BS [2010] QCAT 539

CITATION: BS [2010] QCAT 539 PARTIES: BS APPLICATION NUMBER: G20400 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 07 September 2010, 04 October 2010 HEARD AT: Toowoomba DECISION OF: Ms Barbara Bayne, Presiding Member Ms Elissa Morriss, Member Mr Michael Wood, Member DELIVERED ON: 04 October 2010 DELIVERED AT: Toowoomba ORDERS MADE: ENDURING POWERS OF ATTORNEY 1. The following Enduring Power of Attorney for BS is declared valid pursuant to section 113 of the Powers of Attorney Act 1998 and section 84(2) of the Guardianship and Administration Act 2000: (a) The Enduring Power of Attorney dated 3 April 2006 appointing HD and HC as attorneys for financial, personal and health matters. 2. The following Enduring Power of Attorney for BS is revoked pursuant to section 116(d) of the Powers of Attorney Act 1998. (a) The Enduring Power of Attorney dated 3 April 2006 appointing HD and HC as attorneys for financial, personal and health matters. CONFLICT TRANSACTION 3. The two applications for authorisation of a conflict transaction for BS are dismissed. GUARDIANSHIP 4. The Adult Guardian is appointed as guardian for BS for decisions about the following personal matters: (a) Accommodation; (b) With whom BS has contact and/or visits; (c) Health care. -- 1 of 16 -- 5. Unless the Tribunal orders otherwise, this appointment remains current for five (5) years. ADMINISTRATION 6. The Public Trustee of Queensland is appointed as administrator for BS for all financial matters. 7. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 8. The Tribunal directs the administrator to provide accounts to the Tribunal by 14 October 2011 and when requested thereafter. 9. This appointment remains current until further order of the Tribunal. NOTICE OF INTEREST IN LAND 10. That the administrator shall within three (3) months: a) Identify, by way of a search of the records held by the Registrar of Titles or other means, any interest in real property registered in the name of BS (“the adult”). b) Lodge with the Registrar of Titles a copy of this order and a notice notifying the Registrar of any interest in land held by the adult which is subject to this administration order. c) Provide to the Tribunal: (i) a copy of the search of records held by the Registrar of Titles referred to above and; (ii) a copy of the lodgement summary with the dealing number showing lodgement of the order in respect of any interests in land held by the adult which is subject to this administration order. 11. That if any change is made in an interest in land held by the adult which is the subject of this administration order or if there are any further dealings in land on behalf of the adult by the administrator, the administrator shall lodge with the Registrar of Titles within 14 days of the finalisation of such interest a copy of this order and a notice (in a form prescribed by the Registrar of Titles), concerning such changes or dealings. 12. That the administrator pay, from the adult’s funds, any fee associated with the above notices. CATCHWORDS : Multiple enduring powers of attorney, revocation, validity, need for the appointment of a guardian and/or administrator, family conflict, conflict transactions, gifts, loans, undue influence. APPEARANCES and REPRESENTATION (if any): -- 2 of 16 -- On 7 September 2010: HD son (by telephone) HC daughter (by telephone) SG daughter HL daughter SJ son in law RW representative of the Adult Guardian BL representative of the Public Trustee of Queensland (by telephone) On 4 October 2010: HD son (by telephone) HC daughter (by telephone) SG daughter HL daughter SJ son in law RW representative of the Adult Guardian BL representative of the Public Trustee of Queensland (by telephone) -- 3 of 16 -- REASONS FOR DECISION HISTORY OF THE APPLICATION 1. BS is 84 yrs old and moved into an aged care facility in August 2008. 2. BS is widowed and has seven children: (a) HD (b) HC (c) SG (d) HD (e) HS (f) HL (g) HC 3. Prior to the move to the care facility, BS lived in her own unit. Her daughter HC had lived with her and had provided care and support for several years. 4. BS had made several enduring powers of attorney (EPA) under the Queensland Property Law Act 1974-1990 and the Powers of Attorney Act 1998 (POA 1998) and at least two revocations: (a) 13 April 1993 appointing BR and HD jointly as attorneys for financial matters. (b) This document was revoked 11 August 1995 (c) 24 July 1995 appointing HD and HC jointly and severally as attorneys for financial matters. (d) 11 August 1995 appointing HD and HC jointly and severally as attorneys for financial matters. (e) 6 March 2005 appointing SG, HD and HC as a majority as attorneys for financial and personal/health matters (f) This document was revoked on 3 April 2006 (g) 6 March 2005 appointing HD and HC severally as attorneys for financial and personal/health matters with the powers to commence immediately 5. On 15 July 2009 a referral was made to the Adult Guardian raising concerns that the attorneys had received gifts of money and loans whilst acting in their role as attorneys for BS. Section 180 of the Guardianship and Administration Act 2000 (the Act) and section 134 POA 1998 refer. -- 4 of 16 -- 6. In 2010 the Queensland Civil and Administrative Tribunal (the Tribunal) received the following applications: (a) 25 March 2010 Authorisation of a conflict transaction from HD (b) 29 March 2010 Authorisation of a conflict transaction from HC (c) 12 July 2010 Guardianship from SG (d) 12 July 2010 Administration from SG 7. A hearing of the applications was held in Toowoomba on 7 September 2010. 