Re RV[2019] QCAT 384

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Laws Governing Guardianship, Administration and Enduring Powers of Attorney

[1] The law governing adult guardians and administrators is set out in the Guardianship and Administration Act 2000 (GAA). Laws governing Enduring Powers of Attorney (EPA) are to be found in the Powers of Attorney Act 1998 (PAA) and to a lesser extent the GAA.

[2] The GAA states that, it

together with the Powers of Attorney Act 1998 provides a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult.^[1]

[3] The Queensland Civil and Administrative Tribunal (the Tribunal) is empowered to ‘appoint a guardian for a personal matter, or an administrator for a financial matter’. ^[2]

[4] Such guardians and administrators are usually

authorised to do anything in relation to a personal matter [in the case of a guardian] or a financial matter [in the case of an administrator] that the adult could have done if the adult had capacity for the matter when the power is exercised.^[3]

[5] The PAA states that ‘An attorney is a person who is authorised to make particular decisions and do particular things for another person (the principal)’.

[6] A guardian or administrator may be appointed on the application of a person with an impaired capacity, the public guardian, an interested person,^[4] or on the Tribunal’s own initiative.^[5]

THE APPLICATIONS

Guardianship and Administration

[7] On 1 March 2019, the Public Guardian filed an application, asking the Tribunal to appoint a guardian and an administrator for Rosa Vecchio (the Adult). In the course of the hearings, the Tribunal received a further application, dated 25 July 2019, from GM, one of the Adult’s daughters, also seeking the appointment of guardians and administrators.

[8] The Public Guardian proposed that she be appointed as guardian and that the Public Trustee be appointed as administrator for the Adult. GM, on the other hand, proposed the joint appointment of herself, her sister RL, and her brother SV both guardians and administrators for their mother, the Adult.

Application for Leave to be Represented

[9] On 15 May 2019 an application seeking leave to be represented was filed on behalf of the Adult.

[10] The application was opposed by three of the Adult’s four children. They submitted that the Adult should not be represented, particularly if she was to be represented by BC.

Declarations About Capacity

[11]  The Public Guardian also lodged an application seeking the Tribunal’s declaration about the Adult’s capacity at two specific times:

1. (a)
   On 20 August 2018, when she appointed her son, IV, as her enduring attorney for financial and personal/health matters, and

2. (b)
   On 20 September 2017, when the Adult signed a document transferring the title of her house and land, at 4 Paradise Close, White Rock, to IV.

Background to the Proceedings

[12]  The Adult is an 81-year-old woman who lives with her son IV in a house that she has lived in for over 30 years. She has three other children, daughters RL and GM and son SV. Her husband, JV, passed away on 15 March 2015.

[13] The Adult’s son, IV is her carer. He became his terminally ill father’s paid carer in 2009. Following his father’s death in 2015, IV took on the role of paid carer for his mother.

[14] In recent years, the relationship between IV and his three siblings has become increasingly strained. Several events in particular appear to have exacerbated the conflict in the family.

[15] One such event was the Adult’s signing, on 13 July 2017, of a new will nominating IV as the sole beneficiary. Under the earlier will, executed on 27 May 2015, all of the Adult’s children were named as equal beneficiaries.

[16] The strained relationship was further aggravated by the transfer of the title to the Adult’s White Rock property to IV on 20 September 2017.

[17]  In addition on 20 August 2018, the Adult appeared to execute an EPA appointing IV as her attorney with immediate financial power, and authority over her personal/health matters when she lost capacity for those matters.

[18] The strained relationship turned to verbal abuse, threats and finally physical assault resulting in a Domestic Violence Protection Order^[6] being ordered by consent without admissions against IV on 14 December 2018.  The Order listed RL as the Aggrieved.

[19]  The various documents signed by the Adult appear to have made other family members suspicious of IV’s possible financial exploitation of his mother, and of his self interest in continuing to care for her and live in the White Rock property.

[20] While IV was generally accepted to have cared well for his mother, the family conflict has adversely impacted on the adult’s ability to visit other members of her family and on family members being able to visit her.

[21] A number of allegations regarding IV were taken to the Public Guardian, who, following an investigation, filed applications with the Tribunal.

[22] The Tribunal is authorised to ‘receive in evidence’^[7] such a report by the Public Guardian and may ‘have regard to the matter contained in the report.’^[8]

INVESTIGATION BY THE PUBLIC GUARDIAN

[23]  The Public Guardian role has a statutory role to protect the rights and interests of those who have an impaired decision-making capacity.^[9] In this role, the Public Guardian—

may investigate any complaint or allegation that an adult—

(a) is being or has been neglected, exploited or abused; or

(b) has inappropriate or inadequate decision-making arrangements.^[10]

The Allegations

[24] The Public Guardian received four allegations regarding the conduct of IV in regards to the Adult.

[25] The Public Guardian’s initial inquiries revealed that the Adult had made an Enduring Power of Attorney on 20 August 2018, appointing IV as her attorney for financial and personal/health matters, with the financial power commencing immediately.

[26] Medical evidence obtained by the Public Guardian was also deemed sufficient to rebut the legal presumption of capacity^[11] relating to the Adult.

[27]  These findings satisfied the Public Guardian that the matter fell within her area of authority, and a decision was made to undertake an investigation of the issues raised in the allegations.

[28] In the course of the investigation, commenced 5 September 2018 and completed on 26 February 2019, the Public Guardian gathered information from a wide range of sources and as required by the PAA^[12], sought the respondent’s (IV’s) response to its findings before submitting the Report to the Tribunal.

[29]  The Chief Investigator, prepared a report, dated 26 February 2019, that contained the investigation findings, including IV responses to specific allegations.

Allegation 1 – That IV had been accessing the Adult’s funds for his own benefit

The Law

[30] The duties and obligations of attorneys appointed by an Enduring Power of Attorney may be found in the PPA. Several of the key provisions are cited in the Public Guardian’s report.

1. (a)
   With respect to the first allegation, the Report notes that section 66 of the PPA stipulates that, ‘an attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests.’

2. (b)
   The Report also states that section 76 of the PAA requires an attorney to comply with the ‘general principles’ and with the ‘health principle’ for health matters.^[13] General Principle 10, titled ‘Appropriate to circumstances’, requires an attorney’s power to be exercised ‘in a way that is appropriate to the adult’s characteristics and needs.’

3. (c)
   Particularly relevant is the mandatory requirement of section 85 of the PAA - that ‘an attorney for financial matters must keep and preserve accurate records and accounts of all dealings and transactions made under the power.’

The Investigator’s Findings Re Allegation 1

[31] The report discloses a number of expenses from the Adult’s account that are not only for the benefit of the adult. However, the Investigator reports that without access to all records and receipts she was unable to verify that all transactions were only for the benefit of the Adult.

[32] Consequently, the Investigator found that the allegation was not able to be substantiated to the required standard of civil burden of proof [the balance of probabilities].

[33] However, the Investigator noted remaining concerns that some of the transactions made 15 September 2018 to 31 October 2018 were not for the benefit of RV only.

[34] While the Public Guardian was unable to substantiate the specific allegation that IV had been accessing the Adult’s funds for his own benefit, the Investigator’s report  concludes with the submission that IV ‘has breached section 85 of the Powers of Attorney Act 1988, by failing to keep and preserve accurate records and accounts for the transactions made for the period September 2018 to October 2018.

IV’s Response to Allegation 1

[35] Through his lawyer, BC, IV denies ever accessing the Adult’s account for his own benefit, and notes that when he first accessed the Adult’s bank account on 15 September 2018, he did so, as her attorney.

[36] Prior to his appointment as the Adult’s sole attorney, IV submits, the account had been accessed in two ways – directly by the Adult, and electronically by the Adult’s daughter, GM, ‘to view and make EFT transactions’. GM’s authority, IV states, was revoked ‘through notification to Suncorp’ on 28 August 2018. IV suggests that as ‘mum’s accounts’ were ‘always depleted’, ‘it is my firm belief that GM was bleeding money from the accounts’.

[37] IV also presented bank statements recording his deposit of $30,000 into the Adult’s account, ‘for her own use’, on 13 July 2017 – prior to his appointment as the Adult’s attorney on 20 August 2018.

[38] IV offered the following explanation as to why the Adult had executed the EPA. The bank branch that the Adult had used and the next closest branch had closed. This, according to IV, made it necessary for the Adult to ‘access her bank’s Cairns Central branch’. Consequently, ‘for convenience and practicality’, she had decided that she would appoint IV as her sole attorney.

[39] Finally, IV’s lawyer conceded that his client had not kept records and accounts of his administration of the Adult’s finances as required by s 85 PAA. The earliest receipt kept by IV was from early December 2018. The explanation offered was that IV ‘was under the impression that the bank statements that had been provided were all that he needed to comply with legislation.’

The Tribunal’s Consideration and Findings Re Allegation 1

[40] In the course of these proceedings, IV has submitted numerous statements regarding financial transactions and accounts by the Adult and by IV. These statements disclose that on numerous occasions IV used his own money to pay for items of benefit to the Adult.

[41] The accounts also disclose that the Adult’s funds were regularly used to address not only the Adult’s needs. For example, I note that the budgeting for a fortnightly expense of $500 on groceries is difficult to reconcile with the needs of an elderly woman. I also don’t accept that payment for Foxtel entertainment or motor vehicle insurance can be described simply as for the Adult’s benefit, rather than for the benefit of both the Adult and IV. Similarly, withdrawals made from the Adult’s account in the period 15 September 2018 to 31 October 2018 appear to disclose specific purchases unlikely to be for the benefit of the Adult.

[42] In using both the Adult’s and his own finances to pay for joint and individual needs, IV appears to have failed to ‘keep his property separate from the principal’s property as required by s 86(1) of the PAA’. In explanation, he has stated, ‘I cannot support my mother on my pension alone, we have to both pool our money to survive on a daily basis’.

[43] By not ensuring that that the Adult’s finances were used only for her own benefit he may also be said to have gifted the Adult’s money to himself in breach of s 88 of the PAA.

 Tribunal Findings Re Allegation 1

[44] As disclosed and conceded by IV, I find that IV has failed to keep records and accounts of his administration of the Adult’s finances as required by s 85 PAA. While this is not necessarily evidence that he financially exploited the Adult, it is undoubtedly evidence of his failure to comply with the obligations of an attorney under an EPA.

[45] As the Public Guardian reports, IV’s failure to maintain records and accounts makes it very unclear whether he has acted honestly and protected the Adult’s interests as required by section 66 of the PAA.

[46] Inconclusive evidence as to this allegation, together with his breaches of prescribed responsibilities, suggests that IV my not be a suitable person to be entrusted with responsibility for his mother’s financial matters.

Allegation two – That the Adult lacked capacity to transfer her property in 2017.

The Law

[47] The Report outlines relevant legal provisions governing transactions between the principal (the adult) and the attorney (IV).

1. (a)
   The governing principle is set out in s 66. It requires an attorney to ‘exercise power honestly and with reasonable diligence to protect the principal’s interests.’

2. (b)
   Directly relevant, s 73 states that ‘an attorney for a financial matter may enter into conflict transaction only if the principal authorises the transaction, conflict transactions of that type or conflict transactions generally.’

