HEH (Review Enduring Powers and Guardianship)
[2017] TASGAB 3
•13 April 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HEH (Review Enduring Powers and Guardianship) [2017] TASGAB 3
REASONS FOR DECISION
Melanie Bartlett (Chair)
Leanne Topfer (Member)
Colleen Cheek (Member)
Hearing 9 March 2017
Review Enduring Power of Attorney – whether donor understood nature and effect – capacity and appropriateness of attorney – donor’s wishes – family conflict – need for Administrator – independence of Public Trustee
Review Enduring Guardianship – donor’s understanding of nature and effect – appointment invalid
Guardianship – need – least restrictive alternative – limited order – family conflict over care arrangements – independence of Public Guardian
Guardianship and Administration Act 1995 s. 33, 34
The person about whom these applications are made is HEH, who is an eighty four (84) year old lady currently living on her own in a unit in XXXX. HEH attended the Hearing and, although she has quite significant hearing loss, efforts were made to try to ensure that she could hear what was occurring.
At the commencement of the Hearing NQ advised the Board that she objected to DDI being present during the Hearing, on the basis that he was not family and that “private” matters were to be discussed. DDI confirmed he had been married to HEH’s sister for many years, until her death 12 years ago. He stated he has remained in regular contact with HEH, all attendees at the hearing except HEH and her Advocate Ms Roslyn Wallace were asked to leave the hearing room. The Board enquired of HEH as to whether she objected to DDI being at the Hearing. She could not clearly recall how he was related to her but concluded that it would do no harm to have him remain and she was content with that. All attendees came back into the Hearing room and were advised that DDI would be able to remain in the Hearing.
The Applications
There were three (3) applications dealt with by the Board at a Hearing on 9 March 2017 at Burnie before Board members Melanie Bartlett (Chair), Leanne Topfer, and Colleen Cheek. Those applications were: -
An Application by NQ for review of the Enduring Power of Attorney dated 25 August 2014, registered number PAXXXX registered on 18 September 2014.
A review by the Guardianship and Administration Board of its own motion to review the Enduring Guardianship dated 31 January 2017.
An Application by NQ for Guardianship.
Persons attending the Hearing
The Donor of the Power of Attorney and Proposed Represented Person is HEH who attended the Hearing. Also in attendance were: -
Mr Graham Stagg from the office of the Public Trustee;
Ms Roslyn Wallace, Advocate for HEH;
NQ, daughter of HEH, Applicant in respect of the Review of the Enduring Power of Attorney and Donee of the Enduring Guardianship;
Dr Suren Naiker, HEH’s GP of 21 years;
DDI, brother-in-law and friend of HEH and proposed substitute attorney;
LI, DDI’s wife and friend of HEH;
QH, son of HEH and Attorney under the Enduring Power of Attorney;
NH, QH’s wife;
LQ (attending by telephone), granddaughter of HEH and attorney under the Enduring Power of Attorney.
Documents Available
The Board had available the following documents: -
Application for review of the Enduring Power of Attorney with Health Care Professional Report;
Application for Guardianship with Health Care Professional Report;
Instrument Appointing Enduring Guardian;
Letter from NQ dated 1 February 2017;
Letter from NQ dated 28 February 2017;
National Police Certificate in relation to NQ;
Resume of NQ and four (4) references;
Letter from LQ by way of reference dated 26 September 2002;
Letter from QH undated;
Email from Roslyn Wallace to the Board dated 7 March 2017;
File note of telephone conversation by Denise Chaston, ACAT assessor on 28 February 2017 with Allison Merridew; and
Confidential report prepared by the Guardianship Board Investigator Allison Merridew.
The Hearing of the Applications
Review of Enduring Power of Attorney
The Donor, HEH, executed a general Power of Attorney on 4 June 2008 (registered on 30 June 2008 registered number PAXXXX) in favour of her daughter NQ and her son, QH. This Power of Attorney was prepared and witnessed by a solicitor. On the 25 August 2014 HEH executed a general Enduring Power of Attorney (registered on 18 September 2014 registered number PAXXXX) appointing her son QH and her granddaughter LQ jointly (the EPA). The EPA revoked all previous Powers of Attorney made by HEH. From the witnesses to the document it is clear that HEH had legal advice at that time and that the document was prepared by a solicitor.