8. In this hearing, the Tribunal was satisfied, as outlined below, that there was sufficient evidence on hand to rebut the presumption of capacity for BS as at 7 September 2010. 9. The Tribunal was however concerned that several of the health professional reports seem to rely on various reports from 2005 – 2008 from Dr G, BS’s general practitioner in N. These reports were not available to the Tribunal on 7 September 2010. 10. The hearing was adjourned to allow the Adult Guardian to obtain all available information from Dr G and was reconvened on 4 October 2010. THE ISSUES AND THE LEGISLATION 11. The Queensland Civil and Administrative Tribunal (the Tribunal) came into effect on 1 December 2009. The Guardianship and Administration Act 2000 (the Act) is an enabling Act conferring original and review jurisdiction on the Tribunal. 12. Section 6 of the Act explains that the Act seeks to strike a balance between (a) the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making; and (b) the adult’s right to adequate and appropriate support for decision making. 13. Section 84(2) of the Act provides that the Tribunal has concurrent jurisdiction with the Supreme Court of Queensland in regard to changing, revoking, or overtaking an Enduring Power of Attorney. Sections 116 and 117 of the Powers of Attorney Act 1998 apply. THE EVIDENCE -- 5 of 16 -- 14. In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below. 15. Although the Tribunal recognised the large amount of material that had been filed, it based its determinations for BS only on that material that was relevant to the discharge of its responsibilities under the various legislations. DOES THE ADULT LACK CAPACITY FOR THE MATTER? 16. The first issue for the Tribunal was BS’s capacity. 17. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of- understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. 18. BS was presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity had been rebutted for her. Capacity as at 7 September 2010 and 4 October 2010 19. At the hearing on 7 September 2010, the Tribunal considered evidence about BS’s capacity, including: (a) In a health professional report dated 14 July 2009, Dr S opined that BS at that date had dementia to the extent that she was unable to make complex decisions in relation to all matters. He also considered that BS would be easily influenced by those around her. (b) On 14 July 2009 BS scored 9/21 on a PAS (Cognitive Impairment Assessment) (c) In a report dated 6 August 2009, Dr S states that in his opinion BS has dementia to the extent that she is unable to make either simple or complex decisions in relation to financial and personal and health matters. (d) The latest report on file, from Dr S dated 15 June 2010, indicates a diagnosis of dementia since 2008 and a dependency on others for all but the simplest of decisions. -- 6 of 16 -- 20. All parties present at the hearing agreed with the medical reports in that they considered that as at 7 September 2010, BS was unable to make meaningful decisions. 21. At the hearing on 4 October 2010, family members present confirmed that there had been no improvement in BS’s cognitive functioning since September 2010. Conclusion 22. The Tribunal determined that as at 4 October 2010 (and 7 September 2010) the presumption of capacity for BS had been rebutted and that BS had impaired capacity for personal and financial decisions. Capacity as at 3 April 2006 23. The Tribunal recognised that BS’s capacity in 2006 had an impact on the validly or otherwise of the EPA dated 3 April 2006. It therefore examined contemporaneous evidence on BS’s capacity at the time. 24. Various documents included: (a) 4 March 2004: Dr G records that BS is ‘distressed by her memory, wants medications for it. MMSE 21/30 indicating “mild cognitive impairment’ (b) 4 June 2004: Dr B (psychiatrist) assessed BS who had ‘complained of deterioration in her memory over several months’. Reminyl was recommended (c) 1 March 2005: Dr G’s progress notes indicate: ‘major loss of memory is causing problems with social interaction. Difficulty knowing what to do in church, forgets major family issues, events, problems with neighbours, leaving oven on’ 25. In early March 2005 however, BS (according to SG) made an Advanced Heath Directive, signed in the presence of Dr G. No family member disputed that BS had done so; however the document was not in evidence before the tribunal. 26. As indicted on the Advanced Heath Directive form, the nominated doctor, Dr G would have had be convinced that BS at the time was (a) ‘not suffering from any condition that would affect her capacity to understand the things necessary to make this directive, and (that) she understands the nature and likely effect of the health care described in this document’. (b) ‘ is capable of understanding the nature of their directions and foreseeing the effects of those directions’ -- 7 of 16 -- 27. As evidenced in the Tribunal’s files, BS’s MMSE scores 2004 – 2007 can be listed as: 4 March 2004 21 March 2005 24 April 2005 24 July 2005 24 7 March 2006 25 June 2007 18 A score of 25/30 is considered baseline. 