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  • Unreported Judgment

SO

 

[2016] QCAT 343

CITATION:

SO [2016] QCAT 343

PARTIES:

SO

APPLICATION NUMBER:

GAA6378-16

GAA6379-16

GAA8903-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

20 September 2016

HEARD AT:

Cairns

DECISION OF:

Member Johnston

Member Dr Daniel Stepniak

DELIVERED ON:

28 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The following Enduring Power of Attorney for S0 is overtaken by the making of this appointment and, in accordance with section 22 (2) of the Guardianship and Administration Act 2010 can no longer be acted upon to the extent this appointment has been made: (a) the Enduring Power dated 18 February 2016 appointing ST for financial, personal and health matters.
  2. The Tribunal declares that SO lacks capacity for all personal and financial matters.
  3. The Public Guardian is appointed as guardian for SO for the following personal matters: accommodation; health care; and service provision.
  4. Unless the Tribunal orders otherwise, this appointment remains current for one year.
  5. The Public Trustee of Queensland is appointed as administrators for SO for all financial matters.
  6. The Tribunal directs the administrator provide accounts to the Tribunal when requested.
  7. The appointment remains current until further order of the Tribunal.

CATCHWORDS:

CAPACITY OF ADULT– capacity of an elderly man diagnosed with dementia to execute an Enduring Power of Attorney

DUTIES OF JUSTICE OF THE PEACE - duty of a Justice of the Peace to assess capacity of an  elderly man when witnessing an Enduring Power of Attorney and assessing the capability of the purposed attorney to act as attorney

Guardianship and Administration Act 2000 (Qld) ss 12, 14, 15

Powers of Attorney Act 1989 (Qld) s 41 

APPEARANCES:

SO - adult

ST – partner/ex-partner

DR - Public Guardian

BK – Social Worker Queensland Health 

DJ– Nurse Queensland Health

AS – Public Trustee of Queensland

SK – Social Work Student

REASONS FOR DECISION

Background

  1. [1]
    On 18 February 2016, SO executed an Enduring Power of Attorney in favour of ST appointing her for financial, personal and health matters and was said to start immediately.
  2. [2]
    On 21 June 2016, DA a social worker, working for Queensland Health filed an application seeking the appointment of an administrator and a guardian for SO.
  3. [3]
    An Interim Order was made by the Tribunal on 23 June 2016 appointing the Public Guardian for personal decisions about: accommodation, health and service provision and appointing the Public Trustee of Queensland for financial matters.
  4. [4]
    The matter proceeded to a hearing in Cairns on 20 September 2016.

The first question for the Tribunal is the validity of the Enduring Power of Attorney dated 18 February 2016

  1. [5]
    Dr D H provided a Health Professional Report to the Tribunal in which she stated at paragraph 4.1 that SO had been diagnosed with Dementia with Lewy Body Disease in March 2015. He was also diagnosed with alcohol dependence. On a Rowland Universal Dementia Assessment Scale (RUDAS), he scored 9/30 on 23 March 2016. Dr D H assessed SO as having no capacity for personal health care, lifestyle and accommodation, or financial affairs. She assessed his executive functioning score at 0/15 (Memory Clinic).
  2. [6]
    Dr D H was worried about SO’s safety in his home environment and shared the concerns of the community nurses. Dr D H described the basis of SO’s condition in paragraph 9.1 of the Report where she states that he had dementia diagnosed by the Memory Clinic (2015). He had a cognitive impairment due to frontal lobe atrophy with mixed dementia – small vessel vascular with Alzheimer’s disease.
  3. [7]
    Dr D H attached to her Report a copy of a letter dated 12 October 2015 from Dr M the Geriatrician in which he reported that SO had attended on 23 September 2015 reporting diminishing memory and becoming easily confused over the past few months.
  4. [8]
    Dr M tested SO with the Mini Mental State Examination where he scored 3/30 but he declined after answering the first few questions. Dr M conducted a RUDAS and he scored 21/30. A CT Brain Scan on 30 April 2015 revealed small vessel ischemia change and generalised atrophy (moderately age advanced..).
  5. [9]
    Dr M in summary reported that SO had a progressive multi-domain Mild Cognitive Impairment with significant frontal lobe atrophy … Suggesting Lewy Body disease… The differential diagnosis includes a mixed pathology such as Dementia of Alzheimer’s type and Vascular Dementia.
  6. [10]
    ST told the Tribunal that SO was suffering from dementia and was unable to make decisions for himself. She told the Tribunal that he did recognise her and that they were in a loving relationship. She told the Tribunal that he had been this way for some nine months.
  7. [11]
    AS from the Public Trustee of Queensland (the Trustee) told the Tribunal that SO approached the Trustee in late 2015 to do a Will and Enduring Power of Attorney. Ms AS told the Tribunal that the officer, after some initial questioning, declined to take instructions because the officer was not satisfied that SO had the capacity to execute a Will or Enduring Power of Attorney.
  8. [12]
    Mr GR JP (Qual) was the Justice of the Peace who witnessed the execution of the Enduring Power of Attorney dated 18 February 2016. Mr GR in response to a query from the Tribunal wrote as follows:

As an active Justice of the Peace (Qualified), I am aware of my responsibilities under the Justices of the Peace and Commissioners for Declarations Act 1991 and, I take those responsibilities extremely serious.

