DBS (Review of Enduring Power of Attorney and Guardianship)

CITATION:	DBS (Review of Enduring Power of Attorney and Guardianship) [2020] TASGAB 16
HEARING DATE(S):	24 April 2020
DATE OF ORDERS:	1 May 2020
DATE OF STATEMENT OF REASONS:	29 May 2020
BOARD:	Ms W. Hudson, Member Ms M. Wilson, Member Ms A. McKenzie, Member
APPLICATION	Application for Review of Enduring Power of Attorney Application for Guardianship
CATCHWORDS:	Whether in the best interests of the Donor – appointment of an administrator – need for a guardian
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, 28 Powers of Attorney Act 2000 (Tas), s 32
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 24 April 2020 the Guardianship and Administration Board (‘the Board’) heard an Application for the review of an Enduring Power of Attorney PAXXXXX (‘the EPA’) in relation to DBS. The Application was made by Ms Renee Wise, Residential Manager at [the Aged Care Facility]
The Board found that it was in the best interests of DBS to revoke the EPA and appoint the Public Trustee (Tas) as her Administrator.
The Board also heard an Application for Guardianship. As a result of the hearing the Board found that DBS is a person with a disability; is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances and was in need of a Guardian.
As a result of the hearing the Board appointed the Public Guardian as DBS’s guardian.
DBS has requested a Statement of Reasons in relation to the Board’s decisions.

Hearing

In attendance at the hearing, by telephone were:
a.DBS, the Donor of the EPA and proposed represented person;
b.SX, the Applicant for the review of the EPA and Residential Manager at [the Aged Care Facility];
c.Ms Kelly Mitchell, substitute Applicant for the Guardianship Application and Social Worker, Royal Hobart Hospital (RHH);
d.AT, Attorney;
e.Ms Gabriela Harvey, Emergency Guardian, Office of the Public Guardian; and
f.Ms Rosemary Jurs, the Public Trustee (Tas).
The Board had before it the following documents:
a.Application to Review the EPA dated 20 January 2020;
b.Health Care Professional Report (‘HCPR’) by Dr Andrew Hutchinson dated 25 January 2020;
c.RHH Discharge Referral dated 24 February 2020;
d.The EPA dated 29 September 2015 and registered 29 October 2015;
e.Aged Care Assessment by Ms Diane Hansen dated 9 December 2015;
f.The List Property Report dated 21 January 2020;
g.Bank Reports dated 3 February 2020, 12 March 2020 and 13 March 2020;
h.Letter to Attorney dated 13 February 2020;
i.Emergency Guardianship Order dated 02 April 2020;
j.Guardianship Application by Miss Respondek, Social Worker, RHH, dated 12 March 2020;
k.HCPR by Dr Mohamed A Tabrizi dated 11 March 2020; and
l.Report from the Office of the Public Guardian, by Ms Harvey dated 26 March 2020.

Application for Review of Enduring Power of Attorney

Legislation

The power of the Board to make orders in respect of enduring powers of attorney is set out in section 33 of the Powers of Attorney Act 2000. For the purposes of this matter, the Board considered section 33(2) which provides that on review, the Board may, by order –
a)vary a term of, or a power conferred by, the enduring power of attorney; or
b)appoint a substitute attorney; or
c)appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or
d)declare that the donor did or did not have mental capacity to make a valid enduring power of attorney or to revoke an enduring power of attorney; or
e)declare that the enduring power of attorney or the revocation of it by the donor is invalid if the Board is satisfied that –
(i) the donor did not have the mental capacity to make the power or the revocation, respectively; or
(ii) the power or the revocation, respectively, does not comply with the other requirements of this Act; or
(iii) the power or the revocation, respectively, is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or
f)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; or
g)such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.

