DEV (Review of Enduring Power of Attorney and Guardianship)

FILE:	DEV (Review of Enduring Power of Attorney and Guardianship) [2020] TASGAB 56
HEARING DATE(S):	23 October 2020
DATE OF ORDERS:	23 October 2020
DATE OF STATEMENT OF REASONS:	11 November 2020
BOARD:	Mr R Grueber, Member Clin/A/Prof R Wallace, Member Mr A Mihal, Member
APPLICATION:	Application to Review an Enduring Power of Attorney and Application for Guardianship
CATCHWORDS:	Guardianship – need for guardian - revocation of enduring power of attorney – appointment of an administrator – conflict within family – proposed represented person’s wishes
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, 51, 63 Powers of Attorney Act 2000 (Tas), s 33
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Applications

By an Application dated 2 September 2020, Mr HKV applied to the Guardianship and Administration Board (‘the Board’) for a Guardianship Order in respect to Ms DEV. Mr HKV is Ms DEV’s son. The Application proposed that either Mr HKV or the Public Guardian be appointed as Guardian.
By an Application dated 9 September 2020, Mr KC applied for the Review of an Enduring Power of Attorney (‘EPA’) by Ms DEV appointing Mr HKV as her Attorney. The EPA was made on 19 November 2018 and registered on 28 January 2020 with number PA 122092. Mr KC is Ms DEV’s carer. The Application raised no issue in respect to the validity of the EPA. The Application sought the amendment of the EPA to substitute the Public Trustee as Attorney or to appoint the Public Trustee as Administrator of the estate of Ms DEV.
A request for a Statement of Reasons was received by the Board from Mr HKV on 3 November 2020.

Hearing

The Applications were heard by the Board together on 23 October 2020.
The following persons appeared at the hearing:
a.Mr HKV (the applicant in respect to the Application for Guardianship);
b.Mr KC (the applicant in respect to the Application for Review of the EPA);
c.Ms DEV (the proposed represented person and donor of the EPA);
d.Mr Ben Harris (Legal Aid Commission of Tasmania as counsel for Ms DEV);
e.Ms Claire Morgan (Advocacy Tasmania as advocate for Ms DEV);
f.Ms Jessica Watson (Public Trustee);
g.Ms Maddy Russell (Office of the Public Guardian);
h.Ms Kellie Bolch (NDIS Support Co-ordinator);
i.Mr Sharon Webber (Carer);
j.Ms Kim Bevan ([the residential care facility], Social Worker);
k.Ms Michelle Garland ([the residential care facility], Manager of Community Services); and
l.Ms Jo Dobson ([the residential care facility], case manager).
At the hearing the Board considered the following documents:
a.Application for Guardianship including appendices;
b.Application to Review the Enduring Power of Attorney with attachments;
c.General Enduring Power of Attorney Registered Number PA[XXXXX X];
d.Healthcare Professional Report by Dr Jane Tolman dated 5 September 2020;
e.Letter from Dr Tolman to Dr Katelyn Brooks dated 16 August 2020;
f.Letter from Dr Brooks addressed ‘To whom it may concern’ dated 30 July 2020;
g.Royal Hobart Hospital Inpatient Discharge Summary dated 25 May 2020;
h.Brighton Doctors Health Summary Sheet dated 4 August 2020;
i.Bank of Us account details dated 10 September 2020;
j.Centrelink Disability Support Pension claim form;
k.Orders of the Board dated 1 October 2020 adjourning the Applications to hearing on 23 October 2020;
l.Email from Mr HKV to the Board dated 15 October 2020;
m.Letter from Ms Michelle Garland, Manager of Community Services, [the residential care facility], to the Board dated 16 October 2020; and
n.Australian Criminal Intelligence Commission Criminal History Check Certificate in respect to Mr HKV dated 21 October 2020.

