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  • Unreported Judgment

DLD

 

[2020] QCAT 237

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DLD [2020] QCAT 237

PARTIES:

In an application about matters concerning DLD

APPLICATION NO/S:

GAA1879-20

GAA1880-20

GAA4901-210

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

2 July 2020

HEARING DATE:

14 May 2020

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

GUARDIANSHIP

1. The Public Guardian is appointed as guardian for DLD for the following personal matters:

  1. (a)
    Accommodation;
  2. (b)
    With whom DLD has contact and/or visits; and
  3. (c)
    Provision of services.
  1. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

ADMINISTRATION

  1. The Public Trustee of Queensland is appointed as administrator for DLD for all financial matters.
  2. The administrator is to provide a financial management plan to the Tribunal within four (4) months.
  3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  4. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

NOTICE OF INTEREST IN LAND

  1. Before 14 August 2020 the administrator must:
    1. (a)
      Record the appointment as administrator on any property registered in DLD’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
    2. (b)
      Provide confirmation to the Tribunal that this has been completed by providing:
      1. A copy of the title search conducted identifying DLD’s property; and
      2. A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by DLD.
    3. (c)
      If no property is held, provide a copy to the Tribunal of a Record of a search of the Land Registry, from the Registrar of Titles confirming no property is held.
  2. If the ownership of any property of DLD changes in any way or she acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
    1. (a)
      Give a copy of this order to the Registrar of Titles; and
    2. (b)
      Give a notice to the Registrar about the changes to DLD’s interest in another property.

ENDURING POWER OF ATTORNEY

  1. The following Enduring Powers of Attorney for DLD are revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 (Qld) and s 82(2) of the Guardianship and Administration Act 2000 (Qld):
    1. (a)
      The Enduring Power of Attorney dated 10 July 2018 appointing DJK and DJC as attorneys for financial, personal and health matters.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where application for appointment of guardian and administrator – where adult had executed a power of attorney – where allegations attorneys had denied adult’s right to leave aged care facility – where alleged attorneys have withheld information from family – whether attorney’s applying general principles  whether adult’s needs could be met by attorneys- whether enduring power of attorneys should be revoked .

Guardianship and Administration Act 2000 (Qld), s 12, Schedule 2

Human Rights Act 2019 (Qld), s 9, s 13, s 15, s 19, s 24,
s 25, s 26, s 29, s 30, s 31, s 37

Powers of Attorney Act 1998 (Qld), s 66, s 84, s 116, General Principles

APPEARANCES &

REPRESENTATION:

