B (Review Enduring Powers) (Guardianship)
[2006] TASGAB 7
•16 June 2006
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
B, on the application of S
Neutral Citation: B (Review Enduring Powers) (Guardianship) [2006] TASGAB 7
REASONS FOR DECISION
Anita Smith (Chair)
Marguerite Lester (Board member)
Pat King (Board member)
Date of Hearing: 16 June 2006
Guardianship – emergency guardianship application – application for appointment of a guardian and administrator – need for a guardian – capacity to make reasonable judgments
Enduring powers of attorney – elderly person giving multiple persons access to her accounts – vulnerable to financial abuse – capacity to make reasonable decisions – wishes of the person
Guardianship and Administration Act 1995 - ss. 6, 20, 54, 65
Power of Attorney Act 2000 – ss. 32(3), 33
[Reviewed and upheld by the Supreme Court in KB and RB v The Guardianship and Administration Board [2007] TASSC 45]
B is a 77 year old woman who was born overseas and migrated to Australia in 1960 to marry C. She has lived in Launceston since 1960, was widowed in 1984 and has no children. B is the subject of two applications, one for the appointment of a guardian under Part 4 of the Guardianship and Administration Act 1995 and one for review of an enduring power of attorney pursuant to the Powers of Attorney Act 2000. The applications were heard together.
Proceedings before the hearing on 16 June 2006
On 3 February 2006 a solicitor, Mr Andrew Bennett, wrote expressing concerns that B was attempting to revoke an enduring power of attorney appointing S and that such revocation did not appear to be in her best interests and may be attended by a loss of capacity to make that decision or provide competent instructions to him as her solicitor.
On 10 February 2006 the Office of the Public Guardian made an application pursuant to section 65 of the Act for appointment as guardian under an emergency order. The Board did not proceed with that application because there was an existing appointment of an enduring guardianship executed 25 October 2005, appointing S and JB as an alternative guardian.
Initial searches by the Board also revealed the enduring power of attorney appointing S executed by B in 1995 (PAxxxxxx).
The Board then received a series of letters, emails and telephone calls from S, JB, Mrs H-C (a friend with whom she was living at the time), Ms KB (B’s late husband’s great-niece in the UK), Dr Jan Radford (G.P.), Dr George Razay, (Physician) and the Office of the Public Guardian all expressing divergent views about the welfare and safety of B and/or the suitability of S and JB continuing as B’s enduring guardian. As a result, the President of the Board made an emergency order on 14 February 2006 substituting the Public Guardian for the enduring guardians with certain directions. Three members of the Board convened a meeting on 24 February 2006 to assist the parties to find a resolution.
The Public Guardian made this application for the ongoing appointment of a guardian on 23 February 2006.
At the meeting on 24 February 2006 attended by Mr and Mrs S, MB and JB, Mrs H-C, Ms EC (her daughter), an interpreter, a local politician (as observer invited by Mrs H-C), Ms Kylie Hillier from the Office of the Public Guardian and B. The parties at the meeting agreed to waive notice periods and convene the meeting as a hearing. The result of that hearing was recorded in an order as follows:
“UPON the application to the Board by S of Launceston in relation to her appointment as Enduring Guardian by B of Launceston (hereafter “the represented person”) by an instrument of appointment dated 18 October 2005 (hereafter “the instrument”)
NOTING that all interested parties waived the right to 10 days notice of the hearing, AND noting the wishes of the represented person to revoke the instrument,
AND upon the Board being satisfied that the guardian, S, and the alternative guardian, JB of Launceston seek the revocation of the instrument pursuant to section 34(1)(a) of the Act
THE BOARD ORDERS
That the appointment of S and JB as the enduring guardians of B be revoked.”
The Board then heard submissions and on the basis of these submissions appointed the Public Guardian on the same date pursuant to a new emergency guardianship order to make decisions limited to accommodation and health care.
