BE [2010] QCAT 419

CITATION: BE [2010] QCAT 419 PARTIES: BE APPLICATION NUMBER: GAA4606-10, GAA4790-10, GAA4791-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 6 August 2010 HEARD AT: Brisbane DECISION OF: Mr Jim Allen – Presiding Member Mr Mark Johnston – Member DELIVERED ON: 2 September 2010 DELIVERED AT: Brisbane ORDERS MADE: GUARDIANSHIP 1. That the Adult Guardian is appointed as guardian for BE for decisions about the following personal matters: (a) Accommodation; (b) Health care; (c) Provision of services. 2. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. ADMINISTRATION 3. That The Public Trustee of Queensland is appointed as administrator for BE for all financial matters. 4. The administrator is to provide a financial management plan to the Tribunal within four (4) months. 5. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 6. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. NOTICE OF INTEREST IN LAND 7. That the administrator shall within three (3) months: -- 1 of 8 -- 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 BE (“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. 8. 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. 9. That the administrator pay, from the adult’s funds, any fee associated with the above notices. ENDURING POWER OF ATTORNEY 10. That the following Enduring Power of Attorney for BE is overtaken by the making of these appointments and, in accordance with Section 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that these appointments have been made: (a) The Enduring Power of Attorney dated 28 February 2003 appointing BM and BW as attorneys for financial, personal and health matters. CATCHWORDS : Need for guardian and administrator Guardianship and administration Act 2000 section 12 Attorneys must consult Power of Attorney section 79 -- 2 of 8 -- APPEARANCES and REPRESENTATION (if any): The active parties attending the hearing were as follows: BM, MJ, DB, JI, BW and GP representing The Public Trustee of Queensland. REASONS FOR DECISION 1. Mrs BE is 89 years old and for the last 6 years has been cared for at home by her daughter, BM. BE has appointed BM and her son, BW, as her attorneys to act severally in respect of personal/health and financial matters under an enduring power of attorney, dated 28 February 2003. BE has several other children, Mrs MJ, JI and DB, who are involved in her life and a son. BC, who is estranged from her. 2. BE has a diagnosis of Alzheimer’s disease and requires care to ensure her personal and financial needs are met. As a result of a decline in BM’s health, a decision has been made to place BE in permanent aged care. There were two hostels which had been approached for that purpose. BE was placed by BM in respite care on 24 May 2010. A dispute has arisen within the family as to whether or not BE should stay in respite care and on 29 June 2010 DB removed BE from respite care with a view to placing her elsewhere. BM then advised that she would remove her mother if she were placed there. BE went to stay with DB but due to deterioration in her health BE is now in hospital. 3. BM made an application to the Tribunal initially for directions that BE not to be removed from respite care and later for herself to be appointed as guardian and administrator for BE. DB made an application to the Tribunal for herself to be appointed as guardian for BE. THE LAW AND THE ISSUES 4. The Tribunal determines applications for the appointment of guardians and administrators in accordance with section 12 of the Guardianship and Administration Act 2000 (GAA Act). The threshold issue is whether or not BE has impaired capacity for decisions in regard to the matters. 5. Capacity is matter specific and is defined in the dictionary of the GAA Act as follows: - Capacity, for a person for a matter, means the person is capable of- (a) understanding the nature and affect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. 6. The Act presumes that adults have capacity in accordance with item I of schedule 1 of the GAA Act and this presumption is required to be rebutted for the Tribunal to be satisfied that an adult has impaired capacity. 7. Section 12 of the GAA Act also requires that there is a need for decisions about the matters and that without appointment the adult’s needs will not be adequately met or their interests not adequately protected. In regard to whether an appointment is -- 3 of 8 -- required, it is relevant to consider whether there are any informal or formal decision makers currently in place, in particular attorneys appointed under the Powers of Attorney Act 1998. If there are attorneys it is necessary to consider whether they are carrying out their duties in such a way as to protect the adult’s interests and are otherwise acting in accordance with the Powers of Attorney Act 1998. 