HME (Review of Enduring Powers)
[2017] TASGAB 5
•16 May 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HME (Review of Enduring Powers) [2017] TASGAB 5
STATEMENT OF REASONS
Rowena Holder (Chair)
Grant Kingston (Member)
Louise Molross (Member)
Hearing: 6 April 2017
Review enduring power of attorney – family conflict – insufficient funds being provided for proposed represented person’s enjoyment of life – Public Trustee as Administrator
Guardianship and Administration Act 1995 s. 33, 51
On 23rd August 2012 HME (“the donor”) executed an Enduring Power of Attorney appointing his daughter KE as his attorney. That instrument was registered on 23rd August 2012 as PA49648 (“the EPA”). The donor also executed an enduring guardian instrument appointing his daughter, the attorney as enduring guardian. The instrument was registered with the Board, as no. XXXX on the 11th February 2015.
The donor’s partner, BU (the applicant) has applied for a review of the EPA pursuant to s33 of the Powers of Attorney Act 2000 (“the Act”). The application seeks the revocation of the EPA and the appointment of the Public Trustee as administrator. The enduring guardian is not the subject of review by the Board.
The Application to Review the EPA (“the application”) was listed for hearing on the 16th March 2017. Proceedings were adjourned at the request of the Attorney’s family because of bereavement in the family. The Application proceeded to hearing on the 6th April 2017.
Persons attending the Hearing
The hearing was attended by:
HME, donor
KE daughter of HME and attorney under the Enduring Power of Attorney;
BU, partner of HME and applicant
Edward Kempa from the Public Trustee;
BT, friend of the applicant;
DE, the donor’s niece;
ML, the applicant’s sister;
LL, friend of the applicant.
Documents Available
The Board had available the following documents: -
Application for Review of the Enduring Power of Attorney with Health Care Professional Report from Dr Robert White;
Power of Attorney PAXXXX
Enduring Guardianship no XXXX
Submissions from the Applicant and copies of letters/emails she had sent to the attorney
Submissions from the Attorney
Submissions from BT
Submission from DTU, the Applicant’s sister in law
ACAT report dated 10/12/2014
myagedcare report by assessor Kate Atkinson dated 3rd March 2017
copies of the donor’s bank statements from MyState
Correspondence from Fitzgerald and Browne Lawyers
Will of the donor
Report to the Board from the Case Assessment Officer of the Board
The Hearing of the Review Application
By Section 33 of the Act the Board is empowered to review enduring powers of attorney. Section 33(d) of the Act 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 brought by the donor’s partner of approximately 26 years, who is also his carer. The applicant and the donor have been living together in the applicant’s house since September 2015. At the commencement of the hearing the Board determined that the applicant has a proper interest in the matter.
The Board considered whether the EPA was executed correctly. The applicant indicated to the Board that the EPA was executed on the 23rd August 2012 on the day she was returning to Tasmania from overseas and that she had no knowledge of it until April 2015. At hearing she did not contest the EPA was invalid based on its execution.
The Board also gave consideration to whether the donor understood the nature and effect of the instrument at the time of the execution of the document. The Applicant questioned at hearing whether the donor had capacity at the time the EPA was executed. The Board considered the Health Care Professional Report from Dr Robert White, the donor’s regular GP. Dr White advised he knew the donor at the date of execution of the EPA and stated that in his opinion the donor had the capacity to make decisions or judgments in relation to his property at the date of execution and understood that he had given the attorney authority to manage his property and financial affairs at the date of execution. The applicant indicated she did not have any alternate medical evidence she sought to rely on. She then indicated she had no dispute with the medical evidence from Dr White. The Board determined that the EPA was executed correctly and that the donor had mental capacity to make the EPA at the time it was executed.
