HBT (Enduring Powers)
[2014] TASGAB 11
•30 June 2014
Guardianship and Administration Board
Launceston
HBT, on the application of DC
GAB No. XXXX of 2014
HBT (Enduring Powers) [2014] TASGAB 11
REASONS FOR DECISION
Ken Stanton (Board member)
30 June 2014
Review of Enduring Power of Attorney – application for review by solicitor for donor - special case stated reserving a question of law for the opinion of the Supreme Court –– factors relevant to exercise of discretion – refusal to state special case
Guardianship and Administration Act 1995 s 75
Powers of Attorney Act 2000 ss30 and 33
On 23 April 2014 the Board received an application from DC to review an Enduring Power of Attorney dated 7 April 2014 registered with the Recorder of Titles on 9 April 2014 and given the number PAXXXX (“the EPA”). The donor of the EPA is HBT. The attorney appointed by the EPA is the Donor’s husband BMT.
The Board sent a notice of hearing to DC and BMT and HBT which indicated that on 13 June 2014 it would determine the question of whether or not to hold a hearing to review the EPA, in particular whether, in accordance with s33 of the Powers of Attorney Act 2000 (“the PoA Act”), the Applicant had a proper interest to apply for a review and whether the Board should hold a hearing to review the EPA of its own motion.
On 10 June 2014 the Donor and the Attorney requested the Board to refer a number of issues to the Supreme Court for determination pursuant to s75 of the Guardianship and Administration Act 1995 (“the Act”). That request was in an email in the following terms:
“To: the President & Board division for GAB hearing on 13/6/2014 re Power of Attorney Act.
APPLICATION FOR SPECIAL CASE DETERMINATION OF MATTERS OF LAW ARISING IN THE ABOVE HEARING.
We request that the following issues be referred to the Supreme Court for determination pursuant to s75 GA Act.
1. May the dismissed former legal practitioner for a person with a disability make an application, subsequent to his dismissal, to the GAB for the revocation of an Enduring Power of Attorney donated by his former client to her spouse?
2. May the legal practitioner disregard the EPOA donated by his former client to her Attorney in making the application for the EPOA's revocation?
3. May the legal practitioner referred to in 1 above exercise complete discretion in determining, subsequent to his dismissal, that his former client lacked the cognitive capacity to donate the EPOA?
4. May the GAB disregard written notice from both the client and the attorney that the legal practitioner was dismissed by the client prior to the practitioner's revocation application?
5. May the GAB conduct a hearing in which neither the donor nor donee of the EPOA have been provided with particulars of the lawyer's/applicant's application despite repeated requests?
6. May the GAB order the revocation of the EPOA on their determination that the EPOA was designed to circumvent the former client's estate from being put under the administration of the Public Trustee?
7. May the GAB declare that a stay of proceedings for the hearing above. may only be sought only at the commencement of the hearing?
In the event our Special Case submission is refused, we request written reasons as per s74 GA Act.
Thank you.
HBT BMT
Person With Disability Attorney for HBT”
The Board has decided that it is not appropriate to reserve the questions in the email of 10 June 2014 for the opinion of the Supreme Court. These are the reasons for that determination.
In these reasons it is convenient to refer to:
a.DC as the Applicant;
b.the application for review of the EPA made by DC as the Review Application;
c.HBT as the Donor; and
d.BMT as the Attorney.
The Power to Reserve a Question of Law by Stating a Special Case for the Opinion of the Court
The power the Donor and the Attorney seek to have the Board exercise is granted by s75(1) of the Act which provides:
“Where a question of law arises in a hearing before the Board, the Board, of its own motion or on the application of any person to whom notice of the hearing has been given, may reserve the question in the form of a special case stated for the opinion of the Court.”
In order to ascertain whether the power can and should be exercised in this case it is necessary to consider the circumstances giving rise to the application to review the EPA, including the various proceedings before the Board, the nature of the Board’s power to review an enduring power of attorney under s33 of the PoA Act and the issues which arise for the Board’s consideration in this case.
Background Circumstances
The Donor is 37 years of age. She and the Attorney are married with 3 children who are aged 14, 13 and 10. Until 29 May 2012 she was working as a community nurse and lived at home with her husband and family in Deloraine.
On 29 May 2012 the Donor was the driver of a car which was involved in a high speed collision with another car. As a result of that collision she suffered serious injuries including a severe traumatic brain injury. She was treated in the Royal Hobart Hospital until 17 July 2012 when she transferred to Calvary St John’s Hospital for rehabilitation. After her discharge from Calvary St John’s Hospital the Donor lived at the NEENA rehabilitation facility in Launceston from Tuesday to Friday. That living arrangement continued until recently.
While the Donor was still in hospital arrangements were made for the Applicant to act on her behalf in respect of her Motor Accidents Insurance Board (“MAIB”) entitlements. The Applicant commenced proceedings No XXXX of 2012 in the Supreme Court of Tasmania in which the Donor is plaintiff and the driver of the other car is the defendant (“the Supreme Court proceedings”). Although no formal judgment has been obtained against the other driver the solicitors for the MAIB have informally admitted liability. The Donor is receiving scheduled benefits from the MAIB, including a disability allowance.
