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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
PCA  QCAT 303
In applications about matters concerning PCA
GAA5893-19, GAA 9391-19
Guardianship and administration matters for adults
8 October 2019
15 August 2019
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – capacity, enduring power of attorney – where tribunal satisfied the presumption of capacity is rebutted – where any enduring power of attorney is declared invalid
Guardianship & Administration Act 2000 (Qld) (‘GAA’) Schedule 4, s 12, s 82(2)
Powers of Attorney Act 1998 (Qld) (‘POA’), s 41, s 50(1)(a)(i), s 113(2)
PE, daughter of PCA
PL, daughter of PCA
PCA (the adult)
CJ, friend of the adult
MG, friend of the adult
CR, friend of the adult (by telephone for part of the hearing)
SF Reid, Justice of the Peace and witness to the Enduring Power of Attorney dated 29 March 2019 (for part of the hearing)
L Reid, wife of Stephen Frank Reid (for part of the hearing)
Dr E Cameron, general practitioner (by telephone for part of the hearing)
L Matthewson, Solicitor, was granted leave to represent PE and PL
REASONS FOR DECISION
- PCA is 68 years old. He and his wife, PA, are residents of an aged care facility near Brisbane. PA entered the facility in 2015. PCA entered the facility in 2017, after a protracted hospital admission.
- The decision for the adult to relocate to the aged care facility was made by his daughters, PE and PL, in their capacity as the adult’s attorneys under an Enduring Power of Attorney dated 9 January 2014. The attorneys were jointly appointed for personal/health and financial matters, with the power for financial matters to begin immediately. PE and PL signed the attorney’s acceptance on 9 January 2014 and 19 January 2014, respectively.
- At the time of the hearing, PCA was living in his own property, utilising the leave/respite provisions within the aged care legislation. PCA is seeking to relocate from the aged care facility and return to his property on a permanent basis.
- On 29 March 2019, the adult revoked the Enduring Power of Attorney of 9 January 2014, in a written document, and appointed three friends with whom he had attended school, CR, MG and CJ, as attorneys for financial and personal/health matters. The decisions by the attorneys were to be made as a majority, with the power for financial matters to begin immediately. CR, MG and CJ each signed the attorney’s acceptance.
- On 8 May 2019, the Tribunal received an application from PE seeking a declaration about the capacity of the adult to make the Enduring Power of Attorney dated 29 March 2019. At the hearing, the Tribunal initiated an Application for an Order about an Enduring Power of Attorney and abridged time to allow for the application to proceed.
- The Tribunal is required to consider the capacity of the adult, or principal, to make the Enduring Power of Attorney.
- The POA provides that a principal may make an Enduring Power of Attorney only if the principal understands the nature and effect of the Enduring Power of Attorney.
- Understanding the nature and effect of the Enduring Power of Attorney includes understanding the following matters —
- the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
- when the power begins;
- once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;
- the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;
- the power the principal has given continues even if the principal becomes a person who has impaired capacity;
- at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.
- The Tribunal must have regard to the POA in its consideration of PCA’s written revocation of the Enduring Power of Attorney dated 9 January 2014.
A principal’s Enduring Power of Attorney is revoked, to the extent of an inconsistency, by a later enduring document of the principal.
If a principal gives —
(a) power for a matter to an attorney by an Enduring Power of Attorney; and
(i) power for the matter to a different attorney by a later Enduring Power of Attorney;
the earlier Enduring Power of Attorney is revoked to the extent it gives power for the matter.
- PCA is presumed to have capacity in accordance with section 7 of the GAA and general principle 1 of Schedule 1 under the GAA.
- The GAA defines capacity as follows:
Capacity for a person for a matter, means the person is capable of -
- understanding the nature and effect of decisions about a matter; and
- freely and voluntarily making decisions about the matter; and
- communicating the decisions in some way.
- The Tribunal is to consider the medical evidence and submissions from the parties to determine if the presumption of capacity is to be rebutted for the adult.
- Written medical evidence before the Tribunal included a document dated 4 August 2015 written by Dr Fiona Harris, a consultant physician in internal medicine and geriatrics. Dr Harris provides the adult has a diagnosis of Parkinson’s disease and had been utilising deep brain stimulation (‘DBS’) for 3 years at the time the report was written. Dr Harris also states the PCA was experiencing a cognitive decline. The document includes that the adult was administered the Cognitive Assessment of Minnesota (‘CAM’) and that he:
…showed moderate difficulty with auditory and visual memory and sequencing; moderate difficulty with attention span and severe difficulty with complex problem solving and mental flexibility.
Dr Harris concludes that ‘PCA now requires his EPOA to assist with all complex decision making and future plans. His EPOA needs to assist with all financial, medical and lifestyle decisions’.