3. (c)
   The Report also points out that Section 87 of the PAA provides that

87. The fact that a transaction is between a principal and 1 or more of the following –

1. (a)
   An attorney under an enduring power of attorney or advance health directive;

2. (b)
   a relation, business associate or close friend of the attorney

gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.

4. (d)
   Some transactions between principals and attorneys may be construed as gifts. Section 88 PAA limits gifting by a principal. It provides—

Unless there is a contrary intention expressed in the enduring power of attorney, an attorney for financial matters for an individual may give away the principal’s property only if –

1. (a)
   the gift is –

(i) to a relation or close friend of the principal; and

(ii) of a seasonal nature or because of a special event (including, for example, a birth or marriage); or

2. (b)
   the gift is a donation of the nature that the principal made when the principal had capacity or that the principal might reasonably be expected to make;

and the gift’s value is not more than is reasonable having regard to the circumstances and in particular the principal’s financial circumstances.

The Gathered Evidence

[48] The Public Guardian reports that the explanation for the transfer of title, offered by IV and his then lawyer, BC, is that it was a decision taken following a verbal confrontation with his sister RL, physical assault by his brother SV, and repeated indications that RL intended to ‘kick him’ (IV) out of the home and place the Adult in aged care’. IV told the Public Guardian that both the Adult and he had became concerned for their welfare.

[49] More specifically the report recounts that in the presence of the Adult, IV told Investigators that he and his mother discussed and agreed that she transfer the property to him in order to ensure that no one could sell the home, and therefore that the living and care arrangements between them could continue.

[50] The Consideration for the transfer of title is noted as for ‘the natural love and affection borne by the transferor to the transferee’. The only money exchanged was the sum of $30,000 that IV deposited into the Adult’s bank account a few weeks before the transfer of title. However, this sum has not been expressly identified as consideration for the transfer.

[51] The Report also expresses some concern about the circumstances surrounding the signing of the transfer, noting in particular that the witnessing officer for both signatures was IV’s lawyer, BC.

[52]  Another factor identified in the Public Guardian’s investigation was that both the transfer of title and the new will were sharply at odds with earlier expressions of the Adult’s wishes. In particular the Investigator pointed to the adult’s will dated 27 May 2015, which provided that the whole of the estate be divided equally between all her children. In contrast, in her 17 July 2017 will, she left the whole estate to IV. As the Adult’s assets were almost entirely tied up in the house, I note that the transfer of title effectively brought forward the revised distribution of the Adult’s property.

[53]  The Public Advocate’s report also refers to two medical reports of relevance to the Adult’s capacity to transfer her property to IV on 20 September 2017.

1. (a)
   On 30 March 2016 the adult was reviewed in a memory clinic by Dr GT. Writing on the same day Dr GT reports that the Adult scored 25/30 on her Mini Mental State Examination (MMSE), and that her cognitive impairment was ‘only mild and doesn’t seem to have progressed significantly over time.” He also reported that the Adult’s ‘mental function has significantly improved being evident today’.

2. (b)
   The second report is the Health Professional Report completed by Dr SM on 12 October 2018. In it she notes that the Adult’s cognitive impairment was first diagnosed in October 2015 by Dr GM. Dr SM also observes that the Adult had ‘clinically declined in the last two years.’

Dr SM’s refers to the Adult’s diagnosis of dementia, and her progressive, impaired decision-making capacity. She describes the level of impairment as moderate. In her opinion the Adult is not able to manage any decisions about financial matters, and is only able to manage simple decisions with respect to other personal matters on her own.

The Investigator’s Findings

[54] The Public Guardian concludes that there is medical information indicating an impairment to the Adult’s decision-making capacity at the time of the property transfer.             

[55] On this basis, the Public Guardian’s Report concludes that it is necessary to seek a declaration of capacity from the Tribunal for the Adult, as the Tribunal is authorised to make by s 146 GAA. Specifically, the Public Guardian asks the Tribunal to make a declaration of whether the Adult had capacity to transfer title of 4 Paradise Close, White Rock to IV on 20 September 2017.

[56] In her application the Public Guardian submits that the declaration of capacity is essential

To bring certainty regarding the Adult’s formal arrangements to ensure her future rights and interests are being adequately and appropriately protected…To bring certainty regarding Mrs Vecchio’s capacity to transfer the title of her home to ensure her future rights and interests are being adequately and appropriately protected.  

IV’s Response

[57] IV’s response to this allegation was that his mother (the Adult) was quite capable of transferring her house to him. He noted that she had been ‘clinically checked’ by Aged Care Service, most recently on 30 March 2016.

[58] His explanation of the transfer relates to the threats and intimidation from his siblings, that the Investigator’s Report mentions. He specifically reports on the events of the evening when he alleges that he was physically assaulted by his brother SV.  He also says that RL had came over and repeatedly advised him of her intention to kick him out and put their mother in a nursing home.

[59]  According to IV, it is this incident that caused him and the Adult to become concerned about their welfare and about IV being able to care for Adult, until the home was no longer required.

The Tribunal’s Consideration of Allegation 2

[60] The Investigator’s report accurately sets out the law governing transactions between a person appointing an attorney through an EPA and their appointed attorney. However, the transfer of title took place on 20 September 2017, some 11 months prior to the execution of the EPA, on 20 August 2018.

[61] However, at the time of the purported transfer of title, the relationship between the Adult and IV could only be described as that of mother and son, and carer and person in receipt of their care. An attorney’s obligations and liability are not retrospective.

[62] The Tribunal is empowered to make a declaration about a person’s capacity,^[14] irrespective of the existence or absence of an EPA or an appointed guardian or administrator. And while Tribunal’s power to make declaration about validity are more limited, declarations about capacity may be accepted as evidence in other jurisdictions. Both the PAA and GAA state that –

A declaration about whether a person had capacity to enter a contract is binding in a subsequent proceeding in which the validity of the contract is in issue, evidence about the person’s capacity.^[15]

[63] As Dr SM notes in her Health Professional Report dated 12 October 2018, the Adult’s last formal assessment was two years earlier. Reviewed by Geriatrician, Dr GT, the Adult was diagnosed as having ‘mild dementia syndrome pattern consistent with Alzheimer’s disease’ and as having a significant cognitive impairment.

[64] In his report, dated 11 April 2016, Dr GT noted that even though the Adult was confused and her mental function varied from day to day, her MMSE score had increased from those attained in 2013 and 2014, and that she could manage her own finances via the bank.

[65] In sharp contrast, when examined on 12 September 2018, the Adult was assessed by her GP as lacking capacity to execute an EPA or make even simple financial decisions. This led her doctor to comment that clinically, the Adult had declined in the last two years.

[66] The Tribunal was not made aware of any medical reports on the Adult’s capacity around the time of the transfer of title on 20 September 2017. However, what is clear is that the Adults cognition was impaired to a far greater degree in 2018 than it had been in 2016.

[67] Nevertheless, some assistance is provided by the statement of the Adult’s nominated doctor on her Advance Health Directive on 11 August 2017. On that occasion the Adult was assessed by her long-term GP as being capable of understanding the nature and effect of her Advance Health Directive.

[68] This assessment of capacity required the Doctor to discuss the document with the Adult and attest to her not suffering from any condition that would affect her capacity to understand all that is necessary to make the directive and to understand the nature and likely effect of the health care described. 

[69] This suggests that some five weeks later, on 20 September 2017, the Adult would in all likelihood also be capable of understanding the nature and effect of the transfer of her property to IV. 

[70] However, while she may have been capable of such understanding of the transfer of title, it is unclear what, if any steps were taken to ensure that she received the information and advice required for her to be able to fully understand the transaction.

[71] The evidence of then IV’s lawyer, BC was that the Adult had clearly indicated that she wanted to transfer her title to IV.

[72] BC advised the Tribunal that he and his office had complied with all the requirements regarding the Adult’s capacity to sign the transfer. He also maintained that he had no conflict of interest in his assistance of IV and the Adult and in being a witness for both parties. Nor did he see his friendship with IV as an issue.

[73] It is not contested that the Adult did not have separate legal representation or receive independent advice. It appears that some, if not all of her information and advice came from IV, to whom she was effectively gifting her house. There is little doubt that an independent lawyer would have not only been able to reassure the Adult as to her concerns but would also have ensured that she understood the implications of transferring the title to her house.

[74] No mention was made of anyone having discussed alternative ways by which the Adult could safeguard her property, without giving it to her son, IV.

[75] These factors, together with the extent to which she was reliant on IV, suggests that while most probably capable of understanding the nature and effect of the decision, the Adult did not fully understand the nature and effect of the decision.

[76] Such a conclusion is supported by the Adult’s apparent ongoing belief that she owns the house. IV appears to perpetuate this misconception by continuing to refer to the house as his mother’s house.

[77]  As discussed in greater depth below, capacity for a matter requires more than just being capable of understanding the nature and effect of a decision. It also requires that the person be capable of freely and voluntarily making such a decision and of communicating the decision.^[16]

[78] I note the existence of ample evidence suggesting that the Adult transferred her property under the influence, if not at the bidding of her son IV, who stood to gain from the transaction but did not take any steps to ensure that his mother’s interests were protected by ensuring that her decision was freely and voluntarily undertaken and truly reflected her wishes.

[79] Various reasons as to why the Adult transferred her property to IV were presented or able to be discerned from the evidence.

[80]  When questioned as to why the transfer took place, IV has stated that it was the Adult who wanted to transfer the house to him. Yet, at other times, as already noted, IV has stated that the transfer was motivated by his and his mother’s fears.

[81] Alongside these explanations, in his written and oral testimony IV has emphasised having paid his parents’ bills. In particular he notes that he alone paid for his mother’s health care, when in 2014, she was hospitalised and treated in Sydney for Giglin Barre disease. He also states that he had spent a lot of his own savings and most of the $400,000 compensation payout for a workplace incident, on renovating the house and contributing to the deposit. He states that he even had to sell a collectable vehicle ‘to raise cash’.

[82] He observed that in contrast the Adult’s other children have not assisted financially, and had even charged the Adult for the minor assistance they provided.

[83]  IV’s sworn submissions reflect his sense of being entitled to the family property. He states that when the house at Paradise Close, White Rock was purchased by his parents, he assisted with a cash deposit of $10,000 but was never reimbursed. He also states that the Paradise Close, White Rock mortgage was paid off in 5 years. This, he says, was mainly due to the ‘Macknade’ residence (which he states at the time had been willed to him) being sold, and the proceeds utilised to pay off the Paradise Close, White Rock mortgage. IV notes that his parents did not the money to repay him for his contributions.

[84] As the Public Guardian notes in her Investigation report, the PAA provides that a transaction between a principal and her attorney or relative gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.^[17] If at the time of the transfer of title, the Adult had been a principal and IV the attorney and son, there is little doubt that IV would be found not to have rebutted the presumption of undue influence.

[85] Even outside of the Tribunal’s jurisdiction, transactions entered into because of undue influence, (sometimes described as persuasion that overcomes free will and judgment) that targets vulnerable and susceptible persons, may also be set aside. In certain relationships such as the Adult’s vulnerable reliance on IV’s financial management of her finances, or family relationship, undue influence will also be presumed.