I also strictly adhered to the JP duties contained in the Justices of the Peace (Qualified)-Manual, and, in this instant complied in particular with section 7 (page 40): Witnessing general powers of attorney, enduring powers of attorney and advanced health directives.

The principal in question, at the time, appeared to have the testamentary capacity necessary to make the enduring document and, in my opinion, the principal appeared to fully understand the nature and effect of the presented EPA.

Subsequently, having conformed to my mandatory duty of care, I followed the abovementioned procedure and witnessed the EPA document as requested by the principal.

  1. [13]
    Ms DE Nurse Care Coordinator made a referral to the Public Guardian on 20 June 2016. In the referral, she refers to the fact that SO had been assessed as having a RUDAS in March 2016 of 10/30. SO had been diagnosed with moderate Lewy Body Dementia and had been brought in to hospital by ambulance after a neighbour found him in his backyard wandering and extremely confused. He was on admission found to be totally confused and dependent on others in relation to his ADL’s (activities of daily living).
  2. [14]
    BK told the Tribunal that SO had received an ACAT (Aged Care Assessment Team) approval of Level I, which provided for High Level Respite and significant in-home support. This assessment was indication that SO required considerable support in home to meet his high needs.
  3. [15]
    The Tribunal accepts the evidence of :
    1. Dr M that a CT Brain Scan showed generalised atrophy of the brain in April 2015.
    2. The evidence of Dr D H that SO was diagnosed with dementia on 23 September 2015. This evidence was supported by the letter from Dr M of 12 October 2015.
    3. The Tribunal accepts the evidence of AS that in late 2015, the Trustee refused to accept instructions to draw up a Will and Enduring Power of Attorney because the officer was of the view having questioned SO that he did not have capacity to give those instructions. The Tribunal notes that these officers are trained to assess capacity and are skilled in deciding whether an adult has capacity to provide instructions.
    4. The Tribunal accepts evidence of BK that SO had been assessed as having High care needs and was receiving significant support to remain in his home.
    5. The Referral to the Public Guardian notes that SO was found on 23 March 2016 wandering around in a neighbour’s backyard completely confused. When admitted to hospital he scored10/30 on the RUDAS and was totally dependent on others for his ADLs.
  4. [16]
    The Tribunal is of the view given this evidence that SO did not have capacity to execute the Enduring Power of Attorney dated 18 February 2016.
  5. [17]
    The Tribunal makes the following findings:
    1. Dr M diagnosed SO with dementia on 23 September 2015.
    2. Dr M found that SO had presented at his office with diminishing memory and had become easily confused at times over the past few months.
    3. A CT Brain Scan on 30 April 2015 revealed generalised atrophy affecting the frontal and cerebellar regions.
    4. The Trustee in late 2015 having questioned SO concluded that he did not have capacity to execute a Will or Enduring Power of Attorney.
  6. [18]
    The Tribunal declares the Enduring Power of Attorney dated 18 February 2016 invalid.
  7. [19]
    The Tribunal notes that many witnesses simply do not understand that section 41 of the Power of Attorney Act 1998 provides that a principal may make an Enduring Power Attorney only if the principal understands the nature and effect of an Enduring Power of Attorney. Understanding the nature and effect of the Enduring Power of Attorney is then outlined in section 41 (2) of the Act. The unreported Supreme Court case of Re H it has indicated that section 41 really only sets out some of the elements a person has to understand in order to have capacity to make an Enduring Power of Attorney and that the principal should also have the ability:-
    1. to understand that an Enduring Power of Attorney is the appointment of an agent;
    2. to assess the respective attorney’s skills and knowledge to carry out functions of attorney; and
    3. understand the sorts of decisions that the attorney will be making.
  8. [20]
    The Supreme Court has found that executing an Enduring Power of Attorney is a complex matter.
  9. [21]
    The Tribunal notes that a witness of an Enduring Power of Attorney must from the first contact with the principal be able to gather information that is relevant to the capacity to make an Enduring Power of Attorney. Where the witness reasonably believes that the person has a diagnosed condition that may affect his decision-making capacity such as dementia, he must take extra care witnessing the document, or seek a medical opinion verifying the person’s capacity. It is recommended that witnesses meet with principal alone. This is an opportunity for the witness to develop rapport with the principal. To establish the context within which the principal has decided to make an Enduring Power of Attorney, for instance a serious illness. It is also an opportunity to determine if the person is being influenced into making the EPA.
  10. [22]
    The Tribunal also draws attention to the footnote the Power of Attorney Act 1998 in section 41. This states that if there is a reasonable likelihood of doubt in relation to the principal’s ability in these matters it is advisable for the witness to make a written record, of the evidence as a result of which the witness considered the principal understood these matters.
  11. [23]
    The evidence in this matter is that SO has been quite severely affected by dementia for several months. The evidence of ST is that she was the only one who could communicate with him. Dr M referred to his visit in September 2015 where SO reported that he had been having problems with his memory and experiencing confusion for some months. The Trustee had refused to accept instructions from SO late in 2015 because of concerns about his capacity. This is also supported by the report of DE that referred to SO being admitted to hospital in March of this year extremely confused and unable to undertake his activities of daily living unsupported. The Queensland Ambulance Service in an email of 17 June 2016 stated that the Service has attended to SO on 11 times in the past six months. This highlighted SO’s high needs. The Service also expressed concerns that the carer (ST) seems to be declining in her own capacity to cope with SO’s care.
  12. [24]
    The Tribunal also has difficulty in these circumstances understanding how a witness could have satisfied himself that ST had the skills and abilities to act as his attorney. This is one of the matters that SO needed to understand.
  13. [25]
    The Tribunal accordingly does not accept the account of Mr GR in view of the evidence referred to above that SO had capacity to execute the Enduring Power of Attorney. The Tribunal is actually left wondering what training is provided to JP in relation to witnessing Enduring Powers of Attorney.
  14. [26]
    The Tribunal has previously found that understanding the execution of an enduring document is a complex matter for which an adult needs to understand the nature of the document; effect of the powers given; and how it can be revoked. This provides a basis for asking questions that highlight a person’s capacity.
  15. [27]
    The Tribunal is particular concerned that a short time after the purported execution of the Enduring Power of Attorney that SO is found wandering and confused in a neighbours backyard and on admission unable even to attend to his ADLs. The Tribunal is concerned that an official of the Trustee months earlier determined after his initial questioning that SO did not have capacity. This is a form of progressive deterioration. Yet months later, a Justice of Peace finds that he has capacity.
  16. [28]
    The Tribunal also notes at the conclusion of the hearing that ST admitted that she was not surprised that the Tribunal had ruled the Enduring Power of Attorney invalid. This suggests that after being knocked back by the Trustee she went looking for a witness who be willing to witness an Enduring Power of Attorney.
  17. [29]
    The Tribunal would make one further comment and that is that this decision relates solely to the Enduring Power of Attorney dated 18 February 2016. The Tribunal has made no findings in relation to any Will that may have been entered into around the same time. The test for capacity for a Will is a lesser test and this is not a matter for the Tribunal to determine.

