FD (Review Enduring Powers and Administration)
[2014] TASGAB 8
•12 June 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart
FD – application by Lisa Urbanc to review an enduring power of attorney and for the appointment of an administrator.
FD (Review Enduring Powers and Administration) [2014] TASGAB 8
REASONS FOR DECISION
K. Barker (Chair)
Ged Dibley
Carolyn Wallace
Review of EPA –invalid EPA due to donor not present when witnesses attested to signing of instrument – suitability of potential administrator not able to be assessed due to lack of information – Administrator
The Powers of Attorney Act 2000
Guardianship and Administration Act 1995 s.6, 51, 54
The Board received applications from Ms Lisa Urbanc on 8 April 2014 to (i) review an enduring power of attorney in relation to FD on the ground that the instrument is invalid, and (ii) for the appointment of an administrator.
The Board had previously received an application for the appointment of a guardian – this application was heard on 6 March 2014 following which the Board appointed the Public Guardian with powers and duties limited to decisions regarding where FD is to live. That order remains in effect until 5 September 2014.
The applications in relation to the enduring power of attorney and appointment of an administrator were heard in Hobart on 16 May 2014. The following people were in attendance:
· Ms Lisa Urbanc – the applicant
· WC – the attorney
· Mr Richard Howroyd – solicitor for WC
· TI – friend of WC
· BI - friend of WC
· Mr Peter Frazer – Older Persons Mental Health Services
· Mr Lee Perry - compliance officer Guardianship and Administration Board
· Ms Christine Lay - The Tasmanian Public Trustee (observing)
· Mr David Benbow – The Tasmanian Public Trustee (observing).
The Board had before it the following documentation:
· The application from Ms Urbanc
· Health care professional report from Dr Martin Morrissey, dated 2 December 2013
· A file note dated 13 May 2014 from the Board’s investigation officer, Ms Elizabeth Dalgleish
· Emailed statement to the Board from BI, dated 7 May 2014
· Emailed statement to the Board from NM, dated 6 May 2014
· Letter “to whom it may concern” dated 9 May 2014 from Dr Luz Montes, FD GP from 1997 until her move to Strathaven Nursing Home in April 2014
· Letter to the Board from Joanne Hunter, clinical psychologist, dated 12 May 2014.
The Instrument
The enduring power of attorney instrument made by FD on 4 October 2012, appointing WC as her attorney, was registered on 20 February 2014.
The Powers of Attorney Act 2000 requires the instrument to be signed by the donor and the donor’s signature to be witnessed by two witnesses, in the presence of the donor and each other (section 9, point (1)(b)(i), and subsection 30(5) each set out these requirements).
The Board received written statements from both witnesses – BI and NM – confirming that the donor, FD, was not present at the time they signed the instrument. This was not contested at the hearing.
Accordingly, the Board determined the instrument to be invalid.
The application for appointment of an administrator
Section 51 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint an administrator of a person’s estate if it is satisfied that the person:
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate–
The Board must also balance the principles in section 6 of the Guardianship and Administration Act 1995, having regard to the person’s wishes, their best interests, and the least restrictive alternative.
Does FD have a disability, which renders her unable to make reasonable decisions regarding her estate?
The health care professional report prepared by Dr Morrissey states that FD has dementia, probably Alzheimer’s type, resulting in significant cognitive impairment, particularly in the areas of orientation, receptive communication, capacity for new learning and planning and reasoning skills.
Dr Morrissey’s report states that FD has little awareness of the value or extent of her assets, and that whilst she could manage bill paying with assistance she would be incapable of making reasonable decisions about major financial issues such as selling a house.
There was no dispute that FD has a significant cognitive impairment resulting from dementia, or that she no longer retains the capacity to make reasonable decisions regarding her estate or to manage her finances. The Board found so accordingly.
Does FD need an administrator?
The application states that FD requires an administrator to deal with her house, which remains vacant since her recent move to the nursing home; to make arrangements for the payment of nursing home fees; to pay bills and manage her day-to-day finances; and to ensure she is not vulnerable to financial exploitation.
Again, there was no dispute at the hearing that FD is incapable of undertaking those tasks herself, and that she requires the formal appointment of administrator to do so on her behalf.
Who should be appointed to the role?
The application proposed that The Public Trustee be appointed administrator. WC indicated her desire to be appointed to this role, and Mr Howroyd told the Board that DC, WC’s brother and FD nephew, also wished to be considered for appointment.
Section 54 of the Act provides the criteria which the Board must consider when determining who is the appropriate administrator. The section states that the Board may appoint The Public Trustee (section 54(1)(a)). It also provides that any other person may be appointed (section 54(1)(d)) only where:
the Board is satisfied that:
i.the person will act in the best interests of the proposed represented person; and
ii.the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
iii.the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
iv.the person has sufficient expertise to administer the estate”.
DC lives in Perth, Western Australia, and was not present at the hearing, either in person or by telephone, so the Board had no opportunity to question him. Mr Howroyd told the Board that DC has previous experience and skills in buying, selling and renting property, and has held responsible positions of employment. The Board did not consider it had sufficient information to assess DC against the criteria. While it appeared that DC likely has sufficient expertise to administer FD estate, the Board could not be positively satisfied that he would act in the represented person’s best interests that he was not in a situation where he may have conflicting interests, and that he is suitable to act as administrator.
WC confirmed that she would like to be considered for appointment as administrator of her aunt’s (FD) estate. She said she had been helping her aunt informally with bill paying, and has been keeping receipts. She has had the mail re-directed to her and is a signatory to her bank account so is able to withdraw money to pay bills and to take her to the Casino once per fortnight - her mother (FD sister) previously helped out in this way. She said she had filled in the forms for the nursing home and for Centrelink, and arranged for direct debits for the payment of the nursing home fees.
WC acknowledged that she had little experience in buying or selling real estate, other than helping her mother with selling her home. When the Board asked how she would go about deciding what ought to be done with FD house, in the event she were appointed as administrator, she replied that she would consult her lawyer and that she knew a few real estate agents. She said, when prompted, she would not consider renting the house as it would be too much trouble. She indicated that her aunt had not expressed a view about selling or renting her home, but she does still express a desire to return home. When prompted, WC was unable to indicate any idea as to the effect selling the home might have on the nursing home fees or on her aunt’s Centrelink pension – the Board formed the view that she was probably unaware that there might be implications. When asked what she would do with the proceeds of the sale of the home, if this were to occur, she said she would put the money in the bank.
In this case, the Board was not satisfied that WC has sufficient expertise to administer FD estate, particularly at this point when major decisions are needing to be made regarding the property, which will involve weighing up the implications, advantages and disadvantages of various options, plus fairly high-level skills in either arranging for the sale or renting, and investing the proceeds of the sale in that event.
Accordingly, the Board determined to appoint The Public Trustee as the administrator of FD estate.
The Board’s Decision:
The Board was satisfied that FD
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of her estate, and
is in need of an administrator;
THE BOARD ORDERS
That The Public Trustee is appointed as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect until 15 May 2017.
K Barker
12 June 2014
0
0
2