BP [2012] QCAT 376

CITATION: BP [2012] QCAT 376 PARTIES: BP APPLICATION NUMBER: GAA2884-12 / GAA4812-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 7 August 2012 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member G Quinlivan, Member DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The appointment of the Adult Guardian as guardian for BP for decisions about accommodation, services, contact and health care is continued. 2. This appointment remains current until further order of the tribunal, is reviewable and is to be reviewed in five years. 3. The appointment of Perpetual Trustees Queensland Limited as administrator for BP for all financial matters is continued. 4. The administrator is to provide accounts by the second anniversary of this order to the tribunal’s examiners, Vincents Chartered Accountants and every two years thereafter. 5. This appointment of Perpetual Trustees Queensland Limited remains current until further order of the tribunal. 6. If unconditional access is not permitted by BJ to staff of the administrator and to a valuer to the property she occupies within 28 days, the administrator is directed to impose conditions on BJ’s continuing occupation of the premises and if necessary to revoke permission for her to reside in the property until a full audit of the assets of BP in that -- 1 of 8 -- 2 property is completed. 7. The administrator must lodge a copy of this order with the Registrar of Titles over any interest in land held by the adult and which is subject to this administration order and must provide the tribunal with a copy of the lodgement summary within three months. 8. The tribunal notes that the Enduring Power of Attorney dated 18 February 2004 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 on to the extent that these appointments have been made. CATCHWORDS: GUARDIANSHIP – where independent decision makers had been appointed – where no other party sought to be appointed at review – where directions to decision makers were sought Guardianship and Administration Act 2000, ss 12, 31, 138 APPEARANCES and REPRESENTATION (if any): There was no appearance by BP at the hearing. Active parties attending the hearing were Anthony Cole and Zena Kurdi appearing for Perpetual Trustees Queensland Limited, Jane Antoine appearing for the Adult Guardian and the five daughters of BP. REASONS FOR DECISION [1] BP is a mother greatly loved by her daughters whom she brought up to be educated, assertive and independent women. She had wanted her daughters to be her decision makers when she could no longer make her own decisions. In 2004 she had appointed her daughters as her attorneys on the basis that decisions were made by majority. Those arrangements did not work out. Appointments of substituted decision makers for BP have been made since November 2008 by this tribunal and its predecessor. [2] BP has significant financial assets in her name and she is the sole shareholder in a company which is the registered owner of two pieces of real property. Perpetual is the current administrator for BP for all financial matters. BP together with her daughters is a beneficiary of a family trust which holds significant assets. Perpetual has entered into an agreement with the trustee of the family trust to manage the financial assets in the family trust. That arrangement is quite separate from and outside of -- 2 of 8 -- 3 Perpetual’s management of the financial assets of BP under the administration order made by this tribunal. [3] In conducting a review of the appointment of the Adult Guardian as guardian and Perpetual as administrator for BP, QCAT is required by section 31 of the Guardianship and Administration Act 2000 (the Guardianship Act) to revoke those appointments unless the tribunal is satisfied that it would make a new appointment of a guardian and administrator if a fresh application for the appointment of a guardian and administrator were made to the tribunal. In other words, QCAT has to be satisfied of the matters set out in section 12 of the Guardianship Act ie that there are grounds for having a guardian and administrator involved in the life of BP at this stage.1 [4] BP has been diagnosed with dementia and although family members dispute between themselves aspects of that diagnosis, they agree that BP’s functioning is impaired by that condition. Dr Berry, a geriatrician, in 2009 had reported that BP at that time had moderate to severe dementia. Evidence given to the tribunal reveals that at the present time BP does not always recognise people she knows, she does not carry on meaningful conversations and she mostly sits quietly during the day. [5] The tribunal finds that BP has moderate to severe dementia, she is not always orientated to person and she can no longer respond to other people in a consistently meaningful way. She no longer has the ability to obtain, retain and analyse information on which decisions about personal and financial matters are based, she can no longer devise options for decisions, see the consequences arising from those options, choose between those options and recall that she has made a decision which she can implement and communicate to others. Applying the criteria set out in the definition of capacity in the Guardianship Act, the tribunal is satisfied that due to her impaired cognitive abilities BP could not understand the nature and effect of decisions about both personal and financial matters. [6] The tribunal concludes that BP has impaired decision making capacity about both personal and financial matters. Is there a need to continue the appointments of a guardian and administrator? [7] Decisions have to be made about BP – whether any changes need to be made to her accommodation, what services does she need to meet her current needs, what arrangements must be in place to ensure that all her family can visit her at times appropriate to them, what health care decisions should be made, what has to be done to maintain her financial assets and property resources and to manage her income and expenditure. 