DFS (Review of Enduring Power of Attorney)
[2021] TASGAB 49
•28 October 2021
CITATION: | DFS (Review of Enduring Power of Attorney) [2021] TASGAB 49 |
HEARING DATE(S): | 28 October 2021 |
DATE OF ORDERS: | 28 October 2021 |
DATE OF STATEMENT OF REASONS: | 18 November 2021 |
BOARD: | Mr R Greuber, Senior Member Mr G Dibley, Member Ms V Jones, Member |
APPLICATION | Review of Enduring Power of Attorney |
CATCHWORDS: | Enduring Power of Attorney – review - capacity of donor – power not yet entered enduring phase – collateral purpose for seeking review - futility of making an order |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3, 51 Powers of Attorney Act 2000, ss 33 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Application
By an Application dated and filed 28 September 2021 (‘the Application’) XKS applied for Review of an Enduring Power of Attorney dated 17 March 2016 registered on 15 April 2016 number PAXXXXX (‘the EPA’) granted by DFS.
The Application seeks alternatively: a determination about the operation of the EPA, a suspension of the operation of the EPA, a revocation of the EPA or the appointment of a new attorney or an administrator.
Hearing
The Application was heard by the Board on 28 October 2021.
The following people appeared at the hearing:
a.XKS (the Applicant and DFS’ son);
b.DFS (the donor);
c.Dr Jane Tolman (geriatrician);
d.NS (Attorney and DFS’ daughter);
e.DN (Attorney and DFS’ daughter);
f.Paula Sutherland (Legal Practitioner for DFS);
g.Nicole Mitchell (Public Trustee);
h.TI (DFS’ daughter);
i.HS (DFS’ son);
j.BF (DFS’ daughter);
k.QE (DFS’ daughter); and
l.NK (DFS’ granddaughter);
The Board had before it the following documents:
a.Application to Review of an Enduring Power of Attorney dated and filed 28 September 2021;
b.Report by Dr Jane Tolman to Dr Andrew Hutchison dated 11 October 2021;
c.General Enduring Power of Attorney of DFS dated 17 March 2016 and registered on 15 April 2016 no.PAXXXXX ;
d.Instrument appointing Enduring Guardian dated 17 March 2016 and filed on 21 April 2016 no.XXXXX ;
e.My Aged Care Assessment dated 23 June 2018;
f.LIST Property Information Report for [Address];
g.Letter from McMullen Lawyers to Simmons Wolfhagen dated 20 March 2020 with sale settlement statement;
h.Email from XKS to NS and others dated 19 June 2020;
i.Email from NS to XKS dated 14 April 2020;
j.Email from XKS to NS and others dated 14 April 2020;
k.Email from XKS to NS and others dated 26 September 2020;
l.Email from HS to NS dated 13 September 2020;
m.Email from XKS to DN dated 11 February 2021;
n.Message from XKS to DN dated 10 February 2021;
o.Email from XKS to the Board dated 19 October 2021;
p.Statutory Declaration by HS made 14 October 2021;
q.Statement by TI dated 20 October 2021;
r.Statement by DN dated 12 October 2021;
s.Statement by BF dated 7 October 2021;
t.Statement by NS dated 15 October 2021;
u.Accounts for DFS from 1 October 2020 to 30 September 2021;
v.Two family photographs;
w.Reference for NS by MV dated 10 October 2021;
x.Reference by VF for NS undated;
y.Statement by QE dated 10 October 2021; and
z.Australian Taxation Office Notices of Assessments for DFS for 2019, 2020 and 2021 financial years.
Evidence
The donor in this matter, DFS, was married to OS, who died on 15 March 2019. DFS and OS had seven children. Unfortunately, it was apparent from the evidence that a schism has arisen within the children, dividing them into two factions. On one side is NS, DN, QE and BF. On the other side is XKS, TI and HS.
The fact of the schism is relevant to understanding the genesis of the Application. As to the substance of it, it is sufficient to note that the division arose from different views and blame in connection with a substantial loan or gift by DFS and OS to XKS to assist with medical treatment of his daughter C, and the subsequent loss by XKS of his home and business, allegedly in connection with repayment.
On 17 March 2016 DFS signed the EPA appointing her then husband OS as her attorney and in the alternative appointing her daughters NS and DN if OS became incapable or unavailable to exercise the appointment. On OS’s death on 15 March 2019 NS and DN became DFS’ attorneys. On the same date as she signed the EPA, DFS also signed an instrument of Enduring Guardianship appointing OS as her guardian and NS and DN in the alternative. There is some confusion of the terms ‘attorney’ and ‘guardian’ between the two documents, but nothing turns on that.
In the Application XKS expresses concerns about NS and DN misusing and abusing their powers as attorneys, not as might be expected in respect to the management of DFS’s estate, but in respect to her relationship with her family. He wants the Public Trustee to take over management of his mother’s affairs and not use the power ‘as a pawn in a game of sibling and cousin rivalry to create division and distrust’, which might then result in reconciliation within the family. For the reasons set out below, XKS’ use of the process for reviewing an EPA to achieve some sort of change in the balance of power or rapprochement within the family is misconceived and the application must be dismissed.
