PQR[2023] QCAT 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

The Adult

1. [1]
   The Adult, referred to in this decision as PQR, was born on 30 August 1933. His situation is conveniently summarised in reasons delivered on 21 April 2022 (the ‘Earlier Decision’), as follows –

[1] PQR (‘the Adult’) is a fragile and legally blind 88-year-old man who suffered a cerebrovascular accident in August 2018. He lives in the home of DB, his carer and long-time friend/partner. He has two daughters, TCR and PCA, from his 37-year long marriage to LC. The marriage ended in divorce in 1994, and LC passed away in 1996. The Adult also has a brother, AC and three sisters, GC, JC and DC (‘the Applicant’)

[2] The Adult’s friendship with DB dates back some 40 years. It developed into a relationship involving at least two lengthy periods of cohabitation prior to the Adult moving into DB’s home in July 2020.

Enduring Power of Attorney

2. [2]
   The Adult granted a Power of Attorney on 16 March 2001 under which he appointed his daughters, TC and PC, as attorneys for financial and personal/health matters jointly and severally (the ‘2001 EPA’). The Adult subsequently granted an Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters.

Previous Related Applications

3. [3]
   There have been a number of earlier QCAT processes. Processes relevant to the current applications are the following –

   1. (a)
      Applications for the appointment of a guardian and administrator dated 6 April 2021

DC sought the appointment of the Public Advocate as guardian and the Public Trustee as administrator. In relation to this application, the outcomes were as follows –

Guardianship

The application for a guardian was dismissed.

Administration

The application for appointment of an administrator was dismissed.

Declarations about Enduring Power of Attorney.

In relation to the 2001 power of attorney appointing TC and PC jointly and severally as attorneys for financial, personal and health matters, the Tribunal declared that –

3. (1)
    The enduring power of attorney was valid;

3. (2)
    The attorneys’ power for financial matters commenced on 4 April 2001, [PQR’s] capacity for financial matters was certified as impaired on 24 March 2001; and

3. (3)
    The attorneys’ power for personal, including health, matters was exercisable from 4 April 2001, but only during periods that [PQR’s] capacity was or is impaired, and irrespective of whether such impairment is or was certified or declared.

Declaration about validity of Enduring Power of Attorney

The Tribunal ordered that the Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters was invalid.

Application for Order for Costs

The application by TC and PCA for an order for costs against the applicant was refused.

2. (b)
   An application for administration/guardianship dated 13 July 2022.

The application was made by DC. In paragraphs 5.5 and 6.7 in respect to the questions in the form as to who should be appointed as administrator/guardian respectively, in each case the question was answered ‘nobody’.

This application was found to be misconceived by the Tribunal in a decision dated 21 April 2022.

3. (c)
   Application for an interim order

On 24 May 2022 DC sought the appointment of the Public Guardian and Public Trustee under interim orders. This application was considered at a hearing on 25 July 2022 and a decision delivered 9 August 2022. The application was dismissed, the member not being satisfied that there was an immediate risk to the harm of the Adult.

Applications for Consideration at the Hearing on 4 October 2022

4. [4]
   The application for appointment of a guardian (the Public Guardian) and an administrator (the Public Trustee);
5. [5]
   Confidentiality Order. Consideration of whether the order of the Tribunal on 9 June 2022 that documents H105 and Parts C & K of H104 are confidential, should be continued.
6. [6]
   Application for Miscellaneous Matters – Application by DB dated 19 June 2022. This application is broken into two parts –

   1. (a)
      First Part – Part C Section 1 – what orders do you want from the Tribunal?

The Adult’s wishes to be respected regarding his place of abode…

2. (b)
   Second Part – Part M – an order concerning an Enduring Power of Attorney.
3. (c)
   In the form “what is your opinion about the existing enduring document?” the last box has been ticked and reads “the document has been incorrectly executed in some other way (give details below).”
4. (d)
   The narrative detail in support then reads in part –

They do not respect his wishes…

5. (e)
   Then under the heading, “what order would you like the Tribunal to make?” two boxes are ticked for the following –

change the terms of a power of attorney, enduring power of attorney or advanced health directive

and

revoke all or part of an enduring power of attorney.

6. (f)
   Application for Miscellaneous Matter – Application by TC and PC dated 6 September 2022
7. (g)
   Part C – what orders do you want from the Tribunal?

A direction/order that articulates more specifically the decision making authority of the lawfully appointed attorneys validated in February 2022, such as expressed in the interim order of 3 December 2021…

Capacity

Definition

7. [7]
   The Guardianship and Administration Act 2000 (Qld) (‘GAA’) provides the following definition for ‘Capacity’ –

capacity, for a person for a matter, means the person is 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.

Presumption of Capacity

8. [8]
   Section 11(B) of the GAA provides as follows –

The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act…

General Principles

Presumption of Capacity

9. [9]
   An Adult is presumed to have capacity for a matter.

Section 12(1) GAA

10. [10]
    The above provision is supported by the provisions of s 12(1) of the GAA. This section provides that –

3. (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 –

1. (a)
    the adult has impaired capacity for the matter; and

2. (b)
    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; and

3. (c)
    without an appointment –

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

2. (ii)
    the adult’s interests will not be adequately protected.

11. [11]
    It is noted that the subjects of capacity and need for an appointment were extensively dealt with in the Earlier Decision (pages 10-21). However, the current applications for the appointment of a guardian and administrator represent fresh applications, so that once again it is necessary for the Tribunal to consider whether the presumption of capacity is rebutted.

