BFQ (Enduring Powers)
[2013] TASGAB 29
•12 December 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BFQ – Emergency Suspension of Enduring Power of Attorney
BFQ (Enduring Powers) [2013] TASGAB 29
REASONS FOR DECISION
Anita Smith (President)
Date of Decision: 12 December 2013
Emergency suspension of enduring power of attorney – circumstances of urgency – Board’s own motion - interaction between s.33 of the Powers of Attorney Act 2000 and section 65 of the Guardianship and Administration Act 1995
Powers of Attorney Act 2000 – s.33
Guardianship and Administration Act 1995 – s.65
NPG (Review Enduring Power) [2011] TASGAB 9
On 11 December 2013 TXM telephoned office of the Guardianship and Administration Board. TXM is one of BFQ’s brothers and had been appointed as her enduring attorney by instrument XXXX on 10 August 2012. TXM reported that his brother, MM, had arranged for the revocation of that instrument and was now appointed as her enduring attorney.
A search of the register confirmed that by instrument XXXX the earlier instrument was revoked and by instrument XXXX, MM had been appointed as an enduring attorney, both being registered that same day. In accordance with his request, an officer of the Board sent TXM a form for the application to review an enduring power of attorney and a pro forma Health Care Professional Report.
On 12 December 201, Dr. Martin Morrissey, Old Age Psychiatrist, telephoned the Board reporting that he had just assessed BFQ at XXXX (possibly for the purposes of completing the Health Care Professional Report). Dr. Morrissey is specialised in the assessment of capacity in older persons and frequently provides expert opinions in applications before the Board. He stated that BFQ has a marked dementia and limited understanding of her affairs. He also indicated that she had recently signed an enduring power of attorney and he considered that she would have absolutely no understanding of the nature and effect of that instrument.
In addition, Dr. Morrissey stated that BFQ was very distressed and expressed remorse that she had changed arrangements to her power of attorney and her will, indicating that she wanted “TXM” to continue managing her affairs (the Board presumes that “TXM” is TXM). Dr. Morrissey formed the view that there was conflict amongst members of BFQ’s family about the management and ultimate distribution of her assets and this also was causing her significant confusion and distress.
The Board treated Dr. Morrissey’s call as ‘information received’ and considered that it was appropriate to act on that information in the circumstances for the purposes of section 33(5)(b) of the Powers of Attorney Act 2000 and section 65(4)(b) of the Guardianship and Administration Act 1995. However the Board did not consider Dr. Morrissey an applicant but proceeded of its own motion pursuant to 33 of the Powers of Attorney Act 2000 and section 65 of the Guardianship and Administration Act 1995. The Board directed an Investigator that it would be appropriate to make inquiries of the solicitor involved in the execution and management staff of XXXX.
The Board’s Investigator telephoned Mr. John Munnings, the solicitor who had prepared and witnessed the recent instrument. He indicated that, in his view, BFQ had given clear instructions for the execution of the revocation, the instrument and a new will. He indicated no concern about her capacity to give instructions but he noted that her eyesight was poor. He said that the attorney, MM, had paid for his services.
The Board’s Investigator also called EP, a senior staff member at XXXX. EP reported as follows: TXM and NM (presumably TXM and his wife) have been looking after BFQ’s finances since at least August 2012 and have been supportive of BFQ. Relationships in BFQ’s family are now fragmented following the death of one brother who had distributed assets unevenly amongst his siblings. This had impacted upon BFQ’s own intentions towards the distribution of her estate. BFQ was distressed about the contents of her will and upset that she had listened to one brother. She was very confused about her current financial arrangements.
Section 33(4) of the Powers of Attorney Act 2000 states:
“(4) When the Board considers it proper to do so by reason of urgency, the Board may suspend the operation of an enduring power of attorney and, on doing so, the Board may –
(a) appoint the Public Trustee or any other person as a substitute attorney; and
(b) make such other orders, and give such other directions, as to the exercise of the power as it thinks fit.”
