GNE (Review of Enduring Power of Attorney)
[2020] TASGAB 52
•30 September 2020
CITATION: | GNE (Review of Enduring Power of Attorney) [2020] TASGAB 52 |
HEARING DATE(S): | 30 September 2020 |
DATE OF ORDERS: | 30 September 2020 |
DATE OF STATEMENT OF REASONS: | 21 October 2020 |
BOARD: | Mr S. Roberts, Member Mrs K. Hambly, Member Ms M. Pedersen, Member |
APPLICATION | Review of Enduring Power of Attorney |
CATCHWORDS: | Review of Enduring Power of Attorney; validity of document not challenged; incorrect calculation of residential fees rectified |
LEGISLATION CITED: | Powers of Attorney Act 2000, ss 30, 33 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
By an Application dated 3 August 2020, Ms HOF (‘the Applicant’) sought a Review of an Enduring Power of Attorney and that a new attorney or administrator be appointed for her mother, Ms GNE (‘The Donor’).
The Donor is 97 years old and currently lives in a residential aged care facility in Northern Tasmania (‘the RACF’). She has four children:
· The Applicant;
· Mr QE;
· Ms TC; and
· Mr XE.
By an Enduring Power of Attorney dated 14 May 2002 (‘the EPoA’), the Donor appointed her children, Mr QE and Ms TC jointly to be her attorneys. The EPoA was registered with the Recorder of Titles on 9 July 2002.
Prior to October 2015, the Donor had lived on a farming property in Northern Tasmania that had been left to Mr QE and Mr XE by their late father (the Donor’s husband) in his will. In October 2015, the Donor went to live with her granddaughter and the granddaughter was paid for board and lodging from the income of the Donor.
In November 2018, the Donor commenced living at the RACF and fees were paid from her income. As will be seen from what appears below, those fees were initially incorrectly calculated and they exceeded the total of the Donor’s income, thereby depleting her savings. That resulted in Mr QE having discussions with the Applicant which are also referred to below.
The Applicant lives in Victoria and the Donor’s other three children live in Northern Tasmania. Ms TC lives in a house owned by the Donor and pays her mother rent.
In an attachment to her Application, the Applicant stated the following under the heading ‘[w]hat concerns have motivated you to make this application?’
1. Insufficient funds
2. Conflict of Interest
3. Relocation for easier visiting
In late 2019 my brother QE notified me that our mothers' funds were running low. Her DVA pension was not covering her aged care cost. A short fall of $240.00 per week. A discussion took place between myself and my brother QE, it was initially decided that each family member would contribute $60.00 each to cover mum's costs. However, our two other siblings declined this proposal. My sister TC, stating no funds available, and my brother stating that our mother’s assets should cover expenses.
On seeking legal advice, I was advised also not to contribute. As in a roundabout way I would be paying my sisters rent.
My sister TC residing in [residential address] being our mother’s asset. The rent I believe $90 to $110 per week and obtaining a rent subsidy from Centrelink. Monies being deposited into one of my mother's bank accounts at MyState Financial.
It is my understanding that my brother QE made good monies so our mothers (sic) care would not be affected.
Since my mother has been in-care I have asked that our mothers (sic) Bank Statements be available to determine where insufficient funds are?
I have also asked powers of attorneys QE and TC for my mother to be relocated from [residential aged care facility] to Launceston making it easier for all family members to be able to visit. Myself and my family having to travel from Victoria. To which both requests have been declined.
I feel that an in depend (sic) authority look into my mother's affairs to see exactly what is taking place.The Guardianship and Administration Board (‘the Board’) dismissed the Application on 30 September 2020.
A Statement of Reasons request in relation to the Board’s Order was received by the Board on 2 October 2020.
The hearing
The Board heard the Application on 30 September 2020 and due to COVID-19 restrictions, the hearing was held by way of a telephone conference. Those who attended by telephone were:
a.Ms HOF - the Applicant;
b.Mr QE – joint attorney;
c.Ms TC - joint attorney;
d.Ms MN – The Donor’s grand-daughter;
e.Ms Michelle Spicer – Office of the Public Trustee.
