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VM[2019] QCAT 308

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

VM [2019] QCAT 308

PARTIES:

In applications about matters concerning VM

APPLICATION NO/S:

GAA6703-18, GAA6704-18, GAA6705-18, GAA6706-18, GAA6707-18, GAA7532-18, GAA7533-18, GAA7535-18, GAA7536-18, GAA1961-19, GAA2967-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

15 October 2019

HEARING DATE:

22 February 2019

PAPERS HEARING DATE:

25 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

22 February 2019

25 September 2019

On 22 February 2019

DECLARATION ABOUT CAPACITY

  1. VM does not have capacity for any of the following:
    1. (a)
      complex personal and financial matters;
    2. (b)
      executing an Enduring Power of Attorney;
    3. (c)
      revoking an Enduring Power of Attorney.

GUARDIANSHIP

  1. The Public Guardian is appointed as guardian for VM for decisions about the following personal matters:
    1. (a)
      Provision of services;
  2. This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

ADMINISTRATION

  1. The Public Trustee of Queensland is appointed as administrator for VM for all financial matters.
  1. The administrator is to provide an updated financial management plan to the Tribunal within four (4) months, such plan to show evidence of the administrator having obtained advice from a licensed financial planner.
  2. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  3. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

NOTICE OF INTEREST IN LAND

  1. Before 22 May 2019 the administrator must:
    1. (a)
      Record the appointment as administrator on any property registered in the adults 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. (i)
    A copy of the title search conducted identifying the adult’s property; and
  2. (ii)
    A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by the adult.
  1. (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.
  1. If the ownership of any property of the adult changes in any way or the adult 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 or the adult’s interest in another property.

ENDURING POWER OF ATTORNEY

  1. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and S 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to DJB, CP and HJA to resign as attorneys for VM under the Enduring Power of Attorney dated 2 March 2016.

OTHER DIRECTIONS 

  1. Any other active party may file in the Tribunal submissions in reply to the submissions and material filed on behalf of HJA in regard to the authorisation of a conflict transaction and must give a copy to each other active party by:

4:00M on 8 March 2019

  1. HJA file in the Tribunal any further submissions in reply and must give a copy to the other active parties by:

4:00 PM on 15 March 2019

  1. The application in regard to the conflict transaction will be determined after 15 March 2019.
  2. The Public Trustee of Queensland as administrator for VM is authorised to pay the legal costs of the Attorneys in respect of the applications.

On 25 September 2019

  1. The Public Trustee of Queensland is directed to reimburse HJAs legal expenses in the amount of $18,260 and to pay to HAJ the amount of $37,708.98 for performance of his work as an attorney.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – APPOINTMENT OF GUARDIAN AND ADMINISTRATOR – leave to resign as attorney – application for direction – whether adult has impaired capacity – whether leave to resign should be granted to attorneys – who should be appointed as decision maker – whether attorneys are entitled to remuneration

Powers of Attorney Act 1998 (Qld), s 42, s 82, s 118

Guardianship and Administration Act 2000 (Qld), s 12, s 146

Legal Services Commission v Tower [2006] LPT 003

Ranclaud v Cabban (1988) NSW ConvR 57

The Public Trustee of Queensland  (as litigation guardian for ADF) v Ban [2011] QSC 380             

 

APPEARANCES & REPRESENTATION:

 

Adult:

VM

Applicant/s:

HAJ, DJB, PC

Public Guardian:

S McPhillips

Public Trustee:

C Miles

Interested Person/s:

MAL

REASONS FOR DECISION

Introduction

  1. [1]
    VM is a retired successful businessman with a large net worth and a complicated asset structure. He had appointed attorneys to act for him and they now feel that the level of conflict that exists between them, VM and his spouse is such that they are no longer able to undertake their duties. They have made an application to the Tribunal for leave to withdraw as attorneys on the basis that VM may not have capacity as required by s 82 of the Powers of Attorney Act 1998. They have filed an application for a declaration about capacity in that regard.  They were concerned that VM may not have capacity to make his own decisions and they have applied to the Tribunal for the appointment of the Public Trustee of Queensland as administrator and the Public Guardian as guardian.
  2. [2]
    VM’s attorneys for personal/health matters were DJB and CP and his attorneys for financial matters were BJD, PC and HJA, all under an enduring power of attorney made on 2 March 2016. The power for financial matters was to commence when VM was incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision. HJA was VM’s commercial lawyer and BJD was his personal assistant until she was made redundant by VM in January 2018. CP is VM’s friend.
  3. [3]
    AJM filed an affidavit with his application and he stated that there had been concern about VM’s capacity for several years and it had been discussed at meetings between himself, BJD and KAJ, VM’s financial adviser. AJM asked two lawyers in 2017 to meet with VM and consider his capacity and they were of the view that he had capacity. AJM advised that VM was receiving pressure from his wife, MAL and three eldest children, and a protocol was put in place so that any promise that VM made in regard to gifts required signing off by AJM and KAJ. AJM states that VM was concerned about his loss of financial capacity and AJM arranged for assessment to be made by two specialists, Leanne Jackson and Dr Helen Sidle. Following a hospitalisation there was also a report prepared by Dr Matthew Rickard in regard to VM’s capacity on 23 April 2018.  Dr Rickard opined that VM no longer retained decision making capacity and the enduring power of attorney was activated. With BJD making personal decisions including that VM live at home with 24 hour care, arrangements were put in place to protect VM’s assets, including restricting access to his bank accounts and for payments to be approved by the attorneys.
  4. [4]
    AJM stated in his affidavit that VM’s behaviour had become more erratic over this period of time with VM making serious allegations against AJM, accusing him of wanting to take over his affairs, over-charging and stealing his money. AJM understands that VM has made serious allegations against BJD and told him that PC is not the person he was said to be.
  5. [5]
    AJM states that as a result of VM’s behaviour over recent weeks, none of the attorneys wish to continue to act as attorneys as VM has made their roles extremely difficult and given recent allegations, they do not wish to assist him any further. He states that he is seeking an order that all of the attorneys be excused from their role. Subsequently the other attorneys made applications for leave to resign as well. He was not aware of anyone who would be prepared to take on these roles or had the skills to assume these roles. He did not consider that VM’s wife MAL nor his children had the skills or abilities to properly perform their responsibilities as attorney for VM. The basis of that concern is said to be the Expenditure Control Protocol which needs to be put in place.
  6. [6]
    There was no charging clause included in the enduring power of attorney for the work which AJM undertook as attorney for VM and he has not charged him for any work undertaken in that capacity. AJM states that he has spent a considerable amount of time in the last few months dealing with VM and addressing his concerns and seeking advice regarding his role and responsibilities. It is his understanding that the other attorneys have also spent time addressing VM’s concerns and seeking advice regarding their roles and responsibilities. AJM is seeking approval to charge all fees which he has incurred to date, both in his capacity as VM’s lawyer and as attorney, including fees associated with bringing this application and all fees incurred by him in seeking advice regarding the matter. He is also seeking for the other attorneys to be able to charge a reasonable amount for their time acting as attorney.
  7. [7]
    AJM provided a family history noting that VM had been married on several occasions and he had married MAL in 2006. They had one child. VM was concerned about MAL spending all of her money and that he had asked AJM and KAJ to try to put in place measures to monitor her expenditure as he was concerned there would be insufficient funds to care for him for the duration of his life. Since 2017, AJM and KAJ had been meeting with VM on a monthly basis to review his finances and the money which had been spent in that period. VM had continually expressed concerns at these meetings about the spending and constantly requested KAJ and himself put in place arrangements to try and manage MAL’s spending habits. He provided details of the concerns and how steps had been taken to deal with them but MAL had charged items on her two credit cards to the value of $100,000, when it had been agreed that she would not. These cards reached their limits within 8 to 10 weeks.
  8. [8]
    AJM estimated that VM’s total wealth was approximately $26,000,000 and that it was held in a complex network of structures and that the attorneys for VM need to not only manage his personal assets but also his various corporate entities and trust structures which are in place. As an illustration, he had set up a trust for each of his children and MAL with multimillion dollar assets held in them.

