DPT (Review Enduring Powers)

[2017] TASGAB 20

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DPT – Review of Enduring Powers of Attorney

DPT (Review Enduring Powers) [2017] TASGAB 20

REASONS FOR DECISION

Sandra Taglieri (Chair)
Lindi Wall (Member)
Grant Kingston (Member)

Hearing 4 October 2017

Review two enduring powers of attorney - conflict between attorneys - appointment of independent administrator – lack of understanding of fiduciary duty by attorneys

Powers of Attorney Act 2000 s33
Guardianship and Administration Act 1995 s51

1. On 2 June 2014 DPT (‘the donor’) executed an Enduring Power of Attorney (“EPA”) registered as PA XXXX appointing his daughter BGN and his son QLT as attorneys jointly and severally.  It is noted that QLT accepted the appointment on 21 May 2014, prior to the donation of the power. There was no evidence, however, to suggest that the donor lacked capacity to execute this EPA in 2014.

2. The power was revoked on 2 May 2016 and the revocation was registered at 9.48am that day. That same day the donor executed another EPA appointing his other daughter QNT alone. This EPA was registered as PA XXXX at 9.54 am on 2 May 2016.

3. On 11 May 2016, without revoking PA XXXX, the donor again appointed BGN and QLT as attorneys jointly and severally.  This was registered as PA XXXX on 16 May 2016.

4. BGN has made an application to review any appointments after 24 November 2015, seeking orders to declare them invalid for lack of capacity, or alternatively to revoke such appointments. The applicant also sought the appointment of the Public Trustee as administrator for the donor.

Persons attending the hearing

1. The hearing was attended by the following:

• DPT, the donor

• Paul Conde, solicitor for DPT

• BGN, daughter

• Daphne Yeah (Jennings Elliott) solicitor for BGN

• QLT, son

• QNT, daughter

• XD, carer for QNT

• Nikki Targett (Office of the Public Guardian)

• Edward Kempa (Public Trustee)

• KE, relative

• Dr Alison Cleary by phone for part of hearing to provide medical evidence

Documents before the Board

1. The Board had available the following documents relevant to this application:

• Application for Review of EPAs dated 17/05/2017

• Health Care Professional Report (HCPR) and medical certificate dated 20/01/2017 from Dr Craig Brown and correspondence to him from Dr Cleary dated 24/04/2017

• ACAT Report dated 21/10/2015

• Extensive submissions and statements from DPT, BGN, QLT and QNT

• Statutory declarations from QE and TE (niece of DPT)

• Copies of donor’s ANZ Bank statements

• LIST Property report for donor’s residence

• EPA no PA XXXX

• Revocation document no PA XXXX

• EPA no PA XXXX

• EPA no PA XXXX

The hearing of the review application

1. Section 33 of the Powers of Attorney Act 2000 (‘’the Act”) provides for the review of enduring powers of attorney by the Guardianship and Administration Board. The applicant is the daughter of the donor and a donee of an enduring power of attorney. She is therefore a person with a proper interest in bringing the application.

2. The Board first considered the validity of the two 2016 EPA’s by examining the evidence about the donor’s understanding of the nature and effect of the instruments. The medical evidence was as follows: Dr Brown, a GP, provided an equivocal HCPR in which he reported that the donor suffered from moderate Alzheimer’s disease. He answered ‘yes’ to the question of whether the donor had the requisite understanding of the instruments at the date of execution, though he did not specifically assess for this. He also said, however, that although the donor was capable of basic daily transactions, he understood that his son assisted with his finances and that the donor would benefit from guidance.

3. Dr Cleary gave evidence by phone. She had assessed the donor in 2015 following his recovery from depression. She diagnosed slowly progressing mixed Alzheimer’s/vascular dementia. While she did not assess the donor at the time of execution of the EPAs in 2016, she gave evidence that his cognition had deteriorated a little bit from 21/30 in 2015 to 19/30 in 2017.  His cognition was of concern to her in 2015 noting that he was predominantly amnestic with disexecutive features. In April 2017 those features were evident and Dr Cleary described poor orientation/recall and impairment across executive skills. He struggled with numeracy skills on testing. He was insightless and had a poor understanding of his current circumstances. He understood the concept of an EPA in very basic terms but on delving deeper, he had no knowledge of changing his EPAs, did not know that there were two documents or that there was conflict about it between his children. He would be susceptible to influence with a poor awareness of the issues at hand. Dr Cleary concluded that in April 2017 the donor did not have capacity to manage his finances beyond the simple handling ‘petty cash’. He did not possess the skills for financial decision making and would need oversight for day to day financial issues. Dr Cleary’s evidence was not challenged.

