BBE [2014] QCAT 80

CITATION: BBE [2014] QCAT 080 PARTIES: BBE APPLICATION NUMBER: GAA9421-13; GAA9422-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 23 January 2014 HEARD AT: Brisbane DECISION OF: Professor Ashman, Member DELIVERED ON: 25 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The following Enduring Power of Attorney for BBE is revoked pursuant to S 116(d) of the Powers of Attorney Act 1998: a. The Enduring Power of Attorney dated 3 July 2006 appointing BEK and JCD (now deceased) as attorneys for financial, personal and health matters. 2. The Adult Guardian is appointed as guardian for BBE for decisions about the following personal matters: a. Accommodation b. With whom BBE has contact and/or visits c. Health care d. Provision of services 3. Unless the Tribunal orders otherwise, this appointment remains current for three (3) years. 4. The Public Trustee of Queensland is appointed as administrator for BBE for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. The appointment of the Public Trustee of -- 1 of 11 -- 2 Queensland remains current until further order of the Tribunal. CATCHWORDS: Appointment of a guardian and administrator when an enduring power of attorney exists - when the enduring power of attorney has been suspended by the Adult Guardian - where there is conflict among members of the adult’s family - where the enduring power of attorney is revoked Guardianship and Administration Act 2000 (Qld) Powers of Attorney Act 1998 (Qld) s 76 APPEARANCES and REPRESENTATION: JS, daughter Three friends BK, daughter Solicitor representing BK Barrister representing BK Two representatives of Home Care Select Two representative of the Adult Guardian Representative of the Public Trustee of Queensland REASONS FOR DECISION [1] BBE is 97 years old and resides in an aged care facility. Her period of residence has not been an altogether happy one. There have been instances when she has been aggressive to other residents and late in 2012 she fell and was subsequently admitted to St Andrew’s Hospital where it was discovered that she had pelvic and sacral fractures. These were treated and she returned to the facility on 20 December 2012. [2] BBE had previously appointed one of her daughters, BK, and another as her attorneys for personal and financial matters under an enduring power of attorney1. Following BBE’s return from St Andrew’s Hospital in December 2012 and with the cooperation of the facility staff, BK engaged a private caring agency, Home Care Select, at her own expense to provide 24-hour attendance and support for BBE in the facility. Home Care Select developed a care program that appears to require the monitoring of most, if not all, of BBE’s activities, including details of visitors and conversations between BBE and others. Details of BBE’s life were reported to BK on a regular, often daily, basis. [3] In March 2013, the Adult Guardian received a referral containing allegations concerning contact restrictions imposed by BK and the inappropriateness of the individual caring arrangement in place for BBE. The latter allegations related to restricting BBE’s access to social activities and contact with family members. Furthermore, it was alleged that BK 1 On 3 July 2006, her daughter and another (now deceased). -- 2 of 11 -- 3 breached sections 66 and 86 of the Powers of Attorney Act 1998 (Qld) in regard to the management of BBE’s assets and finances. [4] An investigation was undertaken and report prepared although no action was taken by the Adult Guardian in regard to the findings at the time. [5] Another daughter, JS, lodged an application with the Tribunal on 22 October 2013 seeking her appointment as guardian and administrator. In that application, she notes that conflict exists between decision-makers or family members and that her mother is subject to continual confinement by the independent 24/7 carers who attend her mother. [6] The matter was set down for a hearing of the Tribunal on 16 December 2013. As a large volume of material lodged with the Tribunal had not been made available to all parties attending the hearing, the presiding member took submissions and subsequently adjourned the hearing to ensure that all had sufficient time to read and, should they wish, provide any response. [7] On the day following the adjournment, the Adult Guardian suspended BK’s powers as her mother’s attorney and the Adult Guardian and the Public Trustee of Queensland assumed the roles of decision-maker for personal matters and financial matters respectively. Shortly thereafter, the Adult Guardian terminated the independent 24-hour care service. [8] The Tribunal has no capability to influence the relationships among family members. The Tribunal’s roles and responsibilities are set out in the Guardianship and Administration Act 2000 (Qld). Along with the Powers of Attorney Act 1998 (Qld), the Guardianship Act seeks to provide a comprehensive scheme to ensure the exercise of power for financial and personal matters by, or for, an adult who needs — or may need — another person to exercise such powers. If a scheme is in place, such as an enduring power of attorney, and the Tribunal is satisfied that the scheme is functioning effectively and in accordance with General Principles set out in Schedule 1 of those Acts, the Tribunal will not contemplate changing that scheme. If, however, the Tribunal is not satisfied that the scheme is