IN (Review Enduring Powers)

[2009] TASGAB 11

GUARDIANSHIP & ADMINISTRATION BOARD
ULVERSTONE

IN on the application of IK

Neutral Citation: IN (Review Enduring Powers) [2009] TASGAB 11

REASONS FOR DECISION

Leon Peck (Chairman)
Mary Davies (Member)
Grant Kingston (Member)

Enduring power of attorney – enduring guardianship – interference with role as attorney and guardian by another family member – capacity
Powers of Attorney Act 2000 sections 33, 35
Guardianship and Administration Act 1995 section 35

1. IN is 91 years old and lives on the North West Coast of Tasmania.  She has been twice widowed.  IN has one daughter, CEN.

1. On the 2^nd June 2004, IN appointed PHE, a family friend, as her attorney.  The instrument was revoked in documentation signed and witnessed on the 8^th September 2006.  Registration (No PA xxxx) occurred on 3^rd October 2006.

1. On the 8^th September 2006 IN appointed her granddaughter, IK as attorney and Tasmanian Perpetual Trustees as substitute attorney (registered no. xxxx).  In an instrument dated the 13^th September 2006 IN appointed IK as her enduring guardian (registered no. xxxx).

Basis of the Application

1. IN was hospitalised at the Mersey Community Hospital on 1^st January 2009 and following her discharge on 2^nd February 2009 was placed at an aged care facility.

1. On the 12^th March 2009 IK applied to the Guardianship and Administration Board for a review of the enduring power of attorney and enduring guardianship instruments.

1. IK advised that IN had been taken from the aged care facility on or about the 5^th March 2006 and now resided with her daughter CEN, at her residence on the North West Coast.

1. IK considered that her ability to continue as attorney and enduring guardian had been compromised by the involvement of her mother, CEN in the care of her mother, IN.

1. IK sited a Statutory Declaration signed in 2004 by IN which was extremely critical of her daughter (CEN) and stated that she did not wish to have anything further to do with her daughter, who had been estranged for some 30 years.

1. IK was also concerned at reports that CEN had approached both a Trustee Company and solicitors in an attempt to have her appointed the attorney.

1. It was further disclosed that IN had signed a revocation of the instrument appointing IK as attorney, on the 12^th March 2009, which had not been registered.

1. In correspondence dated 12^th March 2009, Dr A stated that IN “is capable to look after herself and live in her own home.”   He also stated “Her mental state exam showed mild cognitive impairment which is consistent with her age and the stress that she was exposed to going to the Nursing Home without her consent”.

1. Following IN’s departure from the aged care facility, a request for an emergency order dated 18^th March 2009 was submitted by Dr B, the clinician responsible for her care when in residence at the aged care facility.

1. Dr B disclosed that IN had been collected by her estranged daughter and had not been returned.  He was concerned because he had diagnosed IN as suffering from vascular dementia.  He stated that despite attempts by her enduring guardian to have IN returned to the aged care facility it had not happened.  He was concerned with the effects of non-compliance with the prescribed medication and the potential for exploitation.

1. An emergency order for both guardianship and administration was granted on the 19^th March 2009 involving the appointment of the Public Guardian as guardian and The Public Trustee as the administrator of the estate of the represented person for a period of 28 days.  The orders were renewed for a further 28 days on the 16^th April 2009.

1. It was noted that the Emergency Order did not suspend the E.P.A.

1. The Public Trustee placed a stop on bank accounts, advised the Department of Veterans Affairs of the situation, clarified the status of the aged care facility account, confirmed that IK held the Certificate of Title for IN’s residence and advised the Land Titles Office.

1. Attempts were made to have IN returned to The aged care facility.  The Public Guardian found it difficult to make contact with IN.  With the assistance of police, contact was finally made.  IN disclosed she was satisfied with the living arrangements with her daughter, but still hoped to return to her own residence.  She stated she had no desire to return to the aged care facility.

1. In a report to the Board, an officer of the Office of Public Guardian dated 27^th April 2009 states:

“I was surprised to find IN as a sprightly 90 plus year old woman, physically quite mobile and very aware of what was happening around her”.