Guardianship & Administration Act 1995

Under section 20 of the Guardianship & Administration Act 1995 (‘the GAB Act’) the Board may make an Order appointing a full or limited Guardian in respect of Ms DEV if it is satisfied that:-
a.She is a person with a disability; and
b.She is unable by reason of that disability to make reasonable judgments in respect of all or any matters relating to her personal circumstances; and
c.She is in need of a guardian.
In determining whether or not an Order should be made section 20 of the GAB Act requires:-
a.That the Board consider whether the needs of Ms DEV could be met by other means less restrictive of her freedom of decision and action; and
b.That the Board be satisfied that an order would be in Ms DEV best interests; and
c.That the Board not appoint a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of Ms DEV, and if an order is made appointing a limited guardian that the order be the least restrictive to Ms DEV’s freedom of decision and action as possible in the circumstances.
The Board must also have regard to the general principles in section 6 of the GAB Act which adds the requirements that:-
a.The best interests of Ms DEV be promoted; and
b.That the wishes of Ms DEV are, if possible, carried into effect.

Powers of Attorney Act 2000

The power of the Board to make Orders in respect of Enduring Powers of Attorney are set out in section 33 of the Powers of Attorney Act 2000 (‘the PA Act’).
Section 33(1)(d) of the PA Act provides that on Application by a person the Board believes has a proper interest in the matter, the Board may hold a hearing in accordance with Division 1 of Part 10 of the GAB Act to review an EPA.
Section 33(2) of the PA Act provides that on review the Board may make certain Orders following a review including to:
a.Vary a term of, or a power conferred by, the EPA (section 33(2)(a));
b.Appoint a substitute attorney (section 33(2)(b));
c.Appoint an Administrator of the estate of the donor (section 33(2)(c)); and
d.Revoke the EPA and appoint an Administrator of her estate (section 33(2)(f)).
Section 33(3) of the PA Act provides that the appointment of a person as an Administrator under section 33(2)(f) has the same effect as if the appointment had been made under Part 7 of the GAB Act.
Section 51(1) of the GAB Act provides that the Board may make an Order appointing an Administrator in respect to a person’s estate if it is satisfied that:-
a.That person is a person with a disability; and
b.That person is unable by reason of that disability to make reasonable judgments in respect of matters relating to all or any part of his or her estate; and
c.That person is in the need of an administrator of his or her estate.
In determining whether or not an Order should be made section 51(2), (3) and (4) of the GAB Act require that:-
a.The Board must consider whether the needs of that person could be met by other means less restrictive of his freedom of decision and action; and
b.The Board must not make an order unless it is satisfied that the order would be in the best interests of that person; and
c.If an order is made it must be the least restrictive of that person’s freedom of decision and action as possible in the circumstance.
The Board must also have regard to the general principles in section 6 of the GAB Act which add the requirements that:-
a.The best interests of the person be promoted; and
b.The wishes of the person are, if possible, carried into effect.