DLD – adult

DLM – adult’s son

DS –

DM – adult’s son

DG – partner of the adult

DC – adult’s daughter

TN – granddaughter

DJK – adult’s son

DJC – DJK’s wife

DP – adult’s son

DL –  Granddaughter

PA – representing the aged care facility

RA – representing the Public Trustee of Queensland

REASONS FOR DECISION

Introduction

  1. [1]
    DLD is 89 years old and until late 2019 resided in the community with her partner of 45 years DG. She had had a diagnosis of dementia for some time and it had progressed to the point where she was occasionally wandering the streets. DLD had been a very physically active person and was active in her community. DG was also elderly and DLD’s primary carer and it became clear that he was having difficulty providing her with the level of care and monitoring necessary to ensure her safety in the community. He his own physical issues and had recently required hospitalisation for knee replacements.
  2. [2]
    DLD had five children, four sons DLM, DJK, DM and DP and a  daughter DC. DLM and DM resided interstate with DJK and his wife DJC residing close by. While DC resided near DLD had only had contact with her at family events for many years. DC and DJK did not get along while the four sons had good relationships with each other. DLM was the eldest and got along with everyone. DLM had been appointed DLD’s attorney under an enduring power of attorney made in 2017. As a result of DJK and DJC living nearby they provided a lot of support to DLD and DG. In 2018 DJK contacted DLM and it was proposed that DJK be added to the enduring power of attorney. The end result was that the enduring power of attorney appointing DLM was revoked and a new enduring power of attorney appointing DJK and DJC was executed by DLD. The reason given to the witness to the enduring power of attorney for the change was that it was better to have appointees who were close by and could act instead of an interstate attorney.
  3. [3]
    In August 2019 DG made it clear that he was unable to continue providing care to DLD having regard to her increased needs as dementia progressed and also his own physical issues. An ACAT assessment was held at the unit DLD and DG jointly owned. Present were DLM, DJC, DLD and DG. The ACAT assessor asked that some documents be signed and DLM assuming that he was still an attorney went to sign them. At this point DJC asked him to speak to DJK on the phone and he was told that he could not sign as he was no longer an attorney. Apparently DLM had as requested sent the enduring power of attorney appointing him up to have DJK’s name inserted on it and when he received it back in the mail he did not open it. The ACAT assessor noted the level of carer stress shown by DG and the ACAT approval was for respite and permanent care.
  4. [4]
    A decision was made for DLD to transition to aged care and a suitable facility was found which was close by to DG as well as DLD’s attorneys. The attorneys were advised that DLD should have no visitors for the first two weeks to enable her to settle in. The attorneys also decided that she should not have any outside visits for four weeks. They made it clear if DLD was visited during the two weeks the periods would commence again. These decisions were vigorously enforced by the attorneys. It is clear that DLD was distressed and that she wanted to return home. She did not understand why she could not be her home with DG. Unfortunately, DLD left the facility unaccompanied several times which put herself at risk. A decision was made that DLD would need to reside in a dementia secure area in the aged care facility to ensure that she could not leave the facility unescorted.
  5. [5]
    DJK and DJC were very concerned when DG took DLD shopping the second time she arrived back at the unit and did not notify them or the facility so that staff were still searching for her. They formed the view, having regard to some of the inappropriate ways DG dealt with DLD by being verbally abusive to her and physically holding her together with his inappropriate reaction when she arrived back at the unit, that DLD was not safe in the care of DG. This affected their decisions in regard to DG’s contact with DLD and willingness for them to approve DLD going on outside visits with him.
  6. [6]
    DC went to visit her mother at the request of DLM to see how she was. DLD was happy to see her and asked her to take DLD home. Whatever animosity there had been between DLD and DC was now forgotten by DLD. DC began to spend more time with DLD. DC and DJK have a poor relationship and that is clear from the emails which were filed by the parties. DJK expressed concern about the motives of DC in becoming part of DLD’s life. DC also supported DG as his relationship with DJK and DJC deteriorated.
  7. [7]
    Concerns were raised by DC that DLD felt unsafe in her room as other residents would enter her room including at night and disturb her. There was no passive monitoring of the rooms to ensure that if this occurred a carer would be able to assist DLD. DLD began sticking a chair against her door to prevent unwanted entry into her room at night. This of course was unsafe because it meant that carers would have difficulty entering her room if anything happened to DLD. DJK and DJC advised that they worked with the facility staff to deal with this issue.
  8. [8]
    It appears that DG’s visits with DLD have caused concern to the attorneys and at one point at least the police were called. This was said to be due to the way DG treated DLD in terms of it being threatening and demeaning. Other family members attest to the closeness of the relationship between DLD and DG and have supported DG to find a facility where he is able to reside independently and there is an appropriate level of supported accommodation for DLD.
  9. [9]
    There was an issue in regard to the calculation of fees for the aged care facility as it appeared that an asset of DLD’s may not have been disclosed to Centrelink when the fees were being calculated.  Her fees were at one stage greater than her income. When the care agreement was signed with the age care facility it was arranged that DG would guarantee payment of the fees and he signed the care agreement as guarantor. He and DLD had a joint bank account and the fees were being paid from that account, with DG effectively subsidising them from his own income. I note that DLD had a term deposit in her name in the amount of $85,000. It is alleged that DJK and DJC as attorneys for DLD threatened to sell the unit jointly owned by DLD and DG and in which DG was residing at the time to pay for her aged care fees.
  10. [10]
    DLM made the application to the Tribunal because he and others were concerned about DLD’s clear distress in the current facility and the way visits to DLD and outside visits were controlled by the attorneys and the inability of other family members including DG to obtain information from the facility about DLD except for of a general nature. Again this was a decision of the attorneys. Ultimately DLM, DC and DG found a facility which would provide appropriate accommodation for both DLD and DG and for DLD to be able to move there the decision makers need to be changed. Overall, DLM was concerned that the attorneys were not acting in the best interests of DLD in their decision-making by denying her contact with family members and outside visits and compromising the relationship she had with her partner, DG.
  11. [11]
    When considering an application for the appointment of a guardian and administrator the Tribunal does so in accordance with s 12 of the Guardianship and Administration Act 2000 (Qld) (GA Act). That requires the Tribunal to be satisfied:
    1. (a)
      Whether DLD has capacity to make personal and financial decisions;
    2. (b)
      There is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
    3. (c)
      Without an appointment:
      1. The adult’s needs will not be adequately met; or
      2. The adult’s interests will not be adequately protected.
  1. [12]
    If I am satisfied that DLD has impaired capacity and there is a need for decisions I still need to determine if her needs can be met without the appointment of a formal decision-maker. This takes account of the requirement that the Tribunal considers whether DLD is able to make any necessary decisions with informal support or as in this case here whether other formal decision-making arrangements such as the enduring power of attorney appointing DJK and DJC are suitable to meet her needs. If I determine that the attorneys are not suitable to meet DLD’s needs, then I may order that the attorneys may not exercise powers given to the guardian or administrator.[1]
  2. [13]
    In this case having regard to the allegations made about the way the attorneys were carrying out their duties the Tribunal initiated an application for an order about an enduring power of attorney. The Tribunal may remove and replace attorneys, remove a power from an attorney and give that power to another attorney, change the terms of an enduring power of attorney, or revoke all or part of an enduring power of attorney.[2]
  3. [14]
    The Tribunal is also subject to the requirements of the Human Rights Act 2019 (Qld) (HR Act) and limitations on DLD’s human rights must only be that which are reasonable having regard to the purpose of the limitation and whether there is any less restrictive way of satisfying that purpose.[3] These rights include recognition and equality before the law;[4] freedom of movement including choosing where to live;[5] property rights;[6] privacy and reputation including not to have the person’s family interfered with;[7] protection of families and children;[8] right to liberty and security of person;[9] humane treatment when deprived of liberty;[10] fair hearing;[11] and right to health services.[12]