28. The EPA dated 3 April 2006 was drawn up and witnessed by BG, solicitor. In the light of any evidence to the contrary, the Tribunal presumed that BG had been diligent in the discharge of his role and responsibilities as witness and had considered that at the time of its execution, BS understood the document she was signing. Conclusion 29. The Tribunal determined that, on balance of probability, the evidence before it was insufficient to rebut the presumption of capacity for BS to execute an EPA as at 3 April 2006. 30. The Tribunal therefore found that the EPA dated 3 April 2006 was valid and that by operation at law all EPA’s prior to this were revoked. 31. The Tribunal noted however that the information from the health professionals indicated that BS had lost capacity by mid 2008, and by the time she entered care. IS THE ENDURING POWER OF ATTORNEY FOR PERSONAL AND HEALTH MATTERS OPERATING IN BS’s BEST INTEREST? 32. The fact that there are Attorneys for personal and health matters appointed under an Enduring Power of Attorney is especially relevant in determining how best an adult’s needs should be met. The Tribunal must consider whether the appointed attorneys should continue in that role, whether their appointment should be revoked under section 116 or section 117 of the Powers of Attorney Act 1998 or be made subject to the appointment of a guardian under section 22 of the Act. 33. The Tribunal noted that BS had been placed in the Care Facility in 2008 and that several of her children reside in the DD region. Given that her attorneys HD and HC live in B and the CG respectively, it was apparent that most of the immediate family care and support would be provided by the family members in the area. 34. The Tribunal recognised several areas of contention in regards to BS’s personal and health matters. -- 8 of 16 -- (a) Accommodation BS has lived in the care facility since 2008. SG and some other members of the family, particularly those living in the region, consider that BS is not, despite a reasonable level of care, particularly happy there and would be better placed in another care facility in a nearby town. This would be closer to her family in the area, more accessible to various activities and be in a familiar township. The attorneys consider that BS is appropriately placed and do not support any move of facility. (b) Contact and visits The attorneys have recently made a joint decision that, although BS may be visited at the care facility, she is not to be taken out by family members. HC told the Tribunal that this decision was made because the family, in particular SG, continue to ‘torment and upset mother’. HD explained that he thought it unfortunate that he had had to make this direction, but his mother had been ‘very stressed’ in phone calls with him. The attorneys explained that they considered the torment and stress on BS had been caused by family members who kept telling BS that she was going to be moved. The attorneys acknowledged that this decision did not prevent what they believed to be the cause of the distress; that is conversations with BS. It appeared to the Tribunal that this decision was intended to be punitive to those close to BS rather than genuinely to protect her interests. The decision of the attorneys might have resulted in BS not attending some medical/dental appointments. (c) Health SG expressed her concern that she was not kept informed of BS’s increasing health needs. 35. The Tribunal considered that service provision would be dependent on accommodation in a care facility. All other personal and health matters for BS were well settled and unlikely to emerge in the future. 36. Of particular concern to the Tribunal was the considerable and increasing level of conflict, distrust and lack of communication between -- 9 of 16 -- BS’s children, including their diverse and strongly held convictions as what arrangements might best suit their mother. 37. Both of BS’s attorneys for personal and health matters are very much embroiled with the ongoing family conflict. 38. The Tribunal was convinced that, although the attorneys undoubtedly had their mother’s best interests at heart, they were demonstrating that, under the circumstances, they were having great difficulty in observing some of the general and specific responsibilities as attorneys. It would be hard for example for them to take into account, in an unbiased way, the importance of their mother’s existing supportive relationships. SCHEDULE 1 PRINCIPLES PART 1—GENERAL PRINCIPLES Maintenance of existing supportive relationships 8. The importance of maintaining an adult’s existing supportive relationships must be taken into account. 39. Given the level of conflict, the Tribunal was concerned about the ability or willingness of the attorneys to liaise and communicate effectively with all their siblings. Given the magnitude of the decisions necessary, the Tribunal considered this aspect of the attorney’s responsibilities particularly important. Conclusion 40. There was general consensus from all parties on the following matters: (a) BS has several complex and ongoing personal and health issues which need to be proactively managed; (b) In differing ways, her children are, despite some difficulties and/or lack of contact in the past, important to her; and (c) There was significant conflict within her family. 