Matters Noted by the Tribunal

12. [12]
    The following matters are noted by the Tribunal –

    1. (a)
       the Earlier Decision;
    2. (b)
       that the current hearing was heard by way of telephone conference;
    3. (c)
       that at the commencement of the hearing, the attorneys confirmed their request that the Adult not participate in the hearing on the basis that the Adult has impaired capacity as per the Earlier Decision and that he would be distressed and/or confused by the proceedings. Given the Adult’s rights to participate in the hearing, I ruled that it was in order for the Adult to attend.
    4. (d)
       that the Adult attended the hearing. Someway through the hearing DB advised that the Adult had left the hearing for a sleep. This happened before I was able to take evidence from the Adult.
    5. (e)
       The material on file contains a report from a neuropsychology service dated 13 May 2021 by NB which is referred to in the Earlier Decision, and which was requested by the Tribunal.
    6. (f)
       The Tribunal does not have any further health professional report in relation to capacity of the Adult.
    7. (g)
       The Tribunal received feedback from a number of sources –

       1. Feedback from GC, the Adult’s sister, dated 23 June 2022 which states that in her opinion, the Adult is capable of making most financial decisions with support (only because he is vision impaired). It also states that the Adult is capable of making “ALL personal decisions”.
       2. GC goes on to state that only more complex financial decisions need to be made by an administrator because most decisions can be made by the Adult, and that the Public Trustee is appropriate because “they follow their obligations as administrator, taking into account the right of a doctor to participate in decisions affecting his life”.
       3. Feedback from the Adult’s brother, AC, states that in his opinion, the Adult can make decisions with support. The feedback also states that the Adult is “very clear about where he wants to live and with which doctor he wants to see” and is also able to decide on the support he needs.” AC’s feedback concludes that “If QCAT decides he needs a guardian, it should be the Public Guardian.”
       4. Feedback from the Adult’s sister, JC, states that she believes the Adult can make most decisions about his finances as his affairs are relatively simple, and that he may require support and assistance due to his limited vision and for more complex matters, as he is vulnerable when placed under stress.
       5. JC says that the Adult requires support from an objective guardian who will perform their duties as required under the Act, that the Public Guardian is the most appropriate guardian, that the Adult is able to make all of his personal matter decisions but is faced with conflicting influences from people he cares about and that the Adult is vulnerable to coercion.
       6. JC went on to say that the Adult is currently not consulted about decisions by his attorneys and has become distressed as necessary information is not communicated to him.
       7. The Tribunal also received written feedback supporting the role of the attorneys, who confirmed that they wished to continue in their roles.
    8. (h)
       DB spoke strongly, saying that “[the Adult] is not demented”.
    9. (i)
       The Applicant spoke to the varied memory ability of the Adult.
    10. (j)
        Email from Melissa Laing, Independent Advocacy NQ to DC and the Applicant dated 13 July 2022 (after the Earlier Decision) in the following terms –

Good afternoon

…Following our conversation today, I have spoke with a Social Worker at Ingham Hospital to assist with the [Adult’s] choices and how we may proceed with this matter. I have also met with our Advocates to discuss further options for [the Adult] to live his life according to his wishes. I have cc’d [DC] as per consent given by [the Adult] by phone.

[The Adult] will need to obtain a referral for a Geriatrician to assess his decision-making capacity and how this will affect further decisions being made on his behalf. You advised that [the Adult] has an appointment with [Dr S] next week where a referral can be obtained.

Advice from Advocates

Additional information – report to Elders abuse of daughters not providing funds. [The Adult] can choose who and where he can live if he is safe and has capacity to make decisions. He could put a restraining order against daughters if they are trying to interfere with his well being.

Once it has been determined as to whether [the Adult] has decision making capacity a revocation of EPOA can be made through QCAT, if not, an application can be made for and Office of Public Guardian to be appointed. This information is included in the email below. I will continue to research options available for the best outcome for [the Adult] according to his wishes and will be in touch in the following week to see how this has progressed.

11. (k)
    Application H131 (the application with no proposed administrator or guardian named, which includes a list of outcomes the applicant was seeking) –

7. What outcome are you seeking?

I am seeking the removal of EPoA from the adult’s daughters, [TC] and [PC], who are psychologically harming the adult. They are restricting his access to money allowing only enough for fortnightly tobacco and cigarettes and one lunch. They will not provide him with cash or money to contribute to his living expenses, food, power, fuel etc. More seriously they are obsessively opposed to his 40 year friendship, including 25 year spousal relationship with his current partner and carer. They are insisting he returns to his former doctor, who is a ‘family friend’ and not see the doctor of his choice. They cancelled the appointment made with the gerontologist. They have made allegations to police that resulted in his being interviewed. He is an 87 year old man who still loves his children despite what they are doing to him. He answered all of the questions put to him by police, to their satisfaction that no action would be taken, but for one question. “Why are your children doing this”. He has no answer for that. Other siblings, his friends and I have observed his decline since his EPoA took away his agency. His friends have advocated on his behalf but to no avail. One man who has been the adult’s mate and ally for 70 years, was verbally abused by one EPoA and her husband when he tried to advocate for him. The other EPoA texted “keep your advice” when the adult’s sister asked her to desist from her actions. It is a sad and sorry state of affairs that an old man who has done his best to ensure his children have a good life, finds that they have turned against him because they have decided not to accept his spousal carer and want to make life as difficult as possible for her.

12. (l)
    The application for an interim order dated 13 July 2022 which includes the following –

Part D Why do you want the above interim order?

The adult wants to see the doctor of his choice as he sees Dr SJ as facilitating the abuse he is experiencing. In his words “Dr SJ was a big part in this”. He wants to see Dr SJ but his attorneys will not allow this and have threatened Dr BS with legal action in the Supreme Court if he sees the adult. The adult is in immediate need of consultation with a reliable GP, as he has a number of medications (targen, blood thinners) that need monitoring and he also requires prescriptions. This is the most urgent consideration in this application.