Capacity

  1. [15]
    DLD is presumed to have capacity in accordance with the General Principles of the GA Act and it is for that presumption of capacity to be rebutted based on the evidence which is accepted by the Tribunal having regard to the definition of capacity in  schedule 4 to the GA Act. That is for DLD, for each of personal matters and financial matters, whether she is capable of:
    1. (a)
      Understanding the nature and effect of decisions about the matter; and
    2. (b)
      Freely and voluntarily making decisions about the matter; and
    3. (c)
      Communication the decisions in some way.
  2. [16]
    DLD was assessed by Dr KM, consultant physician and geriatrician on 18 June 2019 and he noted in his report to her general practitioner Dr WDP that a CT head scan revealed generalised cerebral atrophy, more superficial in the temporal area. His impression was that she had moderately severe dementia and that treatment, with Aricept, would prevent it worsening along with the complications of dementia. He noted that the family was in agreement. He also noted that she had an MMSE score of 14/30 on 29 March 2019. Dr MA provided a letter dated 3 October 2019 which stated that DLD had been assessed for mental capacity and that she has not insight, understanding and mental capacity to make any decisions regarding medical, legal and financial issues and that the letter was issued on family request.
  3. [17]
    DLD was also subject to an Aged Care Assessment Team assessment on 27 August 2019 at her home. A My Aged Care assessment approval was issued on 28 August 2019. She was approved for permanent residential care and residential respite care at high level. The assessment noted that DLD did not receive any formal supports and that DG was her primary carer with significant carer stress evident. DLD was said to experience cognitive impairment which impacts on her safety and ability to live in the community. It was stated that when DG was hospitalised for surgery, DJC had stayed in the home due to DLD’s cognitive impairment requiring support and supervision at all times to maintain safety. The report notes that DLD had left the house and went onto a busy highway during the assessment which had resulted in an altercation between DG and DLD. It was also noted that DG had a limited understanding of DLD’s cognitive impairment and there were no service providers.
  4. [18]
    The ACAT assessor observed that DLD had significant memory loss, repetition of information and word finding difficulties. It stated that DLD is unable to leave home without a companion, supervision, guidance and support due to cognitive impairment and associated vulnerabilities. DLD required full assistance with taking medication, shopping, meal preparation and housework. She was able to make a cup of tea and can assist with light housework duties with instruction and encouragement. DLD was unable to attend to bill payments, purchasing items and general management of finances due to cognitive impairment. It was noted that she walked independently with strong strides at fast pace and that directional assistance was required in unfamiliar environments. It was also noted that DLD always had short term memory problems and regularly had long term memory problems and impaired judgment and that she was disoriented to time always and place and people regularly. DLD was said to have occasional at-risk behaviour and wandering. The assessment of Dr KM was referred to and the MMSE score he assessed of 14/30, and that a score on the MMSE below 24 indicated possible cognitive impairment.
  5. [19]
    At the hearing which was held by teleconference I was unable to have a conversation with DLD although she recognised the voice of one of her children.
  6. [20]
    I am satisfied that as a result of the effects of dementia DLD has impaired capacity for personal and financial decisions.

Need for personal decisions

  1. [21]
    DLD is residing in a dementia secure section of an aged care facility. Some family members, DC and DLM  have expressed concern that DLD is frightened of being in this unit as other residents wander in and out of her room including at night. The attorneys did arrange for DLD to be moved closer to the carers’ station. There are also issues in regard to whether it is appropriate that DLD not be allowed to leave the facility with family members and friends. DJK and DJC were the attorneys who made the decisions around accommodation and contact. DJK confirmed at the hearing that DLD had left the unsecured part of the aged care facility placing herself at risk of harm and she was as a result moved to the dementia secure area for her protection. He considered that the facility provided an appropriate level of support and accommodation for DLD. DJK stated that it was on medical advice that DLD had not been allowed to leave the facility to enable her to settle in. I asked him whether he was aware of the General Principles in regard to maintenance of existing supportive relationships.  He indicated that he was not aware of that General Principle. DJK said in particular about DG that that there were safety issues and DG was unable to care for DLD outside the facility. He acknowledged that DG and DLD had had a good relationship but that it had changed as DLD declined. He later stated that DG was abusive and that there had been police involvement.
  2. [22]
    DLM stated that DJK was trying to keep DLD and DG apart. He acknowledged that DG had needed a break from caring for DLD and said that DG visits her every day he can. In the material filed with his application DLM filed an email to DJK where he had said that he has had phone call after phone call from DLD crying and very upset and all she wants is to be with DG. Other family members DS and TN confirmed that DLD and DG had had a good relationship. TN, a granddaughter with relevant training as a scientist in behaviour change, had observed that DG had been stressed and it was reflective of their changing relationship where DLD had been head of house and more was expected of DG as she declined. She said DG’s stress had declined since DLD had been placed in the aged care facility. There was now a stress due to the separation of DLD and DG. TN in her material said that she did not think the attorneys were acting in DLD’s best interests as they visited her infrequently and that made her lonely and the limitation they had put on visits and the loneliness caused by DLD not being able to be with DG.
  3. [23]
    DG stated that he and DLD wanted to be together and that they had found a facility where he could live in an independent living unit with DLD nearby in an appropriate part of the aged care section of the facility.

DC stated that she had not had a great relationship with DLD but she has a good relationship with DLM and that TN keeps her informed. She said when she first visited DLD in the aged care facility she wanted her to take her home. She believed DLD gets distressed because she is not allowed to leave the facility. DC said she provided DG with support and had assisted him in finding the new facility. DLM said that DJK antagonises DC and that he can’t take his mother out, that DG rings him and says he can’t speak to DLD and DLD gets agitated. DP on the other hand said that DLD has dementia and that the current accommodation is appropriate and he didn’t see how DLD could be moved. Further,  DG already lives in the same suburb as DLD’s facility.

