GGC (No1) (Review Enduring Powers)

[2005] TASGAB 5

Guardianship and Administration Board
Hobart

GGC, on the application of MLC

Neutral Citation: GGC (No1) (Review Enduring Powers) [2005] TASGAB 5

REASONS FOR DECISION

Anita Smith (President)

Hearing: 21 July 2005

Enduring powers of attorney – irregularity with interstate appointments and powers of attorney – inactive attorney – attorney with conflict of interest – attorney as rent-free tenant in deteriorating property appointment of an administrator

Powers of Attorney Act 2000 s.33
Guardianship and Administration Act 1995 s.53, 81

1. This is an application under section 33 of the Powers of Attorney Act 2000 for a review of an enduring power of attorney made by GGC of Aged Care Facility in Victoria appointing her sons, MLC, AGC and DRC as her enduring attorneys. 

2.   The proposed represented person is in full time aged care and has dementia which occasions short term memory loss.  She is a widow and is survived by two of her sons, MLC and AGC.  Because she owns a property in Southern Tasmania, the Board has jurisdiction in relation to the operation of her enduring power of attorney.

Other Proceedings:

3. Prior to receipt of the application for review pursuant to section 33 of the Powers of Attorney Act 2000, the Board received an application to register an interstate order also for GGC made by the Victorian Civil and Administrative Tribunal (VCAT) on 30 November 2004.   The order made on 16 December 2004 as a result of that application reads:

“UPON an application by MLC and DRC in respect of GGC (hereinafter called the ‘represented person’)

AND upon the Board being satisfied that MLC and DRC have been appointed joint administrators of the represented person under the provisions of the Guardianship and Administration Act 1986 (Victoria) which is declared corresponding law for the purposes of Section 81 of the Guardianship and Administration Act 1995 (Tasmania), (hereinafter called ‘the Act’), and

AND upon a certified copy of the Order appointing MLC and DRC as administrators of the represented person having been furnished to the Board,

THE BOARD ORDERS

1.That the certified copy of the Order be registered as an order under the Act.

2.That MLC and DRC are taken to be the administrators of the estate of the represented person for the purposes of the Act.

3.That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Act.”

4.   This order was varied when a subsequent order from VCAT dated 14 June 2005 was registered in Tasmania on 8 July 2005, which appointed MLC as sole administrator following DRC’s death.

5. Such applications for registration of an interstate order are administrative processes, subject only to the requirements of section 81 of the Act. However, the Board was not aware at that stage that there was also an enduring power of attorney in force. The Board was inadvertently therefore in an invidious position because of the existence of an enduring power of attorney and an administration order contrary to the principles in section 53 of the Guardianship and Administration Act 1995.

Process of the Application:

6.   The Board received the application from MLC to review the enduring power of attorney on 11 July 2005.   He states in the application that the power is no longer necessary because of the VCAT order, which had subsequently been recognised by the Board. 

7.   An extensive medical report by Dr Ian Presnell, Consultant Psychiatrist confirmed that GGC has Alzheimer’s disease and no longer has capacity to make reasonable financial judgments.

8. On 8 July 2005 the applicant, GGC and AGC were given notice of the hearing listed for 21 July 2005 that detailed the range of orders available under section 33(2) of the Powers of Attorney Act 2000.

9.   On 12 July 2005 the applicant sent to the Board a letter explaining that GGC’s primary asset in Tasmania was the house in Southern Tasmania where AGC lives.  That house was purchased from the Housing Department under a lease payment arrangement upon which approximately $6000 remains owing.  The applicant also provided copies of correspondence to VCAT regarding the attempts to have AGC either pay rental or vacate the premises.  

10.  This correspondence to VCAT also notes that the premises are in a poor state of repair and that AGC’s residence there imposes a number of risks to the value of the property.  The correspondence also noted AGC’s failed attempts at restraint orders against the applicant and a failed appeal from the dismissal of the restraint order.  These legal processes are linked in the applicant’s documents with AGC’s mental illness.

11.  On 19 July 2005 the Senior Investigation and Liaison Officer of the Board noted that the home was in a poor state of repair, that AGC had asserted that despite the VCAT orders the enduring power of attorney was still valid.  She also noted that he has a mental illness.

12.  The Board received a letter dated 20 July 2005 from AGC by facsimile requesting an adjournment. The letter also alleges criminal activity undertaken under the guise of the enduring power of attorney and criminal actions against him.  The main reason he sought an adjournment was because of a range of other legal processes, including through VCAT, Victorian Police, the Federal Magistrate’s Court and the Human Rights and Equal Opportunity Commission.

13.  AGC subsequently did not attend the hearing at the appointed time.  The Board telephoned him from the hearing and indicated that he could attend by telephone.  He reiterated his reasons for requesting an adjournment and the Board indicated that these did not constitute valid reasons for an adjournment.

14.  The hearing proceeded with AGC by telephone and MLC present in the hearing room.  However, AGC hung up the phone part way through the hearing and was uncontactable thereafter.  While he was still in contact AGC was questioned about living rent-free in his mother’s house and his proposals regarding that situation but he gave no meaningful response.

Findings:

15. Because of his position as attorney and the donor’s son, the Board found pursuant to section 33(1)(d) of the Act that MLC was a person with a proper interest in the matter for the purposes of bringing an application to the Board.

16.  Upon the evidence of Dr Presnell, the Board found that GGC had lost capacity to make reasonable financial judgments around 2002 and has been continuously incapable of making reasonable financial judgments because of her short-term memory loss since that time.

17.  The Board heard evidence that MLC and DRC had been the only active attorneys and that AGC had never exercised his powers as an attorney over any part of GGC’s estate.  The Board found on the basis of evidence given by the applicant that AGC’s actions have devalued the house and his failure to pay a reasonable rental have cost the estate money.

18.  Given that AGC is a non-paying tenant in the donor’s property, he is in a position where his potential responsibilities as an attorney conflict with the benefit he derives from free accommodation.  To that extent he is not an appropriate attorney.

19.  Based upon verbal evidence by the applicant, the Board found also that the donor’s wishes are most likely to have allowed AGC to remain in the property so long as the value of that property was retained and that the estate did not lose money.  However the donor’s wishes are no longer ascertainable due to her level of incapacity.

20.  Of the three attorneys, only two had ever been actively engaged in that role.  With the sad passing of DRC, only MLC remained an active attorney acting in accordance with fiduciary duties in his mother’s best interests. His wishes were for the power to be revoked in favour of administration responsibilities.  AGC wished for the power to remain in force so that his accommodation would not be disturbed.  AGC did not advance any reasons for the retention of the power that related to the donor’s best interests.

21.  In the circumstances, the Board determined that it was in the best interests of the donor to revoke the power of attorney for the following reasons:

(i)The irregularity of the registration of two VCAT orders appointing the applicant as administrator in conflict with the existing power.

(ii)That the attorney seeking the retention of the power had never exercised any powers.

(iii)That the attorney seeking retention of the power had a direct conflict of interest in that he was in receipt of a direct pecuniary benefit, being free accommodation, from the estate.

Orders:

Accordingly the Board made the following orders:

1.That the power is revoked from the date of this order.

2.That the order of the Board dated 8 July 2005 registering the order made by the Victorian Civil and Administrative Tribunal dated 14 June 2005 appointing MLC as administrator for the donor is confirmed.

Anita Smith
PRESIDENT

24 August 2005