1 Does the Adult have impaired decision making capacity, are there decisions to be made and will the decision making needs of the Adult only be met by the appointment of a formal decision maker by QCAT. -- 3 of 8 -- 4 [8] Family members commonly make on an informal basis many of these types of decisions for other members of the family who are frail or who have impaired decision making capacity. The law recognises that informal decision making can be a valid and satisfactory response to decision making needs of an adult with impaired capacity.2 This position occurs only when the informal decision making process effectively and efficiently can meet the decision making needs of an adult. [9] Where there are disputes within a family about the decisions being made or where parties external to the family do not accept the validity of those decisions, informal decision making support is no longer an effective or efficient way to meet the needs of an adult with impaired capacity. A more formal decision making regime must in those circumstances be put into place to provide express lawful authority for someone to make decisions for an adult with impaired capacity. That regime is supplied by this tribunal by making appointments under the Guardianship Act. [10] The tribunal had to consider whether BP needed a formal decision maker to make certain personal and financial decisions for her. Looking first at personal decisions, the evidence provided to the tribunal established that BP had settled into residential aged care in a nursing home. However there remains a dispute among her daughters whether that accommodation is in fact the most appropriate for her care needs and personal circumstances. At least one of her daughters contends that BP should be residing in her own home with paid care. It is not disputed that BP could afford that type of accommodation and care. Some of her other daughters support her current arrangements as the most appropriate for her current needs and strongly disagree that any change should be made. An impasse exists within the family on this issue. [11] If there were to be no guardian in place to make accommodation decisions, it would be unlikely that serious steps could be undertaken to investigate what viable accommodation options exist at this stage to meet the needs of BP. Given the impasse within the family, only an appointed guardian could consider the viable options, seek out medical support for any change of accommodation, consider the views of family members about a possible change of accommodation and make a lawful decision whether to make a change or to continue with the current accommodation arrangements. [12] Similar issues potentially exist when considering decisions about services, contact and health care. Disputes between family members about any of these issues make it very difficult for decisions to be made by anyone other than a person designated by this tribunal as a lawfully appointed guardian. [13] As for financial decisions, BP’s financial affairs are complex and extensive. She relies on her financial resources to supply income to cover all her expenditure. She has cash resources, equities, indirect property 2 Section 9 of the Guardianship Act. -- 4 of 8 -- 5 investments as well as direct property resources. There are extensive assets which cannot be dealt with unless clear lawful authority is given to a decision maker. There is dispute among family members as to the manner in which some of the assets should be managed. Similar to the position with personal decisions, an impasse has developed within her family over the management and use of certain of BP’s assets. [14] The tribunal is satisfied that BP’s financial affairs require someone with lawful authority, an administrator, to make decisions about the management of her assets. [15] The tribunal is satisfied that the appointment of a guardian and administrator should continue. Should the current appointees be retained? [16] Under section 31(4) of the Guardianship Act the appointments of the current appointees should be continued unless the tribunal finds that they are no longer competent or another person is more appropriate for appointment. Although BP’s daughters all raised complaints about the actions or inactions of the guardian and administrator, the complaints were not expressed in terms that the current appointees were no longer competent. The tribunal formed the view that there was general support from the family for the current appointees continuing in their roles at present as long as the complaints were satisfactorily addressed. [17] None of the family members put forward for the tribunal’s consideration any alternative persons for the roles of guardian or administrator. The tribunal was satisfied for the reasons set out in the following paragraphs that the current appointees should continue in their roles. [18] The Adult Guardian in a report dated 17 July 2012 outlined the decisions that have been made by the guardian since the last appointment. The tribunal is satisfied from the evidence presented to the tribunal that the role of the guardian has been carried out in a competent manner. The guardian has made decisions when required and with consultation with BP’s family. Not all the decisions have been met with the universal agreement of the family but the tribunal is satisfied that the decisions have been made with an adequate consideration of BP’s proper care and protection. The guardian is currently taking steps to obtain a full geriatric review to consider the suitability of the current care and medical treatment arrangements for BP. [19] The tribunal acknowledges that some members of the family have experienced some communication difficulties with the guardian, particularly around the process of obtaining consent for medical treatment. It is essential that adequate lines of communication are in place so that the views of the family and information that they possess can be provided in a timely manner to the guardian when decisions have to be made. However the tribunal was not satisfied that there had been any -- 5 of 8 -- 6 incompetence displayed by the guardian when consent to surgery for BP’s fractured elbow was provided by the guardian. [20] Perpetual provided a report to the tribunal dated 2 August 2012 as to the decisions made by the administrator and as to the plans in place for the continued management of BP’s financial affairs. At the hearing the representatives from Perpetual conceded that the complaints raised by the family about certain property maintenance costs at certain Brisbane properties were valid. Perpetual has now involved more experienced staff in dealing with the property interests under its management. The tribunal considers that a review of the costs for those Brisbane properties is likely to address satisfactorily the complaints of the family. [21] Perpetual’s performance as manager of the financial assets of BP had been examined by the tribunal’s examiner, Vincents Chartered Accountants. The examiner concluded that it was probable that Perpetual was managing the financial assets in the best interests of BP and in accordance with the Guardianship Act. Despite the criticisms made by the family, the tribunal accepted the evidence in the examiner’s report and concluded that overall the actions of Perpetual revealed a competent discharge of their