  1. [24]
    DLM, DC and DG had a meeting with the Aged Care Quality & Safety Commission in regard to their concerns discussed above. They noted in a submission that the attorneys do not visit DLD.
  2. [25]
    There were a series of emails filed which show the level of concern some family members such as DC have in regard to DLD’s care and the conflict within the family. In particular that there is a group of family members who are very concerned about DLD’s care who appear to be thwarted by the attorneys because the attorneys give instructions to the aged care facility that  they are not to talk to other family members about DLD’s care and not to allow her to leave the family with family members. There was an email exchange between DC and an advocate which noted that DLD’s geriatrician had been willing to assess her to determine if she was safe to have visits away from the facility but it would require a new referral from her GP and that the attorneys had refused the referral request.
  3. [26]
    DLM noted in the application that he had not been able to obtain a current report in regard to DLD’s capacity as the attorneys would not allow the doctors to speak to him or DLD.
  4. [27]
    DC in her written submissions listed various instances where she had asked the attorneys for such things as medical examinations for DLD, to go out to have her nails done, a walk at the beach, go to DC’s place for Christmas, go to a concert; all refused. Anything she asks for is refused. The facility will not tell the family anything about DLD: what she eats, what pills she is taking, has she had a good day etc. as they have been instructed by the attorneys to tell all other family absolutely nothing. It is very frustrating. They will only discuss DLD’s care and needs with the attorneys. They have had to struggle every day in obtaining information, and visitation rights. She says the family emails started when she came home in October 2019, asking for requests for DLD in writing so everyone was in the loop for DLD’s care. That was when the abuse started. DJK seemed to take great delight in refusing any requests for DLD to do anything with her or DG especially. She says what is best for DLD seems to be forgotten. She believed her brother DLM is the best person to look after DLD’s needs. He has shown that by the way he reacted with their other brother when he was sick. DLM always tries to keep the peace in the family. DLM has also suggested he would work with DJK if he is attorney so they (as a family) get a better life for DLD. That way if, DJK and DJC travel like they wish, then DLD’s needs will be met by other family members. DLM will make this happen; she trusts him completely. She says the attorneys have shown nothing but contempt for her and DG. She says not allowing DLD the outings she desperately needs is very cruel. She is locked on a floor with Alzheimer’s patients and she cannot relate or talk to anyone but staff or visitors. She is locked on that floor the whole day, except when visitors are able to take her into the garden area for fresh air. All they are asking is for a little time to take DLD on supervised outings a few times a week.
  5. [28]
    DG stated that he wanted to support DLM, that he had lived with DLD for 45 years, and that DLD is a strong independent woman, who had always been fit and takes great pride in her appearance. To find themselves in this situation of DLD’s care has been very stressful and concerning.  He says, “the situation we now find ourselves in is so cruel. DJK has no regard for DG, or I believe his mother. It is like he dumped DLD into aged care then abandoned DG to work things out on his own. He does not understand what he has done to warrant his disregard of him and his mother. DG could not look after DLD in September 2019. He rang the family and said he was not coping. He had two knee reconstructions and a hip replacement, and was not coping with DLD on a daily basis. DJK and DJC explained to him that DLD would need to go into aged care. He agreed thinking he would get a break for a while so he could get his health back. He did not realise it was forever. He thought it was for a few months. The idea of respite was never offered to him or DLD. He believes DJK and DJC were sick of looking after DJK’s mother and DG, and as they had sold his house the year before, he wanted to travel. DG believes this is why he signed DLD into permanent aged care. He says that he initially stayed away from visiting DLD at the request of the facility and the attorneys so DLD could settle in. He says this was terrible because when he did visit she was crying and did not understand what was happening to her. She just wanted to go home with him. The attorneys stayed away too so DLD just felt abandoned by everyone.
  6. [29]
    DG says his relationship with DJK has deteriorated to the point he will not speak to DG at all. He either hangs up or abuses him. DG says DLD has been in the facility for six months and she still cries and wants to come home. He understands that she can’t come home because her physical and mental health have become progressively worse. He does not understand why DJK won’t let DLD go outside of the facility for outings. He does not have a car so all outings would be supervised and DLD would be accompanied by another family member or friend. He still struggles on his own. He looks after DLD’s needs by buying her things such as lipstick, new clothes, brings her fruit and the daily paper and weekly magazines. He tries his best and visits most days. Otherwise she is lonely. She gets excited when anyone visits and recognises everyone who comes. He does not understand why the attorneys are neglecting their mother this way. He says Christmas day was very hard as DLD was not allowed out. DJK will not tell them any information on DLD’s health. All decisions are made by DJK and DJC and the facility does whatever they say. He says without DLM and DC he does not know how he would cope with this situation. DLD needs quality time outside the facility and he does not believe the attorneys are competent to act as decision makers. Their actions over the last six months have shown otherwise. They have neglected their duties and abuse their authority. It is a disgraceful situation. What about DLD’s needs and what is going to happen for her future? He supported DLM in the application.
  7. [30]
