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- Unreported Judgment
SDJ QCAT 230
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
SDJ  QCAT 230
Guardianship and administration matters for adults
1 August 2019
5 June 2019
NOTICE OF INTEREST IN LAND
ENDURING POWER OF ATTORNEY
HEALTH LAW – OTHER MATTERS - CONFLICT EFFECTING THE WORKABILITY OF AN ENDURING POWER OF ATTORNEY – where evidence of significant conflict between attorneys; and the duty to act in a timely manner as a prudential requirement. Advice to attorneys regarding duties they owe to an adult with impaired capacity.
Guardianship and Administration Act 2000 s 22(2)
SJR – attorney/son
KA and SC – Public Guardian
WA – advocate
RD –friend of ZMP
KM – Public Trustee of Queensland
REASONS FOR DECISION
- On 30 January 2006 the adult SDJ executed an Enduring Power of Attorney appointing ZMP and SJR jointly for financial and personal health matters. On 19 October 2017 the Tribunal removed SJR from financial matters. On 26 March 2019 the Public Guardian suspended the operation of the Enduring Power of Attorney and filed an application for the appointment of the Public Guardian as guardian and the appointment of the Public Trust of Queensland as administrator. On 5 June 2019 the matter was heard by the Tribunal.
- The Tribunal provided reasons on 5 June 2019 but the member indicated that he would write reasons explaining in more detail the reasons for overriding the Enduring Power of Attorney.
The Office of Public Guardian Investigation
- The Public Guardian investigated a number of complaints against the attorney ZMP. Complaint four was that ZMP failed to contact and consult with the other appointed attorney and/or family members when making major decisions affecting the adult’s life. The Public Guardian found that this allegation was substantiated.
- The Report makes reference to ZMP failing to advise others about major decisions affecting the adult’s life and that there was ongoing conflict between ZMP and SJR about matters relating to the adult’s financial affairs.
- SJR’s evidence was that there was a lack of communication from his sister ZMP and he was completely left out of any decisions regarding his father’s finances and the decision to place his father in an aged care facility. The failure to act promptly around the RAD options had led to his father having to pay up “to 3 times as much for his care”.
- SC the Public Guardian investigator told the Tribunal that the investigation raised concerns about the prudent management of the adult’s finances. SC stated that throughout the investigation ZMP had the opportunity to make a decision regarding the RAD options. The attorney had obtained financial advice and could have acted on that advice before the suspension of the Enduring Power of Attorney. For this reason and also because the attorney was not consulting with her brother she was of the view that the attorney ZMP was not acting in the best interests of the adult.
- The representative of the Public Trust of Queensland KM when asked whether the attorney had been acting appropriately indicated in his view that the delays in making a decision in relation to the options to pay the RAD was not acting prudently.
- ZMP in paragraph 5 of her Statutory Declaration stated that she was aware of the duties and responsibilities as attorney and had received legal advice. ZMP in the Declaration fails to explain why she had taken no action in relation to the RAD options. ZMP in her oral evidence was unable to explain why she had not made a decision about the RAD options.
- ZMP and SJR both gave evidence of a history of conflict between each other. The Public Guardian was of the view that the degree of conflict made the enduring document unworkable. The Powers of Attorney Act 1998 in section 80 states that attorneys for a principal who may exercise power jointly must exercise the power unanimously.
- The issue of concern was the failure by the attorney ZMP to make a decision regarding the Residential Accommodation Deposit (RAD) options. ZMP obtain financial advice but failed to act in a timely manner. The Public Trustee of Queensland were of the view that the attorney had not acted prudently in allowing the decision not to be made in a timely manner.
- The Tribunal accepts the evidence of the Public Guardian and the Public Trustee of Queensland that the actions of the attorney ZMP were not appropriate or prudent in the circumstances.
- The Tribunal also accepts the evidence that ZMP failed to advise other family members and it appears that the Enduring Power of Attorney by the adult is not workable.
- The Tribunal noted that the advocate agreed with the Tribunal decision-making to override the Enduring Power of Attorney and to make a short appointment of the Public Guardian as guardian and the Public Trust Queensland as administrator.
The duty of attorneys
- When an adult appoints joint attorneys it is with the intention that the attorneys work together in the adult’s best interests.
- The First Schedule to the Power of Attorney Act 1998 out some guidance in dealing with adults with impaired capacity that would be helpful for an attorney.
- Joint attorneys as a starting point or principle must be able to work together. The adult has appointed them jointly to do this. When there is serious conflicts between the attorneys they need to develop strategies to communicate effectively to make good decisions on behalf of the adult. When the relationship breaks down to the point that there is no communication and no effective strategies to deal with the conflict there is a clear argument that the enduring document is unworkable.
- The second point to be made is that an attorney must: always act in the adult’s best interests; act honestly and in a timely manner; and act prudently. An attorney must be proactive in ensuring that the adult’s best interests are served. An attorney must act in a timely manner. Where RAD options have been put on the table the attorney must act in a timely manner to make a decision and act on that decision. A delay for a lengthy period is not in a timely manner. An attorney must exercise the care, diligence and skill a prudent personal business would exercise in managing the affairs of another person (section 22(1) (b) Trust Act 1973).
- The Powers of Attorney Act 1998 in section 66 requires an attorney to exercise the power honestly and with reasonable diligence to protect the adult interests.
- The evidence in this matter is that the attorney has not acted in accordance with these principles.
Capacity of the adult
- The Tribunal received a Health Professional Report from Dr TV GP. In that Report Dr TV stated that the adult suffered from depression and fluctuating capacity and that he had severe problems with everyday activities and required all assistance. Dr O Geriatrician provided a letter stated that the adult suffered from frontotemporal dementia from June 2016.
- All family members present agreed with the medical evidence that the adult lacked capacity.
- The Tribunal finds that SDJ has been diagnosed with dementia and that the presumption of capacity for personal matters and financial matters has been rebutted.
- The Tribunal is of the view that the Enduring Power of Attorney made 30 January 2006 should be overridden to the extent of these appointments. The reason why the enduring document is being overridden are set out above.
- The Tribunal’s makes the following findings in relation to the enduring document:
- there is evidence of significant conflict between the attorney ZMP and other family members;
- there are concerns that the attorney has acted prudently;
- there were concerns that the attorney had not consulted appropriately with other family members; and
- there were significant delays in making a decision in relation to the RAD options.
- The Tribunal was of the view that with the enduring document being unworkable because of conflict that the tribunal should look at other options.
Was there a need for a guardian?
- The Tribunal set out in its oral reasons on 5 June 2019 that there was a need for a guardian around health care and provision of services. The Tribunal was of the view because of the significant conflict between family members that it was appropriate to appoint the Public Guardian for one year so that important decisions could be made.
Was there a need for an administrator?
- The Tribunal set out in its oral reasons of 5 June 2019 that there was a need for an administrator to make financial decisions in particular taking one of the RAD options and making appropriate decisions once that have been made in relation to other assets. The Tribunal was of the view that because of significant conflict between family members that was appropriate to appoint the Public Trustee of Queensland for one year so that important decisions can be made.
- The Tribunal told family members that on review it would be necessary for the attorneys to show that they had an appropriate communication plan and a willingness to consult in the adult’s best interests. If this could not be established then the Tribunal would have to look at a longer term appointment of the Public Guardian and the Public Trustee of Queensland.
- Published Case Name:
- Shortened Case Name:
 QCAT 230
01 Aug 2019