On 27 February 2006, following a second search of the Registry of Deeds, the Board made an emergency administration order appointing the Public Trustee as administrator pursuant to section 65(4)(c) of the Guardianship and Administration Act thereby suspending the operation of the following instruments: Enduring Power of Attorney Registered No. XX/XXXX (which had been assigned to the Public Trustee pursuant to section 32(3) of the Powers of Attorney Act 2000 on 24 February 2006), Revocation of Enduring Power of Attorney Registered No. XX/XXXX dated 16 February 2006, Revocation of Enduring Power of Attorney Registered No. XX/XXXX dated 21 February 2006, Enduring Power of Attorney Registered No. XX/XXXX dated 21 February 2006. (Dates herein refer to date of registration rather than dates of execution.)
10.On 3 March 2006 the Board received an application from S for a review of the enduring power of attorney, such application related to each of the instruments listed above.
11.The emergency guardianship order was renewed on 24 March 2006 and the emergency administration order was renewed on 27 March 2006. The matter was set for hearing on 11 April 2006 and 19 May 2006 but was adjourned on the first occasion to obtain a report regarding B’s capacity from [B’s language] speaking Dr K, and on the second occasion for a report from [B’s language] speaking doctor, M, at the request of Mr Mackie, solicitor for B, KB and RB (B’s late husband’s great-nephew). The emergency orders expired before the hearing, but Mr Mackie gave an undertaking on behalf of his clients that the estate would remain under the management of the Public Trustee until the Board determined the applications. The Public Trustee continued to manage the funds pursuant to the assigned power, PA XX/XXXX until the date of the hearing.
12.The same members of the Board who constituted the Division of the Board for proceedings on 24 February 2006 also constituted the Division of the Board for the later hearing on 19 June 2006.
The Guardianship Application:
13.At the commencement of the hearing on 19 June 2006, the Public Guardian explained to the Board that at the time of making the emergency orders, B was living away from her own home. However she had since returned home and in the period following the expiry of the emergency orders, B was reportedly living in her own home with support and that ‘everything was going well’. Therefore the Board determined at the commencement of the hearing that unless other serious guardianship issues arose from the discussion of the application relating to the instruments of appointment or revocation of a power of attorney, the guardianship application would be likely to fail for lack of a demonstrated ‘need’ as required by section 20(1)(c) of the Act and that the issues of financial management had priority in the hearing.
History of B’s Financial Management:
The following history is derived from documents supplied to the Board. For an outline of these documents, see Appendix “A” attached to this decision.
15.Mr B had built two homes at [address] before B arrived in 1960. She still owns and resides at [address]. Given the now substantial size of her estate and the diversity of investments it is clear that, as a couple, they worked hard and invested wisely. In 1995 B appointed S, whose family she had been close to since arrival in 1960, as attorney under an enduring power of attorney (PAxxxxx). In 2002, after experiencing difficulties with tenants, B decided to sell [address]. S undertook that transaction on B’s behalf.
16.In October 2005 B was hospitalised for salmonella poisoning and bronchopneumonia. Launceston General Hospital notes record that a woman called ‘Sam’ claimed to have her power of attorney, which she asserted gave her authority to make medical decisions for B, and was able to produce a document dated 6 May 2003 that ‘proved’ this. ‘Sam’ appears to be EC. That document has not been seen by the Board and was not registered.
17.After contacting B’s then solicitor, Colin Foon, and being advised that ‘Sam’ had no authority to make medical decisions on B’s behalf, the hospital staff contacted S. As a result of the uncertainty regarding authority for medical decisions, the enduring guardianship was executed on 18 October 2005 appointing S and JB. It was also around this time or soon after that allegations of stealing of various but substantial sums of money from B appear to have arisen against S. Such allegations appear to have primarily been promoted by Mrs H-C, Ms EC’s mother.
