BWE [2011] QCAT 216

CITATION: BWE [2011] QCAT 216 PARTIES: BWE APPLICATION NUMBER: GAA977-11 GAA978-11 GAA2787-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 5 May 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for the appointment of a guardian is dismissed. 2. Application for the appointment of an administrator is dismissed. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – evidence did not rebut presumption of capacity – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] MS applied to the tribunal for the appointment of a guardian and an administrator for BWE, her father. She stated in the application that she had not told her father about the application as he had ordered her off his property and told her not to contact him again. [2] MS stated in her application that there was conflict between decision makers and that BWE had made an enduring power of attorney when he did not have the capacity to do so. She further stated that BWE’s grandson had taken him to a solicitor and had an enduring power of -- 1 of 6 -- 2 attorney made in favour of the grandson and had changed his will in favour of his grandson. [3] MS stated in the application that BWE was at immediate risk as his grandson may use the enduring power of attorney inappropriately and as BWE had stated that he had sold his house. MS sought the appointment of the Adult Guardian and The Public Trustee of Queensland as decision makers for BWE. [4] She also stated that she was seeking the following outcomes from her application: that BWE be cared for properly, that the grandson be removed as attorney and that the 2006 version of BWE’s will be restored which had MS, her sister, BL and her brother, BR as sole beneficiaries. According to a copy of that will provided to the tribunal by MS, she was to receive the house and land and her siblings were left other property. [5] The application was accompanied by a health professionals report by Dr C dated 24 January 2011. Dr C noted BWE’s current medical conditions as diabetes, osteoarthritis, impaired hearing and vertrebrobasilar ischaemia. Dr C noted that on 12 November 2010 a friend of BWE had reported concerns that BWE was not looking after himself, not eating or cooking and was self neglecting. [6] Dr C stated an opinion that BWE was not in compliance with his regular medication. Dr C did not know if BWE had the ability to understand and act on information relevant for decision making about lifestyle and accommodation choices. Dr C expressed the opinion that BWE could not handle any form of financial affair, that he could not make decisions freely and voluntarily and that he was easily influenced. Dr C thought that BWE could not make any complex decisions, could not make even simple financial decisions due to dementia and could not understand the factors involved in an enduring power of attorney. [7] BWE denied that his decision making capacity was impaired. He stated that he has had little contact with his children over the last 20 years. He stated that he cooks (although he does have meals on wheels delivered as well), cleans his house and does his laundry. He stated that his hobby of collecting engines had become too much for him and he had given away or sold many of his engines. He stated that he continues to maintain some old cars and tractors. He still does some electric and gas welding. He stated the opinion that he does not need assistance to conduct his affairs. [8] The tribunal was provided with copies of medical certificates from Dr A dated 17 January 2011 and 23 February 2011 stating that BWE had testamentary capacity. [9] BWE’s grandson, PR, informed the tribunal on 2 March 2011 that he is very close to his grandfather: he speaks to him on the telephone six days a week and visits him weekly. PR expressed the opinion that BWE is able to manage his finances and can take care of himself on a daily basis. [10] PR stated that BWE and BWE’s house are well maintained and that BWE is fit and constantly on the go. He stated that BWE is fiercely independent but that PR would offer assistance if his grandfather needed any assistance with his finances or his private affairs. -- 2 of 6 -- 3 [11] PR stated that at Christmas 2010 he had been telephoned by BWE who asked him to make arrangements to see a solicitor about making a new will and enduring power of attorney. During this telephone call PR could hear the voices of MS and BL and he could hear that his grandfather was very distressed. Police were called to BWE’s house at BWE’s request. [12] The tribunal was provided with a copy of a revocation by BWE dated 10 January 2011 of an enduring power of attorney he had granted to his daughter. BWE’s lawyer informed the tribunal that he had not prepared a new enduring power of attorney. [13] The tribunal was provided with further information about BWE’s capacity for decision making. A health professional report from Dr A dated 2 March 2011 stated that BWE had no medical conditions other than slightly elevated blood sugar levels. Dr A stated that BWE was completely independent, looks after himself, pays his own bills and does his own shopping. Dr A expressed the opinion that BWE could make decisions freely and voluntarily and could make complex decisions. [14] Dr M informed the tribunal that he had administered a Mini Mental State Examination to BWE in March 2011 and that BWE scored 20 out of 30. This overall score was indicative of mild to moderate cognitive impairment but BWE scored well in basic verbal and comprehension skills such as reading, writing and understanding simple commands. [15] Dr M provided a health professional report dated 14 March 2011 in which he stated that BWE does not take medication prescribed for diabetes but this failure to take this medication would not affect his decision making capacity. Dr M expressed the opinion that BWE could make decisions freely and voluntarily and that he was not being influenced by any person. Dr M expressed the opinion that BWE could make complex lifestyle and accommodation decisions and simple health care decisions. [16] A report was provided to the tribunal by PS, a psychologist dated 25 April 2011. He conducted some intelligence testing which revealed that BWE was within normal limits of functioning. PS did not detect any indications of significant dementia or other psychological or cognitive problems which would prevent him from making financial or other decisions. [17] In a separate health professionals report also dated 25 April 2011, PS noted that BWE was not compliant with taking medication for diabetes but that failure would not affect his decision making capacity. PS expressed the opinion that BWE could make decisions freely and voluntarily and that he was not influenced by other persons. PS expressed the opinion that BWE could make complex decisions about accommodation and lifestyle matters, complex decisions about financial matters