EEC (Review of Enduring Power of Attorney)

CITATION:	EEC (Review of Enduring Power of Attorney) [2021] TASGAB 18
HEARING DATE(S):	21 January 2021, 26 February 2021, 26 March 2021
DATE OF ORDERS:	26 March 2021
DATE OF STATEMENT OF REASONS:	25 May 2021
BOARD:	Ms R Holder, President Dr M Fasnacht, Member Mr M Rapley, Member
APPLICATION	Application to Review an Enduring Power of Attorney
CATCHWORDS:	Jurisdiction; parties residing in different States of Australia; whether the application a ‘matter’ between residents of different States; judicial or administrative power; Board’s exercise of administrative power; donor’s capacity at the time of executing the Power; donor’s understanding of nature and effect of the Power; formal requirements of creating a Power; invalidity of Power; whether two witnesses present together at the time of the execution of the power by the donor; disability; capability to make reasonable judgments; best interests; wishes of the proposed represented person; suitability for appointment; administration order
LEGISLATION CITED:	Powers of Attorney Act 2000 (Tas), ss 9, 30, 33 Guardianship and Administration Act 1995 (Tas), ss 6, 11, 51, 76
CASES CITED:	Burns v Corbett (2018) 265 CLR 304 State of Tasmania (Department of Health and Human Services) v M, M v the State of Tasmania (Department of Health & Human Services) [2018] TASWRCT 24 Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167 The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 Brandy v Human Rights and Equal Opportunity Commission[1995] HCA 10; (1995) 183 CLR 245 Rizeq v Western Australia [2017] HCA 23 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia[2013] HCA 5; (2013) 251 CLR 533. K-Generation Pty Ltd v Liquor Licensing Court[2009] HCA 4; (2009) 237 CLR 501 Huddart, Parker & Co Pty Ltd v Moorehead[1909] HCA 36; (1909) 8 CLR 330 Raschke v Firinauskas [2018] SACAT 10 Re Ranger Uranium Mines (1987)163 CLR 656 GS V MS [2019] WASC 255 Szozda v Szozda[2010] NSWSC 804
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

Application

By an Application dated 22 December 2020, Ms Natasha Veenstra, social worker at the Royal Hobart Hospital applied for the Review of an Enduring Power of Attorney (‘EPA’) executed by Mr EEC (‘the Application’). The EPA was created under the Powers of Attorney Act 2000 (Tas) (‘the POA Act’). It was made on 29 August 2020 and registered on 28 September 2020 with number PA XXXXX X. The Application raised the validity of the EPA.
The Board has published this Statement of Reasons on its own motion.

Hearing

The Application was heard by the Board on 21 January 2021, 26 February 2021 and 26 March 2021.
The following persons appeared at the hearing:
a.Mr EEC (the donor of the EPA);
b.Ms Natasha Veenstra, Social Worker, Royal Hobart Hospital (the Applicant);
c.Ms BP, daughter of the donor and attorney;
d.Mr BEC, son of the donor and attorney;
e.Mr Len Ierino, solicitor attending 26 February 2021;
f.Dr Janina Skelton, Staff Specialist – Geriatric Medicine, Royal Hobart Hospital;
g.Ms Claire Corbett, Clinical Psychologist, Royal Hobart Hospital;
h.Ms Louella Tria, Social Worker, Royal Hobart Hospital;
i.Ms Rosemary Jurs, Public Trustee attending on 26 February 2020;
j.Ms Jessica Watson, Public Trustee attending on 26 March 2021;
k.Dr Jane Tolman, Geriatrician.
At the hearing the Board considered the following documents:
a.The Application;
b.Health Care Professional Report by Ms Claire Corbett dated 15 December 2020;
c.Medical Letter by Dr Janina Skelton dated 20 December 2020;
d.Enduring Power of Attorney by EEC dated 29 August, 2020;
e.Submission by Ms BP dated 13 January 2021;
f.Property Report from The List dated 4 January 2021;
g.Submission by Ms BP dated 17 February 2021;
h.Submission by Mr Charles Giugni dated 17 February 2021;
i.Submission by Mr Charles Guigni dated 17 February 2021;
j.Submission by Ms Amanda Lott dated 16 February 2021;
k.Submission by Ms Amanda Lott dated 16 February 2021;
l.Submission (Transfer) from Ms BP dated 22 May 2013;
m.Receipt from Ms BP dated 9 January 2021;
n.Submission by Ms BP undated;
o.Submission by Ms BP undated;
p.Centrelink Nominee from BP dated 11 December 2020;
q.Documents received after hearing on 26 February 2021;
r.File notes by Mr Len Ierino undated;
s.Medical report by Dr Jane Tolman dated 9 March 2021;
t.Centrelink submission by Centrelink dated 12 February 2021;
u.Submission by Ms Louella Tria dated 16 March, 2021;
v.HCPR and Attachment by Dr Greg Pitt dated 17 March, 2021.

Legislation

The Board’s jurisdiction in relation to the review of enduring powers of attorney is set out in set out in Part 4, section 33 of the POA Act.
Section 33(1)(d) of the POA 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 Guardianship and Administration Act 1995 (‘the GAA’) to review an EPA.
Section 30 of the POA Act provides for the creation and effect of enduring powers of attorney. Section 30(2) states: ‘A deed or instrument is not effective to create an enduring power of attorney unless – (a) the donor understands the nature and effect of the deed or instrument; and…’
Section 9 of the POA Act sets out the formal requirements of creating a power of attorney under section 30 of the POA Act.
Section 33(2) of the POA 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 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) make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.
Section 33(3) of the POA 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 GAA.
In Part 7, section 51(1) of the GAA 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 GAA 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 when performing a function or power conferred on it have regard to the general principles in section 6 of the GAA which are:
a.the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted;
b.The best interests of a person with a disability be promoted; and
c.The wishes of the person with a disability are, if possible, carried into effect.