18.On 31 January 2006 B was discharged from hospital and went to live with Mrs H-C, who she has known since 1975. Three days later, she executed a revocation of the enduring power of attorney appointing S (Revocation - PAxxxxx). On 8 February 2006 she executed a new enduring power of attorney appointing Ms KB, a lawyer and her late husband’s great-niece who lives in the United Kingdom (PAxxxxx). This instrument was registered on 21 February 2006.
19.Inexplicably, on 15 February 2006, B executed a second revocation of the first enduring power of attorney appointing S (PAxxxxx). Though executed later, this revocation also appears to have been registered earlier than the first revocation, on 16 February 2006. The reason for this is unknown.
20.On 18 February 2006, B signed a tenancy agreement allowing Ms E C to reside at [address] as a tenant. The Public Trustee’s report aptly describes this tenancy agreement as ‘draconian’ because its terms include:
· Rental set at $5.00 per week
· B bearing responsibility for payment of all services such as electricity, water and telephone as well as all breakages of chattels and repairs however occasioned
· Allows the tenant to determine whether any other person should reside in the property and for what period
· Provides for unlimited subtenancy arrangements
· Allows a tenant to store dangerous goods on the premises even if it invalidates an insurance policy
· Requires that, should the tenancy be terminated for any reason, compensation should be paid to the tenant to a maximum sum of $31,200.00
21.On 20 February 2006, $1000.00 was withdrawn from B’s account.
22.On 24 February 2006, assuming the instrument to still be valid and effective, S assigned the enduring power of attorney (PAxxxxxx) to the Public Trustee pursuant to section 32(3) of the Powers of Attorney Act 2000.
23.On 27 February 2006, the same day as the Board made the emergency administration order, B signed an authority to enable Mrs H-C and Ms B to withdraw money from her Commonwealth Bank Account. On that date $3450.00 was withdrawn from that account. The Board received evidence from Mrs H-C at the hearing that this amount plus the $1000.00 withdrawn on 20 February 2006 was applied towards household accounts for B.
24.On 11 March 2006 Mr RB, an engineer, brother of Ms B and B’s late husband’s great-nephew arrived in Australia from the United Kingdom. This was the first time B had seen him since he was ten years old. He is now 45 years old. It would seem that prior to these proceedings she has met Mr B and his sister in person twice in their entire lives, both times on brief holidays. Apparently there has also been correspondence and telephone contact. Regardless of the limited relationship, on 14 March, 3 days after meeting him, B executed an authority for Mr B to also operate her bank account.
25.On 6 March 2006, knowing the administration order to be in place but without notice to the Public Trustee, a new bank account was opened for B with assistance from Mrs H-C. The same day Centrelink was advised by her to direct B’s pension to that new account.
26.At the time of the hearing the following people had been nominated under various instruments to have the ability to withdraw funds from her accounts:
·Ms KB
·Mrs H-C
·Mr RB
·The Public Trustee (via the enduring power of attorney assigned by S)
It appears that Mrs H-C manages B’s day-to-day finances and continued to undertake significant financial decisions on her behalf even after she was aware of the authority of the Public Trustee.
27.Evidence given by RB confirmed that since his arrival in Tasmania, he had lived at B’s house. He stated that he had come for the specific purpose of helping his great aunt. He described this help as:
“... keep her company and to deal with phone calls as they arise. To help out with cooking, maybe, and some cleaning but there’s not [much] to be done there.”
He had met expenses for her lawyer, but had not paid towards any of the expenses of the household because he regarded himself as a guest in her house. He has no source of income in Australia, receives money from his sister in the United Kingdom and indicated that he intends to stay at least until his visa expires in March 2007. He stated that he would pay rent or board “if required” but appeared to be surprised by the suggestion.
Evidence Related to the Question of Capacity
28.The question of whether B had the requisite capacity to execute the revocations and the enduring power of attorney appointing KB and whether she is presently incapable by reason of disability of making reasonable financial judgments arise from the operation of section 33 of the Powers of Attorney Act 2000 and section 51 of the Guardianship and Administration Act 1995. Legislation relevant to the applications is appended at Appendix “B” to this decision.