    DJK and DJC responded to the matters raised about their undertaking the role as attorneys for DLD. They confirmed that DLD has her hair and nails done at the aged care facility every four to six weeks, not fortnightly. She goes on regular bus outings with her fellow residents which are organised by the facility. They had early advice that leaving the care home would not be beneficial in helping DLD to recognise it as her new home. The process is said to be taking much longer than expected and they have asked family and friends to be patient. They said We hope we can all enjoy outings with DLD very soon.”
  8. [31]
    The attorneys believed that DLM and DG were unsuitable. DLM lives interstate and would not be able to make decisions, sign paperwork or be with them for doctors’ appointments etc. DLD and DG revoked him as their attorney because they realised he could not adequately support them from that distance. Also, up until five months ago, DLM was only visiting DLD for four to five days a year. When DLM was attorney for DLD and DG, he would rely on DJK and DJC to do everything necessary, appointments, paperwork and home maintenance etc. They can only assume he will continue this behaviour and lean on their estranged sister DC, to do these tasks. They had serious concerns as to DC’s motives towards DLD. DLD has always been frightened of DC (DG can confirm this). She has lived within five km of DLD for 40 years and made no attempt to form any relationship with her.
  9. [32]
    The attorneys state in regard to DG that he, DJC and DLM were all present at the original ACAT assessment where DG was observed to have severe carer stress and little understanding of DLD’s cognitive impairment. He was also observed by the ACAT assessor physically grabbing DLD. This behaviour was said to have continued since DLD has gone into care. They have been advised by the Clinical Care Manager of the aged care facility of DG being warned about his unacceptable behaviour and he has been asked to sign a “Visitors code of Conduct” when he was observed poking and yelling abuse at DLD in the corridor of the aged care facility. This has not stopped his abuse and he constantly calls DLD stupid and has no patience with her. They have been made aware that the police are now involved after another incident at the aged care facility. They are following this up with the police. DG has been warned numerous times that his language is unacceptable but he has continued to speak to DLD in a very derogatory manner. He now has been asked to sign in on both levels and his visits will be supervised by staff for a trial period of two weeks. This will then be reviewed.
  10. [33]
    The attorneys say that they have never excluded anyone. On the early advice they received from aged care professionals they were asked to limit visitation to give DLD a chance to meet and form relationships with her neighbours and carers. They emailed that advice a number of times to family and were ignored and accused of trying to isolate her. Still now they are advised that DG has been asked to not visit every day. DLD gets overwhelmed when too many people are with her. She still has not settled in and the aged care facility are advising them she needs more time.
  11. [34]
    The attorneys are very concerned that all these issues are currently being discussed with DLD, or in front of her. DLD has no comprehension of the situation and lingers on false information being given to her by DLM. DG, DC, DJK, DJC, and DLM all agreed that the current aged care facility was DLD’s best option. It is clean, friendly and in close proximity to where DG lives. DLD has had more outings and visitors since going into care than in the last 12 months while living in the unit. No-one can be denied a visit. DLD’s heath care is now monitored by the aged care facility and they inform the attorneys of any issues. They pass this information on to family by email.
  12. [35]
    The attorneys noted that DLD was on level 2 at the moment. This is a secure level for Alzheimer/dementia patients. DLD was initially placed on level 1 but unfortunately absconded twice and was wandering around the streets nearby in the dark. Both times she returned to the unit. The first time DG called them and they organised for DLD’s return to the facility by ambulance. The second time DG did not inform them or the aged care facility, instead he took DLD shopping. They say that this proved to them that he is unable to make appropriate decisions concerning DLD’s welfare. They have been notified that other residents are wandering into DLD’s room randomly and they are working with the aged care facility and DLD’s carers to remedy that situation. DLD also wanders into other residents’ rooms; they are advised this is a dementia symptom. They choose to be part of the solution and not the problem and have offered solutions to the aged care facility management for consideration. They would also have been happy to work with the Aged Care Quality and Safety Commission and ADA Australia had they been notified of the meetings and given the opportunity.
  13. [36]
    They say they are not isolating DLD. She has already been assessed as to the extent of her decision making capacity by a Geriatrician, ACAT assessor and her own doctor and the nursing staff at the aged care facility. They believe that DLM and DG do not understand the extent of DLD’s cognitive impairment. They supplied them with information when she was first diagnosed. As far as they are aware because DLD suffers from dementia and needs specialised care, and DG has documented carer stress and anger issues, it is not a safe option for DLD and DG to live together.
  14. [37]
    The attorneys provided a letter of 3 February 2020 which set out their version of the family dynamic. They said that they were saddened that it had come to this. They believed DLM was only acting on information given to him by their estranged sister, DC, which is at best exaggerated and at worst, false. They advised that DLD had six children, five boys, DLM, DP (deceased), DP, DJK and DM, and one girl DC. They don’t know what DLM’s opinions are because to date they have had no response to any emails etc. DC has excluded herself from the rest of the family for many years and therefore has no knowledge of DLD’s wants or needs. The three remaining boys DLM, DP and DJK have enjoyed a great relationship with each other and DLD. DJK has lived with or close to DLD all his life. DLM and DP married and moved interstate many years ago. They disagreed that their family is in dispute. DJK and DJC had DP, DLM and DG’s full support when DLD first needed to go into care. DLM stated he knew it was necessary but he wasn’t strong enough to be involved in the physical process of taking DLD to the aged care facility and so it was left to DP, DJC, DG and DJK. It was very traumatic for all of them.