8. The Tribunal is required to act in accordance with section 14 and 15 of the GAA Act when appointing guardians and administrators. The appointee must satisfy the requirements of section 14 including that the person is appropriate for appointment in accordance with the appropriateness considerations set out in section 15 of the GAA Act. 9. The issues for the Tribunal are then as follows:- a) Does BE have capacity for the matter; b) Is there a need for a guardian; and if so who should be appointed; and c) Is there a need for an administrator and if so who should be appointed. DOES BE HAVE CAPACITY FOR THE MATTER 10. BE has a diagnosis of Alzheimer’s disease from Dr V, consultant physician and geriatrician. In his report dated 4 May 2010 Dr V noted that BE’s Mini Mental State Examination (MMSE) score had declined to 21 out of 30 and that her cognitive and functional decline was most likely in part due to subacute delirium. He stated that BE’s daughter found that BE was generally more confused and disoriented even in her own home and that she was requiring supervision with her day to day cares. In an earlier report of Dr V’s dated 2 November 2009 he had noted that her cognitive state declined earlier this year following an acute illness and that her MMSE was still pretty high at 28/30. The Tribunal was also provided with a copy of an ACAT assessment dated 4 February 2010 which approved BE for low care permanent and respite. The ACAT report noted that BE had regular short term memory problems and occasional long term memory problems and confusion. The ACAT Report states that the client had a pacemaker inserted in June 2009 and has been deteriorating since then. The ACAT report also states that BE’s daughter is her full time carer. 11. At the hearing the parties all agreed that BE was not able to make complex decisions. BM confirmed that BE capacity had declined following the pacemaker operation and that she was now only able to make simple decisions. BM stated that BE understood that she needed intense care. BD stated that BE would be able to express a wish in regard to the environment she wants to live in. JM stated that BE’s short term memory was almost non-existent. JI stated that BE is greatly influenced by the people she is with at any particular time. BW agreed that BE did not have capacity. CONCLUSION 12. The Tribunal accepts Dr V’s diagnosis of Alzheimer’s disease for BE and that as a result she has problems with her short term memory and is confused. The Tribunal is aware that when someone has short term memory loss they tend to be unable to hold the information in their memory which is necessary to make decisions. BE’s family have confirmed the effects of the Alzheimer’s disease on BE’s decision-making. The Tribunal is satisfied that BE has impaired capacity for both personal and financial decision making. -- 4 of 8 -- IS THERE A NEED FOR A GUARDIAN FOR BE AND IF SO WHO SHOULD BE APPOINTED 13. BE has been cared for by her daughter, BM, on a live in basis since 2004. Due to BM’s own health issues, there is a need for BE to be placed in residential aged care. BM placed BE in respite care at a Nursing Home on 24 May 2010, with a view to a permanent placement. BM states that she advised DB of the proposed placement around 5-7 May 2010 without any adverse comment, though BD contacted her a few days later advising respite was available at a facility on the Gold Coast. BM stated that she advised DB that respite was not suitable. On 13 May 2010 BM was advised by the nursing home that they had a place available for BE. BM states that she advised them of the placement at another nursing home but asked that BE stay on their lists in case the placement did not work out. BM states that on 11 June 2010 she received a call from BD who was concerned about the placement of BE at the nursing home. This lead to a meeting with BW on 15 June 2010 where BM was told by BW that BE would be going to the coast on the weekend. BM states that she replied, “I might have some views on that”. On 29 June 2010 BM was informed by the manager of the nursing home that two ladies had come to visit BE and left with her and all of her luggage. 14. BW confirmed the meeting with BM and his advice to her that BE would be placed in aged care. He states that BM then engaged de Groots lawyers and notes that correspondence between him and de Groots had been submitted to the Tribunal. He stated that BM would not provide a copy of BE’s ACAT assessment to him. He further stated that BM had not objected to the placement at the aged care facility but only that there would be two moves, an initial move to BD’s whilst awaiting placement and then to a when the placement was available. He stated that a permanent placement was available on 23 June 2010 and that he made the decision to move BE on 29 June 2010 because a permanent position was not available at the nursing home and BE would have to be discharged from that facility by the end of August. He advised that the aged care facility were not prepared to accept BE’s admission until both attorneys gave their consent to it, as BM had threatened to remove BE from aged care if she were placed there. 15. DB states that she was advised in May 2010 by BM that she could no longer cope with BE’s care and that she would be contacting the “respite hotline” to have BE placed on an urgent basis. She states she immediately made enquiries on the Gold Coast and found a placement, but when she advised BM of this she was told, “you’re to late I’ve got her in elsewhere”. She states that there was no consultation with her or, to her knowledge, other family members about that placement. BD, who is a trained nurse and has experience in dealing with aged clients, states that she visited the nursing home and formed the view that it was not an appropriate facility for BE and that BE was unhappy and distressed there. BD states that she tried to discuss these matters with BM on several occasions and was met with abuse. BD further stated that after discussions with BW and JI, who is also a nurse, a placement at an aged care facility