The Board had before it the following documents:
a.The Application dated 3 August 2020, including a typed attachment setting out the concerns that motivated the Applicant to make the application (‘the attached statement’).
b.A hand-written statement signed by the Donor and witnessed on 29 April 2016;
c.A Health Care Professional Report by Dr T Mooney dated 31 August 2020;
d.The EPoA dated 14 May 2002;
e.A property report from the LIST;
f.Handwritten notations by Mr QE on a copy of a letter sent to him by a GAB Case Assessment Officer dated 8 September 2020, which included copies of the Donor’s bank statements (Commonwealth Bank and MyState Bank) and copies of statements of account from the RACF;
g.An undated submission by Ms MN, including statements in relation to expenditure on behalf of the Donor and documents from [residential aged care facility] about fees at the RACF;
h.An undated submission by Ms TC, including assorted financial statements.
Legislation
The formal requirements for the creation of a valid Enduring Power of Attorney are set out in section 30 of the Powers of Attorney Act 2000 (‘the Act’).
The powers of the Board to make orders in relation to an Enduring Power of Attorney are set out in section 33 of the Act. Under that section the Board may, inter alia, do any of the following:
a.dismiss the Application for Review;
b.vary a term or power conferred by the EPoA;
c.appoint a substitute attorney;
d.declare that the EPoA is invalid because the Donor did not have the mental capacity to make it, or because the EPoA did not comply with the requirements of the Act, or because The Donor was induced to make it by dishonesty or undue influence; or
e.revoke the EPoA and appoint an administrator.
The relevant written and oral evidence
In her Application, the Applicant did not suggest that the EPoA was in any way defective in relation to the formal requirements for its creation and registration. Neither did she suggest that her mother was unable to understand the nature and effect of the EPoA at the time of its execution. During the hearing, the Applicant confirmed that she was not challenging the validity of the EPoA executed by her mother on 14 May 2002.
When she was asked why she had made the application, the Applicant said that she had not been happy with the response she got from family members and she referred to the attachment to the application that is set out at paragraph 7 above. She said: ‘[t]hey say there is insufficient funds whereas there should be plenty of funds for my mother.’
Some lengthy discussion took place and it became apparent that the RACF fees charged to the Donor’s account had initially been incorrectly calculated. That had been conceded by the RACF management, which resulted in a reduction in the fees and, more significantly, a refund to one of the Donor’s bank accounts of more than $15,000 in July 2020.
The Board was informed that that at the time of the hearing, the Donor had a total of approximately $42,000 in two bank accounts and, as a result of the reduction in her RACF fees, that was increasing.
The Applicant conceded that the Donor’s costs and expenses are now being met from the Donor’s own income.
The Donor’s granddaughter informed the Board that while the Donor was living with her (prior to the Donor moving to the RACF), she had been paid 75% of the Donor’s pension. That had been recommended by the ACAT team to cover board and lodging and care fees not met by Calvary Care. When the Applicant was asked if she saw a problem with the payments that had been made to the Donor’s granddaughter, she said: ‘[n]o, I don’t. I expect my mother to pay her own way.’
The Applicant stated: ‘I feel that my sister has been living off my mother’s assets for the last 15 years’ and she asked ‘where is the rent?’ Ms TC informed the Board that she pays rent of $280 per fortnight to her mother.
When it was put to the Applicant that Ms TC appears to be living in the property and paying rent in accordance with what her mother had agreed to, her response was to say: ‘I’m not debating that. I’m saying that’s good. She gave her a home to live in.’
Copies of bank statements provided to the Board appeared to confirm that Ms TC is paying the rent regularly.
When the Applicant was asked whether it was still her wish to have her mother relocated to a different aged care facility, she said she was not pursuing that, in the light of the Health Care Professional Report by Dr T Mooney. She also said that she had previously thought that her mother might like to be in a different facility with a friend, but that friend had since died.
Conclusions
The Board concluded that the Applicant’s stated concerns did not justify the appointment of the Public Trustee, either as a substitute attorney or as an administrator.
The apparent insufficiency of the Donor’s funds had been rectified by a reduction in her RACF fees and a significant refund paid into her account. That had occurred prior to the application being lodged with the Board.
The Applicant’s sister is paying rent in accordance with an agreement made with their mother (and the Applicant conceded that such an agreement between mother and daughter was appropriate).
The Applicant abandoned her wish to have her mother relocated to a different aged care facility. In any event, that is not an issue that could be determined by the Board when considering an Application to Review an Enduring Power of Attorney.
Decision
Accordingly, the Board Orders that:
The Application to Review Enduring Power of Attorney XX/XXXX is dismissed.
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