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- Unreported Judgment
ME QCAT 360
ME  QCAT 360
Guardianship and administration matters for adults
20 July 2016
12 August 2016
GUARDIANSHIP – CAPACITY – where the tribunal is asked to determine whether an adult has decision-making capacity – where there are suggestions that the adult signed a power of attorney at a time when she did not have capacity to understand the nature and effect of the documentation – where medical evidence did not rebut the presumption of capacity
Guardianship and Administration Act 2000 (Qld) schedule 4
Powers of Attorney Act 1998 (Qld) s 113(2)
Adult’s stepdaughter: NAW
Adult’s stepson-in-law: NBW
Adult’s brother/attorney: GH
Adult’s great-nephew/attorney: YAM
Adult’s GP: Dr ITP
Adult’s lawyer: EWP
REASONS FOR DECISION
- The adult is a 96-year-old woman, now widowed, who has settled into life in a nursing home. By all accounts, she is doing well.
- This case relates to the capacity of the adult to make decisions.
- The adult did not appear at the hearing. Of course, in determining the decision-making capacity of an adult, it is advantageous for the tribunal to have an opportunity to engage with the adult. In this instance, I accept that the adult is physically frail and it would not have been in her best interests to compel her attendance. I also accept that she is hard of hearing and attendance by telephone would unfairly disadvantage her.
- While the tribunal did not have the benefit of engaging directly with the adult, the tribunal gained insight into the life of the adult through the testimony of those people who did appear. During her life, it seems clear that she was subservient to the wishes of her late husband, who ‘assisted’ her to make decisions. While no doubt deeply saddened by the loss of her husband, the witness testimonies to the tribunal suggest that the adult has blossomed and is more outgoing than was previously the case.
History of signing powers of attorney
- The tribunal is aware of two attorney documents signed by the adult. The adult signed one on 10 June 2005, where she appointed her late husband, her husband’s daughter (NAW) and the husband of her husband’s daughter (NBW).
- The adult signed another power of attorney on 10 March 2016, where she appointed her great-nephew (YAM) and her brother (GH). Her husband’s daughter and the husband of her husband’s daughter challenged the validity of this document, suggesting that the adult lacked capacity to understand the nature and effect of the power of attorney document that she signed.
Matters for determination
- The tribunal is called upon to answer two questions that relate to the adult – is she capable of making decisions now and was she capable of making decisions when she signed her power of attorney on 10 March 2016. The short answer to both questions is yes.
- The tribunal commences proceedings of this nature with a presumption that an adult does have decision-making capacity for personal and financial matters. The evidence presented to the tribunal did not affect adversely upon the presumption.
- Schedule 4 of the Guardianship and Administration Act 2000 (Qld) defines capacity for a person for a matter as meaning that the person is capable of understanding the nature and effect of decisions about the matter, and freely and voluntarily making decisions about the matter; and communicating the decisions in some way.
- Dr ITP did provide the tribunal with a detailed health professional report dated 27 May 2016, specifically for trial purposes. In his report, Dr ITP says that he has known the adult in excess of 30 years in his capacity as her general practitioner. He last saw the adult two days prior to preparation of the report. Dr ITP made reference to his discussions with the adult and indicated that she was capable of making her own decisions. In his report, Dr ITP went on to make the following comments and findings in relation to the adult:
- the adult is of old age and is frail
- the adult has mild dementia
- the adult has hearing impairment
- the adult is medicated
- there are no factors that affect the adult’s ability or inability to make decisions
- the adult is not subject to any orders under the Mental Health Act 2000
- the adult’s medications are not likely to affect her decision-making capacity
- given her visual and hearing impairment, there is no current cognitive assessment performed with respect to the adult
- the adult understands and can act on information relevant to making decisions with respect to personal healthcare and while she can appreciate the consequences of the decision or lack of decision regarding personal healthcare, she needs full assistance
- the adult has an ability to understand and act on information relevant for making decisions and appreciate the consequences of decision-making with respect to lifestyle and accommodation
- the adult has an ability to understand and act on information relevant to making decisions regarding financial affairs; where she understands financial affairs completely, but needs assistance, given her poor vision and hearing
- the adult is influenced positively by her brother and nephew
- the adult is able to explain herself well, using speech with gestures
- the adult suffers short-term memory loss at times
- the adult’s recall of the past is excellent
- before the adult’s husband died, he managed all of their affairs
- when the adult’s husband was alive, he did not ‘permit’ the adult to make decisions
- the adult understands ‘right from wrong’
- the adult is able to participate in a discussion about her decision-making ability and who should be appointed
- with respect to a power of attorney, the adult does understand:
- that she can limit the types of decisions her attorney can make
- when the attorneys’ power begins
- that the attorneys can make all decisions given to them under an enduring power of attorney
- that she is able to revoke the enduring power of attorney (provided she has capacity to do so)
- that the attorneys can use their power even after she loses capacity; and
- once she does lose capacity, she is unable to oversee the use of the power.
