HK (Advice and Direction, Guardianship, Review Enduring Powers)
[2018] TASGAB 7
•19 January 2018
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HK (Advice and Direction, Guardianship, Review Enduring Powers) [2018] TASGAB 7
STATEMENT OF REASONS
Louise Mollross (Chair)
Kate Brown (Member)
Juanita Westbury (Member)
Guardianship – Review of Enduring Power of Attorney – Advice and Direction – Conflict
Guardianship and Administration Act 1995
On the 19th of April 2018 there were 3 matters before the Guardianship and Administration Board (the Board) in respect of HK namely;
Application for the Appointment of a Guardian, dated 19/01/2018
Review of an Enduring Power of Attorney, dated 19/01/2018
Advice and Direction to Attorney, dated 19/03/2018
Present at the hearing of this matter were the following;
DE, the Applicant and daughter of HK
SK, the Attorney (Attendance by telephone)
HK, who is the donor of power of attorney PA XXXX and the proposed represented person in the application for guardianship and application for advice and direction
Ms Liz Love, from the Office of the Public Guardian
The Application for Guardianship and the Review of the Enduring Power of Attorney were lodged by DE.
The application for Advice and Direction was lodged by the Attorney, SK.
The documentation available to assist in the hearing of this matter was as follows;
· Application for Guardianship, dated the 19th of January 2018
· Application for Review of the Enduring Power of Attorney dated the 19th January 2018
· Application for Advice and Direction dated the 19th March 2018 received from SK.
· Health Care Professional Report from Dr Hannah Kelly dated the 8th of March 2018
· Statement from the applicant dated the 9th of March 2018, pursuant to Regulation 4(2) of the Guardianship and Administration Regulations 2017, received from DE.
· ACAT Report dated the 8th of March 2018 from Ms Merrilyn Orr.
· Copy of Enduring Power of Attorney PA XXXX dated the 12th of July 2016.
· Will of HK dated the 5th of March 1991.
· Written submission from the Attorney, SK,
· Written submissions from DE.
· Bank report from Westpac dated the 4th of April 2018.
· Police Check dated the 26th of June 2017 in respect of DE
· Property Report dated the 20th of March 2018 concerning the property situated at Hobart
· LIST Property Search.
DE has requested a statement of reasons.
The Hearing of the Review Application
By Section 33 of the Power of Attorney Act 2000 the Board is empowered to Review an Enduring Power of Attorney.
Section 33(d) of the Power of Attorney Act 2000 provides that a request for a Review may be made upon application by any other person who the Board believes has a proper interest in the matter.
The application has been bought forward by the Donor’s daughter DE.
At the commencement of the hearing the Board determined that the applicant has a proper interest in the matter.
10. It was noted that when the Enduring Power of Attorney was executed by HK, it was some 5 months after she had been diagnosed with Alzheimer’s Dementia. The Attorney SK advised that a report from Dr Dunbabin had been obtained at the time, establishing that HK had the capacity to understand the nature and effect of the Enduring Power of Attorney.
11. In giving consideration to whether HK understood the nature and effect of the instrument at the time of the execution of the document, the Board determined it was appropriate that it have before it a copy of the report from Dr Dunbabin.
12. The applicant, DE, raised a number of issues with respect to the Attorney’s actions and his management of HK’s finances and her estate. In particular the applicant asserted that the Attorney was meeting payments for private health insurance for one of HK’s children, KK, and petrol to enable her to travel to heat up HK’s lunch. It was also alleged the Attorney was using HK’s funds to pay for his car to be serviced, to pay for Austar and Netflix which are not used by HK.
13. It was also asserted that the Attorney and KK are using the HK’s finances to meet their own personal expenses.
14. The Attorney advised that the private health insurance had historically been paid by HK’s husband (and father of KK for some years prior to his death) and it was something that had been carried on by HK after her husband’s death.
15. It was also asserted by the Attorney that home insurance was paid for KK because of the enjoyment HK received from attending the property at Hobart and because of KK’s need for financial assistance.
16. The Application for Review of the Enduring Power of Attorney was adjourned and the following Orders made;
· That the matter be adjourned on a date to be fixed by the Board within 30 days for HK to provide the following:
a) Historical documentary evidence of payments for health care insurance for the sister, KK, from the account of HK.
b) A copy of the report from Dr Dunbabin establishing that the Donor had capacity to understand the nature and effect of an Enduring Power of Attorney.
Application for Guardianship
17. Section 20 of the Act provides that the Board after hearing an application for Guardianship may appoint a Guardian for a Proposed Represented Person if satisfied that;
1) The Proposed Represented Person has a disability;
2) The disability renders the person unable to make reasonable judgements in respect to matters to do with the person and their circumstances;
3) The Proposed Represented Person is in need of a guardian.