Does the Board have jurisdiction to determine the Application:

At the commencement of the hearing on the 26 February, the Board raised with the parties a potential jurisdictional issue with respect to the Application as a consequence of the determination of the High Court in Burns v Corbett, Burns v Gaynor, AG for NSW v Burns, NSW v Burns 1 (‘Burns v Corbett’).[1] The High Court held in Burns v Corbett that where a ‘matter’ involves a dispute between residents of different States, the matter is one in which jurisdiction is conferred on the High Court under section 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth) (‘the Constitution’). The High Court held that the Constitution precludes a State Parliament from conferring on a Tribunal that is not a Court of the State, jurisdiction under section 75(iv) of the Constitution in respect of ‘a matter between residents of different States.’ Chapter III of the Constitution, in which section 75 is contained, is concerned with judicial power. Consequently, the ‘matters’ referred to within section 75(iv) of the Constitution are matters requiring the exercise of judicial power.
[1] Burns v Corbett (2018) 265 CLR 304
Therefore, the issue that arises is whether the Application is a matter between residents of different States or between a State and resident of another State; and that issue first requires consideration of whether the Board, in exercising the powers contained in Part 4 of the POA Act, is exercising judicial power. If the Board is exercising administrative power rather than judicial power, then the residential status of the parties is not relevant, as the Constitutional limitation set out above is not engaged.
The Board raised these issues with parties, at the commencement of the hearing on 26 February 2021. Mr EEC is a resident of Tasmania. Ms BP is a resident of Victoria, and Mr BEC is a resident of Queensland. The Applicant is an employee of the Royal Hobart Hospital, which is part of the Tasmanian Health Service, owned and operated by the State of Tasmania. The Board invited submissions from parties as to whether it had jurisdiction to hear and determine the Application. No party sought to make any submission on this issue. The Board gave its preliminary view at hearing that it did have jurisdiction to hear the Application, and again invited parties to comment. Mr Ierino, who attended this hearing to give evidence and also stated he acted for Mr EEC, did not wish to make any submission. No party commented on the issue or opposed the Board’s jurisdiction to determine the Application. Nevertheless, before determining the Application the Board must be satisfied that it has the jurisdiction to do so. Because the matter was raised with the parties at hearing, and the Board expressed a preliminary view about the matter, it is appropriate to address it in these Reasons.
The primary question is: does Part 4 of the POA Act, and in particular the power to declare an enduring power of attorney invalid, require the Board to exercise judicial power? This requires consideration of what judicial power is.
Over time, case law has outlined features or indicia of what may constitute the exercise of judicial power.
In the State of Tasmania (Department of Health and Human Services) v M, M v the State of Tasmania (Department of Health & Human Services) [2018] TASWRCT 24, Chief Commissioner Webster outlines the accepted criteria for the characterisation of a power as a judicial power, which the Board adopts. Chief Commissioner Webster said at paragraph [35] – [36]:
35. There is no exhaustive list of features or definition of judicial power and how such power is to be distinguished from administrative power; Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167 at 188-9 [16] (“Precision Data”).
36. Despite this principles have been established in the authorities which can be applied to the circumstances of particular cases: The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 373. Although I acknowledge the statement of principle in paragraph 35 the accepted criteria for the characterisation of a power as a judicial power include the following:
(a) the power to deliver a binding and authoritative decision in determining a dispute between parties; Brandy v Human Rights and Equal Opportunity Commission[1995] HCA 10; (1995) 183 CLR 245 (“Brandy”). That is “quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion”: Rizeq v Western Australia [2017] HCA 23 at [52] (footnotes omitted).
(b) The capacity to enforce those decisions although that is not necessarily an attribute of judicial power. However the inability to enforce judgments is a factor weighing against the characterisation of the power as judicial: Brandy.
(c) The ascertainment of existing rights and liabilities by the determination of issues of fact and law, as opposed to a determination of what legal rights and liabilities should be created: Brandy and Precision Data.
(d) The observance of open justice principles and the rules of procedural fairness: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia[2013] HCA 5; (2013) 251 CLR 533. Where a tribunal is not bound by the rules of evidence, this may indicate that the exercise of the power is administrative: K-Generation Pty Ltd v Liquor Licensing Court[2009] HCA 4; (2009) 237 CLR 501.
(e) Huddart, Parker & Co Pty Ltd v Moorehead[1909] HCA 36; (1909) 8 CLR 330 at 357 described the end result after the exercise of judicial power as “a binding and authoritative decision. In fact the enforceability of decisions given in the exercise of judicial power may characterise a function as judicial when it is otherwise equivocal: Brandy at 268. In addition, “where a tribunal is able to give a binding and authoritative decision and is able to take action to enforce that decision, ‘all the attributes of judicial power are plainly present’.” (Brandy at 268-9). Despite this it is not essential to the exercise of judicial power that a tribunal should be called upon to execute its own decision: Brandy at 269…’
Therefore, when applying those features or indicia, the Board is delivering a binding and authoritative order as to whether the EPA is valid or determining to exercise its other powers under section 33(2) of the POA Act.

The Board does not have the ability to enforce its own Orders. A decision of the Board may be appealed to the Supreme Court pursuant to section 76 of the GAA on a question of law or on any other question, with leave of the Court.
The Board, pursuant to section 11 of the GAA, must observe the rules of natural justice and is not bound by the rules of evidence. The jurisdiction of the Board is often referred to as ‘inquisitorial’. When the Board is ‘acting in a manner that has an inquisitorial flavour and will actively utilise its ability to inform itself, the Tribunal’s power is more accurately characterised as an exercise of administrative power.’[2]
[2] Raschke v Firinauskas [2018] SACAT 10.
The Application to review an EPA and the power under section 33(2)(ii) of the POA Act is concerned with settling a question as to the existence of the donor’s right. This involves the finding of facts, and the application of the law and the exercise of the Board’s discretion. On hearing the Application the Board may determine what legal rights should be created, given the powers set out in s33(2) of the POA Act. For example the Board could determine to revoke the EPA and appoint an administrator or substitute attorney, rather than make a finding to declare the EPA invalid. The majority of the powers set out in section 33(2) of the POA Act are concerned with ‘what rights should exist’, being a distinctive feature of administrative power, rather than ‘ascertainment of existing rights and liabilities’.
In Re Ranger Uranium Mines[3] the High Court said:
the power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus enquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterised as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.
[3] Re Ranger Uranium Mines (1987)163 CLR 656, p666.
The High Court observed in Precision Data Holdings:[4]
… although the finding of facts and the making of value judgements, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.
[4] Precision Data Holdings [1991] HCA 58; (1992) 173 CLR 167.
Further, in GS v MS,[5] Chief Justice Quinlan in the Supreme Court of Western Australia stated:
there is, therefore, no ‘bright-line’ test to be applied in the determination of whether a particular power is property to be characterised as judicial power. Indeed, for this reason, some functions (so called chameleon functions) may properly be characterised as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court.
… Certain functions and powers, in the penumbra of the notion of judicial power, may, depending upon the particular circumstances (including the body to which they are entrusted), be properly characterised as administrative.[6]
[5] GS V MS [2019] WASC 255 at [69 – 70].
[6] The same point was made by Justice Kitto in Tasmanian Breweries in relation to the ‘borderland’ in which judicial and administrative functions overlap.
It is also notable that section 33(1) of the POA Act empowers the Board on its own motion to hold a hearing to review an EPA to consider what the person’s rights should be. This is not an uncommon feature of protective jurisdictions.
Further, the primary focus of the powers of the Board under the POA Act by virtue of the application of the GAA,[7] is the rights of the donor and making decisions focused on his or her ‘future rights.’
[7] Powers of Attorney Act 2000 (Tas), s33(1)(d); Guardianship and Administration Act 1995, s6.
Therefore, when considering the above mentioned factors, the Board finds its power to declare an EPA invalid or not is a ‘chameleon function’ that, when it is reposed in a specialist administrative tribunal rather that a court, points to the administrative character of the power. When considering the other orders the Board can make under section 33(2) of the POA Act, the Board finds they are predominantly of an administrative character.
For these reasons, the Board is satisfied that the power it is exercising is administrative power. Because the Board is not exercising judicial power section 75(iv) of the Constitution does not apply to the exercise of the Board’s powers under section 32(2) of the POA Act, and it has jurisdiction to determine the Application regardless of the residence or status of parties.

