CN (Review Enduring Powers and Guardianship)

Case •

[2008] TASGAB 1

•

18 January 2008

Guardianship and Administration Board
Burnie

IN THE MATTER OF CN (D.O.B. XXXX) –
Application in relation to an enduring Power of Attorney – Application for Guardianship

CN (Review Enduring Powers and Guardianship) [2008] TASGAB 1

REASON FOR DECISION

GAB No: XXXX

Leon Peck (Chair)
Sue Hill (Board Member)
Mary Davies (Board Member)

Review of Enduring Power of Attorney – lack of mental capacity to execute an instrument – appointment of an administrator
Guardianship – proposed represented person in stable accommodation – not in need of a guardian

Powers of Attorney Act 2000 s. 30, 33
Guardianship and Administration Act 1995 s. 20, 51

  1. This is an application for the review of an enduring power of attorney (PA XXXX) signed on the 7th August 2007 by CN and an application pursuant to the Guardianship and Administration Act 1995 for the appointment of a guardian for CN (‘CN’)

  1. The Board received the application from MT, CN’s granddaughter (‘the applicant’).  The application was dated 29th October 2007.  The applicant was CN’s primary carer between July 2000 and June 2007.

  2. The enduring power of attorney (PA XXXX), signed by CN on 7 August 2007 appointed her son, SN, and daughter-in-law, QN, as her attorneys.  CN resides with the attorneys.

Medical Reports Received Prior to the Hearing

  1. The Board received the following reports in relation to CN’s medical condition and importantly her capacity to sign a new enduring power of attorney:

4.1Dr Brimage, neurologist, who undertook a neurological consultation in 2005 and               concluded that CN was most likely suffering from Dementia

4.2In November, 2005, Dr Da Costa, Medical Officer, Bankstown Aged Care Assessment       Team diagnosed dementia, hypertension and osteoarthritis.

4.3Following the diagnosis of Dr Da Costa, CN, in January 2006, was placed on a       ‘Dementia In-Home Support Program’.

4.4CN was assessed again in April 2007 by Dr Da Costa who confirmed the earlier     diagnosis and recommended respite for CN in a Dementia Specific Hospital      during a forthcoming overseas trip by the applicant who was at that time the         primary carer.

4.5A report in May 2007 from Dr Kurrie, CN’s General Practitioner did not    support Dr         Da Costa’s recommendation regarding respite care.

4.6Dr G.F. Beaton in an assessment undertaken on the 28th July, 2007 stated that CN             “appears to have full insight and current understanding of her present           circumstances” and had “…moderate cognitive impairment”.  However he also advised that a “more exhaustive assessment of her mental capabilities could be                arranged through a clinical psychologist”.

4.7On 10th December 2007 the Board received a further report from Dr Da Costa who           considered that when she last saw CN in April 2007, she “was not capable of              making an informed decision”.

4.8A further report from Dr Beaton was obtained by the Board on the 11th December            2007.  He considered CN to have the capacity to make an informed decision.           However he considered CN incapable of operating a bank account, not capable of        paying bills, unlikely to have capacity to budget and her                recent   memory to be poor.

4.9A further report from Dr Brimage was obtained by the Board.  He stated that as he           had not seen CN for 30 months he could not comment on her capacity in         recent months.

4.10On the 24th December 2007 CN was seen by Consultant Psychologist, Dr Max Jacobs.       In his report dated 15th January 2008 he concluded that CN had cognitive       impairment of a moderate to a severe degree; severe memory problems particularly     as regard to recent and working memory; and suffered advanced dementia,          probably of the Alzheimer’s type.  He considered CN       incapable of operating a               bank account, not capable of paying bills, unlikely to have       capacity to budget          and her recent memory to be poor.

The Hearing

  1. The hearing was conducted in Burnie on the 18th January 2008.  In attendance were the proposed represented person, CN, the applicant, FT (the applicant’s husband); both attorneys, KQ (solicitor for the attorneys); Kevin Preece (Officer of the Public Guardian) and Zie Devereaux (Officer of the Public Trustee).

