ARR[2015] QCAT 383

APPEARANCES and REPRESENTATION (if any):

The following parties attended the hearing via videoconference:

ARD   husband of the adult

BS   representative of the Public Trustee of Queensland

REASONS FOR DECISION

1. [1]
   ARR (the adult) is a 61 year old woman who resides in a residential aged care facility in Brisbane.
2. [2]
   On 27 May 2015 the Tribunal appointed the Public Trustee of Queensland as the adult’s administrator for all financial matters in response to the application from the Director of Nursing of the residential aged care facility in which the adult is accommodated.  At the time of the administrator’s appointment the adult’s accommodation fees were in arrears by $63,000.
3. [3]
   The Tribunal subsequently suspended the administrator’s appointment, on 10 August 2015, upon being notified by the administrator of the existence of an Enduring Power of Attorney dated 29 July 2005 in which the adult appointed ARD, her husband, and ARM, her daughter, as her attorneys for financial and personal/health matters. The power of the attorneys for financial matters was to begin immediately, with ARM only to act if ARD were to ‘die, refuse or be unable to act as attorney’.  Both attorneys signed the attorney’s acceptance on 29 July 2005.
4. [4]
   The Tribunal initiated a review of the appointment of the administrator and subsequently initiated an application to make an order about an Enduring Power of Attorney.
5. [5]
   The matters were heard on 4 September 2015 in Brisbane.

Does ARR have capacity to make personal and financial decisions?

6. [6]
   The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Guardianship and Administration Act 2000 (Qld), (the Act), as the Tribunal must be satisfied that the adult has impaired capacity before it can further consider an application for the review of the appointment of an administrator for the adult.
7. [7]
   ARR is presumed to have capacity in accordance with section 7 of the Act and general principle 1 of schedule 1 under the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for the adult.
8. [8]
   The Tribunal received a report dated 28 April 2015 by Dr HM, a general practitioner who submitted the adult was diagnosed with fronto-temporal dementia in 2011 and that the adult’s level of cognitive and communicative impairment is now severe.  In Dr HM’s opinion the adult is unable to make all personal and financial decisions.
9. [9]
   ARD concurred with the medical evidence, stating the adult is in the ‘final stages of life’.  He said the adult is unable to communicate and does not recognize her children.

Conclusion

10. [10]
    The evidence establishes that ARR has severe cognitive and communication deficits as a consequence of front-temporal dementia.
11. [11]
    Due to her cognitive deficits, ARR is unable to understand the nature and effect of decisions in relation to her personal and financial matters, including the complex issues of revoking or appointing an Enduring Power of Attorney.
12. [12]
    Having regard to the medical, written and oral evidence the Tribunal is satisfied that the presumption contained in General Principle 1 of the Guardianship and Administration Act 2000 that presumes that the adult has capacity for personal and financial matters is rebutted.

What personal decisions are required for the adult?

13. [13]
    The adult receives care in a residential aged care facility that is accessible to her husband and children.  According to ARD, the adult entered the facility in mid-2014.  Prior to her relocation the adult had been receiving treatment in the Prince Charles Hospital, having been admitted from another residential aged care facility in Caboolture.  The adult’s current accommodation is permanent and is meeting her high care requirements.  It is the evidence of ARD that, based on his conversations with staff at the facility, the adult’s accommodation is not at risk due to the fees remaining in arrears.  He further submitted family members do not wish to move the adult.
14. [14]
    Health care decisions are required to ensure the adult receives appropriate treatment for a number of physical health conditions.  ARD submits he will continue to make the adult’s health care decisions in consultation with the adult’s siblings and the couple’s three adult children, including ARM who visits the adult regularly.

Conclusion

15. [15]
    The adult’s accommodation is stable and appropriate.  Decisions in relation to the continued appropriateness of the accommodation and care provided to the adult will continue to be required, as the adult’s complex care needs will increase with the progression of her illness.

16. [16]
    Health care decisions are also required for the adult in the context of her progressive illness.

Is the current decision-making regime for personal matters meeting the adult’s needs and protecting her interests?

17. [17]
    Pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld) the Tribunal is satisfied there is a need for personal/health decisions for the adult.