Does SO need a guardian?

  1. [30]
    BK told the Tribunal that there had been considerable concerns about SO’s welfare. The Queensland Ambulance Service had attended at his address 11 times in the past six months with an increased attendance during the month of May 2016.
  2. [31]
    Ms DE in her Referral to the Public Guardian notes on page 10 the situation on 17 June 2016:

Urgent HV review following call from the Queensland Ambulance Service regarding concerns for SO’s health and well-being due to carer being intoxicated and reduced ability to care for SO.

On arrival at patient’s home, unit found to be in a state of neglect. ST the carer smelled of alcohol…

The unit toilet was filthy with faeces splattered over the bowl. Garbage, belongings in boxes blocking doorways, four ways, of the floor and in the rooms. No sheets from the bed. Also covered with filth and dirt, garbage bins were full, there were flies everywhere in the house dirty saucepans and dishes on stove or sink and benches. The fridge contained both old, rotting and fresh produce. A seal bacon packet contained grey coloured bacon. Multiple empty bottles of wine located on the patio and full bottles as well…

The author informed ST of concern for SO’s health and well-being and requested SO be transferred to hospital. ST refused to allow this.

The Author requested the ambulance officer in attendance for police to support SO’s transfer to hospital while the author contacted the Public Guardian. The Public Guardian supported SO’s transport to hospital .. And a recommendation that an Interim Order to be made.

  1. [32]
    DR told the Tribunal that SO was in Gordonvale Hospital waiting placement. He had discussed with ST where she would prefer him being placed. She would like him placed close to the city for example in Westcourt, as she does not drive. DR said that no decisions had been made in relation to services. He anticipated that any nursing placement would meet SO’s needs in relation service provision. He indicated with SO’s declining health that he expected there would be a need for future health care decisions. Mr DR recommend an appointment for one year in relation to the following matters: accommodation, health care and service provision.
  2. [33]
    The Tribunal made the following findings:
    1. SO’s needs were assessed as High by the ACAT Team
    2. He is currently placed in the Gordonvale Hospital waiting placement in a nursing home.
  3. [34]
    The Tribunal concludes:
    1. Without an appointment there is likely to involve reasonable risk to SO’s health and welfare.
    2. Without an appointment, SO’s interests would not be a protected.