The Application for Review of the EPA was brought by HEH’s daughter, NQ. NQ asserted in her application, and at the Hearing, that HEH did not understand the implications of the EPA in that she thought it came into effect at her death, and further that one of the Attorneys, her brother QH, was not a good manager of finances and did not always tell the truth. NQ therefore proposed that her name should be either added to the EPA or she should replace QH “in fairness” and “for honesty reasons”. She also submitted that this would reduce the influence of her brother’s wife, NH, and enable NQ to act in her mother’s best interests. NQ also raised concerns about the practicality of having her daughter LQ as an attorney, given the geographic distance and her concern about what information QH would provide to IQ in acting under the EPA. The Board noted that the EPA is drafted so that QH and LQ must act jointly and not jointly and severally. NQ further raised what, in her view, was the lack of involvement by QH with HEH’s care and his lack of understanding of her situation. She also referred to conflict situations between HEH and QH and QH’s wife NH.
QH advised the Board that he had essentially not needed to use the EPA at this stage, and LQ confirmed that she had not carried out any actions using the EPA. QH gave evidence that he assisted his mother if he took her shopping with paying of debts, attending at the bank or purchasing items. QH proposed that the Board could appoint DDI as an alternative attorney to him, or with him.
The Board considered whether the EPA was duly executed and created and concluded that it was in accordance with Form 4 of the Powers of Attorney Act 2000 (the PA Act), had two (2) independent attesting witnesses, and there was a signed Statement of Acceptance by the Attorneys.
10. The Board also gave consideration to whether HEH understood the nature and effect of the instrument at the time of the execution of the document. The Board had the Heath Care Professional Report from Dr Naiker, which was undated, but received by the Board on 3 February 2017. In the report Dr Naiker ticked the box that indicated that in this regard he was unsure. At the Hearing itself Dr Naiker gave evidence that he could not be specific about HEH’s understanding on that particular day, being 25 August 2014, but that HEH was already demonstrating deficits in memory at that time. There was no other independent advice available as to her capacity at that time and therefore insufficient conclusive evidence to enable the Board to conclude that HEH did not understand the nature and effect of the EPA at the time of execution. She did demonstrate at the Hearing a misunderstanding in that she said she understood that it commenced at her death, but that did not provide the Board with evidence as to her understanding at the time she signed that document in 2014. Given the lack of such conclusive evidence, HEH was assumed to have had capacity at the time of execution of the EPA.
11. The Application for Review appears to the Board to have been motivated by the concerns of NQ about her brother being an attorney and also the practical issues surrounding her daughter being an attorney. However, this is in a context of extreme conflict between NQ and QH, which was clearly demonstrated throughout the lengthy and volatile Hearing before the Board.
12. NQ confirmed at the Hearing the matter that she had raised in her application concerning her concern about her brother QH’s capacity and/or appropriateness to be an attorney for HEH, and referred to his lack of involvement with HEH’s every day needs. This was countered by QH stating that he does take HEH out shopping and to the bank. DDI also advised the Board that he and his wife visit HEH regularly and take her into town and to the bank and assist her with paying bills and shopping.
13. NQ expressed the view quite strongly that the involvement of QH and DDI with HEH was quite limited and a lot less than her own involvement, and did not occur as regularly as they stated. The Board was satisfied that there has clearly been some assistance from both DDI and QH for HEH in dealing with her financial affairs in recent times.
14. NQ, QH and DDI all confirmed that they needed to assist HEH at the bank as to how much money to draw out of her account. There was evidence that they had to help her prepare the withdrawal slip but that it was HEH who presented personally to the teller. NQ told the Board that on occasions her mother reverts to pounds, shillings and pence and can’t deal with “this new money”. In Dr Naiker’s Health Care Professional Report he refers to HEH having reduced capacity to manage day to day financial requirements and impaired ability to deal with more major financial decisions.
15. The Board also heard from HEH as to her wishes in relation to her financial matters. She stated that she wishes to have the decision making in this regard transferred “to the Trustees”. HEH had an understanding that the Public Trustee is an independent body that could deal with her finances for her and said on a number of occasions that it was her wish that it be someone independent dealing with things for her. She was obviously upset by the level of conflict between her son and daughter and queried why a brother and sister could not get on and agree about things. She said that it would be far better for them to not have the responsibility in this regard.