His welfare has been seriously compromised after he was ‘dropped off’ at a RACF, not told that he was going to be staying there. He became extremely distressed, could not sleep or eat, was crying and constantly asking “Why have they done this to me. Do they want me to die?” Physically and emotionally he really suffered for the two months he was away from his home and spousal carer. He lost weight and is now recovering at home. His bed, chair, table, fishing rods, golf clubs and clothing were removed when his daughter engaged a removalist to come and get them when he thought he was spending a day with her. He asked the removalist to return his bed, which he now has, but his daughter would not pay for that service, and he could not pay because his daughter will not allow him any money at all, and no access to his debit card. He is continually worried that he will not have enough cigarettes as his daughter rolls and provides a week’s worth, but always less than what she agreed to provide.

13. (m)
    It is apparent that one of the reasons for the application is not so much that the applicant strongly believes the Adult has impaired capacity, but that it is the desire of the applicant, supported by the Adult’s siblings and DB, that the 2001 enduring power of attorney should be overtaken or revoked.
14. (n)
    The two local doctors, Dr JS and Dr BS, were not in agreement in relation to the capacity of the Adult. As noted in the Earlier Decision, the Tribunal on 19 April 2021 directed that the Adult undergo an assessment by [NB] on 20 April 2021 and that a report be produced to the Tribunal and all parties within 7 days of it being available.
15. (o)
    Neurological Report of NB dated 11 May 2021 – Extracts set out Below:

There is complicated psychosocial history where there appears to be friction and disharmony between [the Adult’s] daughters and [the Adult’s] current carer (ex-partner – DB) and between his daughters and his sisters.

A generic letter written by Dr SJ in January 2021 indicated that the Adult no longer had capacity to manage personal banking and required assistance with personal banking and budgeting. Three months later, Dr SJ was of the opinion that the Adult no longer had the capacity for financial and legal matters.

[The Adult] described DB as his carer. He denied ever having lived with DB in the past; however, it appears that DB and the Adult have cohabitated on at least 2 prior occasions and the relationship has broken down. The Adult said DB offered to take care of him after the fall in 2020 and described her as having good intentions.

[The Adult] had difficulty explaining what an EPoA was.

When asked if he had any difficulties, [the Adult] said “I don’t think so”. He confirmed his wish was to handle his own money though did not indicate that anybody was currently mishandling his money or that there was any wrongdoing by family or other persons. He did not report being unhappy with his current situation. He denied exposure to harm or coercion.

When asked whether disharmony existed between family members and his carer, he was dismissive and denied conflicting interpersonal relationships, which is inconsistent with history provided by others.

Of note, during the assessment process, contact was received by two individuals claiming to be [the Adult’s] sisters by phone and email. Due to confidentiality and strict privacy policy, no details were discussed this these persons. Phone calls were abrupt and demanding, with emails detailing alleged account of [the Adult’s] current information. This information was not considered, given consent was not provided and identity of the individuals remained unconfirmed.

[The Adult] now suffers visual hallucinations (ie Charles Bonnet syndrome) caused by the brains adjustment to significant vision loss.

In July 2020, [the Adult] reportedly suffered a fall with subsequent pain to the left region but no loss of consciousness (LOC) and no report of head strike. A possible element of dementia was raised in the submission.

[The Adult] was noted to suffer a cerebrovascular accident (CVA) in August 2018 with acute onset of slurred speech, left sided facial droop, and left sided weakness with quick resolution of symptoms over a 24 hour period.

In terms of finances [the Adult] said he received his last superannuation payment last Friday and now receives the pension only, which he said was $160.00 per fortnight. When referring to the age pension rates on the Australian Government website, the current single pension amounts to $952.70 per fortnight. His daughter said that he previously spent freely but is now trying to keep to a budget given lack of super funds.

Opinion – (extracts)

Current neuropsychological testing revealed adequate verbal intellectual ability and exceptional immediate attention and auditory working memory. His verbal learning and recall were moderately to severely impaired with rapid forgetting after a delay albeit he benefited from recognition. He was also completely oriented.

Overall [the Adult] displays many areas of intact cognition with the exception of word generation and verbal memory. He also appears to have reduced awareness for his memory problems and lack of insight/denial of complex psychosocial matters, and a level of apathy and / or depression.

[The Adult’s] cognitive profile is strongly suggestive of an underlying neurological condition, and a neurodegenerative condition is suggested given his age and insidious decline over time. His profile is in keeping with an Alzheimer’s Dementia; however, a vascular dementia is a strong differential. I would recommend referral to Neurologist or geriatrician for further investigation and diagnostic evaluation.

16. (p)
    Application for Interim Order 5 August 2022:

Part C Why is an Interim Order Necessary?

The Adult’s medical condition has sharply declined since the last application was made. He was taken to ED by ambulance on 28 July and told that he will now need palliative care and that could be done in his home. He is not eating or drinking much, and is deeply depressed. He has been very seriously impacted by the abuse that his daughters inflicted on him, especially preventing him from living in the home he shares with his partner from 06/04/22 to 07/06/2022. During this time he was given Ozazipam to stop him asking to go home. An interim order will enable [the Adult] to have the doctor he wants and palliative care in his home. He has said on many occasions that he would like to live until he is 90 and to die at home. The peace of mind that would be provided by having a Public Guardian will allay his fears and anxiety and may even help to repair the damage that has been inflicted on him. Ingham police have contacted the elder abuse unit at the Townsville Community Legal Centre and the Independent Advocate is now involved.

17. (q)
    Letter dated 10 January 2022 to QCAT from AC, brother of the Adult, which includes the following –

I believe that the continual accusations and hatred towards DB from TC and PC is having very serious health implications on my brother, both physical and mental. I fear that if this behaviour continues, it would drastically shorten my brother’s life as it is causing him major depression.

18. (r)
    Allegations of the attorneys that DB “coached” the Adult in responses in relation to decisions on medical matters,^[1] and in telephone conversations.