29.The Board had the following medical opinions: A letter from Dr Razay, General Physician and Senior Lecturer in Geriatric Medicine, to Dr Radford, G.P., dated 25 August 2005 concludes that B has dementia, possible Alzheimer’s type, and discusses a deterioration in her memory in the past 2 years. He follows up this opinion in a letter dated 15 December 2005 showing some improvement in memory and her testing on immediate recall had improved from 18/30 to 21/30.
30.A letter from Dr Radford dated February 2006 states:
“I have cared for B for nearly 2 decades and in that time have watched as her cognitive abilities have declined to the stage of the present. She has grown more demented over the past few years with paranoia often as a feature. She has been reviewed by Dr Razay, our local memory disorders expert, and he agrees with me that B has significant dementia. I believe her condition is such that she cannot make important decisions about her own care. Her ability to manage her finances is included in this statement.”
31.On 29 March 2006, the Board faxed to Dr Radford a series of questions referable to the tests in section 30 of the Powers of Attorney Act 2000 seeking her opinion, those questions and her answers (underlined and in parentheses) provided on 5 April 2006 were as follows:
“In your opinion as at February 2006:
1. Did B have the ability to appreciate the nature and extent of her property? (No)
2. Could B have understood that she could have specified or limited the powers given to her attorney or given her particular instructions as to its operation? (No)
3. Could B have understood that, as a result of executing that document, her attorney would have full control over her property (e.g. sell real estate, pay Cs, open and close bank accounts) in the event that she loses capacity? (No)
4. Could B have understood that, with capacity, she could vary or oversee the use of the power or revoke the power? (No)
5. Could B have understood that the power she gave her attorney would continue once she lost capacity and that she would not be able to oversee or supervise the power at that stage? (No)”
32.Pursuant to a direction in the emergency order appointing the Public Guardian, the guardian obtained an assessment by Dr Emma Jane McCrum, Doctor of Psychology, clinical neuropsychology, in March and April 2006. She administered a test known as the Rowlands Universal Dementia Assessment Scale (RUDAS), which is a screening tool for dementia designed to minimise the impact of culture and education. On the basis of that and other assessments, Dr McCrum concluded that a diagnosis of dementia was feasible. She also concluded:
“The cognitive profile indicates it is likely that B will be unable to adequately consider major life decisions, i.e. evaluate the positive and negatives and analyse future consequences. A definite diagnosis of dementia can only be given on autopsy; however, loss of skill gives an indication of dementia when no medical cause can be found. These results do suggest a loss of skills, there is no medical cause noted in medical notes thus a diagnosis of dementia would be reasonable however it is difficult to differentiate between a diagnosis of the Alzheimer’s type (DAT) or Frontal lobe dementia.”
33.Because it had been suggested that B had made a substantial improvement after ceasing a particular medication, Dr McCrum re-assessed B on or about 1 June 2006 but reported to the Public Guardian that on that date she had found no reason to change her opinion.
34.Despite an adjournment being granted to obtain such a report, no report by Dr K was submitted to the Board.
35.On 8 June 2006, Associate Professor M reported via the Board’s standard Health Care Professional Report and a supplementary written report. Assoc. Prof. M is a consultant psychiatrist and a consultant in pain medicine. He concluded that B is not a person with a disability, but experiences a normal loss of memory function consistent with her age, a condition he called ‘benign senescent forgetfulness’. In the standard questions in the Health Care Professional Report, Assoc. Prof. M reported that B could operate a bank account, pay Bills and budget ‘with assistance’.
36.Assoc. Prof. M and Dr McCrum commented on each other’s reports noting deficits in the other’s opinions, such comments were surprisingly defensive.