“She obviously has some short term memory problems but I was generally surprised as to her recall of leaving the aged care facility and what has happened since, she was very concerned that I was going to drag her back to the aged care facility”.

“She appears well cared for at the moment and made it clear to me that she wants to return to her home.”

“She is certainly not detained against her will and she is not showing any signs of physical, emotional or mental health damage from what has take place in recent weeks.”

“I can see no compelling reason why she should be forced to return to the aged care facility against her will”.

Hearing

1. A hearing was scheduled for and conducted on Friday 15^th May, 2009 at the Department of Justice Hearing Centre, 19 King Edward Street, Ulverstone.  In attendance were:

   IN – proposed represented person

   IK – Applicant (granddaughter)

   QT – Solicitor for proposed represented person

   XG – Solicitor for Applicant

   Kylie Hillier – Office of Public Guardian

   Mike Brindley, Kathryn Grining – Office of Public Trustee

   Dr B – (via phone)

   WI –Trustee Company

   CEN – daughter of proposed represented person

   KU - grandchild of proposed represented person

   NN – grandchild of proposed represented person

   KC – grandchild of proposed represented person

   CU – great grandchild of proposed represented person

   TU – great grandchild of proposed represented person

   MN – great grandchild of proposed represented person

   KL – friend of proposed represented person

   TB – friend of proposed represented person

   VC - friend of proposed represented person

   OC – friend of proposed represented person

   TC – friend of proposed represented person

1. During the hearing IK detailed why she considered her role/s had been negated.

1. IN, when questioned could not recall why she had appointed IK as her attorney and enduring guardian and could not explain her expectations when the instruments were prepared.  IN stated she wanted the enduring power or attorney revoked “as IK was nasty, she did not want her” and disclosed that she wanted to appoint CEN (her daughter).  IN revealed she had been living in her own home for the past two weeks.

1. Dr. B informed the Board that a mental cognitive test was conducted while IN was a resident at the aged care facility.  He stated that the test revealed a significant memory loss.  He expressed concern believing that IN may not have capacity to enable her to live independently.  He recommended a thorough and proper clinical assessment preferably conducted by a qualified psycho geriatrician.

1. Mr QT tabled a report from Dr C who had reviewed IN on 23^rd April 2009 following a referral from Dr A.  Dr Bean in correspondence dated 23^rd April 2009 stated:

“It is difficult to make an exact evaluation of IN’s condition due to the conflicting nature of the evidence that I have been provided with.  It is strange that she is now estranged from her granddaughter who was previously perceived as her main support and is now living with her daughter with whom she had very limited contact for a number of years.  As mentioned previously her daughter and granddaughter also have no contact with each other.”

“My impression is that IN is probably suffering from the early stages of some form of dementing illness.  As to her ability to care for herself alone at home I have doubts that she would be able to cope alone at home without adequate community supports were able to be arranged and her mental state was able to be monitored by these community supports and by yourself.  It is probable that she could continue at home for a further period of time”.

Mr Sullivan also submitted that the ACAT assessment of 21^st January 2009 considered that with appropriate support services IN was capable of living in her own home.

1. IK provided further evidence to the Board detailing her history with her grandmother and the supportive and caring relationship that had existed.  She reported that staff at the Hospital considered that IN lacked the capacity and ability to support herself in her own home.  As a result placement was found at the aged care facility.

1. Evidence to the contrary was provided by numerous family members and friends in attendance at the hearing.

Enduring Power of Attorney (EPA)

1. The Board had the following options available to it under section 33, Powers of Attorney Act 2000.

   ·Dismiss the application (in which case the 2006 EPA would stand unless validly revoked by the donor)

   ·Appoint a substitute attorney, section 33(2)(6) or declare that the alternative attorney, Trustee Company is now the principal attorney by varying a term of the EPA, section 33(2)(a)

   ·Revoke the EPA and appoint an administrator, section 33(2)(c) and (f)

1. Alternatively the Board could decide to give advice and directions pursuant to section 35(5) PAA of its own motion such as:

   ·Approve or disapprove of any financial arrangements that the attorney may wish to make or approve or disapprove of her specific actions to date (section 35(4)(a))