In the course of the Supreme Court proceedings, the Applicant and the MAIB arranged for the Donor to be assessed for the effects of her injuries by neuropsychologists, a neurosurgeon, a clinical psychologist and a speech pathologist who have all provided reports to the MAIB or the Applicant.
The opinions expressed in those reports indicate that the Donor has cognitive impairments which have become less severe over time. However those reports suggest significant cognitive deficits remain which result in the impairment of the Donor’s capacity to express her thoughts and to understand clearly what she is being told so that appointment of an Administrator would be desirable. The Donor and the Attorney dispute the opinions in those reports and have provided to the Board reports which express contrary opinions.
The Donor and the Attorney became unhappy with the Applicant’s conduct of the Donor’s affairs. The Donor and the Attorney contend they both validly dismissed the Applicant by a letter of 7 April 2014 with a confirmation of the Applicant’s dismissal sent to him by registered post on 11 April 2014. The Applicant does not dispute that the Donor and the Attorney have purported to terminate his retainer. It is clear they do not want him to continue to act for the Donor.
A history of proceedings before the Board
In considering the context within which the Donor and the Attorney apply to reserve questions for the opinion of the Supreme Court the history of the various proceedings before the Board are relevant. Some of the questions that are sought to be reserved for the Supreme Court’s opinion directly raise the way the Board has dealt with the application. It is therefore appropriate to outline the history of the proceedings before the Board.
The Review Application is not the first application made to the Board in respect of the Donor. The first application was dated 6 February 2014. It was made by the Applicant and sought an order pursuant to Part 7 of the Act appointing the Public Trustee as administrator of the Donor’s estate. The Applicant said that he made that application because he was concerned about the Donor’s capacity to give him instructions in the Supreme Court proceedings as a result of reports he had obtained in the course of acting as her solicitor in those proceedings.
The Board received that application on 12 February 2014, commenced the pre-hearing investigation of that application, notified the Donor and the Attorney of the application and set it down for hearing on 17 April 2014.
On 8 April 2014, i.e. the day after the EPA was executed by them and the letter dismissing the Applicant had been sent to him, the Donor and the Attorney sent a letter to the Board attaching an application for the appointment of the Attorney as the administrator of the Donor’s estate. That letter suggested that:
a.the application attached to it would replace the application of the Applicant;
b.the Applicant was no longer acting for them;
c.the application attached to the letter should be dealt with de novo or if that was not possible as an amendment to the Applicant’s application; and
d.the hearing of the Applicant’s administration application might need to be rescheduled.
10 documents were attached to that application including medical reports. All of those documents were before the Board on 13 June 2014.
The application for administration attached to that letter sought orders for Guardianship and Administration and stated that the Attorney would need to make all “decisions relevant to the situation of a disabled person and those pertaining to family support.” If the EPA was valid that application is not necessary and in any event s53 of the Act prevents the Board from making any administration order other than an emergency order under Part 8 of the Act so long as the EPA is in force. Once the Board became aware of the registration of the EPA it therefore vacated the hearing of the Applicant’s application to appoint the Public Trustee as administrator.
The Board received the Review Application and associated documents from the Applicant on 23 April 2014.
On 2 May 2014 the Board sent to the Donor and the Attorney a letter dated 30 April 2014 which enclosed a copy of the Review Application. That letter contained the Board’s “Fact Sheet 8” which sets out information about the review of enduring powers of attorney and summarised the circumstances in which the Board generally conducts such reviews.
As part of the pre-hearing investigation into the Review Application the Board’s investigator sent a letter dated 5 May 2014 to the Donor and the Attorney inviting them to address the matters raised in the Review Application and asking some further specific questions in relation to matters the investigator considered might be of interest to the Board.
By a letter dated 12 May 2014 to the Board the Donor and the Attorney requested that the Board address “the preliminary question of the Applicant’s ‘proper interest in the matter’.”
On 23 May 2014 the Board sent a Notice of Hearing to the Donor, the Attorney, the Applicant and other potentially interested parties appointing a hearing at 11:30am on Friday 13 June 2014. The Notice of Hearing indicated that the first question for determination would be whether or not the Board should hold a hearing to review the EPA and in particular:
a.whether the Applicant is a person with a proper interest in making the application for the purposes of section 33 of the PoA Act; and
b.whether the Board can determine the application of its own motion pursuant to section 33 of the PoA Act.
On 5 June 2014 at 1:20pm the Board’s investigator sent an email to the Donor and the Attorney advising of the medical and like reports which would be provided to the Board at the hearing on 13 June 2014.
At 11:46pm on 5 June 2014, the Donor and the Attorney requested the Board stay the proceedings for 28 days on the basis they hadn’t seen any of the evidence to be relied on by the Board and therefore had not been accorded natural justice. The Board responded indicating that the application for a stay would be dealt with on 13 June 2014.