- The above document was referenced in a certification dated 27 October 2016 by Dr Philip Mosley, a consultant psychiatrist. Dr Mosley writes that:
PCA was assessed by the multidisciplinary team at St Andrew’s War Memorial Hospital from 24-27 October 2016. He underwent psychiatric and allied health assessment, which included cognitive testing. PCA is considered to have deficits in higher-level reasoning and executive functioning. This is likely a consequence of his longstanding Parkinson’s disease. Due to concerns about his judgment we considered that PCA is not capacitous to make complex decisions about his personal circumstances, health care or finances. His existing Enduring Power of Attorney should be enacted, with his daughters now acting as his substitute decision makers. He should also not be acting as his wife’s substitute decision maker henceforth. This advice mirrors a similar assessment carried out by Dr Fiona Harris in 2015.
- The Tribunal had further documents penned by Dr Philip Mosley about the adult’s decision-making capacity, with the most recent dated 8 August 2019. Relevant details of the documents are outlined below, as such medical evidence also provides information as to the progression of PCA’s Parkinson’s disease.
- Dr Mosley provided further clinical opinion in relation to the adult’s decision-making capacity on 2 April 2017 in a letter to Dr Kimberley Hicks at Belmont Private Hospital. He states that the adult’s daughters have enacted the Enduring Power of Attorney as a consequence of the recommendation of the multi-disciplinary team at St Andrew’s War Memorial Hospital, due to the adult’s pervasive cognitive deficits attributable to his Parkinson’s disease which was diagnosed in 2000. Dr Mosley continues that the Enduring Power of Attorney was enacted in late 2016 in the context of significant concerns being raised by his daughters, including ‘failure to adequately manage his wife’s dementia care, impulsive purchases of motor vehicles and a motor bike, risky behaviour such as inviting homeless individuals to stay with him’, as well as associating with persons who had allegedly made threatening advances towards his daughters. Dr Mosley further provides that PCA had not been paying his council rates or utility bills and had consequently incurred debts.
- On 27 July 2017, Dr Philip Mosley provided a summary of the treatment and care he provided to the adult from ‘Neurosciences Queensland’, a movement disorders centre in Brisbane to the Nurse in Charge at the adult’s residential aged care facility. In this document, Dr Mosley states PCA has dementia, which is:
…primarily manifest with executive dysfunction. Therefore, at baseline, he has reasonable orientation and short-term memory, but shows severe problems with planning, judgement, motivation and organisation. He does therefore not have capacity to make complex decisions about his accommodation, healthcare, provision of services or finances, and his pre-existing Enduring Power of Attorney is active in these domains.
Dr Mosley provided information that PCA has a history of depression, and that early in 2017, during a prolonged admission complicated by an infected knee prosthesis, the adult developed an acute delirium associated with persecutory psychotic symptoms, and made a suicide attempt in the hospital setting. Dr Mosley concluded that care facility staff should be alert to any changes in the adult’s mood and behaviour, and that should the adult become tearful or suspicious a review by a psychiatrist should be facilitated by his Enduring Power of Attorney.
- In a letter dated 26 September 2017 to Dr Ewen Cameron, a general practitioner, Dr Philip Mosley states that he would like to discuss proposed psychotropic medication changes with the adult’s attorneys. He also expressed concerned about the adult’s certification to drive due to the adult’s ‘dementia of the frontal/executive type manifest primarily with poor judgement and difficulties with complex sequencing’. He added ‘he therefore presents well on mental state with no gross disruptions to his memory or language’ and that, ‘as the symptoms of Parkinson’s disease can fluctuate quite markedly’ Dr Mosley did not feel confident that PCA ‘would be able to accurately discern whether he is fit to drive on a given day’.
- Dr Mosley, in a further letter dated 28 November 2017 to Dr Ewen Cameron, reiterated that he had:
…previously assessed PCA’s capacity to make decisions about accommodation and care needs on a number of occasions and I have found him to be lacking in capacity. This has been supported by the geriatrician, Dr Fiona Harris, who has reached similar findings.
Dr Mosley provided information that PE, as the adult’s ‘statutory decision maker’, was considering to accede to the adult’s requests to move back home from the residential aged care facility. He added that PE was concerned the relocation ‘could leave PCA significantly compromised in a financial sense if he needed to be placed again in the nursing home’. Dr Mosley stated that PCA manifested, consistent with Parkinson’s disease dementia manifest with frontal/dysexecutive features, ‘a concrete reasoning style with limited flexibility and an inability to consider his deficits or the potential for his condition to deteriorate in the future’. Dr Mosely added that while the adult was ‘currently functioning relatively well from a physical perspective, he could not conceive of a future where he might require more substantial assistance with his activities of daily living even though he’d been profoundly dependent at times over the past two years’. Further to this, Dr Mosley said PCA ‘was not able to deliberate upon the financial implications of moving from the aged care facility into his home’, and that PCA did not consider he required domestic assistance except for gardening, in the context of him being previously assessed as eligible to receive a category 4 home care package.
