BKQ (Guardianship)
[2010] TASGAB 10
•24 June 2010
GUARDIANSHIP AND ADMINISTRATION BOARD
In the matter of BKQ Review of Enduring Power of Attorney and Enduring Guardianship.
Neutral citation: BKQ (Guardianship) [2010] TASGAB 10
REASONS FOR DECISION
Kate Brown (Chair)
Philippa White (Member)
Kellie Ashman (Member)
Review of enduring powers – resignation of one of two attorneys and guardians – concerns about operation of powers – capacity of donor, appointor uncertain – advice and direction to enduring guardian resulted in appointment of a guardian – instruments revoked
Procedures – exclusion of parties from hearing room.
Guardianship and Administration Act 1995 ss12, 20, 27, 34, 35
Powers of Attorney Act 2000 ss 33, 34
Background
BKQ is an 88 year old man who lives alone. He is supported in living in his own home with the assistance of friends and Family Based Care, a local service provider arranged for him by the Aged Care Assessment Team. In December 2009 he appointed NT and BX as joint Enduring Guardians and Enduring Powers of Attorney. BKQ and NT had been friends for many years, and BX had been a friend for some lesser period.
On the 17th March 2010, Leah Byrne from Family Based Care lodged an application for review of the Enduring Power of Attorney and Enduring Guardianship. Those applications were brought because workers from Family Based Care were concerned that BKQ may not have had capacity to make those appointments at the time BX and NT were appointed, and also because they were concerned that NT was seeking to damage the relationship between Family Based Care and BKQ, contrary to BKQ’s best interests. There were further concerns that NT intended to sell BKQ’s house contrary to his wishes, and that her management of his money on a day to day basis did not demonstrate an appropriate understanding of her responsibilities as guardian and attorney.
On the 18th March 2010 emergency orders were sought, and on the 19th March 2010 emergency orders were made substituting the Public Guardian as BKQ’s Guardian for 28 days, suspending the Enduring Power of Attorney for 28 days and substituting the Public Trustee as Administrator for that period.
The primary issues in the hearing were the care being received by BKQ from Family Based Care and the relationship between Family Based Care and NT. It was quite clear from the evidence given by all parties that the relationship between NT and Family Based Care had completely broken down, but that BKQ appreciated the assistance given to him by Family Based care on the basis that it allowed him to remain living in his own home. The report and oral evidence from the representative from the Office of the Public Guardian was that this was of utmost importance to BKQ, not least because he has a dog that he is very fond of that he would not be able to have with him in a nursing home.
BKQ was able to indicate in the hearing that he was primarily interested in remaining at home and but also in avoiding the conflict between NT and Family Based Care. He acknowledged that NT was difficult at times, but he felt able to deal with that and wanted to continue the friendship. He appreciated the assistance that she gave him with laundry and food preparation and her company. However he also appreciated the assistance given to him by Family Based Care, and did not want that to cease. His primary concern, as had been noted by all the interested parties, was to remain living independently as long as possible.
The Board heard form NT at length, and took into account correspondence she had sent to the Board, and a letter tendered by Leah Byrne written to her by NT. It is not necessary to repeat at length the substance of that material, except to acknowledge that it indicated an extremely high level of hostility on the part of NT directed towards Family Based Care and Leah Byrne particularly. NT’s view was that the contract with Family Based Care ought to be terminated and she had in fact sought to have an alternative service provider substituted during the period the Office of the Public Guardian had been involved, that is, while her appointment had been suspended by emergency orders made on the 19th March 2010. It is noted that BKQ did not share this hostility towards Family Based Care, nor did he want Family Based Care to be replaced by another service provider.
There was no evidence that Family Based Care had at any time acted improperly in their dealing with BKQ, nor that any of the many accusations of dishonesty, stealing or breaking and entering into her home made by NT against Family Based Care’s employees had any basis in reality.
Further, there was no evidence that either BKQ or Family Based Care had any problems with continuing the service arrangement, apart from the effect on both of them of the ongoing conflict with NT. For example, one of the decisions the Office of the Public Guardian made during the interim period was to accept a further care package recommended by Leah Byrne at Family Based Care, which NT had purported to refuse on BKQ’s behalf, apparently simply because it had been suggested by Leah Byrne.
The Hearing
The matter was listed for hearing on the 30th of April 2010. Prior to the hearing BX indicated in writing via her solicitor and directly that she wished to cease her responsibilities as Attorney and Guardian for BKQ.