functioning effectively and in accordance with General Principles, it is obliged to consider alternatives. [9] Therefore, the Tribunal first turned its attention to the manner in which the Enduring Power of Attorney has been applied. Is BBE’s attorney acting in accordance with the requirement of the Powers of Attorney Act 1998? [10] Section 76 of the Powers of Attorney Act states that the attorney must comply with the principles set out in schedule 1 of that Act. [11] The Adult Guardian’s report addresses allegations that the attorney has breached ss 66 and 76 of that Act by restricting BBE’s contact with family and residents within the facility in which she resides along with her -- 3 of 11 -- 4 participation in regular activities. Furthermore, there are allegations that the attorney breached ss 66 and 86 by failing to manage BBE’s assets and finances appropriately by providing services additional to those of the aged care facility, and failing to receive an appropriate return on her independent living unit. [12] In brief, the Adult Guardian found that the attorney breached s 76 of the Powers of Attorney Act 1998 (Qld) by failing to comply with the General Principles. In particular, these breaches refer to BBE’s right to respect for her human worth and dignity, the encouragement of self-reliance, consideration for BBE’s circumstances, and the right to have information about her life and circumstance remain confidential. As for financial matters, the Adult Guardian did not find that the attorney has acted dishonestly. [13] The Tribunal has examined every document provided by all stakeholders. The volume of those materials precludes detailed commentary on each submission and only details pertinent to the decisions will be reported here. [14] The primary personal matter of concern relates to the effects of the attorney’s engagement of Home Care Select. [15] BK stated in written and oral submissions that the engagement of Home Care Select was undertaken specifically to ensure that her mother received the proper care that she required. A care plan was prepared by Home Care Select to ensure that her mother would have a carer with her 24 hours a day, she would not experience another fall, her health care needs would be monitored, and her emotional, physical, and spiritual well- being facilitated. BK stated that here was no intention to limit her mother’s contact with visitors or other residents although a carer would remain with BBE during any visits. [16] BK did, however, seek information about who visited BBE to monitor her mother’s agitation due to those visits. BK said that she has never enquired about conversations between her mother and visitors and did not seek a report on all data collected by Home Care Select, saying that such records were maintained by Home Care Select to ensure that the best care possible was delivered. BK appears to have no concerns about the way in which Home Care Select acted, the intrusiveness of its practices, or the length of time BBE spent in her room, stating that the latter was generally her mother’s wish. [17] Several of BK’s statements in regard to overseeing Home Care Select’s services are inconsistent with those provided by others, including the facility’s Residential Manager. In a written submission to the Tribunal the Residential Manager drew attention to discrepancies between the accounts of the care provided by Home Care Select and progress notes kept by the facility. She reports BK’s unhappiness about a visit by JS and that BK believed that she had the right to restrict contact between her mother and others. -- 4 of 11 -- 5 [18] Of particular concern to the facility has been BK’s aggression and intimidation directed toward staff members, which has persisted since BBE entered the facility. While such behaviour is likely to perturb any administrator, of greater importance was BK’s reluctance to consider care recommendations made by facility staff and her treating doctor, particularly in regard to limitations apparently imposed on BBE’s activities and routines. BK asserts her concern about her mother’s safety and well- being, and the Tribunal acknowledged this. Nevertheless, there are many comments in various submissions that refer to the limited opportunities that BBE had to mix with other residents or attend outings organised by the facility. These limitations appear to have been a consequence of the continual presence of Home Care Select carers. [19] A document provided by a principal of Home Care Select stands in stark contrast to comments made in the Adult Guardian’s investigation report. The principal refers to charts showing BBE’s socialisation and activities from March to December 2013 and in oral evidence she stated that from early 2013 to the end of the year, BBE increased the number of facility- based activities in which she was involved. This does not appear to be correct as each chart is roughly shaped like the normal curve2 with a peak around September 2013 followed by a decline toward the end of the year. [20] While the principal asserts that BBE was not isolated, the extent of her activities does not seem vast. For example, the most numerous events in the chart refer to “Walks in the garden, the veranda, looking at planes, and visiting other residents” and occurred in August 2013 when 36 events were recorded. On average, this equates to little more than one event per day. On either side