37.Mr Mackie submitted to the Board that, although Assoc. Prof. M’s opinion deviated significantly from all other opinions before the Board, the Board should prefer his opinion for two key reasons. Firstly, that he spoke directly to B in [B’s language] and, secondly, that he was more highly specialised than other practitioners who had provided reports.
38.With respect to the first distinction, there has been no explanation provided to the Board as to why, if as asserted there has been no cognitive decline, a person who has conducted 40 years worth of friendships and financial transactions in English is now reliant upon a [B’s language] interpreter or a [B’s language] speaker to effectively participate in medical appointments and the hearings of the Board.
39.A series of written statements or ‘references’ by neighbours and friends was supplied to the Board. Mr N gave evidence to the hearing, consistent with those ‘references’ to the effect that he believes she operates at a normal level. Because the question of capacity is essentially a legal question which relies upon medical evidence, the Board did not place any particular weight upon those statements by lay witnesses.
Findings Related to the Question of Capacity
40.For the purposes of section 33 of the Powers of Attorney Act 2000 the Board determined that B did not have capacity to understand the nature and effect of the instruments executed by her since at least January 2006.
41.The Board is satisfied for the purposes of section 51(1)(a) of the Guardianship and Administration Act 1995 that B is a person with a disability.
42.The Board was satisfied that B has deficits in memory and comprehension, which exist over and above her cultural and language issues. She experiences a loss of memory and cannot undertake her financial activities in a normal manner, nor can she competently supervise other persons who might assist her to do that.
43.The Board accepts that Professor M is eminently qualified and may well have made an accurate assessment of B’s capacity on that day for all the questions that he asked her in a single appointment. However Doctors Radford and Razay made their assessments over significantly longer periods of time and with the opportunity to account for fluctuations in capacity over time.
44.Doctor McCrum made her assessments over time and using a technique (RUDAS) that minimises the effect of cultural barriers. She undertook a follow-up assessment but did not deviate from her original finding.
45.The Board is satisfied that, given that Drs Radford and Razay knew B for significant periods at or before the time of executing the relevant instruments related to the powers of attorney, their opinions have the most evidentiary weight for the purposes of section 33 of the Powers of Attorney Act 2000. Accordingly the Board prefers their opinions to Assoc. Prof. M’s. Their opinions are complemented by the assessments and report by Dr McCrum.
46.In relation to the enduring power of attorney that B signed on the 8th of February appointing Ms B as attorney (PAxxxxx), the Board is not satisfied that she met the test for capacity for the execution of that document, nor did she understand the nature and effect of either of the revocations (PAxxxxx and PAxxxxx) executed around that time.
47.In making its finding about capacity for the purposes of section 51 of the Guardianship and Administration Act 1995, the Board also took into account B’s behaviour in the hearing. Questions asked of B elicited answers or responses that were not relevant or not appropriate to the question. For instance when asked where her gold bullion was presently held, she answered “Social Security?” When asked whether she had any investments, she said “Money in the bank”. Neither answer was correct.
48.While there may be explanations for her inaccuracy, she clearly had only a limited understanding of who was managing her cash and investments and where they were. More importantly, she also did not show a proportionate degree of concern about the fact that she did not know who was managing her assets and where they were. This seems inconsistent given the recent allegations promoted by Mrs H-C that S, who previously managed all assets for her, has stolen tens of thousands of dollars from her. It also seems inconsistent with assertions by Mrs H-C about the level of distress that B has experienced as a result of that alleged stealing.
49.That lack of distress was consistent with B’s inappropriate emotional responses to the proceedings. She remained reasonably passive in the proceedings, and did not display a great deal of concern about the fact that some people in the hearing who were practically strangers had greater knowledge of her financial situation than she did. She tended to look to others for cues on answers to questions put directly to her. If others did not give cues, she would often become confused.
50.For the purposes of the test of capacity in section 51(1)(b) of the Guardianship and Administration Act 1995 the Board takes into account the same medical opinions and the above observations of B’s behaviour in the hearing and concludes that by reason of a disability, B is not capable of making reasonable judgments with respect of matters relating to her estate.