- On 14 December 2017, in a letter to Ms Helen Denmar, Service Manager at the adult’s aged care facility, Dr Philip Mosley said that the adult does not have the capacity to self-discharge from the residential aged care facility, and that the adult’s daughters as his enduring powers of attorney were responsible for such decisions. Dr Mosley stated the adult’s ‘decision-making and reasoning had consistently been noted to be poor’. He provided his clinical impression that ‘he would not be able to discern and make an appropriate judgement on any future fluctuations in his functioning necessitating increased care and support’. The psychiatrist stated he had last reviewed PCA on 28 November 2017 and that his cognitive capacity remained unchanged.
- On 17 July 2018, Dr Mosley states in a letter to Dr Cameron, general practitioner, that PCA continued to ‘agitate for a discharge from the aged care facility and return to independent living at home’ in the context of continuing to ‘manifest severe deficits in longer term planning and judgement that impair his capacity to make informed decisions about his medical care and the services that he receives, as well as his accommodation’. Dr Mosley added that PCA ‘was unable to take stock of the potential risks associated with a move back to independent living. He discounted his high falls risk and was relatively dismissive about the supervision he would need in terms of personal care, shopping and cooking. He was also unaware of the length of time that it would take to obtain an appropriate level 4 support package and the resulting gap in care that he would be exposed to during this time. He was unable to consider the financial risks that he would be exposed to should he require a re-entry into the aged care system and the financial penalties that he would incur. His strategy for dealing with this was “I just won’t go back”’. Dr Mosley further advised that the adult’s daughters were making decisions for the adult as his enduring powers of attorney.
- In an email dated 12 February 2019 to PE and PL, Dr Mosley reiterated his medical opinion that PCA has ‘a dementia with features of executive dysfunction i.e. his short-term memory, orientation and language are good but he has difficulty with higher-level cognition such as planning and complex decision making’. He further provided that ‘it is not appropriate for PCA to resume these higher-level judgements’ and that the adult requires an independent decision-maker appointed by QCAT should they step down from their roles as enduring powers of attorney as a consequence of the adult being ‘prone to sabotage’ their decisions.
- The final evidence from Dr Mosley is in the form of an email of 8 August 2019 to Leanne Matthewson, in her role as solicitor for PE and PL. He states that Enduring Power of Attorney of 2014 in favour of PE and PL was enacted in 2017 by Dr Fiona Harris, geriatrician, and that this evaluation was subsequently corroborated by himself and Professor Peter Silburn, the movement disorders neurologist. Dr Mosley states he last reviewed the adult during an inpatient stay at St Andrew’s War Memorial Hospital in March 2019. Dr Mosley provides that his
…longitudinal and consistent view (I have been involved in PCA’s care since 2014) is that PCA lacked the capacity to make complex decisions regarding his healthcare, lifestyle and finances on account of his executive dysfunction. This affects his ability to plan, to alter plans and problem-solve when required, and to initiate and self-regulate his behaviour. There has been a consistent pattern of impulsive behaviour and he has been vulnerable to exploitation and misadventure. This has been supported by a cognitive profile indicating executive dysfunction when assessed with the relevant instruments.
Dr Mosley concludes by stating he has not recently assessed the adult’s specific capacity to appoint an Enduring Power of Attorney.
- Dr Mosley was unavailable to attend the hearing by telephone to provide oral evidence.
- In addition to the written opinions of Dr Philip Mosley, the Tribunal had written evidence of Dr Ewen Cameron, the adult’s general practitioner of 20 years. Dr Cameron provides in a letter dated 26 April 2019 (28 days after the adult made the Enduring Power of Attorney of 29 March 2019) that he ‘examined the adult today and performed a mini mental state exam. I believe he has capacity to make decisions in regards to appointing a new attorney to handle his affairs’.
- Dr Cameron availed himself to provide oral evidence to the hearing about his consultation with the adult on 26 April 2019. Dr Cameron stated he did not take notes in relation to the details of the appointment. He recalled he met with the adult alone in his surgery. He stated he had been the adult’s general practitioner for many years, and was aware of the adult’s ‘general’ and ‘life’ circumstances, including his ‘general health’, ‘general mental capacity’ and ‘judgement’ about his own affairs. Dr Cameron stated he was aware of the Enduring Power of Attorney in which the adult appointed his daughters. He said he knew the adult was ‘unhappy with his situation as it was’ and that the adult wanted to change the Enduring Power of Attorney to ‘move on’.