On 6 June 2014 at 2:35pm the Board’s investigator sent an email to the Donor and the Attorney advising that all documents would be sent to them. That was done prior to the hearing although the Donor and the Attorney say they only received some of the material on Wednesday 11 June 2014.
On 10 June 2014 the Board received the email seeking to have questions reserved for the opinion of the Supreme Court. On the same day the Board responded to that email stating that it would hear the application for special case to be stated on Friday 13 June 2014.
The hearing on 13 June 2014
Following submissions of the parties on 13 June 2014 the Board determined that it would hold a hearing to review the EPA on the basis that the it believed that the Applicant had a proper interest in making the Review Application and even if he did not have a proper interest the material before the Board was sufficient to justify the Board conducting the review of its own motion.
The Board then adjourned the hearing to a date to be fixed and indicated it would propose directions for the consideration of the parties to ensure the matter was ready for the review to proceed.
The Board then heard submissions in respect of whether the questions raised in the email of 10 June 2014 should be reserved for the opinion of the Supreme Court pursuant to s75 of the Act. The Board indicated that it did not consider it was appropriate to do so.
Further discussion occurred about the time frame for listing the hearing of the Review Application. It was apparent that would not happen for some weeks and the Donor and the Attorney renewed the application for the questions in the email of 10 June 2014 to be reserved for the opinion of the Supreme Court. The Board reserved its decision on the renewed application.
The Power to Review an Enduring Power of Attorney
The Board’s power to review the EPA is contained in s33 of the PoA Act. Section 33(1) provides that the Board may hold a hearing to review an enduring power of attorney. It can do so of its own motion or on application by or on behalf of the donor of the power, the attorney or “any other person the Board believes has a proper interest in the matter”.
The first determination required of the Board is whether or not it will hold a hearing to review the enduring power of attorney. There is no specification of the matters the Board should take into account in deciding whether to hold a hearing of its own motion. That is a matter for the unfettered discretion of the Board. Neither is there a definition of what constitutes a proper interest on the part of an applicant. The Board is to form a belief based on the circumstances of the case, the purpose for conducting the review and the powers it can exercise on such a review.
After the Board has held a hearing to review the EPA the Board can make the orders set out in s33(2) of the PoA Act including, so far as might be relevant to this matter:
a.appointing a substitute attorney;
b.appointing an administrator of the donor’s estate
c.declaring that the donor did not have the mental capacity to make a valid enduring power of attorney;
d.declaring the enduring power of attorney invalid;
e.revoking the enduring power of attorney and appointing an administrator of the Donor’s estate; and
f.making any other order it thinks fit as to the exercise of the EPA.
The Board also has the power pursuant to s33(7) of the POA Act to impose appropriate terms and conditions on any order it makes.
The nature of the powers which may be exercised on a review suggest that the Board may need to consider one or more of the following matters.
First, whether the deed or instrument complies with the formal requirements for a valid EPA contained in s30(1) of the PoA Act.
Second, whether the substantive requirements of s30(2) of the PoA Act have been complied with including the requirement in s30(2)(a) that the donor understands the nature and effect of the deed or instrument creating the enduring power of attorney. That will involve consideration of both the capacity of the donor to understand those matters, which might be presumed in the absence of evidence to the contrary, and the actual understanding of the donor in the event capacity exists. Section 30(3) of the PoA Act identifies matters which must be understood in order for the requirement of s30(2)(a) to be met. While s30(3) identifies matters which must be understood in order to comply with the requirements of s30(2)(a), depending on the circumstances of the case there may be other matters which would be relevant to whether the donor had the understanding required by s30(2)(a) of the Act.
The existence of some form cognitive impairment on the part of a donor would not necessarily preclude an adequate understanding of the matters in s30(3) but the Board would need to carefully consider the nature and effect of any impairment on the capacity of the donor to understand the matters in s30(3).
Third, whether the attorney appointed by the enduring power of attorney is a suitable person to be exercising the powers and duties of the attorney or otherwise making decisions on behalf of the donor. That might include consideration of whether or not the attorney has been complying with the obligations imposed by s32 of the PoA Act which provides that the attorney is taken to be trustee of the property and affairs of the donor and must exercise their powers as attorney in the best interests of the donor.
Finally, in conducting a review of an enduring power of attorney, the Board is exercising a protective jurisdiction. It is given the power to conduct a review to ensure that the interests of the donor are protected or advanced in circumstances where the donor may not be able to do that themselves.
The Issues in the Review
In conducting the review the Board has power, subject to compliance with the requirements of natural justice, to consider all relevant matters. In this case, the Review Application seeks a declaration that the EPA is invalid and an order appointing a new attorney or an administrator. The Applicant relies principally on 2 grounds for those orders:
a.that the Donor did not have the capacity to validly make the EPA; and
b.that the EPA was designed to circumvent the appointment of an administrator which would otherwise have been appropriate.