Evidence

DBS is a 71 year old woman who has been an inpatient of the RHH since 22 February 2020. She is currently residing at [the Aged Care Facility], in an interim care place managed by the Tasmanian Health Service.
On 29 September 2015, DBS executed the EPA appointing AT as her first attorney and TN as an alternative second attorney. The EPA was registered on 29 October 2015. TN did not participate in the hearing, advising AT that ‘she didn't want the stress of it’. AT stated that she was unaware that the EPA was still current, as DBS had advised her that it had been cancelled. AT stated that it was very hard for her to act as Attorney, noting that DBS was very private about her finances and she felt that distance was a problem and that it was better if DBS had someone who she could rely on closer to where she was residing. AT had not taken any action as Attorney.
In the HCPR, Dr Hutchinson provided a diagnosis of dementia which was alcohol related, frontal lobe dysexecutive syndrome. Dr Hutchinson’s prognosis was for slow progression and that this was dependant on alcohol use and indicated that the condition was fluctuating. Dr Hutchinson had first met DBS in 2015, however there had been a period when he had not seen her until he examined her recently on 20 January 2020 while she was residing at [the Aged Care Facility], a residential aged care facility.
Dr Hutchinson was of the opinion that DBS’s disability had impaired her decision making and that in particular, she was very vulnerable to influence, and that it impacted on her capacity for new learning, and her planning and reasoning skills. In relation to understanding and managing her finances, Dr Hutchinson expressed that although DBS had a potential understanding of her savings and property, she would not divulge all details and was suspicious of his motives. In Dr Hutchinson’s opinion, DBS’s ability to manage her day to day finances was severely impaired, as was her ability to make major financial or legal decisions.
During the hearing, DBS stated that she hadn’t seen Dr Hutchinson for 4 to 5 years. When reminded that he had examined her on 20 January 2020, DBS did not remember that it had taken place at [the Aged Care Facility].
In her Application, SX stated that during her respite DBS had refused to pay the account for accommodation at [the Aged Care Facility], indicating that ‘John will pay it’ or it was for free. SX indicated that DBS had withdrawn large sums of money without any purpose and explained that during discussions DBS had denied having a Power of Attorney, had become paranoid and suspicious regarding her financial matters, stating that someone was accessing her accounts and that they were ‘all messed up’. Even though there had been multiple discussions regarding the outstanding account, DBS did not pay the account until 15 minutes before she left [the Aged Care Facility]. During the hearing, DBS denied that she had provided SX with conflicting accounts or that she lacked awareness. She reiterated that it was her belief that Anglicare were going to pay the account.
The financial reports provided to the Board indicated that DBS had outstanding debts incurred on her Visa and Mastercard. The Visa statement for the period 27 August to 25 September 2019 recorded a debt of $26,206.75 and indicated that DBS had a limit of $25,600 and her account had been overdue for 3 months, and she was incurring late payment fees and interest charges. DBS indicated that she was transferring amounts from her savings to pay this debt, however the statements from 27 August 2019 to 24 February 2020 only recorded two payments of $500 on 30 October 2019 and 14 January 2019.
DBS’s ING Bank (Australia) Limited savings account recorded significant withdrawals from 5 September 2019 to 20 March 2020, totalling $28,000 which had been transferred to her Commonwealth Bank account which as at 12 March 2020 had a balance of $8,787.53. DBS’s Mastercard statement at the same date, recorded a debt of $24,000.
DBS also owns her home in Chigwell, Tasmania which at the time of her return to Tasmania, was rented. During the hearing, Ms Mitchell stated that she had contacted DBS’s real estate agent who reported that she had been waiting on DBS to make a decision about whether they would serve a notice to vacate so that she could live in her house, or whether a further 6 month lease would be entered into. DBS indicated that when she returned to Tasmania, she had three options – to sell it, continue renting it, or move into her house. DBS stated that she had considered selling the property but had not accepted an offer or made a final decision in relation to the property.
When asked in the hearing about her financial management, DBS indicated that she had looked after her own affairs for some time however she could not advise what amount was outstanding on her credit cards. Further DBS stated that she was unaware that her credit card had been declined. When asked about the large amounts she had withdrawn from her bank while residing at [the Aged Care Facility], DBS indicated that she had paid for taxis. DBS indicated that she had been going through a rough time, she had not been getting her mail and had been taken advantage of by a friend while in Adelaide.
Taking all of the above into account, the Board concluded that DBS had lost capacity for management of her financial affairs and consequently, was satisfied that the EPA was or ought to have been, operating in its enduring phase.
The history provided by AT highlighted that she had concerns whether the EPA could work given the distance between them (AT residing in New South Wales) and that DBS was so private about her finances; she stated that it would be ‘very hard for me’; she also indicated that the alternative attorney, TN was unwell and did not want the stress of being an attorney.
The Board accepts Dr Hutchinson’s report as evidence that DBS has a disability, namely dementia – and is by reason of that disability is incapable of making reasonable decisions about her estate. The Board is also satisfied that, in light of the outstanding credit card amounts, the need for a decision to be made regarding DBS’s property, and the ongoing management of her finances, that DBS is in need of an administrator.
In the circumstances, the Board is satisfied that it is not in the best interests of DBS for the EPA to continue and in accordance with section 33(2)(f) of the Powers of Attorney Act 2000 the Board revoked the EPA and appoints an administrator. The Board is satisfied that the Public Trustee should be appointed as her administrator.

Application for Guardianship

Legislation

When the Board considers an Application for the appointment of a Guardian, it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (the Act), that the proposed represented person is:
a.a person with a disability, and
b.unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances,
c.in need of a Guardian.
The Board must also balance the principles in section 6 of the Act, which include:
a.adopting the least restriction of the proposed represented person’s freedom of decision and action as is possible in the circumstances;
b.promoting the best interests of the proposed represented person; and
c.that, if possible, the wishes of the proposed represented person are carried into effect.