18. [18]
    ARD remains able and willing to continue to make the adult’s health care decisions as her attorney for personal/health matters. In the event that ARD is unable or unwilling to act as the adult’s attorney for personal/health matters, ARM is available to act.

19. [19]
    The Tribunal determines that the current decision making regime for personal matters, being the Enduring Power of Attorney dated 29 July 2005, is adequate and effective, as the adult is receiving appropriate treatment in a stable environment as a result of the efforts of her acting attorney.

What financial decisions are required for the adult?

20. [20]
    The Tribunal obtained evidence from the current decision-maker, the adult’s financial attorney, along with the representative of the Public Trustee of Queensland.
21. [21]
    ARD submitted the adult has no source of income.   He stated the last correspondence he received from Centrelink was dated 1 May 2014, which was in response to his fifth and final attempt to secure a Centrelink pension for the adult in April 2014.
22. [22]
    ARD told the Tribunal he recently opened a bank account in the adult’s name.  The nature and balance of the account are not known.
23. [23]
    He submitted he and the adult are joint owners of a residential property on the Sunshine Coast, purchased 27 years ago, that is valued at approximately $850,000.
24. [24]
    He advised he was ‘pretty sure’ he and the adult are jointly liable for a mortgage on the property of approximately $975,000, and that the ‘loan is out of order at this point in time’ and the mortgagee may take possession of the property.
25. [25]
    He further provided the adult’s current expenditure includes nursing home fees of $46.50 per day and medical insurance fees, and that the adult’s current liability to the nursing home is approximately $68,000.
26. [26]
    ARD submitted since the adult entered the nursing home he made a payment of $21,000, however he was unsure of the date the payment was made. He stated he funded this payment by borrowing ‘against bonuses’ within the adult’s life insurance policy, which is payable upon her death. ARD told the Tribunal that, due to a recent development, he had been in a position to pay half the fees owing to the nursing home for the past week, and that he had not done so as he had ‘other matters to attend to’. He further submitted he would be able to pay the remaining half of the fees within four months.
27. [27]
    ARD told the Tribunal he had signed the residential care agreement on the adult’s behalf when she entered the facility.
28. [28]
    Whilst not disclosing details of his own financial circumstances, ARD submitted he is involved in legal proceedings in relation to his dealings with his business partner.  He stated some of the ‘family assets’ were ‘caught up’   in the partnership’s financial dealings and the associated legal proceedings, and that caveats have been placed on some of his assets. He provided the opinion the legal matters would be resolved within sixty days, enabling him to pay the entirety of the adult’s nursing home fees.
29. [29]
    The representative of the Public Trustee of Queensland concurred with the attorney’s evidence that he had made a sole payment of $21,000 to the facility prior to their appointment.  The representative, however, disputed the attorney’s evidence that the adult’s residential care agreement had been authorized, adding that an income and assets assessment had not been carried out when the adult entered the facility.

Conclusion

30. [30]
    The evidence before the Tribunal establishes that ARR has assets that require identification, protection and management.
31. [31]
    She has liabilities that require identification and management.
32. [32]
    The adult is devoid of income.
33. [33]
    The adult’s expenditure includes residential aged care facility fees to ensure she receives appropriate accommodation and care.  The adult’s other financial obligations include mortgage repayments and medical insurance fees.
34. [34]
    Pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld) the Tribunal is satisfied there is a need for financial decisions for the adult.  The Tribunal determines there must be an adequate and effective decision-making regime in place for ARR for financial matters as otherwise her needs will not be met and her interests will not be protected.

Is the current decision-making regime meeting the adult’s needs and protecting her interests?

35. [35]
    The fact that attorneys have been appointed under an Enduring Power of Attorney is especially relevant in determining whether the adult’s needs would not be met without an appointment. The Tribunal has concurrent jurisdiction with the Supreme Court of Queensland in respect of Enduring Powers of Attorney in accordance with section 109A of the Powers of Attorney Act 1998 (Qld). The Tribunal must consider whether the appointed attorneys should continue in their roles or whether the appointments of the attorneys should be revoked under s 116 of the Powers of Attorney Act 1998 (Qld), or be made subject to the appointment of a guardian or administrator under section 22(2) of the Guardianship and Administration Act 2000 (Qld).