  15. [38]
    DJK believed that it was only when their estranged sister, DC, got involved that things have at times become quite heated. DC has lived very close to DLD and DG for 40 years however chose to not be in contact with them. They are very concerned as to her motives for getting involved now. They have been advised by aged care staff that both DG and DC’s behaviour towards staff has been aggressive and towards DLD unacceptable. They urged the Tribunal to contact the manager of the aged care facility to confirm the details. DLD they say has been very distressed at times and they have questioned as to why and when this happens. The aged care facility  told them it is usually after a visit from DG. The attorneys note that DG and DJC were present at the last geriatric review of DLD on 17 June 2019 when DLD was diagnosed with mild/moderate dementia and she was prescribed medication to try and slow the disease down. They made a follow up appointment in December to test if the drug was working; after DLD went into care in September they contacted the doctor to ask if the appointment was necessary because DLD gets very upset when she sees any doctor. He said it was not necessary. They contacted other health professionals to confirm that.
  16. [39]
    They said they were asked if DG and DC could take DLD home to the unit for Christmas lunch. They refused because when DLD first went into care they all agreed that any trips to the unit would be distressing for her. If family members had listened to the advice they were given and let DLD settle in for a short time, then a Christmas outing with family would have been lovely for her, not to the unit though. They note that DLM says they did not give DLD a Christmas present. They did, but it was later found hidden in her cupboard. They say family photos which they gave DLD have also gone missing.  They noted assistance they gave DG and DLD by such things as staying with DLD while DG was in hospital for surgery. They note that they furnished DLD’s room at their own expense, while DG made no effort to bring DLD’s things over to the aged care facility to make her room feel more like home.
  17. [40]
    The attorneys provided copies of emails between the family in regard to DLD’s care. On 24 October 2019 DJK advised that DLD was moving to her new room upstairs and that staff had asked family and friends to allow DLD to settle in for a period of two weeks. He noted that DG and DC had taken DLD back downstairs on the day of the move which was very traumatic for her and she is now very confused. He advised that he had placed a ban on outings for four weeks and stated that if anyone visits DLD in the next two weeks the four week ban will restart from that date. He said he was sorry to be so hard but this is in DLD’s best interests. He asked someone to explain to DC that the aged care facility will not give her any information regarding the administration of DLD’s care. That this was becoming embarrassing, the facility is constantly having to tell that to DC and DG. He said the facility contacts him about visits, meetings etc on a daily basis.
  18. [41]
    The tone of DJK’s emails is combative and it is fair to say his approach is inflexible in  regard to such things as visits. At one point talking about DLD going into care he says “its finally dawned on you how much effort went into it and that DG had happily let them do all the paperwork, interviews, Centrelink, enquiries and applications. This contradicts his blame of DG for supplying incorrect information. I note that while the aged care facility had asked that family don’t visit for two weeks so DLD could settle in, he imposed a four week no outside visits arrangement and there is no indication of any discussion with DLD or DG about this and it is clear that DLD was in distress.
  19. [42]
    There is an email from DJK dated 26 November 2019 in regard to the performance of the facility which noted  that the facility had advised the attorneys that DG had been overheard verbally abusing DLD and he was warned by the staff not to speak to her like that and he was monitored.
  20. [43]
    There is also a series of emails in regard to an outside visit request by DLM for Christmas day. It resulted in a denial and suggestion that they have Christmas lunch at the facility.
  21. [44]
    In January DJK advised that they were trying to organise a meeting between them all which would be mediated, by an independent party, so they can all put their grievances on the table in an effort to move forward and look after DLD.
  22. [45]
    There is also an email dated 24 February 2020 from the manager of the aged care facility indicating that DC and DG had to be advised about their behaviour towards DLD and DLD was still agitated and wanted to go home.
  23. [46]
    DLM in further submissions highlights the relationship between DLD and DG and their continuing desire to live together, and that DLM had an application to another facility where it was hoped DG would be in independent living and DLD in an appropriate dementia specific area.
  24. [47]
    TN stated in her submissions that there are family tensions which impact everyone's decision making. That DJK, DP, DC and DM have not talked with each other for many years. That this was fine when DLD was healthy and could engage with people as she pleased without them interacting with each other. However, now they all have to interact with each other to help DLD. TN believes that the attorneys are making decisions to spite DLM, DC and DM and in doing so are not acting in DLD’s best interests.
  25. [48]
    While DG had originally offered himself for appointment as guardian he later confirmed that he no longer wished to be appointed and supported the appointment of DLM as guardian.
  26. [49]
    DM was concerned about DJC having sole power if something happened to DJK and the family would be excluded. He said he had no relationship with DJC and had only spoken to her a couple of times in 20 years. He said DJK’s handling of the situation was appalling with not allowing visitors or family to take DLD out for a few hours, including when DLM flew up for a visit.

