CK [2010] QCAT 336

CITATION: CK [2010] QCAT 336 PARTIES: CK APPLICATION NUMBER: G20465 MATTER TYPE: Guardianship and administration matters HEARING DATE: 20 May 2010 HEARD AT: Brisbane DECISION OF: Ms B Bayne Mr L Clarkson DELIVERED ON: 20 May 2010 DELIVERED AT: Brisbane ORDERS MADE: Enduring power of attorney revoked. Guardian and administrator appointed. CATCHWORDS : Suspension of attorneys, applications for leave to appear and an adjournment refused, suitability of attorneys, Guardian and administrator appointed APPEARANCES: CP son Mrs CP daughter CS son-in-law FG Trust Company DG Trust Company CS Adult Guardian CT Adult Guardian BM Public Trustee of Queensland -- 1 of 9 -- ` 2 REASONS FOR DECISION Background [1]. CK is 93 years of age. [2]. CK has two adult children, CP and Mrs CP. In 2007 CP moved into his father’s home and became his carer; an organisation was delivering some services. [3]. On 15 January 2007 CK made an Enduring Power of Attorney (EPA) appointing his son CP as attorney for personal and health matters and CP and Permanent Trustee Company Limited (now Trust Company Limited) as attorneys for financial matters. The power of the attorneys was to start “When I specially instruct my attorney to act or when in the opinion of a medical practitioner I am deemed to be incapable of managing my affairs”. The attorneys were to act jointly (unanimously). [4]. On 2 July 2009 CK was admitted to the Greenslopes Private Hospital following a fall at home. He remained there until April 2100 when he was moved into full time care at a Nursing Centre. [5]. On 17 March 2010 the Adult Guardian suspended the authority of CP to act as financial and personal attorney for CK for three months, and that of Trust Company Limited to act as financial attorney for the same period. [6]. On 21 April 2010, the Queensland Civil and Administrative Tribunal (the Tribunal) received an application from the Adult Guardian proposing the appointment of the Adult Guardian as guardian and The Public Trustee of Queensland (PTQ) as administrator for CK. [7]. A hearing of the applications was held in Brisbane on 20 May 2010. Preliminary Matters [8]. When CP arrived at the hearing, he advised that he wished to be represented but that his solicitor could not be present that morning. He therefore wished the hearing be adjourned. [9]. The Tribunal considered both applications. Leave to be represented [10]. The provisions for representation are provided in the Queensland Civil and Administrative Tribunal Act 2009. s.43(1) states The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. -- 2 of 9 -- ` 3 [11]. In consideration of s.43(3), the Tribunal determined that there were no circumstances to support the giving of the leave in this instance in that (a) The proceeding did not involve complex questions of fact or law; (b) No other party was represented in the proceeding; (d) The other parties had not agreed to the party being represented. [12]. The application by CP to be represented was therefore dismissed. Adjournment [13]. CP had informed that the reason for application for an adjournment was so that he could be represented. [14]. Given the Tribunal was not satisfied that there were any grounds for representation, it therefore considered that there was no valid reason to adjourn the proceedings. [15]. The application by CP to adjourn the hearing was accordingly dismissed. The Issues [16]. The applications for guardianship and administration appointments require the Tribunal to have regard to applicable legislation, including s.12 (1) of the Guardianship and Administration Act 2000. This provision requires the Tribunal to consider the following issues: (a) Does CK have impaired capacity for relevant matters (relevant matters in this case involving decisions about personal and financial matters)? (b) If so, is the Enduring Power of Attorney operating in CK’s best interests? (c) If not, is there a need for relevant decisions to be made to the extent that, without the appointment of a guardian and or an administrator, CK’s needs will not be adequately met or his interests will not be adequately protected? (d) If so, who is appropriate for appointment as CK’s guardian and or administrator? Does CK have impaired capacity for relevant matters? [17]. From May 2009, various medical reports produced to the Tribunal indicated concerns by the health professionals about CK’s cognitive functioning. These reports included: -- 3 of 9 -- ` 4 (a) 25 August 2009 ACAT Comprehensive Assessment: reference to dementia, and “short term memory problems (always), disorientation- time (regularly), at risk behaviour, confusion, disorientation-place (occasionally), MMSE 21/30 and approval given for permanent high level residential care. (b) 28 August 2009 Report of AL (Social Worker) and Dr HP: reference to age-related cognitive impairment with impaired ability and lack of insight in relation to decisions about personal & financial matters, MMSE 21.5/30 (c) 07 September 2009 Letter, SC, Clinical Neuropsychologist: “History of confusion and agitation… moderate cognitive impairment generally, with signs of significant fronto-temporal” … “does not have the cognitive capacity to make competent lifestyle, health, and financial decisions”, MMSE 18/30 (d) 19 October 2009 Health Assessment of Dr WA (GP of 11 years): reference to dementia (2 July 2009) and opinion that “ability impaired for most activities of daily living, including managing finances”, MMSE 18/30 (e) 17 March 2010 