ER [2010] QCAT 688 Julia Casey, Presiding Member, Michael McCarthy, Member, Aaron Suthers, Member

CITATION: ER [2010] QCAT 688 PARTIES: ER APPLICATION NUMBERS: GAA2038-10; GAA2039-10 MATTER TYPE: Guardianship and administration matters HEARING DATE: 28 April 2010 HEARD AT: Bundaberg DECISION OF: Julia Casey, Presiding Member Michael McCarthy, Member Aaron Suthers, Member DELIVERED ON: 28 April 2010 DELIVERED AT: Bundaberg ORDERS MADE: No guardian appointed; Administrator appointed; Enduring power of attorney and revocation declared invalid; Enduring power of attorney revoked CATCHWORDS : Capacity of adult, Validity of enduring power of attorney, Appropriateness of attorney under enduring power of attorney, Need for guardian and administrator, Appropriateness of appointees Powers of Attorney Act 1998 Guardianship and Administration Act 2000 APPEARANCES and REPRESENTATION (if any): The following parties attended the hearing: RE adult MN friend and attorney of adult MJ friend and attorney of adult DC step-daughter of adult DD husband of DC CB grandson of adult RR representative of The Public Trustee of Queensland GN delegate of the Office of The Adult Guardian (by telephone) -- 1 of 9 -- GAA2038-10 and GAA2039-10 / Page 2 of 9 REASONS FOR DECISION History of the Application [1] ER (the adult) is an 88 year old gentleman who lives in Bundaberg . [2] On 5 December 2002 he appointed his step-daughter, DC, as his attorney for personal/health and financial matters, with the power for financial matters to begin immediately. [3] On 17 November 2009 the adult revoked the enduring power of attorney. [4] Until recently the adult had been living independently in his property at Norville. He had shared this property with his wife of many years, ED, until her passing in 2007. [5] ER signed a contract of sale on the Norville property on 19 February 2010 for $255,000. [6] On 10 March 2010 he commenced residing with his friends, MN and MJ, at their daughter’s home in Bundaberg. [7] On 12 March 2010 the Tribunal received an application by DC seeking the appointment of the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for the adult. [8] On 16 March 2010 the adult appointed MN and MJ jointly as attorneys for financial and personal/health matters. The document provides that the power of the attorneys for financial matters was to begin with the “loss of (the principal’s) capacity”. The attorneys’ acceptances were completed and signed on 17 March 2010. [9] The Tribunal made an interim order on 19 March 2010 appointing The Public Trustee of Queensland as plenary administrator for the adult and the Adult Guardian as guardian for matters pertaining to accommodation and provision of services. Any purported enduring power of attorney agreement was overtaken by the making of these appointments. The orders were to remain current for three months, if the Tribunal had not made a further order within that time. [10] Settlement of the adult’s property took place on 22 March 2010. The issues and legislation [11] The issues for the Tribunal are: a) Does ER have capacity for personal and financial matters? b) Did ER have capacity to execute the enduring power of attorney agreement of 17 March 2010 and to revoke the enduring power of attorney agreement of 5 December 2002 on 17 November 2009? c) Is the enduring power of attorney agreement of 5 December 2002 meeting the adult’s needs and protecting his interests? -- 2 of 9 -- GAA2038-10 and GAA2039-10 / Page 3 of 9 d) Is there a need for a guardian? If so, who should be appointed? e) Is there a need for an administrator? If so, who should be appointed? [12] The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider the applications for the appointment of a guardian and administrator for the adult. [13] ER is presumed to have capacity in accordance with section 7 of the Guardianship and Administration Act 2000 and general principle 1 of schedule 1 under the Guardianship and Administration Act 2000. The Tribunal will consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult. [14] The Guardianship and Administration Act 2000 defines capacity as follows: “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”. [15] The Tribunal has the same jurisdiction as the Supreme Court of Queensland in respect of enduring powers of attorney in accordance with section 109A of the Powers of Attorney Act 1998. Sections 116 and 117 of the Powers of Attorney Act 1998 apply to the Tribunal’s jurisdiction and powers with regard to changing, revoking, or overtaking an enduring power of attorney. The Tribunal may make a declaration about the validity of an enduring power of attorney in accordance with section 113 of the Powers of Attorney Act 1998. [16] Section 41 of the Powers of Attorney Act 1998 sets out the capacity requirements of the Principal in order to make an enduring power of attorney. [17] Section 44 of the Powers of Attorney Act 1998 provides the formal requirements for making an enduring power of attorney. [18] Section 76 of the Powers of Attorney Act 1998 requires that an attorney when exercising powers under an enduring document must comply with the principles set out in schedule 1 to the Powers of Attorney Act 1998 being the general principles, and for a health care matter, the health care principle. [19] The Tribunal, when considering the appointment of a guardian or administrator, must be satisfied not only in regard to capacity, but