duties and responsibilities as administrator. Periods of appointment [22] At the hearing the tribunal sought input from BP’s daughters as to the period of time for which any continued appointments should be made. Their responses suggested that the appointments should be made for only short periods of time – the most common period identified as being for 1 year. [23] The tribunal does not agree. BP is likely to require a guardian and administrator to make decisions about personal and financial matters for an indefinite period of time. At present the Adult Guardian and Perpetual have those roles because the former tribunal had, at the request of some of the family members, overtaken an Enduring Power of Attorney which had given decision making powers to BP’s five daughters due to the acknowledged unworkability of those particular arrangements. [24] It is clear from the hearing on 7 August 2012 that there remain deep divisions of opinions between BP’s daughters as to what decisions should be made for her about a variety of personal and financial matters. Those divisions do not inevitably restrict appointees as guardians and administrators to persons outside the family. However, at present, and over the past four years, the tribunal has considered that conflict within the family has been at such a significant level that it was likely to impair the competence of one or more of BP’s daughters to perform the functions and to exercise the powers under an appointment of this tribunal.3 3 Section 15(1)(g) of the Guardianship Act. -- 6 of 8 -- 7 [25] Until such time as one or more of the family members can satisfy the tribunal that they would be appropriate for appointment, it is likely that appointees independent of the family will be called on to perform the role of guardians and administrators. The tribunal can ascertain no benefit to BP for the appointments of her decision makers to be reviewed on an annual basis. [26] Annual reviews may help to assuage perceived feelings by family members that they have been unfairly prevented from having direct involvement in decision making for BP but annual reviews may have the effect of incurring unnecessary costs for BP and would use the limited resources of this tribunal. [27] The tribunal’s primary focus is on BP, not her daughters.4 Concerns or complaints by family members about particular decisions made by the appointees can be dealt with directly by the decision makers under the respective complaints resolution processes within the Office of the Adult Guardian and Perpetual. If the family members believe there is evidence that the decision makers are no longer competent, they can file an application to review the appointments and if the tribunal is satisfied that a hearing is appropriate, the review can be determined at any stage.5 [28] The tribunal is satisfied that the appointment of the Adult Guardian as guardian for BP for decisions about accommodation, services, health care and contact should remain in place until further order of the tribunal and should be reviewed in five years. [29] The tribunal is satisfied that the appointment of Perpetual as administrator for BP for all financial matters should be for an indefinite period and until further order of the tribunal.6 Whether any directions should be given to the appointees [30] BM, one of BP’s daughters, has asked the tribunal to give a series of directions to the Adult Guardian and Perpetual.7 Two of the directions sought related to the Adult Guardian. The tribunal is not prepared to give any directions about the accommodation and care of BP. The guardian should be allowed to make decisions about those matters once the geriatric review has been completed. [31] Directions from the tribunal prior to all the relevant information being available will not be helpful or appropriate to the decision making process. The tribunal is not prepared to give directions about contact arrangements as a need for directions was not made out. A request for a contact policy should be made to the Adult Guardian if any of the family believes that 4 Section 11A of the Guardianship Act. 5 See Practice Direction 8 of 2010 for pre-conditions for a review prior to the expiry of an appointment. 6 Section 28(1) of the Guardianship Act. 7 Section 138 of the Guardianship Act allows the tribunal to give directions to an appointed decision maker. -- 7 of 8 -- 8 their contact opportunities are being unfairly limited by the actions of other family members. [32] The other directions sought relate to Perpetual and were discussed during the hearing. Perpetual’s representative agreed to provide more detailed information to BP’s daughters about the management of her financial assets. In effect, information that is already prepared as a matter of course by Perpetual or its advisors will be provided to BP’s daughters. They have a valid interest in proper management of their mother’s affairs. The tribunal does not consider it necessary to make any directions about these issues. [33] Directions were sought about the management of specific real property assets. The tribunal was satisfied that Perpetual was taking generally appropriate action on these assets and that making directions was not necessary in order for Perpetual to comply with its obligations as an administrator. [34] However there were circumstances relating to one of BP’s properties which were somewhat concerning to the tribunal. BJ is occupying a property owned by BP. It is likely that furniture, art work and other items of valuable personal property belonging to BP are held in that property. BJ has not co-operated with Perpetual to allow access to the property for an audit and valuation of the personal property to take place. Her explanations for not doing so were without substance and were not accepted by the tribunal. [35] BJ is an active party in these proceedings and must co-operate with the administrator in ascertaining the scope and value of the personal property belonging to BP. The tribunal is satisfied that, with a modicum of goodwill, mutually satisfactory arrangements can be made for access to the property being occupied by BJ. [36] However, if unconditional access by staff from Perpetual and a valuer to BP’s property is not allowed by BJ within the next 28 days, Perpetual is directed to take action to impose conditions on BJ’s continuing occupation of the premises and if necessary to revoke permission for her to reside in the property until a full audit of the assets of BP in that property is completed. [37] Apart from this direction, the tribunal has not been convinced that any other direction is necessary in order for Perpetual to carry out its obligations as administrator. -- 8 of 8 --