Conclusion in relation to Capacity

13. [13]
    There is clearly a difference of opinion between the views of the neuropsychologist appointed by the Tribunal and the applicant, DB and the applicant’s siblings. I observe that the communications between the applicant and DB with Independent Advocacy NQ does not recognise or take into account the orders of the Tribunal in the Earlier Decision. I do not read that the conclusions and comments by NB were in any way conditional upon further medical or geriatric advice.
14. [14]
    Taking into account all of the information noted above, I have concluded that the presumption of capacity is rebutted for all matters. To the extent that the feedback supporting DB’s view that the Adult has capacity conflicts with the opinion of NB, I adopt the views of NB.

Some Legislative Provisions regarding Substituted Decision Makers – the GAA and the Powers of Attorney Act 1998 (POA)

15. [15]
    The GAA deals in s 8 and s 9 with the relationship between the GAA and the POA, and the range of substitute decision matters.
16. [16]
    The POA in Chapter 1A sets General Principles and Healthcare Principles in the same terms as those provided for in the GAA. In addition, s 111A of the POA provides that where the Tribunal is required to make a decision about an Adult’s capacity for a matter, the Tribunal is to presume the Adult has capacity for the matter until the contrary is proven, achieving effectively the same outcome as that provided for in the GAA.
17. [17]
    Section 22 of the GAA provides that if an Adult’s enduring power of attorney gives power for a matter to an attorney and after that the Tribunal, with knowledge of the enduring document, gives power to a guardian or administrator, then the attorney may exercise power only to the extent authorised by the Tribunal.
18. [18]
    Section 5 of the GAA contains certain acknowledgements, including the following –

5(d) –the right of an Adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent;

5(e) – an Adult with impaired capacity has a right to adequate and appropriate support for decision making.

History of Conflict

19. [19]
    The history of conflict between, on the one hand, the attorneys who are the daughters of the Adult and, on the other hand, DB, the applicant and the Adult’s sisters (the ‘Other Family Members’) is recognised in the Earlier Decision, and in the health professional report of NB.
20. [20]
    It is relevant to take note of the areas of conflict which existed between the attorneys and the Other Family Members.

Areas of Conflict at 3 December 2021

21. [21]
    In some cases, but not all, comment will be provided within the listing below.
22. [22]
    Where the Adult should live:

    1. (a)
       This issue appears to be largely resolved now and was dealt with at the hearing. The allegation of the Other Family Members is that the Adult was taken to a nursing home against his will and that he pleaded to be returned to the house of DB. At the hearing, PC advised the Tribunal that the Adult was living with her at her house when it became clear that there was a need for 24/7 care which she could not provide, and it was in these circumstances that the Adult was transferred to an aged care facility. It appears that the Adult is now living at the home of DB, receiving health support from her and from contracted service providers, including medical practitioners. File material records the concern of the attorneys about the Adult living with DB. In the Earlier Decision, the member said –

The attorneys ongoing reservations about their father living with DB appear to relate largely to what they describe as the ‘volatile, on and off nature’ of his relationship with DB, which in the past had proven to be detrimental to his well being.

2. (b)
   While there is no doubt that the Adult wishes to live at home with DB, the attorneys have been in a position of what might be described as ‘reluctant approval’ to this arrangement. The Applicant and DB therefore criticise the attorneys on the basis that the Attorneys have not allowed the Adult to exercise his wishes to the great extent possible under the General Principles. In relation to this, I am satisfied the attorneys had what they believed to be genuine and valid reasons supporting their concerns about the Adult, their father, living with DB.

23. [23]
    Who should be appointed as Substitute Decision Makers for the Adult:

    1. (a)
       This manifested itself in the execution of the enduring power of attorney dated 21 April 2021 which was declared by the Tribunal in the Earlier Decision to be invalid.
    2. (b)
       DB has described her role as carer, and made it clear that she is qualified in this role as a practicing nurse. It would appear that this has led to the problem where effectively she has, to a significant extent, taken on a role which is very close to that of a health attorney. It is easy to see how conflict has arisen. Importantly, in terms of the decision to be made for the Adult, it seems to me that the relationship between the Attorneys on the one hand, and DB and the Applicant on the other, has deteriorated, and the conflict has increased, in 2022 – subsequent to the previous hearing of the Tribunal in December 2021.
24. [24]
    Unreasonable withholding of finance/funds for the benefit of the Adult:

    1. (a)
       This is presumably the basis for what is referred to in a number of places as “financial abuse”. The Other Family Members are clearly of the view that the attorneys should be providing more financial support of the Adult than they are. At the hearing, the applicant stated that the Adult was always short of money and that family gifted him money for birthdays and the like.
    2. (b)
       In the Earlier Decision the member noted in paragraph 224 –

As to allegations regarding the attorneys lack of consultation with the Adult regarding his finances, I note the difficulty the attorneys face in fulfilling their obligation to maximise the Adult’s participation in decision making (general principle 8, section 6(c) GAA), while seeking to minimise the stress such involvement may cause their father. At the Hearing, the attorneys confirmed that they provided funds to the Adult as required.

25. [25]
    Transfer of $10,000.00 from the Adult’s account to the account of DB. This is dealt with in the Earlier Decision at paragraph 19.
26. [26]
    Allegations that DB falsely represented she had authority to transact business on behalf of the Adult (Earlier Decision paragraph 33).
27. [27]
    Circumstances regarding the transfer of $28,427.00 – being funds withdrawn from the Adult’s bank in a change of investments when the Adult was reported to be upset without not being asked (Earlier Decision paragraph 40).
28. [28]
    What doctor should be the treating doctor for the Adult. This is an issue of no small importance, including the issues of dispute in relation to capacity and the issue led to a dispute between the attorneys and the Other Family Members in relation to what medication should be provided for the Adult.
29. [29]
    The capacity of the Adult, referenced earlier in these reasons.
30. [30]
    Alleged unlawful action by Attorneys:

    1. (a)
       Allegations that the attorneys have breached their attorneys obligations under the General Principles and otherwise not acted in the Adult’s best interests.
    2. (b)
       I note that this matter is dealt with in the Earlier Decision at paragraphs 217-225. I note also that the attorneys view is that supply of fund is strictly controlled due to the Adult’s lack of capacity to deal with financial matters and due to their concerns that the Adult has been, or maybe, financially exploited. I deal with this aspect further below in the context of the request for the appointment of an administrator.

