IBNM (Review of Enduring Powers) - [2016] TASGAB 15

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

IBNM (Review of Enduring Powers) [2016] TASGAB 15

REASONS FOR DECISION

Wendy Hudson (Chair)
Justin Otlowski (Member)
Ged Dibley (Member)

2 December 2016

Review enduring power of attorney – foreign power did not comply with the requirements of the Powers of Attorney Act 2000 – need for an administrator

Powers of Attorney Act 2000
Guardianship and Administration Act 1995

This is an application made by MD, Manager, XXXX, under section 33 of the Powers of Attorney Act 2000 (the Act) for a review of an enduring power of attorney made by IBNM (the donor). Because of her position as the Manager of the facility where IBNM was a resident, the Guardianship and Administration Board (the Board) found pursuant to section 33(1) (d) of the Act that MD was a person with a proper interest in the matter for the purposes of bringing an application to the Board.
Prior to the hearing of the application, the Board had suspended the operation of the foreign power, appointing The Public Trustee as administrator for IBNM. The Board had also appointed the Public Guardian as IBNM’s guardian.
The enduring power of attorney dated 15 July 2003 was created in Germany, was in German, and appointed CO as attorney (the foreign power). Although in German, the foreign power was registered in Tasmania with the Recorder of Titles on 22 June 2016 (PAXXXX). The Board obtained a translation of the foreign power in English for the hearing.
In relation to foreign powers, the Act sets out a number of specific requirements which must be satisfied in order to register the power in Tasmania, including:
a) A certificate of a legal practitioner that the instrument was executed in accordance with the law of the place of execution (section 44) or
b) An authority exercising functions similar to those of the Recorder of Titles, has provided a certified copy (section 45).
A section 44 certificate was attached to the foreign power at the time of registration in Tasmania. The certificate was signed by Honorary Consul of France and Germany based in Tasmania and the words ‘legal practitioner’ were crossed out. The Honorary Consul of France and Germany also signed the registration application.
During the investigation undertaken by the Board prior to the hearing, the Honorary Consul of France and Germany advised by email that she was not a legal practitioner and had signed the document in her capacity as Honorary Consul. The investigation also identified that the Consulate does not exercise similar functions to the Recorder of Titles.
Mr Richard Speilding, from the Recorder of Titles, stated that it was not their normal practice to accept a foreign power which could not be read in English and they would usually need an English translation and agreed that the certificate did not satisfy the requirements of the Act.
CO requested that she be able to rectify these matters to enable the foreign power to be registered correctly however, the Board was of the view that it was not in the donor’s best interests for the power to continue based on the circumstances which arose prior to the hearing which are discussed below in regards to who is the appropriate administrator.
In the circumstances, the Board determined that it was in the best interests of the donor to revoke the foreign power of attorney.
In relation to the appointment of an administrator, the Health Care Professional Report dated 26 October 2016 by Dr Eve Merfield stated that IBNM had dementia and that this disability impacted on her orientation to person, place or time; receptive communication; capacity for new learning; susceptibility to influence; and her planning and reasoning skills. Dr Merfield provided an opinion that IBNM was not capable of making reasonable decisions in relation to her real or personal property due to her severe impairment in cognitive function.
The parties were in agreement that IBNM required an administrator, the question for the Board was, who should be appointed. CO indicated that she wished to be considered for appointment. However during the Board’s suspension of the foreign power and appointment of The Public Trustee as IBNM’s administrator (7 October 2016), the following events occurred:
·      CO contacted The Public Trustee on the day she received the notice indicating that they had been appointed administrator for IBNM, however CO advised the staff member of The Public Trustee that ‘she was resistant to any involvement in her management of her mother’s affairs by anyone including The Public Trustee’
·      The Public Trustee reviewed the Commonwealth Bank transaction history for IBNM’s accounts which highlighted that there were a number of large withdrawals from IBNM’s accounts which were not satisfactorily explained including $9, 950 on 4 October to an unknown account; $40, 000 on 13 October 2016 which was deposited into a number of different accounts, finally into an account in the name of XCO; two transactions were then made from that account into another unknown account and $20, 000 was withdrawn and a $60 safety deposit box was purchased
·      CO did not satisfactorily explain why she had not provided The Public Trustee with IBNM’s money during the 2 month period of the emergency order.
In relation to IBNM’s other asset; the house at Hobart, the Board noted that although purchased with IBNM’s money, it was registered in the names of CO and XCO. This occurred at the time of purchase when IBNM did not have Australian Residency and therefore was unable to purchase a property in her name.
Section 54 (1) of the Guardianship and Administration Act 1995 deems The Public Trustee to be an approved administrator without the need to prove their suitability. An individual, however, is in a different position and must prove that they have no conflicts of interest, that they are suitable and have sufficient expertise for appointment.
In the circumstances, the Board determined that it was not satisfied CO was, at this time, able to act as IBNM’s administrator for the following reasons:
·      The unlawful withdrawals of IBNM’s monies by CO shortly prior to and during the suspension of the foreign power and the appointment of The Public Trustee as IBNM’s administrator
·     The lack of understanding by CO of the appropriate decisions and actions she should have taken regarding IBNM’s monies
·     CO’ conflict of interest in regards to the property at XXXX.
With respect to the principles in section 6 of the Act, the Board notes that IBNM expressed that she wished a family member to be her administrator however the Board considered that the appointment of a professional and independent body as administrator for IBNM serves her best interests at this time. The Board indicated to CO that if she were able to demonstrate to the Board at a later date that she had worked well with The Public Trustee and had acted appropriately in regards to the above matters, that she could apply to the Board for a review of the order and reconsideration of her appointment as IBNM’s administrator.
On 2 December 2016, the Board determined that:
After hearing an application in relation to an Enduring Power of Attorney (PAXXXX) dated 15 July 2003 (hereinafter ‘the power’) made by IBNM (hereinafter ‘the donor’) appointing CO as her attorney,
The Board was satisfied (i) that the power does not comply with the requirements of the Act, and (ii) that it is not in the donor’s best interests for the power to continue, and (iii) that the donor is, by reason of a disability, unable to make reasonable judgements in respect of his estate and is in need of an administrator.

THE BOARD ORDERS

That the power is revoked from the date of this order.
That The Public Trustee be appointed administrator of the estate of IBNM.
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 1^st December 2019.

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Wendy Hudson CHAIRMAN	Justin Otlowski MEMBER	Ged Dibley MEMBER