Discussion

  1. [50]
    Personal decisions for DLD have been made by her attorneys DJK and DJC since the decision to transition her into aged care in September 2019. The most significant decisions since then have been around who has contact with DLD and her ability to leave the aged care with her visitors. There was also a decision to change her from an open unit to a dementia secure unit at the facility due to her absconding. It is acknowledged that DLD is distressed because she feels unsafe on the unit, she is lonely as a result of being separated from her partner of 45 years DG and that those who want to support DLD feel that they are being treated harshly by the attorneys. The attorneys have also limited the information which the aged care facility can disclose to DG, DLM and DC.
  2. [51]
    The attorneys say they acted under advice from the facility in regard to visits to ensure that DLD settled in. That they are concerned about the motives of DC and DG is a safety risk to DLD. They cite the ACAT assessment and various examples in regard to DG where he did not report that DLD had returned to the unit and that he had been warned by the facility in regard to his behaviour towards DLD and similarly with DC. It is also clear that DJK and DC have a poor relationship and this is reflected in the tone of DJK’s email communication with her. DJK notes that DLD was afraid of DC and that they had not seen each other for many years.
  3. [52]
    DLM, DG and DC are most concerned at DLD’s distress and they wish to ensure that this is alleviated. They see that this will occur if DLD and DG can be reunited. DJK and DJC on the other hand while acknowledging the distress blame the actions of DG and DC and consider that DLD will eventually settle in. There is no evidence to show that the attorneys have consulted with DLD to obtain her views and wishes about any of these decisions as required under the General Principles nor have they ensured that existing supportive relationships were maintained, even to the extent of ensuring that DG was able to obtain reports from the facility about the welfare of his partner of 45 years.
  4. [53]
    It is fair to say that the attorneys’ decisions have been inflexible and formulaic: a two week ban on visitors and no outside visits for four weeks and the four weeks would start again each time the two week ban was breached. It appears that apart from a bi-monthly facility bus trip DLD did not leave the facility at all. I acknowledge that DG may have been behaving aggressively and been frustrated with DLD but how much of that was as a result of the attorney’s decisions?
  5. [54]
    An attorney must exercise their power honestly and with reasonable diligence to protect the principal’s interests.[13] This includes DLD’s care and welfare, as these are personal matters.[14] Therefore, if DLD is in distress the attorneys are required to do whatever is necessary to ensure that she is able to return to a state of comfort as much as she can having regard to her general condition. The attorneys in this case considered that all they needed to do was to control who could visit DLD and she would settle in and the distress would cease. This did not work and after six months she was still distressed and they had not changed their tack.
  6. [55]
    Others including DLM, DC and DG believe that her distress is as a result of her being in inappropriate accommodation as she functions much more highly than the other people in her unit and feels frightened by the intrusion of others into her room, and that if she were able to move to a place where her partner DG was close she would be able to settle in and would not need to be in a dementia secure area.
  7. [56]
    The attorneys are concerned for DLD and they had for many years provided support to DLD and DG. They are inflexible though and cannot deal with changing circumstances such as DG suffering carer stress and not being able to provide care to DLD but then wanting to be close to her in appropriate accommodation and DLD wanting to be with him. Also the change in the relationship between DLD and DC.
  8. [57]
    That is not to say that the attorneys might not have valid concerns about DG’s suitability to have contact with DLD having regard to his behaviour.
  9. [58]
    It is clear that the current arrangements for DLD in terms of accommodation and contact are not working to ensure that her welfare and care needs are met. If DLD is to change accommodation it may be  that there will be need for additional services to ensure that she is in receipt of an appropriate amount of support
  10. [59]
    DLM has nominated himself and he is supported by DG, DC and DM. Clearly he has already formed a view and is supportive of the accommodation changes for DLD which will move her closer to DG. DLM had had a good relationship with DJK and they had worked together. That relationship has now soured and it is unlikely that if appointed DLM would properly take account of the views of DJK. DLM is also located in Victoria and will be relying on reports from others such as DC who is not trusted by DJK.
  11. [60]
    To ensure that everyone’s views and wishes are obtained in particular that of DLD and that there are no prejudgment I consider it appropriate that the independent guardian, the Public Guardian, be appointed. This is on the basis that I do not consider that it will ensure that DLD’s best interests can be met by appointing a member of her family having regard to the level of dispute within the family and the need to test to ensure that it is truly in her best interests for her to have greater contact with DG.
  12. [61]
    In terms of the requirements of the Human Rights Act, DLD does not have capacity to make these decisions. There are decisions required as her care and welfare is currently not being adequately met and there is no less restrictive way of ensuring this without the appointment of a guardian so that the decisions are made appropriately.
  13. [62]
    The Public Guardian is appointed as guardian for DLD for decisions in regard to accommodation, with whom she has contact and or visits and the provision of services. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years 