Ongoing Current Areas of Conflict (in addition to the above)

31. [31]
    Disputes regarding medical treatment. This has been an area of major conflict – to the detriment of the Adult’s health care. The position has improved with the involvement of the nurse navigator and the Ingham Health Service. However, the Attorneys have made it clear that making medical appointments for the Adult is still a difficult process.
32. [32]
    Disputes regarding information flow. This topic involves a concern that on the part of the attorneys that they did not know of a decline in the Adult’s health until reading QCAT documents.

Non-Compliance with Tribunal Orders

33. [33]
    The Attorneys argue that Other Family Members have not abided by the terms of the QCAT order in the Earlier Decision by seeking to obtain further medical reports in relation to capacity.

Alleged lack of respect for each other.

34. [34]
    Matters of dispute are set out in the Miscellaneous Matters applications.

Showering and general health of the Adult.

35. [35]
    At the hearing, DB confirmed that the Adult could look after his own showering, whereas the material written on behalf of the Attorneys is to the effect that the Adult’s presentation warrants more care and better showering.

Effects of Conflict

36. [36]
    The consequences of the existence of conflict between family members and/or substitute decision makers has been dealt with in a number of cases by the Tribunal.^[2] The adverse consequences of conflict can include the following –

    1. (a)
       an adverse impact on health of the Adult.
    2. (b)
       an adverse effect on the ability of carers and substitute decision makers to look after the Adult and action what is in the Adult’s best interests.
    3. (c)
       delay which often arises out of conflict can interrupt or delay both good decision making and required medical treatment.
    4. (d)
       mutual mistrust is counterproductive to the Adult’s support network working together, contrary to the General Principles – see paragraph 4 – Maintenance of Adult’s Existing Supportive Relationships.
37. [37]
    All of the above can be seen to have manifested in the conflict between the attorneys and the Other Family Members.

Application for the Appointment of Guardian

Preliminary

38. [38]
    Having determined that the Adult has impaired capacity within the meaning of the GAA, the next thing is to determine whether there is a need for an appointment of a guardian within the meaning of s 12 of the GAA. This section is set out above. The component parts are that, for there to be a need within the meaning of s 12 –

    1. (a)
       there is a need for a decision in relation to the matter; or
    2. (b)
       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; and
    3. (c)
       without an appointment –

       1. the Adult’s needs will not be adequately met; or
       2. the Adult’s interests will not be adequately protected.
39. [39]
    It is necessary to consider s 12 in the context of the Adult’s capacity and what might be necessary in his interests, and also to consider whether, having regard to the 2001 enduring power of attorney, there is the need for an appointment of a guardian. The requirements of s 12 in respect to financial matters and the appointment of an administrator is dealt with below.
40. [40]
    Considering the need for the appointment of a guardian, it is relevant to note that –

    1. (a)
       the finding in the Earlier Decision of impaired capacity;
    2. (b)
       the Adult is aged 89 years;
    3. (c)
       the Adult is reportedly frail and suffering a life threatening illness to the extent that he may, in the near future, be treated palliatively;
    4. (d)
       he lives with his partner/ex-partner DB, who acts as a carer;
    5. (e)
       visits to medical practitioners occur relatively frequently. At these visits the Adult is accompanied by DB who insists that she should be present at the doctors visits, though the visits are arranged and coordinated by TC and PC as health attorneys;
    6. (f)
       the Adult is legally blind;
    7. (g)
       the neuropsychological report of NB dated 13 May 2021 states:

[The Adult’s] cognitive profile is strongly suggestive of an underlying neurological condition and a neurodegenerative condition is suggested given his age and insidious decline over time. His profile is in keeping with Alzheimer’s Dementia.

He also showed poor knowledge of and insight into his medical conditions and would have difficult retaining information about proposed medical treatments and weighing up pros and cons.

41. [41]
    In all the circumstances, it is clear that the Adult needs assistance, and receives assistance, in relation to matters of his medical health.
42. [42]
    In terms of s 12, I have found that there is a need for a decision in relation to the matter, that without the appointment of a guardian, the Adult is likely to do something that involves or is likely to involve unreasonable risk to the Adult, and without an appointment, the Adult’s needs will not be adequately met or the Adult’s interests would not be adequately protected.
43. [43]
    In the Earlier Decision, at paragraphs 170 and 171, the member referred for the need to consider alternatives to the appointment of a guardian or administrator and determine whether such alternatives would adequately meet the Adult’s needs and protect his interests.
44. [44]
    In paragraph 171, the member concludes “In this case, the two less restrictive alternatives are the Adult’s enduring powers of attorney.”
45. [45]
    In this respect, it can be seen that the Member’s order is consistent with acknowledgment contained in s 5(d) of the GAA.
46. [46]
    In the present case, taking into account the escalation of the conflict, I believe that it is also necessary to take account of the acknowledgement set out in s 5(e) of the GAA.
47. [47]
    Where there is an enduring power of attorney in place and QCAT is satisfied that arrangements for the Adult are functioning effectively and satisfactorily, the Tribunal would not normally make an order changing the decision making arrangements for the Adult.^[3]
48. [48]
    I find that the existence of ongoing substantial conflict between TC and PA, the attorneys under the 2001 enduring power of attorney on the one hand, and DB and the Applicant on the other, represents a fractured relationship which in the circumstances does not give rise to “adequate and appropriate support for decision making” because of that conflict.
49. [49]
    Paragraphs 247 and 248 of the Earlier Decision, the Member said –

[247] The bringing of these proceedings has undoubtedly been stressful and upsetting for the Adult. The impression I have gained from submissions, evidence and, in particular, my private conversation with the Adult, is that he has found the whole process to be stressful, upsetting and embarrassing.