[86] The factors usually deemed as indicative of undue influence are clearly present in this case—

 (a) The presence of susceptibility is undoubtedly present in the form of the Adult’s cognitive impairment, deteriorating memory and growing incapacity to attend to her ADLs.

 (b) The presence of opportunity to unduly influence, that is usually required to be established tends to flow from a confidential relationship. In this case the opportunity flows from the Adult’s relationship with IV as her son, financial manager, and primary carer. It is notable that the transactions that concern the rest of the family such as transfer of the Adult’s property were kept a secret from the rest of the family.

 (c) An allegation of undue influence is also strengthened by the establishment of a person’s   tendency to exercise undue influence over the alleged victim. In this case, such a tendency is evident in IV’s jealous guarding of his monopoly and control of the Adult’s care and her reliance on him, his discouragement and hindering of the Adult’s contact with those who may challenge his influence over her, and through IV’s failure to provide the Adult with independent advice. Arguably this tendency to exert undue influence is present in all the transactions that benefitted IV but are attributed to the Adult.

 (d) The final element generally required in order to establish undue influence is evidence of an uncharacteristic or suspicious transaction signalling an otherwise inexplicable and significant departure from past trends or norms. As the Public Guardian has posited, the Adult’s new will and transfer of her property to IV, are both radical departures from previously expressed wishes and long-standing understanding that her estate would be evenly distributed between the four children.

[87] On the basis of the presented evidence, IV’s overriding influence over the Adult provides the most plausible explanation for the Adult’s transfer of her property.  Therefore, on balance, I find that the adult executed the transfer relying on the advice of IV who most probably urged her to do so.

[88] The evidence appears to suggest that by creating or fuelling a baseless fear, IV sought to secure what he considers to be his entitlement for looking after both parents, spending his money on the house. He also appeared to be motivated by his desire to remain his mother’s paid carer and to continue living in his mother’s home.  As he states, ‘While I care for my mother it puts a roof over both our heads’.

The Tribunal’s Finding as to Allegation 2

[89] I find that there is insufficient evidence for me to be satisfied on the balance of probabilities that, on 20 September 2017, when the Adult signed the transfer of her property at 4 Paradise Close, White Rock to her son IV, that she was incapable of understanding the nature and effect of that decision, and of communicating her decision. Consequently, I find that the presumption of capacity is rebutted.

[90] However, I find that the Adult was not capable of freely and voluntarily making the complex financial decision decisions about the transfer of her title. It is on this basis that I propose to declare that the Adult lacked capacity to transfer her home to her son, IV.

Allegation 3 - That IV was restricting contact between the Adult and her family

The Relevant Law

[91] The Investigator notes that Section 76 of the PAA requires the general principles set out in schedule 1 of the Act be complied with by a person who exercises a power under an enduring document in relation to an adult who has impaired capacity.

[92]  Directly relevant to this allegation, the Public Guardian submits, is General Principle 8, which states ‘The importance of maintaining an adult’s existing supportive relationships must be taken into account.’

Evidence and Findings

[93] After interviewing all parties, the Public Guardian formed the view that in spite of denials by IV, his presence in the house, his interactions with his siblings, and his influence on his mother were such that he was in fact restricting contact between her and the rest of her family.

[94] The Investigator found that IV had failed to comply with Principle 8, and consequently that allegation 3 is substantiated.

[95] On the basis of this finding, the Public Guardian considered it necessary to submit an application to the Tribunal seeking the appointment of a Guardian for the Adult for contact decisions.

IV’s Response

[96] IV submitted that at no stage since 19 March 2015, did he, or his mother restrict family members from visiting or phoning his mother.

[95] He has consistently submitted that ‘accusations, threats and vandalism’ regarding the transfer of title and his appointment as his mother’s attorney are responsible for any contact and access problems.

[97] He reports that police had been called out in respect of visits and that what stopped him taking out a Domestic Violence Protection Order was that he felt it would only ‘add fuel to the fire’ and in any event would ‘only remain in force for 4 days’.

[98] He states that ‘obnoxious and violent behaviour’ by his siblings had upset the Adult and caused her to withdraw into herself and not want her children to enter her home.

[99] He further states that the Adult was fearful of her other children when they become abusive and harass her and him (IV).

Tribunal Findings

[100]  I do not accept IV’s submissions that at no stage since 19 March 2015, did he or his mother restrict family members from visiting or phoning his mother. He himself has referred to several occasions when he felt justified to restrict or prohibit contact. However, some of the justification may well have been because the Adult was upset or had expressed her reluctance to see her other children.

[101]  The maintenance of the Adult’s relationships with her other children and their families calls for much more than grudging permission to contact. In view of the ongoing family conflict it may even require changes in living arrangements that may not be in IV’s best interests. Equating his best interests with those of the Adult, IV has put the Adult in a position of having to choose between her home and time spent with her other children.

[102] The evidence submitted, including that submitted by IV, establishes that he has fuelled and even introduced some of his mother’s fears and concerns, and in so doing has driven a wedge between her and her other children. The Adult’s apparently unfounded concerns about her other children wanting to sell her home and place her in a nursing home have either originated with IV or been fuelled by him.

[103] Overwhelmingly, the evidence suggests that IV maintains those of the Adult’s existing relationships that do not challenge his care and control of the Adult. Relationships that challenge the security of his living arrangement and financial benefits of living and influencing his mother are, on the other hand, not actively maintained and even discouraged.

[104] IV is involved in a family dispute over what constitutes the best interests and care of the Adult. His self interest in not compromising his stance and control over the Adult, prevent him from being able to promote the Adult’s relationship with her other children, even if only through access.

[105] That some of the fault for lack of contact and maintenance of the Adult’s relationships lies with her other children does not change the fact that, as her attorney, he is not able to maintain the Adult’s relationships with her other children or be able to have amicable and adequate contact with them.

Allegation 4 - that RV was not receiving adequate and appropriate care at home

  Relevant Law

[106]The Public Guardian’s Investigation Report identifies two General principles relevant to this allegation against IV.

(1) General Principle 2, titled ‘Same Human Rights’ states that

1. (a)
   The right of all adults to the same basis human rights regardless of a particular adult’s capacity must be recognised and taken into account

2. (b)
   The importance of empowering an adult to exercise the adult’s basic human rights must    also be recognised and taken into account

(2) General Principle 10, titled, ‘Appropriate to circumstances.’ This Principle states that ‘power for a matter should be exercised by an attorney in a way that is appropriate to the adult’s characteristics and needs’

The Evidence

[107] With respect to access to services, the Investigation initially identified the need for some additional services, but ultimately the Investigator concluded that the Adult was well looked after and IV has arranged for the Adult to have access to the additional required services.

The Investigator’s Finding

[108] The Report found the allegation not able to be substantiated to the require civil standard of balance of probabilities.

IV’s Response

[109] The response from IV has been comprehensive. Through his lawyer, IV advised that he has taken full responsibility for caring and providing for his mother.

[110] The Adult pointed out that he had ensured that the Adult receives medical attention in all aspects of care, by:

1. (a)
   Taking the Adult to her Doctor, with no appointments missed unless the Adult was unwell

2. (b)
   Taking the Adult to Specialist appointments and for all regular Dental check-ups

[111] IV also pointed out that he had ensured that the Adult accesses appropriate services, by

1. (a)
   Taking her to Aged Care Service assessments

2. (b)
   Registering the Adult with Aged Care Support Service. He pointed out that this service has not been called upon as he is currently able to look after her. He notes that if and when his mother’s health deteriorates to the extent that he is no longer able to attend to her needs, he will call upon Aged Support Services.

[112] IV also states that he has taken steps to ensure that the home is safe and meets the Adult’s needs. He says he did so by modifying, re-building and making safe the family bathroom, using his own money.

The Tribunal’s Finding

[113] The Investigation has not established that the Adult is not receiving adequate and appropriate care at home

[114] However, written and oral submissions by the Adult’s other children have pointed to what they describe as culturally inappropriate care provided by IV. This refers to the appropriateness of personal care such as a 55-year-old son. assisting his mother to dress.

[115] Implicitly, the Investigation Report appears to link misgivings about access to services to the ongoing family conflict over contact.

[116] Concerns relating to the Adult’s care and access to care in her home cannot be separated from the family conflict and IV’s competing interest in remaining his mother’s paid carer.

[117] To ensure that the Adult has access to adequate and appropriate care in suitable accommodation also calls for open lines of communication between those with whom she may be staying temporarily or permanently. This is difficult to envisage within the current decision-making arrangement.

The Public Guardian’s Overall Conclusions Regarding the Investigation

[118] The Public Guardian considers the Adult to have impaired capacity for financial, personal and health matters

[119] On the basis of the Investigation’s findings, the Public Guardian considers it necessary to take the following protective action in relation to the Adult

1. (a)
   Submit an application seeking declaration of the Adult’s capacity

1. (i)
   To make EPA 20 August 2018

2. (ii)
   To transfer title of 4 Paradise Close, White Rock on 20 September 2017

(b) Submit an application seeking the appointment of a Guardian for the Adult for

contact decisions, and

3. (c)
   Submit an application seeking appointment of an administrator if the Tribunal determines that the Adult did not have capacity to make an Enduring Power of Attorney on 20 August 2018 and transfer title to 4 Paradise Close White Rock on 20 September 2017.

The Tribunal’s Response

[120] The Tribunal notes the evidence and submissions by the Public Guardian, and further addresses them below.

ISSUES FOR THE TRIBUNAL’S DELIBERATION

[121] The applications from the Public Guardian and GM, numerous written submissions, oral evidence and submission in the hearings, together with the Report on the Investigation conducted by the Public Guardian, require the Tribunal to address and determine the following issues:

(a) Declarations about Capacity

3. (1)
   The adult’s present capacity with respect to personal, health and financial matters

2. (ii)
   The adult’s capacity to execute the Enduring Power of Attorney appointing IV as her Attorney on 20 August 2018 

3. (iii)
   The adult’s capacity to transfer title to her White Rock property to her son IV on 20 September 2017.

4. (iv)
   The adult’s capacity to make a will on 13 July 2017

1. (i)
   The adult’s capacity to make an Advance Health Directive on 25 March 2019

(b) The presently existing need for the Appointment of a Guardian and Administrator for the Adult

(c) The Validity of the Enduring Power of Attorney appointing IV as the Adult’s Attorney on 20 August 2018

(d) The Validity of the Adult’s Advance Health Directive dated 25 March 2019.

CAPACITY

[122] Capacity is central to a number of the issues that the Tribunal must address in response to all of the applications.

1. (a)
   Unless the Adult’s present capacity is found to be impaired, the Tribunal is not empowered to further consider the applications seeking the appointment of a guardian and administrator.

2. (b)
   A finding of currently impaired capacity with respect to personal/health matters would also signify that the attorney’s power with respect to non financial matters has commenced.

3. (c)
   Determination of capacity at relevant times is also relevant to the validity of specific decisions and documents, such as the Adults appointment of an attorney through an EPA, and other decisions purportedly made by the Adult, such as the transfer of title to her home, the Adult’s will, and her Advance Health Directive.