The Board, however, makes the following observations and finding as to whether the Application is ‘a matter between the parties or a party and a State.’
On the Application, a dispute arises between the THS and Mr EEC, as to whether he validly made an EPA. While the THS is a party to the hearing, it does not have any vested interests and its rights are not affected in any way by the outcome. Similarly, while the Attorneys may have a view on the Application or argue they are parties to a dispute, their right to be Attorney derives only from the EPA created by Mr EEC, and they do not have any legal right to appointment. The substance of the matter for determination impacts legally on Mr EEC only.
The nature of the Board’s jurisdiction is inquisitorial and protective, and the section 6 principles of the GAA focus entirely on the person who is the subject of the Application. The Board is not hearing inter partes litigation, that is, a dispute between parties because of the operation of the principles in section 6 of the GAA.

Background

Mr EEC was born on 31 January 1935 and at the date of the second and third hearing was 86 years old. Mr EEC is divorced. He has three children, Mr BEC, Ms BP, and another daughter N who did not participate in the proceedings.
On 30 July 2020 Mr EEC met with his solicitor to give instructions for an enduring power of attorney.
On 28 August 2020 Mr EEC was admitted to the RHH with full thickness burns to his buttocks, and sepsis. He was transferred to the Intensive Care Unit of the RHH (ICU) and subsequently had a number of surgeries in relation to his perineal burn management.
On 29 August 2020, while in ICU, Mr EEC appointed Mr BEC and Ms BP as his joint attorneys under an enduring power of attorney.
After approximately one week in ICU, Mr EEC was moved to a general medical ward at the RHH. On 2 October 2020 Mr EEC was transferred to the RHH Rehabilitation Centre, Peacock 1.
On discharge from the RHH on 30 December 2020, Mr EEC moved into a residential aged care facility. He had previously been living alone in a property he owned.