The Question of Need for an Administrator
51.In respect of the issue of whether B is in a need of an administrator, the Board is satisfied that she is. No doubt B is an inherently very generous person, but the Board is not satisfied that that explains why she entered into an oppressive tenancy agreement. An administrator acting in her best interest would need to investigate the validity and feasibility of that agreement and also whether it is in the best interests of the estate to have tenants, Mr B and any person sublet under Ms C’s agreement, living there rent-free.
52.Further, in a variety of documents and in a number of different ways B has recently given financial authority to at least three individuals, possibly four, and for the purposes of accountability there needs to be a single source of authority. It is a complex estate, most particularly because of an outstanding allegation of stealing. Given that the various accusations involve substantial sums of money, there will need to be an impartial person who can research the relevant records and provide assistance to the police.
53.The Board is concerned that the skill and memory deficits that B experiences and the numbers of people with authority to access her accounts leave her significant estate vulnerable to financial abuse or exploitation.
54.The Public Trustee has received claims for re-imbursement from B’s estate compiled by Mrs H-C. These amount to $10,029.25. On the Public Trustee’s analysis of the documents provided in support of these claims by Mrs H-C, the amount actually owed is $5434.50. Mrs H-C told the Board that she is an economist ‘by trade’, but could not account for the discrepancy at the hearing.
55.Day-to-day management of the estate will include payment of household expenses, protection of the assets from persons who might seek to exploit B and making decisions on maturing investments.
56.Representatives from The Public Trustee made submissions about the preference for appointment as an administrator over appointment and directions under an assigned enduring power of attorney. These included the need for clear authority in any period of ‘fluctuating’ capacity and having agreed periods for reporting and review. The Board accepted these submissions and considered the appointment of an administrator to be appropriate as opposed to giving directions under the pre-existing power of attorney (PA xxxxx), which had been assigned to the Public Trustee.
Appropriateness of an Administrator
57.The Board acknowledged that B wished to appoint RB under yet another proposed power of attorney. Given that the Board has found that she lacks the requisite capacity to execute a new instrument, the Board considered the alternative proposal of appointing RB as administrator. This reflects the wishes expressed by B a number of times during the hearing.
58.For the purposes of section 54(1)(d)(ii) of the Act, the Board considered RB is unsuitable as a potential administrator because he is a non-paying tenant in her home and therefore has a pecuniary interest in the management of her estate. Such an interest presents a conflict of interests for a potential administrator. Further, his stay in Australia is presently limited to a one-year Visa and although there may be means for extension, this poses some difficulties for the consideration of a three-year appointment.
59.The Public Trustee is a qualified administrator pursuant to section 54(1)(a) of the Act.
60.Taking into account her expressed wishes, the Board believes that the appointment of the Public Trustee as administrator is well and truly in her best interests and is in the circumstances the least restrictive alternative for her freedom of decision and action.
SUMMARY OF ORDERS AND DECISIONS:
A. Guardianship Application:
After hearing an application by the Public Guardian in respect of B [address] the Board was not satisfied that B was in need of a guardian.
THE BOARD ORDERS that the application is dismissed.
B. Application Regarding Enduring Powers of Attorney
After hearing an application by S in relation to an Enduring Power of Attorney (70/2496) dated 10th November 1995 (hereinafter ‘the 1st power’) made by B (hereinafter ‘the donor’) appointing S as her attorney and in relation to an Enduring Power of Attorney (PA xxxxx) dated 8th February 2006 (hereinafter ‘the 2nd power’) made by the donor appointing KB as her attorney the Board was satisfied that the 2nd power does not comply with s30(2)(a) of the Powers of Attorney Act 2000 (hereinafter ‘the Act’) in that the donor did not understand the nature and effect of the documentation
THE BOARD DECLARES that pursuant to s33(2)(e)(i) of the Act the 2nd power is invalid, and THE BOARD ALSO DECLARES that pursuant to section 30(3)(d) and section 33(2)(g) that the instrument (PA xxxxx) registered 16th February 2006 and the instrument (PA xxxxx) registered 21st February 2006 revoking the 1st power are invalid.