Who is most appropriate to appointed as Guardian.

  1. [35]
    ST indicated to the Tribunal that she did not want to undertake a formal role. She would focus on providing care and affection for the adult.
  2. [36]
    BK from Queensland Health supported the appointment of the Public Guardian.
  3. [37]
    DJ from Queensland Health supported the appointment of the Public Guardian.
  4. [38]
    AS indicated that the Trustee is working closely with the Public Guardian
  5. [39]
    The Tribunal made the following findings:
    1. ST does not want a formal appointment;
    2. There are no family members willing to undertake the role; and
    3. The Public Guardian is a professional Guardian who can support SO with important personal decisions.
  6. [40]
    The Tribunal made it clear to the Public Guardian that it would be in SO’s best interests if he were located in Westcourt close to where ST lives. This will enable the opportunity for her to visit him on a regular basis.

Does SO need help with his financial decisions?

  1. [41]
    AS told the Tribunal that the Trustee had visited SO’s unit with the RSPCA to remove his two cats and access his financial documents. These documents showed the following assets:

Guardianship Funeral Plan valued at $2000

NAB fixed term deposit of $5188 maturing on 12 October 2016

NAB fixed term deposit of $5102 maturing on 17 October 2016

Commonwealth Bank account

PTQ cash account of $13,603

  1. [42]
    The Trustee had cancelled the registration of his vehicle and handed the plates into Queensland Transport.
  2. [43]
    SO is now paying long stay fees for his time in hospital. The Trustee has spoken to his property owner the Department of Housing who have lowered his rent pending his placement in a nursing home. The Trustee has paid his Telstra bill and are paying him one hundred dollars as spending money whilst he is in hospital.
  3. [44]
    SA reported that an Assets and Income Test had been submitted and SO had been assessed as being of low means, which has meant that his placement will be fully supported.
  4. [45]
    ST claimed that she had not had access to his unit to get clothing. She also claimed that her passport was locked in unit. SA told ST that she could arrange with the Trustee to have access to the unit for these purposes.
  5. [46]
    The Tribunal was of the view given the medical evidence dealing with SO’s capacity that he did not have the ability to manage his financial affairs.
  6. [47]
    The Tribunal found that:
    1. SO receives a pension and has some savings that need to be managed.
  7. [48]
    The Tribunal concludes:
    1. Without an appointment, it is likely that it would involve reasonable risk to finance property.
    2. Without appointment, it is likely that SO’s interests would not be a protected.

Who should be appointed to assist SO with his financial affairs?

  1. [49]
    ST indicated to the Tribunal that she did not want to undertake a formal role. She would focus on providing care and affection for the adult.
  2. [50]
    BK from Queensland Health supported the appointment of the Trustee.
  3. [51]
    DJ Davidson from Queensland Health supported the appointment of the Trustee.
  4. [52]
    The Tribunal made the following findings:
    1. ST does not want a formal appointment;
    2. There are no family members willing to undertake the role;
    3. The Trustee is a professional Administrator who can support SO with important financial decisions.
  5. [53]
    The Tribunal directs that a copy of these reasons that have not been un-identified should be provided to Justice and the Attorney General. This will allow Justice and Attorney General to consider the actions of the Justice of the Peace (Qualified) GR in this matter and the general training of witnesses around the capacity of principals to execute enduring documents.
  6. [54]
    The Tribunal makes the following orders:
  1. The following Enduring Power of Attorney for SO is overtaken by the making of this appointment and, in accordance with section 22 (2) the Guardianship and Administration Act 2010 can no longer be acted upon to the extent this appointment has been made: (a) the Enduring Power dated 18 February 2016 appointing ST for financial, personal and health matters.
  2. The Tribunal declares that SO lacks capacity for all personal and financial matters.
  3. The Public Guardian is appointed as guardian for the following personal matters: accommodation; health care; and service provision.
  4. The Public Trustee of Queensland are appointed as administrator for SO for all financial matters.
  5. Unless the Tribunal orders otherwise, this appointment remains current for one year.
  6. The Tribunal directs the administrator provide accounts to the Tribunal when requested.
  7. The appointment remains current until further order of the Tribunal.
Close

Editorial Notes

  • Published Case Name:

    SO

  • Shortened Case Name:

    SO

  • MNC:

    [2016] QCAT 343

  • Court:

    QCAT

  • Judge(s):

    Member Johnston, Member Dr Daniel Stepniak

  • Date:

    28 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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