Evidence

Mr Ierino, solicitor, gave evidence at the hearing on 26 March 2021 that he had known Mr EEC for approximately 20 years and had acted for him in respect of some legal matters. He stated Mr EEC had been a businessman for many years and knew what an EPA was. Mr Ierino indicated that Mr EEC was a party to Supreme Court proceedings last year and understood the proceedings, however chose to represent himself against Mr Ierino’s advice that it would be ‘to his own detriment.’ The outcome of the proceedings resulted in a costs order being made against Mr EEC. Mr Ierino stated Mr EEC had had two strokes but he was fine and there was no reason to doubt his mental capacity.
Mr Ierino stated he met with Mr EEC on 30 July 2020 at his office for the purpose of obtaining instructions from him for the preparation of an enduring power of attorney.
Mr Ierino stated that Mr EEC attended his office again on 27 August 2020 when he noticed Mr EEC exhibited pain and discomfort and he relayed to him he had suffered burns to his buttocks. Mr Ierino advised Mr EEC to see his GP or attend the hospital.
Mr Ierino stated that on 29 August 2020 he received a phone call from Ms BP advising Mr EEC was at the RHH and she requested he attend there urgently, prior to scheduled surgery the following day. Mr Ierino states he attended the ICU RHH between 4.30 and 5pm on 29 August 2020 and provided Mr EEC with the EPA to execute. He gave evidence that he said to Mr EEC that if he had any difficulties with the document to let him know. He asked him if he understood it. He gave evidence that Mr EEC read it carefully and confirmed he understood it and confirmed the appointment of the two joint attorneys was correct. ‘Nothing exhibited to me other than he was in discomfort about surgery. He knew why he signed it. No one could say they were there on the day.’ Mr Ierino gave evidence that there was ‘no doubt’ as to Mr EEC’s capacity, that ‘I assessed he was capable’. Mr Ierino produced and tendered a file note of his attendance upon Mr EEC at the RHH on 29 August 2020.
At the end of his evidence Mr Ierino attempted to make submissions about the evidence he had just provided and noted he had not received a copy of the medical reports, or indeed any of the hearing papers. The Board indicated this was because he appeared before the Board as a witness. Mr Ierino then stated he acted for Mr EEC. Notice of this had not been given to the Board prior to hearing, or at the commencement of the hearing on 26 February 2021, and no request had been made to the Board Registry by Mr Ierino for hearing papers. The Board asked Mr Ierino several times during the course of the hearing whether he wanted an adjournment to obtain a copy of the hearing papers and to get his client’s instructions. Mr Ierino advised he did not seek an adjournment and wanted to proceed. He was asked on two occasions whether he believed he had a conflict of interest in acting for Mr EEC given he was a witness in the proceedings. On the second occasion, Mr Ierino responded that ‘of course he had a conflict’ but his client was happy for him to proceed. Mr Ierino then requested an adjournment, which was opposed by Ms BP. Mr Ierino then withdrew his request. After urging from the Board to get his client’s instructions, he spoke with his client and then requested an adjournment. An adjournment was granted. Mr Ierino was asked to put in writing his request for hearing papers to the Board Registry confirming he acted for Mr EEC. Mr Ierino subsequently emailed the Registry stating he no longer acted for Mr EEC. Registry, at the direction of the Board, by numerous phone calls to his legal office, requested Mr Ierino to attend the next hearing date in the capacity as a witness. Mr Ierino did not attend the hearing on 26 March 2021 or respond to the numerous phone calls from the Registry.
The Applicant gave evidence that Mr EEC was admitted to the RHH on 29 August 2020 with full thickness burns to his buttocks that he had suffered on or about Tuesday 25 August 2020 from a heater at his home. Mr EEC had sepsis and was transferred to ICU for hypotension, poor urine output and drowsiness. The Admission Summary in ICU indicted that on admission to ICU Mr EEC’s neurological status was ‘orientated to name and DOB, poor concentration and intermittently slow in responding to questions.’ The medical issues listed include ‘delirium versus mild cognitive impairment.’
During Mr EEC’s admission to ICU a Medical Registrar from the Unit called Ms BP to update her on her father’s condition. During this telephone conversation the Medical Registrar documented in Mr EEC’s medical record that ‘Daughter would also like a solicitor to present to hospital for signage of property transfer documents’ and ‘advised B to contact Home Team post-surgery tomorrow to discuss timing of that.’ Further there is a nurse’s entry note on 29 August 2020 at 19.25 that states: ‘agitated at times. BP’s 75-90mmHg…Visited by family friend.’
The Applicant gave evidence that on 2 October 2020 Mr EEC was transferred to Peacock 1 for discharge planning. A full allied health assessment was conducted. There was evidence of Mr EEC hoarding at home, and accounts he had not paid for up to nine months. The Applicant stated Mr EEC was agreeable to moving into residential aged care. A copy of the EPA was obtained from Ms BP by the RHH, which then resulted in the treating team questioning its validity and the Application being lodged with the Board.
Dr Skelton, Geriatrician gave evidence that she took over Mr EEC’s care when he transferred to Peacock 1 on 2 October 2020. Dr Skelton states Mr EEC has a diagnosis of dementia (mixed Alzheimer’s and vascular type). She indicated the CT scan on 16 September 2020 shows small vessel ischemia and atrophy. Mini cognitive testing by Dr Blair Adamczewski indicated impairment with recall 0/3. On a Rowland Universal Dementia Assessment Scale (‘RUDAS’) assessment on 18 September 2020 Mr EEC scored 18/30.
At hearing Dr Skelton agreed with the evidence from Dr Jane Tolman setting out the cognitive decline of Mr EEC over the last two to five years. She indicated this was consistent with the history provided to her and stated the cognitive decline impacted on Mr EEC’s functioning, which was evidenced by poor nutrition, difficulties with meal preparation and cooking, unpaid bills over at least nine months before admission, poor ability to maintain property, and giving up driving.
Dr Skelton stated she believed it is likely that Mr EEC had delirium during his acute episode of illness in ICU. Dr Skelton opined it was unlikely that Mr EEC had capacity to understand the nature and effect of the EPA on 29 August 2020. She indicated she had taken into account evidence from Dr Matthew Spotswood, Intensive Care Consultant and Dr Dong, Plastics Registrar at the RHH who indicated their surprise that an EPA could be completed based on Mr EEC’s confusion and drowsiness at the time. Dr Skelton was unable to indicate how frequently Dr Spotswood was able to observe Mr EEC but noted he was the consultant in charge so would have been involved with the transfer from emergency to ICU and been the consultant looking after him and his overall care over those four or five days of intensive care treatment, and had an awareness of Mr EEC’s delirium during that admission.
Dr Skelton reported she had emailed Dr Spotswood and Dr Dong seeking their comment on Mr EEC’s capacity to execute an EPA. Dr Spotswood reply was ‘Mr EEC had sustained burns in circumstances that led us to wonder about his capacity, I didn’t know he had signed an EPA on our unit. I am surprised. My initial impression would be that he would need assistance with such a document.’ Dr Dong replied ‘I recall he was septic and confused on the 28 August, he showed some signs of improvement on 29 August but I noted he was delirious and was having visual hallucinations on occasions through that day.’ Dr Skelton commented that with a delirium there can be fluctuations and a person can go from being very confused to more lucid. Dr Skelton stated she believed it unlikely that Mr EEC had the cognitive capacity on the day to understand and complete an EPA, given the context of dementia and cognitive decline that had likely been present for the last 2 or more years, a likely delirium, and the evidence from Dr Dong and Dr Spotswood.
Dr Skelton stated from Mr EEC’s admission to Peacock 1 in October 2020 and after assessment of his capacity, she did not believe Mr EEC had the capacity to manage his financial estate. Dr Skelton noted that Mr EEC had relied on his daughter Ms BP, in particular, to help manage his finances.
Dr Skelton stated that since Mr EEC’s discharge from hospital she has not seen him or assessed his capacity to understand the nature and effect of an EPA. Dr Skelton was questioned by the Board as to whether she believed Mr EEC’s cognition would be any different now, and whether he had capacity to understand an EPA now, being the time of the hearing.