Those grounds raise both whether the requirements of s30(2)(a) of the PoA Act have been met, i.e. whether the Donor was able to understand the nature and effect of the EPA and also whether the Attorney has sought to circumvent an otherwise appropriate course to protect her interests.
In addition, the report of the Board’s investigator and the submissions by the Applicant made on 13 June 2104 suggest possible issues in respect of the way in which the Donor’s financial affairs have been managed by the Attorney before and after the creation of the EPA including:
a.suggestions that the Donor had inadequate disposable income, had insufficient funds to buy groceries and participate in NEENA program activities and at the time of the original administration application lived on an allowance of $150 per week from an MAIB disability allowance of $1,700 per fortnight;
b.the engagement of another law firm and a financial planner to deal with the Donor’s affairs and then termination of those arrangements shortly thereafter;
c.the application of the Donor’s MAIB disability payments including possible payment of the mortgage on the family home from the Donor’s income and contribution to renovations on that property when she has no legal interest in it.
d.dealings with any entitlement of the Donor to RBF benefits.
At this stage the Board makes no findings in respect of any of those matters. It would not be appropriate to do so until after the hearing.
The evidence in respect of the Donor’s capacity may not be one way. But there is sufficient material to suggest that there are issues which justify the Board conducting the review to assess whether any order under s33(2) of the PoA Act is justified.
Other issues might arise during the hearing but for the purpose of determining whether it is appropriate to state a special case for the opinion of the Supreme Court the Board is satisfied the above issues which might be relevant to its determination on the review.
Against that background it is appropriate now to consider the application by the Donor and the Attorney for the questions in the email of 10 June 2014 to be reserved for the opinion of the Supreme Court by stating a special case.
The Pre-conditions to the Exercise of the Power
The terms of s75 of the Act provide two preconditions to the existence of the power to state a special case reserving questions for the opinion of the Supreme Court.
The Question Must be a Question of Law
The first precondition is that the question reserved for the opinion of the Court must be a question of law. It should not be a question of fact artificially framed as a question of law. The Board is not satisfied that the questions proposed by the Donor and the Attorney are questions of law. The fact that they refer to the identity of the parties by objective descriptions does not change what are ultimately questions of fact into questions of law. The fact that the questions make assumptions about the legal effect of established acts does not turn a factual issue into a question of law. For example questions 1 to 4 assume that the Applicant has been effectively dismissed because the Donor and the Attorney sent a letter in terms which sought to do that. Whether that letter had the legal effect of terminating the Applicant’s retainer depends on whether the EPA was valid and whether the Donor had the legal capacity to dismiss the Applicant. More will be said on these matters later in these reasons. It is sufficient to say for now that the questions of the Donor’s capacity and understanding are questions of fact the answers to which have not been determined by the Board and cannot be determined until after the hearing of the review of the EPA.
Nonetheless the distinction between questions of law and questions of fact might be difficult to discern.[1] Therefore, in the event the proposed questions can be characterised as questions of law, the Board considers the other matters relevant to the application to state a special case for the reservation of those questions for the opinion of the Supreme Court.
The Question Must Arise in the Course of a Hearing
[1] Beazley, MJ The Distinction between Questions of Fact and Law: a Question without an Answer? (2013) 11 TJR 279
The second precondition is that the question must arise in the course of a hearing. It follows that there must be a hearing on foot. Often a special case would be stated at the conclusion of a hearing when the facts are known. More will be said about that later in these reasons also. However without deciding the matter, for the purposes of these reasons the Board assumes its determination to hold a hearing and adjourn that hearing to a date to be fixed is sufficient compliance with this requirement of s75(1).
The Discretion to Reserve a Question of Law
Assuming the preconditions for reserving a question for the opinion of the Supreme Court are met, the Board has a discretion as to whether or not to do so. It is not bound to do so simply because a question of law has arisen in the course of the hearing of the review or because a party has requested the reservation. The existence of that discretion is supported by the following factors:
a.The use of the word “may” in s75(1).
b.There is nothing in the language of s75, its context and purpose or the scope and purpose of the Act which would suggest a different conclusion.
c.To require reference to the Supreme Court of any question of law arising in a hearing before the Board because a party requested it would seriously disrupt the proceedings before the Board, particularly in light of s75(2) which requires the Board not to determine the matter until after the question has been answered by the Court.
d.If the Board makes an error on a question of law, s76 of the Act provides for an appeal to the Supreme Court as of right in respect such an error.
General Factors Relevant to the Exercise of the Discretion
Section 75 does not expressly identify the factors relevant to the exercise of that discretion. The parties did not address the factors the Board should take into account in exercising the discretion.