The applicant raised a number of issues with respect to the attorney and her management of the donor’s finances and his estate. In particular the applicant asserted that the attorney is failing to apply the donor’s funds sufficiently to the benefit and enjoyment of the donor and contended that the donor does not have sufficient funds to meet all his living expenses. The applicant contended that she had to regularly subsidise the donor’s living expenses which causes the donor worry and anxiety that he doesn’t have sufficient funds. There has been dispute over what contribution the donor should pay to living expenses. The Applicant said she feels like she is “begging for money” when requesting further funds from the attorney. The attorney gave evidence at hearing that she has paid for “what BU has asked for” and reimbursed expenses when a receipt has been provided. Initially the contribution for the donor’s living contribution was $50 per week payable to the applicant. On the 17th December 2015 the applicant requested an increase in the contribution to $240 per fortnight, and payment of half of the power and water accounts. She provided a breakdown of expenses over a 4 month period to the attorney. The applicant asked that the increased contribution be backdated to the 1st September 2015 when the donor started living with her fulltime. On the 17th January 2016 the applicant wrote again to the attorney “as regards HME’s board, have you given it some thought? I need payment for HME’s expenses stated in the above invoice.” The attorney responded “I have given it a lot of thought. I agree HME contribute to the cost of Tas Water and Aurora, but the rates and rego are not his responsibility, he will not be back paying for board”. The attorney increased the amount for living expenses payable to the applicant to $200.00 per fortnight. In March 2016 this increased to $300 per fortnight.
10. The Applicant indicated that from time to time she has requested further funds from the attorney for the use and enjoyment of the donor. The applicant also contended the donor did not have access to sufficient funds to do what he wishes, such as attend musical events, movies, or for eating out, or getting a coffee. At hearing the donor confirmed he did enjoy attending musical events.
11. The Board heard evidence that the attorney provides the donor with approximately a $100 per week or tops up the amount in his wallet to be $100 “when I see him”. The attorney however indicated in more recent times she is not always able to see her father weekly and no other system of ensuring the donor has sufficient funds has been implemented. The applicant indicated that from the $100, the donor pays for a $25 container of diabetic sustagen and some other food items he wants and sometimes contributes $20 for petrol, which leaves him with little funds. The Applicant contended that the donor should have funds of $200 per week at his disposal.
12. The Board heard evidence that the donor owned a house at XXXX which was sold. The net proceeds of sale of approximately $310,000 were invested on behalf of the donor. The donor’s bank account statements also reveal he receives a fortnightly pension from Veteran Affairs and a pension from Retirement Benefit Funds which total over $1400.00 per fortnight. The Board concluded that the donor is certainly not without the financial means to fund the activities he enjoys and to live comfortably.
13. The applicant made submissions that there had been a pattern of the attorney disputing almost every request for funds and requiring to be notified in advance of incidentals. This approach has limited the ability to attend events or go out spontaneously. By way of example the applicant stated that she has requested a polar fleece jumper and a doona for the donor and only received these items after numerous requests of the attorney. She stated the donor had asked for a chair which he had in his XXXX property and was told by the attorney he couldn’t have it. The Attorney indicated that the chair was at her place for her father to use when he visited.
14. The applicant indicated the donor has not received his belongings which were packed up and put in storage after the sale of his house except for his clothes and a couple of books. She indicated she and the donor didn’t know where the items were and the donor had made recent reference to wanting some of his belongings. The attorney indicated that she had had discussions with her father about putting the items in storage and after 12 months, as he had not asked for anything, determined that the cost of storage was expensive and moved items to her house.
15. All these matters highlight the growing conflict that exists between the attorney and the applicant.
16. Communication between the applicant and the attorney has also been fraught. The applicant stated at hearing there has been a “lack of communication and exclusion” when dealing with the attorney. The applicant acknowledges she has a very “strained relationship” with the attorney. “More recently it has been so difficult to communicate and to get an answer to these issues. We have communicated by texts and emails. This is because of the conflict.” Further she stated “In April 2015 we met with a counsellor to speak about the conflict. We agreed to write in a diary but this fell apart, it wasn’t working.” The applicant also admitted “I have lost my temper” with the attorney.
17. Copies of email exchanges between the applicant and attorney were provided to the Board. The applicant indicated she had attempted on the 24th May to initiate a meeting with the attorney but the attorney ignored the request. The applicant and attorney did attend mediation in October 2016 through Relationships Australia, which was conducted by way of shuttle mediation, but there was no resolution to issues or to the ongoing conflict between them.
18. The attorney when asked whether she used to enjoy a good relationship with the applicant indicated: “No it has always been awkward… It has been made more difficult by being in the role of attorney.” Further, the attorney indicated “I didn’t want to meet with her because she had been so abusive to me. A couple of times she had screamed in my face accusing me. I told her that if she acted like that again I would get a restraint order”. The applicant acknowledged this incident had occurred.