[248] Whilst it is not uncommon for an Adult to be harmed by family conflict, all parties should now be aware of this and are hopefully determined to ensure that the Adult is shielded from any remaining conflict.

50. [50]
    Viewing the numerous items of correspondence by or on behalf of the attorneys and by or on behalf of the Applicant and DB, unfortunately my conclusion is that the Adult has not been shielded from the conflict.
51. [51]
    At the hearing, PC advised that arrangements for managing the health of the Adult had improved with the assistance of Ingham Health Services and the involvement of the nurse navigator. However, it does appear that because of difficulties between the attorneys and DB, there was a period of between 2 and 3 months when the Adult did not see a doctor when he would have otherwise done, because of difficulties in making arrangements that met the requirements of both parties (ie the attorneys as one and DB as the other).
52. [52]
    In the submissions of the attorneys to the application for an interim order paragraph 6 reads –

I, Peta, have on multiple occasions telephoned Dad and informed him I would be picking him up to take him to see Dr SJ for his check-up and because he needs a prescription – to which he readily agreed. Each time I have then been thwarted by [DB], who encourages Dad to believe he should fear not only Dr SJ, but me also – that I will not take him to the doctor but will take him back to Residential Aged Care. There are recordings of DB’s interference that can be made available to the Tribunal. We are fully aware that Dad will require another prescription for Endone, Targin and Allosig by Monday morning, 1 August. We intend to seek an Order, if required, from the Tribunal to ensure we have unfettered access to our father, as his lawful attorneys.

53. [53]
    Email communications between the attorneys and DB/DC clearly show that the conflict is ongoing.^[4]
54. [54]
    A number of cases where the Tribunal has appointed the guardians or administrators to act as substitute decision makers in lieu of attorneys earlier appointed involve decisions where the attorneys have, for whatever reason, not adequately fulfilled their duties and responsibilities. This is not the case here. The communications between the parties in relation to the Adult’s affairs are numerous involving allegations and counter-allegations.
55. [55]
    It is in the context of that conflict, and the adverse effect on the Adult’s health and the care for the Adult, that the appointment of the Public Guardian has been made.
56. [56]
    In making the appointment, the Tribunal has had regard to the provisions of s 15 of the GAA. This section lists a number of appropriateness considerations, including s 15(1)(g) –

The person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.

57. [57]
    In addition, the provisions of s 14(2) of the GAA need to be taken into account. That section provides that –

The Tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.

58. [58]
    In the current situation, I believe there are no persons appropriate for appointment in the context of those persons who might be otherwise available, all being involved to some extent in the conflict surrounding the Adult’s care.
59. [59]
    Taking into account the provisions of s 14(2) and s 15 of the GAA, and noting that the Public Guardian is an appropriate person to be appointed, the order has been made that the Public Guardian is appointed as guardian for the Adult.
60. [60]
    The Public Guardian was represented at the hearing and prior to the hearing has been consulted by persons interested in the welfare of the Adult. The representative advised that the Public Guardian had received over 2,000 pages of material relative to the affairs of the Adult. The representative of the Public Guardian supported that, in the circumstances, the matters for which the Public Guardian should be appointed, cover accommodation, health care, services and with whom the Adult has contact, and that is the order which has been made.
61. [61]
    In the reasons for a decision in the application for an interim order in respect to the current application for the appointment of a guardian and administrator (delivery date 9 August 2022) the member noted in paragraph 15 that –

It is apparent that [PQR’s]sister does not accept the decision made by the tribunal in February 2022. It would be somewhat perverse to accede to her wish, so soon after the previous hearing, for an outcome that she failed to achieve in that proceeding. Nonetheless, the health, welfare and property of [PQR] must be the focus of the tribunal’s concern, rather than the propriety of a party’s conduct. If interim appointments are warranted to safeguard [PQR] against an immediate risk of harm, then the tribunal should make those appointments.

62. [62]
    I endorse these comments. They appropriately reinforce that the primary focus of the Tribunal should be on the health and welfare of the Adult (accepting that these comments were made in the context of an application for an interim order).

Application for the Appointment of an Administrator

Section 12 – Need

63. [63]
    The Tribunal must also consider the requirement of s 12 in relation to ‘need’ in the context of the Adult’s financial arrangements, and in the context of the 2001 enduring power of attorney granted in favour of TC and PC for financial matters.
64. [64]
    The neuropsychological report of NB dated 13 May 2021 supports the finding of impaired capacity of the Adult in respect to decision making in financial matters and also the ‘need’ for there to be a substitute decision maker. The ‘need’ arises in the context of the Adult’s inability to understand, transact and manage his own financial affairs.

Conflict

65. [65]
    Substantial conflict exists between the attorneys on the one hand, and the Applicant, DB and the Adult’s siblings on the other, just as is the case for personal health matters.
66. [66]
    In response to an enquiry from the Applicant seeking assistance in respect to the Adult, an employee of the Tribunal wrote to the Applicant on 28 June 2022 stating –

I confirm all decisions in relation to [the Adult] should be referred to the current attorneys and be made according to the attached general principles of the Powers of Attorney Act 1998.

67. [67]
    In response to this email, the Applicant wrote in reply –

Thank you #(name)#t

I find this advice to be very difficult to accept only because it is very evident to me, police, doctor, friends, support workers, staff at the nursing home he was assigned to that the decisions made by the EpoAs are not in his best interest. Therefore I could not refer any decision to them, it is a matter of conscience and also because the ethical requirements of my profession on which my registration depends, does not allow me to be complicit in the bullying and elder abuse that is inflicted upon him and others including [DB], his sister [GR] and his friend [SR]. I will listen to [the Adult] and respect his human rights and do my best to help him to achieve what is safe, right and just for him. I will try, through all channels available, according to law, to have some justice afforded to [PQR] so that he can continue to live the way he wants to, which is in a safe, loving, caring environment with his partner [DB] who is also a registered and respected nurse.