Evidence

The two Applications were dealt with by the Board together and evidence in each was taken as evidence in the other.
Ms DEV was born on [date of birth] and at the date of the hearing was 63 years old. She lived in Devonport and had worked as a cleaner and hospital aide until settling a worker’s compensation claim. After settling the claim she moved from Devonport to [the town in Tasmania].
Ms DEV has three children, including Mr HKV. Mr HKV lives in Western Australia. He had a career in the military and now works in project management. He has tertiary and post-tertiary qualifications. He is close to his mother. She appointed him as her Attorney under the EPA. Since 2017 she has entrusted him with substantial funds of hers.
Ms DEV met Mr KC in early 2012. Within two weeks they were engaged, but have not married. Until recently they managed a long-distance relationship with Ms DEV living in Devonport and Mr KC in [the town in Tasmania]. Mr KC travelled the State regularly in the course of his business. Mr KC described the relationship as a romantic one. They did not live together until fairly recently, following the settlement of Ms DEV’s worker’s compensation claim. As a result of that settlement Ms DEV was subject to a preclusion period for receipt of Centrelink benefits and she took up a suggestion by Mr KC that she move to his home at [the town in Tasmania] where she could live rent free until she was eligible to receive a Centrelink benefit.
In mid-December 2019 Ms DEV experienced a subarachnoid haemorrhage. She was admitted to the Royal Hobart Hospital on 13 December 2019 and underwent a right fronto-temporal craniotomy on 14 December 2019. Her condition was complicated by a number of secondary and subsequent medical conditions. She was transferred from acute care to rehabilitation in May 2020, at which time she was experiencing a severe left sided hemiplegia affecting both her upper and lower limbs, and severe left sided sensory and visual effects. She had significantly lowered cognition with short term memory loss and disorientation, and limited insight into her condition. She was subsequently discharged to Mr KC’s home with a National Disability Insurance Scheme (‘NDIS’) care package.
Ms DEV was referred to Dr Jane Tolman, a geriatrician, on referral from her GP, Dr Katelyn Brooks. Dr Tolman assessed Ms DEV on 7 and 14 August. In a report to Dr Brooks dated 16 August 2020 Dr Tolman wrote:
It is clear to me that Ms DEV does not have the cognitive capacity to manage her own finances, and I base this on her poor executive function, her lack of insight, her poor appreciation of her own deficits and in general her ongoing impaired cognition as a result of her brain injury…
I do not think that Ms DEV has the cognitive capacity to make an informed decision about her medical care, personal care or accommodation needs, and I base this on: Ms DEV’s ongoing dysfunction, poor insight (anosognosia), confabulation and other cognitive deficits.
Dr Tolman reported that Ms DEV’s physical symptoms had improved and that the improvement in her function was likely to continue, depending on provision of appropriate therapy. In a Healthcare Professional Report dated 5 September 2020, Dr Tolman referred to the letter to Dr Brooks and noted that Ms DEV’s cerebral haemorrhage had damaged her executive function resulting in major deficits in insight, problem solving, common reasoning and planning. She noted that there had been gains in Ms DEV’s physical function but not in cognitive function.
Mr KC is Ms DEV’s primary carer. He has assistance from [the residential care facility] (which is primarily an aged care provider), Glenview (an NDIS approved provider) and Ms Kellie Bolch who is her NDIS Co-ordinator. Mr KC remains fully employed in his own business, which is flexible enough to enable him to attend to care for Ms DEV if required during the day. Issues had arisen in respect to the level of Ms DEV’s care. In particular, Mr KC has concerns in respect to the level of service provided by [the residential care facility] which required his attendance and involvement to assist with matters such as lifts, provision of medication and toileting. Those issues have resulted in a level of carer fatigue and a degree of conflict between Mr KC and [the residential care facility]. The level of care is being addressed by Mr KC and Ms Bolch with Ms DEV’s engagement. Ms Bolch described Ms DEV as having significantly improved. She said that Ms DEV is now fully engaged in conversations about her care. She will have her say and is not reluctant to argue with Mr KC. Ms DEV took part in and contributed to an NDIS review including budget considerations. Ms Bolch did not consider that there was a need for a substituted decision maker in respect to NDIS services given the level at which Ms DEV was able to engage in supported decision making.
The Board had a clear impression that both Mr HKV and Mr KC have Ms DEV’s best interests at heart. Ms DEV is clearly fond of and trusts both of them. Unfortunately, the relationship between Mr HKV and Mr KC has broken down. Mr HKV does not support his mother’s relationship with Mr KC. As is common in such circumstances, there was a significant amount of evidence from each of Mr HKV and Mr KC criticising the actions or inactions of the other. An example of the resultant dysfunction was in respect to applications for Ms DEV to obtain a Disability Support Pension (‘DSP’). Mr HKV partially prepared an application but contended that it was not completed because Mr KC failed to provide information about his finances. Mr KC contends that that information was not required because of the nature of his relationship with Ms DEV and he arranged a separate application with the assistance of a social worker from [the residential care facility], but claims that Mr HKV interfered with the processing of that application. Ultimately Ms DEV was granted a DSP. There is no need to detail the criticisms made by Mr HKV and Mr KC of each other, nor to make findings in respect to the facts alleged. Mr HKV made the Guardianship Application because he was concerned that Mr KC was limiting his access to Ms DEV, that Mr KC wanted Ms DEV to invest in property dealings and that Mr HKV was not receiving information in respect to Ms DEV’s circumstances. Mr KC applied for a review of the EPA because he was concerned about the transparency of Mr HKV’s dealing with the proceeds of Ms DEV’s worker’s compensation settlement and perceived limitations on Ms DEV’s ability to access her funds.