[123] I begin my examination of the Adult’s capacity by considering it for the purpose of the two applications seeking the appointment of Guardians and Administrators.

The Adult’s Current Capacity and the Appointment of Guardians and Administrators.

[124] The governing law provides that the appointment of an Adult and Administrator can only be considered where the Tribunal is satisfied that an Adult’s capacity to make decision about her personal, health and/or financial matters is impaired.

[125] Specifically, Section 12(1) of the GAA states that—

12(1) The Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied –

(a) the adult has impaired capacity for the matter….

[126] A person’s capacity for a matter is defined in the GAA^[18] and PAA^[19] to mean that the person ‘is capable of –

(a)  Understanding the nature and effect of decisions about the matter; and

(b) Freely and voluntarily making decisions about the matter; and

(c) Communicating the decision in some way.

[127] Capacity is assessed with reference to ‘a matter’ rather than in general. Both GAA and PAA define ‘matter’ as including ‘a type of matter’. Schedule 2 of both the GAA and PAA lists types of matters.

[128] The significance of this is that incapacity need not relate to all personal matters to enable a Guardian to be appointed, nor to all financial matters for an administrator to be appointed. An appointment of a Guardian may. on that basis, follow a determination that a person only lacks capacity for where they live or that services they have access to.

[129] The first general principle listed in both the GAA and the PAA is that “An adult is presumed to have capacity for a matter’.  Consequently, to find that an adult has impaired capacity requires the Tribunal to be satisfied that the evidence rebuts that presumption. 

Evidence Regarding the Adult’s Capacity

[130] In seeking to ascertain whether the Adult may be said to have an impaired capacity for a matter or type of matter, be it personal or financial, I turn first to consider available medical evidence.

 Medical Evidence

[131] A number of medical reports were submitted or requested by the Tribunal. I will consider them chronologically. The earlier medical reports are not only helpful in establishing comparisons and trends and developments in the Adult’s assessed capacity, but also serve as directly relevant evidence of the Adult’s capacity at specific times in the past.  Consequently, while the Adult’s capacity for purposes of the applications for the appointment of a Guardian and Administrator relates to her current capacity, capacity, with respect to the EPA, transfer of her house and other decisions by the Adult needs to be assessed as at the time of the decisions and transactions.    

2015

[132] On 27 August 2015, Dr SM, the Adult’s GP since 2013, referred the Adult to the Cairns Hospital Aged Care Service ‘for declining cognition, general deterioration in the setting of becoming widowed recently’. Doctor GM (Senior Medical Officer for Geriatrician Dr SA), wrote a report after seeing the Adult on 16 October 2015.

[133] Dr GM’s report, dated 3 December 2015, is based on his assessment of the Adult that was undertaken 7 months after the death of the Adult’s husband on 15 March 2015.

[134] In his report, Dr GM notes the Adult’s low Mini Mental State Examination (MMSE) scores – the lowest being 19/30 in an exam by the Older Person’s Mental Health Service in 2015. However, Dr GM observes that the death of the Adult’s husband only 3 months before this assessment may have contributed to her low scores on cognitive testing.

[135] Noting a possible deterioration in the Adult’s cognitive ability, Dr GM reports that while she had scored 28/30 in her ACAT assessment on 21 July 2014, she scored only 24/30 on 23/9/15. He viewed the Adult’s most recent score of 24/30, as indicative of mild cognitive impairment.

[136] As to the Adult’s functionality, Dr GM reports that the adult attained a perfect score on the Bartel Index ‘indicating independence in self care and mobility’. Her Instrumental ADL score was 22/24, indicating the need for some assistance.

[137] Doctor GM observes that the Adult had been doing grocery shopping and associated handling of finances on her own. On the other hand, Dr GM notes that the Adult was disoriented to time and that her failing memory was frustrating her, and causing her to misplace things, and to not be able to recognise ‘financial cards.’ He further reports that while the Adult still handled simple tasks such as shopping, IV has had to take over her financial transactions, including the payment of bills.

[138] Doctor GM observed that the Adult’s IQCODE score of 3.6/5 was indicative of a moderate cognitive decline over the past 10 years.  His diagnosis was that RV had a generalised anxiety disorder, indication of depression, and a mood disorder in the form of depression and anxiety.

[139] He GM diagnosed a generalised anxiety disorder. He notes that IV told him that the Adult worries about everybody, but suggests that it may be unfair to make judgements about her cognition while her emotional distress (flowing from her husband’s recent death) is still present.

[140] In his report summary, Dr GM states that the Adult had predominant mood disorder with depression and anxiety and that there was a probable underlying mild cognitive impairment.

[141] I note that in her 2018 Health Professional Report (discussed below) Dr SM refers to this report by Dr GM as constituting the first diagnosis of the Adult’s cognitive impairment.

2016

[142] On 30 March 2016, the Adult was seen by Geriatrician, Dr GT. In his report dated 11 April 2016, Dr GT identified a ‘mild dementia syndrome, pattern consistent with Alzheimer’s disease’. He observed that the Adult’s cognition varied day to day, and noted that ‘she is very easily confused.’ Dr GT also observed that on the day of the examination, the Adult had scored 25/30 on her MMSE. While he agrees with the assessment that the Adult has a significant cognitive impairment, he qualifies this by stating that it is ‘only mild and doesn’t seem to have progressed significantly over time’.

2017

[143] On 11 August 2017, the Adult discussed her proposed Advance Health Directive with her GP, Dr SM. As required by PAA s 44(6) the Doctor made a statement in Section 5 of the Directive. In attesting to the Adult having the capacity necessary to make the directive, Dr D’s statement read—

I have discussed this document with the principal and, in my opinion, she is not suffering from any condition that would affect her capacity to understand the things necessary to make this directive, and she understands the nature and likely effect of the health care described in this document. 

[144]  Doctor SM also attested to the Adult signing this part of the document in her presence on 11 August 2017. However, the statement of understanding signed by the Adult and witnessed by a JP appears to have only been signed by the Adult and witnessed on 25 March 2019.

[145] The Adult’s making of an Advance Health Directive appears to raise issues of the Adult’s capacity, which I will address below. 

2018

[146] In November 2018 Dr G referred the Adult to Dr PL at Queensland X-Ray, for a Cerebral Spectrum Scan. In his report dated 22 November 2018, Dr PL concludes that the ‘overall appearance’ may ‘reflect an underlying vascular dementia’ although there was ‘no definite features of an Alzheimer’s type dementia.’

[147] On 12 October 2018, Dr SM filled out a Health Professional Report, In the report she observes that the Adult’s cognitive impairment was first diagnosed in October 2015 by Dr GM, and that the Adult had ‘clinically declined in the last two years.’

[148] She states that the Adult has a diagnosis of dementia, that her decision-making capacity is progressively diminishing, and that her level of impairment is moderate.

[149] As to the Adult’s capacity for financial matters, Dr SM states ‘I doubt that she is now, two years after her formal assessment, able to manage financial affairs and complex decisions’. In Dr SM’s opinion, the Adult is not able to manage decisions such as choice of services and about financial matters, and not even capable of making simple decisions about other personal matters, on her own.

[150] Dr SM also indicated that the adult did not currently have the capacity to execute an EPA. This medical opinion was given on the basis of a consultation on 12 September 2018, only 3 weeks after the Adult made her EPA appointing IV as her attorney on 20 August 2018. It is particularly pertinent to note that IV always accompanied the Adult to her medical appointments.

[151] As to whether the Adult is influenced positively or negatively, Dr SM stated that the Adult’s carer, IV was a positive influence.  However, she also observed that he was possibly a negative influence, as reported by family.

[152] Doctor SM assessed the Adult’s capacity for health care and accommodation choices as ‘maybe’. She also assessed the Adult to be incapable of all complex decisions, all financial decisions, EPA and choices about services. She deemed the Adult as only capable of simple decisions about other personal matters.

[153] Doctor SM also observed that the Adult’s decision making was affected by her dementia, and that her moderate dementia was impacted by her depression.

[154] On 9 November 2018, the Adult was assessed at the Memory Clinic by Dr SA, Specialist in Geriatric Medicine, having been referred for cognitive assessment by the Adult’s GP, Dr SM.

[155] It is particularly informative to compare this memory clinic report with Dr GM’s memory clinic’s report dated 3 December 2015, outlined above.

[156] In her report of the same date (9 November 2018), Dr SA lists the Adult’s diagnosis as moderate to severe mixed dementia (of Alzheimer’s and vascular type) with behavioural and psychological symptoms of dementia. She also observes that the adult was not on any regular medications.

[157] Doctor SA reports that according to IV, who had accompanied his mother, the adult ‘often cannot separate reality from TV programs’.

[158] Assessing the adult’s functionality, Dr SA reports an IADL score of 4/24 indicating hat the Adult is fully dependant with respect to Instrumental Activities of Daily Living (IADL). The IADL is generally accepted as a measure of a person’s capacity to live alone in the community.  Dr SA observes that IV does all the house work and is even required to help the Adult dress. In addition, she reports that the adult requires some assistance with other activities of daily life and that she is incontinent.

[159] In contrast to the 2015 Report, Dr SA observed that IV has to do all the shopping as the Adult is ‘unable to navigate the shops on her own’.

[160] Assessing the adult’s cognition, Dr SA assessed that the adult had no insight into her memory problems, and was repetitive in her speech. Son, IV confirmed this by telling the Doctor that the Adult was having significant memory problems and was unable to remember recent conversations. The Doctor discovered that the adult was not able to name all her children or state their ages. The Adult’s son IV informed the Doctor that the Adult ‘gets confused a lot’, and confirmed that the Adult had a very poor understanding of money.

[161] Doctor SA reports that the adult was ‘quite happy that her son is looking after her quite well.’ She also reported that that the Adult consistently expressed her desire to live in her home for as long as possible, and that she does not want to move into residential care at this stage.

[162] In her report summary, Dr SA states that the Adult has a multidomain cognitive deficits compatible with moderate to severe mixed type of Dementia syndrome. According to Dr SA, the adult appeared to have significant executive dysfunction.

[163] On this basis Dr SA suggests that the adult appeared to have the capacity to make simple lifestyle choices, but that she lacks the capacity to manage her financial matters or decide on complex lifestyle choices or health related matters.

2019

[164] The Adult and IV are said to have contacted My Aged Care and were referred to ACAT for an assessment for consideration of Home Care package. The assessment took place on 28 March 2019 in the Adult’s home. The Assessment Summary notes that the Adult was diagnosed with mixed Dementia (Alzheimer’s and Vascular). It also notes that the Adult was first referred to the memory clinic in 2015 but did not follow up due to other health issues. Her referral for review in October 2018 was due to an overall deterioration in her cognitive function.

[165] In a medical certificate dated 4 June 2019, Dr ST stated that he first saw the Adult, accompanied by her son, on 14 May 2019. On this latest occasion the Adult told the Doctor that she did not want to go into a nursing home but wanted to stay in her own home for as long as she can. Doctor ST added that the Adult ‘is not on any regular medications and is managing her ADLs very well with help from IV’.