The crucial issue for the Board, and one which was raised at the outset of the hearing, was DFS’ legal capacity. In the Application XKS candidly states that DFS does not have any diagnosed disability. The Board was provided with a report by Dr Jane Tolman, geriatrician, dated 11 October 2021 to Dr Andrew Hutchinson, DFS’ GP. Dr Hutchinson referred DFS to Dr Tolman for an assessment, particularly in respect to capacity, in the light of the Application. Dr Tolman undertook an assessment of DFS’ cognition. Dr Tolman’s conclusions were as follows:-
I found DFS to be remarkably insightful. It is my clinical impression that there is no cognitive impairment at all.
I have rarely seen a resident so well set up as DFS is, and she herself feels very well supported by the majority of her children. She goes out, she enjoys her hobbies, and she walks to Mass. She has identified risks around the house and has herself rectified them.
DFS was clearly saddened by recent events including the submission of papers to review her chosen powers of attorney and guardian. She shed tears when talking about her sons and their actions. I do not think she is depressed, but she is clearly affected by what she sees as undermining and cruel behaviour by her sons.
There may be matters of which I am unaware, but DFS has good cognition and is making very sensible decisions about her home and about how to stay independent. She enjoys a good relationship with her daughters. I see no reason to believe that there are grounds for overturning her current powers of attorney and guardianship documents.
Dr Tolman attended the hearing and gave evidence. She said that in his referral Dr Hutchinson expressed his perplexity in respect to the matter. Dr Hutchinson had noted that he considered that DFS had full capacity and that he had known her over a long period of time. Dr Tolman said that she found DFS a woman of high intellect. She was impressed by DFS’ attitude and insight and her cognition, notwithstanding that she was shaken by the Application and the family circumstances. Dr Tolman made note of what she referred to as little things, such as how the house was set up. Dr Tolman said that she does not believe that she has been in a house so well set up for a person’s needs. DFS explained to Dr Tolman why she had made changes in the house to reduce risks. Dr Tolman found no issues with DFS’ cognition. She considered that DFS had the capacity to both appoint and revoke an enduring power of attorney. She had no concerns whatsoever in that regard and considered the issue very straightforward.
DFS told the Board that she wanted NS and DN to continue as her attorneys. She said that she would not have it any other way. She would not consider appointing anyone else in their place. She trusts them. The attorneys do not currently exercise their powers under the EPA.
XKS told the Board that he did not assert that DFS lacked capacity. Nor was he concerned that she was not being taken care of. He said that he made the Application to bring to the Board’s notice what he described as intimidation, manipulation and misrepresentation that he, XKS, ‘had to cop’ when he visited DFS.
No person attending the hearing asserted that DFS lacked capacity. Notwithstanding that the Board explained several times the limits of its jurisdiction in the circumstances of DFS having capacity, several of her children spoke to the dysfunction within the family. There is little point in setting out those matters. It is sufficient to observe that none of them related to substitute decision making or to DFS’ capacity to make decisions. It is not necessary for the Board to make any finding in respect to any of the allegations raised as between DFS’ children.
Determination
Section 33(1) of the Powers of Attorney Act 2000 (‘the PA Act’) provides that the Board may review an EPA. On the face of the section it is not necessary that the EPA enter its enduring phase for a review to be conducted. Section 33(2) sets out a range of powers available to the Board on review. Section 33(2)(b) provides that the Board may appoint a substitute attorney and section 33(2)(f) provides that the Board may revoke an EPA and appoint an administrator of the donor’s estate.
Although the PA Act does not expressly provide that the exercise of those powers is dependent on the donor having lost capacity and the EPA having entered its enduring phase, exercising those powers would be futile in the circumstances. The evidence established positively that DFS has capacity to make and revoke an EPA. If the Board were to revoke the EPA she could make a new one in the same terms. If the Board were to vary the EPA to substitute an attorney she could further vary it to reappoint the substituted attorney, or revoke it and make a new EPA in the same terms. It should be noted that, given the evidence in respect to DFS’ capacity and her very firm views as to maintaining the EPA in its current terms, the Board would not vary or revoke it even if doing so was not futile.
For the sake of completeness, something should be said about the appointment of an administrator of DFS’ estate. Section 33 of the PA Act provides that the appointment of an administrator under that section has the same effect as if it had been made under the Guardianship and Administration Act 1995. In making such an Order the Board would consider the criteria for making an Administration Order under that Act. Pursuant to section 51(1) the Board may only make an order appointing an administrator if it is satisfied that the proposed represented person is a person with a disability within the meaning in section 3(1) of the Act, and that he or she 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. Once again, there was no evidence or assertion that DFS is a person with a disability. The evidence positively established that DFS had no issues of cognition.
Whatever XKS’ motives in terms of repairing the rift in the family, the Application is misconceived. The Board has no inherent jurisdiction. Its powers are limited to those granted to it by legislation. It is not a forum for healing internecine sibling rifts.
Order
The Board orders that:
1. The Application for Review of the Enduring Power of Attorney PAXXXXX is dismissed.
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