BDX – Advice and direction to an enduring guardian
[2015] TASGAB 6
•20 April 2015
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BDX – Advice and direction to an enduring guardian
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 20 April 2015
Enduring guardianship – enduring guardians seeking revocation – elements required to satisfy section 34(1) of the Act – proceeding by advice and direction where family in agreement – effect of family conflict on the role of a guardian
Guardianship and Administration Act 1995 s. 11, 34, 35
Holt v Protective Commissioner 1993 31 NSWLR 227
On 4 April 2015 KSL applied for a review of an instrument appointing enduring guardians registered number XXXXX executed by BDX (the appointor). The guardians are KSL and ED who, at the time of execution of the instrument, shared an address with the appointor.
The grounds for review of the instrument are that the enduring guardians seek revocation of the instrument. The guardians also seek the appointment of the Public Guardian as a substitute guardian.
The instrument appears to be validly executed on its face. The conditions of appointment contain relatively standard end-of-life instructions. The third condition requires the guardians to consult with the appointor’s friend, DX on any important health and welfare decisions.
According to the application, the appointor has two children, the applicant and UL. The application notes a very high degree of family conflict between the applicant and UL and this has prompted the guardians to seek removal from the role.
Section 34 of the Guardianship and Administration Act 1995 (the Act) states:
“34. Revocation or amendment of appointment by Board
(1) The Board may, on an application under this section and after a hearing, revoke or amend the instrument of appointment of an enduring guardian if – (a) the enduring guardian seeks revocation of the appointment; …”
It is my view that to satisfy the Board to grant an application under section 34(1), all an applicant need do is (i) provide proof that the guardians seek revocation of the appointment, (ii) provide proof that the appointor is not in a position to revoke or amend her appointment independently of the Board and (iii) prove that the alteration will not be contrary to the apppointor’s best interests, or alternatively that revocation is in the appointor’s best interests.
The Board is entitled to proceed “according to equity and good conscience without regard to technicalities or legal forms” (section 11(2) of the Act). In these circumstances, noting there is general agreement between the parties as to the outcome of this matter, the Board will treat KSL application as an application by an enduring guardian for advice and direction pursuant to section 35 of the Act. I am satisfied that there is no need for a hearing to proceed under section 35 of the Act and I can consider the matters enumerated in paragraph 6 above in an application for advice and direction.
The application proves that the guardians seek removal from their appointment.
Dr. Alison Cleary, Geriatrician, has completed a pro forma Health Care Professional Report (HPCR-B) with respect to the appointor’s capacity. Dr. Cleary is an employee in the State Service and is independent of any of the parties to this application. Dr. Cleary’s expertise is well-known to this Board and members have accepted her evidence as an expert witness on multiple occasions. She has diagnosed the appointor with dementia and notes that:
“due to her poor short term memory she is unable to retain complex information and consider all options in complex situations.”
Dr. Cleary also states:
“BDX has limited insight into her current care needs due to her very poor short term memory and lack of insight she lacks capacity to determine her accommodation needs.”
From Dr. Cleary’s report I conclude that the appointor is not in a position to revoke or amend her appointment independently of the Board.
Dr. Cleary also notes that the guardians were formerly the appointor’s live-in carers. That care burden became too much for them and they determined that she should move to residential care. That decision by the guardians has wrought the ire of both the appointor and her son, UL. Dr. Cleary expresses a concern that this ‘significant conflict’ may compromise the appointor’s wellbeing and she is at risk of experiencing multiple accommodation changes which may not suit her needs. I make no findings as to who is at fault in the conflict, only that the conflict is not in the appointor’s best interests. Replacement of the guardians will go some way to addressing the issue of conflict. I consider that convening a hearing where the issues of conflict are aired and examined will not alter the likely outcome of this application and will not be in the best interests of the appointor as it may exacerbate that conflict.
The applicants seek the appointment of the Public Guardian in substitution of their appointment. Mr. UL indicated that he has no objection to this. He considers that this would be an improvement on the current situation. In this circumstance, the preferences of each of the guardians and UL are consistent with the prevailing law, in particular the decision of Kirby P. in Holt v Protective Commissioner 1993 31 NSWLR 227 where his Honour noted the advantages of appointing a neutral and dispassionate professional substitute decision maker:
“… where there is a potential for family conflict and sharply divided views concerning the best interests of the protected person (appointor).”
Pursuant to section 35(3)(c) of the Guardianship and Administration Act 1995, I vary the effect of the instrument of appointment to substitute the Public Guardian in place of KSL and ED as the enduring guardian for BDX. With respect to the third clause of section 4 of the instrument, the enduring guardian is advised to consult with KSL, ED and UL in addition to consultation with CX on important decisions regarding the appointor’s health and welfare.
In light of the advice and direction given above, the application to review the enduring guardianship is dismissed.
Anita Smith
PRESIDENT
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