  1. The Board at the commencement of the hearing stated that CN’s capacity and ability to make an informed decision in August 2007 when signing a new enduring power of attorney, was pivotal. The Chairman advised that if the Board formed the opinion, on the evidence available, that CN did not have capacity, under Section 33(2)(d) of the Powers of Attorney Act 2000, the enduring power of attorney (PA XXXX) would be declared invalid.  It was stated that if this were the conclusion of the Board it would proceed under the provisions of the Guardianship and Administration Act 1995 to determine the need for an administrator.  If the Board were to conclude that an administration order was required the Board would appoint an administrator.  The Board would then assess the need for a guardianship order and appoint a guardian, should the Board decide that there was a need.

CN’s Capacity at the Time of Execution of the EPA

  1. The application by MT requested a review of the new enduring power of attorney (PA XXXX) signed by CN appointing Robert and QN.  The Applicant questioned CN’s capacity at the time of execution.

  1. The Board heard in detail the circumstances leading up to CN’s move from Sydney to Tasmania in July 2007.  The applicant had been coordinating the care arrangement for her grandmother but with her pending overseas trip for 7 weeks, SN was not happy with the proposed care arrangements for his mother.  This culminated in CN’s move to Tasmania to live with her son and daughter-in-law.  The applicant stated that this arrangement was to have only been temporary however it has become somewhat more permanent.  However without the primary carer’s consent or support the move to reside with CN’s son and daughter-in-law became somewhat more permanent.

  2. The Applicant expressed concern at a new enduring power of attorney being executive and registered only a few weeks after CN’s arrival in Tasmania.  KQ detailed reasons why the new enduring power of attorney was so promptly registered which included the difficulties she said were being experienced with the New South Wales Public Trustee, who held the previous enduring power of attorney.

  3. The Board, in considering the issue of CN’s capacity at the time of signing the new enduring power of attorney acknowledged that there were differing medical opinions.

  4. Dr Da Costa considered that when she saw CN in April 2007 she would not have had the capacity to make an informed decision on matters such as enduring power of attorney.

  5. In a report from Community Independence Support Service dated 19th October 2007, KE reported that during the period that they provided CN with a support program (January 2006 – June 2007) there had been a notable decline in her mental capacity.

  6. Dr Jacobs in his report dated 15/01/2008, following his Neuropsychological Assessment of CN on 24/12/2007 stated that “…in view of the extent of the dementia, it must be of some years duration and she almost certainly would not have been competent to make an informed decision over the past year at least”.  In conclusion he stated “in view of her condition she is now unable to make an informed or competent decision nor is she able to manage her affairs or is able to take care of herself”.

  7. The Board noted the opinion of Dr G F Beaton who examined CN on the 28th July 2007.  He stated “she appears to have full insight and current understanding of her present circumstance”.  He also stated that “more exhaustive assessment of her mental capabilities could be arranged through a clinical psychologist”.  The Board considered that in light of Dr Beaton’s comments it would have been appropriate to have a more detailed clinical assessment undertaken, prior to proceeding with the making and signing of a new enduring power of attorney.

  8. The Board also noted the comments of KQ, who considered that CN did understand, comprehend and supported the formulation of the new enduring power of attorney.  The Board also noted her comments in relation to CN’s condition when assessed by Dr Jacobs, she offering the suggestion that a viral condition would have inhibited CN’s performance and therefore the assessment.  The Board noted that Dr Jacobs made no mention of any physical ailment in his report.

  9. CN, when questioned by the Board revealed little if any understanding of what had transpired four months earlier.  Jill Prentice stated that “she has deteriorated a great deal since last year”.

  10. The Board preferred the evidence of Dr Da Costa, because she is a member of an aged care assessment team with clinical expertise in the assessment and care of the aged, was considered to be able to provide a credible assessment.  Similarly, the opinion of Dr Max Jacobs, Consultant Psychologist, was influential as well as being recent.

  11. The Board considered that CN would not have had capacity at the time that the new enduring power of attorney had been signed.  The Board therefore declared the enduring power of attorney (PA 22062) dated 7th August 2007 appointing SN and QN as attorneys for CN did not comply with Section 30(2)(a) of the Act in that the donor (CN) did not understand the nature and effect of the documentation. The Board declared that pursuant to Section 33(2)(i) of the Powers of Attorney Act 2000 the enduring power of attorney was therefore invalid.

The Administration Order

  1. The Board proceeded to assess the need for an administration order.

  1. Based on the clinical evidence it had before it, as outlined above, the Board was of the opinion that CN was a person with a disability and unable by reason of the disability to make reasonable judgements in respect of her estate.