Since Ms DEV’s experienced her subarachnoid haemorrhage, Mr KC has been paying her general living expenses. He has not sought and does not seek repayment of those expenses. He manages payments for her care through her NDIS package. He does not have any joint financial holdings with Ms DEV and says that their finances have always been separate and that he has no interest in her financial assets.
Mr HKV has received funds from Ms DEV from time to time since 2017. Mr HKV said that the reason that Ms DEV provided him with the funds was to hide them from Mr KC who wanted her to invest in real estate. He currently holds about $150,000.00 for her. That includes the proceeds of the settlement of her worker’s compensation claim which were a little under $70,000.00. The funds are held in an account which is his, not an account managed or in trust for Ms DEV. That account includes funds of Mr HKV and his wife which are roughly equal to those of Ms DEV. Payments have been made out of that account to or on behalf of Ms DEV from time to time. Mr HKV maintains a spreadsheet to keep track of the funds paid to him by Ms DEV and payments of her funds out of the account. Mr HKV saw no issue with mixing his funds with those of Ms DEV during the currency of the EPA. Mr HKV made some changes to Ms DEV’s banking arrangements. He cancelled her credit card, which had a $6,000.00 limit, to reduce any risk of undue influence. He opened a National Australia Bank (‘NAB’) account with a balance of about $500.00 with a debit card for Ms DEV’s discretionary spending. She has a Bank of Us account with a balance of $6000.00 - $7,000.00. Ms DEV’s ability to access her bank accounts has not been limited by Mr HKV. Notwithstanding this it appears that Ms DEV had not accessed her own funds for discretionary spending.
Mr Harris, counsel for Ms DEV, told the Board that Ms DEV did not believe that she needed a Guardian. She wanted to continue with the current accommodation arrangements, living with Mr KC. She understood that her situation placed a lot of stress on Mr KC and that he could use more support. She is focussed and driven to recover her physical capacity to walk. She feels that she can manage her day to day finances but has not been able to access her funds in order to be able to do so. Ms DEV is engaged with the decision-making process around provision of services. She is concerned about the level of support. She is adamant that Mr KC had not limited her communications with her family. She always kept her financial arrangements separate from Mr KC and does not feel that he has any financial influence over her. She considered that she had sufficiently recovered to take back management of her financial arrangements, but that if the Board took a different view her preference would be that the EPA be revoked and the Public Trustee appointed as her Administrator. Her rationale for this was to remove the point of conflict within her family between Mr HKV and Mr KC.
Ms Morgan, Ms DEV’s advocate, described similar instructions from Ms DEV. Ms DEV did not believe that she required a Guardian or an Administrator. She was happy with the current accommodation arrangements with Mr KC. Once she recovered sufficiently she would like to return to the North West Coast. If a Guardian or an Administrator was to be appointed she would prefer it to be the Public Guardian and Public Trustee. This was because of the level of family conflict. She would prefer this issue to be removed for the benefit of her family relationships.
Ms DEV expressed similar views directly to the Board. She told the Board that she was happy to remain in Mr KC’s home. When asked what services she required she said that Mr KC was doing a fantastic job although he could do with a bit of a break. She appointed Mr HKV as her Attorney because he trusted him. She still trusts him. However, if anyone is to be appointed by the Board to manage her financial affairs, she would prefer that person to be independent. She would prefer her relationship with Mr HKV to be that of mother and son. She is upset about the breakdown in the relationship between Mr HKV and Mr KC. She is not sure how to improve that relationship. Ms DEV believed that she had come a long way in terms of her recovery. She was able to tell the Board that she had a NAB account and a Bank of Us account, but had some confusion about the name of that financial institution. She was aware that Mr HKV had changed her arrangements and opened the NAB account. She believed that she still had a credit card. When asked about how much money she had sent to Mr HKV she referred to it being easier to send money to him for the purchase of Christmas and birthday gifts. When it was suggested to her that she had sent large sums to Mr HKV and she was asked how much her answer was not responsive to the question, but that she had been over there (Western Australia) last Christmas. When asked how much she had received from the worker’s compensation settlement, she said that she had no idea. When asked what happened to the funds from that settlement she said that she had no idea. She had no recollection of receiving a settlement. She had some idea that solicitors had acted for her, but when asked about the outcome she said that she could not remember anything about it. When asking how she would access her funds she said that she would sometimes go with Mr KC. When asked about ongoing phone expenses she said that she had a phone plan and some insurance. She did not describe how she arranged those payments.