BKQ attended the hearing, as did Geoff Durston from the Office of the Public Trustee, Kylie Hiller from the Office of the Public Guardian, BX, NT with her solicitor Jim Waterhouse, Leah Byrne and Lynne Cameron from Family Based Care, and DM, BQ, and KC all of whom described themselves as “supporters of NT”.
The room in which the Guardianship Board was convened was not a large one, and with the three Board members and 11 attendees noted above it was very crowded. BKQ was by virtue of his age and state of health, challenged in hearing and comprehending the proceedings.
The Board by its own motion sought additional information from the three self described “supporters of NT” as to the purpose of their presence. On the basis that NT was represented by a solicitor; that the proceedings were in regard to BKQ’s best interests (and not NT’s); and that those three person’s would not be providing any material evidence to the Board, they were asked to wait outside while the hearing proceeded.
The Board had regard to the Guardianship and Administration Act 1995 (“the Act”), s.12(3) which empowers the Board to direct any person not directly interested in the proceeding to be excluded from those proceedings. The Board also notes that it is bound by the rules of natural justice, which in this case required it to consider the best interests of BKQ, not only as regards the outcome of the hearing, but also the conduct of the hearing. The Board’s view was that it was not in BKQ’s best interests, or in the interests of a fair hearing to have persons unknown to him, who could contribute no material evidence, present in the already very crowded hearing room. Such proceedings can be quite confronting and overwhelming for persons in BKQ’s position, even without the burden of dealing with the number of people involved in this particular case.
The Board noted that BX had sought revocation of her appointment as both guardian and trustee, and that accordingly the Board revoked those appointments pursuant to s.34(1)(a) of the Act, and s.33 of the Powers of Attorney Act 2000. Further, from the beginning of the hearing NT stated that it was her position that she was not prepared to continue on her own as either enduring Guardian or Attorney although she tended to contradict this position through the hearing. Accordingly the Board had sufficient grounds to be satisfied that the remaining enduring guardian was “not willing or able to act in that capacity”: s.34(1)(b)(i) without hearing further evidence on that point. Similarly, the Board had sufficient grounds to be satisfied that it was appropriate pursuant to s.33 of the Powers of Attorney Act 2000 to revoke the Enduring Power of Attorney on the basis that the donee was unwilling to continue to accept the appointment.
However, the applications raised issues about the ongoing interests of BKQ and the need for future appointments. Accordingly, the Board gave all interested parties an opportunity to address it as to the original and emergency applications filed by Leah Byrne in her capacity as a manager at Family Based Care, and as to the future needs and interests of BKQ. The Board particularly wished to hear from BKQ himself.
Medical Evidence
It is appropriate at this point to consider the capacity of BKQ. The Board had before it a letter from Dr Michael Smallwood dated the 17th of November 2009 to the Aged Care Assessment Team requesting an assessment by them (Dr Smallwood being BKQ’s general practitioner). The pertinent parts of that report are that at that time BKQ was noted to have gradually worsening cognitive impairment and impairment of memory. A Mini Mental State Examination (MMSE) undertaken by Dr Smallwood on BKQ on that date had a result of only 15 out of 30. The Board also had a Health Care Professional Report of the 16th of March 2010, again from Dr Smallwood. It was Dr Smallwood’s view that at that time, and in reliance partly on the MMSE performed on 17th November 2009, that BKQ did “not have the capacity to make informed financial decisions”. Dr Smallwood also opined that as at the date of execution of the enduring power of attorney in December 2009 that BKQ was unlikely to have appreciated the nature and extent of his property, or that by executing the power of attorney he had given NT and BX the authority to manage his property and financial affairs; and that BKQ did not have the capacity to make reasonable decisions in relation to his property in December 2009. It was Dr Smallwood’s opinion that BKQ suffered from dementia which had been evident for at least a year, and the prognosis was of gradual deterioration.
Therefore, while the resignations meant that it was not necessary for the Board to make a determination about BKQ’s capacity at the time of execution of the instruments, the Board determined that BKQ does not have the requisite capacity to make future appointments, making it necessary for the Board to consider whether he requires a guardian or an administrator.
Guardianship
Appointments of Enduring Guardianships are dealt with in Part 5 of the Act. The Board is empowered by s.34 to revoke or amend the instrument of appointment of an enduring guardian in certain circumstances. Section 35 empowers the Board to give advice or directions to an enduring guardian.
The Board heard the evidence referred to above regarding BKQ’s living and support arrangements. The evidence from the representative from the Office of the Public Guardian was that remaining at home was the most important consideration for BKQ, and that accordingly any guardian ought to have that factor as a principal motivator in their decision making process.