Report of Dr WA, who saw CK in February 2010: response to questions was that he “didn’t know”…, considers “would not have the capacity to make other than simple decisions”. Dr WA also recorded, that in his opinion, CK is influenced by CP. [18]. The written and oral evidence of Mrs CP indicated that she believed CK was unable to make his own personal and financial decisions, and been so for some time. CS was of a similar view. [19]. CP told the Tribunal that he considered that CK had the capacity to make his own decisions. He stated that he was able to communicate effectively with CK and understand his wishes, and, although he did acknowledge some short term memory loss in his father, remained convinced that CK did not have impaired capacity. [20]. The Tribunal carefully examined all the evidence before it. [21]. The Tribunal considered that the medical and health professional reports were consistent in their conclusions that CK had been experiencing memory loss, poor information processing, confusion and lack of insight. [22]. With the exception of the opinion of CP, the Tribunal considered that the weight of evidence clearly supported a finding that CK’s ongoing cognitive impairments significantly impaired his ability to understand the complexity of his personal and financial matters and to make informed decisions in that regard. -- 4 of 9 -- ` 5 [22]. The Tribunal was satisfied in the circumstances that the presumption of capacity for personal and financial matters to which CK was entitled was rebutted in this case, and found accordingly. Is the EPA for personal matters operating in CK’s best interests? [23]. The fact that there is an attorney 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 attorney should continue in that role, whether his appointment should be revoked under s.116 or s.117 of the Powers of Attorney Act 1998 or be made subject to the appointment of a guardian under s.22 of the Guardianship and Administration Act 2000. [24]. Several concerns were raised in regards to the appropriateness of CP as attorney for personal and health matters: (a) CK had remained in the Greenslopes Private Hospital for several months after he was medically fit for discharge. The Adult Guardian, acting as guardian under the Suspension Order, eventually provided approval in April 2010 for CK to be moved into the Nursing Centre. (b) CP had been convinced for some time (and still was) that, with support, CK would be able to (and should) live at home. CP had not taken the advice given by the medical professionals attending CK, was aggressive to the staff, inflexible in his attitude and presented as ill-informed about CK’s future care needs (c) CP was unrealistic about his father’s ability to respond to physiotherapy, and had had great difficulty in accepting that CK was not a suitable candidate for rehabilitation (d) CP had had some unusual ideas about CK’s diet and weight loss (e) Whilst CK had been living at home with CP, it had been very difficult for Mrs CP to maintain an ongoing supportive relationship with her father due to her “considerable discord” with her brother. CP had told the service provider that he did not want his sister involved with their father. [25]. The suspension by the Adult Guardian on 17 March 2010 was made on the grounds that the attorney was not competent and had breached the Powers of Attorney Act 1998 in that he had not complied with the General Principles and the Health Care Principles. [26]. The Tribunal noted the considerable level of conflict, distrust and lack of communication between CK’s children with regards to their diverse and strongly held convictions as what arrangements might best suit their father. -- 5 of 9 -- ` 6 [27]. The Tribunal therefore determined that CP was not exercising his power to make decisions about personal matters for his father in the latter’s best interests or in accordance with provisions of the Powers of Attorney Act 1998. Consideration of the appointment of a guardian [28]. The Tribunal will only appoint a guardian when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met. [29]. There was general consensus from all parties on the following matters: (a) CK had a range of complex and ongoing personal and health issues which need to be proactively managed; (b) In differing ways, his children were important to him; and (c) There was significant conflict within his family. [30]. The Tribunal noted that CP wished to continue as personal attorney and that Mrs CP and the Adult Guardian supported the appointment of the Adult Guardian. [31] It is not the fact of family conflict which of itself militates away from the appointment of a family member as a decision maker. It is more to the point that a family member in conflict with others is unlikely to be able to comply with the general principles (outlined in Schedule 1), including, for example, giving other family members the opportunity for meaningful input into decisions which need to be made for their father. [31]. The Tribunal considered that the Adult Guardian would be an independent professional decision maker with extensive skills and experience, able to assess the relative merits of options for various personal issues for CK including accommodation, service, contact and health matters. The Adult Guardian would also ensure that all family members were consulted and had input, before decisions were made which best meet CK’s needs and properly protect his interests in the future. Is the EPA for financial