- Dr Cameron could not recall the adult’s score on the Mini-Mental State Exam (MMSE) he administered during the appointment, although he believes it was 30/30. He submitted that the MMSE result would have confirmed his opinion that the adult’s ‘cognitive function was good’ and that he was, therefore, ‘confident’ the adult was ‘aware of the significance of what it [an Enduring Power of Attorney] was and changing it’. He said his opinion was informed by his knowledge of the adult spending his days ‘involved in the community’, interacting with others, performing ‘responsible roles’ and ‘functioning at a reasonable level in the community’.
- At the hearing, Dr Cameron stated he did not know that the adult had made an Enduring Power of Attorney appointing CR, MG and CJ some 28 days before the consultation.
- A letter dated 12 June 2019 of Dr Anita Cochrane, a (clinical psychologist and accredited practising dietician) to CR, CJ and MG provides further opinion in relation to the adult’s capacity to make an Enduring Power of Attorney. The letter is addressed to the recipients in their role as acting attorneys for the adult. The author states CR, CJ and MG requested she ‘assess PCA’s cognitive capacity and ability to make the decision to change his attorneys’.
- Dr Cochrane states the assessment took place on 10 June 2019, and that the adult attained a score of 28/30 on the Montreal Cognitive Assessment (‘MoCA’), which was indicative of ‘normal cognitive functioning’. The CNS Vital Signs assessment was also undertaken. The author does not state the score the adult attained, and provides the test results confirmed he has an ‘average cognitive capacity and no cognitive impairments that would impact on his decision-making ability’. The results of the Depression, Anxiety and Stress Scale (‘DASS’) indicated that ‘PCA did not endorse any items indicating symptoms of depression, anxiety or stress that would impact on his cognitive function’. Dr Cochrane states that during a clinical interview, the adult ‘responded in an appropriate way’ to questions and provided ‘a cogent overview of his health history, social history and current situation’. Dr Cochrane stated that PCA was satisfied with his decision to make the Enduring Power of Attorney in favour of his friends from school, and he sought to preserve his relationship with his daughters. She stated that the adult did not make the decision ‘lightly’, as it took him 8 months to ‘process his decision’. Dr Cochrane opined the adult ‘based his decision on logic and analytical reasoning of the facts at hand’. Dr Cochrane also relied on the adult’s multiple community roles and interests to ‘substantiate PCA’s ability to communicate and function fully in the community’, opining such factors were ‘overwhelming’.
- Dr Cochrane states that the adult ‘said he chose his EPOAs because they were willing to adopt a consultative approach in helping him make decisions about his life’. Dr Cochrane concludes that, based on the adult’s presentation, clinical interview and cognitive testing, the adult ‘has the cognitive ability to make a clear, rational and logical decision regarding his choice of EPOAs’.
Medical opinion in relation to the above clinical evidence
- In his email dated 8 August 2019 to Leanne Matthewson, Dr Philip Mosley, psychiatrist, provides a comment on the assessments and conclusions of Dr Anita Cochrane, outlined in the above letter. Dr Mosley suggests the assessments undertaken by Dr Cochrane ‘cannot provide either an affirmation or refutation’ of the adult’s capacity to appoint an Enduring Power of Attorney, as ‘no reference is made to the adult’s understanding of the nature and scope of an EPOA, the circumstances under which an EPOA would be enacted, the circumstances under which appointed statutory decision makers could be changed and the restrictions on changing an EPOA once it has already been enacted’.
- Dr Mosley also states that the cognitive tests employed by Dr Cochrane are, in his opinion, ‘regrettably brief’ and ‘insufficient to address PCA’s specific cognitive profile characterised by executive dysfunction’. He states that Dr Cochrane may not have received ‘an accurate history’ with regard to the adult’s ‘prior decisional capacities’ as the ‘individuals seeking to act as statutory decision makers for PCA have not attended any medical appointments with him or contacted his treating team seeking information about his condition’. Dr Mosley states that this, in turn, may have influenced Dr Cochrane’s choice of assessments.
- PCA provided a detailed submission, containing a statutory declaration dated 27 June 2019. The document also summarises the attached statutory declarations of CR, CJ, MG, Mark O’Shaughnessy (owner of the café in which the adult volunteers) and Felix Grayson, retired Assistant Commissioner of Police. The adult also refers to the medical report dated 26 April by Dr Cameron and the letter dated 12 June 2019 of Dr Cochrane. He makes submissions in relation to the above documents of Dr Mosley, (with the exception of the email dated 8 August 2019 to Leanne Matthewson). He also responds to the submissions filed in the application. PCA concludes with a summary, the relevant details of which are outlined below:
- (a)He had the ‘requisite capacity’ to make the Enduring Power of Attorney of 29 March 2019, appointing the nominated attorneys to ‘assist’ him ‘with making decisions for the future in relation to financial and personal/health matters.’ He trusts the nominated attorneys to ‘counsel and advise’ him in relation to ‘decisions involving personal/health/financial matters needing to be addressed in the future’. PCA acknowledges that he ‘will require help now and, in the future’;
- (b)The witness to the document is a qualified Justice of the Peace, who has confirmed his ‘capacity at the relevant time in relation to the matter’;
- (c)‘There is a presumption of capacity which needs to be rebutted in such circumstances’; and
- (d)The submission is supported by Dr Cameron, Dr Cochrane and the various declarations.
