BDX – Advice and direction to an enduring guardian Summary

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

The case of BDX involved an application for the revocation of an enduring guardianship order, which had been made in favour of the respondent, the appellant's daughter. The appellant sought the revocation on the basis of changes in circumstances, specifically citing disagreements within the family that had led to a breakdown in the relationship between the appellant and the enduring guardian. The dispute was heard and determined by the Supreme Court of Queensland.

The primary legal issues before the court were whether the appellant had demonstrated a sufficient change in circumstances to warrant the revocation of the enduring guardianship order, and whether the family conflict impacted the enduring guardian's ability to act in the best interests of the appellant. The court was required to consider the provisions of section 34(1) of the Guardianship and Administration Act 2000 (Qld) and assess whether the appellant had satisfied the necessary criteria to revoke the order.

The court found that the appellant had not demonstrated a sufficient change in circumstances to warrant revocation of the guardianship order. It was held that the appellant's concerns about the enduring guardian's ability to act in her best interests due to family conflict were not enough to meet the statutory threshold. The court emphasised that a guardian's role is to act in the best interests of the protected person, and that family conflict alone does not necessarily disqualify an enduring guardian from fulfilling this role. Furthermore, the court noted that the family appeared to be in agreement regarding the enduring guardianship, which added weight to the decision not to revoke the order.

As a result, the court dismissed the appellant's application for the revocation of the enduring guardianship order. The decision underscored the importance of demonstrating a significant change in circumstances to justify such a serious intervention, and highlighted the role of family consensus in enduring guardianship matters.

BDX – Advice and direction to an enduring guardian

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established