Capacity

  1. [9]
    Leanne Jackson, clinical neuropsychologist, provided a report dated 1 March 2018 in which she noted that the report had been requested by Dr Helen Siddle (who was meeting VM on 8 March 2018). The meeting was arranged to assess VM in relation to his capacity to manage his significant financial affairs, as well as the possibility of changing his enduring power of attorney. The assessment by Ms Jackson was requested as a result of VM’s history of addiction to alcohol with Ms Jackson having details of the complexity of VM’s affairs, his family genogram, his current enduring power of attorney and the recent termination of his personal assistant. VM continues to meet with his attorneys on a monthly basis to discuss his finances and keep track of his spending. Ms Jackson set out the background history which VM provided to her and of note is that he had an accident which resulted in him losing consciousness. He was under water for some time requiring a long hospitalisation. Later, as a result of brain cancer treatment, he had some short term memory loss and lost his right visual field. Ms Jackson then assessed VM using a battery of cognitive tests.
  2. [10]
    Ms Jackson’s opinion was that VM’s results indicated that VM did have capacity having regard to the definition of capacity in the POA Act however, of note is that, VM is aware that he requires assistance and is cognisant of where to go to obtain advice especially in regard to financial/business matters. There does, however, appear to be a degree of vulnerability in VM’s presentation that suggests that while he is cognisant of his impairments, he may be somewhat dependent and trusting of his current supports. His eyesight impairments, his spatial difficulties with direction, his anxiety in crowds and his fears for his health would no doubt increase his vulnerability. In terms of VM’s capacity from a functional point of view, Ms Jackson saw that the issues for him are that he is likely to struggle with keeping track of any advice given in relation to his financial matters, if given all of the information at once (this could be minimised by partitioning information into smaller units and presenting them on different occasions); he may need prompting to stay on track over time in meetings (this could be minimised by keeping meetings to a minimum); he may get confused when later recalling information (this could be supplemented with written information to ensure accuracy); and he may also take longer to think something through (this could be minimised by giving him extra time to think and verbalise his thoughts). Ms Jackson noted that there was a large fatigue factor impacting on VM’s information processing and cognitive efficiency and the reason for this was unclear. He may be suffering from a mood disorder. Ms Jackson reported that VM was using Stilnox and/or Hynodorm at night to sleep and that this might be impacting on his daytime cognitive efficiency – a review of his medication and management may be timely.
  3. [11]
    Dr Helen Siddle, psychiatrist stated in her report dated 12 March 2018 after describing VM’s self reports of his mental state, that he feels his long-term memory is good, however he is well aware of his short-term memory problems. He reported that he forgets conversations including what his advisors have told him after they have visited and reported having short-term memory problems since being treated for a brain tumour. He reported becoming geographically disoriented (though he does not report word finding difficulties), can use appliances but has always had difficulty using technology. He reported having very poor sleep which has been ongoing for some time.
  4. [12]
    Dr Siddle set out VM’s personal and medical history and noted that he acknowledged that he had drunk heavily in the past and that his wife was now controlling his alcohol intake because if there was alcohol in the home he would drink it. In her mental state examination, Dr Siddle noted that VM repeated himself regularly and had problems relaying his long-term memory with respect to dates. He displayed difficulties in keeping track of his thoughts and often lost his place during a question. He was noted to have short-term memory problems.  Dr Siddle performed an MMSE test on VM and he scored 23/30, with deficits in short term memory and orientation to time. I note that he scored the same on that test with Ms Jackson only a matter of days before and scored 77/100 on an Addenbrooke’s Cognitive examination. Dr Siddle felt VM’s insight and judgment were partial.
  1. [13]
    Dr Siddle also provided a summary of the report from Ms Jackson noting her conclusions. Dr Siddle noted that at the beginning of the assessment she had questioned VM regarding his understanding of an enduring power of attorney and he was able to describe to her what an EPA was although he did not know that there were three areas in which decisions could be made. VM was aware that decisions could be made about finances but he was unaware of the areas of health and lifestyle. He believed that DJB held his EPA but was not aware of the other people who were involved in this. He thought that he had recently changed his EPA to his lawyer, AH, his financial advisor, KAJ and a close friend, MC. Dr Siddle later confirmed with the instructing lawyers that this was not the case. Dr Siddle stated that as she thought VM did not have a complete understanding of an EPA she took the opportunity to educate him and by the end of the assessment (after a period of approximately two hours) she re-questioned him about an EPA and he was able to tell her what an EPA was, the appropriate information about powers and that he could change his EPA while he had capacity. Dr Siddle was satisfied that VM had capacity to make or change his EPA.
  2. [14]
    Dr Siddle stated that she spent some time discussing VM’s finances with him and that he reported that he had no understanding of his assets or his current investments. He reported that he trusted his advisor, KAJ and would like him to continue to manage his finances. He reported that he did not want his EPA to go to his son as his son did not like his wife and would not look after her. He reported that his wife had been spending too much money and was “bleeding my credit card dry” and sending money to her home country. VM reported that his financial advisor visited him regularly, but he was unable to recall what they talked about when he visited. He reported that he believed that his money was invested and that he believed there were individual trusts for his wife, MAL and daughter, MC and his other children, although he was not one hundred percent sure about this. He trusted KAJ to make decisions regarding his finances but wanted to make sure his wife, MAL and daughter, MC (the daughter of MAL and VM) received sufficient funds. He was unable to describe his assets although he believed that they may be worth $18 million. He was unable to describe at all what his weekly outgoings were or his regular income.
  3. [15]
    Dr Siddle’s conclusions were that VM had both short-term and long-term memory deficits, had difficulty maintaining his concentration and too often becomes confused. Dr Siddle also concluded that VM can be repetitive and has markedly decreased orientation to day and date. The results of her cognitive testing were consistent with those found by Ms Jackson with her opinion that his performance on cognitive testing both carried out by her and Ms Jackson would indicate VM has significant cognitive impairment.
  4. [16]