   ·Give advice and direction to the attorney to ensure that her authority is used appropriately and not undermined by other parties (e.g. write to relevant banks asserting her ongoing authority and giving instructions about accounts etc) (section 35(4)(b))

   ·Require the attorney to lodge accounts with the Board (section 35(6)(a))

   ·Require the attorney to lodge accounts with the Board and have them audited (sections 35(6)(b))

   ·Require the attorney to lodge a financial management plan with the Board (section 35(6)(c))

Enduring Guardianship (EG)

1. The Board had the options available to it in relation to enduring guardianship as per Guardianship and Administration Act 1995, section 35. These included:

   ·Dismissal of the application, in which case the 2006 enduring guardianship stands, unless validly revoked by the donor

   ·Appoint a substitute guardian, section 35(3)(c) by varying the terms of the enduring guardianship

   ·Approve or disapprove of the actions of IK (e.g. admitting IN to the aged care facility), section 35(3)(a)

   ·Provide advice or direction to the guardian as per section 35(3)(6)

1. The Board stated that IN’s capacity was pivotal to the hearing.

   
   

   Any decisions made by the Board in relation to either the EPA or EG may be futile if in fact IN had capacity.

1. On balance, the evidence before the Board strongly supported the case that IN may lack capacity.  The reports and evidence from Dr B, the comments from SI, Director of Care at the aged care facility and importantly INs “performance” at the hearing led the Board to the belief that she may be lacking capacity to make reasonable decisions.

1. The Board therefore believed that an independent psycho geriatric assessment conducted by a qualified clinician, as recommended by Dr B, was necessary despite the outcome and decisions made by the Board.  That is, if IN has capacity the need for an attorney/administrator and/or a guardian would be academic.

1. The Board also considered, that if IN has capacity to make reasonable decisions, she would recognise the significance of the aforementioned point and willingly undergo an assessment; an option she had strongly opposed in the lead up to the hearing.  The Board acknowledges that after an adjournment during the hearing to facilitate discussions between IN and her solicitor, she, upon her return to the hearing did disclose a willingness to undertake an independent clinical assessment.

1. The Board considered IK a credible person who had acted in good faith in what she considered to be the best interests of IN.  Her applications were motivated by the involvement of others in the estate and welfare of IN thereby impacting on her rightful status and ability to effectively perform her role, albeit being made more difficult by the fact she resides interstate.

1. The Board believed that IK’s concern was not without foundation.  The performance and attitude of some family members at the hearing was considered marginal at best.

1. The Board therefore believed, and understood, the genuine concerns held by IK at the possible manipulation, pressure and influence to which IN may be subjected which could impact on her health, wellbeing and matters of estate.

1. It was considered that IN most likely had capacity in April 2006 when the most recent valid instruments were registered.  The Board therefore considered it appropriate that the intent associated with these instruments be preserved.

1. However it was considered that IK was in an untenable position.  She faced strong opposition from her grandmother (IN) and from the rest of the family and friends.  It was therefore the opinion of the Board that the interests of IN should be preserved and protected by the retention of the instruments, however that IK be relieved of her responsibilities.

THE DECISIONS

After hearing an application by IK in relation to an Instrument Appointing an Enduring Guardian registered number xxxx and dated 13^th September 2006 (hereinafter ‘the instrument’) made by IN appointing the applicant as her enduring guardian.

The Board was satisfied in the circumstances that it was appropriate to vary the instrument pursuant to section 35(3)(c).

THE BOARD AMENDS the instrument appointing IK as the enduring guardian for IN by substituting the Public Guardian as her enduring guardian.

After hearing as application by IK in relation to an Enduring Power of Attorney (hereinafter ‘the power’) made by IN and dated 8^th September 2006 (registered number PAxxxx) whereby the donor appointed IK as attorney and Trustee Company as substitute attorney.

The board was satisfied in the circumstances that it was appropriate to vary the power pursuant to section 33(2)(a).

THE BOARD ORDERS that Trustee Company be appointed attorney of the power in place of IK.

Leon PeckGrant Kingston  Mary Davies

ChairMember  Member