Evidence

The HCPR by Dr Tabrizi provides a diagnosis of mixed alcohol and vascular dementia. The prognosis indicates a deterioration of the condition with long term cognitive impairment exacerbated by alcohol use. Dr Tabrizi’s diagnosis was consistent with the opinion expressed by Dr Hutchinson and was supported by notes in the Aged Care Assessment.
Dr Tabrizi advised that DBS’s condition impacts her orientation to person, place or time and affects her impulse control, and her planning and reasoning skills and causes a susceptibility to influence.
Dr Tabrizi expressed concern that DBS posed a risk to herself and was unable to understand the risks related to her health conditions, as she has poor insight into her own health and social needs and lacks capacity to make medical and social decisions. Dr Tabrizi was of the opinion that DBS did not have capacity to make reasonable decisions in relation to where she was to live, permanently or temporarily.
DBS indicated that she was able to make her own decisions and requested that the Board allow her 6 months to see if she could make those decisions. Ms Mitchell, however stated that during DBS’s hospital admission she had been unable to make a decision despite multiple conversations and a number of options being available to her including Roy Fagan Centre, her own home, Residential Aged Care Facility, private rental or an independent living unit.
At the hearing, Ms Mitchell advised that DBS had been transferred to [the Aged Care Facility] in an interim care bed managed by the Tasmanian Health Service. Ms Mitchell expressed that it was not safe for DBS to be discharged from the hospital without secure accommodation and support.
The Board noted that upon her return to Tasmania, DBS stated that she was unable to find accommodation, staying short term in hotels and backpacker accommodation. She was initially supported by Anglicare, however, was later referred to [the Aged Care Facility] for respite accommodation for 4-5 weeks. On 20 February 2020, DBS presented to the RHH seeking assistance with accommodation and was admitted to the Older Persons Unit. DBS discharged herself against medical advice and found accommodation at The Pickled Frog Backpackers accommodation, for one night. She was then readmitted to the RHH on 22 February 2020.
On 5 March 2020 DBS attempted to leave the RHH by booking a room at a hotel for $400 per night. During discussions with hospital staff DBS was unable to provide any plan or information as to where she would go. Upon receiving an Application for an Emergency Guardianship Order, the Board made an order appointing the Public Guardian.
Ms Harvey, Emergency Guardian, advised that DBS was at risk of homelessness if discharged without a proper plan and that she had provided consent for DBS to remain at the RHH for further treatment. Ms Harvey advised that there was a need for a decision to be made regarding where DBS would live once discharged by the RHH and although the Emergency Order did not include a power to make accommodation decisions, she had discussed the options with DBS. Ms Harvey noted that during those discussions, DBS could be agreeable but would later change her mind; she was not be able to make a decision and that DBS would regularly express a wish to be discharged to a hotel.
The Board found that although DBS has had an opportunity to make a decision regarding where she was to live and despite having apparently adequate resources to do so, that ultimately, she has not been able to make that decision.
Based on the medical evidence before it the Board was satisfied that DBS is a person with a disability and is unable by reason of the disability to make reasonable judgements in respect of matters relating to her person or circumstances. The Board was also satisfied DBS is in need of a Guardian with limited powers to decide where she should live. On the evidence before it as to DBS’s attempts to leave the RHH, the Board was satisfied that section 28 powers to enforce the guardians’ decision as to where she is to live, is required.
The Board decided that the appointment of the Public Guardian was in the best interests of DBS.

Decision

The Board orders that:
1.    Enduring Power of Attorney PA XXXXX dated 29 September 2015 made by the Donor DBS is revoked.
2.    The Public Trustee (Tas) is appointed as Administrator of the estate of DBS
3.    The Order remains in effect to 23 April 2022.
In relation to the Guardianship Application, the Board orders that:
1. The Public Guardian (Tas) is appointed as limited Guardian of DBS with the power to:
i. Decide where DBS is to live whether permanently or temporarily.
2.Pursuant to section 28 of the Guardianship and Administration Act 1995, any police officer; ambulance officer; the Public Guardian; any employee or agent of the Tasmanian Health Service or any residential aged care facility where DBS is staying as determined by the Guardian, are empowered to take the measures or actions specified below to ensure that DBS complies with any decision of the Guardian made under this Order.
Specified measures or actions:
a. the use of such reasonable force or physical and/or chemical restraint as is necessary to facilitate transport of DBS to any Tasmanian Health Service facility or any residential aged care facility determined by the Guardian from time to time; and to keep DBS or return her there should she leave, contrary to the Guardian’s decision.
3. This Order remains in effect until 23 April 2021.

[2020] TASGAB 16

1 May 2020