The Board considers the following matters to be of general relevance to the exercise of the discretion in the circumstances of this case.[2]
[2] See generally in respect of stating a special case reserving a question of law for the opinion of a court Moore v Rybak [2004] TASSC 113; Industrial Equity Ltd v CCA (Vic) [1990] VR 780 at 782-3; Halfdan Grieg & Co. A/S v Sterling Coal & Navigation Corp. [1973] 2 WLR 904, 908-9 per Lord Denning MR
a.There must be a good reason for the Board to reserve the question for the opinion of the Supreme Court.
b.Whether the facts constituting the special case giving rise to the question of law have been agreed or found. In the absence of agreement the facts need to be determined by the Board. That would usually be done relying on evidence given at a hearing.
c.Whether the question of law is central to the proper determination of the case rather than being a peripheral matter.
d.Whether the answer to the question will finally determine the whole matter before the Board or at least finally dispose of a significant part of the proceedings. In Court proceedings it is usual to indicate the judgment which would flow depending on the answer to the question. If there are many variables and no clear-cut solution is discernible whichever way the question is answered that would tend against reserving the question.
e.Whether the use of the special case stated procedure will advance the objectives of s11(1)(2)(a) of the Act which requires the Board to conduct proceedings before it according to equity and good conscience without regard to technicalities or legal forms.
f.Whether reserving the question might have the effect of unnecessarily fragmenting the proceedings.
g.Any delay caused by the use of the procedure in s75.
h.The question should be clearly articulated so the issue of law is identified with sufficient precision.
i.The question of law should be reasonably arguable on the facts of the special case.
The Board is satisfied that consideration of those factors generally suggests the reservation of the proposed questions in this case would not be appropriate.
Good reason to refer the question to the Supreme Court
The jurisdiction to review enduring powers of attorney has been given to the Board by the PoA Act. Ordinarily it is for the Board to determine questions of law which arise in the course of proceedings before it. That does not mean an exceptional case is required for the discretion to be exercised. But there must be a good reason to reserve the question by stating a case for the opinion of the Supreme Court.
In this case, some elements of the questions raised by the Donor and the Attorney, or at least some of the matters assumed by the questions might be important in determining the outcome of the review of the EPA. Whatever the outcome of the review, it will have a significant impact on the Donor and the Attorney’s rights and duties, either by interfering with them or leaving them intact.
However those matters are not sufficient to justify the Board reserving a question of law otherwise such questions would need to be reserved in almost every case. The Board is obliged to address the question of law which arise and to answer them correctly. If the Board makes an error of law, s76 of the Act entitles the Donor and the Attorney to appeal to the Supreme Court as of right. The parties did not identify any disadvantage might accrue to them by having the Board determine the questions in the first instance. Neither did they point to any advantage in having the Supreme Court determine those questions at this stage of the proceedings.
The Board is not satisfied there is any good reason to exercise the discretion in s75 of the Act at this stage.
The Factual Basis of the Special Case has not been Sufficiently Established
The special case contemplated by s75 is a statement of the facts which give rise to the question of law to be reserved for the opinion of the Supreme Court.
On 13 June 2014, when asked to identify the factual basis for the special case NI spoke for the Donor and the Attorney. He identified two matters he said formed the factual basis for stating a case to the Supreme Court namely:
a.the fact that the EPA had been made to circumvent the appointment of the Public Trustee referred to in paragraph 5(c) of the letter from the Board’s investigator dated 5 May 2014; and
b.the fact that the Attorney had sought advice and direction from the Board about the exercise of the power referred to in the letter of 30 April 2014 from the Board’s investigator.
The Board sought to clarify how the matter in paragraph 63 b. above arose in the circumstances of this case and NI suggested that any communication with the Board by the Attorney could be characterised as seeking advice or direction.
Doing the best it can to understand what is meant by those submissions, the Board does not consider they constitute facts which have been agreed by the parties or which the Board has found. At this stage paragraph 63.a. is an identification of an issue the Board might consider in conducting the review and paragraph 63 b. is a matter which might, in appropriate circumstances, give rise to the jurisdiction to give advice and directions. But neither of those matters can form the factual basis of the reservation of a question of law for the Supreme Court.
Nevertheless it is appropriate to consider each of the questions to ascertain whether the factual basis for the special case has been adequately identified and established in a way which would enable the questions to be reserved of the Supreme Court’s opinion.
Questions 1 to 4
Some of the factual matters relating to the questions are uncontentious. Clearly:
a.the Applicant is the legal practitioner and the lawyer/applicant;
b.the Donor is the person with a disability and the former client;
c.the EPA is the EPOA referred to;
d.the Attorney is spouse referred to in question 1 and the attorney referred to in questions 2 and 3; and
e.the dismissal, the use of the word ‘former’ to describe the relationship between the Donor and the Applicant are references to the effect of the letter from the Donor and the Attorney sent to the Applicant on 7 April 2014 and confirmed on 11 April 2014.
These questions all involve variations on a theme, namely the contention that the Donor and the Attorney dismissed the Applicant. There is no doubt that they both purported to do so on or about 7 April 2014. However that conclusion assumes that their acts were legally effective; that, in the eyes of the law, the letter of 7 April 2014 and confirmation of 11 April 2014 did what they purported to do.