AND further pursuant to section 33(2)(g) the Board is satisfied that the 1st power is a valid instrument.
AND further the Board is satisfied (i) that it is not in the donor’s best interests for the 1st power to continue, and (ii) that the donor is unable to make reasonable judgements in respect of her estate and is in need of an administrator
THE BOARD ORDERS
- That the 1st power is revoked from the date of this order.
- That The Public Trustee be appointed as administrator of the estate of the donor.
- That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
- That pursuant to S.80 of the Guardianship and Administration Act 1995 the administrator is authorised to pay the agreed reasonable costs of legal representation for the donor, RB and KB from her estate and in the event that there is no agreement that the costs be taxed by a person nominated by the Registrar of the Supreme Court.
- That the order remains in effect until 15 June 2009.
Anita Smith
PRESIDENT
[This decision was upheld by the Supreme Court of Tasmania in K B and R B v The Guardianship & Administration Board [2007] TASSC 45]
Appendix “A”
The Board was supplied with the following documents for deliberation in the hearing on 16 June 2006. Some other documents relevant to the proceedings prior to the hearing (see paragraph 2 – 12 above) were available in the Board’s file, but not referred to by Division members in the hearing on 16 June 2006:
Applications:
- Request for Emergency Order dated 23 March 2006
- Application for Guardianship completed 23 February 2006
- Application in Relation to an Enduring Power of Attorney dated 2 March 2006
Instruments and Orders:
- Land Data Registration Branch results of search dated 10 October 2005 (10 pages including 1995 EPA)
- Summary of Land Data Registration Branch Search dated 23 February 2006
- Assignment of EPA by S to Public Trustee dated 24 February 2006
- Enduring Power of Attorney executed by B appointing K B
- Revocation of EPA executed by B dated 3 February 2006
- Revocation of EPA executed by B dated 15 February 2006
- Residential Tenancy Agreement dated 18 February 2006
- Emergency Guardianship Order dated 24 February 2006
- Emergency Guardianship Order dated 24 March 2006
Medical Reports and Information:
- Launceston General Hospital nursing notes 7 October 2005 to 12 October 2005
- Dr Razay to Dr Radford dated 25 August 2005
- Dr Razay to Dr Radford dated 15 December 2005
- Dr Radford dated (?) February 2006
- Letter from GAB to Dr Radford dated 29 March 2006 with her answers noted on it dated 5 April 2006
- Assoc Prof G. M dated 16 May 2006
- Assoc Prof G. M dated 8 June 2006
- Mini Mental result by Assoc Prof G. M
- Assoc Prof G. M dated 14 June 2006
- Health Care Professional Report (specific to Enduring Powers of Attorney) by Assoc Prof G. M dated 8 June 2006
- Health Care Professional Report by Assoc Prof G. M dated 8 June 2006
- Dr Emma Jane McCrum dated 29 April 2006
- Dr Emma Jane McCrum dated 15 June 2006
Other Reports:
- Public Guardian dated 9 February 2006 (Email)
- Public Guardian dated 23 February 2006
- Public Guardian dated 13 May 2006
- Public Guardian dated 1 June 2006 (Email)
- Public Guardian dated 12 June 2006
- GAB Investigation and Liaison Officer dated 23 February 2006
- GAB Investigation and Liaison Officer dated 13 June 2006
- GAB Investigation and Liaison Officer dated 15 June 2006 (Supplementary Report)
- Letter from Public Trustee dated 10 March 2006
- Public Trustee dated 6 April 2006
- Reply from GAB to Public Trustee dated 6 April 2006
- Public Trustee dated 11 May 2006
- Public Trustee dated 13 June 2006 (including bank statements, signed authorities and reconciliation statements)
- Home Visit Report by ACAT/Community Dementia Team on 16 February 2006
Statements:
- [Deleted]
Appendix “B”
Provisions of the Guardianship and Administration Act 1995:
Section 3 Interpretation:
"disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;
Section 6 Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Section 20 Guardianship order
If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian –the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person. …
Section 51 Administration orders
If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made –
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate –
the Board may make an order appointing an administrator of that person's estate.
