CKC – Review of an Enduring Power of Attorney

[2018] TASGAB 8

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

CKC – Review of an Enduring Power of Attorney

REASONS FOR DECISION

Wendy Hudson (Chair)
Justin Otlowski (Member)
Matthew Fasnacht (Member)

Hearing Dates:  9 March and 4 May 2018

Orders Arising from an Application to Review an Enduring Power of Attorney and the Revocation of an Enduring Power of Attorney – Summons to Produce in relation to Board’s Own Motion to Review an Enduring Power of Attorney
Guardianship and Administration Act 1995

1. On the 9 March 2018 the Guardianship and Administration Board (the Board) held a hearing in relation to an enduring power of attorney (PAXXXX) executed by CKC in 2018 (the first hearing), appointing Mr Damian Egan, Solicitor as his attorney. The Board having found that CKC did not have the mental capacity to make the enduring power of attorney or to revoke the earlier enduring power of attorney (PAXXXX executed in 2015 appointing WC as attorney), declared the enduring power of attorney and the revocation to be invalid. Furthermore, the Board identified that a conflict of interest may arise for WC as attorney and consequently, of its own motion, pursuant to section 33(1) of the Powers of Attorney Act 2000, decided to review the 2015 power, the hearing of which was held on 4 May 2018 (the second hearing).

2. In between the first and second hearings, the Board, of its own motion, pursuant to section 11(8) of the Guardianship and Administration Act 1995, directed the Registrar to serve on Mr Damian Egan, a summons to produce to the Board any will or codicil of CKC.

3. On 2 May 2018, Mr Damian Egan produced to the Board two wills executed by CKC. However, both prior to and since doing so, Mr Damian Egan wrote to the Registrar, Mr Bryan, raising a series of issues in relation to the determination dated 9 March 2018 and the summons to produce. Since that time, Mr Damian Egan has sought, pursuant to section 74 of the Guardianship and Administration Act 1995, a statement of reasons.

4. Mr Damian Egan highlighted to the Registrar that:

   ·the determination dated 9 March 2018 ‘declared’ the enduring power of attorney to be invalid, it did not ‘order’ it so; and

   ·the adjournment of the first hearing should have been pursuant to section 33(6A) of the Powers of Attorney Act 2000 rather than the Guardianship and Administration Act 1995.

5. Subsequently, the Board amended the determination dated 9 March 2018 pursuant to Schedule 2, Part 1, section 5 of the Guardianship and Administration Act 1995 and a copy has been provided to the parties accordingly.

6. The other issue raised by Mr Damian Egan was whether the summons to produce was valid given that it had been issued in accordance with the Guardianship and Administration Act 1995 in relation to a hearing before the Board pursuant to the Powers of Attorney Act 2000.

7. Although the Powers of Attorney Act 2000 provides a power to the Board to require production of an enduring power of attorney or other instrument in Part 6 relating to foreign powers of attorney, it does not contain any specific power for the Board to do so more broadly. Section 33(1) in setting out the Board‘s power to deal with enduring powers of attorney, does however confirm that the hearing is in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995. As such, it is implicit that any section of the Guardianship and Administration Act 1995 which sets out matters pertaining to the hearing are also applicable, such as Part 2 – Establishment, Constitution and Procedure of the Board, which includes section 11(8). The language of section 11(8) of the Guardianship and Administration Act 1995 reinforces that it has broad application ‘to the proceedings’ before the Board and can be used to require a person to appear before the Board to give evidence and to produce any documents specified in the summons.

8. The interrelationship between the Guardianship and Administration Act 1995 and the Powers of Attorney Act 2000 clearly provides for the issuing of a summons by the Board when conducting a hearing irrespective of whether the power to hold the hearing arises from the Powers of Attorney Act 2000.

Wendy Hudson
Chair

22 May 2018