FDJ [2010] QCAT 35

1 CITATION: FDJ [2010] QCAT 35 PARTIES: FDJ APPLICATION NUMBER: 19718 MATTER TYPE: Guardianship and administration matters HEARING DATE: 11 February 2010 HEARD AT: Brisbane DECISION OF: Mr J Allen DELIVERED ON: 11 February 2010 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed CATCHWORDS: Dismissal of proceedings, lacking in substance – section 47 Queensland Civil and Administrative Tribunal Act 2009. APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 6 -- 2 REASONS FOR DECISION HISTORY OF THE APPLICATION [1] Mrs BNJ, the daughter of Mrs FDJ made an application to the former Guardianship and Administration Tribunal which was received on 1 November 2009 in respect of the validity of an enduring power of attorney and also requesting advice, directions or recommendations. [2] The Tribunal obtained a copy of an enduring power of attorney executed by Mrs FDJ on 27 May 2009 which appointed Mrs HDK as her attorney for financial and personal/health matters. [3] The applicant did not provide any medical evidence in support of the application. The tribunal obtained reports from Mrs FDJ's treating doctors as well as from the solicitor who witnessed the most recent enduring power of attorney fro Mrs FDJ. [4] The Tribunal also sought and received the views of Mrs HDK, a daughter of and the current attorney for Mrs FDJ; Mrs RML, another daughter of Mrs FDJ and Mrs HMV, Mrs FDJ’s sister. The Tribunal also received several letters in support of Mrs HDK. [5] A letter was forwarded to Mrs BNJ by the Tribunal on 5 January 2010 providing her with copies of the enduring power of attorney, the medical evidence and the statement of the witness to the enduring power of attorney and advising her that unless she provided evidence within three weeks that Mrs FDJ lacked capacity to execute the enduring power or evidence that the actions of the current attorney are not in the best interests of Mrs HDJ the application will be submitted to the Tribunal for dismissal. -- 2 of 6 -- 3 [6] The Tribunal has not received any further material from any parties, including Mrs BNJ, in respect of the application. ISSUES AND THE LEGISLATION [7] The Tribunal may make a declaration about the capacity of an adult in accordance with section 146 of the Guardianship and Administration Act 2000 (the Act). [8] “Capacity” means in accordance with schedule 4 of the Act that 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 decision in some way. [9] Section 41 of the Powers of Attorney Act 1998 sets out the matters which an adult must understand the nature and effect of to be able to make an enduring power of attorney. [10] Mrs FDJ is presumed to have capacity for a matter, such as the making of an enduring power of attorney, in accordance with section7(a) and General Principle 1 of the Act. [11] The Tribunal replaced the Guardianship and Administration Tribunal on 1 December 2009. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal may dismiss a proceeding if the Tribunal considers the application is lacking in substance. -- 3 of 6 -- 4 EVIDENCE [12] The Tribunal file has a health professional report form Dr Krishnappa who has known Mrs FDJ since her admission to hospital. Dr Krishnappa noted that Mrs FDJ had a diagnosis of Vascular Dementia in 2004 and had a subarrachnoid haemorrhage in 1985. In regard to capacity to make an enduring power of attorney Dr Krishnappa noted that Mrs FDJ had been deemed to have been capable of making an enduring power of attorney by a psychiatrist. While Dr Krishnappa expressed the opinion that Mrs FDJ would not be able to make decisions about personal health care, lifestyle/accommodation choices and financial affairs he did not provide a contrary opinion in regard to capacity to make an enduring power of attorney. [13] The Tribunal file also includes an undated report from Dr Susy Mathew, a consultant geriatric psychiatrist. Dr Mathew states that “Mrs FDJ was assessed over a period in May/June 2009 to determine if she had capacity to decide regarding her enduring power of attorney as well as make an advanced health directive”. Dr Mathew stated that “at the time of these assessments she had the cognitive capacity to understand and appreciate the context and decisions of her choices. She gave clear reasons for her decision and has been consistent as to who she wanted to be her enduring power of attorney as well as issues regarding her end of life. In regard to this I have no doubt that she has the made the decisions during the time when she was aware of her circumstances and her cognition was not clouded as a result of a delirious o underlying dementing process.” -- 4 of 6 -- 5 [14] The tribunal also received material from the firm of solicitors who prepared the enduring power of attorney for Mrs FDJ with an attendance note and contemporaneous handwritten file note from the solicitor who witnessed the enduring power of attorney executed by Mrs FDJ on 27 May 2009. These notes show that the solicitor had a full discussion with Mrs FDJ in regard to who she wished to appoint as her attorney and detailed the questions asked by the solicitor and answers to them by Mrs FDJ in respect of the matters she was required to understand to show that she had the capacity to make the enduring power of attorney. [15] The material provided by Mrs RML and Mrs HMV detail there concerns in regard to Mrs FDJ’s capacity at the time the enduring power of attorney was made. Neither they nor the applicant provided evidence from a health professional which was contrary to the opinion of Dr Mathew, which opinion was accepted by Dr Krishnappa. [16] Mrs BNJ raised concerns in her application about the powers of an attorney to deal with the assets of the person they were acting for and also whether the attorney could deny family members access to the adult concerned. She described Mrs FDJ’s concern in regard to certain of her possessions which she thought had been stolen and how she had visited Mrs FDJ’s home and retrieved those items. [17] In her written submissions to the Tribunal Mrs HDK set out a history of her care of Mrs FDJ and provided copies of bank statements and hospital accounts. She also detailed her version of the incident involving Mrs BNJ entering premises which had belonged to Mrs FDJ but -- 5 of 6 -- 6 which were now owned by Mrs HDK and removing items. Mrs HDK indicated that these items were being stored at the house for Mrs FDJ. CONCLUSION [18] As mentioned there is a presumption of capacity and for the Tribunal to make a declaration in regard to the capacity of Mrs HDJ to make the enduring power of attorney on 27 May 2009 there is required to be evidence to rebut that presumption of capacity. [19] Mrs BNJ as applicant did not provide evidence to the Tribunal which dealt with Mrs FDJ’s capacity to execute the enduring power of attorney. [20] The evidence which the Tribunal obtained supported Mrs FDJ’s capacity to make the enduring power of attorney. [21] As there is no evidence for the Tribunal to consider rebutting the presumption of capacity the Tribunal is satisfied that the application lacks substance and will dismiss it under section 47 of the Queensland and Administrative Tribunal Act 2009. [22] In regard to the matters raised by Mrs BNJ in relation to the conduct of an attorney these are general matters and do not require specific advice or direction. Regard should be had to section 66- act honestly and with reasonable diligence; section 86 – Keep Property Separate, and General Principle 8-maintenance of existing supportive relationships of the Powers of Attorney Act 1998. -- 6 of 6 --