    VM’s cognitive impairment would meet DSM-V criteria for a diagnosis of Major Neurocognitive Disorder if there is evidence of significant cognitive decline in one or more cognitive domains (both reported by VM and demonstrated on objective cognitive testing) and that these impairments interfere with independence in everyday activities (e.g. VM is unable to recall medications or doses and requires his wife’s supervision). The deficits must not occur solely in the context of a delirium and are not better explained by another mental disorder. Whilst VM suffers from some anxiety symptoms, in my opinion, these are not sufficient to explain the extent of his cognitive symptoms.
  5. [17]
    The neurocognitive disorder is classified as unspecified as the precise atiology cannot be determined with sufficient certainty requiring a more longitudinal assessment. It is possible that there are multiple contributors to his cognitive dysfunction, including his chronic alcohol misuse; his previous brain and tongue cancer, both treated with chemotherapy, surgery and radiotherapy; his past near drowning experience when he was a young man; his epilepsy and his current anxiety symptoms – an underlying neurodegenerative disorder cannot be excluded.
  6. [18]
    It was Dr Siddle’s opinion that currently VM has the capacity to change his enduring power of attorney however, this capacity may change in the future depending on his alcohol intake, anxiety levels and his ongoing medical conditions. It was her opinion based on her assessment that VM does not have capacity to make decisions regarding his finances, at both a basic and more complex level which was evidenced by his inability to recall his daily expenses, his regular income, any information given to him by his advisors regarding his assets and investment structures, and the current subjective and objective evidence of short and long-term memory deficits. It was her opinion that his capacities may be improved if he were to abstain from alcohol for the next 6 to 12 months, however given the other possible contributing medical factors, this improvement may be only small with VM potentially benefiting from some treatment for his anxiety in the future. Dr Siddle recommended ongoing follow up by an old age psychiatrist in order to continue to monitor his cognitive function and anxiety symptoms, and to offer some treatment when appropriate.
  7. [19]
    Dr Siddle also filed a report by medical and related health professionals which details her findings from her assessment. She notes that she did not assess capacity in regard to personal health care, lifestyle and accommodation matters but he does have capacity to make an enduring power of attorney, but does not have capacity to make any financial decisions.
  8. [20]
    There was a short report from Dr Mathew Rickard dated 23 April 2018 which stated that “VM is suffering from a medical condition that affects his cognitive state, and that has progressed to a point where VM does not retain decision-making capacity. It is appropriate for VM’s enduring power of attorney to be activated. VM’s condition is progressive and permanent.”
  9. [21]
    VM engaged his own lawyers to respond to the application and it was his view that, while he may have had impaired capacity during the period March to April 2018, he had regained capacity and provided a report from his own doctor, Dr Alex Ha.
  10. [22]
    Dr Alex Ha provided a short report at the request of VM’s lawyers in regard to his capacity. He noted that he has been VM’s treating doctor since September 2014 and that leading up to March 2018, VM was experiencing significant stress, and was having difficulty with insomnia and moderating his alcohol consumption. Dr Ha noted that it was under these circumstances that VM’s capacity to make decisions about his finances and personal health was questionable, however not sufficient to suggest he was incapable of making such decisions. In his opinion he considered that VM had capacity to revoke the appointment of his attorneys and that he saw VM once in April 2018 (following his discharge from hospital) to discuss the activation of his enduring power of attorney. At this time he was distressed about the activation of the attorneys, however in his opinion, there was not sufficient evidence in his presentation to suggest he was incapable of revoking the appointment of his attorneys, or appoint new attorneys. Since 24 April 2018 VM has shown the best clarity in memory and thought processes, since he has come into his care. In his opinion VM has previously “dumbed himself down” so that the others around him, such as personal assistants or family would do the talking for him. He would also do this to avoid embarrassment if he did not provide the correct answers. In his opinion, the assessments that were performed during his hospital admission may have been compounded by this behaviour, as well as the mentally-impairing effects of his acute condition. Upon challenging VM about this behaviour and his recognition of how this behaviour may be perceived, VM’s presentations dramatically changed. Dr Ha has seen VM on 8 occasions from 30 April 2018 to 19 June 2018. The regularity of these consults have been on Dr Ha’s advice and VM has been compliant with all of his recommendations. They have been conducted in the presence of his wife, a carer, friend or on his own. In Dr Ha’s opinion, VM has the capacity to understand the nature and effect of signing a legal or financial document, has the mental capacity to communicate his decisions and is not under any undue influence in relation to making his decisions. He is also capable of making a decision to appoint a new attorney to make decisions on his behalf should he be unable to do so. The assessments of his mental capacity following the combined effects of an acute medical event, the medications received post-anaesthesia, the effects of sleep deprivation and possibly acute alcohol withdrawal were only applicable during that short period of time of admission and the days following. In Dr Ha’s opinion, VM has recovered and his mental capacity has sufficiently returned.
  11. [23]
    It was submitted that based on the opinion of Dr Ha, the Tribunal does not have jurisdiction to appoint decision-makers for VM and that VM has the capacity to remove his current attorneys and appoint new attorneys – these applications should be dismissed.
  12. [24]
    A further report was provided on behalf of VM from Ms Debbie Anderson, Clinical Neuropsychologist.  She discussed the previous reports and noted that there were some issues with the methodology of Ms Jackson and that Dr Siddle had based her findings on Ms Jackson’s report. She noted that the later report of Dr Ha supported that VM had capacity. VM described his medical history to Ms Anderson and considered that his long-term memory was well-preserved, but recognised that his short-term memory was not one hundred per cent but thought that this may have been from the effects of aging. VM reported having available to him the assistance of several helpers in terms of driving him and managing his finances. Ms Anderson noted that VM was well- oriented, alert and cooperative with the formal measures. Ms Anderson assessed VM using an intelligence test with the result indicating that he performed in the low average range. Although, there were some differences amongst the indices, the full scale intelligence quotient of 86 (low average) is likely to be the best summary of his overall intellectual level and compared to his predicted pre-morbid level of function, there appeared to be a mild decline in overall performance, primarily contributed to by a significant decline in the working memory index. His memory and new learning was also tested and his visual memory index was significantly lower than his auditory memory index. She stated that it appeared that he could not rely upon his visual memory skills but auditory memory skills appeared to be reasonably well preserved. On a test of higher cognitive function he scored in the low average range. Ms Anderson stated that “Overall, these results do appear to suggest that VM may be experiencing a decrease in cognitive efficiency but he remains able to form and retain some new memories (when the information is of an auditory verbal nature) and engage in an average to low average level of problem solving on the general intelligence test. As he gets tired, difficulties became more evident, especially in terms of more complex tasks and thus may indicate that he has limited cognitive resources.”