Dr Skelton stated it was possible that there could have been some improvement in Mr EEC’s cognition from the time when he left hospital to the time when he has been in the residential aged care facility. She indicated she would not ‘expect a great improvement but people do sometimes improve as it can take 6 months in some cases for people to fully recover from episodes of delirium and with additional care and nutrition and a stable environment, that can all help with someone’s cognition, so it is possible that Mr EEC had some improvement since being in Barossa.’ When asked how likely it would be that he has regained his capacity to understand the nature and effect of an EPA now, Dr Skelton responded ‘I know that he did not have that capacity in October, I would imagine that he has not had enough cognitive recovery to understand such a complex legal document but to give a definitive answer, I would want to re-examine him.’
In a HCPR Ms Corbett, Clinical Psychologist at the RHH stated Mr EEC had a diagnosis of dementia with mixed Alzheimer’s and vascular type changes. Ms Corbett conducted an assessment of Mr EEC’s capacity on 26 October 2020. She stated she believed his planning and reasoning skills and impulse control were impaired by virtue of his dementia. Ms Corbett stated that on assessment of financial decision making capacity Mr EEC was unable to provide the facts of his financial situation. Her evidence was that Mr EEC reported his income from the pension incorrectly and frequently forgot to pay bills. ‘He was unable to provide details regarding budgeting, banking or how he managed his day to day expenses.’ Ms Corbett opined that Mr EEC ‘did not know the basic facts of his financial situation and due to short term memory deficits is unable to retain information presented to him. These issues impact his ability to manage legal matters regarding his finances.’
In oral evidence Ms Corbett stated she did not know Mr EEC when he was in ICU but if asked to assess his capacity in ICU ‘my concerns would be that the Mr EEC had been admitted three days following the burns which raise concerns about cognitive impairment and his cognition prior to his admission. With the delirium at the time, I would be concerned about the validity of a capacity assessment at that time.’ On questioning from the Board Ms Corbett opined ‘I think it would be unlikely that Mr EEC would have had capacity to appoint an EPA at that time.’
Ms Corbett reported that at the time of her assessment on the 26 October 2020 she had asked Mr EEC about the nature and effect of an EPA, and he indicated: ‘that it’s like a next of kin’ reporting roles including ‘If I need money to pay bills, they come.’ ‘It’s a bit of their money and it’s a bit of my money.’ He also reported EPA roles to include funeral arrangements and food delivery and supply. Ms Corbett also reported Mr EEC stated: ‘it’s about the rules and legal and everything else, blah blah blah, power of attorney.’ In the HCPR Ms Corbett states Mr EEC reported the EPA had been signed ‘a few months ago’, stating the location as ‘on the table’ and ‘in Hobart.’ Ms Corbett stated ‘He was consistent in saying it was his daughter and then his son that he wanted appointed, so there is no change in who he wants appointed but I felt that he did not understand the nature or effect of the document.’
When asked about the likelihood of Mr EEC having regained capacity to make an EPA now, Ms Corbett stated ‘I think it would be unlikely that given his cognitive impairment and dementia, that there would be substantial change in his understanding of the nature and effect of the document.’
The Board had before it a copy of a medical report letter from Dr Jane Tolman, Geriatrician, addressed to Dr Gregg Pitt, General Practitioner dated 9 March 2021. Dr Tolman also gave oral evidence at the hearing on 26 March 2021. The Board also had a HCPR from Dr Pitt that post-dated Dr Tolman’s report and appears to solely rely on Dr Tolman’s report to inform his opinion. Dr Tolman confirmed at hearing she had met with Mr EEC once, being 9 March 2021, and conducted a ‘comprehensive assessment.’ Dr Tolman provided some detail of Mr EEC’s personal history, function and detail about his capacity. Dr Tolman noted, in 2015 on a holiday in Italy, family members observed episodes of disorientation and confusion in Mr EEC. At that time a niece of Mr EEC’s observed his condition resembled that of one of her parents who had dementia. Dr Tolman noted that family also observed in the last 2 years ‘He became very repetitive; short term memory was impaired; he needed significant assistance in selling a block of land and this was not in keeping with his previous abilities or personality, he became suspicious of others...’ Dr Tolman stated in her oral evidence he began to exhibit paranoia. It was reported there were issues with legal matters including approvals expiring, invalid contracts, and unpaid accounts. His driver’s licence was revoked. In 2020 Dr Tolman reports there was evidence of Mr EEC becoming malnourished; of him flooding his home; not paying bills; and of giving of intermittent authority to his son and daughter to manage his personal and business finances. Dr Tolman indicated she had obtained most of the background information about Mr EEC from Ms BP.
In her oral evidence, Dr Tolman opined that Mr EEC has a diagnosis of dementia and that cognitive decline dated back to 2015. She questioned whether he had capacity to participate in various legal and financial arrangements in 2018 and 2019:
It looked to me that he had had dementia for possibly up to five years, certainly it was becoming more obvious and in 2019, when somebody or other said he should not be driving, that is getting pretty definitive, that is often the last thing that happens. The fact that he wasn’t eating well, flooded the house, I mean any one could do any of that, but all together, these things are adding up to a picture. I was told by B that she and her brother had been given the authority by Mr EEC to manage finances because he was finding it hard to do that, he has acknowledged that.
In oral evidence, Dr Tolman stated ‘the sudden cognitive decline...at the time of his hospital presentation at the end of August 2020 was the result of a delirium which was secondary to the perineal burn, sepsis, environmental changes, various medications and other factors.’ She stated delirium can be fluctuating. She agreed it can cause disengagement from reality, which can be fluctuating. She indicated she had no view or evidence about Mr EEC’s capacity to understand an EPA on 29 August 2020. She then opined that it is quite likely, and maybe very likely, he had capacity to execute an EPA at some stage on 29 August 2020, noting dementia and delirium ‘are diseases that have wild swings and very significant variations, not just from person to person, but from moment to moment within a person.’ She agreed with questioning that a person during a delirium in the best moments of fluctuations, wouldn’t be any better than their baseline.
Dr Tolman gave evidence that Mr EEC does not have capacity to manage his financial estate or legal matters.
Dr Tolman gave evidence that at the time of her assessment Mr EEC had capacity to appoint an enduring power of attorney. She formed this view on the basis Mr EEC understood the concept that he can’t manage his finances and was very clear about who he wants to do that and why. Dr Tolman opined that Mr EEC gave very plausible reasons why he wanted Ms BP to continue as his attorney, over others. Dr Tolman confirmed she did not discuss the possibility of variation, termination or changing the future of the EPA with Mr EEC, and when exploring the extent of any powers conferred by an EPA she advised ‘I told him that the person who makes the financial decisions has got total control over his money and can do anything that they think is right and that you have got to choose someone who would do what you would have wanted them to do.’
After hearing the medical evidence the Board gave leave to the doctors and Ms Corbett. The Board then adjourned briefly and on its return Dr Tolman and Ms Corbett had left the hearing room and Dr Skelton had disconnected from Microsoft Teams. Ms Watson and then Ms Tria expressed immediate concern to the Board that Dr Tolman had been questioning Mr EEC further during the adjournment break, which in their opinion was an attempt to assess his capacity about the EPA. Ms BP stated Dr Tolman was trying to initiate discussion with him about the EPA.
Ms BP was invited to give evidence. Ms BP made the point that only she, her brother, Dr Pitt and Mr Ierino knew Mr EEC for some time, all the medical practitioners only knew him ‘for a snippet.’ She indicated that she witnessed a decline in Mr EEC’s cognitive ability in the last few years. In mid-2020 she was managing his finances but she believed he still understood what was going on, and making decisions.