also of the other matters set out in section 12 of the Guardianship and Administration Act 2000. [20] If the Tribunal determines that there is a need for the appointment of a guardian and or administrator for ER, the Tribunal in deciding who to appoint in those roles, will, in accordance with subsection 14(1)(c) of the Guardianship and Administration Act 2000, have regard to the appropriateness considerations set out in section 15 of the Guardianship and Administration Act 2000. The evidence -- 3 of 9 -- GAA2038-10 and GAA2039-10 / Page 4 of 9 [21] In addition to written material contained on the Tribunal’s 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. Does ER have capacity for personal and financial matters? [22] The Tribunal relied on report dated 17 March 2010 by Dr Peter Forster, a general practitioner, wherein Dr Forster states that the adult has “suffered chronic anxiety and had a severe grief reaction to the death of his wife in September 2007” and that the adult “has been vulnerable to exploitation”. Dr Forster further provided that “chronic anxiety and loneliness since the death of his wife have left him open to exploitation by others and I suspect he is being influenced by others to make decisions”. In the report Dr Forster opines that while the adult is able to make simple and complex decisions pertaining to health care matters, he is not able to make complex decisions about his lifestyle/accommodation and financial matters. [23] In his evidence to the Tribunal ER stated that he had been lonely since the death of his wife. He stated that DC had refused his request for her to move from her home in Wynnum to live with him in Bundaberg, and that his sister, DP, had also refused his request to live with her in her home in Sydney. He submitted that he had met MN and MJ and they were “decent people”. He provided the opinion that appointing MN and MJ as his attorneys was the “proper thing to do” and the document empowered them to look after him, assist him, keep him company and make decisions about his property after his death. [24] ER stated to the Tribunal that he was “capable of making all personal decisions regarding finances and property”. While he communicated to the Tribunal that his attorneys could “control everything”, with no limit if he were unable to make his own decisions ER was unable to explain the consequences, under the terms of the document, in the event that MN and MJ could not work together as attorneys to make decisions in his best interests. [25] ER stated that it was his intention for the proceeds of the sale of his property to be deposited into the bank account of MN and MJ. His solicitor declined to do so. The adult was planning to use funds from the sale of his property to purchase a house with MN and MJ in order for the three of them to continue to live together permanently. ER stated that he did not want his interest in the property to be recorded on the title as he did not want DC to be able to make a claim on his estate. ER was unable to explain to the Tribunal the consequences to himself or his financial situation if MN’s and MJ’s circumstances were to change and they were unable to continue to reside with him in the property. He could not explain to the Tribunal, if such a scenario were to occur, how he would be able to access funds to pay for any alternative accommodation he may require, including placement in a residential aged care facility. He told the Tribunal that he would be residing with MN and MJ for the rest of his life because they had indicated this would be the case. [26] MN and MJ provided the opinion that the adult is able to make all personal and financial decisions and that they have not begun to act as attorneys for the adult. -- 4 of 9 -- GAA2038-10 and GAA2039-10 / Page 5 of 9 [27] MN submitted that the adult was indeed willing to purchase a property with himself and MJ so they could continue to live together. The adult was to pay 75% of the purchase price of the property and MN and MJ would contribute the remaining 25%. MN confirmed that no safeguards would be in place to protect the adult’s contribution because that is the way the adult wanted it to be. He provided that after consultation with Centrelink it would be best not to have the property in the adult’s name as this would negatively impact upon the amount of aged pension the adult would receive. Conclusion [28] Recent medical evidence indicates that ER has chronic anxiety and has suffered a severe grief reaction following the death of his wife and that he is vulnerable to financial exploitation. [29] ER made decisions about disposal of proceeds of his house without fully considering or understanding the effect on his financial position and future care needs if he were to allocate all of the proceeds of the sale of Norville property into another property without any legal interest himself. [30] The adult’s financial and lifestyle/accommodation decisions have been formulated within the context of shielding himself from loneliness and aligning himself with those who would agree to care for him or who would allow him to live with them. [31] Having regard to the medical and oral evidence the Tribunal is satisfied that ER has impaired capacity for financial matters and complex lifestyle/ accommodation matters. Consequently, the Tribunal rebuts the presumption of capacity for these matters. Did ER have capacity to execute the enduring