of that data point the number of events is lower, and in some charts much lower. [21] While data collection can be a useful indicator of behaviour, it is of little value unless a comparison can be made to the activity levels of other residents. On the face of it, the level of activity shown in the four charts appears modest at most. The principal states that the behaviour of Home Care Select staff was not intrusive and BBE was always given a choice to engage or not. Both she and BK agreed that BBE preferred to stay in her room. [22] Facility notes and comments attributed to the Residential Manager in the Adult Guardian’s report of 20 January 2014 subsequent to the termination of Home Care Select services, suggest that BBE increased her involvement in facility activities substantially, appeared to be much happier, and displayed fewer aggressive events than during the period when she was accompanied by a Home Care Select carer. [23] The Tribunal recognises that an attorney role in regard to personal decisions involves a complex balancing act. On one hand, the attorney wishes to ensure that her mother is provided with the necessary care, a safe environment in which to live, and emotional support, all of these in 2 That is, an inverted U-shape. -- 5 of 11 -- 6 accordance with BBE’s specific needs. On the other hand, any decisions by the attorney must take the General Principles into consideration; in this case, recognition of BBE’s right to participate in decisions affecting her life, her worth and dignity, and her position as a valued member of society who is encouraged to be self-reliant and participate in community life. In addition, consideration must be given to BBE’s supportive relationships and her right to confidentiality of personal information. [24] BK’s and the Home Care Select principal’s written and oral submissions paint a picture of a caring and careful approach to BBE’s well-being and welfare and to a very modest level of intrusion in her private life. There is, however, a significant discrepancy between their views and those of the facility staff and BBE’s medical practitioner. The impression of BK given by the Adult Guardian, the Residential Manager, and even in Home Care Select daily notes is of a demanding, inflexible, and aggressive individual within the facility context. In the hearing, BK stated that she engaged a professional service to support her mother, then stepped back and allowed that service to act in accordance with its usual practices. There is little doubt, however, that BK showed a very active interest in, and sought information about, her mother’s personal affairs including any interactions with other and, of significance, she approved the high level of intrusion by Home Care Select carers. [25] The intent of the General Principles in Schedule 1 of the Powers of Attorney Act 1998 (Qld) is reflected in ss 5, 6, and 7. And while it is acknowledged that BBE is 97 years of age, has a dementia condition, and is challenged physically, the extent to which the form of care provided by Home Care Select and approved by BK, is difficult to reconcile with those sections of the Act. [26] The Tribunal is satisfied that the intrusiveness of the data collection about BBE goes beyond what is required to ensure that she receives appropriate care and resides in a safe and emotionally supportive environment. The Tribunal finds that this intrusiveness is a result of the actions of Home Care Select and that the restrictions imposed by them compromised BBE’s privacy and dignity as an individual. They did not encourage self- reliance or the social needs of a person residing in an aged care facility. The Tribunal finds that his constitutes a breach of the General Principles contained in the Powers of Attorney Act 1998 (Qld). [27] As for the attorney’s actions in regard to the management of BBE’s financial affairs, the Tribunal notes BK’s statement that she did not commence operating on those powers until December 2012. [28] In its investigation, the Adult Guardian primarily addressed two issues, payment of Home Care Select services, and matters relating to BBE’s independent living unit. The representative of the Adult Guardian gave evidence that BK was reluctant to provide details of her mother’s financial situation during the investigation period despite several attempts to encourage the provision of that information. -- 6 of 11 -- 7 [29] In regard to the first issue, the Adult Guardian found no evidence that BBE’s funds were used to pay for Home Care Select services. [30] In regard to the second issue, BK is reported as having said that neither she nor anyone else stayed or resided in her mother’s unit once her mother moved to the aged care facility. Based upon the information available to it, the Adult Guardian concluded that BBE receives no financial benefit from ownership of the property and, indeed, incurred ongoing expenses. It concluded that BK was not managing her mother’s financial affairs in the way required under the Powers of Attorney Act 1998 (Qld). [31] Upon suspension of the attorney’s powers, the Public Trustee of Queensland became BBE’s administrator. A Tribunal Briefing Report was provided to the Tribunal on 22 January 2014 outlining BBE’s affairs known to that date. That report provides a somewhat more comprehensive view than available to the Adult Guardian. The Public Trustee was informed by the unit manager that