Does Ms DEV have a disability?

The report of Dr Tolman indicates that Ms DEV experiences significant deficits in executive function, particularly in respect to insight, problem solving, reasoning and planning. There is no expert opinion to the contrary. The Board accepts Dr Tolman’s evidence and finds that Ms DEV has a disability.

Is Ms DEV, by reason of her disability, unable to make reasonable judgments in respect to all or any matters regarding her personal circumstances or her estate?

Dr Tolman’s opinion is that Ms DEV lacks the cognitive capacity to make informed decisions about her needs because of her disability. In her evidence to the Board it was apparent that Ms DEV had limited understanding of the extent of her estate and that her view that she could manage her finances was not reflected in her actually having taken any steps to do so since her suffering the subarachnoid haemorrhage. The Board is satisfied that she has an inability to make reasonable judgments in respect to her estate and financial matters by reason of her disability.

Is there a need for a Guardian?

Notwithstanding her reduced ability to make reasonable judgments by reason of her condition, Ms DEV is clearly well engaged in the decision-making process surrounding her services, with the support of Mr KC and Ms Bolch. Although there have been limitations in respect to those services it appears that those limitations are being addressed. It is not apparent to the Board that there is an immediate need to appoint a Guardian to facilitate decision making in respect to this area. There is not compelling evidence of need in respect to any other areas of decision making.

Is there a need for an Attorney or Administrator?

The current arrangements in respect to managing Ms DEV’s financial affairs are not satisfactory. Substantial funds of hers are mixed with funds of Mr HKV and his wife. She is not accessing her funds for discretionary purposes. She does not have an understanding of the extent of her estate. There is clearly a need for an Attorney or Administrator.

What are Ms DEV’s wishes?

Ms DEV made it clear to the Board that her preference, if anyone was to be appointed, would be to appoint the Public Guardian or Public Trustee in respect to Guardianship or Administration of her estate respectively. She had provided consistent instructions to Mr Harris and Ms Morgan. Her rationale for this, to avoid a point of friction within her family relationships, was apparently well considered.

Can Ms DEV’s needs be met by less restrictive alternatives?

The least restrictive approach to Ms DEV’s needs relevant to Guardianship is for the current arrangements to continue. Her needs are apparently well met through supported decision making without the need for substituted decision making. In respect to Administration the current arrangements are not working and there appears to be no less restrictive way of managing Ms DEV’s finances other than by a substituted decision maker.

Ms DEV’s best interests

It is in Ms DEV’s best interests that her finances be administered in a transparent manner that is responsive to her needs. For the reasons set out below it is also in her best interests that this be done by the Public Trustee.

Is a Limited Order sufficient to meet Ms DEV needs?

In respect to Administration, the least restrictive approach would be an unrestricted authority to an Attorney or Administrator to manage her estate and day to day finances.

Should the Enduring Power of Attorney be revoked and an administrator appointed?

While there is no suggestion that Mr HKV has anything other than Ms DEV’s best interests at heart it is not appropriate that her funds be intermingled with funds belonging to him and his wife. The current arrangements in respect to the application of Ms DEV’s funds for her needs and benefit are not satisfactory, and it is apparent that the distrust between Mr HKV and Mr KC contributes to that. Ms DEV has expressed a very clear and considered preference that, if her affairs are to be managed, it should be by an independent person, in this case the Public Trustee. Her reasons for that position, being the removal of a source of family conflict and the normalisation of her maternal relationship with Mr HKV, are clear, logical and compelling in the circumstances. There is no automatic oversight or audit of an EPA. The appointment of an Administrator would engage the reporting requirements in section 63 of the GAB Act and contribute to the transparency that all parties desire. In all the circumstances the Board’s view is that the EPA ought to be revoked and an Administration Order be made appointing the Public Trustee as Ms DEV’s Administrator.

Orders

In respect to the Application for Guardianship the Board’s order is:-
1.The Application for Guardianship is dismissed.
In respect to the Application for Review of the Enduring Power of Attorney the Board’s orders are that:-
1.The Enduring Power of Attorney PA 122092 dated 19 November 2018 made by the Donor DEV is revoked.
2.The Public Trustee (Tas) is appointed as Administrator of the estate of DEV.
3.The Order remains in effect to 22 October 2023.

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[2020] TASGAB 56

23 October 2020