In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(5) …
The Board may exercise its powers under this section on an application under Part 4 of Powers of Attorney 2000.
Section 54 Persons eligible as administrators
The Board may appoint as an administrator of the estate of a proposed represented person –
(a) The Public Trustee; or
…
(d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –(i) the person will act in the best interests of the proposed represented person; and
(ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii) the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
(iv) the person has sufficient expertise to administer the estate.
In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –
(a) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.
Section 65 Emergency orders
Where the Board considers it proper to do so by reason of urgency, the Board may in respect of a represented person make any order or give any direction considered appropriate in the circumstances.
Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
(a) the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
(c) the Board may make an administration order in respect of the estate of a person who is the donor of an enduring power of attorney in force under Part 4 of the Powers of Attorney Act 2000, if he or she is of or over the age of 18 years.
An order under this section –
(a) remains in effect for such period as the Board determines but not exceeding 28 days; and
(b) may be renewed but only once for a further period not exceeding 28 days.
Section 80 Costs and expenses
Where the Board is of opinion in a particular case that there are circumstances which justify it in doing so, the Board may make such orders as to costs and expenses as the Board thinks just.
Provisions of Part 4 of the Powers of Attorney Act 2000:
Section 30 Creation and effect of enduring powers of attorney
(1) …
A deed or instrument is not effective to create an enduring power of attorney unless –
(a) the donor understands the nature and effect of the deed or instrument; and
(b)…
(c) …For the purposes of subsection (2)(a), a donor is taken to understand the nature and effect of a deed or instrument only if he or she understands the following matters:
(a) that the donor may, in the enduring 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) that, 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) that the donor may revoke the enduring power of attorney at any time when he or she has the mental capacity to do so;
(e) that the power the donor has given continues even if the donor subsequently loses his or her mental capacity;
(f) that the donor is unable to oversee the use of the power if he or she subsequently loses mental capacity.
(4) …
Section 32 Duties of attorney under enduring power of attorney
32. (1) …
(2)…
Unless a contrary intention appears in an enduring power of attorney, an attorney may, by instrument in writing, appoint the Public Trustee to act as attorney in his or her place.
Section 33 Power of Board to make orders in respect of enduring power of attorney
The Board may –
(a)…
(b) on application by an attorney; or
(c) …
(d) …hold a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995 to review an enduring power of attorney.
On the review, the Board may, by order –
(a) vary a term of, or a power conferred by, the enduring power of attorney; or
(b) appoint a substitute attorney; or(c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or
(d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney; or
(e) declare that the enduring power of attorney is invalid if the Board is satisfied that –
(i) the donor did not have the mental capacity to make it; or
(ii) …
(iii) …
(f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate; or
(g) make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.
An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995.
(4) …
(5) …
(6) …
(7) …
(8) …
Section 35 Advice or directions as to enduring power of attorney
An attorney under an enduring power of attorney may apply for advice or direction by the Board on any matter relating to the scope of his or her appointment as such or the exercise of any power by the attorney under the enduring power of attorney.
(2) ...
(3) …
The Board may –
(a) approve or disapprove of any act proposed to be done by the attorney; and
(b) give such advice or direction as it considers appropriate; and(c) vary the effect of the enduring power of attorney or make any other order that it could have made on an application under section 33.
The Board of its own motion may direct, or offer advice to, an attorney in respect of any matter arising under the power of attorney.
(6) …
(7) …
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