FNI (Administration)

[2012] TASGAB 17

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

FNI – Application for Appointment of an Administrator on the Application of WN

Neutral citation: FNI (Administration) [2012] TASGAB 17

REASONS FOR DECISION

Kim Barker (Chair)

Date of hearing: 11 July 2012

Administration – interim order – adjournment to obtain assessment of capacity to make EPA

Guardianship and Administration Act 1995

1. On 6 June 2012 the Board received an application for appointment of an administrator for FNI from her sister WN. Upon receiving an application, before the Board makes an order under section 51 of the Guardianship and Administration Act 1995 (the Act), the Board must be satisfied that as a result of a disability FNI lacks capacity to make reasonable financial judgments and is in need of an administrator. 

2. The application was accompanied by a report from Dr. Brian Bowring whose opinion was that FNI has dementia.  It was also his opinion that she has very poor short term memory and is unable to make reasonable financial judgments.  WN was seeking appointment as administrator to be able to deal with FNI’s property in Tasmania. 

3. On 9 July 2012 the applicant alerted the Board’s Compliance Officer that FNI had executed an enduring power of attorney in favour of WN.  At the hearing, WN, attending by telephone from interstate, assured the Board that since FNI had moved to interstate to be with her, her condition has improved to the extent that FNI now has capacity to execute a valid enduring power of attorney and had done so.

4. This report by WN had two effects upon the Board’s decision making process.  Firstly, section 53(1) of the Act states:

   “(1) Where a proposed represented person has granted an enduring power of attorney … under section 30 of the Powers of Attorney Act 2000, it is not competent for the Board to make an administration order in respect of his or her estate so long as the enduring power of attorney is in force unless the order is made under Part 8.”

   This essentially means that if there is a valid enduring power of attorney, the Board has no jurisdiction to hear and determine this application. 

5. The Board had no evidence that the instrument had been registered (whether in Tasmania or interstate) in accordance with the requirements of Part 6 of the Powers of Attorney Act 2000 or even a copy of the Instrument and given Dr. Bowring’s report, may have some doubts about the validity of that Instrument.  However, the second effect of WN’s report is that, if FNI has had such a remarkable recovery of capacity, she may also be capable of making independent financial judgments and the application might additionally fail for that reason.

6. The Board considered it appropriate to adjourn the application for the purpose of receiving an updated report as to FNI’s capacity to execute a valid enduring power of attorney. Upon receipt of that report, the Board can (i) decide whether the effect of the Instrument is such that the Board is not competent to hear the application or (ii) decide whether FNI lacks capacity for the purposes of section 51(1)(b) of the Act.

7. Relying upon the material in the application, Dr. Bowring’s report and the Compliance Officer’s and Investigator’s notes, the Board was satisfied that there may be grounds for making an administration order.  The Board was also satisfied that there were pressing financial matters in FNI’s estate that require immediate attention in Tasmania.

8. The Board considered it appropriate to issue an interim order pursuant to section 73A of the Act. Section 73A states:

   “(1) If the Board adjourns the hearing of an application under this Act and it considers that there may be grounds for making, in respect of a person, a guardianship order or administration order or a further guardianship order or further administration order then it may –

   (a) make an interim order appointing, as the case may be, the Public Guardian as the person's guardian or The Public Trustee as the administrator of the person's estate; and

   (b) make or give any related orders or directions it considers appropriate in the circumstances.

   (2) An interim order has effect for the period of the adjournment and any subsequent adjournment.”

   Although WN was seeking appointment, section 73A does not allow the Board to choose a particular administrator, but limits the Board to appointing only the Public Trustee under an interim order.

AFTER hearing an application by WN for the appointment of an administrator in respect of FNI (hereinafter called the ‘represented person’)

THE BOARD being satisfied that there are grounds for making an interim administration order pursuant to S73A of the Guardianship and Administration Act 1995 in respect of FNI.

THE BOARD ORDERS

1. That the hearing be adjourned for 3 months to enable the applicant to seek a second medical opinion in relation to FNI’s capacity to make an Enduring Power Of Attorney. 

2. That a report of that medical opinion is to be provided to the Board by 10th September 2012.

3. That pursuant to section 73A The Public Trustee is appointed as administrator of FNI for the period of the adjournment and any subsequent adjournment or until the application is dismissed.

4. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

Kim Barker

MEMBER