41. The Tribunal therefore determined that the Enduring Power of Attorney given by BS to her son and daughter was not, for accommodation, visit and contact matters, capable of being operated successfully to the benefit of BS and in her best interest. 42. The Tribunal also considered that under the circumstances, it was unlikely that the attorneys would have to make any other decision for BS and that there was no purpose in preserving the other sections of the EPA. -- 10 of 16 -- 43. The Tribunal determined that BS’s interests would best be served by the revoking of the enduring power of attorney under s117 of the Powers of Attorney Act 1998. IS THERE A NEED FOR A GUARDIAN AND IF SO, WHO SHOULD BE APPOINTED? 44. The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met. 45. The Tribunal, when considering the appointment of a guardian, must be satisfied as to the need for appointment as set out in section 12 of the Act. 12 Appointment (1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and (c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected. 46. The proposed guardian was SG. 47. The Tribunal considered that SG was heavily involved with the interfamily conflict and would also be unable to observe some of the general and specific responsibilities as guardian. 48. Under the legislation, the Tribunal always has the option of the Adult Guardian if there is no other appropriate person available for appointment for the matter (s14 (2) of the Act provides). 49. The Tribunal considered the Adult Guardian to be an independent professional decision maker with extensive skills and experience, able to assess the relative merits of options for accommodation, visits and contacts and health matters and make decisions that best meet BS’s needs and properly protect her interests in the future. 50. The Tribunal further considered that an appointment of the Adult Guardian might remove some of the conflict from the family dynamic until the issues under contention could be resolved. Conclusion -- 11 of 16 -- 51. The Tribunal was satisfied that there was a need for the appointment of a guardian for BS for accommodation, contact and visits and health matters. 52. The Tribunal determined SG was not appropriate for the reasons set out above and that the Adult Guardian was the appropriate appointee as guardian in this case. IS THE ENDURING POWER OF ATTORNEY FOR FINANCIAL MATTERS OPERATING IN BS’S BEST INTEREST? 53. The fact that there are Attorneys for financial matters appointed under an Enduring Power of Attorney is especially relevant in determining how best an adult’s needs should be met. The Tribunal must consider whether the appointed attorneys should continue in that role, whether their appointment should be revoked under section 116 or section 117 of the Powers of Attorney Act 1998 or be made subject to the appointment of an administrator under section 22 of the Act. 54. The Tribunal noted that as at 4 October 2010 BS had assets which include a unit, approximately $24,000 in two term deposits and several bank accounts totalling just over $2,000. As well as some interest from her cash assets, BS also receives CentreLink benefits and rent from her unit. 55. The attorneys have been managing BS’s financial matters since August 2008. 56. The report of the Adult Guardian dated 13 May 2010 reflected the findings of the Adult Guardian on the investigation – s 180 and s192 of the Act refer. 57. The Tribunal accepted the findings of the Adult Guardian to the extent that: (a) the attorneys had provided considerable financial information and that detailed records had been maintained (b) Assets were accounted for and were being protected (c) HD had taken immediate steps to have his name removed from BS’s bank accounts. 58. The Tribunal then considered the two applications for the approvals of conflict transactions: (a) The application received on 25 March 2010 from HD was for the approval of: -- 12 of 16 -- A loan made on 3 August 2001 of $14,000 for the purchase of a motor vehicle. All evidence supported that this loan had been repaid in full by about November 2009. A gift of $1,000 ‘towards cost’ made on or about 27 July 2008. The circumstances of this gift are discussed below. (b) The application received on 25 March 2010 from HC for the approval of a gift of $3,000 on or about 27 July 2008. 59. HC described in detail the circumstances under which she was gifted $3,000 and HD was gifted $1,000. On about 27 July 2008, or at least the day before BS moved out of her N unit en route to the care facility, she had discussed with HC that she thought she might have too much money (with respect to her CentreLink entitlements and her aged care fees) and that she might give some to some of her children. The next day, the day that BS left the unit, HC, realising that her mother had forgotten, saw fit to remind BS about the matter. A cheque was written out for $1,000 to HD and eventually the sum of $3,000 was agreed for HC. HC was quite clear that she considered both gifts were to say “thank you, I love you”. HC, who instigated the payments, did not believe that the money to HD was in any way a reimbursement of costs. She said that HD was surprised and pleased by the cheque. He told the Tribunal that considered that this was his mother’s decision, and “that was fair enough”. HD maintained that he considered the $1,000 to represent a reimbursement of expenses (mostly unspecified) that he had incurred on behalf of his mother. 