  13. [25]
    VM explained to Ms Anderson that he had 24 hour carers following the medical emergency earlier this year and that he hoped to decrease those. He was able to provide a reasonable explanation of this. With regards to everyday financial arrangements, he described that he had a large sum of money invested and that he had an accountant that was responsible for paying some of his bills. He described that unfortunately he had lost a large amount of money in previous investments and it seemed that he was somewhat vulnerable. He also had a local friend that helped him with household bills. The issues that have arisen were said to relate to the appointment of people in the role of power of attorney. He wished to change this to make his wife responsible for both his finances and health as he indicated that he loved and trusted her. He was concerned that the individuals currently holding his power of attorney have an agenda to obtain unrealistic amounts of money from him, and he was concerned that they would not look after his wife. He was able to explain that a power of attorney meant that the individual was able to act on his behalf, sign legal documents and make health decisions that could have significant consequences, that is, they could sell the house or make very significant health decisions. He indicated that he did not have faith that these people would act in his best interests. VM was able to explain that his Will needed to be changed and that the individuals who currently held the power of attorney needed to be removed because there had been concern raised about his decision making capability. He also recognised that he could not simply make these changes at the current time. He was able to describe the various individuals within his family who would be entitled to money in his Will. He reported that he had recently begun checking on his investments and was concerned that certain persons appeared to be keeping a large monthly retainer for which no explanation was provided. He expressed concern that money had been removed from his accounts without explanation but was also concerned that his accounts may be put into the hands of the Public Trustee. He reported that he liked to meet with his financial advisor, KAJ regarding his overall position and he trusted him and felt that it would be best to give him sole responsibility for the money and that it needed to be checked on regularly. He was also able to describe that concerns had been raised about his wife’s behaviour and that she had taken money “by stealth”, purchasing properties overseas without telling him. It seems that KAJ had brought this to his attention and now controlled the money and in particular, his wife’s spending had been monitored and reigned in. Overall he seemed to express his plans in a reasonable way. He acknowledged that he could not independently manage his investments and was therefore reliant on advice which had unfortunately led to difficulties in the past. He was adamant that he wished to change his current power of attorney as he felt those individuals were no longer working in his interests.
  14. [26]
    Ms Anderson’s conclusion was that VM did have some cognitive difficulties that would potentially leave him quite vulnerable if he were to be solely managing his investments, and therefore the use of a trusted and transparent financial advisor would be recommended. Also, as he gets tired, the cognitive difficulties (particularly with planning and complex problem solving) became more evident thus it is recommended that he engage in complex discussions and decision-making when well-rested. He was able to outline in a fairly straightforward way the essential points about his concerns about the actions of the various individuals and their possible agendas. Cognitively, although the test results suggest that it is most likely that he has experienced an overall decline in function, it is not her view that it is currently so low as to prevent him from engaging in logical decision making. He was able to clearly express an opinion and recognise the consequences of such an opinion. Early in the session he was able to engage in problem solving at an average to low average level compared to age peers, although as he got tired his performance decreased. In essence, it was her view that he can participate in decision making, express an opinion and recognise the consequences of it. He demonstrated a low average ability to learn and recall new auditory information, so he should be able to recall his decisions and reasons. However, he is unlikely to be able to independently manage his complex financial arrangements, and his recounting of history suggests that he has been taken advantage of in the past. Thus she would recommend that he continue with formal and regular financial advisor arrangements. He appeared to recognise and welcome assistance in this regard, but wished to continue to have some input.
  15. [27]
    An affidavit was filed by MC, a registered nurse who stated that she had known VM for over 10 years socially. She detailed her observations of him and while acknowledging that he may have had capacity issues during hospitalisation in early 2018 he had now regained capacity.
  16. [28]
    VM’s lawyer related in his correspondence that a conference occurred with him where he was asked the relevant questions about the making of an enduring power of attorney. I note that he suggested that MAL should have some say in decisions for him if he could not make them for himself saying, “I trust her 100%”. In regard to health decisions he said that these are decisions his wife, MAL should be involved in and  when asked who he would like to appoint as attorney, he said “his wife, MAL but I think she should have someone with her, perhaps MC. He would want to give that matter some further thought.”
  17. [29]
    At the hearing on 15 October 2018 VM was given an opportunity to explain his understanding of things and to answer relevant questions in regard to his financial affairs. While VM made it clear that his view was that he had capacity, he was unable to provide any details in regard to his finances and displayed the same lack of knowledge that was clear in Dr Siddle’s report. VM acknowledged that he had regular meetings with his advisors and that they provided him with reports in regard to his financial position. He stated that the reports were placed on a bench and not referred to again by him. Having regard to the differing views about his capacity and the fact that there had been no report dealing with his capacity to make personal decisions, it was agreed that the hearing would be adjourned so that a further report in regard to capacity could be obtained from a psychogeriatrician with particular regard to VM’s capacity to make decisions about complex financial affairs and personal mattes to make and revoke an enduring power of attorney.
  18. [30]