BK resided in her mother’s unit she vacated it on 17 December 2013, the day that her powers as an attorney were suspended. [32] The Public Trustee commenced investigations to identify BBE’s financial circumstances and sought specific details from BK, although these were not provided up until the preparation of the Tribunal Briefing Report. Based upon the information available, the Public Trustee prepared an annual budget for the management of BBE’s income and expenditure. [33] BK’s reluctance to cooperate with both the Adult Guardian and the Public Trustee of Queensland impeded their investigations. That reluctance puts into question BK’s ability to act in a responsible and diligent way as her mother’s attorney. This is especially concerning to the Tribunal given that BBE’s expenditure appears to be considerably greater than her income and especially when it appears that her independent living unit has either been vacant, or occupied by the attorney on a full- or part-time basis. [34] In her submissions, BK stated that the independent living unit was retained because BBE derives comfort from knowing that she has a home beyond the aged care facility. She stated that her mother’s only formal income is an age pension and that BK supplements her mother’s income to ensure that she can continue to receive her current level of care. [35] While it is accepted that BK has supplemented her mother’s income, she has done little to improve her mother’s asset base or manage her assets so that she could be financially independent since assuming the power to act on her mother’s behalf in financial matters. If, for whatever reason, BK was unable to continue augmenting her mother income, BBE could be significantly disadvantaged until such time as her unit was sold and liquid assets realised. -- 7 of 11 -- 8 [36] The Tribunal finds that BK has breached s 66 of the Powers of Attorney Act 1998 (Qld) in that she has failed to act with reasonable diligence to protect her mother’s financial interests. [37] In conclusion, the Tribunal finds that BK has not fulfilled the role of BBE’s attorney in personal/health and financial matters in accordance with the General Principles of the Powers of Attorney Act 1998 (Qld). The Tribunal, therefore, revokes the powers given to BK in the Enduring Power of Attorney dated 3 July 2006. [38] On the basis that the decision-making scheme put in place by the Enduring Power of Attorney is no longer operating, the Tribunal turns its attention to BBE’s capacity to make decisions on her own behalf, and if she does not have that capacity, whether there is a need for the appointment of a decision-maker in personal/health and/or financial matters. Does BBE have capacity for decision about personal and financial matters? [39] An Aged Care Assessment Report dated 7 June 2012 is held on the Tribunal’s file. It was completed after BBE fell at her independent living unit, and subsequently hospitalised. The report refers to fluctuating confusion and disorientation with short- and long-term memory difficulties. There is also an indication of mild dementia. Approval was given for permanent residential placement at a high level. [40] More recently, a health professional’s report was prepared by BBE’s general practitioner. At the time of writing he stated that he had known BBE for approximately one year. He provided a diagnosis of severe, progressive cognitive impairment with no ability for independent decision- making in personal and financial matters. There is also a copy of the PAS-Cognitive Impairment Scale that was administered to BBE on 9 December 2012. BBE scored 15/21, indicative of cognitive decline. [41] Participants at the hearing confirmed that BBE does not have capacity to make decisions for herself in personal and financial matters. [42] The Tribunal finds that BBE has significant short- and long-term memory deficits and a progressive cognitive impairment. The presumption of capacity contained in the Guardianship and Administration Act 2000 (Qld) is rebutted for decisions relating to personal and financial matters. Is there a need for the appointment of a guardian for BBE and, if so, who would be the most appropriate appointee? [43] There are several matters that might require decisions in the foreseeable future. BBE is a permanent resident of a facility in the Brisbane metropolitan area. Given her age and health status, a transfer to another residence would not seem necessary. BK did not express any commitment to such a move although JS appears to have, at least, -- 8 of 11 -- 9 contemplated such an action. A decision about where BBE resides might be necessary if there is a disagreement among family members about where BBE might live in the future. [44] BBE’s heath care is likely to be of continuing concern. BK’s employment of Home Care Select was initiated, at least in part, by her concern for her mother’s heath and well-being. She states that she wished to have her mother examined by a geriatrician but has been unable to gain a referral from BBE’s current general practitioner. BBE takes a range of medications daily and, given her age, further complication might be expected. [45] Contact has also been of concern to both BK and JS. Since assuming guardianship responsibilities, the Adult Guardian implemented a visiting schedule that enables BK and JS to have uninterrupted time with their mother. There is no unequivocal evidence