resulting from falls and a motor vehicle accident; (c) He has language impairments which continue to impact on his understanding of information, including written information and documents; (d) He has cognitive and memory impairments which impair his reasoning, judgement and understanding of consequences. These impairments are likely to be permanent, and he will require ongoing assistance with decision making in respect of personal and financial matters; (e) He has limited awareness and insight regarding his impairments and the impact of decisions in regard to personal and financial matters; (f) BJD is vulnerable due to his cognitive impairments and his lack of insight. [21] In the circumstances the Tribunal made orders to the effect that BJD does not have capacity for any complex personal and financial matters. -- 5 of 5 --