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- Unreported Judgment
RFG QCAT 97
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
RFG  QCAT 97
In applications about matters concerning RFG
Guardianship and administration matters for adults
29 March 2019
4 February 2019
IT IS THE DECISION OF THE TRIBUNAL THAT:
ENDURING POWER OF ATTORNEY
HEALTH LAW – OTHER MATTERS – VALIDITY OF ENDURING POWER OF ATTORNEY – where the adult had been diagnosed with moderate dementia three years previously – Advice to Justice of the Peace about the steps involved in witnessing enduring documents
s.113(2) of the Powers of Attorney Act 1998 and s.82(2) of the Guardianship and Administration Act 2000
RFG - adult
ZC – applicant
NJ – Bupa
RC – son -Attorney
RM – husband
RA – family
REASONS FOR DECISION
- RFG was diagnosed with moderate Alzheimer’s dementia in 2014. RFG’s ability to care for herself declined to the point that she was placed in BUPA Cairns Nursing Home.
- Her family provided an Enduring Power of Attorney dated 13 January 2018 appointing RC, RM, and QP as her attorneys for financial and personal health matters to operate immediately.
- When RFG was accepted into the Nursing Home there was an obligation on her attorneys to lodge an Assets and Income Assessment with Centrelink to determine the fees and charges of the nursing home. BUPA in the absence of such an assessment is required to charge full fees. The adult is not in the financial position to be able to pay these fees and a substantial debt has occurred.
- The first issue for the Tribunal is whether the Enduring Power of Attorney is valid.
The validity of the Enduring Power of Attorney dated 13 January 2018
- The Tribunal asked parties if they had any up-to-date medical reports to rebut the Reports of Dr H the GP or Dr R the Geriatrician who are of the view that the adult had a moderate dementia as early as 1 June 2014.
- The parties were unable to refer to any such up-to-date information. They were unable to provide any material from the Justice of the Peace witness who witnessed the execution of the enduring document. The family members present confirmed that the adult’s abilities had continued to decline since the diagnosis on 1 June 2014.
- The information before the Tribunal from Dr H her GP is that the adult had moderate Alzheimer’s in 2014. Dr R the Geriatrician confirmed that the adult was diagnosed with Alzheimer’s on 1 June 2014. The Tribunal accepts the evidence of Dr H the GP and Dr R the Geriatrician that the adult lack capacity for more complex decisions as that 1 June 2014. The Tribunal is of the view that the execution of an enduring document is a complex decision. The Tribunal is of the view that the presumption of capacity for personal matters and financial matters is rebutted. The Tribunal is of the view that the adult did not have capacity to execute the enduring power of attorney some 3 and a half years later. The Tribunal declares that the Enduring Power of Attorney dated 13 January 2018 is invalid.
- The Tribunal finds as follows:
- Dr R the geriatrician diagnosed the adult with moderate Alzheimer’s dementia on 1 June 2014.
- That the adult’s capacity has progressively declined since that date.
Need for an administrator
- The second issue for the Tribunal was the resolution of the outstanding nursing home fees. The manager of the Nursing Home told the Tribunal that once an Assets and Income Assessment was lodged with Centrelink that a determination would issue which would result in a much lower assessment and the adult would be refunded the difference. The adult’s family were unable to explain why this step had not taken place. The Tribunal told family members that it could appoint the Public Trustee of Queensland as a professional Administrator to attend to the issue and family could request a review in the future when this issue had been resolved and the adult’s financial affairs simplified.
- The Tribunal notes that the sum of $56,000 is outstanding to the Nursing Home.
- The Tribunal finds that the Public Trustee of Queensland can sort out the Assets and Income assessment and put in place a plan to pay for the arrears.
- The Tribunal is of the view:
- that there is a need for a decision; and
- without appointment the adult’s needs would not be adequately met or interests adequately protected.
- & The Tribunal is satisfied that the Public Trustee of Queensland is appropriate.
- The Tribunal finds that the Public Trustee an independent professional Administrator.
- The Tribunal finds that the adult’s family have been unable to manage her affairs.
- The Tribunal would like to comment on the practice of JP’s visiting nursing homes and offer the following advice.
The Tribunal would like to comment on the practice of witnessing enduring powers of attorney for people who been admitted to nursing homes.
- The issue for the Tribunal is with Justice of the Peace attending Nursing Home for the purpose of taking instructions and assisting the adult with an enduring power of attorney. A Justice of the Peace must be very careful when taking instructions from someone who is unable to care for themselves and been admitted to a nursing home and who may have a history of previous health issues affecting his or her capacity. The medical evidence before the Tribunal was that the adult had been diagnosed with moderate dementia on 1 June 2014 and did not have capacity.
- Dr R the Geriatrician made this diagnosis over three years before the enduring power of attorney was executed.
- The attorney was unable to provide any notes from the Justice of the Peace who witnessed the EPA. The legislation provides for a Justice of the Peace in such circumstances to keep notes so that these can be used to substantiate the validity of the execution of the enduring document. The Public Guardian has guidelines for the witnessing of enduring documents. The Law Society in relation to solicitors warns them that not taking appropriate care in relation to the execution of enduring documents can constitute professional negligence.
- The attorney was unable to refer the Tribunal to any such notes.
- The Tribunal accepted the evidence of Dr R.