16. The Board was satisfied that HEH has a disability, being Alzheimer’s Dementia, as outlined by Dr Naiker in his Health Care Professional Report and expanded upon at the Hearing. The Board also considered the three (3) reports of Dr Vishnu Sharma dated 26 August 2015, 8 April 2016 and 23 November 2016. These reports confirm the ongoing deterioration in HEH’s cognition and Dr Sharma expressed the opinion in the last of those reports that HEH is now at significant risk at home whereby she does not understand the operation of appliances and has been ringing emergency services inappropriately. NQ expressed concern at some of the conclusions reached by Dr Sharma particularly on the occasion when she did not accompany HEH to the appointment, when HEH was accompanied by her son QH. The Board noted that Dr Sharma referred to having received a letter from NQ. The Board was satisfied that Dr Sharma had formed his professional opinion independently and that his view were not unduly influenced by input from NQ or QH.
17. The Board also considered the report from Ms Denise Chaston who is a Clinical Nurse Consultant with Dementia Support Service. The report included the cognitive examination which was undertaken in August, 2015.
18. Having been satisfied that HEH has a disability, the Board was also satisfied on the evidence of the medical practitioners and HEH herself, and the other attendees at the hearing that HEH’s disability leads to an inability by her to make reasonable decisions about her financial affairs.
19. There is a need for HEH’s finances to be dealt with on her behalf. She has a Centrelink income and owns her unit in XXXX, so there are ongoing costs arising in relation to that. HEH has limited capacity now to deal with these matters herself without considerable assistance. Dr Naiker’s report also points out that HEH is susceptible to influence and lacks impulse control.
20. The Board also took into account HEH’s wishes in this regard, and those wishes were that neither of her children should deal with these matters for her, and that they should be dealt with by an independent body. As stated previously HEH was clearly very concerned about the level of conflict and animosity between her children which was evident at the Hearing. HEH’s advocate Ms Roslyn Wallace confirmed to the Hearing that HEH’s wish to have her financial matters dealt with by an independent body such as the Public Trustee was consistent with what was expressed by HEH to Ms Wallace prior to the Hearing and that her views in this regard have not varied.
21. The Board considered the provisions of Section 33 of the PA Act and determined that under subsection (2)(f) of that section the EPA should be revoked and that the Public Trustee should be appointed as Administrator of HEH’s estate.
22. The Board was impressed by the contribution by LQ, HEH’s granddaughter and co-attorney with QH under the EPA. LQ was calm, concise and objective in her assessment of the situation regarding the EPA and accepted that there were practical difficulties for her in being a joint attorney when she lived in XXXX. She stated that what she wanted, and what everyone attending the Hearing should be concentrating on, was what was in the best interests of HEH.
Review of the Enduring Guardianship and Application for Guardianship
23. HEH signed an Instrument appointing an Enduring Guardian on 31 January 2017 which appointed NQ as her guardian. This was lodged with the Guardianship and Administration Board for registration. The Instrument was received on 3 February 2017 and registered by the Board, but the Board then became aware of the Application for Review of the EPA and the Board therefore determined to review the Enduring Guardian, on its own motion. NQ then lodged an application to be appointed Guardian for HEH with a further Health Care Professional report from Dr Naiker. There were also the three (3) reports from Dr Sharma which were also forwarded to the Board with that Application, together with the Tasmanian Health Services Report and testing carried out on 15 August 2015 by Denise Chaston.
24. In relation to the appointment of NQ as HEH’s Guardian, Dr Naiker had outlined in his Health Care Professional Report for the Application for Guardianship that HEH “is unable to make the necessary decisions and there is a potential of placing herself at risk”. Dr Naiker confirmed she has limited and reduced capacity as a result of her Alzheimer’s Dementia and, at the Hearing, stated that in his opinion HEH would not have had the capacity on 31 January 2017 to understand the document she had signed for the Enduring Guardianship and would not have remembered afterwards making it.
25. The instrument appointing the Enduring Guardian met the formal requirements, in that it was in accordance with the necessary form, was witnessed by two (2) independent witnesses and was accepted by NQ. However, given the evidence of Dr Naiker and the other medical reports the Board was satisfied that HEH did not have the mental capacity to make the appointment on 31 January 2017 and the Board therefore declared that the document was invalid.