and simple decisions about health care. [18] MS provided submissions to the tribunal in support of her application for the appointment of a guardian and administrator for her father. She submitted that there was little or no food in the house when she visited her father, he was talking irrationally about being poisoned, he accused other people of stealing things from his house and she was concerned that he could not care for himself. -- 3 of 6 -- 4 [19] BL also provided information to the tribunal in support of the applications by MS. Among other assertions, BL referred to her father being unable to explain to her how he had used about $2,000 in cash that she had given to him in December 2010. [20] Evidence was also provided to the tribunal from two persons who had known BWE for many years and who stated their opinions that BWE was effectively functioning normally in his usual community. [21] BWE applied to the tribunal to bring an early end to the applications by MS for the appointment of a guardian and administrator. It was submitted that taking the applications to an oral hearing would involve inconvenience and expense for all parties and would likely to be traumatic and disruptive for BWE. It was submitted that on the evidence provided, the tribunal could not be satisfied that the outcomes sought by MS were necessary or desirable. [22] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 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 such a 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. [23] In this case, the tribunal gave the parties an opportunity to respond to the application brought under section 47 of the Act. The tribunal has taken into consideration the responses of the parties as well as the submissions made on behalf of BWE. [24] When considering applications for the appointment of substituted decision makers under the Guardianship and Administration Act 2000, the tribunal commences its task on the basis that an adult is presumed to have capacity to make decisions. Evidence can rebut that presumption but until the presumption is rebutted, the tribunal must proceed on the basis that an appointment of a substituted decision maker is not to be made. [25] There was evidence from Dr C, MS and BL that could have rebutted the presumption of capacity but for the fact that contrary evidence had been presented to the tribunal from Dr A, Dr M, PS, BWE, PR and other witnesses. The basis on which the various opinions about BWE’s capacity had been made differed between the persons who expressed opinions. [26] Dr C had not carried out an assessment of BWE’s cognitive functioning when formulating his opinion about BWE’s capacity for decision making. He relied on his observations of BWE and on anecdotal accounts from other people. PS had conducted some psychological testing of BWE’s functioning and found no evidence of significant dementia or other psychological or cognitive problems which would prevent BWE from making financial or other decisions. Dr M had conducted a Mini Mental State Examination of BWE. Although the testing conducted by Dr M revealed mild to moderate cognitive impairment, Dr M considered that the cognitive areas associated with reasoning were functioning well. [27] Evidence from medical witnesses is used to inform the outcome of the -- 4 of 6 -- 5 tribunal’s deliberations about capacity but is not necessarily determinative of the issue of capacity. The tribunal is responsible for determining capacity of an adult. The Guardianship and Administration Act 2000 provides that a person has capacity for decision making if 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. [28] The definition of capacity is not dependant on a medical diagnosis but looks to the functional process involved in decision making. MS and BL referred in their evidence to a disturbance in thinking processes exhibited by BWE. This disturbance in thinking was not noted by Dr C, Dr A, Dr M or by PS who conducted psychological testing of BWE. It was not noted by PR or by witnesses who have regular contact with BWE and who have known him for many years. [29] There were suggestions made by MS that BWE had been subject to influence and Dr C reported an opinion that BWE could not make decisions freely and voluntarily. Contrary to these assertions, it appears from the evidence that BWE took action when he perceived he was being pressured by others and BWE had called for help and had sought legal assistance to maintain his independence in his decision making. [30] The evidence relied on by MS to rebut the presumption of capacity was not particularly cogent when considered in the context of all the information provided to the tribunal. However, a finding on capacity is only one element in the process used by the tribunal when appointing substituted decision makers. [31] Section 12 of the Guardianship and Administration Act 2000 sets out the other criteria to be considered by the tribunal when determining if there is a need for appointment of substituted decision makers. There must be evidence that decisions about personal and financial matters have to be made or about whether BWE is likely to act in a way that involves, or is likely to involve, unreasonable risk to his welfare and finances. There would not be a need for an appointment by the tribunal if his decision making needs can be adequately met by support given informally. [32] The only decisions that appear to be seriously impugned by MS are decisions made by BWE about his self care and about his will. The evidence is contradictory about the current quality of care that BWE is receiving while living at home. His grandson is in almost daily contact with him and he is prepared to provide assistance if required. The appointment of an administrator will have no impact on any changes made to BWE’s will. The validity of his will is ultimately a matter for the courts. There is no convincing evidence that his finances are at risk. A refusal or reluctance to talk about his financial dealings is quite a normal human reaction, particularly in cases where family members are in conflict with an adult. [33] The tribunal considered that the case presented for the appointment of a guardian and administrator lacked substance. MS and BL were given an -- 5 of 6 -- 6 opportunity to supplement the case for appointment but their responses did not provide satisfactory substance to the applications. [34] It was clear that BWE strenuously objected to the appointment of substituted decision makers for him. Even though the applications may have been well meaning, the tribunal concluded that the applications lacked substance and that it was unnecessary to proceed to a hearing as to do so would be likely to cause distress to BWE. Applying the objects set out in section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009, 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. -- 6 of 6 --