The Act empowers the Board in such circumstances to make a full or limited order when satisfied there is no less effective means to achieve the welfare of the Proposed Represented Person.
18. Section 51 of the Act empowers the Board to make an Order if satisfied of a Proposed Represented Person having a disability that effects the Proposed Represented Person’s capacity to make reasonable judgments in respect of matters relating to his/her person or circumstances. The less restrictive means test also applies in this situation. There is also a fundamental obligation of the Board to make the least restrictive order possible in the circumstances.
19. Dr Hannah Kelly provided a Health Care Professional Report, which is dated the 8th of March 2018. That Health Care Professional Report provides that HK suffers from Alzheimer’s Dementia with an MOCA score of 12/30 and significant cognitive dysfunction diagnosed in 2016 by Dr Dunbabin.
20. Dr Kelly advises that the HK;’s condition is deteriorating and is likely to continue to slowly deteriorate cognitively and physically. As a result of the significant cognitive dysfunction the HK has a very basic understanding of her issues concerning her person and circumstances.
21. In addition the My Aged Care report was available, which provided that the HK is aged 93, is widowed and advises that cognitive decline for longer than 3 years is reported.
22. HK has high current care needs and she is assessed as eligible to receive a Home Care Package Level 4. The medical evidence was unchallenged at the hearing and no further medical evidence was provided to the Board.
23. HK’s care is supported by her son SK who stays overnight and cares for HK with the assistant of DVA Services (Independent Healthcare). Additional assistance above that what DVA can provide, such as a homecare package is required for HK to be able to remain living at home, her care needs are high and she cannot be left alone. There were allegations of HK being locked in her home.
24. DE has applied to the Board to be appointed as HK’s guardian, as did SK. It is clear that there is a high level of family conflict, as is referred to in the Health Care Professional report. That conflict is also evident by the documentation which has been lodged with the Board in support of both the Application of DE for Guardianship and the responding material from SK. At the hearing of the matter it was clear after hearing from both DE and SK, that there is a high level of family conflict generally but also in respect to HK’s care and in respect of visits from certain family members. As a result of the conflict it was evident to the Board that it would be appropriate should there be a need for a Guardian, an independent Guardian would need to be appointed.
25. The Board is satisfied that HK is a person with a disability and is unable by reason of that disability to make reasonable judgments in respect of her person and circumstances and is in need of a guardian to make decisions about where HK is to live, whether it be temporary or permanently, health care decisions, third party services, visitation and contact. Given the high level of conflict it is clear that HK’s best interests would be served by the appointment of the Office of the Public Guardian.
26. The Board determined HK is in need of a Guardian to make accommodation decisions and to make decisions about services from third parties, visitation and contact from family members. It was determined the appointment of a Guardian is in the best interests of HK and that there was no less restrictive option to take.
27. The Board carefully considered the evidence and criteria set out in Section 21 of the Act and determined the appointment of the Office of the Public Guardian was in the best interest of HK.
28. The orders are to ensure all family members could visit, and HK’S level of care was of the highest standard.
Advice and Direction Application from Attorney
29. SK filed the Application for Advice and Direction from Attorney because he was asking the Board to mediate on the dispute between himself and his nephew BK. The Board explained to SK that this was not the role of the Board and he would need to contact an external mediation organisation to assist in this regard.
30. The application was dismissed.
Conclusion
31. After hearing an application for a Guardianship Order in respect of HK. The Board was satisfied that HK
·is a person with a disability;
·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
1. That the Public Guardian be appointed as the represented person’s guardian.
2. That the powers and duties of the guardian are limited to decisions concerning;
(i)where the represented person is to live either permanently or temporarily; and
(ii)consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment; and
(iii)permitting visits and contact to the represented person to such an extent as may be necessary in her best interests and where necessary to prohibit visits and contact by any person if the guardian believes that they would have an adverse effect on the represented person; and
(iv)consent to any third party services in the best interests of the represented person.
3. That the order remains in effect to 18 April 2021.
After considering an application for Advice and Direction by the attorney
THE BOARD ORDERS
The application for advice and direction was dismissed.
After hearing an application to Review an Enduring Power of Attorney
THE BOARD ORDERS
1. That the hearing is adjourned to a date to be fixed.
2. That within 30 days SK is to provide the Board with;
(i)historical documentary evidence of payments for health insurance for KK from the represented person’s bank account; and
(ii)a copy of Dr Dunbabins report establishing the represented person had the capacity to understand the nature and effect of the Enduring Power of Attorney.
The order adjourning the application for Review of the Enduring Power of Attorney was to ensure the Board had before it all the relevant evidence upon which to make a decision.
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