[The Adult] has been unable to access legal advice because QCAT member Stepniak decided that he lacked capacity.

Regards

[DC]

Finding

68. [68]
    Despite the conflict which exists in relation to financial matters, I do not see it as necessary or appropriate for the Tribunal to appoint an administrator to override the role of the attorneys’ acting in financial matters for the Adult acting under the 2001 enduring power of attorney.
69. [69]
    Effectively, the starting point is that the role of the attorneys should continue unless there is good reason for overriding the attorneys’ role. Good reasons include conflict and also where attorneys are not satisfactorily carrying out their roles as attorneys.
70. [70]
    The factors I have taken into account in reaching the above finding include –

    1. (a)
       in my view, the conflict does not directly adversely affect the health and wellbeing of the Adult in the same way and to the same extent as the conflict does for decisions affecting the Adult for health matters;
    2. (b)
       the financial affairs of the Adult have been described as fairly simple. The Tribunal does not have detailed current financial information. However, it appears that the attorneys have funds invested with the bank and the Adult receives a pension;
    3. (c)
       in my view, the evidence does not support a conclusion that there has been financial abuse of the Adult by the attorneys;
    4. (d)
       despite the various criticisms by the Other Family Members, it would appear that the attorneys are performing their role as required by law and providing funds for the Adult’s wellbeing when required.
71. [71]
    In summary, the Adult has a need for a substitute decision maker for financial matters. The substitute decision maker role can, and is being adequately carried out, by the attorneys. It is therefore not necessary or appropriate to make an order for the appointment of an administrator.
72. [72]
    On file, is a letter dated 15 August 2022 written from Connolly Suthers, lawyers on behalf of the attorneys to DB. The letter deals with a number of matters. Relevant to financial matters is the following which appears on page 2 of the letter –

Our clients are prepared to pay you [DB] $130.00 per week whilst –

1. (a)
    [the Adult] is in a physical condition to reside at your house; and

2. (b)
    you cooperate with your instructions in relation to [the Adult’s] health and wellbeing.

73. [73]
    At the hearing, it was indicated that this amount was not being paid because the offer of the amount had not been accepted by DC, the offer being seen was unacceptable because it was expressed as subject to conditions. While there are two conditions set out above, it does seem to me that the conditions set out are both reasonable and appropriate.
74. [74]
    Having said that, the attorneys should, in discharging their function and duties –

    1. (a)
       observe the General Principles, and otherwise their obligations at law; and
    2. (b)
       preferably not impose conditions on the provision of financial support for the Adult;

To impose conditions is fraught with the prospect of a dispute about the application of the conditions.

75. [75]
    It is a quite in order for the attorneys to specify what the financial support is provided for, how it is calculated, and to change the amount, upwards or downwards, as the Adult’s health circumstances and/or financial needs may change.
76. [76]
    Going forward, it is noted that while there still may be a need for the attorneys to interact with DB, the primary responsibility for taking care of the Adult’s health and personal decisions will be that of the Public Guardian under the appointment provided for in the orders in this matter. I would expect that the attorneys would take careful note of any recommendation request for funds required to support the Adult’s health and well being which may issue from the Public Guardian on behalf of the Adult.

Other Applications

Confidentiality Order

77. [77]
    On 9 June 2022, the Tribunal ordered that:-

Pursuant to s 109 and s 110 of the Guardianship and Administration Act 2000 (QLD), unless otherwise ordered by the Tribunal, the following documents and parts of documents are confidential and are held from all persons other than the attorneys for [the Adult] and the Tribunal –

1. (a)
    H105;

2. (b)
    Part C & Part K of H104.

78. [78]
    It was necessary for the Tribunal consider whether or not that order should be continued, varied or ended. This was explained at the hearing. No submissions were made in relation to the future treatment of the existing order. I foreshadowed that I proposed to continue the order, varied to provide that the confidential material is withheld from all persons, other than the attorneys for the Adult, the Tribunal and any guardian or administrator who may be appointed by the Tribunal.
79. [79]
    Separate reasons will be provided in respect to the reasons for the making of this order.

Application for Miscellaneous Matters by DB dated 19 May 2022

80. [80]
    The reasons for seeking this order are set out in Part C Paragraph 1 of the application in the following terms –

The adult’s wishes to be respected regarding his place of abode. Our relationship is to be respected, and hjs EPOA’s to stop creating vexatious complaints to police and other community members against myself and my family about stealing from the adult. For them to refrain from telling the adult that my home is unsafe for him to live in. He considers my home his home.

81. [81]
    The need for an order in relation to a place of abode is no longer necessary. At the time of the hearing, the Adult was residing with DB. The Public Guardian has now been appointed as guardian for accommodation matters.
82. [82]
    As set out above, a part of the order sought is that the attorneys ‘stop creating vexatious complaints to police and community members”. I am satisfied that the action taken by the attorneys in reporting missing moneys as potentially stolen monies to the police was not vexatious.
83. [83]
    Accordingly, this application has been dismissed.

Application for Miscellaneous Matters by DB dated 19 May 2022 in relation to the existing enduring power of attorney

84. [84]
    In Part M of the application, the box is ticked which reads, ‘the document has been incorrectly executed in some other way’.
85. [85]
    The text in support then reads –

They do not respect his wishes. They put him into nursing home where he doesn't want or have to be. They helped his health deteriorate to such a level that he threatens suicide, complains of chest pain & breathlessness. Don’t inform family. Restrict access to him. Prevented his access to health specialists.

86. [86]
    In response to the question ‘What order would you like the Tribunal to make?’ two boxes are ticked – firstly, ‘Change the terms of a power of attorney, enduring power of attorney…’, and secondly, ‘revoke all or part of an enduring document’.
87. [87]
    No information is provided in relation to the manner in which the enduring power of attorney was signed (ie executed). The wording in support appears to be misconceived. The continued operation of the enduring power of attorney is a matter which has been considered as part of the applications made for the appointment of a guardian and for the appointment of an administrator.
88. [88]
    In the circumstances, there is no need for an order to be made in relation to this part of the application for miscellaneous matters and the application has been dismissed.