- In his oral evidence to the Tribunal, PCA, confirmed his written submission and explained his current living arrangements. He confirmed he was appointed with his daughters as an Enduring Power of Attorney for his wife, PA. When asked why he was not acting as his wife’s attorney, given her advanced stage of dementia, he stated ‘it just seemed natural that PE would take it over’.
- When questioned about the Enduring Power of Attorney in favour of his daughters, PCA told the Tribunal he ‘didn't appoint them’ and that ‘they just assumed’. He added ‘there is not a form signed by me that I know that appointed them’ and that ‘they were seeing my solicitor’. He made reference to a power of attorney, rather than one of an enduring nature, and stated that ‘if you appoint someone it doesn’t necessarily say it starts on the spot’. He said when he and his wife made such a document, ‘we were expecting one of us to act with them’.
- When asked about the Enduring Power of Attorney dated 29 March 2019, he stated that the witness, Mr Reid, was known to him. MG travelled with the adult to the appointment. He mistakenly thought that he appointed the attorneys to act jointly, rather than make decisions as a majority, and was unaware that the power for financial matters was to begin immediately. PCA told the Tribunal the attorneys had not commenced acting as ‘there hasn’t been a situation’ and ‘they’re there if I need them’.
- PCA recalled obtaining the certificate of 26 April 2019 from Dr Cameron, however he submitted he did not remember having ‘much discussion’ about an Enduring Power of Attorney.
- The Tribunal received both written and oral evidence from Mr Stephen Frank Reid, who witnessed the Enduring Power of Attorney of 29 March 2019. At the hearing, Mr Reid confirmed his written evidence that he believed PCA understood the nature and effect of the document.
- Upon questioning, Mr Reid stated he knew the adult prior to the appointment, and that the adult had ‘called before on many occasions’. Mr Reid submitted that as he knew the adult’s ‘background’ and ‘circumstances’, he did not ask the ‘fundamental questions’ which he would routinely ask the principal to an Enduring Power of Attorney as a witness, in accordance with The Duties of Justices of the Peace Qualified Handbook. Mr Reid provided that such questions would have included asking principals their address, do they go to church, the date, how many children they have and the birthdays of their children.
- Mr Reid stated he did not take notes of the meeting, because ‘when you know the person, when you consider what the facts were – I thought it was inconsequential’. Mr Reid said he was aware of the adult’s diagnosis of Parkinson’s disease, and that he ‘guessed’ the adult’s daughters were acting as his attorneys, by the conversation he had with the adult. He did not ask the adult his reason for deciding to revoke the Enduring Power of Attorney of 2014 and appoint alternative attorneys, adding that it was not his ‘place to enquire if there had been a family fallout’.
- The witness stated he could not recall the specifics of any questions he asked PCA about an Enduring Power of Attorney, (e.g. when does the power begin), but believed he was ‘fairly convinced’ that he ‘would have asked him - almost without doubt’ about the nature and consequences of the document.
- Evidence from PE and PL was obtained through their written submissions and from direct questioning to PE. PE stated the Enduring Power of Attorney dated 9 January 2014 was made after the adult’s wife, PA, was diagnosed with dementia.
- PE stated the adult was appointed as Enduring Power of Attorney for PA, together with PE and PL, on 9 April 2014. The attorneys were able to make decisions in relation to financial and personal/health matters, with the power for financial matters to begin immediately. The document provides that in the event PCA is unable or unwilling to act, then PE and PL are to act jointly. PCA and PE signed the attorney’s acceptance on 9 January 2014 and PL signed same on 19 January 2014. During the hearing the Tribunal obtained a certified copy of the document.
- PE explained that PCA was medically assessed as unable to act as attorney for his wife, PA, by Dr Fiona Harris on 4 August 2015. She submitted that she and PL have been acting as joint attorneys for PA since 4 August 2015 by producing the Enduring Power of Attorney document together with the letter of Dr Harris to formal authorities including Centrelink, Medicare and My Aged Care, and to hospitals, the residential aged care facility and the financial planner, Darryl Prenzier.
- PE stated that, based on the medical opinions of Dr Harris in 2015 and Dr Mosley in 2016, she and PL began a process of acting as PCA’s attorneys for different matters at different times. They began by acting in relation to financial matters, obtaining visibility of bank accounts, protecting the adult’s cash assets, paying bills, and seeking the guidance of a financial planner in relation to superannuation and place of residence.