- The Tribunal makes the following recommendations to the Justice of the Peace :
- a Justice of the Peace needs to read the guidelines produced by the Public Guardians Office for witnessing enduring documents;
- a Justice of the Peace should obtain a history from the adult that provides information relevant to the adult’s capacity. The Tribunal sets out in the following paragraph some approached regarding capacity that might assist a Justice of the Peace;
- a Justice of the Peace should obtain the treating health professional’s perspective of the adult’s capacity and any factors that might impact upon that capacity;
- a Justice of the Peace should obtain some collateral from a family member or friend which will ensure that the adult is not just confabulating or making things up;
- the Justice of the Peace should document the steps being taken and the basis for accepting that the adult had capacity;
- the Justice of the Peace should provide the patient and the attorney with a copy of that record so that it can be produced in the event that the validity of the document is challenged.
- The Tribunal is of the view that an enquiry of the Director of Nursing Home or with the Doctor acting as the GP for the adult would have established that the adult did not have capacity to execute an Enduring Power of Attorney.
- At the time of the execution of the Enduring Power of Attorney namely 13 January 2018 what is being asked is whether the adult had the capacity to understand the relevant information; the capacity to evaluate the character of the situation and possible consequences; and the capacity to handle the information rationally. The capacity to understand relevant information emphasises the importance of the adult’s comprehension of the information related to the issue at hand. With regard to this standard, it is necessary to distinguish between the mere capacity to understand information, and actual understanding. Merely having the capacity to understand is not sufficient consideration for actual understanding. An individual may have the intellectual capabilities to understand information, but nonetheless may misunderstand information as a result of selective attention, wishful thinking or deficits in the handling of information. The focus in this standard is on cognitive capabilities that are needed to understand information in the context of his personal affairs. The capacity to evaluate the character of the situation and the possible consequences differs from the mere ability to understand information in the abstract, by requiring that an adult is able to apply the information to his or her own personal situation. It requires adult’s recognition that information given to them about their affairs is significant and applicable to their own circumstances.
- This means that the capacity to express a choice is only part of demonstrating that a person has capacity to understand the nature and effect of the decision that they are being asked to make.
- Eight cognitive functions are supposed to be necessary in order to think rationally:
- seeking information;
- thinking in terms of consequences;
- comparative thinking;
- complex thinking;
- generating consequences;
- weighing consequences;
- transitive thinking;
- thinking in terms of chances.
- The Tribunal is of the view looking at these cognitive functions that the adult did not have capacity to execute the enduring document.
- The Tribunal offers the following as a simple method of getting some insights into the capacity of an adult. The use of an electricity or rate account bill. The adult can be questioned about:
- who is the account addressed to;
- the account number;
- the amount to be paid;
- the date bill is due;
- three options for the payment of the bill; and
- the contact number for enquiries.
- This gives useful insights into adult’s functional level. The payment of bills is a common everyday occurrence and the inability to understand such a document raises serious concerns. In the present case, the adult was not even in a position to read the document let alone understand the nature of the information being provided.
- Another approach is to ask the adult to outline their financial situation:
- How much is their pension;
- How often is it received;
- Who they bank with and how much is in the bank;
- What are their major expenditures; and
- What would happen in an emergency e.g. the car broke down
- This approach reveals whether the adult has an understanding of their financial position. An adult who is capable of outlining this information shows they have some understanding where as a person with no understanding raises questions about their capacity.
- Another approach is to ask an adult to write down their budget on a piece of paper. A person living on a pension is required to live within limited means. Pensioners usually have a very good understanding of how far their budget extends and being able to budget is a usual part of managing. An adult who cannot do a budget or who leaves out essential items raises questions about their capacity. The budget should include reference to:
- Power and water;
- Entertainment; and
- Clothes and linen;
- The Tribunal finally notes that Justice of the Peace do not have training in relation to assessing capacity so that if the Justice of the Peace were concerned in any way about the evidence then of obtaining the opinion of the health service treating the patient about his or her capacity would seem to be an appropriate step to take.
- The Tribunal is of the view in the present case that the Justice of the Peace could not have taken appropriate details of the adult’s medical history as far as is concerned her capacity. The Tribunal is also of the view in these circumstances that notes or a record of instructions should have been taken and should have been made available to the Tribunal when these proceedings were initiated. An attorney undertakes very serious obligations and responsibilities when acting for an adult with impaired capacity. The attorney in cases such as these should be able to provide a copy of the notes around the execution of the enduring document so as to defend his or her appointment as attorney.
The need for a guardian
- The final issue for the Tribunal is the need for a Guardian. The Tribunal asked the adult’s family if there were any issues with the care that the adult was receiving at the nursing home and were told that there were no issues that family were happy with the care that she was receiving. The Tribunal explained the Statutory Health Attorney regime and gave the parties a copy of the statutory Health Attorney brochure. The adult’s family indicated that they were happy to act on healthcare decisions on an informal basis. The adult’s family would notify the Nursing Home of the family’s agreed arrangement for healthcare decisions.
- The major issues for the adult will be around her accommodation and healthcare. The adult’s family are happy with her accommodation arrangements and are willing to act under the statutory health regime. The Tribunal in the circumstances saw no need for appointment and was of the view that family acting as statutory health Attorney was the least restrictive option.
- The Tribunal finds that the adult has several family members willing and able to support her around healthcare decisions.
- The Tribunal directs that a copy of these reasons be provided to the Department of Justice and Attorney - General for use for the education of Justice of the Peace.
- Published Case Name:
- Shortened Case Name:
 QCAT 97
29 Mar 2019