The primary reasons for urgency, in the Board’s view, were (1) BFQ’s distress and confusion – confirmed by two independent witnesses - about the recent appointment of an attorney, (2) the fact that the new attorney had not yet commenced active operation of the power but, if he did assume management of the estate, there was a possibility of further disruption in the management of the estate after the hearing of the application to review the power, (3) disagreement between Dr. Morrissey and Mr. Munnings as to BFQ’s level of capacity, (4) the level of family conflict fuelled by concern about the ultimate distribution of BFQ’s estate and (5) the uncertainty about the time it may take to receive an application to review the power and to hear and determine that application. For these reasons, the Board suspended the operation of the enduring power of attorney.
As noted by Deputy President McKenzie in NPG (Review Enduring Power) [2011] TASGAB 9, section 33(4):
“… appears to create an internal inconsistency in that it gives the Board certain powers with regard to the exercise of a power which it has suspended. This could be resolved by inferring various interpretations of the process intended by Parliament. However it is desirable to avoid uncertainty.”
In other words, it seems illogical to suspend the power, but then appoint the Public Trustee as attorney under a suspended power. Also, in this case, the power has been impugned with respect to the donor’s capacity, so appointment under an instrument in circumstances where there is an unequivocal and contemporaneous opinion by a specialist that the donor lacked capacity at the time of execution would put a substitute attorney in an inimical position. For that reason, the practice of the Board, in circumstances such as this, is to suspend the power but make an emergency administration order pursuant to section 65 of the Guardianship and Administration Act 1995 to prevent possible confusion. Section 65(4)(c) makes specific provision for this to occur. Under section 65, the Board can only appoint the Public Trustee as administrator.
The Board does not have power to review a revocation of an enduring power of attorney. Therefore, mere suspension of the enduring power would create a position of greater uncertainty as it would not have the effect of re-instating XXXX and TXM as enduring attorney, but would leave a vacuum of management of the estate. As EP reported that BFQ has been dependent on TXM’s support in financial matters for some time, that appeared to be an unacceptable course.
Section 65 of the Guardianship and Administration Act 1995 provides:
“… (2) 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 … an administration order make an order appointing –
(a) …
(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.
(3) 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.
(4) 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.”
The Board accepted the same ‘reasons for urgency’ as set out in paragraph 9 above as being relevant to section 65(2).
The Board considered the following matters:
·Dr. Morrissey’s unequivocal opinion that BFQ lacked capacity to execute the revocation and the instrument and his concern for her change in circumstances
·BFQ’s reported level of distress and confusion about having altered her financial arrangements
·BFQ’s longstanding dependence on other persons for support in the management of her estate
·The conflict and potential self-interest amongst some members of BFQ’s family about the management and the ultimate distribution of her estate
·The recency of the new instrument, meaning that it was unlikely that MM had commenced active management of the estate
·The likelihood of a review of the enduring power of attorney in the future – with the possibility of further disruption to the management of BFQ’s estate
In the circumstances the Board considered it appropriate to respond in a protective manner to the events that have recently involved the management of BFQ’s estate. An elderly woman has made changes to the management of her estate about which she expressed remorse and confusion very soon afterwards. There is conflict in her family, some of which stems from an expectation by siblings of inheritance from her estate. Two independent persons have reported her distress and confusion about changes she has made to her financial arrangements. In the circumstances, it is appropriate to appoint the Public Trustee as an independent agency to act as her administrator until such time as the instrument appointing an enduring power of attorney can be thoroughly reviewed for the donor’s capacity and the attorney’s suitability for appointment.
CONCLUSION:
The Board being satisfied that there are reasons for urgency to suspend the operation of an enduring power of attorney (XXXX) given by BFQ to MM and dated 5 December 2013 (hereinafter ‘the power’)
THE BOARD ORDERS
- That the power be suspended for a period of 28 days or until further order of the Board.
- That The Public Trustee be appointed administrator of the represented person.
FURTHER THE BOARD DIRECTS that on or before the expiry of 25 days duration of this order The Public Trustee shall report to the Board in relation to any decisions or transactions made on behalf of the represented person pursuant to this order.
Anita Smith
PRESIDENT
Statement of reasons requested: 19 December 2013
Statement of reasons delivered: 2 January 2014
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