10.  The lay evidence as to capacity was divided. The applicant and QLT both asserted that at the date of execution of the documents the donor did not have the relevant capacity, even though they themselves had proceeded with the appointments in 2016 despite this belief. The donor and QNT both asserted the contrary, although after hearing Dr Cleary’s evidence QNT concurred with her characterisation that her father’s understanding of an EPA was “very basic” in 2016. The donor himself could not explain why he appointed an attorney in 2014, why he revoked it or why he made the further appointments in 2016. When asked if he believed he has capacity to understand his finances or whether he needed assistance, he did not understand the question saying his mind was ‘in a whirl’. When the question was explained further he acknowledged that he required assistance with his finances.

11.  Taking into account the unchallenged medical evidence, particularly the slow deterioration in cognition between 2015 and 2017, the Board formed the view that it was likely that the donor did not have the requisite capacity to execute the EPAs in 2016. However, it was not necessary to make such a finding since it heard uncontradicted evidence that irrespective of the validity of the EPAs, the current powers were unworkable due to the conflict between the attorneys including their accusations towards each other of impropriety in dealing with the donor’s money. Each acknowledged receipt of funds from the donor and there was a lack of clarity as to whether these sums were gifts or loans. In addition to this the attorneys all conceded that they had not fully understood their fiduciary duties and had not appreciated their obligations in the role. For all these reasons the applicant urged the revocation of the EPAs and the appointment of an independent administrator.

12.  The donor gave evidence that he wanted the status quo to remain, which he understood to mean that QNT would continue to look after his finances. It was common ground, however, that it was QLT who performed all but the day to day financial decision making with which QNT assisted her father. All the evidence, save for that of the donor who did not appreciate the issue, supported the fact that the three attorneys could not continue in that role for the reasons previously stated. The Board was therefore satisfied that it was in the donor’s best interests to revoke all three EPAs.

13. Section 33(2)(f) of the Act gives the Board power to revoke an EPA and, if it thinks fit, appoint an administrator of the estate. To this end the Board considered the criteria set out in s. 51 of the Guardianship and Administration Act 1995 (“the GA Act”).

14.  In considering whether the donor was a person with a disability, the Board relied on the report and oral evidence of geriatrician Dr Alison Cleary set out above. The Board was satisfied that the donor had a disability; namely deteriorating dementia.

15.  Dr Cleary’s evidence was that the donor was, as a result of his disability, unable to make reasonable decisions about his financial affairs. He might manage minor day to day transactions with support but would not be able to manage any significant financial decision making. The Board was therefore satisfied that the donor lacked capacity to manage his finances.

16.  It was uncontroversial that the donor relied on his children to manage his financial affairs except for his use of his debit card for small day to day purchases. The Board was therefore satisfied that there is a need for an administrator.

17.  The applicant and QLT both strongly supported the appointment of the Public Trustee as statutory administrator independent of the family. Save for concerns expressed to her by her father about the expense of such an appointment, QNT was not opposed to the appointment of the Public Trustee. The donor did not want the Public Trustee appointed, preferring the status quo to be continued. However, his answers to questions and the medical evidence demonstrated his lack of insight into the fact that this option would be unworkable and contrary to his best interests.

18. Section 54(1)(a) of the GA Act gives primacy to the Public Trustee as eligible administrator of the estate of a proposed represented person. The appointment of the Public Trustee has the advantage of expertise in estate management and provides security to the estate against loss or damage. It provides the benefit of independence and neutrality and precludes the adverse effects of family conflict which brought this matter before the Board. The undisputed evidence of the degree of family conflict in this case was such that the statutory administrator was, in any event, the only possible appointment for the Board to make.

19.  For these reasons the Board appointed the Public Trustee as administrator of the donor’s estate.

On 4 October 2017 the Board Ordered:

20. The Board declares that pursuant to s33(2)(f) the Enduring Powers of Attorneys numbers PAXXXX, PAXXXX, PAXXXX and PAXXXX are revoked and an administrator is appointed in respect of DPT’s estate.

THE BOARD ORDERS:

1. That all three powers are revoked from the date of this order.

2. That the Public Trustee is appointed as administrator of the estate of DPT.

3. That the powers and duties of the administrator be those conferred by Division4 of Part 7 of the Guardianship and Administration Act 1995.

4. That the administration order remains in effect until 3 October 2020.

DATED this 4 October 2017

Sandra Taglieri  Grant Kington  Lindi Wall
Chair  Member  Member