- In relation to personal/health decision making for the adult, PE submitted that their support developed to actual decision making, as PCA required more assistance with coordinating with care workers and attending doctors’ appointments. She stated their roles as attorneys enabled their attendance at medical appointments.
- PE stated the decision to relocate the adult to the residential aged care facility in September 2017 occurred after many months of the adult being hospitalised, in various hospitals, in relation to a ‘long term medical situation’ involving his physical and mental health. She submitted their decision was the result of considering the opinions of medical staff at the hospitals and multi-disciplinary professionals involved in PCA’s previous care, including Professor Silburn, Dr Harris, Dr Mosley and Dr Cameron. The attorneys also consulted with the financial planner in relation to the financial consequences of the accommodation decision. PE stated the factors were ‘complex’ and the process was ‘traumatic for all’.
- PE concluded her evidence by stating she and PL were seeking to continue to act as attorneys for the adult, and that she believed that in the event they became unable or unwilling to act, another family member, perhaps the adult’s brother, would be ‘a better fit’.
- The final oral evidence was obtained from CJ, MG and CR, who confirmed their written submissions to the Tribunal, including their view that the adult had ‘complete capacity’.
- CR submitted that he was ‘absolutely confident’ the Enduring Power of Attorney of 29 March 2019 was the decision of PCA. He stated the adult arranged the appointment of 26 April 2019 with Dr Ewen Cameron. He said he transported the adult to the appointment and that the general practitioner had been provided with ‘a full brief’.
- CR said he arranged the appointment for the adult with Dr Anita Cochrane. CR told the Tribunal he had known Dr Cochrane for many years and that he, in his former legal capacity in relation to Suncorp Insurance matters, had referred clients to her. CR stated Dr Cochrane had been provided with a ‘complete brief’, which included correspondence between himself and Ms Matthewson, along with copies of the information before the Tribunal penned by Dr Mosley that was available at that time.
- CR submitted that he, CJ and MG had not commenced acting as the adult’s attorneys for personal and financial matters. He stated that he, CJ and MG were not directing or assisting the adult, but rather ensuring the adult does not ‘miss anything’ when making his own decisions.
- CR stated that ‘some of the things PCA is faced with are extremely complex’, for example, financial reports. He said the adult’s health is subject to medication, and when the adult is physically ill he is ‘incapable of doing much’. He also provided the adult experiences anxiety as a result of stress.
- CR submitted he had attempted to support the adult with paying bills, however he learned that PE and PL had already attended to the matters as attorneys for the adult. He added he had attempted to obtain bank statements belonging to the adult, and that there had been discussions with the adult’s financial adviser, Darryl Prenzier.
- CJ, CR and MG concluded their evidence by stating that they are involved and available, and that any actions they have taken, and any assistance they have provided, have been based upon decisions made by the adult.
Did PCA have capacity to make an Enduring Power of Attorney on 15 August 2019, the date of the hearing?
- The Tribunal is required to determine the adult’s capacity for the matter at the date of the hearing, as the threshold issue.
- The matter before the Tribunal, implicit in the application, concerns the capacity of the adult to make an Enduring Power of Attorney. For a principal to understand the nature and effect of an Enduring Power of Attorney, having regard for the provisions of the s 41(2) of the POA, the principal requires capacity for complex matters.
- The Tribunal is not satisfied that Mr Stephen Reid, as the witness to Enduring Power of Attorney dated 29 March 2019, ascertained the adult’s understanding of the nature and effect of an Enduring Power of Attorney, having regard to section 41(2) of the POA. By his own admission, and in the absence of any notes written at the time the Enduring Power of Attorney was signed, Mr Reid stated he did not ask the requisite questions in relation to capacity to make an Enduring Power of Attorney, as outlined in the The Duties of Justices of the Peace Qualified Handbook, as he knew the adult and was aware of his circumstances. On 29 March 2019, the adult’s circumstances included that his daughters were acting as his attorneys and, as such, the adult was unable to relocate from the residential aged care facility to return to his home.
- Dr Fiona Harris, a consultant physician in internal medicine and geriatrics, provided her opinion, based on cognitive assessment, in August 2015 that PCA required his Enduring Power of Attorney to assist with all financial, medical and lifestyle decisions. Her decision was based upon the adult being assessed as having moderate difficulty with memory, sequencing and attention span, and complex difficulty with problem solving and mental flexibility.