Application for Miscellaneous Matters by the attorneys dated 6 September 2022

89. [89]
    The orders sought by the attorneys are –

A Direction/Order that articulates more specifically the decision-making authority of the lawfully appointed attorneys validated in February 2022, such as expressed in the Interim Order of 3 December 2021:

1. (1)
   The attorneys appointed by [the Adult] in the Enduring Power of Attorney dated 16 March 2001 are the sole legal authority for decisions requiring to be made regarding [the Adult’s] personal, health or financial matters.
2. (2)
   Any act or omission that seeks to obstruct, hinder or prevent the attorneys exercise of their authority regarding such matters shall be deemed to be in breach of the Tribunal’s Decision.

90. [90]
    In the circumstances, I believe that there is no need for any order or direction of the type sought. In relation to personal and health matters, these are now the responsibility of the Public Guardian under the order made. In relation to financial matters, these are clearly the responsibility of the attorneys.
91. [91]
    Their role is quite clear. If the attorneys believe that a party has committed an offence under the Queensland Civil and Administrative Tribunal Act 2009 [see Chapter 5 – General – Offences and Contempt], then it is open for the parties to refer that matter to the Tribunal with appropriate supporting details.
92. [92]
    In these circumstances, the application has been dismissed.

Achieving Outcomes other than through QCAT Orders

93. [93]
    There have been numerous applications to the Tribunal born out of the conflict between the attorneys and the Other Family Members, each side having their own views about what is in the best interests of the Adult.
94. [94]
    Sections 41 and 42 of the GAA include provisions dealing with disputes about health matters and matters which are other than health matters. These sections are of not direct application to the current disputes. However, the sections clearly support that in situations of disputes the relevant parties should pursue outcomes through mediation in the first place.
95. [95]
    The letter from Connolly Suthers dated 15 August 2022 proposes mediation on behalf of the attorneys. The proposal was not taken up by the Applicant or DB – confirmed at the hearing. It is hoped and expected that the appointment of the Public Guardian as guardian will go a long way towards a substantial reduction in the conflict and disputes between the parties. However if there are disputes going into the future, then mediation as a dispute resolution mechanism is strongly recommended.

Human Rights Act 2019 (Qld) [HRA]

96. [96]
    The Tribunal as a ‘public entity’ is required to observe the provisions of the HRA. I note in particular the following provisions –

    1. (a)
       s 4(b) requiring a public entity “to act and make decisions in a way compatible with human rights”;
    2. (b)
       s 4(f) requiring the Tribunal “to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights”;
    3. (c)
       s 8 providing that “a decision is compatible with human rights if the decision –

       1. does not limit a human right; or
       2. limits a human right only to the extent that is reasonable and demonstrably justified in accordance with s 13.”
    4. (d)
       s 13 providing that a “human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”. s. 13(2) then goes on to set out relevant factors to be taken into account.
    5. (e)
       Division 2 sets out civil and political rights and, in particular, relevant to the current process are s 24 (Property Rights), s 31 (Fair Hearing) and s 37 (Right to Health Services).
97. [97]
    Section 5(d) and s 5(e) of the GAA are complementary to the above.
98. [98]
    In leaving the decision for financial matters with the attorneys under the 2001 enduring power of attorney, the Tribunal has adopted the least restrictive approach. In the opinion of the Tribunal, the attorneys are providing “adequate and appropriate support for decision making” for financial matters.
99. [99]
    In appointing a guardian for the Adult for specified matters, the Tribunal has done so in what it believes is in the best interests of the Adult in the context of firstly, the adverse effect of conflict on the Adult and secondly, the direct adverse effect on the Adult’s healthcare that has arisen as a result of the conflict.
100. [100]
     Therefore the Tribunal has given proper consideration to human rights in accordance with the HRA, consideration of the relevant circumstances, and to consideration of the evidence, in making the orders in respect to the Adult which are set out below. To the extent that the human rights of the Adult have been limited by the Tribunal, the Tribunal believes that such limitation is reasonable and justifiable, and as such, the Tribunal has met the requirements of the HRA “to act and make decisions in a way that is compatible with human rights”.

Orders

101. [101]
     The above reasons constitute the reasons for the orders made in this matter which are recorded and set out below –

GUARDIANSHIP

1. The Public Guardian is appointed as guardian for [the Adult] for the following personal matters:

(a) Accommodation;

(b) with whom [the Adult] has contact and/or visits;

(c) Health care; and

(d) provision of services.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

ADMINISTRATION

3. The Application by [DC] for the appointment of an administrator for [the Adult] is dismissed.

ENDURING POWER OF ATTORNEY

4. The following Enduring Power of Attorney for [the Adult] is overtaken by the making of this appointment and, in accordance with s 22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made:

1. (a)
   The Enduring Power of Attorney dated 16 March 2001 appointment [TC] and [PC] as attorneys for financial, personal and health matters.

CONFIDENTIALITY ORDER

5. Pursuant to s 109 & s 110 of the Guardianship and Administration Act 2000 (QLD), unless otherwise ordered by the Tribunal, the following documents and parts of documents are confidential and are withheld from all persons other than the attorneys for [the Adult], any guardian or administrator who may be appointed by the Tribunal and the Tribunal:

(a) H105

(b) Part C & Part K of H104.

DIRECTIONS

6. The Tribunal directs [TC] and [PC] to provide to the Tribunal within 90 days a statement of the assets and liabilities of [the Adult].

MISCELLANEOUS MATTERS

7. The following applications for miscellaneous orders are dismissed:

1. (a)
   Application by DB [GAA5232-22) including an application for an order regarding a Power of Attorney (Part M); and
2. (b)
   Application by [PC] and [TC] (GAA9419-22).”