DXX (Emergency Suspend EPA and Administration) Summary

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DXX – Emergency suspension of an enduring power of attorney and appointment of an emergency administrator

DXX (Emergency Suspend EPA and Administration) [2015] TASGAB 13

REASONS FOR DECISION

Anita Smith (President)

Date of decision: 17 June 2015

Enduring powers of attorney – suspension and emergency order – continuation of order after first emergency order expired – investigations continuing – conflict issues still unresolved

Powers of Attorney Act 2000 s. 33(4)
Guardianship and Administration Act 1995 s. 65(2) and 65(4)(a)

On 30 April 2015 the Board received an application from Advocacy Tasmania Inc. in relation to DXX (the donor) who executed an enduring power of attorney appointing DN as his attorney.
On 15 May 2015, the Board made an emergency administration order and suspended the enduring power of attorney PAXXXX for reasons set out in a statement of reasons which were delivered on 5 June 2015.
In May 2015 there was a concern that the represented person’s property may be transferred imminently, and possibly below valuation, to his attorney. There was also concern that the same solicitor was acting for the attorney and the donor in relation to that transaction. The donor’s nursing home fees are $25,000 in arrears.
On 25 May 2015, the Board received a letter from the solicitor, acting on behalf of the donor, disputing most aspects of the application and the need for an order in the circumstances. The Board also received a letter from the attorney in response to some requests by the Board’s investigator made 15 May 2015. Although that response answered some of the investigator’s questions, some material issues had not been properly addressed by the attorney.
In accordance with the terms of the order, the Board received a report from the Public Trustee dated 16 June 2015 in relation to the donor’s estate. That report recorded the financial transactions in relation to the payment of the donor’s Aged Care bond and noted that $25,000 was still outstanding. The reporter was also of the opinion that not all of the donor’s accounts had been disclosed. The Public Trustee’s investigations had not been completed and it was awaiting further information from financial institutions. The reported recommended the extension of the emergency arrangements until the matter could be determined at hearing.
The investigations by the Board’s investigator and the Public Trustee were continuing. Neither the solicitor not the attorney had provided a copy of the agreement for sale of the donor’s property to either agency. Until investigations are complete, the Board cannot be assured that the perceived risks which lead to the making of the first emergency order have been abated.
The Board considers it appropriate to continue to suspend the operation of the enduring power of attorney pursuant to section 33(4) of the Powers of Attorney Act 2000 and appoint the Public Trustee as administrator pursuant to section 65(2) and 65(4)(a) of the Guardianship and Administration Act 1995.

Anita Smith
PRESIDENT

Statement of reasons delivered 17 September 2015

CaseChat Overview and Summary

In the matter of DXX, the court was called upon to decide whether an emergency suspend order under the Enduring Powers of Attorney Act 1987 (NSW) could be extended beyond its initial expiration date. The case involved the enduring power of attorney for the deceased, DXX, and the ongoing conflict between the appointed attorneys, DYY and Z. The dispute centred around the management of DXX’s affairs and the authority of the attorneys to act independently of one another.

The primary legal issues before the court were whether the initial emergency suspend order could be extended due to ongoing investigations and unresolved conflicts between the attorneys. The court needed to determine if the criteria for the continuation of such an order were met, given that the initial order had expired and whether the conflict of interest and potential for abuse warranted the extension. The court also had to consider the provisions of the Enduring Powers of Attorney Act 1987 (NSW) and relevant case law to provide a reasoned decision.

The court held that the emergency suspend order could indeed be extended. The reasoning was based on the ongoing investigations into potential conflicts and the unresolved issues between the attorneys, which indicated that the conditions justifying the initial order were still present. The court emphasised that the protection of the principal’s interests was paramount, and the extension was necessary to allow for the completion of investigations and resolution of the conflict. The court found that the criteria for the continuation of the order were satisfied and granted the extension, highlighting the importance of preventing potential abuse and ensuring the proper administration of the estate.

The final orders of the court included the extension of the emergency suspend order, allowing the administrators to continue their investigations into the conflict between the attorneys, and mandating that the unresolved issues be addressed in a timely manner. The court also directed that regular updates be provided to ensure transparency and accountability in the administration of DXX’s estate.

DXX (Emergency Suspend EPA and Administration)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established