There was no evidence that Family Based Care had at any time acted improperly in their dealing with BKQ, nor that any of the many accusations of dishonesty, stealing or breaking and entering into her home made by NT against Family Based Care’s employees had any basis in reality.
In fact, in order to minimise the conflict, and in recognition that it was in BKQ’s best interest to maintain the long term friendship with NT, Family Based Care had arranged for an alternative person in their office to manage BKQ’s care. After carefully considering the evidence, was the Board’s view that in actively instigating and promoting conflict between herself and Family Based Care NT was acting in direct conflict with her duty to act in BKQ’s best interests. It was the opinion of the representative from the Office of the Public Guardian that it was possible and desirable for NT to arrange her daily visits to BKQ so as to avoid any contact with the employees of Family Based Care. NT did not accept this proposition. NT, despite having indicated that she was not prepared to continue in the position of either guardian or attorney, stated that if the outcome of the hearing was that some other party undertook that responsibility in her place she would cease all contact with BKQ.
The Board observed from NT’s conduct of herself at the hearing and generally that she failed to understand that the Board was focused on BKQ and his interests, not herself and her interests. She displayed no understanding of her role and responsibilities as enduring guardian for BKQ. She appeared to be confused as to whether BKQ retained capacity to act on his own behalf even at the hearing, and that if he did retain capacity then she was purporting to exercise decision making powers without a clear understanding of the basis upon which she was so doing.
It was the Board’s view that even had NT been prepared to continue to act in the role of guardian, she was unable to comprehend her role and the responsibilities attaching to that. She was also unable to set aside her own interests in order to consider what was best for BKQ contrary to the obligation imposed on her in s27(1) of the Act.
Accordingly, pursuant to s.34(1)(b) of the Act the Board considered it appropriate to look at the manner in which NT had acted whilst purporting to act as BKQ’s enduring guardian. It was satisfied that NT had not acted in the best interests of BKQ in perpetuating the conflict with Family Based care, and that she had acted contrary to the provisions of the Act in that she was unable or incapable of acting at all times in the best interests of BKQ s.27(1). Further it is pertinent that NT and BXs were appointed as guardians jointly, not jointly and severally, although it appeared that NT was the only active guardian and had not acted “jointly” at any stage. Given that they had been appointed jointly and that BX had sought to resign her role, then the joint appointment was terminated in any event.
Further in the circumstances of NT and BXs disavowal of continuing in their roles, but NT’s apparent continued interest in the role, the Board of its own its own motion determined to exercise its powers under s.35(4) of the Act. Pursuant to s.35(3)(c) the Board was empowered to vary the effect of the instrument of appointment or make any other order that it could have made on an application for a guardianship order.
The Board determined to that it had no option other than to revoke the appointments, in NT’s case primarily because she was purporting to resign, but because she had acted throughout the hearing in contradiction to that assertion, the Board took the step of exercising the power it has by virtue of s.34.(3)(c) of the Act to “make any other order it could have made on an application for a guardianship order”.
Thus in addition to revoking the enduring appointments, the Board reviewed the criteria in s.20 of the Act: that is, whether BKQ was a person with a disability by virtue of which he was incapable of making reasonable judgments in respect of all or any matters relating to his person or circumstances and whether there was need of a guardian. On the basis of the evidence from Dr Smallwood, the Board determined that the criteria of disability and incapacity were made out in this case.
As to need for a guardian, the evidence of conflict between the service providers and NT was sufficient to demonstrate the need for a guardian to be appointed. In considering who would be appropriate to undertake that role, the Board considered the report and oral evidence of Ms Hillier from the Office of the Public Guardian and concluded that the Office of the Public Guardian was not only appropriate but also the only possible appointment in all the circumstances of the case. It is worth noting that had there been no guardian appointed, that NT may have continued to attempt to control BKQ’s support arrangements, which in the view of the Board was not in the best interests of BKQ, nor did it accord with his wishes.
The Board could have also exercised the option of amending the instrument of appointment to substitute the Public Guardian, or made an emergency order appointing the Public Guardian pursuant to s.73A of the Act. On the facts before it either of those alternatives would have been appropriate.
