BMT (Review of Enduring Power of Attorney)

[2011] TASGAB 26

GUARDIANSHIP & ADMINISTRATION BOARD
BURNIE

Neutral citation: BMT (Review of Enduring Power of Attorney) [2011] TASGAB 26

REASONS FOR DECISION

C. F. McKenzie (Deputy President)

G. Kingston
A. Bindoff

8 November 2011

Enduring power of attorney – Application by Attorneys for leave to withdraw application – respondent opposes withdrawal – cross application by respondent - administrative convenience – directions.

Background

An application was made to the Guardianship & Administration Board by TT and BE in respect of BMT for review of an enduring power of attorney by which they were appointed attorneys.  The review arose as a result of dispute between the applicants and ZH who is identified in the application as being in a defacto relationship with the represented person. 

The application was due to be heard on Friday 21 October in Burnie.  ZH was given notice of hearing but through her legal representative applied for an adjournment which was granted to a date to be fixed by the Registrar.  The Board has now received a request from the applicants to withdraw their application.  ZH opposes withdrawal of the application and requests that the application proceed. 

From the documents provided to the Board to date in connection with the application it would appear that the dispute related to the amount which should properly be provided by the attorneys from the represented person’s estate for the benefit of his defacto partner ZH.  The applicants have consulted a legal practitioner although they represented themselves at the application for adjournment.

The application for review and the power to review arise under Section 33 of the Powers of Attorney Act 2000. A review may be instigated by the Board, an attorney, the donor or any other person whom the Board believes has a proper interest in the matter. Hearings are to be held in accordance with division one of part 10 of the Guardianship & Administration Act. Further an attorney may apply under Section 35 of the Powers of Attorney Act for advice or direction 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. The Board’s powers under Section 33 and Section 35 are wide, and subject to considering any submission to the contrary, appear wide enough to address the issue raised by the attorneys in their application and to consider the matters advanced by ZH’s legal representative in response to the application. The application may also give rise to the need to consider an order under Section 31(3) of the Powers of Attorney Act.

Section 11(3) of the Guardianship and Administration Act provides for procedure of the Board by reference to Schedule 2 which in Part 1 Rule 6 provides:

Withdrawal of application

The Board may allow a person to withdraw an application at any time before it is determined.

There is no provision in the Powers of Attorney Act which gives an applicant the right to unilaterally withdraw an application and accordingly the Board’s leave is required.

It is apparent from ZH’s resistance to the application for withdrawal that she wishes to apply for orders in connection with the represented person’s estate.

On the information currently available to the Board it would appear that she would qualify under Section 33(1)(d) of the Powers of Attorney Act as a person with a proper interest in the matter.

If the applicant is permitted to withdraw the application when there is no evidence that the dispute has been resolved and a person who appears to have a proper interest, whose interest is acknowledged by the applicant and who was made a party to the application as a result of the actions of the applicant, wishes it to proceed then it is likely that approving withdrawal will only lead to a further application, repetition of administrative action to bring the application to hearing and delay. 

Conclusion

Accordingly at this stage the Board will not give leave to withdraw the application.  However in doing so it notes that the application continues at the request of ZH and it is therefore her application that the Board will proceed to hear.  In order that the Board and the attorneys have an adequate opportunity to prepare for hearing and/or make any further submissions with regard to disposal of the application in the interim, ZH is directed to make brief written statement delivered to the Board and the Attorneys including the following matters;

1. Identifying the sections of the Powers of Attorney Act and the Guardianship and Administration Act under which she applies; and

2. The terms of any order or directions she intends to ask the Board to make.

3. An outline of any reason for which ZH’s application should not be dealt with under the Relationships Act 2003 (Tas).

Upon receipt of the statement the Registrar will appoint a date for further hearing the application.

C.F.McKenzie

Deputy President