Ms BP reported she received a phone call from the RHH on the evening of the 28 August 2021 advising her father was in hospital with a delirium and burns. She was able to speak to Mr EEC that night, who she confirmed was delirious, was talking in Italian and was able to have a joke. The next day she spoke with him again and felt he had improved. He indicated he understood he was having a serious operation and could die. He asked her to have his solicitor ‘come in.’ Ms BP stated she believed her father had capacity to understand and execute an EPA on 29 August 2020. She confirmed she was managing Mr EEC’s finances during the period of his hospital admission and had continued since then. She stated ‘he left a right royal mess.’
Ms BP stated she has been self-employed for the last 20 years and has done all her own accounting work and made investment decisions relating to her own estate. She is a licenced real estate agent. She gave an overview of Mr EEC’s estate, the value of his assets and liabilities, and what financial decisions she had made over the last few months. She indicated she was his correspondence nominee with Centrelink. Documentation submitted by Ms BP indicated that she and her brother, as joint attorneys, had engaged a tax and advisory company as accountant and tax agent for their father. The Board was advised a company in which Mr EEC was a shareholder was in voluntary administration and documentation to this effect formed part of the hearing papers.
Ms BP gave evidence that did not believe she was in a position where her interests would conflict with her father’s. She said she would treat the management of her father’s estate as if her father was her client. Ms BP said she communicated frequently with her father and was able to communicate with her brother and sister, providing transparency. She indicated her ongoing willingness to manage her father’s estate.
Mr BEC supported Ms BP’s ongoing management of his father’s estate. He acknowledged that being joint attorney with Ms BP did cause conflict and differences of opinion. He stated he had been in Tasmania for a couple of months assisting his father with his properties and paying bills for him.
At the end of the hearing on the 26 March 2020, Ms Tria informed the Board that on 29 August 2020 the RHH had a COVID-19 Visitor Policy in place. This policy provided strict restrictions on who could visit and when, and requiring all visitors to complete a COVID-19 visitor screening tool electronically or by paper, before entering the hospital. Ms Tria stated at every entrance of the hospital was a security guard ensuring compliance with the visitor and check-in policy. She indicated if the proper screening was not done then there was no entry to the hospital. Ms Tria stated on a check of the Visitors Log at the RHH there was no record of Mr Ierino attending the RHH on the 29 August 2020. Further Ms Tria stated that the ICU was a locked unit and any visitor entering the unit was required to sign in. There was no record of Mr Ierino attending the ICU on 29 August 2020, only a female person identified as Ms Xue Mei Ma. She indicated that Ms Ma had been identified as working for Mr Ierino, as his office manager.
Mr EEC gave evidence that he ‘thinks he saw Mr Ierino’ in the ICU and is unable to recall anyone else being with him. He was not able to recall any other visitors when he was in ICU.
Mr EEC stated at hearing, he did not have dementia but just forgets things. He gave evidence his children are doing his finances now as he can’t attend to it but thought he was capable. He indicated he sometimes needs help. Mr EEC advised that Ms BP is helping him and expressed a preference for one person continuing as attorney, that being Ms BP, rather than two or three family members. When asked what an enduring power of attorney is, he replied ‘I want honest. Now it’s BP and my son. I want to remove my son. There are conflict.’ When asked what Ms BP could do as his attorney he indicated that was up to her, ‘she has a lot of power and can pay bills.’ He said ‘if she does good things, good and if not I kick her out.’