was arranged. She states that following BM advising the aged care facility that she would remove BE if she was admitted to the facility, the aged care facility advised they would not accept BE until the situation had been resolved. As BE had already been removed from the nursing home at this time, BD states that it was decided by BW and her that BE would stay with BD until the matter was resolved. BD states that she arranged for service provision for BE during the interim period through her -- 5 of 8 -- employer. At that time BD stated that she was extremely concerned in regard to BE’s health as she was suffering from a productive cough, faecal incontinence and an extremely painful hip. BD stated that BE had a fall at the nursing home and she was receiving physiotherapy. BD further stated that her concerns grew and that in consultation with her brother, BW, she had BE admitted to Hospital, where BE was still at the time of the hearing. 16. BM stated that if she was not appointed she believed the Adult Guardian would be appropriate, provided they take into account all of the relevant factors relating to her mother, her history and that they will make a decision based solely on her best interests and not in the interests of any other person. At the hearing BM indicated that she would talk to everyone and she always tries to advise people of decisions. MJ supported BM as guardian, as she had been BE’s carer for 6 years and knows all of her care providers. JM supported the placement at the nursing home and was opposed to BD removing BE from that facility without informing her. JI supported the appointment of DB as guardian and did not believe that BM’s actions were in the best interests of BE both from an understanding of the family circumstance and, in her opinion, as a registered nurse. She stated that BM has refused to discuss BE’s accommodation situation with her. BW stated that BD is the most highly and appropriately qualified family member to make comment and advise on BE’s health care and he would support her appointment if a guardian was required. At the hearing BW was concerned that BM would place BE in a nursing home where there was no permanent position available. He stated that BD had worked in aged care since 1990 and has worked with dementia patients and administered their care for many years. BD stated that given her qualifications and experience and in the event that these matters are not resolved prior to the hearing, that she should be appointed sole guardian. CONCLUSION 17. BE requires full time care and that care can no longer be provided by BM. BE’s attorneys, BM and BW, have not been able to agree on a decision in regard to accommodation, despite the fact that BM has involved a firm of solicitors in the negotiation process. There is no doubt that BE’s family want the best for her and that each of them has a contribution to make in regard to the decisions which need to be made. Two family members, DB and JI, are trained nurses and BM has many years experience both as a decision maker and carer for BE. BW has, with BD, made a decision to remove BE from a facility in which she was placed by BM. Due to BM not consenting to the new placement, the facility which had a permanent placement, will not accept BE unless the two attorneys agree and there does not appear to be a prospect of agreement. BE’s health is precarious and she is currently in hospital. The Tribunal is satisfied that there is a need for a guardian to ensure that the decisions which need to be made for BE in regard to accommodation, health care and the provision of services can be made. 18. BM and DB have been nominated as guardian. While ordinarily they would be appropriate, due to either qualifications or a history of being a personal decision maker for the adult, the history of this matter shows that if the views of all parties with an interest in BE’s welfare are to be taken into account in the decision making process then an independent decision maker is required. In particular, the Tribunal notes that BD and JI have nominated that BE’s religious beliefs are a factor which should be -- 6 of 8 -- taken into account in an accommodation decision. While BM has nominated that the continuity of BE’s medical care and her continuing to reside in the area are important factors in this decision. The Tribunal is satisfied that there is no other party appropriate to appoint as guardian and appoints the Adult Guardian as BE’s guardian for decisions about accommodation, health care and the provision of services. The enduring power of attorney dated 28 February 2003 is overtaken to the extent of this appointment. IS THERE A NEED FOR AN ADMINISTRATOR FOR BE AND IF SO WHO SHOULD BE APPOINTED 19. BE owns a unit and is in receipt of a pension from the Department of Veterans Affairs and receives a fortnightly payment from a family trust of which NB is the trustee. BE has bank accounts, a cheque account and key card account. BM advised the Tribunal that BE’s pension is paid into the cheque account and BE still signs cheques which are written out by BM. BE owns 6 of the 12 shares in NB and is currently a director of the trustee company with BW being the other director. BW advised the Tribunal that the company had paid all of BE’s expenses including a carer payment to BM in the 2009/2010 financial year. BW stated that he was not provided with any details by BM in regard to how BE’s money was spent and given that the trust was paying most of her expenses and she was receiving over $700 per week, he had concerns about how the money was being spent. He was also concerned in regard to the conflict of interest if BM was to continue to reside in the unit rent free and was a paid carer of BE. BM stated her main concern was to ensure that NB was used solely to ensure that BE is properly maintained for all of her life before anyone else’s interests are taken into account. She stated that, provided the Public Trustee would take on the role of director of the company, she was content for the Public Trustee to take over as BE’s attorney. She stated that BW should have resolved the directorship well before now as the company has always been his portion of responsibility. 