[166] Attached to Dr ST’s medical certificate is a Cairns Family Medical Centre Patient Health Summary. Under ‘Active Medical History’ it records ‘Mixed Dementia and Anxiety’ as first diagnosed in 2015, and ‘Depression’ since 2013. Under ‘Current Medications’ the Summary states ‘No long-term Medications’.

[167] The Tribunal hearing on 13 June 2019 was adjourned to 21 August 2019 in order to facilitate the preparation and submission of a current medical report regarding RV’s capacity.

[168] Consequently the Tribunal requested Dr ST, the Adults current treating GP, to complete a Medical and Related Health Professional Report. In her report dated 8 June 2019, Dr ST states that the Adult was confident about making her own decisions about her home, care, daily activities and money.

[169] Assessing the adult’s decision-making capacity, Dr ST states that with respect to her personal health care, the Adult has full capacity. As for lifestyle and accommodation choices, Dr ST offers the opinion that the adult has capacity to make day to day simple lifestyle decisions. In this respect, Doctor ST noted that the Adult is clear about where she wants to live, and that she wants IV to look after her.

[170] Financial decision making was identified by Dr ST as a matter for which the Adult lacks capacity. She observed that the adult is now unable to even operate a bank account or ATM or make any more complicated financial decisions.

[171] Significantly, Dr ST reported that the adult is not capable of making decisions freely and voluntarily. Dr ST identified the Adult’s son IV as a positive influence. She noted that he brings the Adult to all her medical appointments and is fully aware of her medical history.

[172] Doctor ST indicated that when the Adult executed her enduring power of attorney on 20 August 2018, she was fully capable of doing so.

[173] In her summary of the Adult’s understanding and capacity to make her own decisions, Dr ST stated that the Adult was capable of making simple and complex decisions about personal health care and lifestyle/accommodation choices, but not capable of making any financial decisions.

[174] Finally, Dr ST nominated dementia or related disorders as the cause of the adult’s impaired decision-making capacity.

[175] The most recent documents, a ‘medical certificate’ dated 11 November 2019 was also written by Dr ST, the Adult’s current treating GP. IV tendered the document at the final Tribunal hearing on 12 November 2019 as confirmation of his oral evidence during the hearing, which was also touched on by the Public Guardian. 

[176] In this medical certificate, Doctor ST reports that she saw the Adult alone on 11 November 2019. She recounts that the Adult told her that she preferred living in White Rock with her son IV. This, the Adult said, allows her to continue doing things like talking to neighbours, visiting and entertaining relatives, and going to and singing in the church every Sunday.

[177] She had also told the Doctor that during the four weeks she had just spent in Goldsborough [with daughter GM] she could not or was not taken to church and that ‘there is nothing to do in Goldsborough’.

[178] Doctor ST offered the opinion that even though the Adult has been diagnosed with moderate to severe mixed Dementia, she retains the capacity to make simple lifestyle choices such as the preference for living arrangements that she had expressed.

Other Evidence and Submissions as to Capacity

[179] Evidence and submissions by interested parties regarding the Adult’s capacity, are split between family members who are of the view that due to her dementia the Adult lacks capacity to make her own decisions, as Dr SM, the Adult’s GP from 2013-2019 had assessed.   They specifically submitted that the Adult was incapable of making decisions freely and independently in that IV was exploiting her impaired capacity to exploit her financially, turning her against them.

[180] On the other hand, IV remains adamant that the Adult has sufficient capacity to make her own personal decisions with his assistance, as assessed by the Adult’s current GP, Dr ST. He stresses that the Adult has been consistent and clear in stating her wish to continue living in her house with him as her carer.

Consideration and Findings of the Adult’s Capacity to Make Decisions Freely and Voluntarily

[181] I note that while IV’s views as to his mother’s greater level of capacity have received some support from Dr ST, the Adult’s GP since May 2015, Dr ST has also expressed the opinion that the Adult is not capable of making decisions freely and voluntarily.

[182] The competing views appear to relate to different concepts of capacity. To make decisions with assistance is relevant to considerations of the Adult’s ability to live in the community and her need for a formal decision maker. Capacity to freely and independently make decisions, on the other hand is required when establishing capacity for a matter.

[183] The evidence leads me to conclude that there is no current medical assessment or other evidence suggesting that the Adult is capable of making decisions that satisfy the second requirement of the applicable legal test for capacity – that she is capable of freely and voluntarily making decisions.

[184] This assessment is in line with evidence presented by interested parties, that the Adult has agreed with whichever of her children she was with. Her statements as to who she wants to live with are perhaps the most noticeable example of this. This was clearly illustrated and observed by the Public Guardian in early November, just before the Adult’s return from a month’s stay with her daughter GM.

[185] Just prior to the final hearing on 12 November 2019, the Guardian appointed on 13 June 2019 as the Adult’s guardian for the matter of, ‘with whom the Adult has contact and/or visits’ submitted a report dated 11 November 2019.

[186] The Guardian reports that after visiting her daughter GM for a month, on being asked whether she wants to move in with GM and live in GM’s house, the Adult said ‘of course I want to live here’. After recounting this to IV the Guardian reports that he was very upset and told the Guardian that the Adult ‘would not say that after she returned home’.  This was an accurate prediction which was confirmed by Dr ST, who reported that on 11 November 2019, after the Adult had returned to live with IV, she told her that she ‘would like to live in White Rock with IV’. 

Tribunal Finding as to Current Capacity

[187] The findings of the medical assessments I have outlined above conclusively establish that the Adult’s cognitive impairment is progressive, and consequently that her dementia, first diagnosed in 2015 has also progressed. The increasing impact of the illness on the Adult’s functioning and decision-making capacity is perhaps most clearly discernible by comparing the 2015 and 2017 memory clinic reports.

[188] With respect to the Adult’s capacity for financial matters I note that as early as 2015, the Adult had been medically assessed as being incapable of making complex financial decisions. By 2018, the level of her capacity was assessed as having deteriorated to the point of her being fully dependent on IV with respect to her financial matters and assessed to be incapable with respect of not only complex, but also simple financial matters, such as shopping.

[189] I find that the evidence establishes that the Adult lacks the capacity to understand the nature and effect of simple and complex financial matters, and that she is no longer capable of freely and voluntarily making decisions regarding her finances.

[190] More broadly, I find that the Adult is not capable of understanding the nature and effect of decisions about all complex and even simple personal and financial matters.

[191] The Adult is readily influenced by whomever she may be with. Consequently, I also find that the Adult is incapable of freely and voluntarily making decisions about all complex and financial matters, as well as most simple personal matters.

[192]  In view of medical comments as to the stress that family disagreements and the Tribunal action have caused the Adult, I determined that attendance would be detrimental to the Adult’s health and best interests and excused her from attendance at the hearings. While I read the Adult’s brief written submissions, asking why her children have involved the Public Guardian, and noting that she wants to remain in her home under IV’s care, I have not had the opportunity to observe the Adult‘s communication capacity.

[193] Nevertheless, on the basis of evidence from her children, medical professionals who have met with her and from the Public Guardian appointed as her Guardian, I am satisfied that the Adult is capable, perhaps with the aid of an Italian interpreter in more complex matters, to effectively communicate her decisions. This satisfies the third element required to be established to establish capacity – that she ‘is capable of communicating the decisions in some way’.

[194] I find that the evidence does not support the view that the Adult has capacity in terms of the first and second requirement of capacity, and therefore does not satisfy the legal criteria of capacity. Specifically, I find that she lacks capacity to make any complex and financial decisions, and additionally, lacks the capacity to make some simple decisions regarding personal matters.

[195] On that basis I find that the legal presumption that she has capacity is rebutted for both personal and financial matters.

[196] I now move on to the second element of which I must be satisfied in order to be authorised to appoint a Guardian or Administrator.

The Adult’s Need for a Guardian and/or an Administrator

[197] The Tribunal’s authority to appoint a guardian or administrator requires that the tribunal is not only satisfied that ‘the adult has impaired capacity for a matter’ or matters, but also that –

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.^[20]

[198] Therefore, having found the adult to have impaired capacity to make all complex and most simple personal decisions I turn to identifying any current decision-making needs flowing from her impaired capacity.

[199] I will first consider the Adult’s need for the appointment of a Guardian for any personal matters. Following which, I will consider the Adult’s need for an Administrator for financial matters.

Personal Decisions Requiring a Guardian

[200]  As outlined in s 12(1)(b) of the GAA, set out above, a consideration of  the Adult’s needs for  a Guardian entails identifying personal matters with respect of which the Adult has impaired capacity, which will require a substitute decision maker to make decisions in order to avoid the situations and risk.

[201] The following needs were identified in the course of the hearings.

 That the Adult has access to all members of her family

[202] In the first hearing on 13 June 2019, I reserved making a finding as to the Adult’s overall capacity and needs with respect to financial and personal matters.

[203] However, on the basis of evidence presented, I found that the Adult’s capacity to make decisions regarding the Adult’s access to all her children was impaired, and that decisions needed urgently to be made about the matter, as it appeared to be the primary cause of family disharmony. 

[204] In view of the family conflict and pending a final long-term decision, I appointed the Public Guardian as guardian for the Adult with the sole function of making decisions regarding ‘with whom the Adult has contact and/or visits. The appointment was to be reviewed on 21 August 2019.

[205] Written submissions from interested parties, the Public Guardian’s investigation report and the oral evidence of interested parties in the subsequent hearings on 21 August 2019 and 12 November 2019, revealed that even after I appointed the Public Guardian with authority to make decisions about contact and visiting, the Adult’s children and the Public Guardian continued to express varying levels of dissatisfaction with the arrangements instituted. For example, IV submitted that on return from a month long stay with her daughter GM, the Adult had indicated that she preferred to be with him as she was able to have contact with her friends, neighbours and attend church.

 Suitable Accommodation

[206] The inadequacy of the Guardian’s contact and visit authority suggests that there is a need for a decision maker to make such decisions as would ensure that the Adult resides (temporarily or permanently), in suitable, secure and appropriate accommodation, and that such decisions are made solely on the basis of the Adult’s best interests. It is for this reason that the appointed Limited Guardian submitted that the Guardians authority to make decisions regarding contact and or visits should be should be supplemented with authority to make decisions regarding accommodation. In view of the evidence I accept this submission.

Tribunal Finding

[207] I find that the only matters for which a Guardian is needed relate to contact/visits and accommodation.

The Adult’s Need for an Administrator

[208] As already discussed, the most recent medical reports assess the Adult as totally lacking capacity with respect to her financial matters.

[209] Even the medical reports, and IV’s accounts to the doctors, from as early as 2015 establish that IV had to take over the Adults bill paying and more complex financial transactions.

[210] By 2018, assessments by specialists clearly show that the progress of the Adult’s dementia, her memory loss, confusion and disorientation had rendered her completely incapable of independently making any decisions regarding her finances.

[211] The needs for an administrator relate to the management of her savings and pension, and ensuring that her day to day needs are met. In view of the allegations that brought the matter before the Tribunal and of findings regarding these allegations as disclosed by the Public Guardian’s Investigation and the Tribunal’s findings, an administrator is also needed to pursue, if appropriate in all the circumstances, anything to which the Adult may be entitled, that has been taken from her through failure to protect her finances or through financial exploitation of any kind.

