DME [2012] QCAT 233

CITATION: DME [2012] QCAT 233 PARTIES: DME APPLICATION NUMBER: GAA4163-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 25 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Enduring Power of Attorney dated 9 September 2005 appointing DAG as attorney for personal and health matters is valid. 2. The Tribunal declares that the powers given to DAG as attorney under the Enduring Power of Attorney dated 9 September 2005 have begun. CATCHWORDS: ENDURING POWER OF ATTOTNEY – where nominated attorney did not accept the grant of power until after principal lost capacity – where allegations made that Enduring Power of Attorney was invalid Powers of Attorney Act 1998, ss 33(4), 44, 109A, 113, 115 Guardianship and Administration Act 2000, s 7 and schedule 4 Whitney v National Australia Bank [2007] QSC 397 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] DME is a resident in a nursing home at Manly. Her daughters, AB and CD, have made arrangements to remove DME from the nursing home on 25 May 2012. DME cannot give her consent to this proposed change of residence as she no longer has decision making capacity. [2] Another daughter, DAG, opposes the change of DME’s residence. DAG was appointed by DME to be her attorney for personal and health matters in 2005. DAG has not consented to the change of residence for DME. [3] AB and CD contend that the enduring power of attorney appointing DAG is invalid. They contend that the nursing home should not have any regard to the instructions of DAG. [4] QCAT has authority under the Powers of Attorney Act 1998 to decide about the validity of an enduring power of attorney and can declare when a power under an enduring power of attorney can commence.1 [5] The attack on the enduring power of attorney granted to DAG by DME arises from the fact that DAG did not accept the grant of power until 23 May 2012. CD has submitted that the document is not valid as DAG has signed the acceptance of the grant of power after DME has lost capacity. CD submitted that DAG has never been an attorney for DME and cannot now become her attorney as the only type of formal decision maker who can make decisions after DME has lost capacity would be a guardian appointed by this tribunal. [6] To consider that submission I have looked at the information provided to the tribunal about DME’s current decision making capacity for personal and health matters. According to a report from XZ dated 22 May 2012, DME has been diagnosed with Alzheimer’s Disease and a subdural haematoma. An assessment of DME’s cognitive functioning has revealed a severe impairment of her functioning. [7] According to XZ, DME would not be able to understand and act on information relevant to making decisions about personal and health matters nor would she be able to understand the consequences of decisions in those areas. XZ expressed the opinion that DME could not make decisions freely and voluntarily. XZ was of the opinion that DME could not make any simple or complex decision about personal or health matters due to cognitive disability and dementia. [8] The information provided by CD supports the opinion of XZ that DME has diminished reasoning due to her dementia.2 [9] The information provided to the tribunal about DME’s current decision making capacity for personal and health matters is not challenged. 1 Sections 113 and 115 of the Powers of Attorney Act 1998 2 Email to registry staff member dated 24 May 2012 -- 2 of 4 -- 3 I accept the report from XZ as accurately describing the current cognitive functioning of DME. I find that DME has been diagnosed with dementia of the Alzheimer’s type and she also had sustained a subdural haematoma at an earlier time. She has been assessed as having severely reduced cognitive functioning. She can not understand and act on information about personal decisions and health care decisions. [10] There is a statutory presumption that adults have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000. Unless there is sufficient evidence to rebut that presumption, it must stand. [11] Capacity is defined in schedule 4 of that Act as: “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. [12] By applying the definition of capacity to the findings of fact that I have made, I am satisfied that DME would not be able to obtain and retain information needed for decision making about personal and health care matters, she would not be able to analyse information to come up with options for action about those matters, she could not foresee and evaluate the consequences of those options, she could not choose between the options and persevere with a choice long enough to implement the choice and recall that she had done so. I am satisfied that DME cannot as a result understand the nature and effect of decisions about personal and health care matters. [13] The presumption of capacity is rebutted by the evidence provided to the tribunal. I conclude that DME has impaired decision making capacity for personal and health matters. [14] Section 33(4) of the Powers of Attorney Act 1998 states that a personal matter under an enduring power of attorney is exercisable only when the principal has impaired capacity for the matter. As a result of the conclusion that DME has impaired decision making capacity for personal and health matters, the powers granted to her attorney in her enduring power of attorney for decision about personal and health matters can commence. However the question that has been raised is whether the enduring power of attorney is valid and whether there is at this point in time an attorney appointed to make personal and health decisions for DME. [15] Section 44 of the Powers of Attorney Act 1998 set out the formal requirements of an enduring power of attorney. The document signed by DME on 9 September 2005 complied with all the requirements of subsections 1, 3, and 4 of section. The additional requirements in subsections 2, 5, 6 and 7 have no relevance to this case. The contentions -- 3 of 4 -- 4 raised by AB and CD relate to the requirement in subsection 8 that an enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document. [16] DAG did not accept the appointment as attorney for personal and health matters in 2005. She signed her acceptance on 23 May 2012. It is not disputed that this acceptance is after the principal, DME, lost capacity for decision making. It is contended that as all of the formal requirements in section 44 for the effective exercise of an enduring power of attorney about personal and health matters were not in place before DME lost capacity, there is no attorney for personal and health matters. [17] That argument is not correct. The Supreme Court in Whitney v National Bank of Australia3 had to determine an argument in similar terms. Justice Ann Lyons stated that an enduring power of attorney is made when the requirements in subsections 1 and 3 of section 44 are met. Once made, the powers granted by the enduring power of attorney are subject to acceptance by the attorney and are exercisable thereafter. [18] Justice Lyons noted that an enduring power of attorney is not revoked by the principal losing capacity after it is made. The authorisation to the attorneys is not withdrawn or nullified if the principal loses capacity after the document is executed. The giving of a power of attorney is a unilateral act. The authorities referred to by Justice Lyons in that case have established that the validity of a power of attorney does not depend on acceptance by the attorney and that the powers granted to the attorney are complete when they are brought into existence. [19] I find that the enduring power of attorney dated 9 September 2005 appointing DAG as attorney for personal and health matters is valid as it complies with the formal requirements set out in section 44(1) and (3) as well as subsection 4. [20] There is no statutory bar to an attorney accepting the appointment as attorney at any time. The only restriction is that the exercise of the powers cannot be effective until the powers are formally accepted by the signing of the document by the attorney. [21] DAG has signed in accordance with section 44(8) her acceptance of the powers to make decisions as attorney about personal and health matters for DME. The exercise of her powers has commenced. 3 [2007] QSC 397. -- 4 of 4 --