Findings and Determination

The medical evidence from Dr Tolman, Dr Skelton and Ms Corbett is that Mr EEC has dementia. A CT scan on 16 September 2020 shows small vessel ischemia and atrophy of Mr EEC’s brain, cognitive testing supported a finding of cognitive decline and impairments and personal and functional history provided by family over the last 5 years indicated increasing cognitive decline, all of which led to the diagnosis of dementia. The Board finds on all the medical evidence before it, Mr EEC has a diagnosis of dementia (mixed Alzheimer’s and vascular type), with cognitive decline being evident over the previous 2-5 years. The Board did not have any medical evidence before it which disputes this diagnosis.
The Board needs to consider whether Mr EEC had capacity to understand the nature and effect of the EPA on 29 August 2020. The evidence of Mr Ierino is that he attended ICU and provided Mr EEC with the EPA and ‘to let him know if he had any difficulties with the document.’ Mr Ierino stated that Mr EEC read the document carefully and confirmed he understood it and confirmed who he wanted to appoint as his attorneys. It is Mr Ierino’s opinion that Mr EEC understood the nature and effect of the enduring power of attorney or his words ‘I assessed he was capable.’ From his evidence it was clear, Mr Ierino did not test Mr EEC’s understanding of the document. There was no discussion or explanation about the effect of the enduring power of attorney as an instrument that went beyond appointing his son and daughter as attorneys. In particular there was no evidence before the Board that on 29 August 2020 Mr Ierino satisfied himself that Mr EEC understood the matters set out in section 30(3) of the POA Act. Mr Ierino’s evidence focused on Mr EEC’s ability to express a preference for whom he wanted appointed as his attorney as opposed to the broader understanding of the nature and effect of the document. Further, while Mr EEC indicated that he wanted his son and daughter to be his joint attorneys it is unlikely he could have formed the view that he wanted them to have all of the powers vested in an attorney under an enduring power of attorney, because there was no evidence to indicate he knew what those powers were or that Mr Ierino had gone through that with him on 29 August 2020 and tested his understanding of that.
Further Mr Ierino did not state or explain how he ‘assessed’ Mr EEC’s capacity, except the fact that he had known him for many years. The evidence indicates that he did not speak with a medical practitioner in ICU on 29 August 2020 or any other medical practitioner on or before that date to ascertain Mr EEC’s capacity. This would have been a prudent action and indeed reasonable and appropriate action for a legal practitioner, particularly given the setting Mr EEC was in when Mr EEC executed the EPA, and the ability and opportunity to get medical advice at that time.
The Board accepts Dr Skelton and Dr Tolman’s opinion that it is more likely than not that Mr EEC had delirium during his acute episode of illness in ICU. The Board accepts the medical evidence that a person experiencing delirium can have fluctuating capacity within the course of a day. The Board accepts the evidence from Dr Dong that Mr EEC was delirious and was having visual hallucinations on occasions through 29 August 2020. There was also confusion and drowsiness noted by Dr Dong and Dr Spotswood, and both doctors were surprised the EPA was executed.
Dr Skelton and Ms Corbett opined it was unlikely that Mr EEC had the cognitive capacity on 29 August 2020 to understand and complete an EPA, given the context of dementia which had been likely to be present for the last 2 or more years, probable delirium and the evidence from Dr Dong and Dr Spotswood.
Dr Tolman opined it was very likely Mr EEC had capacity to execute an EPA at some stage on 29 August 2020. This is quite different to stating at the time of signing the EPA Mr EEC had capacity, that is, that he understood the nature and effect of the document, which is the crux of the matter. Dr Tolman had noted doubts about Mr EEC’s capacity to participate in various legal and financial arrangements in 2018 and 2019 and court proceedings, and his apparent cognitive decline over the preceding 2 years, and incapacity now to manage his estate. She did not appear to appreciate the complexity of an EPA and the test contained in section 30(3) of the POA Act.
Ms BP also gave evidence that she believed Mr EEC had capacity to execute the EPA on 29 August 2020. The Board notes that Ms BP did not see Mr EEC in ICU, given she lived in Victoria. Ms BP accepted that Mr EEC was delirious on 28 August 2020 but believed he had improved on 29 August 2020 and following surgery she commented ‘he was not in a good way.’ She indicated that her father was in the middle of a property transaction and her father felt there was some urgency to sign the documentation as there were ‘consequences if the paperwork was not done.’ She gave evidence that before her father was ‘admitted to hospital she did not really know what dementia was except the public view where your brain goes a bit funny.’ Her view was that her father was showing signs of cognitive decline but could still make his own decisions.
While there is no direct formal medical assessment of Mr EEC’s capacity on 29 August 2020, the Board does note that approximately 7 weeks later when Mr EEC’s capacity was formally assessed it was found his planning and reasoning skills were impaired and he had difficulty recollecting the details of the EPA, including when and where it was signed, and demonstrated very limited understanding as to the nature and effect of it, and limited understanding about his financial estate.
The Board is persuaded by Mr EEC’s history of cognitive decline outlined in Dr Tolman’s report and to a large extent being the observations and evidence of Ms BP, the evidence of Dr Skelton, Ms Corbett and the observations of the specialist doctors in ICU, and finds the weight of the evidence supports a finding that Mr EEC did not have mental capacity to understand the nature and effect of the enduring power of attorney he executed on the 29 August 2020. The Board therefore declares the EPA invalid.
The Board also makes the following observations about the validity of the EPA pursuant to section 33(2)(e) of the POA Act, which states:
On the review, the Board may, by order –
(e) declare that the enduing power of attorney…by the donor is invalid if the Board is satisfied that
(ii) the power…does not comply with the other requirements of this Act.
Section 9 of the POA Act states:
A power of attorney made or created under…section 30 …
(b) must be signed by the donor with the that signature attested by the signature of –
(i) in the case of an enduring power of attorney, two witnesses neither of whom is a party to it nor a close relative of a party to it and each of whom has witnessed it in the presence of the donor and each other;
Mr Ierino gave oral evidence he attended ICU on the afternoon of 29 August 2020. In the course of the hearing he tendered a File Note of his attendance on Mr EEC on 29 August 2020. On examination of the EPA it appears Mr Ierino has certified and signed as a witness to the EPA executed by Mr EEC. The other witness is Ms Xue Mei Ma, Office Manager of 418 Elizabeth Street North Hobart, which is the address of Mr Ierino’s legal practice.
The Board notes that at no time during his oral evidence does Mr Ierino refer to attending the ICU with Ms Ma. Mr Ierino’s File Note makes no reference to Ms Ma being present. Yet, both witnesses have certified that the donor has ‘signed the Instrument and form of acceptance freely and voluntarily in our presence’ (emphasis added). Mr EEC’s evidence is that ‘he thinks he saw Mr Ierino in the ICU’ and is unable to recall anyone else being with him. The COVID-19 check-in at the entrances of the RHH and the Visitor Log at the ICU do not confirm that Mr Ierino attended the ICU on Saturday 29 August 2020. The Visitors Log provided to the Board only indicate Ms Xue Mei Ma attended the RHH and the ICU on Saturday 29 August 2020. There is no evidence before the Board which indicates that Ms Ma and Mr Ierino were in the presence of each other and Mr EEC when they signed and certified the EPA, as witnesses. If that is the case, it would mean the EPA did not comply with the requirements of the POA Act, in particular with section 9 of the POA Act, and on this basis the EPA would be invalid. Further, the evidence from the RHH points to a finding that Mr Ierino was not at the ICU on 29 August 2020. The Board did give consideration to whether it should adjourn the hearing to summons Mr Ierino and Ms Ma to hearing to question them. It was noted that Mr Ierino had ignored all contact made by the Board Registry requesting he make contact and to attend the hearing on the 26 March 2021. Given the Board had found Mr EEC lacked capacity to understand the nature and effect of the EPA, and on that basis found the EPA was invalid, it determined it was not in Mr EEC’s best interests to prolong the determination of the Application by adjourning the hearing, and sit through hearing further evidence.
Before considering whether there was a need to appoint an administrator for Mr EEC, the Board considered whether he had capacity to understand the nature and effect of an EPA now. If it was found Mr EEC did have capacity to make an EPA and wanted to proceed to make an EPA, then there would be no need for the appointment of an administrator.
Dr Tolman’s evidence was that Mr EEC did have capacity at the time she assessed him on 9 March 2021 to make an EPA and she confirmed that at hearing. Dr Tolman’s assessment was based on her understanding that Mr EEC understands he is unable to manage his finances and understands he wants someone to manage his finances, and gave plausible reasons why he wants Ms BP to be sole attorney. Dr Tolman explained to Mr EEC this ‘meant giving someone total control of his finances’ and indicated that this should be someone close to him and someone he trusts. It does not appear from Dr Tolman’s own evidence that she questioned or assessed Mr EEC’s understanding of her brief explanation about giving total control of his finances to an attorney.
In her evidence, Dr Tolman acknowledged that she did not question or assess Mr EEC’s understanding about the possibility of variation of the EPA or revoking the EPA, and there was no evidence of the other matters in section 30(3) of the POA Act being discussed and assessed. In this respect Dr Tolman’s assessment was flawed. Dr Tolman may have attempted to correct this after the Board had given her leave on the basis she had finished giving evidence and had adjourned as there was evidence from Mr Tria, Ms Watson and Ms BP that she had conversation with Mr EEC about his further understanding of the EPA. The Board does not consider that it is appropriate in the circumstances to put the subject person through any questioning or assessment of capacity when attending as an expert witness and having finished giving evidence at a hearing. It is unclear what purpose this serves and it is difficult to see how this could be in the subject person’s best interests.
Dr Skelton opined that, as Mr EEC did not have capacity in October 2020 to understand the nature and effect of an EPA, she did not believe he would have had enough cognitive recovery to understand an EPA in March 2021. Ms Corbett found Mr EEC’s planning and reasoning skills were impaired and he was unable to respond to her questioning or demonstrate an understanding of the nature and effect of the EPA at the time of her assessment. Ms Corbett opined it was unlikely that given Mr EEC’s cognitive impairment there would be substantial change in his understanding of the nature and effect of the document, from when she assessed him. Both Dr Skelton and Ms Corbett did state they had not had opportunity to reassess Mr EEC since his discharge from the RHH and therefore could not give a definitive response.
Dr Tolman’s assessment of Mr EEC’s capacity to understand the nature and effect of an EPA was the most recent. Dr Tolman and Ms Corbett however only met Mr EEC once for the purpose of the assessment and report, while Dr Skelton’s contact was more frequent given her evidence that she was in charge of Mr EEC’s care while he was on Peacock 1. Dr Skelton had opportunity to make observation and informal assessment of Mr EEC over a longer period of time, (approximately 3 months) and with the opportunity to account for fluctuations in capacity over time.
Dr Tolman’s evidence did not indicate that Mr EEC was able to demonstrate or relay his understanding about the effect of the enduring power of attorney, other than it being an appointment which would allow the attorney to help him out, and who he wanted to be appointed as his attorney and why. At hearing, Mr EEC demonstrated limited understanding about the effect of an EPA. For example Mr EEC’s comment ‘if she does good things, good and if not I kick her out’ does not indicate an understanding of an enduring POA. His evidence however was clear who he wanted to manage his finances and why. This falls well short of an understanding of the effects of an enduring power of attorney, including that an attorney could do things that Mr EEC would not decide or choose himself.[8]
[8] Szozda v Szozda[2010] NSWSC 804 per Barrett J at [34, 36].
Further, given the evidence from Dr Tolman, the Board finds Mr EEC could not have formed the view that he wanted his attorney to have all of the powers vested in an attorney under an enduring power of attorney, because he did not know what those powers were and there is no evidence that this was ever explained to him by his solicitor or any other person.
Accordingly, the Board is persuaded by the opinions of Dr Skelton and Ms Corbett and also for the reasons set out in paragraphs 89-91 above, and finds Mr EEC does not have capacity to understand the nature and effect of a power of attorney.
Given that the Board finds that Mr EEC lacks the requisite capacity to execute a new EPA, the Board considered the criteria set out in section 51 of the GAA, as to whether it makes an administration order for Mr EEC.
The findings of dementia made in paragraph 68 above are repeated and relied on by the Board to make a finding that Mr EEC has a disability, as defined in section 3 of the GAA.
The medical evidence from Dr Skelton, Ms Corbett and Dr Tolman is that Mr EEC is not capable of managing his financial estate. The Board is persuaded on the medical evidence that Mr EEC is unable to make reasonable judgments as to his estate.
In considering whether there is a need for an administrator to be appointed to manage Mr EEC’s estate the Board gives weight to Ms BP’s evidence. The Board is persuaded there are financial decisions to be made concerning his property, shareholdings, and investments, as well as day to day management of Mr EEC’s finances including payment of his bills and residential aged care fees.
The Board finds it is in Mr EEC’s best interests that his estate be administered by an administrator.
At this point in time, the Board finds there is no less restrictive way of managing Mr EEC’s estate other than by the appointment of an administrator. Such an order should be plenary, that is, to allow unrestricted authority to an administrator to manage his estate and day to day finances.
The Board considered whether to appoint the Public Trustee or Ms BP as administrator for Mr EEC. The Board considered the eligibility criteria in section 54 of the GAA, in respect to persons eligible as administrators. The Board is satisfied on the evidence before it, that Ms BP will act in her father’s best interests, does not appear to be at this time in a position where her interests may conflict with Mr EEC’s and appears suitable to act as administrator given her close relationship with her father. The Board considered whether Ms BP has sufficient expertise to deal with Mr EEC’s estate, which is a sizeable and a complex estate, and considered she did given her demonstrated willingness to obtain accounting and tax advice and all necessary assistance as required.