 The Tribunal’s Finding Regarding the Need for an Administrator

[212] I find that the Adult is in need of an administrator for all of her financial matters.

[213]  However, the identification of needs for a Guardian and Administrator do not automatically translate into their appointment. There is one more legal requirement that must be satisfied.

Least Restrictive Alternatives 

[214] The final element of which the Tribunal must be satisfied in order to be able to appoint a guardian or administrator is that—

without an appointment –

  (i) the adult’s needs will not be adequately met; or

  (ii) the adult’s interests will not be adequately protected.^[21]

[215]  This requires the Tribunal to be satisfied that an appointment of a guardian or administrator is essential to ensuring that the identified needs are met and interests protected.

[216]  General Principle 7(2) underlines ‘the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.

[217] The GAA provides a further guideline in section 6, titled ‘Purpose to achieve balance’, stating—

  This Act seeks to strike an appropriate balance between –

1. (a)
   The right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and
2. (b)
   The adult’s right to adequate and appropriate support for decision-making.

[218] For this reason, the Tribunal must protect the Adult’s right to make her own decisions, by identifying such means of addressing her needs as would be least restrictive of her rights and freedoms. 

[219] Consequently, I must consider the Adult’s EPA, in which she appears to express her wish that IV make financial decisions for her, and that he assume responsibility for her personal matters when she no long has the capacity to do so.

[220] However, apart from needing to determine whether the EPA provides a less restrictive alternative of addressing the Adult’s needs, there are other reason to examine the EPA before going on to consider the remaining issues concerning whether to appoint a Guardian and Administrator.

The Validity of the EPA

[221] The PAA empowers the Tribunal to make declarations about a person’s capacity,^[22] and the validity of the EPA.^[23]

Grounds for Invalidity

[222] Section 113(2) of the PAA provides that the Tribunal may declare an EPA invalid if satisfied that—

1. (a)
   the principal did not have the capacity necessary to make it; or
2. (b)
   it does not comply with the other requirements of this Act, or
3. (c)
   it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence

Whether the Adult Had Capacity to execute her EPA^[24]

[223] The Public Guardian has applied to the Tribunal for a Determination on the Adult’s capacity to make the EPA.

[224] As already noted, capacity for a matter is defined in the PAA and in the GAA in terms of a person being 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)
   communicating the decisions in some way.^[25]

[225] 41(1) of the PAA states that

A principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney.

[226] Section 41(2) goes on to list what is required to establish an ‘understanding of the nature and effect of the EPA’—

41(2)(2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—

(a) the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;

(b) when the power begins;

(c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;

(d) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;

(e) the power the principal has given continues even if the principal becomes a person who has impaired capacity;

(f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.

[227] This demanding level of understanding required by those making an EPA is reflected in the Principal’s statement of understanding and in the instructions for the witness and in the witness’s certificate. I note that the form used for the Adult’s EPA clearly spells out these requirements.

Medical Evidence as to the Adult’s Capacity to make EPA

[228] I turn to consider the medical evidence as to the Adult’s capacity on 20 August 2018 to execute an EPA appointing IV as her Attorney.

[229] The capacity that is relevant to the validity of the EPA is the Adult’s capacity at the time she executed the document on 20 August 2018. Evidence as to her capacity before or after is only relevant to the extent that it sheds light on her likely capacity at the time of the document’s execution.

[230] I turn to consider medical evidence as to the Adult’s capacity on that day, and in particular the two medical assessments closest to the date on which the EPA was executed.

[231] The two reports closest to the date of the EPA are:

1. (a)
   Doctor SM’s 12 October 2018 reports in which she relies on her treatment of the Adult since 2013 and the most recent consultation on 12 September 2018; and

2. (b)
   Dr SA’s report of 9 November 2018 relating to her assessment of the Adult on that same day.

Doctor SM

[232]  As a more detailed outline of these reports is set out above, I propose to only refer to the parts that are most directly relevant.

[233] As the Adult’s GP since 2013, Dr SD’s views reflect extensive knowledge of the Adult’s conditions. It was Dr D who had referred the adult to specialists who first identified her diminishing cognition, memory problems and finally her dementia.

[234] On 12 October Dr SM states that the Adult’s decision making was affected by her dementia which in turn was impacted by her depression. She clearly indicated that the Adult lacks the capacity to execute an EPA. Dr SM assessed the Adult to be incapable of making financial decisions and capable of only simple or partial decisions regarding health, care and accommodation.

Doctor SA

[235] Doctor SA specialises in Geriatric Medicine. The Adult had been referred to her for cognitive assessment. She diagnosed severe mixed dementia. She noted IV telling her that the Adult ‘often cannot separate reality from TV programs.’.

[236] The Adult was noted as lacking insight into her memory problems, something that was confirmed by IV who told the doctor that the Adult was having significant memory problems and was unable to remember recent conversations.

[237] The Doctor also reported that the Adult was found to often be confused and to have a poor understanding of money.

[238] The doctor reported the Adult’s statements that she was happy that her son was looking after her and that she wanted to live at home for as long as possible.

[239] Doctor SA’s conclusions as to the Adult’s capacity were that while the Adult  appeared to have capacity to make simple lifestyle choices, she lacked the capacity to manage her financial matters or decide on complex lifestyle choices or health related matters.

Dr ST

[240] Dr ST took over as the Adult’s GP on 14 May 2019. In her report to the Tribunal, dated 8 June 2019, Dr ST expressed the view that while the Adult lacks all capacity about her financial matters, she retained capacity to make simple day to day lifestyle decisions.

Statement by the Witness to the EPA

[241] The Adult’s execution of her EPA was witnessed by lawyer, BC. In a written submission dated, 5 February 2019, BC, currently the Adult’s legal representative offered the following explanation of how he witnessed the execution of the Adult’s EPA on 20 August 2018, and why he assessed the Adult to be capable of making the EPA.

[242] He stated that his office ensured that a client had capacity before taking instructions.

[243] Noting the legal presumption of capacity he also observed that the Adult was not in a nursing home or hospital but in a spotless, clean and tidy house. When he arrived at the house where the Adult and IV lived, he says he observed a well-dressed woman.

[244] The Adult appeared to him to be bright and intelligent when he sat down alone with her and asked what service she wanted from him. According to BC she told him that she ‘wanted a piece of paper for IV to look after her and all her doctors and bills.’

[245] BC states that he did not observe any signs of mental illness, and that the Adult answered his questions without any obvious signs of cognitive or intellectual impairment.

[246] BC further recounts that the Adult correctly answered when asked her name, her son’s name, her other children’s names, the day of week, where she did her grocery shopping, and the name of her GP.

[247] He says that he did not ask for doctors’ reports about the Adult’s capacity, as there were no indications that she was suffering from any illness that could preclude her signing the EPA.

[248] BC further stated that when he had attended the house on an earlier occasion for the purposes of unrelated business, the Adult had asked him to attend in the near future in regard to an EPA. 

[249] BC noted that he was not aware of any issues regarding the Adult’s mental health or cognitive function and no third party had volunteered information on her condition.

[250] He further recalled that the Adult had no trouble recalling things, appeared to have a good memory and did not repeat herself.

Tribunal Finding

[251] While on the surface, the Adult’s decision to hand-over control of personal and financial decisions to a son may appear to be a relatively simple decision, understanding the nature and effect of an EPA as spelt out in the PAA is far from simple. The verbal expression of her wishes as reported by all her doctors is clear. It is not, however, an expression of a view that needs to take into account the complexities involved.

[252] From the evidence, it is clear that by the time the EPA is ‘executed’ the Adult has lost her capacity for her financial matters, as well as her capacity to make decisions freely and voluntarily. The evidence suggests that she may have understood that she was appointing IV to look after her finances and personal decisions. There is no evidence suggesting that she understood all the components that constitute understanding the nature and effect of the EPA.

[253] BC’s explanation that how he satisfied himself that the Adult had capacity was in accord with the protocols laid down in the Queensland Law Society’s Queensland Handbook for Practitioners on Legal Capacity. While that may well be the case, his account of what occurred does not satisfy the unambiguous requirements of the PAA, nor the clear instructions and terms of the Principal’s Statement of Understanding or the Witness’s Certificate to which signatories are attesting.

Finding as to Capacity to Understand the Nature and Effect

[254] I find that the Adult lacked the capacity to understand the nature and effect of the EPA, as specified in the PAA.

Freely and Voluntarily Making Decision

[255] Even if I am wrong in finding that the Adult lacked the capacity to understand the nature and effect of her decision to make the EPA, the medical and other evidence also reveal that the Adult was not capable of freely and voluntarily making the decision.

[256] Capacity is often interpreted to mean, ‘capable with assistance’. Suggestions that IV was influencing his mother’s decisions were strenuously denied by IV. However, reports by doctors and other outside agencies have made it clear that the Adult was increasingly reliant and dependent on IV. I say this not as a criticism of IV, as much of his care and influence has been deemed positive, but rather that increasing reliance by the Adult has long reached the stage where her capacity to make decisions freely and voluntarily is gone.

[257] As the person who accompanied his mother to all medical appointments, IV must have been aware of the assessments of his mother’s incapacity to both understand and freely and voluntarily make decisions. I find it difficult to accept that he did not know or that he did not communicate this to his friend and lawyer, BC.

Tribunal’s Findings on Adult’s Capacity to Execute her EPA on 20 August 2018.

[258] On the basis of the above findings I am satisfied that the Adult lacked the capacity to execute her EPA on 20 August 2019. I find that the evidence is such as would rebut the presumption of capacity.

[259] I propose to declare the Adult incapable of executing her EPA and will on that basis declare the enduring power of attorney to be invalid. The effect of the declaration that the EPA is invalid is that it is void from the start.

[260] In light of the above finding it is not strictly necessary for me to outline other grounds for declaring the EPA to be invalid, however, for the sake of completeness I will briefly outline the other grounds on which I would alternatively find the EPA to be invalid.

Non-Compliance with other Requirements^[26]

[261] Even if I had found the Adult to have had capacity to execute the EPA, I would declare the EPA invalid on other grounds.

Eligible Attorney

[262] In the course of the hearing on 12 November 2019, some interested parties submitted that IV did not qualify as an eligible attorney as he received a carer’s pension and consequently was a ‘paid carer’. Section 29(1) of the PAA states that—

29(1) An eligible attorney, for a matter under an enduring power of attorney means—

1. (a)
   A person who is

   1. at least 18 years of age; and
   2. not a paid carer, or health provider for the principal
   3. not a service provider for a residential service where the principal is a resident; and….

[263]  At first glance, this section appears to support the view that by reason of being a paid carer IV is not eligible to be an attorney. However, ‘paid carer’ has a specific meaning in the PAA. The term is defined in Schedule 3 in the following terms—

paid carer, for a principal, means someone who—

(a) performs services for the principal’s care; and

(b) receives remuneration from any source for the services, other than—

(i) a carer payment or other benefit received from the Commonwealth or a State for providing home care for the principal; or

(ii) remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the principal’s care.