That is a conclusion which requires further facts to be found.
a.If the Donor’s act was to be effective, she must have had the legal capacity to dismiss the Applicant. Without making any finding as to that, the Donor’s capacity is at least brought into question by the assumption in question 1 that she is a person with a disability. A question about the Donor’s capacity to act with legal effect is also raised by the fact that the Donor and Attorney joined in an application to the Board to appoint an administrator in respect of the Supreme Court proceedings. The existence of questions about the Donor’s capacity is confirmed by some of the medical reports provided to the Board which suggest the appointment of an administrator is appropriate. That evidence is not all one way but it is sufficient to raise the question of the whether the Donor has sufficient capacity to effectively dismiss the Applicant. The extent of the Donor’s capacity is a matter which should be explored at a hearing before any conclusion is reached in that regard.
b.For the Attorney’s act dismissing the Applicant to be effective the EPA must be valid. Again without making any finding as to that, the capacity of the Donor to make the EPA is a matter in issue on the review. That will involve consideration of whether she has any cognitive impairment and the effect that impairment might have on her ability to understand the nature and effect of the EPA as required by s30(2)(a) of the PoA Act including the matters referred to in s30(3) of that Act. It might also require exploration of what, if any, explanation of the EPA was given to her. It might be that the considerations in respect of the Donor’s capacity required by s30 of the PoA Act are not directly addressed by the evidence. But the Donor’s capacity is sufficiently addressed to raise the question of whether she had capacity to make the EPA.
Question 5
Question 5 is based on the proposition that the Donor and the Attorney have not been provided with particulars of the Review Application. On the material before the Board that proposition is simply incorrect.
The application was sent to the Donor and the Attorney under cover of a letter dated 30 April 2014 posted on 2 May 2014. That letter was referred to by NI for the Donor and the Attorney in the course of the proceedings 13 June 2014. His reference to that letter suggests it was received by the Donor and the Attorney.
A further letter was sent to them on 5 May giving additional information about the application, the orders the Board could make, the procedure for the hearing and outlining the issues which the Board’s investigator considered might be important. A notice of hearing dated 23 May 2014 was sent to the Donor and the Attorney outlining the procedure for the hearing and the issues to be considered at the hearing. On Friday 6 June 2014 the Board’s investigator sent an email to the Donor and the Attorney which identified the relevant documents and indicated they would be sent. While the material was reasonably extensive, much of it was material provided by or which must have been known to the Donor and the Attorney.
The material the Board considered on 13 June was all sent to the Donor and the Attorney prior to the hearing although they said some of it had not been received until Wednesday 11 June 2014. On 13 June 2014 the Donor and the Attorney did not indicate what information they had not received.
The Board is satisfied that sufficient particulars of the application, the issues to be considered by the Board, and the Board’s procedures and powers for dealing with the Review Application have been given to the Donor and the Attorney.
Question 6
The question of whether the EPA was designed to circumvent the appointment of the Public Trustee as administrator of the Donor’s estate is raised in the Review Application. In a letter to the Donor and the Attorney of 5 May 20124 the Board’s investigator asked the Donor and the Attorney to respond to that allegation.
However at this stage the question is hypothetical. The Board has not made a determination that the EPA was designed to circumvent the Donor’s estate being put under the administration of the Public Trustee. It cannot properly do so until the conclusion of the hearing of the review. The factual basis of the question remains and assumption which has not been established.
Question 7
This question appears to refer to the request by the Donor and the Attorney to stay the proceedings contained in an email to the Board of 5 June 2014 and the Board’s response indicating that it would deal with the request on 13 June 2014.
The Board has no express power to stay its own proceedings. Presumably the request in that email was for an adjournment of the proceedings listed for 13 June 2014. That is how the Board interpreted the request.
The Board did not declare that a stay of proceedings or adjournment may only be brought at the hearing on 13 June 2014. It simply decided to deal with the adjournment application when the matter was listed on 13 June 2014 and communicated that to the Donor and the Attorney. That was a convenient course and one for which no prejudice has been suggested. Indeed on 13 June 2014 the Board indicated it sought to deal with the question of whether or not it should hold a hearing first and no application for an adjournment was made then. After hearing submissions from the Applicant on that question the Board asked the Donor and the Attorney whether they contested the proposition that a hearing should be held. They agreed that a hearing should be held and indeed suggested it should have been held sooner.
After determining that a hearing should be held the Board adjourned that hearing to a date to be fixed. It therefore seems to the Board that the factual basis for this question has been overtaken by subsequent events.
Conclusion on Whether the Factual Basis for the Question has been Established
The Board is not satisfied that the factual basis of the special case has been established with sufficient clarity to enable any of the questions to be reserved for the opinion of the Court.
In the circumstances of this review, the facts are unlikely to be determined until after a hearing. It is therefore not appropriate to reserve the special case for hearing at this stage.
The Questions are Peripheral to the Issues in the Review
The Board considers that the proposed questions are peripheral to the central issues it will be required to consider on the review of the EPA. It is useful to analyse each of the questions in considering this factor.