Power of Attorney and administration
As regards the enduring power of attorney, there was conflicting evidence as to how NT had exercised her powers, whether she was exercising her powers validly, and indeed, whether she understood the duties imposed upon her by the Enduring Power of Attorney. However, the Board formed the view that it did not specifically need to decide all those points. The Board is empowered in s.33(2)(f) of the Powers of Attorney Act 2000 to
“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…”
It is proper and necessary for the Board on reviewing the appointment of an Enduring Power of Attorney to consider whether the attorney is capable of understanding their role and responsibilities.
At the time of the hearing NT asserted that in her view BKQ was capable of managing his own affairs, and appeared to see her role as assisting him in so doing. Given the evidence before the Board as to BKQ’s capacity this demonstrates a lack of understanding of BKQ’s situation, and particularly his lack of judgment and vulnerability. If NT was unable to assess BKQ’s capacity appropriately, the Board could not have confidence that she was able to use her own judgment in performing her role in that she was required to balance BKQ’s wishes and his interests, which would necessitate an assessment of the extent to which he was able to communicate valid wishes or ascertain what his interests were.
The Acting Registrar of the Guardianship and Administration Board asked NT by letter of the 22nd March 2010, to provide a number of specific items and particular information by the 15th of April 2010. NT did not comply with that request, but rather, in an undated nine page letter, asserted that BKQ controlled his own affairs and that therefore she was not in possession of the information requested.
Further evidence of NT’s inability to comprehend BKQ’s level of capacity and the effect of that on her appointment was found in her letter referred to above sent to the Board in response to the request from the Acting Registrar. On the first page of that she states that BKQ “controls his own affairs”, but further down the same page states “Since being appointed power of attorney I have signed two or maybe three cheques…”. On page 4 of that letter NT describes how she arranged for a funeral director to attend BKQ to make funeral arrangements and that BKQ signed a cheque for $3300 made out to the funeral director. The funeral director then contacted a solicitor on BKQ’s behalf in order for him to make a will. NT devotes some several pages describing how she didn’t like the solicitor, rightly or wrongly, but again misses the two crucial points: that the process was not about her, and that if BKQ had capacity to make a will and sign cheques she was acting without a clear understanding of the basis of her authority.
On the basis that NT had demonstrated limited, if any, understanding of her role as attorney and the obligation it imposed upon her to “protect the interests of the donor”, the Board decided that even had NT been prepared to continue in the role, it had proper grounds to revoke the enduring power of attorney granted to her by BKQ. In that regard the Board also notes that NT’s record keeping appeared to be haphazard, and that she professed not to know the extent of BKQ’s assets, yet was prepared to expend funds on his behalf on landscaping, which would surely be a discretionary expenditure for a man in BKQ’s situation.
The Board determined to exercise the power conferred in s.33(2)(f) of the Power of Attorney Act 2000 to revoke the enduring power of attorney and appoint an administrator. In doing so the Board noted the provision in s.33(3) that such an appointment had the same effect as one under the Board’s own legislation and therefore considered the criteria in that legislation for such an appointment.
The Board found on the basis of the medical evidence referred to above that BKQ suffered from a disability by virtue of which he was incapable of making reasonable judgments in respect of all or any part of his estate, and that given that BKQ’s assets included a home and possibly a large sum in savings, further found that there was an immediate need for an administrator to be appointed. There being no other potential candidate, the Board appointed the Public Trustee.
Conclusion:
Review of Enduring Power of Attorney:
After hearing an application in relation to an Enduring Power of Attorney (PA36172) dated 10th December 2009 (hereinafter ‘the power’) made by BKQ of Launceston (hereinafter ‘the donor’) appointing NT and BX as his attorneys
The Board was satisfied (i) that it is not in the donor’s best interests for the power to continue, and (ii) that the donor is unable to make reasonable judgements in respect of his estate and is in need of an administrator.
THE BOARD ORDERS:
That the power is revoked from the date of this order.
That The Public Trustee be appointed administrator of the estate of BKQ.
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 the administration order remains in effect to 29 April 2013.
Review of Enduring Guardianship:
After hearing an application in relation to an Enduring Guardian made by BKQ (hereafter “the represented person”) by an instrument of appointment dated 6 November 2009 (hereafter “the instrument”) appointing NT and BX as his enduring guardians
THE Board was satisfied that the represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of his person and circumstances; and
is in need of a guardian;
THE BOARD ORDERS
That the 1st instrument be revoked pursuant to s 34(1)(b)(i) of the Guardianship and Administration Act 1995 (hereafter ‘the Act’).
That Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Act.
That this order remains in effect until the 29th April 2013.
Kate Brown Philippa Whyte Kellie Ashman
MEMBER MEMBER MEMBER
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