GKT (Review of Enduring Powers) - [2012] TASGAB 27

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

GKT on the application of Uniting Aged Care

Neutral citation: GKT (Review of Enduring Powers) [2012] TASGAB 27

REASONS FOR DECISION

Anita Smith (President)
Sue Hill (Member)
Rowena Holder (Member)

Date of hearing: 14 September 2012

Review of enduring power of attorney – validity of instrument –non-compliance with witnessing provisions – instrument revoked - appointment of an administrator – factors in suitability for appointment

Powers of Attorney Act 2000 – s 30, 33
Guardianship and Administration Act 1995 – s 51, 54, 72

BND (Review of Administration) [2012] TASGAB 3
HFO (Review of Administration) [2012] TASGAB 6

GKT is a 70 year old resident of an aged care facility. The operators of that facility have applied for a review of the enduring power of attorney that GKT (the donor) executed in favour of her sister, WNS (the attorney). Their reason for seeking a review is that the donor’s aged care fees are in arrears by approximately $10,000.00 and that there has been a pattern of the attorney disputing payments or being late with payments for most of the two years that the donor has lived in that facility. This pattern potentially means that the donor is significantly in breach of the terms of the Residential Aged Care Agreement, which may entitle the facility to terminate that agreement.
A review of an enduring power of attorney is conducted pursuant to section 33 of the Powers of Attorney Act 2000. Section 33(2) of the Powers of Attorney Act 2000 affords the Board the following powers after a review of an enduring power of attorney, the Board may:
“(2)(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
(e) declare that the enduring power of attorney is invalid if the Board is satisfied that –
(i) the donor did not have the mental capacity to make it; or
(ii) it does not comply with the other requirements of this Act; or
(iii) it 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.
(3) An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995.”

The relevant instruments:

In 2002 the donor executed a general power…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] TASGAB 27
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case before the Guardianship and Administration Board of Tasmania involves an application to review an enduring power of attorney executed by GKT in favour of WNS. The application was lodged by Uniting Aged Care, the operator of the aged care facility where GKT resides, due to concerns about outstanding nursing home fees and a pattern of payment disputes. The Board was tasked with determining the validity of the enduring power of attorney and deciding on the appropriate course of action following the finding of invalidity.

The primary legal issue was whether the enduring power of attorney was validly executed in accordance with the requirements of the Powers of Attorney Act 2000. Specifically, the Board had to examine whether the witnessing provisions were properly complied with. The enduring power of attorney in question was witnessed by KGMD, who was related to all parties involved, rendering the instrument invalid under the Act. Additionally, a subsequent partial revocation, which also failed to comply with the witnessing requirements, did not rectify the original defect. Based on these findings, the Board declared the enduring power of attorney invalid.

Following the declaration of invalidity, the Board considered what order to make in light of GKT's incapacity to manage her estate, as confirmed by medical evidence. The Board rejected the nomination of WNS as administrator due to concerns about her suitability, primarily stemming from her conflict of interest and apparent difficulties in managing the estate. TI, the donor's daughter, was deemed unsuitable due to her close alignment with WNS and potential continuation of the ongoing dispute over nursing home fees. Therefore, the Board appointed the Public Trustee as administrator, considering the statutory advantages and the need for an impartial party to resolve the existing disputes and manage the estate effectively.

The Board's final order revoked the invalid enduring power of attorney and appointed the Public Trustee as administrator of GKT's estate, effective until 13 September 2015. The Board also declared the partial revocation instrument invalid to the extent it could be construed as an attorney appointment.

Orders