20. BM also advised the Tribunal at the hearing that she could not continue in the current arrangement as attorney with BW. In regard to the unit she stated that as long as BE wishes to visit it, the unit should be available to her and she would continue to reside there. She confirmed that she had not formally commenced acting as attorney for BE as BE was still signing cheques. BW advised that he had no access to BE’s cheque book. BM advised the Tribunal that BW had not paid the insurance on the unit and the trust property. BW advised the tribunal that he had changed address and the insurance renewal had gone astray but when he became aware of the situation he had immediately corrected it. In regard to the unit, BW said he was aware that his mother wished BM to continue to reside there and would not make any immediate decision in regard to the unit if BE were to be placed in a hostel. DB stated at the hearing that BW had advised her of his difficulty in communicating with BM. BW stated that the bank accounts had been frozen after BE had been removed from the nursing home and that BE did not need any money at the moment. BM stated that she was not made aware of the accounts being frozen and she had to advise people who she had sent cheques not to cash them. GP for the Public Trustee of Queensland advised that the Public Trustee would confirm BE’s assets and liaise with the trust. There would be consideration as to who should reside in the unit and that this was a complex matter. -- 7 of 8 -- CONCLUSION 21. BE has had impaired capacity for some time and yet she was still signing cheques and acting as a director of a company. Section 66 of the Powers of Attorney Act 1998 requires that attorneys act honestly and with reasonable diligence to protect the principal’s interest. When an adult loses capacity that protection requires that banks be notified to ensure that cheques are not signed by an adult which may result in financial loss to them. In regard to BE being a director of the trustee company, this puts her in a position of being personally liable for company debts including such things as damages claims when she does not have the capacity to act as a director. As BE owns a unit, her being a director of the company puts that asset at risk. BW is a solicitor and the Tribunal expects that someone in his position should be aware of these issues. It is clear that the attorneys have not communicated, in particular in regard to how BE’s pension and trust allowance are spent and, although they are appointed severally, section 79 of the Powers of Attorney Act 1998 requires that they consult each other and keep each other informed. BW raised the issue of BM being a paid carer as disqualifying her from being an attorney or administrator for BE. Having regard to the definition of paid carer in the Dictionary at Schedule 3 of the Powers of Attorney Act 1998, the Tribunal is satisfied that BM is not a paid carer of BE. The payment of the allowance and the continuing of BM residing in BE’s unit though are potentially conflicting transactions which would require Tribunal approval. Whoever is financial decision maker for BM will also need to ensure that arrangements are made for the finalisation of any accommodation decision for BE and this will involve the signing of care agreement payment arrangements for care fees and the payment of any necessary bond. 22. The Tribunal is satisfied that the attorneys can not work together and that there are deficiencies in the undertaking of their duties as attorney, which warrant for at least a period of time that an administrator is appointed for BE. While BM has nominated herself as administrator, the Tribunal is concerned in regard to her actions as attorney mentioned above, and that she is in a conflict situation due to the payment to her of an allowance and her residing in BE’s unit. Whoever is administrator will also need to have the co-operation of BW, as he controls the family trust, because the financial resources of the trust are required to support BE and it is clear that BM’s relationship with BW has deteriorated. The Tribunal notes that BM indicated her support for the Public Trustee of Queensland if they dealt appropriately with the trust. There is a need for an independent professional appointee as administrator who is able to deal with the complicated issues around the trust and BE’s removal as a director of the trust. The Tribunal is satisfied that the Public Trustee of Queensland is able to fulfil that role and appoints the Public Trustee of Queensland as BE’s administrator for all financial matters. The enduring power of attorney dated 28 February 2003 is overtaken to the extent of this appointment. -- 8 of 8 --