Need for an administrator

  1. [63]
    DLD owns a unit in half shares with DG and is in receipt of the aged pension. Her other assets comprise a term deposit of $80,000 and a joint bank account with DG of $51,103. DLD’s major expense is her aged care fees and rates and body corporate fees on the unit. At the time the application was made there was a budget deficit as the aged care fees were in excess of DLD’s pension.
  2. [64]
    DLM noted in the application that the attorneys were not discussing financial decisions with the family including DG, that when DG advised the attorneys about the fees being greater than DLD’s pension he was abused and then they threatened to sell the unit to help pay for the aged care fees. They, including DG, were not able to discuss things with Centrelink and were concerned whether Centrelink had the correct information. DLM had raised with DJK in an email that it was his responsibility as attorney for both DLD and DG at the time considering their age and situation to ensure that the information disclosed to Centrelink had been correct and that he should not blame DG.
  3. [65]
    There is an email from DJK to family members where he confirms that the unit should be sold and the proceeds split 50/50 between DLD and DG or if DG is to continue to stay in the unit he should pay rent because he has exclusive use of the unit. He does note that he would seek legal advice.
  4. [66]
    DJK and DJC in response to the application stated that DLD’s aged care fees were now  $863 per fortnight, which according to the correspondence provided from the Department of Human Services was the fees as at 18 January 2020 and her other expenses included her share of those for the unit which totalled $7,566 per year with her share being $145 per fortnight. They note that all other expenses, they assume, are being taken out of the joint account, as are DG’s living expenses and both pensions are paid into this account. They note that the jointly owned unit is valued at $450,000. They note that in accordance with the ACAT assessment DLD is not able to make any financial decisions and so her credit/debit cards were handed in to the bank. She has her hair and nails done every four to six weeks with the cost of hair cuts added to her aged care fees and her nails are paid for by whichever family member makes the appointment for her. DG brings her all papers and magazines weekly. DG is also in charge of reviewing the aged care statement each month and making sure there are funds in the joint account to cover this direct debit. As they do not make any financial decisions for DLD, there is no information they can give DLM.
  5. [67]
    DG said he wanted to be involved. DJK asked him to take over the financial responsibilities of aged care fees. DG was under the understanding that the fees would be 85% of the aged pension. He was also asked to sign a guarantee for the fees. He trusted DJK and did as he was asked. DG now realised that he was misled and lied to. He did not fully understand what his obligations to the aged care facility were. At the time, he thought he did, but knowing what he has learnt in the last six months, he was definitely lied to by DJK. Even now he does not fully understand the  fees and why the fees are not covered by DLD’s pension. DJK is the attorney so Centrelink won’t talk to DG about the pension for her. He is still trying to understand why the fees are so high, and the aged care facility will not discuss it with him either, as they only speak to the attorneys. So DG is covering the shortfall out of his own pension funds. DJK will not help him.
  6. [68]
    DJK and DJC say that they have been transparent in emails to family. They have often asked for comment or input by DLM and to date they have received no response. They state that when the first aged care fee direct debit was taken from DLD and DG’s joint account they were accused of stealing the money. DG was not able to understand the statement from the aged care facility or the direct debit process (even though this was explained to him on two different occasions) and believed DLD’s care would be free. After this DLM agreed the statements should come to  the attorney’s in the future. Since then DG has requested to have them sent to him once again, so they have no access to them and are unaware of fees and charges made by the aged care facility. They had teething problems with incorrect information being held by Human Services because DLD and DG never updated their assets since going on the pension. They updated DLD’s details on her behalf and advised DG to do the same via note in his letter box and also a message sent through DLM. They have had confirmation of the correct pension amount credited to the joint account fortnightly. This is said to include an extra $200 each per fortnight because DLD and DG live apart for medical reasons. And once again family members were informed. They say that some of the initial problems with the aged care fees were caused by DG giving them false information regarding account balances which resulted in early care fee estimations being wrong. The suggestion of splitting DLD and DG’s assets was first put to the aged care administrator by DC. They passed the idea on to family for comment and had a reply from DP, who was in favour if it was necessary to pay for DLD’s care fees etc and a reply from DC who did not agree (even though it was her idea to split assets in the first place). No input from DLM at all.
  7. [69]
    They say they have not verbally abused DG as he does not speak to them in person or by phone and he does not have an email. All information which is passed on to DG is controlled by DC and DLM. They note that while DLM signed a declaration saying he had never been removed as a guardian, attorney or administrator in QLD or elsewhere, this was in fact untrue. Both DLD and DG revoked him as attorney on 10 July 2018.
  8. [70]
    In an email of 21 November 2019 which in part deals with a statement from the aged care facility showing a debit of $18,000, DJK shows the lack of communication between the parties. The statement was sent to DG who expressed concern to DC about it and she took it up with the facility. DJK notes that it is the second time DG has had difficulty understanding that he is receiving a statement not an invoice and so he has the statements sent to him. The fact is that the payments are coming out of the joint account so DG has a right to know why amounts are being debited. DJK ends the email by saying that he will no longer be communicating with DC.
  9. [71]
    DJK states DG said he is distressed at having to pay for DLD’s care and living expenses as DG also pays for his own living expenses from the joint account ($1,500 new dentures, glasses, haircuts, newspapers, taxi fares, clothing, social outings etc.). They believe this is fair for them. Their increased pensions are paid into the joint account. As DG would have to agree to sell the unit, it was just a suggestion put forward by the attorneys to sort out the joint funds. They have been accused by DG of stealing money from DLD and DG’s joint account which they vehemently deny and these accusations have been proven to be false. They never received an apology for this. Once again, false information was given to DLM. They detail that they were DG’s attorneys as well until they were revoked.
  10. [72]
    The attorneys are required to act with honesty and reasonable diligence to protect DLD’s financial interests;[15] they are also required to keep records of all transactions[16] and to maintain existing supportive relationships.
  11. [73]
    Where the relationship between the attorneys and DG, as DLD’s partner and joint owner of her major assets, has failed and they are no longer able to access details about those assets so they can’t keep records and they can’t coordinate decision making it is clear that the attorneys are not able to fulfil their duties under the POA Act. It is also clear that in the way they dealt with DG by leaving him to pay for the aged care fees they have increased his distress and made things even worse.
  12. [74]
    DLD is unable to manage her finances and she has assets to be managed, income to be collected and expenses to be paid. DLM is nominated and again there is a lack of trust within the family and a need for an independent party to ensure transparency. In such circumstances the Public Trustee of Queensland is available for appointment.
  13. [75]
    I am satisfied that as DLD is not able to manage her finances and finances cannot be managed informally and financial institutions require a formal appointment that there is no less restrictive way of ensuring that her financial needs are met than the appointment of an administrator.
  14. [76]
    I appoint the Public Trustee of Queensland as administrator for DLD for all financial matters. The administrator is to act in accordance with the order.

Enduring Power of Attorney

  1. [77]
    The Tribunal may revoke an enduring power of attorney under s 116 of the POA Act. There were issues raised about the validity of the enduring power of attorney. Having regard to the material from the witness to the document and without there being contrary medical evidence I am satisfied that the document is valid. Having regard to my findings about the actions of the attorneys in terms of their breaches of the POA Act in regard to not acting with reasonable diligence to protect DLD’s interests, not keeping records and not acting in accordance with the General Principles I am satisfied that the enduring power of attorney should be revoked and I order accordingly.

Footnotes

[1]GA Act, s 22.

[2]Powers of Attorney Act 1998 (Qld), s 116 (POA Act).

[3]Human Rights Act 2019 (Qld), s 13 (HR Act).

[4] HR Act, s 15.

[5] HR Act, s 19.

[6] HR Act, s 24.

[7] HR Act, s 25.

[8] HR Act, s 26.

[9] HR Act, s 29.

[10] HR Act, s 30.

[11] HR Act, s 31.

[12] HR Act, s 37.

[13] Powers of Attorney Act 1998 (Qld), s 66.

[14]Powers of Attorney Act 1998 (Qld), Schedule 2 part 2 item 2.

[15] POA Act, s 66.

[16] POA Act, s 85.

Close

Editorial Notes

  • Published Case Name:

    DLD

  • Shortened Case Name:

    DLD

  • MNC:

    [2020] QCAT 237

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    02 Jul 2020

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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