    A report by Dr Luciana Kelly, geriatrician and general physician dated 17 December 2018 was filed by VM’s lawyers. Dr Kelly stated that she had seen VM on three occasions, twice accompanied by his carers and once by his wife. Dr Kelly set out the history of VM’s hospitalisation in April 2018 and the subsequent capacity assessment. She stated that he is quite unwell with most likely alcohol related delirium and issues with polypharmacy. She noted that a capacity assessment was organised and he was deemed unfit to manage his finances, accommodation and lifestyle decisions independently. She noted that VM currently requires 24 hour care in his house. She also noted his past medical history and current medications which included Stilnox and Olanzapine. She noted that his recent blood tests reveal normal levels except for cholesterol and his physical examination appeared normal. Neurological examination revealed unsteady gait, no features of Parkinson’s disease, normal cranial nerves, normal reflexes but abnormal visual fields.
  19. [31]
    Dr Kelly noted in VM’s cognitive assessment that he had an MMSE score of 25/30 (losing points in orientation and short term memory and he had an amnesic deficit); a geriatric depression scale 1/15 (compatible with a normal mood); Montreal Cognitive Assessment (MoCA) 19/30 (amnestic deficits and orientation) and 3/3 on the clock drawing test. She stated that on 5 December 2018 she had a long discussion with VM regarding his current financial situation. VM was able to identify his current powers of attorney and expressed that he does not feel his current powers of attorney are acting in his best interests. He also advised that he was previously persuaded to give significant sums of money to his current powers of attorney as a reward in exchange for acting as his powers of attorney. VM explained that he would like to appoint a friend who he trusts to be his new power of attorney. He was able to explain in a reasonable way the role of a financial power of attorney and was able to explain that his attorney would be able to sign important documents on his behalf and sell his cars and his house. He explained that this person would become “him” in his words if he lacks capacity. He had a basic understanding of his annual budget. Dr Kelly was provided with a summary of his budgeted personal expenditure and she was able to verify that his knowledge of this budget was broadly accurate. VM explained to her that he would not consider appointing any of his children as powers of attorney due to ongoing family conflict. He clearly explained that he would not appoint his wife either as he would be concerned that she would overspend and also referred to her lack of understanding about his finances. He was able to clearly articulate that he is currently allocated a certain amount of money to meet his personal expenses and he has been careful not to exceed this pre-established budgeted expenditure. He stated that his wife has a larger sum of money allocate to meet her personal expenses and that he wants her to feel comfortable and happy. He was able to explain that he does have a trusted financial advisor, KAJ and that he would make a formal request to his future enduring power of attorney to only make decisions in agreement with KAJ. VM was able to articulate the approximate price of basic day to day goods and demonstrated an understanding of basic arithmetic. He described the approximate value of his cars and his house.
  20. [32]
    Dr Kelly stated VM was not able to describe his complex financial arrangements. He was aware of his own lack of capacity to understand his own complex financial arrangements and was able to express that under pressure he can be overly generous and from time to time regretted giving away large amounts of money in the past. During the assessment Dr Kelly noted that VM fatigued towards the end of the session and his ability to concentrate deteriorated. She also noted that once tired it was difficult for him to focus on her questions and at times he became a bit tangential and had to be redirected to the question. They discussed his MRI results which demonstrate right occipital craniotomy with a large post-surgical gliotic cavity that was also surrounding volume loss involving the posterior temporal lobe and small focus of post-traumatic gliosis in the inferolateral right frontal lobe.
  21. [33]
    Dr Kelly discussed VM’s current care needs with his carer and her understanding was that he is independent with activities of daily living and is continent (bowels and bladder). VM requires assistance with transport, medication supervision and extra assistance while under the influence of ethanol. He also uses multiple sedating medications which in combination with ethanol would contribute to cognitive impairment, increased risk of falls and impaired judgment.
  22. [34]
    Dr Kelly discussed the role of an attorney for health matters and lifestyle decisions with VM. He felt that his health status is not much different now compared to the time before his hospital admission around Easter this year. He does not feel he needs 24 hour care and he was able to explain his reasoning. He explained that he feels suffocated with people around him all of the time. He was able to give a reasonable medical history and a list of his current medications. He was able to reasonably explain the role of a power of attorney for health matters and lifestyle and he was able to tell Dr Kelly that a power of attorney would have power to choose where he would live, how much care he would have and decide if he should have surgery. He expressed that his power of attorney could decide if he goes to live in a nursing home facility. VM feels upset that his wife currently has little say and involvement in decisions regarding his health and care needs. Unfortunately, Dr Kelly did not feel VM fully comprehends the long term negative implications to his health if he continues to use excessive amounts of ethanol in combination with sedating medication. He was able to demonstrate a reasonable executive function and he was able to tell Dr Kelly that if he was sick, he would contact his wife for help in the first instance. He told her he would contact an ambulance if he could not contact his wife (he was able to quote the telephone number “000” for emergency services). He advised that he has a personal alarm that he normally does not use but he would consider using if he was alone at home and needed help.
  23. [35]
    VM explained that he has his wife’s mobile telephone number on a speed dial in case of emergency. He was able to express his care needs. He was able to tell Dr Kelly that he would require someone with him in case of his wife’s absence, requiring someone to drive him to medical appointments and assist him with mobility because of his visual deficits.
  24. [36]
    Dr Kelly’s clinical impression of VM was that he has mild dementia that is multifactorial and secondary to excess ethanol consumption, polypharmacy, previous craniotomy with degree of gliosis, previous acquired brain injury secondary to drowning and a degree of vascular changes as per his recent brain MRI.
  25. [37]
    In Dr Kelly’s opinion VM:-
    1. (a)
      Has decision making capacity to appoint a power of attorney for health, finances and lifestyle;
    2. (b)
      Has capacity to make basic financial decisions and should be assisted by a trusted financial advisor to minimise vulnerability;
    3. (c)
      Does not have capacity to make complex financial decisions independently;
    4. (d)
      Is vulnerable and should be assisted to prevent financial abuse; and
    5. (e)
      Is able to express his personal opinions in a reasonable way, has a reasonable degree of executive function and is able to understand the consequences of his decisions.