60. All written and oral evidence before the Tribunal indicated that BS had never been in the habit of gifting money. She had made loans to her children from time to time, but had always insisted on full repayments. 61. As the hearing progressed, several other concerns emerged: (a) HC’s use of the unit. HC, as attorney, had stayed in the unit from the end of July 2008 until her departure for overseas in May 2009. During the nine months, she had arranged for some renovations (carpets, blinds). With the agreement of the co-attorney, no rental was charged to or paid by HC throughout this period; she paid only for electricity. (b) Rental of the Unit -- 13 of 16 -- Rental of $200/week from the unit was identified being deposited into BS’s account from June 2009. The attorneys informed the Tribunal that this had recently increased to $225/week. The attorneys advised that the market rental value for the unit was about $280/week. They explained that the reduced rate was because “they were happy with the tenants, they are good tenants”; the tenants were known to the attorneys as friends and neighbours. (c) A car loan to HC In June 2005 BS loaned HC $7,000 for a car. Recepts indicated that $5,300 had been repaid from 2005 – December 2007. A receipt on the Tribunal file, dated 30 June 2008 and signed by BS, read “No further payments required. Paid in full”. HC considered that all money on the car loan had been repaid or forgiven. (d) Statement of advice The attorneys informed that they had not obtained any financial advice, considering the rental of the unit was appropriate. Conclusion 62. The Tribunal determined that there was clear evidence to support substantial breaches of the POA 1998 by both attorneys, Sections 73 and 88 apply: Avoid conflict transaction 73.(1) An attorney for a financial matter may enter into a conflict transaction only if the principal authorises the transaction, conflict transactions of that type or conflict transactions generally. (2) A “conflict transaction” is a transaction in which there may be conflict, or which results in conflict, between— (a) the duty of an attorney towards the principal; and (b) either— (i) the interests of the attorney, or a relation, business associate or close friend of the attorney; or (ii) another duty of the attorney. Gifts 88.(1) Unless there is a contrary intention expressed in the enduring power of attorney, an attorney for financial matters for an individual may give away the principal’s property only if— (a) the gift is— (i) to a relation or close friend of the principal; and -- 14 of 16 -- (ii) of a seasonal nature or because of a special event (including,for example, a birth or marriage); or (b) the gift is a donation of the nature that the principal made when the principal had capacity or that the principal might reasonably beexpected to make; and the gift’s value is not more than what is reasonable having regard to all the circumstances and, in particular, the principal’s financial circumstances. (e) In addition, The Tribunal determined that the presumption of influence had been invoked. Presumption of undue influence 87. The fact that a transaction is between a principal and 1 or more of the following— (a) an attorney under an enduring power of attorney or advance health directive; (b) a relation, business associate or close friend of the attorney; gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence. 63. The Tribunal concluded that the Enduring Power of Attorney given by BS to her son and daughter was not being operated successfully to the benefit of BS and in her best interest. 64. The Tribunal determined that BS’s interests would best be served by the revoking of the enduring power of attorney under s117 of the Powers of Attorney Act 1998. IS THERE A NEED FOR THE APPOINTMENT OF AN ADMINISTRATOR? 65. The Tribunal will only appoint an administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met. 66. The Tribunal, when considering the appointment of an administrator must be satisfied as to the need for appointment as set out in section 12 of the Act. Given BS’s financial matters as described, the Tribunal was satisfied in this regard. 67. The proposed administrator was SG. 68. The Tribunal again acknowledged the high level of conflict, distrust and lack of communication between BS’s children. The Tribunal considered again that SG was heavily involved with the interfamily conflict and would be unable to observe some of the general and specific responsibilities as administrator. 69. Under the legislation, the Tribunal has the option of the Public Trustee of Queensland (PTQ), s14 (1)(b)(ii) and (c) provides. -- 15 of 16 -- Conclusion 70. The Tribunal was satisfied that there was a need for the appointment of an administrator for BS for all financial matters. 71. The Tribunal is of the view that an independent administrator would be better placed to liaise with all interested parties, assess the relative merits of options for decisions on financial matters and make decisions that best meet the adult’s needs. In this respect, The Public Trustee of Queensland is an independent decision maker and has extensive skills and experience. The Public Trustee of Queensland is considered the appropriate appointee as administrator in this case. 72. The Tribunal further considered that an appointment of the PTQ might remove some of the conflict from the family dynamic. -- 16 of 16 --