Questions 1 to 4 – The Applicant’s Dismissal
These questions all raise the issue of the dismissal of the Applicant. That question is possibly relevant at two stages of the proceedings. The first is when considering the jurisdictional question of whether the Applicant has a proper interest. The second is when considering what, if any, order to make on the review once a determination has been made to conduct a hearing.
In respect of the first matter, whether the Applicant had been dismissed could be relevant to the question of whether he had a proper interest. Although not expressed in the questions, the Board understands the position of the Donor and the Attorney on that question involves the following propositions
a.the Applicant could only have a proper interest if he brought the Review Application on instructions;
b.his instructions had been terminated so he was not entitled to bring the Review Application; and
c.because he was not instructed to bring the Review Application he has breached his obligation of confidentiality by doing so.
The Board is satisfied the Review Application was not brought on instructions from either the Donor or the Attorney. It has been brought by the Applicant personally.
However the Applicant can have a proper interest in bringing the Application without instructions from his client or former client. The circumstances of this case demonstrate that interest. The Applicant had been and as at 13 June 2014 still was the solicitor on the record for the Donor in the Supreme Court proceedings. As such he needed to know whether his instructions had been effectively terminated. As discussed above that involves questions as to the validity of the EPA including the capacity of the Donor to make it and her capacity to make decisions in respect of the litigation.
If the dismissal was effective it would be appropriate for the Applicant to file the requisite notice with the Supreme Court indicating he was no longer acting. If not he needed to know from whom he could take valid instructions. Based on those matters the Board formed the belief that he had a proper interest and therefore that it could conduct a hearing.
Further, as referred to in paragraph 79 above the Donor and the Attorney agreed that the Board should hold a hearing. Given the material before the Board and the Donor and the Attorney’s agreement that the Board should conduct a hearing to review the EPA, the Board considered it was appropriate to do so of its own motion.
Having determined to conduct the review, the matters relevant to the determination of a proper interest on the part of the Applicant essentially fall away. While the Board can consider all relevant issues raised in the course of the review of the EPA, at present, it appears the central issues in this review are:
a.the Donor’s understanding of the nature and effect of the EPA, including the effect of her brain injury on her capacity to obtain the necessary understanding; and
b.the suitability of the Attorney as a substitute decision-maker for the Donor.
Questions about whether the dismissal of the Applicant has been legally effective therefore become peripheral to the issues the Board has to consider on the review. Whether the Applicant could make the Review Application, whether he could disregard the EPA, whether he could exercise any discretion in relation to the Donor’s cognitive impairment, whether he could disregard the notice dismissing him, making the application without instructions, whether the application involved any breach of an duty of confidentiality to the Donor and the legal status of the relationship between the Donor and the Attorney on the one hand and the Applicant on the other hand are of only peripheral, if any, significance in the determination of the matters the Board needs to consider in conducting the review of the EPA. It is therefore not appropriate to reserve questions 1 to 4 for the opinion of the Supreme Court.
Questions 5 and 7
These questions relate to the Board’s procedure. They do not go to the central matters to be determined by the Board.
Of course the Board’s procedure is an important part of its obligation to afford the parties natural justice. The matters raised by these questions might be seen to raise issues about whether the Board has complied with that obligation.
If there has been a failure to provide sufficient information the Donor and the Attorney can specify what further information they require and the Board can provide it to the extent it is appropriate for it to do so. If any failure continues until the Board makes a determination on the review then the question of whether that constituted a failure to comply with the requirements of natural justice is a question for the Supreme Court. But that should be raised by way of appeal or judicial review. It is not appropriate to raise that sort of question by way of a case stated for the opinion of the Court.
The Answers will not Finally Determine the Proceedings
Even if answers to the questions proposed by the Donor and the Attorney are sufficiently relevant to the matters the Board needs to consider, it is unlikely that they would determine the outcome of the proceedings.
At most, the answers would be matters the Board would weigh in determining what orders, if any, should be made. But there may be other matters to be assessed at the hearing and it will be the combination and weight of all of the relevant factors which will determine the outcome of the review of the EPA.
For example question 1 assumes that the fact that the Attorney is the Donor’s spouse is determinative or at least significant. The relationship between the Donor and the Attorney might be relevant when considering the Donor’s wishes and best interests and the least restrictive course to take. But the spousal relationship of itself may be of little relevance. The appointment of a spouse as a substitute decision maker has many obvious advantages. But there can be disadvantages and it is a matter of weighing the advantages and disadvantages of the particular person in the context of the particular relationship and circumstances to determine the appropriate outcome.
Questions 1 to 3 make assumptions about how the Applicant has or will respond to his purported dismissal. Question 4 raises the issue of how the Board should deal with the dismissal of the Applicant. Question 6 raises the issue of whether the EPA was executed to circumvent the appointment of the Public Trustee as administrator of the Donor’s estate. Conclusions in respect of those matters might be relevant to Board’s determination on matters such as as the Attorney’s suitability as a substitute decision maker for the Donor. But without additional facts which can only be found following a hearing it is impossible to know what weight would be given by the Board to any such conclusion in determining what, if any, orders were appropriate on the review of the EPA.