Discussion

  1. [38]
    VM has been subject to extensive evaluation and assessment by medical professionals in regard to his capacity. Superficially he may appear to have capacity to deal with matters which require decisions in his life. He is able to engage in conversations and give considered responses. It is clear though that he has poor memory retention and is vulnerable to manipulation in regard to things such as excessive financial demands by family members. His affairs both personal and financial are complex. He has a strained relationship with his wife and significant health issues. He is also currently receiving 24/7 care in his home at significant cost, which he was not able to detail to the Tribunal. VM is a high net worth individual whose wealth is owned through a complicated structure of companies and trusts, which he was not able, either when being assessed or at the Tribunal hearing, to describe in any detail. He is completely reliant on the honesty and integrity of his advisors as he does not retain information about financial matters.
  2. [39]
    It has been said by some of the medical professionals that based on his ability to detail the matters of which a principal is required to have an understanding VM had capacity for making an enduring power of attorney.  While this may be correct as far as it goes, one of those understandings is that while he has capacity he is able to change or revoke an enduring power of attorney. This requires that he be able to hold the knowledge that he has made an enduring power of attorney in his memory. As a result of his memory deficits, that is doubtful.
  3. [40]
    It is clear that VM does not have capacity to make complex personal and financial decisions from the material including the last assessment by VM’s own geriatrician, Dr Kelly. In that case in accordance with the decision of Ranclaud v Cabban (1988) NSWS ConvR 57, VM does not have the capacity to grant an enduring power of attorney to the extent that the grant is about matters for which he does not have capacity. This was acknowledged at the hearing.
  4. [41]
    VM does not have capacity for any of the following:
    1. (a)
      Complex personal and financial matters;
    2. (b)
      Executing an enduring power of attorney; and
    3. (c)
      Revoking an enduring power of attorney.

Leave to resign as attorney

  1. [42]
    As VM does not have capacity in regard to enduring powers of attorney, his attorneys cannot resign without leave of the Tribunal in accordance with s 82(1) of the POA Act. VM’s attorneys under the enduring power of attorney dated 2 March 2016 have made an application to the Tribunal for leave to resign. It is clear that the relationship of trust needed between a principal and his attorneys has broken down. In particular where a principal is still capable of expressing his views and wishes it is necessary that there be a good level of rapport between the principal and attorneys. VM has expressed that he wished to replace his attorneys in his affidavit and at the hearing. His attorneys find the situation unworkable having regard to the dynamic which exists with VM and MAL. There will need to be appropriate arrangements put in place in regard to decision making for VM and that will be through appointments under the Guardianship and Administration Act 2000 (GAA Act). I am satisfied that it is appropriate to give to DJB, CP and HJA leave to resign as attorneys for VM under the enduring power of attorney dated 2 March 2016.