36. [36]
    ARD stated he wished to continue to act as the adult’s financial attorney.   He also stated he had ‘not really’ discussed the adult’s financial matters with ARM, as she has been under ‘emotional strain’.  The Tribunal observes ARM was sent notice of the hearing of 4 September 2015.

37. [37]
    The Tribunal considered the evidence in relation to the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).

38. [38]
    The evidence is that ARD is in breach of section 79 of the Powers of Attorney Act 1998 (Qld) as he failed to keep ARM, as successive financial attorney, informed of his actions.

39. [39]
    In the current circumstances, the adult’s financial matters are influenced by, and dependent upon, the financial and business matters of ARD.  In this respect, the attorney is in breach of section 86 of the Powers of Attorney Act 1998 (Qld), as he failed to keep his business and personal financial matters separate from those of the adult.

40. [40]
    The evidence establishes the attorney has been unable to secure income for the adult.

41. [41]
    The attorney has failed in his obligation to complete an income and assets assessment via Centrelink in the context of the adult entering the residential aged care facility.  As a consequence, it is likely the adult is being charged for her accommodation and care at a daily rate that is not commensurate with her financial circumstances.

42. [42]
    The attorney has not met the adult’s financial obligations in relation to paying her accommodation fees.  As a result the adult has incurred a debt of $68,000.

43. [43]
    Furthermore, the attorney has failed to meet the adult’s financial obligations in relation to mortgage repayments on the Sunshine Coast property.  As a result of the decisions of ARD, the jointly held property is at risk of repossession by the mortgagee, incurring additional costs for the adult.

44. [44]
    Accordingly, the attorney is in breach of section 66 of the Powers of Attorney Act 1998 (Qld) as he did not act diligently in attending to the adult’s income, expenses, liabilities and assets.  It is probable that the adult has suffered a substantial financial loss as a result of the attorney’s actions.

45. [45]
    Based on the written and oral evidence, the Tribunal determines the attorney has been unable to discharge effective substituted decision-making for the adult as he not adequately met her needs and protected her interests in accordance with legislative requirements.

46. [46]
    In the current circumstances there is no evidence before the Tribunal in relation to ARM’s appropriateness as the adult’s successive financial attorney, or her ability and willingness to act as the adult’s financial attorney.

47. [47]
    In the context of the review of the administrator’s appointment, the representative of the Public Trustee of Queensland submitted that, should the appointment of the administrator be continued, further property searches would be conducted to identify and secure any other real property owned by the adult.  The administrator would identify and protect assets and would liaise with Centrelink in relation to securing income for the adult. The representative further submitted the Public Trustee of Queensland would obtain financial and legal advice in relation to the adult’s current financial circumstances in order to meet her financial needs and protect her financial interests.

48. [48]
    The Tribunal is of the view that an independent decision maker is the only entity capable of complying with the legislative requirements, liaise with all interested parties, assess the relative merits of options for decisions on personal matters and make decisions that best meet the adult’s needs.  The Tribunal is satisfied that the appointment of the Public Trustee of Queensland, as an independent and experienced administrator, is appropriate to ensure that the adult’s financial needs are met and her financial interests are protected.  In addition, the Public Trustee of Queensland is appropriate to fully investigate the details of the attorney’s actions whereby the adult’s finances were utilized in his personal and business dealings.

Conclusion

49. [49]
    The Tribunal is not satisfied that ARD is an appropriate person to continue as the adult’s financial attorney.

50. [50]
    In the current circumstances the Tribunal is not satisfied ARM is an appropriate person to act as the adult’s successive financial attorney.

51. [51]
    The Tribunal concluded, pursuant to the review provisions in section 31(4)(a) & (b) of the Guardianship and Administration Act 2000 (Qld), that the Public Trustee of Queensland is competent and that no other person is more appropriate for appointment at this time.

52. [52]
    Accordingly, the Tribunal appoints (continues the appointment of) the Public Trustee of Queensland as administrator for ARR, for all financial matters, until further order of the Tribunal.

53. [53]
    The Enduring Power of Attorney dated 29 July 2005 appointing Denis Anthony Raphael Ryan and ARM successively as attorneys for financial matters for ARR is overtaken pursuant to section 22(2) of the Guardianship and Administration Act 2000 (Qld).