[264] As uncontested evidence suggests that IV is in receipt of a carer’s pension, I find that IV is not a paid carer as defined for the purposes of the PAA and on that ground not excluded from appointment as an attorney.

Undue Influence^[27]

[265] I note that the circumstances surrounding the Adult’s execution of the EPA also satisfy the elements of Undue Influence that I discussed in greater detail, earlier.

[266] As outlined above, the evidence overwhelmingly suggests that due to her increasing cognitive impairment the Adult was growing increasingly susceptible to undue influence from IV. As IV accompanied his mother to medical appointments and assessments, and apparently confirmed assessments of her declining capacity to doctors, I cannot accept that he did not know that she was incapable of making decisions freely and voluntarily.

[267] The opportunity to exert the undue influence flowed from the increasingly dependent relationship between the Adult and IV as between mother and her son and full-time carer.

[268] That IV would exert undue influence regarding his appointment as the Adult’s attorney is consistent with earlier transactions entered into by the Adult whilst under his influence. The Adult’s execution of the EPA is also secretive and difficult to reconcile with IV’s statements as to his mother’s capacity.

[269] Undue Influence is also presumed in any transactions between the Adult and her attorney, or relation.^[28]  As I have already noted, at length, IV has not provided any evidence that suggests that this presumption of undue influence is likely to be rebutted.

[270] In addition to the Tribunal being able to declare an EPA invalid, the Tribunal may also revoke an EPA.

The Tribunal is empowered to remove an attorney or revoke an EPA

[271] The Tribunal is empowered to remove, appoint or replace an attorney.^[29] The Tribunal is also empowered to revoke part or all of an EPA document.^[30]

 Attorney’s Breaches

[272]  The Public Guardian’s Investigation Report outlines breaches by the Attorney of a number of requirements or obligations.

[273]  The uncontested finding, discussed more fully above, is that the Attorney’s failed to ‘keep and preserve accurate records and documents of all dealings and transactions made under the power’. It is a breach that is particularly serious when viewed in the context of the allegations and the initial evidence suggesting that the Adult’s money was not being used solely for her benefit.

[274] To the extent that the investigated allegations have disclosed some evidence, they have also raised the question of the attorney’s compliance with the obligation set out in s 66(1) (PAA) requiring that ‘an attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests.’

[275] In view of evidence disclosing, or at least suggesting that the Adult’s finances were not used solely for her benefit, that IV arranged for his mother to transfer her house to himself, that he arranged for her to appoint him her attorney under an EPA, and that she was in his care when she amended her will to leave her entire estate to IV, he clearly failed to fulfil the obligation imposed by section 66(1) of the PAA.

[276]  The PAA’s General Principle 8 requires that, ‘The importance of maintaining an adult’s existing supportive relationships must be taken into account.’ The attorney’s apparent unwillingness to ensure that the Adult has ready access to her entire family, also suggests that the EPA has not able to meet the Adult’s needs and also protect her interests.

The Tribunal’s finding Re RPA as Less Restrictive Alternative

[277] The EPA cannot provide a less restrictive alternative as I have declared it to be invalid on the ground that the Adult lacked the requisite capacity to make it. I also outlined that alternatively the EPA could be declared invalid on the ground that the Adult was induced to make it by undue influence.

[278] In addition, in view of the attorney’s breaches of his obligations as attorney towards the Adult, if the EPA was not valid, I would feel obliged to revoke the EPA, as authorised under s 116 PAA.

[279] Even where the Tribunal does not revoke an EPA, by appointing a Guardian and/or Administrator with the same powers as the Attorney and with knowledge of the EPA, the power of the attorney is reduced to powers authorised by the Tribunal.^[31] To avoid confusion, the Tribunal most commonly revokes  the EPA – especially where the powers of the Guardian and/or Administrator equal or exceed those of the attorney.

Conclusion

[280] I conclude that no valid EPA exists to offer a less restrictive alternative to the appointment of a Guardian and/or Administrator. Even if the EPA was still valid and not revoked, as evidence considered throughout this statement of reasons, it does not provide a less restrictive option to the appointment of a guardian and/or an administrator.

Other Alternatives that are Less Restrictive than the Appointment of a Guardian

[281]  In view of the absence of a valid EPA I turn to consider whether the Adult’s needs could be met through any other less restrictive means.

 Personal Lifestyle, Accommodation and Health Needs

[282] Where a family agrees on how an Adult’s needs are to be met, there is usually no need to appoint a Guardian to make decisions regarding non financial matters. This, as explained earlier, appears to be the case with respect to the Adult’s health care, access to services and other day to day needs.

[283] While IV’s siblings have criticised IV for being culturally inappropriate in attending to his mother’s personal needs as her paid carer, there is in large measure consensus that the Adult has been and continues to receive appropriate care, and access to services and health care.

[284] At the hearing on 12 November 2019, the Adult’s children and the Limited Guardian advised that all required services were now being accessed by the Adult, and that family members were in agreement about, and able to ensure that all required decisions regarding the Adult’s personal health, that she was incapable of making, were made for her.

[285] Consequently, all interested parties have agreed that the Adult’s needs regarding access to services and personal health care can be met informally, without the need for a Guardian or attorney with authority for those matters. I find that the evidence supports this view.

Tribunal Finding

[286] Consequently, I find that the least restrictive means of addressing the Adult’s non financial needs are through the appointment of an Guardian for the matters of contact, visits and accommodation, All remaining non financial matters are able to be addressed informally by family members with the assistance of service and care providers.

WHO SHOULD BE APPOINTED AS GUARDIAN AND ADMINISTRATOR?

[287] On 13 June 2019, the Public Guardian was appointed as limited guardian for decisions regarding to contact and visits, as a third party was required to be appointed in view of the family conflict.

[288] On 13 June 2019, the Public Trustee of Queensland was appointed administrator for all of the Adult’s finances. The EPA under which IV was appointed the Adult’s attorney was overtaken by the Tribunal’s appointment of the Administrator. The appointment was made to ensure that the Adult’s finances were used only for her benefit and so that investigations could be undertaken to identify and recover any finances or property to which she is entitled.

[289] On 12 November 2019, it became clear that the scope of the guardian’s authority needed to also encompass decisions regarding accommodation. I intend to appoint a Guardian with this additional authority.

[290] On 12 November 2019, the Public Trustee’s representatives made it clear that the Public Trustee intended to pursue previous financial irregularities and make those responsible accountable for mismanaging or exploiting the Adult financially.

[291] Family members apart from IV have reluctantly accepted the appointment of the Public Guardian and the Public Trustee it is clear that they would prefer that family members took on this role.

[292] On 25 July 2019, GM, one of the Adult’s daughters lodged an application seeking the appointment of herself, sister RL and brother SV as joint administrators and guardians. I note that all proposed appointed have filed solemn declarations as to their appropriateness for appointment.

[293] The declarations address some of the matters that section 15 of the GAA requires the Tribunal to consider in determining whether a person is appropriate for appointment as a guardian or administrator for an adult.

Appropriateness considerations

(1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ("appropriateness considerations")—

(a) the general principles and whether the person is likely to apply them;

(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;

(c) the extent to which the adult’s and person’s interests are likely to conflict;

(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;

(e) if more than 1 person is to be appointed—whether the persons are compatible;

(f) whether the person would be available and accessible to the adult;

(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.

(2) The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(3) Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(4) In considering the person’s appropriateness and competence, the tribunal must have regard to [matters addressed on solemn declaration].

[294] On the basis of evidence presented, apart from their involvement in the family conflict, I do not identify any basis for not finding the three proposed joint guardians and administrators to be appropriate.  I also agree with family members that ideally a member or members of the family should be given the authority to make all personal decisions.

[295] However, their appointment as Guardians would not, in my opinion, be currently able to maintain all of the Adult’s existing relationships as required by General Principle 8. I particularly refer to the maintenance of the Adult’s relationship with IV, as she has lived with IV for many years and in that time has come to rely on his assistance and care.

[296] It is also clear that the proposed Guardians and Administrators intend to seek answers and accountability from IV for past decisions and transactions. I note that GM’s application seeks plenary authority for the joint administrators and authority over a number of matters including legal matters for the joint guardians. I also note that in their Financial Management Plan dated 25 July 2019, they indicate an intention to challenge the 2017 will, transfer the house back to RV, and revoke the EPA. Yet, the continuation or exacerbation of the family conflict would not be in the best interest of the Adult.

[297] These Tribunal proceedings, it is accepted, have caused the Adult much stress, anxiety and no doubt sadness, and led me to excuse her from attendance. I also accept that verbal confrontations relating to access and other issues relating to her and her care by IV have caused her distress.

Tribunal Finding

[298] It would undoubtedly be in the Adult’s best interests if the confrontation between her children was minimised or eliminated as soon as possible. This I conclude can only be achieved through the appointment of neutral guardian and administrator, who are not part of the family dynamic.

[299] Such appointments are not intended to exclude the family from acting for the Adult in the future or having input into decisions made by appointed Guardian and Administrator. Instead, the appointments of an external guardian and administrator should be seen as necessary only as long as the family situation makes the appointment of a family members not conducive to the best interest of the Adult. 

[300] Consequently I propose to appoint the Public Trustee of Queensland as administrator for all of the Adult’s financial affairs, with specific directions relating to matters flowing from these proceedings. I also propose to appoint the Public Guardian as guardian for the personal matters of contact and visits, and for decisions regarding accommodation.

[301] Next, I turn to a matter that I identified in the course of the hearing – the issue of the Adult’s capacity to make her Advance Health Directive

ADVANCE HEALTH DIRECTIVE

[302] Although not the subject of an application to the Tribunal, in the course of the proceedings it has become apparent that some of the Adult’s children question whether some of the directives of the Adult’s Advance Health Directive dated 25 March 2019 actually reflect her views, and whether she had the requisite capable to make the Directive on that date.

[303] In signing the Advance Health Directive on 25 March 2019, the Adult attested to understanding —

(a)  the nature and legal effects of each of her directives,

(b) that the directive only operates while she has impaired capacity for matters covered in her directive,

(c) that while she has the required capacity, she may change or revoke at any time, and

(d) that when not capable of revoking a direction, she cannot effectively oversee the implementation of the directive.

[304] The adult’s statement of understanding was witnessed by a Justice of the Peace (Qualified) who by signing attested to, the principal appearing to understand the matters stated in the clause containing the Adult’s statement of understanding.  

[305] The Tribunal is empowered to make declarations about the Adult’s capacity to make the Advance Health Directive and regarding the validity of the document.^[32]

[306] I find that the Advance Health Directive is problematic in a number of respects.

[307] In view of how recently the Adult signed this document it clearly raises the issue of the Adult’s capacity.  In the document’s section 5 titled ,‘Doctor involvement’, Dr SM, in her ‘Statement of nominated doctor’, attested to having discussed the document with the Adult, that in her opinion the Adult was not ‘suffering from any condition that would affect his/her capacity to understand the things necessary to make this directive, and she understands the nature and effect of the health care described in this document’, and that the Adult ‘signed this part of this document in my presence’. The Adult and Doctor signed this part of the document, and the doctor dated the signatures as on 11 August 2017.

[308] However, it was not until 25 March 2019 that the Adult signed her statement of understanding relating to the entire document and had her signature witnessed by a JP.