- Finally, and of most significance, in his report Dr ITP says that the adult has the ability to make complex decisions with respect to personal healthcare, lifestyle/accommodation choices and financial affairs. Specifically, in doing so Dr ITP certified that the adult is able to make decisions that require her to consider choices that may have long-term consequences.
- Against that, on 28 April 2014, Dr ITP signed a four line statement addressed ‘to whom it may concern’ with respect to the adult, where he said of the adult:
“The above-named has been a patient of mine for >20 years. I understand that she has enduring POA over the (family name withheld) Estate in the event of the death of her husband (name withheld). ME is no longer mentally capable of administering the (family name withheld) Estate or fulfilling the duties described to her as enduring POA, as she is suffering with dementia.”
- Given this report in 2014, that does appear to be difficult to reconcile with the detailed health professional report in 2016, it is unsurprising, and very appropriate, that the applicant seeks the tribunal’s determination with respect to the legitimacy of the 2016 power of attorney.
- Dr ITP gave oral evidence to the tribunal. Dr ITP proved to be an impressive witness. During the course of providing his oral evidence, Dr ITP spoke of his relationship with the adult and the adult’s late husband. He described the adult’s late husband as a dominating and intimidating person who ‘took over’ consultations when she attended upon him for assistance. The doctor had the difficult task of trying to explain the inconsistency in his conclusions regarding the adult’s capacity. He explained that in 2014 the adult had a respiratory infection. In short, he believed that he was ‘doing the family a favour’ by providing the certificate to enable the attorneys to act upon the enduring power of attorney signed in 2005. Dr ITP was extremely forthcoming and honest in his testimony. He candidly acknowledged that he did the adult a disservice in 2014. He explained that in 2014, relevant to the adult, ‘dementia’ was a term that he used ‘loosely’. A better description of the adult would have been ‘mild cognitive impairment’. He said that when the adult’s husband passed on, the adult was ‘freed’ and he enjoyed wonderful conversations with her from that time. Dr ITP spoke of certain statements made by the adult to the effect that ‘it was not fair that (the adult’s late husband – name withheld) handled all of their financial affairs and that it was not fair that her money should be distributed according to his wishes’. She indicated that she should be able to distribute her money as she sees fit.
- Dr ITP explained that now, because of her vision impairment, he could not undertake a mini mental state examination of the adult. He said that she has little interest in certain matters such as politics but is a person who has other interests, such as listening to opera.
- Dr ITP gave clear and unequivocal evidence to the tribunal to the effect that the adult does have the appropriate capacity to sign a power of attorney. He says that she does have capacity to decide to change a power of attorney. In response to a direct question as to whether she was capable of doing so in March, Dr ITP unequivocally and without hesitation said yes. Similarly, Dr ITP said the adult has decision-making capacity now.
- In March 2016, the adult provided instructions to her solicitor EWP to prepare a power of attorney. EWP gave evidence to the tribunal and proved to be an impressive witness. Her testimony was to the effect that the adult did have capacity to provide instructions to prepare, and ultimately sign, a power of attorney. EWP said that the adult was fully aware of the instructions that she gave and the options available to her. This followed extensive discussions between the two. EWP spoke of the adult providing instructions on two occasions that were consistent and that adult gave her instructions without any prompting. While the original appointment was made by the adults nephew, EWP was clear that the adult’s instructions were provided voluntarily and that the adult was not under the influence of any other person. Given the adult was unable to sign, EWP explained that she was able to sign the enduring power of attorney on her behalf. I accept the evidence of EWP that the adult provided informed instructions and informed consent for her to sign the enduring power of attorney on her behalf.
- I am satisfied that EWP has taken instructions from the adult, and acted upon those instructions, entirely appropriately. I accept the evidence of EWP that in her view the adult had capacity to understand the nature and effect of a power of attorney.
Findings of fact
- The tribunal determines that the adult does understand the nature and effect of decision-making. The adult is able to make decisions about matters freely and voluntarily. The adult does have now, and in March 2016 did have, the capacity to make decisions about matters, including decision-making relating to her enduring power of attorney.
- The law presumes an adult to have capacity to make decisions and the evidence presented to the tribunal supports a finding that the presumption is not rebutted in this case.
- I am satisfied that the adult does have decision-making capacity now and also did so when she signed a power of attorney earlier this year. Section 113(2) of the Powers of Attorney Act 1998 (Qld) provides that the tribunal may declare a power of attorney to be invalid if satisfied the principal did not have the capacity necessary to make it. I do not make such a declaration in this case.
- In effect, I validate the power of attorney documentation signed on 10 March 2016.
- I make no order about an enduring power of attorney. I dismiss the application for an order about an enduring power of attorney.
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- Shortened Case Name:
 QCAT 360
12 Aug 2016