Guardianship

  1. [43]
    The Tribunal may appoint a guardian for personal matters under s 12 of the GAA Act where an adult has impaired capacity for decisions about personal matters and there is a need for decisions to be made which would require appointment to ensure the adult’s interests are met. I was advised at the hearing that the matter which was presenting at that time requiring decisions was service provision. A service provider had been appointed by the attorneys and it would appear that VM considered that there was not the need for such extensive services. The services were also being provided outside of his needs for people such as his daughter. There was concern that MAL would put herself forward as a proposed appointee. A guardian is therefore required for service provision.
  2. [44]
    It had been anticipated that MAL may put herself forward as guardian and family members other than her were not supportive of this due to the way in which they perceived her relationship with VM. MAL did not in any case put herself forward. MV nominated WM, who had been mentioned by VM as a possible appointee as attorney and a relative, PF in the role of guardians. They were not though able to demonstrate that they had an adequate understanding of the role and the complexity of VM’s situation. The Tribunal may appoint the Pubic Guardian where there are no other parties available in accordance with s 14(2) of the GAA Act and I am satisfied that is the case here. I note that VM did not nominate his own appointees as guardian.
  3. [45]
    The Public Guardian is appointed as guardian for VM for decisions about service provision for two years.

Administration

  1. [46]
    VM is a high net worth individual with a complex structure of trusts and companies. Though there are few active investments with most being managed funds, there is a need to ensure that expenditure by VM is sustainable, having regard to his assets and income. It was this issue that caused conflict between VM and MAL and ultimately his attorneys.
  2. [47]
    VM was given the opportunity of nominating an appointee as administrator as he had clearly expressed that he did not wish the Public Trustee to be appointed. He did not avail himself of this opportunity. VM is totally reliant on his financial advisor in regard to managing his finances, and is himself, unable to ensure that his financial obligations (such as paying bills) are met having regard to the complexity of his financial position. There is, therefore, a need for an administrator.
  3. [48]
    The Public Trustee is an independent professional group with the skill set necessary to ensure that VM’s finances are managed appropriately. I appoint the Public Trustee of Queensland as administrator for VM in accordance with the order.

Conflict Transaction and Remuneration of Attorneys

  1. [49]
    HAJ is a solicitor and while acting as attorney for VM had been noting his costs at his usual charge out rate of $520 per hour plus GST which for the periods of 24 April to 18 February totalled $87,347.43. He also incurred legal costs in regard to the various applications to the Tribunal of $18,260 and made an application requesting that payment be made to him in regard to these amounts. He noted in his submissions that he had been VM’s lawyer, had created his structure and has general legal knowledge which has been of great assistance in dealing with matters for VM. There was no conflict or remuneration clause in the enduring power of attorney so HAJ could not make or receive the payment of remuneration without a Tribunal order. He was initially requesting that a charging clause be inserted into the enduring power of attorney under s 116 of the POA Act or that payment of that sum be approved under s 118(2) of the POA Act.
  2. [50]
    The Public Trustee submitted that the legal fees should be paid and I accept that submission, however, in regard to the remuneration there were two issues. Firstly, any authorisation of a conflict transaction would be retrospective. The Supreme Court had held that was available in The Public Trustee of Queensland (as litigation guardian for ADF) v Ban [2011] QSC 380. It was submitted for HAJ that payment would be approved by the Public Trustee out of the adult’s funds and therefore it was prospective approval. I accept this submission and the Ban decision is determinative.
  3. [51]
    The Public Trustee also raised the issue that HAJ was seeking to charge himself out as attorney at the same rate which he charged himself out as lawyer. In accordance with the decision of Legal Services Commission v Tower [2006] LPT 003, that was not appropriate. It was submitted for HAJ that Tower’s did not apply as that case involved an attorney charging out for legal work without a conflict clause. There have been guidelines recently issued by the Queensland Law Society in regard to an appropriate rate of charge in these cases. The Public Trustee calculated that the amount payable to HAJ on this basis would be $37,708.98. It was accepted for HAJ that he could not charge his professional rate for work which was not involving the skill, knowledge and experience of a solicitor and his invoices were re-calculated, now totalling $52,829.92. I consider that if HAJ is to be allowed payment for acting as attorney then it should cover all of the instances when he did so and these are set out in his invoices. I concur with the Public Trustee that payment should be made at a rate commensurate with the level of skill necessary to perform the role of attorney and agree that the Public Trustee’s rate is appropriate.
  4. [52]
    The Public Trustee of Queensland is directed to reimburse HAJ’s legal expenses in the amount of $18,260 and to pay to HAJ the amount of $37,708.98 for performance of his work as an attorney.
Close

Editorial Notes

  • Published Case Name:

    VM

  • Shortened Case Name:

    VM

  • MNC:

    [2019] QCAT 308

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    15 Oct 2019

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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