Questions 5 and 7 deal with the Board’s procedure and if the answer to those questions suggests a different procedure should have been followed, that will not determine the outcome of the proceedings. At most if the factual assumptions underlying the questions were established they might result in any determination made by the Board being set aside on appeal.
Considerations of equity, good conscience and without technicalities or legal forms
It is apparent from the nature of the questions that the Donor and the Attorney seek to invoke technicalities and legal form, at least in addressing the questions of the dismissal of Applicant. The Board is not satisfied that reserving the questions involving that issue for the opinion of the Court will promote the objectives of s11(2)(a) of the Act.
Fragmenting the Proceedings and Delay
In order to state the special case it would be necessary for the Board to hold a hearing to determine the factual matters which are assumed in many of the questions. The questions would then need to be answered by the Supreme Court. Once the answers are given there might well be other factual matters which need to be determined with or without further evidence and submissions. Given the existence of a right of appeal on questions of law, such fragmentation of the hearing is unnecessary.
It was submitted for the Donor and the Attorney that the opinion of the Court could be obtained before the hearing was resumed. The Donor and the Attorney could not tell the Board when they would be ready for a hearing of the review. The hearing date and the matters necessary to prepare for the hearing will be the subject of separate directions from the Board. While further adjournments are possible the Board should endeavour to make a determination as soon as possible so that all parties are aware of their rights and obligations.
The Board has not been informed of when the Supreme Court could provide its opinion on the proposed questions if they were reserved for the opinion of the Court. In those circumstances the Board is satisfied that reserving the questions could lead to unnecessary delay.
The Questions Should be Clearly Articulated and Arguable
In the Board’s view the questions are not expressed in a way which raises a specific legal question with clarity. In general the questions can be understood, but they make many assumptions which means that the answer will often be "it depends” so that the question of law is not clearly identified. Alternatively, depending on which assumption is made the answer is essentially certain so that it is not necessary for the Supreme Court to provide its opinion.
For example question 1 assumes the applicant was effectively dismissed. If the assumption is not correct the question would need to be reframed to refer to a purported dismissal and would therefore be of even less utility in the consideration of the issues before the Board. Even if the assumption is correct, it is most relevant to the question of the Applicant’s proper interest which is an issue that is not raised expressly by the question and for the reasons stated earlier does not need to be addressed now.
In order to avoid being a hypothetical question, question 2 must assume that the Applicant is disregarding the EPA by making the Review Application. It is hard to justify that assumption. Indeed the Review Application is premised on the existence of the instrument. It is the making and validity of the EPA which the Applicant seeks to have the Board resolve in order to determine whether or not his retainer has been effectively terminated. This is not a question which raises a seriously arguable issue.
Doing the best the Board can to understand Question 3 it appears this question assumes that the Applicant has or seeks to exercise complete discretion in determining that the Donor lacked the cognitive capacity to donate the EPA. There is no basis for that assumption. By making the application the Applicant has sought to place the resolution of the question of the Donor’s capacity to understand the nature and effect of the EPA in the hands of the Board. The Applicant has no power to determine and no discretion to exercise in determining the Donor’s cognitive capacity to create the EPA. The Board will make that determination and exercise any discretion which may be involved in doing so. For those reasons this question does not raise a question of law as to which there can be serious argument.
Again doing the best the Board can to understand Question 4 it appears to assume that by considering whether it should hold a hearing and determining to conduct a hearing the Board would be ignoring the written notice dismissing the Applicant. That assumption is not justified. The existence of the written notice is one of the facts which gives rise to the Applicant’s interest in making the application, namely to resolve whether that document was effective to terminate his retainer. Although the Board has not seen the notice or notices, there is no dispute that they were sent. The Board will take them into account to the extent it is appropriate to do so.
Question 5 is unarguable because the Board has provided adequate particulars in response to the requests by the Donor and the Attorney as outlined in paragraphs 21 to 27 and 71 to 74 above.
Question 6 assumes a determination to the effect identified in the question has or will be made. That is incorrect. It has not been. It may or may not be made following the hearing of the review. The question therefore does not arise at this stage. And if it does arise following a determination by the Board it can be the subject of an appeal pursuant to s76 of the Act.
Question 7 assumes that the Board declared that a stay of proceedings could only be sought at the commencement of the hearing. No such declaration has been made. For the reasons identified in paragraphs 79 and 80 above this question therefore does not arise and appears to the Board to be unarguable.
Conclusion
The Board is satisfied based on each of the above matters alone and all of them combined that it is not appropriate to reserve the questions proposed by the Donor and the Attorney for the opinion of the Supreme Court.
The Board will separately deal with the directions necessary for the preparation of this matter for hearing and the listing of the hearing of the review of the EPA.
Ken Stanton
BOARD MEMBER
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