[309] Consequently, while the Adult was assessed on 11 August 2017 as being capable of understanding the nature and effect of the Advance Health Directive, there is ample evidence to suggest that in all probability by 25 March 2019 she no longer had the capacity to make an Advance Health Directive.

[310] The same GP, who had treated the Adult for the past five years, filled out a Health Professional Report on 12 October 2018. She last saw the Adult on 12 September 2018. In her opinion the Adult had ‘clinically declined in the last two years” and consequently by October 2018 only had partial capacity to make decisions regarding her health care. The doctor assessed the adult to be incapable of making complex decisions regarding her health care. Even with regard to capacity for simple health care decisions, the doctor simply noted ‘maybe’.

[311] Similarly, after examining the Adult on 9 November 2018, Dr SA, an Aged Care Service, Specialist in Geriatric Medicine, concluded that the Adult had significant executive dysfunction, and lacked the capacity to decide on complex lifestyle choices or health related matters.

[312] The Doctor reports that during her cognitive assessment of the Adult on 9 November 2019, IV informed her that the Adult ‘gets confused a lot’ and ‘has difficulty differentiating between what she sees on TV from reality.’ Commenting on the Adult’s memory problems, IV is reported to have told the Doctor that his mother ‘is having significant memory problems and is unable to remember recent conversations’.

[313] The Doctor described the Adult’s cognitive deficits as compatible with moderate to severe mixed type of Dementia syndrome. The Adult’s score of 8/30 on the Mini mental state examination also indicated significant cognitive impairment.

[314] I acknowledge that in her 8 July 2019 report, Dr ST’s assessed the Adult to have full capacity to make decisions regarding her personal health. However, I prefer the views of Drs SM and SA for the following reasons. Dr SM had been closely involved with the Adult from 2013 to 2018. In that time, she had referred the Adult to cognitive and memory assessment by specialists, and had herself observed the Adult’s cognitive decline.

[315] Dr SA is a specialist well qualified to assess the Adult’s capacity and able to compare various assessment scores with those previously recorded at the Aged Care Service. She was also in receipt of information from IV as to his mother’s level of capacity.

[316] On the other hand, Dr ST has only known first the Adult since 14 May 2019, and in her reports does not display any awareness of the Adult’s cognitive assessments by specialists.  However, as Dr ST clearly assesses the Adult to lack the capacity to make decisions freely and voluntarily, she is in facts assessing the Adult to lack capacity as defined for the purposes of the GAA and PAA.

The Tribunal’s Finding

[317] In view of this compelling and authoritative evidence, and despite the absence of the evidence of the witnessing JP, I find that on 25 March 2019, the Adult did not have capacity to make an Advance Health Directive. As authorised under section 133 of the PAA I propose to declare the Advance Health Directive invalid as I am satisfied that the Adult (as principal) did not have the capacity necessary to make it.

[318]  I turn to another matter disclosed in the course of the hearings.

ADULT’S CAPACITY TO MAKE HER 2017 WILL

[319] In the will, the Adult made on 27 May 2015, two months after the death of her husband, RV appointed her son SV as executor, and left her estate to be divided equally between her children.  In contrast, in her subsequent will on 17 July 2017 she left her entire estate to IV.

[320] This amendment of the Adult’s will, while not the subject of a current application to the Tribunal, has created conflict in the family and appears likely to be legally challenged.  While it is not within the Tribunal ‘s authority to rule on the validity of a will, as I have outlined above, the Tribunal is empowered to make a declaration about a person’s capacity for a matter, including their capacity to make a will.

[321] It appears particularly appropriate that I consider the Adult’s capacity to make a will, as it was made only two months and one week prior to the Adult transferring the title to her home to IV, a matter for which I have found that she lacked capacity. With respect to the transfer of title I found that while the Adult may have had capacity to understand the nature and effect of her decision, she most probably was not capable of freely and voluntarily making the decision.

[322] There appear to be many similarities between the Adult’s making of her new will and her transfer of title to her home.

[323] Relevant medical evidence suggests that the Adult may have had the capacity to generally understand the effect on her children of making a new will. However, there is an absence of evidence as to whether the Adult signed not only with a capacity to fully understand the nature and effect of making of the will, but as required also had  an actual understanding of all the elements that make up testamentary capacity.  

[324] She may, as evidence suggests, have simply relied on her son. Following an assessment by Dr GM on 16 October 2015, the doctor reported that ‘a possible deterioration of the Adult’s cognition had caused the Adult’s son to take over the Adult’s financial transactions, including even the payment of her bills.

[325]  The findings of comprehensive medical assessments in 2018 suggest that the Adult’s Dementia had progressed to the stage where the she lacked capacity with respect to all complex and possibly even some simple financial decisions. She was assessed by Dr SA as lacking the capacity to make an EPA. The Adult scored very poorly on a measure of her capacity to live alone, her memory had deteriorated significantly, she was reportedly often confused, was judged to have significant executive dysfunction, to only be capable of making simple lifestyle choices, to lack the capacity to manage her financial matters and to be almost totally reliant on IV’s care.

[326] The date of the transfer of the title, 17^th July 2017, falls midway between the two assessments. However as discussed above, on 11 August 2017 the Adult’s GP, Dr SM,  attested to her capacity to understand the nature and likely effect of the health care described in her Advance Health Directive. Consequently, it could be suggested that she may have also had the capacity to understand the nature and likely effect of making of a new will.

[327] However testamentary capacity requires that the Adult must also—

(a)  Be aware and appreciate the significance of making her new will; and

(b)  Be at least generally aware of the nature, extent and value of her estate; and

(c)   Be aware of those thought to have a claim upon her estate, and why they may have such

        claims; and

(d)   Be able to assess the relative strengths of such prospective claimants.

[328] Courts have also held that testamentary capacity also requires the capacity to withstand the pressures or dominance of anyone who would exert undue influence regarding their distribution of their estate.

[329] The available evidence suggests that the Adult well have understood that by changing her will she was making IV the sole beneficiary.

[330] Yet, as  someone with a progressive cognitive impairment, who even in 2015 had been assessed as having failing memory, who could not recognise her finance cards and consequently required her son to takeover her major financial transactions and pay her bills, it is unlikely that she would have been able to satisfy the above requirements of testamentary capacity.

 Findings as to Capacity

[331]  Court rulings reveal that despite the presumption of capacity, the establishment of testamentary capacity is demanding. Consequently, on the balance of probabilities I find that the Adult did not have the required capacity to make her will on 17 July 2017.

[332]  Irrespective of the finding on these aspects of capacity, what is clear is that even by 2015, her Capacity with respect to financial matters had diminished significantly and continued to diminish, requiring IV to take over decision making and management of her finances.

[333] The evidence overwhelmingly suggests that by mid 2017, the Adult was reliant on IV, and lacking in such executive functioning as would enable her to make independent decisions or resist IV’s proposals and dictates.

 Undue Influence

[334] The evidence presented in this case establishes all the elements of undue influence and very little if any evidence to rebut the presumption of undue influence flowing from the facts.

[335] In particular I note the presumption of undue influence flowing from the relationship between IV and the Adult, the imbalance of power in the relationship – meaning the Adult is likely to have agreed to IV’s wishes through coercion or undue influence.

[336] Her son IV who was appointed as executor and sole beneficiary was clearly in a position of dominance and was being entrusted with the management of her finances. He was also familiar with her 2015 diagnosis of dementia, her deteriorating capacity and increasing reliance on him.

[337] His relationship to his mother, what he stood to gain, her cognitive susceptibility and reliance on him, not making other members of the family (including SV who had previously been appointed the Adult’s executor), all appear to establish a presumption of undue influence. 

[338] In addition, I note the lack of independent advice.

[339] Finally, I provide reasons for a decision that I made orally in the first day of hearing this matter.

APPLICATION FOR LEAVE TO BE REPRESENTED

[340] On 15 May 2019 an application for leave to be represented was received by the Tribunal. The application was signed by the Adult who sought to be represented.

[341] The reasons given for needing representation were that:

1. (a)
   The Adult had never been to court before and is not experienced in court procedure;
2. (b)
   The Public Guardian is legally represented;
3. (c)
   The Adult is 80 years of age;
4. (d)
   That, although able to speak and understand English would require a Sicilian interpreter; and
5. (e)
   That complex legal and medical issues will be considered.

[342] This application was opposed by three of the Adult’s four children. In a letter to the Tribunal dated 24 May 2019, the Adult’s daughter reported that she had spoken to her sister GM and brother SV and that their objection was largely based on the grounds that, BC, the proposed legal representative—

(a)   Was a personal and social friend of their brother, IV, against whom allegations had been

        raised leading to the proceedings before the Tribunal

(b)   Had been involved in the transfer of the Adult’s property and execution of her EPA,

        even though aware of the Adult’s lack of capacity

[343] On 13 June 2019, the Tribunal granted the Adult leave to be represented in these proceedings

Reasons for the Decision

[344] The Queensland Civil and Administrative Tribunal Act 2009 (QCATA) seeks to ‘have parties represent themselves unless the interests of justice require otherwise’.^[33]

[345] Nevertheless, the QCATA states that a party to proceedings may be represented if …the party is ‘a person with impaired capacity’ …’or the party has been given leave by a tribunal to be represented’.^[34]

[346] The QCATA lists circumstances that a tribunal may consider as supporting the giving of leave, when deciding whether to give a party leave to be represented in a proceeding. Two of the listed circumstances are cited in the application.  They are, that—

(a) the proceeding is likely to involve complex questions of fact or law; and that

(b) another party to the proceeding is represented in the proceeding.

Consideration of the relevant law

[347] The evidence submitted suggests that the Adult is an elderly person with impaired capacity. So, ‘unless the interests of justice require otherwise’ a Tribunal can permit the Adult to be represented in the proceedings.

[348] The opposition to leave being granted was not based on the view that the Adult should not be represented but rather that she should be represented by BC. Their reasons amounted to a submission that justice would not be done if BC was permitted to represent the Adult in the proceedings.

[349] That BC had been involved in transactions, that they submit were invalid, and that he was a ‘social and personal friend’ of IV, who was effectively the respondent in the proceedings, did have a significant amount of merit. It was only the Adult’s specific circumstances that led me to decide that the benefits of granting leave outweighed the problems it may create.

[350] In particular I considered that if a legal representative was to have access to the Adult, it would need to be someone whose access would not be frustrated by IV, with whom the Adult lived. To have the representative present in the hearings would also ensure that first hand information regarding challenged events would be available. In addition, I presumed that a legal practitioner, granted leave to represent the Adult, would take all steps necessary to only represent the Adult and avoid any actual or perceived conflicts of interest.

[351] I did not grant leave on the basis that the Public Guardian was legally represented, as this was not in fact the case. I also did not grant leave because of the legal or medical complexity of the proceedings, as this matter was not unusually complex, and because as, section 29 of the QCATA provides, the Tribunal is expected to make its procedures and issues understandable to unrepresented parties.

THE DECISIONS 

[352] On the basis of the evidence and submissions presented and considered by the Tribunal, and for the reasons set out above, I make the following decisions on 9 December 2019.