- The above medical opinion was supported by Dr Philip Mosley on 27 October 2016, in light of results from psychiatric and allied health assessment that included cognitive testing, during the adult’s admission to St Andrew’s War Memorial Hospital from 24-27 October 2016. The multi-disciplinary assessment identified deficits in higher level reasoning and executive functioning, likely as a consequence of his Parkinson’s disease. At this time, Dr Mosley also confirmed that the adult’s Enduring Power of Attorney should be enacted as the adult was not able to make complex decisions about his personal circumstances, health or finances, and that PCA should not be acting as attorney for his wife.
- The evidence before the Tribunal is that PE and PL commenced acting as Enduring Powers of Attorney for PCA and PA as a consequence of the opinions of Dr Harris and Dr Mosley, and have presented the medical certifications to formal authorities (e.g. Centrelink, banks) as required. At the time of the hearing, PE and PL were cognisant of their legislative responsibilities as attorneys and were continuing to act as attorneys for personal/health and financial matters.
- Dr Philip Mosley has been involved in the adult’s care since 2014 and had last reviewed the adult in March 2019, when the adult was in St Andrew’s War Memorial Hospital. He has remained informed of the adult’s current circumstances by the adult’s daughters acting in their role as attorneys. Dr Mosley has not changed his opinion as is demonstrated in the correspondence dated 2 April 2017, 27 July 2017, 26 September 2017, 28 November 2017, 14 December 2017, 17 July 2018, 12 February 2019 and 8 August 2019. By November 2017, Dr Mosley stated the adult had dementia with frontal / dysexecutive features, and he provided details of his conversations with PCA as examples of the adult’s inability to consider his deficits, or the potential for his condition to further deteriorate. In the more recent documentation of 8 August 2019, Dr Mosley states the adult demonstrates impulsive behaviour and is vulnerable to exploitation and misadventure.
- Contrary viewpoints are provided by Dr Ewen Cameron, the adult’s general practitioner of 20 years and Dr Anita Cochrane, a clinical psychologist and accredited practising dietician.
- Dr Cameron submitted he formed the view the adult is able to make an Enduring Power of Attorney from his knowledge of the adult’s life circumstances and on a score attained by the adult on the Mini Mental State Examination (‘MMSE’) administered by him on 26 April 2019. Dr Cameron could not recall the adult’s MMSE score, and did not make a written record of same. He did not make notes on any conversation he had with the adult on that day in relation to understanding the nature and effect of an Enduring Power of Attorney. Dr Cameron was unaware at the time of the appointment of 26 April 2019 that the adult had made the Enduring Power of Attorney of 29 March 2019. He became aware of this information during the hearing. There is no evidence before the Tribunal that Dr Cameron formed his view having regard to the adult’s understanding of the nature and effect of an Enduring Power of Attorney as set out in the provisions of s 41(2) of the POA.
- Dr Anita Cochrane formed her clinical opinion from the information provided to her by CR, a single interview with the adult and her clinical assessments. Unlike Dr Cameron, she was aware at the time of the assessment that the adult had made the Enduring Power of Attorney of 29 March 2019. There is no evidence before the Tribunal that Dr Cochrane formed her view having regard to the provisions of s 41(2) of the POA in relation to a principal understanding of the nature and effect of an Enduring Power of Attorney.
- The Tribunal places greater weight on the specialist evidence of Dr Fiona Harris, a consultant physician in internal medicine and geriatrics, and the consistent evidence of Dr Philip Mosley, a consultant psychiatrist. The written evidence of Dr Mosley provides a longitudinal view spanning over five years, based on his psychiatric assessment, multi-disciplinary clinical assessments and liaison with other medical specialists involved in PCA’s care, (e.g. Professor Peter Silburn, neurologist). Dr Mosley’s contemporaneous documentation provides examples of the adult’s functionality and behaviours that further informed his medical opinion.
- The weight of medical evidence indicates that PCA has been longitudinally assessed, by multiple medical and allied health clinicians, as having pervasive cognitive deficits attributable to Parkinson’s disease, since August 2015, as identified by Dr Harris. His deficits have been identified in areas of attention span, auditory and verbal sequencing, complex problem solving, mental flexibility, high level reasoning, judgement and executive function. PCA has been medically assessed as being unable to make complex personal and financial decisions since August 2015.
- The Tribunal determines that because of the above cognitive deficits that have been repeatedly medically and professionally evaluated since 2015, PCA is unable to understand the nature and effect of his complex personal and financial decisions.
- The Tribunal considers that the factors of s 41(2) of the POA render the decision to make an Enduring Power of Attorney complex in itself. In addition to the evidence of Dr Harris and Dr Mosley, the Tribunal places weight PCA’s oral evidence in relation to questioning about the provisions of s 41(2) of the POA.