that BK has acted to restrict JS’ contact with her mother, although the tensions between the sisters suggest that a formal arrangement for visiting times is warranted. JS stated that she would like to take her mother on outings from the residence from time to time and it would seem necessary to ascertain if this was a safe practice. [46] The present application and the investigation undertaken by the Adult Guardian have come, at least in part, as a result of the care services provided by Home Care Select, funded by BK. Upon suspension of BK’s powers as her mother’s attorney, the Adult Guardian terminated the services of Home Care Select and reported that BBE is now more engaged in the social life of the residence than when a 24-hour carer was in attendance. There is an apparent disagreement between the various stakeholders (including the residence staff) about the level of care and monitoring required to secure BBE’s safety and involvement in the social life of the residence and decisions about these matters would seem timely. [47] In summary, therefore, the Tribunal finds that there are decisions required now, or in the foreseeable future, in regard to BBE’s place of residence, health care, with whom she has contact and/or visits, and the provision of services. Who is the most appropriate appointee requires consideration. [48] BK stated that she has only acted in her mother’s best interest. Through her legal representative, BK stated that she regretted any impositions and limitations that appear to have been placed on her mother’s lifestyle but if funds were available to provide 24/7 care, why should this not be provided? [49] In her application to the Tribunal, JS sought her appointment as BBE’s guardian because of her sister’s actions. She states that there is conflict between decision-makers or family members and the written and oral evidence submitted to the Tribunal confirms this. In its report of 20 January 2014, the Adult Guardian draws attention to significant positive changes in BBE’s circumstances since the Adult Guardian assumed decision-making responsibilities. The Tribunal finds that there is a need for the appointment of an independent decision-maker to ensure that all -- 9 of 11 -- 10 relevant information is gathered from the various stakeholders when a decision is needed about accommodation, services, health care, and contact/visits. [50] The Tribunal, therefore, appoints the Adult Guardian for three years for decisions mentioned immediately above. Is there a need for the appointment of an administrator for BBE and, if so, who would be the most appropriate appointee? [51] Despite BK’s contention, BBE’s financial situation is vulnerable. Over a number of years BK has augmented BBE’s income derived from investments and a Department of Veterans Affairs pension. BK stated that without her own contributions the level of care her mother receives would not be possible. Through her legal representative, BK stated that BBE has no less assets now than previously. The implication of this submission appears to be that while BK continues to supplement her mother’s income, BBE has not been financially disadvantaged and no changes in her present holdings/assets are necessary. [52] There is no dispute, however, that at this time BBE’s expenses exceed the income from her own resources. She owns an independent living unit in which BK has resided or stayed over an extended period, when her mother lived there and after she moved to her current residence. That unit produces no income, incurs expenses, and cannot be rented as per the terms of the agreement with the unit manager. [53] While BK’s actions are generous, it is unclear if such support would continue if her situation changed, either through illness or other unforeseen events. Furthermore, it is unclear exactly what BBE’s financial situation is. BK did not cooperate with the Adult Guardian during its investigation and up until 22 January 2014 did not provide information sought by the Public Trustee following her suspension as attorney. [54] Given what is known of BBE’s financial and property situation, the Tribunal finds that there is a need for the appointment of an administrator. JS nominated herself as administrator but in the light of tensions between the sisters, her appointment is unlikely to be problem free. [55] In email correspondence to the Public Trustee of 22 January 2014, BK asserted her intention to continue to support her mother financially and when giving oral evidence via her legal representative did not concede that any changes were necessary. However, if the Tribunal decided that an independent decision-maker was needed in financial matters, then she would support the appointment of the Public Trustee of Queensland. [56] The annual budget provided by the Public Trustee shows a deficit in excess of $21,000. At the same time, BBE’s assets approach $580,000, largely due to the value of the independent living unit. The Tribunal finds that there is a need for the appointment of an administrator to reconcile income and expenditure and to decide how BBE’s affairs might be managed into the future. -- 10 of 11 -- 11 [57] The Tribunal finds that an independent decision-maker is necessary and appoints the Public Trustee of Queensland as administrator for BBE until further order of the Tribunal. The Tribunal prescribes reporting procedures as set out in the orders. -- 11 of 11 --