  2. The applicant cited numerous examples that she considered warranted the granting of an administration order.

a.Quests for monetary advances from the New South Wales Public Trustee by SN

b.The sale of CN’s XXXX home, the title search for which was conducted on the same date as the new power of attorney (PA XXXX) had been registered, without any consultation with the applicant.

c.The subsequent withdrawal of invested funds from the New South Wales Public Trustee which amounted to approximately $110,000.00

d.The signing of a contract for the purchase of a new home in Tasmania.

  1. The Board considered that, with the enduring power of attorney (PA XXXX) being declared invalid, the aforementioned estate issues together with CN’s demonstrated disability clearly established the need for an administration order pursuant to section 51(1)(c) of the Guardianship and Administration Act.

  1. The Board noted that neither the applicant nor her husband were proposing themselves for appointment of administrators, preferring the appointment of the Public Trustee.

  2. The Board in their deliberations relating to the appropriate person or authority to appoint as Administrator considered:

a.That the contract for sale of CN’s home at XXXX New South Wales was initiated without what the Board considered appropriate contact with the Applicant.

b.That a new Will had been signed by CN nominating SN and QN as the major beneficiaries.

c.That bank account details were tabled at the hearing by SN and QN but that not financial record detailing CN’s income and expenditure since relocating to Tasmania, was provided.

d.The logic of signing a contract for the purchase of a new house; with $44,900.00 expended on a deposit; the cost of which exceeded the sale price being asked for CN’s XXXX property.  The Board therefore shared the applicant’s concern that if the sale were to proceed, insufficient funds would remain to meet the cost of quality care should CN require additional services or assisted accommodation in the future.

e.That SN and Ms QN revealed little understanding of the tax implications associated with what they were proposing for CN’s estate.

f.That SN and QN revealed little comprehension of the implications of the Board’s initial decision to rule the enduring power of attorney (PA XXXX) invalid.  The Board considered that a person with appropriate expertise would be required and equipped to address the resultant issues.

  1. The Board therefore was not satisfied of the capacity and suitability of either SN or QN to be capable or appropriate to manage the estate of CN.

  1. The Board ordered that the Public Trustee be appointed as the administrator, that the powers and duties of the administrator be those conferred by Division 4 of part 7 of the Guardianship and Administration Act 1995 and that the order remain in effect until 17th January 2011.

Application for a Guardianship Order

  1. The applicant considered a guardianship order was warranted because:

    1. SN and QN, with whom CN resides, lacked an understanding of appropriate dementia care.
    2. SN and QN had declined referral for dementia specific community support services.
    3. The applicant’s desire for she and her family to have access to her grandmother, a right she felt may well be denied if an independent guardian were not to be appointed.

  1. Mr Preece reported, on behalf of the public Guardian, that he had visited CN at the XXXX residence of her son and daughter-in-law.  He reported the accommodation to be “very satisfactory”.  He stated there we no lifestyle issues with which he would be concerned.

  1. SN advised the Board that it was the intention of he and his wife to continue to care for his mother and access community services to help in that care.  He also detailed trips and diversional activities with which his mother had been involved.

  2. KE from Community Independence Support Service recommended that if CN had settled into her new accommodation and surroundings, her relocation back to New South Wales would be upsetting and disruptive and not recommended.

  3. On the evidence available the Board was of the opinion that CN had settled into her new accommodation, there were no current health or well being issues, however the accessing of appropriate support services was recommended.

  4. The Board was also concerned at the deterioration in relationships between SN and the applicant and their respective families.  CN advised the Board that she was happy with her current living arrangements and did not wish any involvement with the applicant.  The Board considered this to reflect the attitude and influence of her son and daughter-in-law rather than being the decision of a rational and objective person who had benefited for a number of years from the support and care of a caring granddaughter and her family.  The Board recommended that SN and QN cooperate in restoring the linkage with the applicant to enable her to renew a relationship with her grandmother.

  5. The Board being satisfied that there was no need at this time for the appointment of a guardian dismissed the application for guardianship.

The Orders

THE BOARD ORDERS

  1. That The Public Trustee be appointed as administrator of the estate of the donor.
  2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
  3. That the order remains in effect until 17 January 2011.

AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed.

DATED this 18th day of January 2008.

Leon Peck
CHAIRMAN

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0