- In his oral evidence to the Tribunal, PCA did not demonstrate an understanding of when the power of an Enduring Power of Attorney begins. He could not describe to the Tribunal when, if at all, he acted as attorney for his wife, and the circumstances under which PE and PL began acting as attorneys for his wife. He did not demonstrate an understanding that he had been relieved of his legislative obligations to act as his wife’s Enduring Power of Attorney, due to the medical assessments and associated documentation from Dr Harris in August 2015 and Dr Mosley in October 2016.
- The adult did not demonstrate an understanding that his own Enduring Power of Attorney could be enlivened without his signature at the time the attorneys commenced acting, stating he thought his daughters were able to act because they consulted with his solicitor in his absence. He provided no evidence to the Tribunal that he understood that in the Enduring Power of Attorney documents of 9 January 2014 and 29 March 2019, the attorneys’ power for financial matters was to begin immediately.
- PCA did not demonstrate he was aware the principal could limit the exercise of powers for attorneys. He provided no evidence to the Tribunal that his daughters were empowered to act jointly, and he erroneously thought that CR, MG and CJ were to act jointly, rather than make decisions as a majority.
- PCA has been attempting to relocate from the residential aged care facility and return to his home, and is aware that he has been unable to do so as PE and PL have been acting as his attorneys. In these circumstances, he does not demonstrate an understanding that his inability to oversee the attorneys’ use of their power stems from the fact that he has been medically assessed as being incapable to do so.
- Upon consideration of the evidence, the Tribunal is not satisfied that PCA understands the nature and effect of making an Enduring Power of Attorney, as he did not satisfy the requirements of s 41(2).
- The evidence before the Tribunal establishes that PCA does not have capacity to make an Enduring Power of Attorney.
- Accordingly, the Tribunal rebuts the presumption of capacity for PCA for making an Enduring Power of Attorney.
Did PCA have capacity to make the Enduring Power of Attorney of 29 March 2019?
- The relevant evidence before the Tribunal is the medical evidence prior to the date of the Enduring Power of Attorney, being 29 March 2019. The assessments of Dr Cameron and Dr Cochrane are not relevant to the Tribunal’s determination of the adult’s capacity to make the Enduring Power of Attorney of 29 March 2019, as they took place one month and three months, respectively, after the Enduring Power of Attorney had been made.
- The evidence of Dr Harris and Dr Mosley has been extensively documented above.
- Significantly, Dr Mosley, in his email to Leanne Matthewson on 4 August 2019, states he last reviewed the adult in March 2019 when the adult was an inpatient at St Andrew’s War Memorial Hospital. He provides that the adult’s cognitive profile to that time indicated executive dysfunction when assessed with the relevant tests. He states that, based on his medical review of the adult in March 2019, he maintained his consistent and longitudinal view that the adult is unable to make complex healthcare, lifestyle and financial decisions on account of his executive dysfunction.
- The medical evidence before the Tribunal, in relation to the adult’s decision-making ability at 29 March 2019 indicates that PCA had been longitudinally assessed, by multiple medical and allied health clinicians, as having pervasive cognitive deficits attributable to Parkinson’s disease, since August 2015, as identified by Dr Harris. His deficits have been identified in areas of attention span, auditory and verbal sequencing, complex problem solving, mental flexibility, high level reasoning, judgement and executive function. PCA has been clinically assessed as being unable to make complex personal and financial decisions since August 2015.
- The evidence establishes that on 29 March 2019, PCA had been continuing his efforts to effect his relocation from the residential aged care facility to his home. Exiting the facility may have posed a risk to the health and wellbeing of the adult, if necessary supports were not in place, and would have had adverse financial consequences to the adult. PE and PL were exercising their power, in consideration of medical and financial advice, in making the decision to maintain the adult’s tenure at the residential aged care facility. The attorneys had been fulfilling their legal obligations as attorneys for PCA, and PA, based on the unaltered medical determination that PCA was unable to make complex personal and financial decisions, through utilising the medical certifications of Dr Harris and Dr Mosley.
- The weight of evidence before the Tribunal establishes that on 29 March 2019, PCA had been medically assessed as being unable to make complex personal and financial decisions due to cognitive deficits attributable to Parkinson’s disease. The making of an Enduring Power of Attorney is a complex decision, having regard to the provisions of s 41(2) of the POA.
- The medical evidence establishes that on 29 March 2019, PCA required his Enduring Powers of Attorney to act for personal and financial matters, and that he was incapable of acting as an Enduring Power of Attorney for his wife.
- The Tribunal determines that PCA did not have capacity to make the Enduring Power of Attorney dated 29 March 2019 (and revoking an Enduring Power of Attorney dated 9 January 2014 on 29 March 2019).
- Accordingly, the Tribunal determines that the Enduring Power of Attorney dated 29 March 2019 is declared invalid pursuant to s 113(2) of the POA and s 82(2) of the GAA.
- Published Case Name:
- Shortened Case Name:
 QCAT 303
08 Oct 2019