Mr EEC made it clear to the Board that he wanted his daughter Ms BP to manage his estate. This is consistent with his wishes expressed to Mr Ierino, to Dr Tolman, and to Ms Corbett. Mr BEC also endorsed Ms BP’s appointment. The Board was satisfied that the criteria in section 54 were met by the appointment of Ms BP.
The Board also heard evidence that Mr EEC gave gifts to family members throughout the year on special occasion days such as birthdays and Christmas. The Board obtained details as to who Mr EEC gifts to and an estimate of the amounts. The Board finds it appropriate to make a gifting order to a maximum of $2000 per year, subject to the administrator’s discretion.

Orders

In respect to the Application for Review of the Enduring Power of Attorney the Board orders:
1.Enduring Power of Attorney PA XXXXX X dated 29 August 2020 made by the Donor EEC is invalid as the Donor did not have the mental capacity to make the power.
2.BP is appointed as Administrator of the estate of EEC.
3.The Administrator is authorised to distribute gifts from EEC’s estate to a maximum of $2000.00 per year. Such gifts are subject to the Administrator’s discretion.
4.The Administrator is to lodge with the Board a Financial Summary relating to the estate of EEC no later than 6 weeks from the date of Order.
5.The Order remains in effect to 25 March 2024.

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[2021] TASGAB 18

26 March 2021