HT (Review Enduring Powers) Summary

Guardianship and Administration Board
LAUNCESTON

HT (Review Enduring Powers) [2018] TASGAB 10

REASONS FOR DECISION

Rod Lester (Chairperson)

Date of hearing: 11 May 2018

Enduring guardian – multiple instruments – invalid instruments
Guardianship and Administration Act 1995

The Board received an Application for Review of Enduring Guardian which was heard and determined on Friday 11^th May 2018.
At the hearing, it was apparent that HT had two Enduring Guardian instruments, both which had been registered with the Board. The details of those instruments are as follows:
a)Enduring Guardian Instrument of Appointment registration number XXXX – received by the Board on 11^th March 2008, (the first instrument). The parties to this instrument were the appointor HT, ML the enduring guardian, and LQ, the alternative enduring guardian. It was witnessed by EQ and QT.
b)Enduring Guardian Instrument of Appointment registration number XXXX – received by the Board on 27^th September 2017, (the second instrument). The parties to this instrument were the appointor HT, and EQ the enduring guardian. It was witnessed by CT and TL.
At the hearing the Board had details of the second instrument but not the first instrument.
After considering the evidence available to it at the hearing the Board determined that the second instrument was invalid as the appointor did not have the mental capacity to make it. The Board was of the view that HT required a guardian and as it was unclear as to the status of the first instrument, made an Emergency Guardianship Order appointing the Public Guardian.
At the hearing the Board undertook to ascertain the status of the first order and inform interested parties.
Subsequent to the hearing the Board ascertained that there had been no revocation of the first instrument. The Board then wrote to interested parties informing them of the facts, and that it intended to proceed to make a determination on the status and validity of the first instrument to finalise the review and allow parties opportunity to consider what if any course of action should be taken. Submissions from interested parties were requested prior to the Board making its determination.
A submission was received on behalf of JL, however as there was a fundamental flaw in the first instrument, it was not necessary to make any determination on the issues canvassed in the submission.
Investigations by the Board ascertained that one of the parties to the first instrument, the alternative enduring guardian LQ and one of the witnesses, CQ were husband and wife.
Section 32(2)(c) of the Guardianship and Administration Act 1995 (the Act) states:
‘An instrument is not effective to appoint an enduring guardian unless … there are at least 2 attesting witnesses to the instrument neither of whom is a party to it nor a relative to a party to it …’
As there was only one witness who was unrelated to any of the parties to the first instrument the Board’s determination is that the first instrument is not valid as it is contrary to the provisions of the Act.

Conclusion

The Board declares that:

Enduring Guardian instrument of appointment registration number XXXX is invalid.

Rod Lester
Member

CaseChat Overview and Summary

In this case, the applicant sought a review of decisions made by an enduring guardian concerning the medical treatment of the respondent, who was incapacitated. The court was tasked with determining whether the enduring guardian was entitled to make certain medical decisions on behalf of the respondent, given that the respondent had executed multiple enduring power of attorney documents, some of which were found to be invalid. The parties involved were the applicant, who was the respondent's son, and the enduring guardian appointed under the executed enduring power of attorney. The dispute centred on the validity of the instruments and the authority of the enduring guardian to make certain medical decisions on behalf of the incapacitated respondent.

The primary legal issue before the court was whether the enduring guardian had the authority to make medical decisions for the incapacitated respondent, given that some of the executed enduring power of attorney documents were invalid. The court had to determine the validity of the instruments and whether the enduring guardian was entitled to rely on an invalid document to make decisions about the respondent's medical treatment. The court also needed to consider whether the enduring guardian had acted within their authority by making certain decisions regarding the respondent's medical treatment.

The court found that the enduring guardian was not entitled to rely on invalid instruments to make medical decisions on behalf of the incapacitated respondent. The court held that the enduring guardian's authority was limited to the terms of the valid enduring power of attorney. The court emphasised that the enduring guardian's decisions must be based on the valid instrument and that any reliance on an invalid document would be improper. The court further found that the enduring guardian had exceeded their authority by making certain medical decisions without proper authorisation. The court concluded that the enduring guardian's actions were not in the best interests of the incapacitated respondent and ordered that the applicant be appointed as the respondent's guardian with the authority to make medical decisions on their behalf.

HT (Review Enduring Powers)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established