power of attorney agreement of 17 March 2010 and to revoke the enduring power of attorney agreement of 5 December 2002 on 17 November 2009? [32] Both the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 (Schedule 1 s 1) echo the general law that an adult is presumed to have capacity for a matter. [33] Like any presumption it can be rebutted by satisfactory evidence. [34] The Tribunal had the benefit of correspondence from Dr Peter Forster, the adult’s long-standing general practitioner, in the form of a letter dated 9 April 2009, to the Public Trustee of Queensland. In the letter Dr Forster provides his opinion that ER was “not acting rationally since the death of his wife in Sept 2007” and that the adult was “very vulnerable to financial exploitations and should be protected from such behaviour”. Dr Forster stated that he did not believe that the adult had “appropriate capacity to make a will or to make major, life or financial decisions” and that “he may be actually assisted by having his financial affairs managed the by the Public Trustee”. [35] More recent evidence before the Tribunal includes a report dated 17 March 2010 by Dr Peter Forster, based on his observations of the adult, with the most recent observation occurring on 15 March 2010, the day before ER signed the -- 5 of 9 -- GAA2038-10 and GAA2039-10 / Page 6 of 9 enduring power of attorney document appointing MN and MJ as his attorneys. In the report Dr Forster provides the opinion that ER was vulnerable to financial exploitation and was unable to make financial decisions and complex lifestyle/accommodation decisions due to chronic anxiety and a severe grief reaction to the death of his wife. The report also provides historical information that Dr Forster had referred ER to Dr Scott Jenkins, a psychiatrist, acting upon his concern about the adult’s vulnerability, and in response to the adult’s lawyer seeking an assessment of the adult’s capacity. [36] In a letter from Dr Scott Jenkins, psychiatrist, dated 27 October 2009, to Finemore, Walter and Story Solicitors, Dr Jenkins states that the adult “apparently had a difficult period of intense grief in 2007 and 2008,” following the death of his wife of 52 years, and that this grief had “gradually resolved”. In the letter Dr Jenkins states that “there is no evidence whatsoever that this gentleman is currently suffering from a psychiatric disorder” or “from impairment of cognitive function”. “He understands the function of both wills and of power of attorney and he also understands the consequences involved if his wishes regarding these are changed. He continues to live independently and was able to explain in detail his preferences”. The report provides that Dr Jenkins based his opinion on a single consultation with the adult that took place on 19 October 2009. [37] The Tribunal places considerable weight on the fact that Dr Forster had been the adult’s treating medical practitioner for a number of years over which time he had witnessed a decline in the adult’s cognition to such an extent that he wrote to the Public Trustee of Queensland expressing his concern over the adult’s vulnerability to financial exploitation. [38] To the extent that Dr Forster’s evidence conflicts with Dr Jenkins’ opinion, the Tribunal prefers the consistent medical evidence of Dr Peter Forster based on his observations, assessment and treatment of the adult over an extended period of time. Conclusion [39] Within the meaning of section 41 of the Powers of Attorney Act 1998, the Tribunal is not satisfied that ER was able to understand the nature and effect of the enduring power of attorney agreement dated 17 March 2010 and the revocation of the enduring power of attorney agreement dated 5 December 2002 as he had cognitive deficits stemming from experiencing chronic anxiety and a severe grief reaction to the death of his wife. [40] Furthermore, the Tribunal is not satisfied that that ER entered into the two agreements freely and voluntarily as his cognitive deficits rendered him vulnerable to financial exploitation. [41] On the balance of the evidence presented to it, the Tribunal declares the enduring power of attorney agreement of 17 March 2010 and the revocation of the enduring power of attorney agreement dated 5 December 2002, that took place on 17 November 2009, invalid pursuant to section 113(2) of the Powers of Attorney Act 1998 and section 84(2) of the Guardianship and Administration Act 2000. -- 6 of 9 -- GAA2038-10 and GAA2039-10 / Page 7 of 9 Is the enduring power of attorney agreement of 5 December 2002 meeting the adult’s needs and protecting his interests? [42] When considering the appointment of a guardian or an administrator, the Tribunal must be satisfied as to the need for appointment as set out in section 12 of the Guardianship and Administration Act 2000. [43] The fact that there may be an attorney for personal/health and financial matters appointed under the enduring power of attorney agreement of 5 December 2002 is especially relevant in determining whether the adult’s needs will be met without an appointment of a guardian or an administrator. The Tribunal must consider whether the appointed attorney should continue in that role or whether the appointment should be revoked under section 116 of the Powers of Attorney Act 1998, or be made subject to the appointment of a guardian or administrator under section 22 of the Guardianship and