19. The donor’s niece DE indicated there is “an increasing difficulty with the strained relationship” between the applicant and the attorney which impacts on spontaneous visits occurring between the donor and attorney, despite the attorney living next door to the donor and the applicant.
20. Even an independent observer Ms Kate Atkinson, My Aged Care assessor and registered nurse noted in her report dated 3rd March 2017 “There is a strained relationship between the carer and the daughter.”
21. At hearing the donor acknowledged and displayed he was fully aware of the conflict that existed between the applicant and the attorney and conveyed a meaningful message to all that were in attendance. “I’m afraid there is conflict. It is so complicated. …I miss the attention of my daughter.” When asked what stops him from seeing the attorney the donor responded: “I have to be honest with that I have an important relationship with these two women. It is always there…” He then later stated “But these two particular women here are ones really important to me…They have different attitudes to important things.” At a later part in proceedings he stated there is a “problem with communication over finances.” The donor conveyed to the Board the importance he placed on the relationship he has with both the attorney and the applicant and how he wanted that to continue in his life. He did not make negative comment about either and did not comment on the attorney’s ongoing involvement as attorney.
22. If the attorney remains as enduring attorney then communication and co-operation between the attorney and applicant shall be required particularly as the donor’s disability deteriorates. The conflict between the attorney and applicant has clearly existed for quite some time and appears to have increased as the donor’s disability has deteriorated. The Board takes into account the donor’s awareness of this conflict and the very difficult situation this places him in. The Board gives weight to the attorney’s comment that her relationship with the applicant has been made more difficult by being in the role of attorney. The Board believes the conflict will continue to increase while the attorney remains in the role. The ongoing conflict between attorney and the applicant is clearly contrary to the interests of the donor. The Board is also concerned the conflict may compromise the attorney in her ability to perform her role as attorney.
23. The Board is also concerned that the donor, being a 91 year old man who is in receipt of a pension of $1400 per fortnight and has significant savings exceeding $300,000 is not being provided with sufficient funds that would allow him to participate in all of the activities he would like to and meet all the incidental expenses he may have. The donor, particularly at his stage in life, should be able to enjoy the full benefit of his pension and savings. It does not appear this has always been readily facilitated or encouraged by the attorney.
24. The Board determines it is in the donor’s best interests to revoke the EPA.
25. Section 33(2)(f) of the Act gives the Board power to appoint an administrator if it thinks fit. A general power to appoint an administrator is also provided by section 33(2)(c). The Board’s practice to be satisfied as to those matters set out in section 51 of the Guardianship & Administration Act 1995 (“the GAA”). The Board therefore considered section 51 GAA in this matter.
26. In considering whether the donor has a disability the Board relied on the HCPR of Dr Robert White. Dr White stated that the donor has Alzheimer’s dementia which had been evident for 4 years and was deteriorating. The Board was therefore satisfied that the donor had a disability.
27. The HCPR from Dr White advised that the donor was unable to make reasonable decisions in relation to his property, unable to manage day to day financial requirements and unable to make major financial decisions. The Board was therefore satisfied that the donor had incapacity to manage his financial estate as a result of his disability.
28. The Board then considered whether there is a need for an administrator. Evidence was heard through the course of the hearing that the donor relied on the attorney to perform all financial transactions on his behalf. The Board was satisfied there is a need for an administrator.
29. The Board was satisfied that it was appropriate to appoint an administrator of the donor’s affairs. The Board then needed to consider who should be appointed as administrator.
30. The Board has often noted that the GAA provides a statutory predisposition to the appointment of the Public Trustee. In this case such an appointment will have all of the advantages referred to by Kirby P in Holt v Protective Commissioner (1993) 31 NSWLR 227 and in particular:
·the manifest independence of the statutory office,
·the advantages of a dispassionate and neutral approach where there is a potential for family conflict and divided views about the best interests of the donor;
·the expertise of the staff of the Public Trustee, their experience in managing estates, the know how accumulated by them and their reputation; and
·the security provided to the donor’s estate against loss or damage.
31. For the above reasons, the Board determined to appoint the Public Trustee as administrator of the donor’s estate.
On 6th April 2017 the Board Ordered:
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 HME’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 HME.
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 5th April 2020.
DATED this 6th April 2017.
Rowena Holder
President
Date: 16/05/2017
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