matters operating in CK’s best interests? [32]. CP informed the Tribunal that he had not acted as attorney under the EPA dated 15 January 2007. [33]. The Tribunal noted that, with regards to CK’s capacity, a number of health professional reports had been written and that CP had had several -- 6 of 9 -- ` 7 conversations with nursing staff at the Greenslopes Private Hospital throughout 2009. [34]. The Tribunal concluded that, at least by September 2009, CP was aware, or ought to have been aware, that CK’s treating doctors considered him to be incapable of managing his affairs and that the EPA was operable. [35]. Evidence supports that at about 10.00pm on 12 October 2009 CP, with a bank representative, had visited his father in hospital and had taken approximately two hours to persuade an “extremely confused and very reluctant” CK to sign a mortgage agreement for $540,000. The security offered was CK’s home; it was noted that this property represents the bulk of CK’s estate. [36]. The Tribunal was informed that a clinical nurse present at the time had informed CP that CK did not “have the legal capacity to sign any legal forms”. CP told the nurse, and was overheard telling his father, that “the loan was for nursing equipment such as hoists and for money to pay (CP) to stay home and look after (CK)”. [37]. The Tribunal noted s.87 of the Powers of Attorney Act 1998 which provides: ˙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. [38]. On 4 February 2010 a Deed of Acknowledgment of Debt for $540,000 (with a term of three years and an interest rate of 15% per annum) was executed between CP and CK as the lenders and Capital Growth International Club Pty Ltd as the borrower. CP told the Tribunal these loan funds emanated from the amount borrowed from the Westpac bank using his father’s home as security and that he (CP) had not contributed any of his own funds in the loan to Capital Growth International Club Pty Ltd. When questioned about the comparatively high return from the investment, CP indicated that this was partly due to the borrower’s altruistic attitude. [39]. The PTQ, as administrator under the suspended power, advised that no explanation had been as yet forthcoming from either the Westpac Mortgage Centre or Capital Growth. [40]. FG advised that the Trust Company Limited had not acted as attorney under the EPA dated 15 January 2007. He said that the Trust Company -- 7 of 9 -- ` 8 Limited had no knowledge of CK’s current circumstances, confirming however that it had not made any periodical inquiry as to CK’s capacity and had not known if and when its attorneyship became operative. [41]. He also informed that the Trust Company Limited had had difficulty with the suspension of its powers by the Adult Guardian, considering that it was not at fault. [42]. FG advised the Tribunal that his company supported the appointment of The Public Trustee of Queensland as CK’s administrator. [43]. The Tribunal found that: (a) The EPA had been clearly operable since August/September 2009 (b) The attorneys, advertently or by design, had not taken up their roles (c) CP should have activated power and advised the joint attorney accordingly. [44]. The Tribunal was further persuaded that: (a) CP had breached his duties under s76 of the Powers of Attorney Act 1998 in that he had failed to take into account information given by CK’s health providers (b) The presumption of undue influence under s87 of the Powers of Attorney Act 1998 had not been rebutted in the case of CP. [45]. The Tribunal found on the evidence that CP had not sought to activate the EPA in circumstances where it was appropriate for him to do so. He had not communicated this fact to the joint attorney. CP influenced his father to mortgage the bulk of his assets and use the proceeds to invest in a joint arrangement with himself. Further, the investment of funds appears to have involved little preliminary investigation, and CP’s explanation of the apparently high return was considered to be naïve. [46]. In the circumstances, the Tribunal concluded that the attorneys should not be permitted to commence acting as such for CK, and that the attorneys’ appointment should be revoked. Consideration of the appointment of an administrator [47]. 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. -- 8 of 9 -- ` 9 [48]. It was clear that CK had assets, liabilities, income and expenses which need managing. In addition, several other financial matters needed investigating, including: (a) Past financial dealings (b) The future of the house property (c) CP’s arrangements for costs including rent whilst living in the house. [49]. CP denied any impropriety on his behalf and advocated his continuation as attorney for his father. [50]. Trust Company Limited recognised the potential conflict if CP were to continue as attorney. Trust Company Limited strongly supported the appointment of the PTQ as administrator. [51]. Mrs CP, the Adult Guardian and the PTQ supported the appointment of the PTQ. [52]. The Tribunal considered that the appointment of an independent decision maker is appropriate. That was because in this case it was likely that the past actions (or inactions) of the attorneys and others were likely be an essential part of the administrator’s duties. The PTQ is a professional decision maker with extensive skills and experience, best able to make decisions to meet CK’s needs and properly protect his interests in the future. [53]. Orders were made accordingly. -- 9 of 9 --