Administration Act 2000. [44] The Tribunal heard evidence that ER and DC have experienced conflict about decision making pertaining to the adult to the point where there is minimal effective communication between them, rendering their relationship significantly fractured. Conclusion [45] As there is insufficient communication between the attorney and the adult due to a fractured relationship the Tribunal is not satisfied DC would be able to fulfill the requirements of section 76 of the Powers of Attorney Act 1998 with regard to applying the general principles and the health care principle in order to make personal and financial decisions on ER’s behalf and in his best interests. Consequently, the Tribunal determines the agreement to be unworkable. [46] The decision of the Tribunal is therefore to revoke the enduring power of attorney, dated 5 December 2002 under section 116 of the Powers of Attorney Act 1998, and to consider whether ER might require the appointment of a guardian and administrator. Is there a need for the appointment of a guardian? [47] At the time of the application the adult was residing with MN and MJ. [48] The Adult Guardian has not made any decisions for the adult under the interim order of the Tribunal as the guardian determined, after consultation with the adult, DC and MN, that the adult was happy to continue to reside with MN and MJ and that he did not require any formal provision of services under the current arrangements. The delegate submitted that there was currently no need for the appointment of a guardian to make decisions about accommodation and provision of services. [49] In their evidence to the Tribunal MN and MJ have confirmed they will support the adult regardless of the outcome of the hearing. [50] While ER has been diagnosed with prostate cancer he visits the doctor regularly and takes prescribed medication independently. The condition is not impacting on his care needs at the present time. -- 7 of 9 -- GAA2038-10 and GAA2039-10 / Page 8 of 9 [51] The Tribunal is satisfied that the adult’s accommodation is stable and he is receiving adequate support in his daily living requirements at the current location under the present arrangements. Conclusion [52] Pursuant to section 12 of the Guardianship and Administration Act 2000 the Tribunal is satisfied that there is no need for decisions pertaining to accommodation and service provision matters, and that without an appointment with adult’s needs will be adequately met and his interests will be adequately protected. [53] The Tribunal therefore dismisses the application for the appointment of a guardian for ER. Is there a need for the appointment of an administrator? [54] The representative of The Public Trustee of Queensland provided a brief summary of the adult’s financial affairs since the interim order of 19 March 2010. [55] The representative advised the Tribunal that the valuation of the Norville property was determined to be appropriate by the administrator who permitted settlement of the property to occur on 22 March 2010, three days after the interim order, and under the terms of the contract of sale. [56] The representative stated that the adult’s assets include $246,000 being the net proceeds from the sale of the Norville property and $6,923 in a common fund. The representative further advised that the adult has access to $20,000 in a National Australia Bank account. [57] The adult’s fortnightly Centrelink pension is $169. The pension amount was reduced from $765 per fortnight when the adult commenced receiving interest from the invested proceeds of the sale of the Norville property. [58] The adult is not presently required to contribute to food or rental costs at his current accommodation. [59] There are no liabilities. Conclusion [60] The evidence is that the adult has assets, income and expenses that require management to ensure that his needs are met and that funds are available for future care needs. [61] The Tribunal is satisfied that there is a need for the appointment of an administrator with regard to the provisions of section 12 of the Guardianship and Administration Act 2000. Who should be appointed as administrator? [62] The application before the Tribunal proposed The Public Trustee of Queensland as an independent and experienced administrator who would be able to act in the adult’s best interests. -- 8 of 9 -- GAA2038-10 and GAA2039-10 / Page 9 of 9 [63] Family and friends of the adult were not seeking appointment. [64] The proposed appointment of The Public Trustee of Queensland is supported by members of the adult’s family. [65] Under an interim appointment The Public Trustee of Queensland has been active in investing the net proceeds of the sale of the adult’s property along with identifying Centrelink benefits to which the adult is entitled. [66] The Tribunal is satisfied that the appointment of The Public Trustee of Queensland is appropriate to ensure that the adult’s financial needs are met and his financial interests are protected. Conclusion [67] The Tribunal is satisfied that The Public Trustee of Queensland is an independent and experienced administrator who is an appropriate appointee with regard to the provisions of section 15 of the Guardianship and Administration Act 2000. [68] The Tribunal appoints The Public Trustee of Queensland as administrator for ER, for all financial matters, until further order of the tribunal. -- 9 of 9 --