HK – Review of Enduring Power of Attorney

[2018] TASGAB 22

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HK – Review of Enduring Power of Attorney

Statement of Reasons

Louise Mollross (Chair)
Kate Brown (Member)
Juanita Westbury (Member)

Hearing 6 September 2018

Review of Powers of Attorney – Death of donor while Review ongoing
Guardianship and Administration Act 1995
Powers of Attorney Act 2000

1. On 12^th of July 2017 HK executed an Instrument of Appointment of an Enduring Power of Attorney appointing her son SK as her Attorney.  That instrument was registered on 14^th day of July as PA XXXX (the EPA).

2. The donor’s daughter DK (the Applicant) applied for a review of the EPA pursuant to Section 33 of the Powers of Attorney Act 2000 (the Act) on 22^nd of January 2018 and seeking the appointment of herself as the Attorney.

3. The Application to Review the EPA (the Application) was listed initially for hearing on 19^th day of April 2018.

4. At the commencement of the hearing on 19^th of April 2018 the Guardianship and Administration Board (the Board) determined that the Applicant had a proper interest in the matter.

5. On 19^th of April 2018 the Board made the following Order:

   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 Dunbabin’s report establishing the represented person had the capacity to understand the nature and effect of the Enduring Power of Attorney.

A hearing date of 6^th of September 2018 was later allocated by the Board registry.

1. On 27^th day of May 2018 the donor died.

2. By the Will dated 5^th day of March 1991 the donor appointed SK as her Executor. 

3. Notwithstanding the death of the donor the Applicant’s position was the review of the EPA should proceed.

4. On 6^th day of September 2018 the following persons attended the hearing:

   ·DK (Applicant)

   ·SK

   ·KK

10. Section 33 of the Act provides for the review of an Instrument of Appointment of an Enduring Power of Attorney by the Board.

11. A review of an Enduring Power of Attorney is not simply a broad ranging enquiry into the conduct of an Attorney. It is directed to the remedies in Section 33 of the Act. Although the death of the donor does not remove the jurisdiction to conduct a review, the types of orders contemplated by Section 33 of the Act are generally inappropriate once the donor has died.

12.  The principals articulated in cases in other Australian guardianship jurisdictions confirm that position.[1]  This position is also supported by the decision NNE (Review of Enduring Powers) 2016 TASGAB13.

Disposition of the Application for Review of the EPOA

[1] UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, IQU (Guardianship) [2016] VCAT 621, ODY (Guardianship) [2016] VCAT 804, DJB (Guardianship) [2010] VCAT 280, KS [2008] WASAT 29

13.  Given the death of the donor, the Board takes the view that conducting a Review of the Power of Attorney serves no useful purpose. Having not conducted a review, the Board does not make any finding about whether the allegations made by DK are, or would likely be, substantiated. What can be stated with certainty however is that, even if all of DK’s allegations were substantiated, none of the remedies available to the Board within the Act are appropriate after the death of the donor. The Board therefore considers that a review would serve no useful purpose and renders the application without substance.

14. For these reasons the Board finds that the Application for Review is now lacking in substance and accordingly it is dismissed pursuant to Section 33(1)(a) of the Powers of Attorney Act 2000.

Louise Mollross
Member

24 September 2018