26. Finally the Board considered the Application for Guardianship by NQ. It is clear that NQ provides a great deal of support and assistance to her mother on a daily basis. NQ is a State Registered Nurse and has been for many years. She indicated that she knows what is required for her mother as her health declines, and that she is able to assist daily with medications and everyday health and living matters. Whilst QH does not have the practical knowledge of NQ has in this regard, he also expressed the view that he wanted to assist his mother as best he could. DDI also confirmed he and his wife were happy to continue to assist HEH as much as they could.
27. QH was concerned about what he saw as a high level of arguing and conflict between HEH and NQ. QH reported HEH becoming stressed and upset by arguments and would ring him to talk about the situation. He also reported a recent situation where HEH reported that NQ had abandoned her in town after they had an argument, leaving her to find her own way home. He said that some kind strangers assisted and drove HEH home. NQ denied that this had happened in the way described and said that she had had a bad headache and told HEH that she needed to go home, and when HEH refused to leave town she drove herself home in the knowledge that HEH would make her own way home by taxi. NQ asserted that from her knowledge when working with a person with dementia there will be conflict from time to time, and there is reference in the reports from Dr Sharma of HEH becoming irritable quite easily from time to time.
28. HEH expressed the view that she did not believe she needed a Guardian now, but would have one when she couldn’t do things herself. She said that she was coping on her own, although acknowledged that that was with help from others, particularly NQ. She said that she would prefer to have her daughter, rather than her son because of what she saw as the personal nature of such an order, for example “washing me down”. QH advised the Board that he believed HEH needed a Guardian, but it was not a role he would want to take on.
29. Both Dr Naiker and Dr Sharma have raised the possibility of HEH needing to move to live in a nursing home in the very near future. An ACAT assessment was being undertaken within a few days of the Hearing. There were a lot of submissions made by attendees at the Hearing concerning the decision as to whether HEH should live in a nursing home or not. It was clear that NQ’s view was that she wanted her mother to remain living in her own home, for as long as possible, whilst QH could see the benefits of a nursing home for his mother. The Board explained, more than once, that this was not a decision that the Board was making; the Board was deciding whether a Guardian should be appointed and one of the roles of a guardian can be to make that decision, if that is the order made by the Board.
30. As stated previously, on the basis of the medical evidence provided in the reports from Dr Naiker and Dr Sharma, the opinions expressed by Dr Naiker at the Hearing and the report from Denise Chaston, the Board was satisfied that HEH does have a disability and the Board is satisfied that as a consequence of that disability HEH is now unable to make reasonable decisions in relation to lifestyle and medical issues.
31. The Board then considered whether there was a need for a Guardianship Order to be made, and, if so, what was the least restrictive alternative in the circumstances. The Board concluded that there is a need for a Guardian for HEH in relation to a decision about where she is to live, which obviously can include whether she continues to live in her own home or live in a nursing home. One of the major factors in determining that there was a need for a guardian to make that decision is the high level of conflict between NQ and QH.
32. However, in relation to other matters about which a Guardian could make decisions, the Board was satisfied that, at this time, the assistance being provided by NQ is such that there is not a need for a Guardian to be provided with any additional powers, and the least restrictive alternative is to limit the order to an order as to accommodation only. Given the relationship between the members of the family, the Board concluded that the Office of the Public Guardian should be appointed as the Guardian for HEH in relation to that issue.
Conclusion
The Board was satisfied that the represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of her person and circumstances; and
is in need of a limited guardian;
THE BOARD ORDERS that the instrument appointing the Enduring Guardian is revoked pursuant to section 34 (1A) of the Guardianship and Administration Act 1995.
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.
That the order remains in effect to 8th March 2020.
Further, THE BOARD DECLARES that pursuant to s33(2)(f) the Enduring Power of Attorney is revoked and an Administrator is to be appointed in respect of HEH’s estate.
THE BOARD ORDERS
That the power is revoked from the date of this order.
That the Public Trustee is appointed administrator of the estate of HEH.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect to 8th March 2020.
DATED this 9th day of March 2017.
Melanie Bartlett
Member
Date: 13 April 2017
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